text:
    Edna GORDON, Lillie Davis, Arthur Laneheart, Mary Williams, John B. Williams, Robert Williams, Lester Williams, Ernest Laneheart, Helen Williams, and Patrice Dixon, Kevin Dixon, and Benny Ray Dixon, on behalf of their deceased Mother, Patricia Dixon, and Ann Lacey, Kathleen Hollins, Arlene Scott, Carolyn Dixon, Idella Dixon, Gloria Johnson, Rufus Dixon, Jr., and Michael Dixon, on behalf of their deceased Mother, Pearl Dixon, The Children and Representatives of the deceased Children of Helen Williams v. POINTE COUPEE HEALTH SERVICE DISTRICT ONE d/b/a Pointe Coupee General Hospital.
    No. 2010-C-2067.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Gordon, Edna et al.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 21st Judicial District Court Div. D, No. 42115; to the Court of Appeal, First Circuit, No. 2009 CA 2202.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny BAKER; Essie Calaway; James Odis Millner; Zona Winston on Behalf of Mount Calm Baptist Church of Minden, Louisiana v. T. Alexander KNAPP.
    No. 2010-C-2073.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Callaway, Essie et al.; Millner, James Otis; Mount Calm Baptist Church of Minden, Louisiana; Winston, Zona;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Webster, 26th Judicial District Court Div. E, No. 67,769; to the Court of Appeal, Second Circuit, No. 45,404-CA.

Denied.


text:
    Issa HADDAD, et al. v. Ali ELKHATEEB Issa Haddad and Safari Inc. of New Orleans v. American Tri-State Underwriters, Inc. and Certain Underwriters of Lloyd’s, London.
    No. 2010-C-2076.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Haddad, Issa; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, Nos. 2007-3994, 2007-4960; to the Court of Appeal, Fourth Circuit, Nos. 2010-CA-0214, 2010-CA-0308.

Denied.


text:
    M. CANDICE HATTAN, P.L.C. v. SHIVERS BROTHERS CONSTRUCTION, L.L.C., et al.
    No. 2010-CC-2079.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re M. Candice Hattan, P.L.C; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2009-1274-C; to the Court of Appeal, Third Circuit, No. CW10-00681.

Denied.


text:
    STATE of Louisiana v. Darrius WILLIAMS.
    No. 2010-KK-2091.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Williams, Darrius; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 273,438; to the Court of Appeal, Second Circuit, No. 45,-848-KW.

Denied.


text:
    Michael Ray CARR v. OAKTREE APARTMENTS and Cross Country Management, Inc.
    No. 2010-C-2092.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Gibsland Bank & Trust Co.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. E, No. 52406; to the Court of Appeal, Second Circuit, No. 45,514-CA.

Denied.

WEIMER, J., would grant.


text:
    Stephanie Watkins, Wife of/and Greylin WATKINS v. PANCO INC., Cora K. Pania, Wife of/and Elmo Pania, Jr., Charles Richardson d/b/a Rehab Construction, Henry Louis Thurman, Jr., Hunt-Thurman Associates, City of Plaquemine, Louisiana State Licensing Board of Contractors, The ABC Insurance Company, The DEF Insurance Company, The GHI Insurance Company, The JKL Insurance Company, The MNO Insurance Company, The PQR Insurance Company and The XYZ Insurance Company.
    No. 2010-OC-2277.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Powers, Stephanie; Watkins, Stephanie; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. C505870; to the Court of Appeal, First Circuit, No. 2010 CA 0307.

Denied.


text:
    SPRINGWOOD HOMEOWNERS ASSOCIATION, INC. v. Annette Cambronero BURAS, et al.
    No. 2010-CC-2316.
    Supreme Court of Louisiana.
    Nov. 12, 2010.
   In re Buras, Annette Cambronero et al.; Buras, Roy T.; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 56-546; to the Court of Appeal, Fourth Circuit, No. 2010-C-0926.

Writ denied.


author: MAX N. TOBIAS, JR., Judge.

text:
    David KNAPPER v. HIBERNIA NATIONAL BANK and Hibernia Corporation.
    No. 2009-CA-1036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2010.

      Luz M. Molina, Supervising Attorney, Eve Lindstedt, Student Practitioner, Stuart H. Smith Law Clinic & Center for Social Justice New Orleans, LA for Plaintiff, David Knapper.
    Henry P. Julien, Jr., Robert P. Lombardi, The Kullman Firm, A PLC, New Orleans, LA, For Defendants, Hibernia National Bank and Hibernia Corporation.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge Paul A. Bonin).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff-appellant, David Knapper (“Knapper”), appeals the trial court’s grant of summary judgment to the defendant-appellee, Hibernia National Bank (“Hibernia”) on his racial discrimination claim filed under La. R.S. 23:331, et seq. For the following reasons, we affirm.

I. PROCEDURAL BACKGROUND

Knapper, an African American male, was terminated from his employment at Hibernia National Bank after working seven years as a loan collector. He subsequently filed suit alleging his discharge was the result of racial discrimination in violation of La. R.S. 23:332. Specifically, Knapper alleges that he was |2terminated because of his race, preceded by failing to grant him pay raises, denying him promotional opportunities, and subjecting him to discipline under circumstances where similarly situated Caucasian employees were not disciplined. Knapper also made claims for retaliatory discharge under the Louisiana Employment Discrimination Law (“LEDL”) and retaliatory discharge under the Louisiana Whistleblower’s statute.

Hibernia filed a Renewed Motion for Summary Judgment. The trial court granted the motion, dismissing Knapper’s claims for retaliatory discharge under the LEDL and the Whistleblower’s statute, but denied the motion with respect to his racial discrimination claim. Knapper’s case proceeded to trial in May 2005. During the course of the second day, realizing the trial could not be completed within the allotted time, the trial court granted a mistrial at Knapper’s request.

In light of testimony presented at the mistrial, Hibernia re-urged its Motion for Summary Judgment seeking dismissal of Knapper’s claim that he was ^discharged due to racial animus. The trial court granted Hibernia’s motion, but did not assign reasons. It is from this judgment that Knapper timely appeals.

II. FACTUAL BACKGROUND

Knapper was employed by Hibernia from 1995 until 2001 as a “front end direct unsecured/other secured loan collector” (hereafter “FEDUOSLC” or in the plural, “FEDUOSLCs”). Knapper was hired as an Adjuster III (a senior loan collector) based on representations he made concerning his prior work experience. His primary job duties included the collection of delinquent loan accounts. As per bank policy, Knapper received his first employment evaluation in March 1996. His then supervisor, Nancy Alvarado, assigned Knapper an overall rating of “meets some requirements.” Knapper did not receive a merit increase in compensation. In March 1997, Alvarado conducted Knapper’s second annual performance review and rated him as “does not meet requirements.” Again, Knapper was not given a merit increase due to his unsatisfactory job performance and was placed on probation.

In 1997, Steve Larmann replaced Alvarado as Knapper’s supervisor and manager of Hibernia’s collections department. Lar-mann immediately began making changes, including instituting standardized quotas for collectors. As one of eight FED-UOSLCs, Knapper was assigned a specific dollars collected goal on a monthly basis. This amount was the same for each front end direct 14unsecured/other secured loan collector. The collectors were expected to achieve their monthly dollars-collected goal fifty percent of the time, and were further expected to achieve their goal, or come within ten percent of their goal, at least every other month or face discipline. Knapper exhibited difficulty in attaining the required quotas initiated by Larmann. In an effort to address and assist Knapper in achieving his performance goals, in December 1997, Hibernia instituted numerous measures including counseling, creating a performance plan, and assigning Knapper to a new portfolio as a rehabilitative transfer.

Knapper was due for his annual performance evaluation in March 1998, but in February, Hibernia placed him on probation based upon his continued failure to attain his dollars-collected goal. Consequently, Larmann deferred Knapper’s annual evaluation due to his unsatisfactory performance and issued a memo providing notice of this administrative decision. Knapper continued to receive counseling during the subsequent months to encourage him to make his performance goals. His performance did improve, as evidenced by his February 1999 review, wherein Knapper received a satisfactory review. In recognition of Knapper’s achievement, he was given a merit increase, which was made retroactive. This was Knapper’s first pay increase since his hire four years earlier in 1995.

Knapper was apparently not able to maintain his satisfactory performance and received three formal counselings prior to his next annual review. In his May 2000 evaluation, Knapper achieved his monthly dollars-collected goal for only two |sof twelve months (January 1999 and December 1999) and was found deficient in several performance areas. Consequently, Knapper received an overall rating of “meets some requirements” and was not given a merit pay increase.

In December 2000, Larmann granted all collectors “amnesty,” giving each collector a “fresh start” for progressive discipline purposes, in conjunction with the imposition of strict performance goals in January 2001. In March 2001, Knapper received a verbal warning for having missed his dollars-collected goals in January and February 2001. Knapper failed to meet his dollars-collected goal again in March and received a written warning. When Knapper failed to meet his dollars collected goal again in April, he was placed on 90 days probation for having failed to achieve his dollars collected goals for four consecutive months. Under the terms of the probation, Knapper was required to achieve his monthly dollars collected goal for the next three consecutive months.

Knapper achieved his dollars collected goal for May 2001, but failed to attain the same goals during the month of June, in violation of the terms of his probation. Because Knapper had taken vacation time in June, instead of being terminated, Hibernia extended his probation period. On 9 July 2001, Knapper was warned that his call production was below requirements. Thereafter, Knapper failed to achieve his goal for July. This violated the terms of his probation as he had missed his collection goals two of the three months of his original probationary ^period. Consequently, in accordance with the terms of the probation, Hibernia terminated Knapper on 8 August 2001.

III. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137.

IV. DISCUSSION

The only claim before this court is Knapper’s termination claim. As in any discrimination case, Knapper is charged with the ultimate burden of proving that Hibernia intentionally discriminated against him based on his race. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). A plaintiff can seek to establish a case of intentional discrimination by direct or circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir.2001). Where a plaintiff can only muster circumstantial evidence that discriminatory animus played a role in an employment decision, the plaintiff must rely on the McDonnell Douglas burden-shifting framework to create a presumption of intentional discrimination. To create such a presumption, the plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002). In the instant case, Knapper presents only circumstantial evidence of discrimination. Therefore, to establish a prima facie case of discrimination, Knapper must show that he (1) was a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated more favorably. See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.1998).

Upon establishing a prima facie case under the McDonnell Douglas framework, the burden then shifts to the defendant to set forth a legitimate non-discriminatory explanation for the adverse employment decision. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The burden is one of production and not persuasion. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). It cannot, therefore, involve a credibility assessment. Id. If the defendant is able to articulate a legitimate non-discriminatory reason, the plaintiff must then establish by a preponderance of the evidence that the defendant’s proffered reasons were not its true reasons. Id. In short, the plaintiff must produce substantial evidence that the defendant’s nondiscriminatory reason is merely a pretext for impermissible discrimination. Wallace, 271 F.3d at 220. Where the plaintiff fails to produce substantial evidence of pretext, or produces evidence permitting only an indisputably tenuous inference of pretext, summary judgment in favor of the defendant is appropriate. Id. Even if the plaintiff is able to make a showing as described above, judgment for the employer may be appropriate where “no rational fact-finder would conclude that the action was discriminatory.” Reeves, 530 U.S. at 148, 120 S.Ct. at 2109.

| sIn the context of this analytical framework, we now turn our attention to Knapper’s racial discrimination claim. Knapper’s complaint charges Hibernia with impermissibly discriminating against him on the basis of race in the termination of his employment. For purposes of its motion for summary judgment only, Hibernia concedes Knapper meets the first three criteria for establishing a pri-ma facie case of racial discrimination: namely, that he was within the relevant protected class, at some point he was qualified for the position he held, and that he was terminated.

Thus, the sole issue presented on appeal is whether Knapper can carry his burden of establishing the fourth element, that is, that a similarly situated employee outside of the protected class (i.e., a Caucasian employee) was treated more favorably. In other words, Knapper must show that a Caucasian employee was treated differently under circumstances “nearly identical” to his. Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 514 (5th Cir.2001). Alternatively, it has been recognized that a plaintiff may also establish the fourth element by demonstrating that he was replaced by someone outside of the protected class. Id. at 512-513.

Knapper contends that the record reveals a consistent pattern of disparate treatment as similarly situated Caucasian loan collectors were given preferential treatment at his expense. First, Knapper avers the evidence supports a finding that Hibernia did not discipline him in the same fashion as Caucasian employees who also failed to meet their monthly performance standards. In support, Knapper points to the treatment of five Caucasian Hibernia loan collectors: Mike Faciane (claims he missed dollars collected goals for five consecutive months in 1999 and 19was not disciplined); Robert Flanagan (alleges he was given a raise to $23,520 in November 2000, despite missing the prior four monthly goals and six out of the previous seven); Marjorie Fricke (avers she was not disciplined for missing her dollars-collected goals for three straight months in 1999 and that she was hired at a salary more than $4,000 above Knapper’s); William Bu-randt (claims he was not disciplined despite missing his goals in April, May and June 1999); and Melissa Breaux (contends she missed her dollars-collected goal in March and April 2001, but was not disciplined).

We find Knapper’s argument, however, is without merit. The record clearly shows that during this timeframe (prior to 2001), Knapper received the same benefit of lax enforcement of the performance standards. Knapper’s employment records reveal that in 1998 he missed his monthly goals five months in a row without being disciplined. Then, in 1999, he failed to meet his monthly goals in June, July, October, and November, and did not receive any disciplinary warning. Knapper also failed to achieve his monthly goals for seven consecutive months (from June through December) in 2000, without being terminated; rather, he received only one formal counseling during that seven-month period.

Regarding Melissa Breaux (whom Knap-per contends was not disciplined after missing her goals in March and April of 2001), the record reflects that she was removed from her position in April due to a posting error. When she returned to the department to fill a vacancy, this constituted a promotion and she entered into a three-month probationary period during which employees customarily are not subject to discipline, but rather, are evaluated at the end of the three-month | ^probationary period. Breaux failed to meet her performance goals during the final two months of her probation (June and July 2001) and her probation was extended an additional month. Breaux, however, submitted her resignation in August-2001.

As noted above, Hibernia announced amnesty to all loan collectors for the months preceding January 2001, at which time Larmann instituted strict enforcement of progressive discipline for failure tó meet monthly goals. The record reveals that in 2001, Hibernia was actively enforcing discipline for missing monthly performance goals. Specifically, in addition to Knapper, five employees — one Caucasian, one Hispanic, and three African Americans — were issued warnings for failure to achieve production goals. Additionally, a probationary employee, Heather August, was terminated in March 2001, for repeatedly failing to reach her performance goals.

Knapper further points to the fact that Flanagan missed his goals in January and February 2001, and then again in July and July 2001, without being disciplined. Knapper contends this is evidence of disparate treatment. Hibernia, however, was not able to locate any disciplinary action for June and July 2001. According to Larmann, Hibernia’s immediate supervisors were responsible for issuing warnings, and Ernesto Mora, Flanagan’s immediate supervisor, was deployed on military duty in Iraq during this timeframe. Hibernia contends this is the only instance in which discipline was not issued after 1 January 2001. We find that this one instance is insufficient to establish that Hibernia’s disciplinary policy was disparately enforced.

|nKnapper was one of eight FED-UOSLCs. The record supports the fact that all eight performed the same job and were held to the same performance standards. Specifically, in order to avoid discipline, they were expected to achieve their monthly dollars collected goal, or come within ten percent, every -other month. According to the summary judgment evidence, the front end collectors were generally able to meet these requirements except for Knapper. The numbers below show the comparative performance of the FEDUOSLCs based upon their respective periods of employment.

We agree with Hibernia that the information contained in the table above, which includes Caucasian comparables similarly situated to Knapper (ie., Burandt and Breaux), demonstrates that Knapper was not treated less favorably than similarly situated employees outside the protected class. Put simply, Knapper cannot identify any Caucasian FEDUOSLC who performed as poorly (or more poorly) than Knapper who was retained, or who missed his or her goal for four months in a row subsequent to 1 January 2001 (when progressive discipline for strict performance standards was imposed), who was not put on probation in accordance with those standards.

Hibernia expected Knapper to attain his dollars collected goal, or come within 10% of this goal at least every other month. In Knapper’s final 14 months he attained his goal only once. Those who performed well were retained, regardless of race. Of the other three employees who were employed at Hibernia for 31 months, Knapper was the only one who performed poorly at 19%. Knapper was given a number of counselings and warnings about his poor performance. Larmann established performance plans in an effort to help Knapper increase his performance. Knapper was aware of the discipline program if the set goals were not attained, and still his overall goal attainment was 35% lower than the employee with the lowest percentage.

Next, Knapper contends that the initial starting salaries of several Caucasian employees that exceeded his overall salary demonstrates disparate treatment. We find that Knapper’s evidence on this issue is equally unavailing and not supported | isby the record for, while Knapper may have been paid less than a number of Caucasian loan collectors, his salary also fell below other African American loan collectors.

According to the evidence, Hibernia granted pay raises based on merit and job performance. Because Knapper habitually did not meet his set performance goals, there were several years where he did not receive a salary increase and his annual salary remained the same. A review of Hibernia’s business records, specifically the Pay Rate History Report, reveals that no general pay disparity existed between Caucasians and African Americans throughout Hibernia’s collection department:

_Name_Rate of Pay_Race_
Eggula “Marie” Green_$34,000_African American
Alma Griffin_$32,095_African American
Michael Faciane_$30,900_Caucasian_
Marjorie Fricke_$28,800_Caucasian_
Desmond Davis_$28,200_African American
William Burandt_$27,600_Caucasian_
Heather August_$27,000_African American
Michael Bechet_$26,400_African American
Horace Dorsey_$25,500_African American
JjjBelinda Ferrand_$24,150_African American
David Knapper_$24,020_African American
Robert Flanagan_$23,520_Caucasian_
Melissa Breaux_$23,500_Caucasian_
Barbara Hardeman_$23,400_African American
Lillie Guichai’d$20,085_African American

We conclude that Knapper has failed to present any evidence suggesting that other similarly situated employees outside of the protected class, ie. Caucasian FEDUOSLCs, were treated more favorably than he was treated. Therefore, in order to establish the fourth element of proving a prima facie case of racial discrimination, Knapper must show that Hibernia replaced him with a member outside of the protected class.

Knapper contends he was replaced by Mitchell Ansardi, a Caucasian male. In support of his contention, Knapper avers that Ansardi was the next person hired into the collection department in October 2001 at a salary of $27,000. Contrariwise, Hibernia contends that Knapper was replaced by Desmond Davis, an African American male. Davis was originally hired by Hibernia as a collector in October 1999. During the first part of 2001, Davis was on active military duty and returned to Hibernia from military leave immediately prior to Knapper’s termination. Upon his return to Hibernia, Davis was being used as a “float” in the collections department. When Knapper was terminated, Davis was assigned to 115Knapper’s portfolio and remained in that position until he was recalled to active military duty in January 2003. The record also establishes that soon after Knapper was terminated, both Breaux and Flanagan resigned. Then, in October 2001, Hibernia claims it hired Ansardi to replace Flanagan. According to our de novo review of the record, we find no genuine issue of material fact that Knapper was replaced by Davis, an African American, and not by Ansardi.

CONCLUSION

We conclude that Knapper’s claim fails as he has not carried his burden of proving a prima facie case of racial discrimination. Knapper has failed to show that similarly situated employees outside of the protected class (ie., Caucasian FEDUOSLCs) were treated more favorably than he was or that he was replaced by someone outside of the protected class. We further find that Knapper has failed to raise a genuine factual dispute concerning whether the differential treatment to which he claims he was subjected was imposed because of his race rather than as a result of his continuous poor job performance. Based upon our de novo review of Hibernia’s business records, in addition to the affidavits and depositions contained in the record, we find Hibernia had a legitimate, nondiscriminatory reason for Knapper’s discharge. Accordingly, the district court’s order granting judgment in favor of Hibernia is affirmed.

AFFIRMED.

      . La. R.S. 23:332 provides, in pertinent part:
      A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
      (1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin.
      (2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s race, color, religion, sex, or national origin.

      H. Notwithstanding any other provision of this Section, it shall not be unlawful discrimination in employment for:

      (3)An employer to apply different standards of compensation or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production, or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.
      (4) An employer to give and to act upon the results of any professionally developed ability test, provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.

      .Knapper’s case is not based on direct evidence of racial animus or retaliatory motive. Instead, Knapper contends Hibernia tried to hide its discrimination and retaliation through manipulation and selective application of its rules regarding employee evaluations, pay, job-postings, and collection goals.

      . Hibernia's original motion for summary judgment was never heard because Knapper filed a Supplemental and Amending Petition prior to the hearing date on Hibernia’s motion.

      . Knapper was one of eight FEDUOSLCs. They performed identical functions and were held to identical standards. The position had been in existence for a number of years and Hibernia had established valid and attainable goals for that position.

      . It was later revealed that Knapper falsified his employment application by failing to disclose his involuntary termination by several former employers.

      . Although Hibernia’s loan collection departments vary depending upon the type of loan, all front end direct unsecured/other secured loan collectors are assigned the same specific goal of dollars collected on a monthly basis.

      . Knapper was counseled twice for attendance issues and once for performance issues.

      . Progressive discipline is a system implemented by Hibernia to discipline collectors who do not attain their goals. According to the Hibernia Employee Handbook, which was given to Knapper at the time of his hiring, if a collector failed to achieve the set goals for two consecutive months, he/she would be subject to a verbal warning; three consecutive months, a written warning; and after four consecutive months, he/she would be placed on probation for 90 days.

      .As Knapper had missed his dollars collected goals for seven consecutive months at the end of 2000, this amnesty greatly benefited Knap-per.

      . The Louisiana statutes are similar in scope to the federal prohibitions against discrimination embodied in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq, (1986). Louisiana courts have found it appropriate, when interpreting our own law, to consider interpretations of the federal statute. Montgomery v. Lobman, Carnahan, Batt & Angelle, 98-2098, p. 4 (La.App. 4 Cir. 2/17/99), 729 So.2d 1075, 1077, citing Hammond v. Medical Arts Group, Inc., 574 So.2d 521, 523 (La.App. 3 Cir.1991); Bennett v. Corroon and Black Corp., 517 So.2d 1245 (La.App. 4 Cir.1987).

      . McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Claims under the LEDL are subject to the same analysis as discrimination claims under federal Title VII of the Civil Rights Act of 1964. See Hicks v. CLECO, Inc., 712 So.2d 656 (La.App. 1 Cir.1998); Plummer v. Marriott Corp., 654 So.2d 843 (La.App. 4 Cir.1995).

      . "In disparate treatment cases, the plaintiff must show 'nearly identical’ circumstances for employees to be considered similarly situated.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir.2007).

      . In addition to the eight FEDUOSLCs, Hibernia’s collection department included four back end direct secure/unsecure collectors and two front end real estate collectors. The collection department also included one back end real estate collector, one master credit collector, and a C.C.C.S. collector. While Knapper seeks to compare himself to these other Caucasian loan collectors to show disparate treatment, the record establishes that these other collectors were not "nearly identical” and, thus, were not similarly situated to Knapper, a FEDUOSLC, as their portfolios differed and they did not share the same standards and goals. We find that the appropriate comparators in this case are the seven other FEDUOSLCs who were required to meet the identical established goals and performance standards as Knapper.

      . The number of months worked by each FEDUOSLC from 1999 to 2002 varies due to turnover.

      . Knapper complains that Fricke was hired at a starting salary ($24,000) that exceeded his annual pay and that this shows disparate treatment. However, when Larmann took over Hibernia’s collection department in 1997, he testified that he sought to raise the incoming salaries in order to attract more qualified applicants to fill the open positions. While this did result in a disparity in salaries between newly hired adjusters and those already employed in the collection department, this does not show racial animus. This is borne out by the record which shows that Hibernia hired Heather August, an African American, at a starting salary of $27,000.

      . According to Knapper's 1999 annual review, he was earning $1,716.66 per month, or $20,600 annually. Due to his poor performance and result of a lack in annual pay raises, Knapper’s salary had fallen behind his peers. In April 2001, in order to rectify this, he received an equity increase of $284.97 per month, increasing his annual salary to $24,020.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Stanley SEELIG v. LOUISIANA HORSEMEN’S BENEVOLENT AND PROTECTIVE ASSOCIATION 1993, INC.
    No. 2010-CA-0281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2010.

      P.J. Stakelum III, Paola P. Corrada, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, L.L.P., Me-tairie, LA, for Plaintiff/Appellee, Stanly Seelig.
    Elizabeth A. Roussel, Raymond P. Ward, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellant, Louisiana Horsemen’s Benevolent and Protective Association 1993, Inc.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe defendant-appellant, the Louisiana Horsemen’s Benevolent and Protective Association 1993, Inc., (hereinafter “LHBPA”) appeals that portion of the judgment of November 19, 2009, ordering it to allow the plaintiff-appellee, Stanley Seelig, to copy (1) all ballot envelopes and (2) copy records of Mr. Sean Alfortish’s compensation while protecting his social security number. Mr. Seelig filed an Answer to Appeal, appealing that portion of the judgment denying his request to inspect and copy all documents relating to the sound system installed in the home of Mr. Sean Alfortish, allegedly with funds of the LHBPA or monies donated to the LHBPA. Mr. Seel^s Answer to Appeal also seeks to have the denial of his request for attorney’s fees reversed and remanded.

Mr. Seelig initiated this litigation on August 19, 2009, by filing a Petition for Writ of Mandamus, seeking the production of certain documents from the LHBPA.

This appeal centers around what appears to be a disputed election of the president and the board of directors of the LHBPA which occurred in March of 2008. It is undisputed that the LHPBA, is a nonprofit corporation. Mr. Seelig is a member of that corporation. On July 24, 2009, his counsel requested the right to |2inspect and copy numerous documents in the possession of the LHPBA. LHPBA has produced numerous documents. The only other documents that the trial court ordered produced were copies of ballot envelopes and copies of Mr. Sean Alfortish’s compensation records with the social security number redacted.

The LHBPA ballot envelopes.

The LHPBA explained that it has already produced the ballots, but it resists producing the ballot envelopes as they contain the Social Security numbers of the LHBPA’s voting members for which reason the LHBPA contends they should remain confidential.

Mr. Seelig contends that certain persons may have acted to rig the election by mailing in a number of fraudulent ballots from around the state. Mr. Seelig contends that his actions were prompted by concern for the finances of the organization and an ongoing federal investigation into the LHBPA. The LHBPA does not deny the existence of the federal investigation.

Mr. Seelig contends that under La. R.S. 12:228 A when read together with La. R.S. 12:229 B, 12:232 A, 12:282 G and 12:233, the ballots should be considered to be corporate records and reports, open to inspection by members. The LHBPA argues that a member’s right to inspect its records is limited to those specific categories of records enumerated in La. R.S. 12:223 A. Of those categories, both parties agree that the crucial category of records insofar as this case is concerned is that pertaining to records of meetings of members and directors. The LHBPA contends that as the election was carried out via mailed in ballot and did not occur at a meeting of the members or directors, La. R.S. 12:223 A does not mandate the production of the records relating to the election. Mr. Seel-ig notes that based on the reasoning of the LHBPA, Mr. Seelig would be entitled to inspect and copy Relection records if the election were held at a membership meeting, but not if mailed in ballots were utilized instead. We agree with Mr. Seelig that such a result is not reasonable.

Mr. Seelig contends that the ballot envelopes are important “because the handwritten social security numbers on the ballot envelopes are handwriting exemplars which may establish how many ballots were sent in by the same small group of individuals who [allegedly] attempted to stuff the ballot box and may assist in identifying the individuals who perpetrated this voting fraud ...” Mr. Seelig points out that there are no names on the ballot envelopes, so there is nothing to connect a social security number to a name. For that reason, Mr. Seelig contends that copying the ballot envelopes invades no ones privacy. Moreover, Mr. Seelig was willing to allow the LHPBA to redact the last four digits of the numbers as added security.

We conclude that the trial court did not err in ordering the production of the ballot envelopes based on a reasonable interpretation of the statutes cited above.

The LHPBA also argues that because this is not technically an election contest, but merely an action for a writ of mandamus, Mr. Stanley has no right to discover the ballot envelopes. However, LHBPA cites Bourgeois v. Landrum, 396 So.2d 1275, 1276 (La.1981), for the proposition that the reason Mr. Seelig may wish to examine corporate records is irrelevant. As we read Bourgeois this means that it does not matter why Mr. Seelig wants to see and copy the records, whether to question an election or out of mere curiosity, as long as they are considered to fall within the ambit La. R.S. 12:223 A. The Court’s sole function is to determine whether the documents sought by the plaintiff are among those listed in La. R.S. 12:223 A. Id., 396 So.2d at 1277 (La.1981). As stated previously, we find that |4when La. R.S. 12:223 A is read in context with other statutes cited above, the most reasonable interpretation would include these ballot envelopes as being among those types of records open to membership inspection as contemplated by La. R.S. 12:223 A.

Sean Alfortish’s compensation.

The LHBPA complains that the trial court erred in requiring it to allow Mr. Seelig to copy Mr. Sean Alfortish’s compensation records. The LHPBA states that it allowed Mr. Seelig to inspect the compensation records but it denied him the right to copy those records.

Among the records that the LHPBA is required by La. R.S. 12:223 A to disclose to its members are records of its “disbursements.” This Court held in Ales v. Sewell, 00-2017, p. 11 (La.App. 4 Cir. 10/17/01), 800 So.2d 36, 43, that such records include “cash journal of all disbursements showing the individual or corporation to whom funds were disbursed and the amount of disbursement ...” Based on this Court’s reading of Ales along with the clear language of the statute, we find that a reasonable reading of the term “disbursements” is broad enough to include disbursements to Mr. Alfortish in the form of compensation records. As this Court explained in Ales: “The scope of the minority shareholder’s inspection right under the statute is wide-reaching ...” Id.

In its original, brief the LHBPA notes the trial court’s reliance on Owens v. Southwest Ouachita Waterworks, Inc., 42,278 (La.App. 2 Cir. 6/20/07), 960 So.2d 1243, for the proposition that the statutory right of shareholders to examine corporate records necessarily includes the right to copy them. The LHBPA does not dispute this legal principle. Instead, the LHBPA argues that a reasonableness or common sense test should apply. The LHBPA contends that Mr. Seelig’s |Brequests do not pass that test. However, as we find that the primary and undisputed principle espoused by Owens is that the right to examine includes the right to copy, the burden should be upon the party opposing the copying to prove unreasonableness, and that the trial court should deny the right to copy only based on a showing of the existence of exceptional circumstances. The burden of proving that a shareholder possessed ill motive is on the corporation seeking to deny the shareholder’s right to inspect the records. Ales, supra, 00-2017, p. 9, 800 So.2d at 42. This Court specifically noted in Ales that the manifest error/clearly wrong standard of review applied. Id., 00-2017, p. 10, 800 So.2d at 42. We find that the LHBPA has not shown the existence of circumstances so exceptional as to allow this court to conclude that the trial court was manifestly erroneous/clearly wrong in ordering the LHBPA to copy certain documents. Accordingly, we find no error in the trial court’s decision to compel the LHBPA to allow Mr. Stanley to copy Mr. Alfortish’s compensation records.

MR. SEELIG’S ANSWER TO THE APPEAL

Mr. Seelig filed an Answer to Appeal in which he sought to overturn the trial court’s denial of his request for copies of all “documents relating to the sound system installed in the home of Sean Alfortish with funds of the LHBPA or monies donated to the LHBPA”; and he contends the trial court erred in denying him attorney’s fees pursuant to La. R.S. 12:264 B.

Mr. Seelig’s claim for attorney’s fees.

La. R.S. 12:264 B provides that:

B. Any corporation, or any officer or agent thereof, which or who shall in bad faith refuse to permit the exercise of inspection rights pursuant to R.S. 12:223(C), Rshall be liable to the member or members seeking to exercise such rights to the extent of the costs and expenses of any proceeding necessary to enforce such inspection rights, and for any other damages actually sustained by such member or members.

Normally, there is no right to an award of attorney’s fees in Louisiana unless specifically provided by contract or statute. There is no mention of attorney’s fees in La. R.S. 12:264 B. However, the right to attorney’s fees has been recognized by the jurisprudence under La. R.S. 12:172 D applicable to for-profit corporations, and the language of La. R.S. 12:172 D is for all intents and purposes word for word identical to the language of La. R.S. 12:264 B, the only differences being those required by the fact that 12:264B refers to non-profit corporations and 12:172D refers to for-profit corporations. In this regard, Mr. Seelig cites Lanaux v. Ace Production, Inc., (La.App. 4 Cir.1981), 396 So.2d 461; Ales v. Sewell, supra; and Guidry v. Gulf Coast Tubing, 09-621 (La.App. 3 Cir. 12/9/09), 24 So.2d 1019. Based on these three cases and the clearly parallel language of La. R.S. 12:264 B and La. R.S. 12:172 D, we find that a member may claim attorney’s fees as part of “the costs and expenses of any proceeding necessary to enforce such inspection rights,” under either statute where the refusal to allow inspection is found to be in bad faith. Implicit in the refusal to award attorney fees is a finding by the trial court that there was no bad faith on the part of the LHBPA. In the absence of manifest error we must accept this finding.

Mr. Seelig’s request for records belonging to the Louisiana Horsemen’s Benevolent and Protective Association, Inc.’s Charitable Foundation, Inc.

It is undisputed that funds donated to the LHBPA were in turn donated to the Louisiana Horsemen’s Benevolent and Protective Association, Inc.’s Charitable Foundation, Inc. (hereinafter the Foundation”). Mr. Seelig contends, in effect, uthat the Foundation is an alter ego of the LHBPA, and as such he should be allowed to inspect and copy certain of the Foundation’s financial records. However, he does not dispute the fact that, at least on its face, the Foundation is a separate legal entity. The Foundation is not a party to this suit. The record reflects that Mr. Seelig petition requests only a mandamus to allow him to inspect/copy certain corporate records of the LHBPA. His arguments suggest that he suspects there may be some impropriety in the handling of LHBPA funds as donated to the Foundation. If Mr. Stanley’s goal is to pierce the Foundation’s corporate veil and conflate the Foundation into the LHBPA and/or to prove some impropriety concerning certain funds flowing from the LHBPA to the Foundation, this suit for a mandamus directed solely at the LHBPA is not the proper vehicle. As the record does not reflect that Mr. Stanley has any direct standing to raise any issue as regards the foundation, along with the fact that the Foundation is not a party to these proceedings, we find no error in the decision of the trial court to deny Mr. Seelig’s request for the production of the Foundation records.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Neither party appeals that portion of the judgment finding that the LHBPA did not fund any settlement of sexual harassment claims against it or any of its employees.


author: CLARENCE E. McMANUS, Judge.

text:
    DAVID DRIVE ENTERPRISES, LLC v. SUBWAY REAL ESTATE CORP., R.J.P. Enterprises, Inc. and State Farm Fire and Casualty Company.
    No. 10-CA-68.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 14, 2010.

      Richard L. Traína, Seale & Ross, Attorney at Law, Hammond, LA, or Plain-tiffTAppellee.
    Kevin C: O’Bryon, O’Bryon <& Schnabel, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   STATEMENT OF THE CASE

CLARENCE E. McMANUS, Judge.

|2Bonnie Ann Walle and Michael M. Heller, owners of property at 3113 David Dr. in Metairie, LA, executed a lease agreement with Subway Real Estate Corporation (“Subway”) for the purpose of operating a fast food restaurant and drive through. David Drive Enterprises, L.L.C. (“David Drive”) later became the successor in interest on the lease for Walle and Heller when they formally transferred the property to the limited liability company.

The lease was for a term of five years, commencing May 1, 1999 and ending April 30, 2004, with an option to renew. The lease required Subway to provide insurance coverage on the leased premises, at its expense, including insurance to cover loss of rent for one year. The lease also stated that any sublease shall contain the provisions of this lease and Subway shall not be relieved of the obligation to pay rent or perform any other obligation because of a sublease.

The lease also contained numerous riders. One rider provided that Subway could sublet the premises to a licensee or franchisee doing business as a SUBWAY® sandwich shop without prior consent or written notice to David Drive. Another rider to the lease required David Drive to give written notice to Subway within 30 days of any default under the lease by a sublessee of Subway. This rider |awas included since Subway could be subletting the property to a franchisee and the rent could be paid directly to David Drive without Subway knowing if the rent had been paid.

On July 13, 1999, Subway entered into a sublease agreement with Patricia and Jay Hardgrave, who owned a SUBWAY® franchise. The sublease on the premises was for the full term of the master lease between Subway and David Drive. The Hardgraves, as sublessee, agreed to perform and observe all of the obligations of Subway under the master lease and make rental payments directly to David Drive. The sublease further provided that, in addition to any indemnity provisions of the master lease, the Hardgraves agreed to indemnify and hold Subway harmless from and against all liability, injury, loss, cost (including attorney’s fees), damage and expense for any injury or damage to any property.

The Hardgraves operated the SUBWAY® restaurant at the leased property through R.J.P. Enterprises, L.L.C. Jay Hardgrave testified in his deposition that he, his sister-in-law Patricia Hardgrave, and his brother Robert Hardgrave, were the only three members of the limited liability company. He believed RJP Enterprises and he and Patricia individually were one and the same for the purpose of the restaurant on David Drive. At the time of Hurricane Katrina in August 2005, R.J.P. Enterprises had insurance coverage with State Farm Fire & Casualty Company (“State Farm”). The policy listed David Drive as an additional insured.

Hurricane Katrina caused substantial damage to the building that was the subject of the original lease and sublease, where the restaurant was located. The restaurant did not reopen following Hurricane Katrina, therefore, the Hardgraves ceased making rental payments. David Drive did not notify Subway that the Hardgraves had stopped making the rental payments. The Hardgraves made claims on the insurance policy with State Farm for the damage to the restaurant 14and loss of rent. State Farm paid R.J.P. Enterprises $176,036.92 for the damages to the leased premises, including damages to the building and contents. Further, State Farm paid R.J.P. Enterprises $72,788.00 for loss of rent. These funds were deposited into R.J.P. Enterprises’ bank accounts. R.J.P. Enterprises did not pay Subway or David Drive any of the proceeds received from State Farm.

David Drive filed suit against Subway, the Hardgraves, R.J.P. Enterprises, and State Farm, seeking to receive the insurance proceeds paid by State Farm to R.J.P. Enterprises for the Hurricane Katrina damages. State Farm was voluntarily dismissed after proving it had paid proceeds to R.J.P. Enterprises according to the terms of the policy. David Drive filed a motion to deposit the disputed funds into the registry of the court on May 21, 2007. R.J.P. Enterprises and the Hardgraves responded that there were no funds to deposit. The trial court mistakenly signed a judgment ordering these funds to be deposited, but later vacated that judgment. David Drive then filed a motion for summary judgment on October 29, 2007. After a hearing, the trial court denied the motion.

Thereafter, the parties stipulated to all material facts and on March 11, 2009, they filed a joint motion for summary judgment in order to have the trial court determine, as a matter of law, their legal obligations pursuant to the lease and sublease. A hearing was held April 15, 2009 and the trial court issued a judgment and written reasons on May 5, 2009. The trial court denied the motion for summary judgment by the Hardgraves and R.J.P. Enterprises. The trial court granted David Drive’s motion for summary judgment and awarded David Drive $205,608.92 in damages, plus $51,402.23 in attorney’s fees, and $1,272.62 in costs. The trial court further found the Hardgraves, R.J.P. Enterprises, and Subway were liable in solido for these damages. Additionally, the trial court partially granted the motion for summary judgment by Subway and found Subway is | ^entitled to full indemnification from the Hard-graves and R.J.P. Enterprises for any payments made to satisfy any portion of the judgment.

On May 21, 2009, Subway filed a motion for new trial on the issue of the amount of attorney’s fees awarded. On May 26, 2009, R.J.P. Enterprises and the Hard-graves filed a motion for suspensive appeal, but failed to post the necessary security. The trial court then granted the new trial filed by Subway in open court on July 22, 2009. The trial court executed an amended judgment on August 21, 2009 awarding only $44,000.00 for attorneys fees.

David Drive then filed a motion to dismiss the appeal of R.J.P. Enterprises and the Hardgraves for lack of jurisdiction. On September 29, 2009, this Court dismissed the appeal of the Hardgraves and R.J.P. Enterprises, but reserved the parties’ rights to appeal both the original May 5, 2009 judgment and the August 21, 2009 amended judgment of the trial court. On October 16, 2009, Subway filed a motion for devolutive appeal. R.J.P. Enterprises and the Hardgraves did not file a subsequent appeal, following the dismissal of their appeal by this Court on September 29, 2009.

On February 1, 2010, David Drive filed an answer to Subway’s appeal seeking an amendment of the trial court judgment for interest awards not included in the trial court judgment. R.J.P. Enterprises and the Hardgraves have not filed an answer or response to the appeal by Subway. For the reasons which follow, we affirm the trial court’s judgments, as amended.

DISCUSSION

On appeal, Subway asserts three assignments of error. First, Subway contends the trial court erred in failing to enforce the contractual waiver of claims provision since David Drive failed to give Subway notice of a default by R.J.P. Enterprises or the Hardgraves when they ceased making rental payments. Second, |fiSubway argues the trial court erred in awarding David Drive recovery of all sums paid by State Farm, particularly the $44,816.91 for the contents of the restaurant. Finally, Subway argues the trial court erred in disregarding the contractual limitation for the monetary default of six months’ rent, which would have been $14,786.00.

David Drive filed an answer to Subway’s appeal asserting that the trial court’s award be affirmed, but also amended to add judicial interest on the $205,608.92 damage award from the date of judicial demand until paid, and further to add judicial interest on the $44,000.00 attorney’s fee award. David Drive also seeks the costs of appeal from Subway.

In opposition to Subway’s appeal, David Drive asserts first that notice to Subway of the Hardgraves default or failure to pay rent was impossible in the aftermath of Hurricane Katrina. Further, David Drive asserts that the hurricane ultimately terminated the lease by destroying the building, therefore, it was not required to give notice to Subway.

Second, David Drive argues the $44,816.19, which Subway claims was paid for personal property of the Hardgraves and R.J.P. Enterprises, was also for some items on the property that did not belong to the Hardgraves or RJ.P. Enterprises, such as a freezer. Also, David Drive asserts that neither the Hardgraves, R.J.P. Enterprises, nor Subway raised this issue in the trial court, thus, it should not be addressed in this appeal. Further, the Hardgraves and R.J.P. Enterprises have chosen not to file an appeal, nor have they participated in the appeal filed by Subway.

Finally, David Drive argues it is entitled to the one year loss of rent in accordance with the lease agreement. Subway has argued that David Drive is only entitled to six months rent based on a Rider attached to the lease. However, this |7Rider and cap of six months rent is only for a monetary default. David Drive submits that this situation does not involve a monetary default, but rather David Drive is seeking to enforce the contractual provision providing a duty by the Hardgraves to provide insurance coverage for the premises and one year of lost rent.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. Duncan v. U.S.A.A. Ins. Co., 06-363, (La.11/29/06), 950 So.2d 544. Appellate courts review summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Id., citing Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). On agreement of the parties, there were no genuine issues of material fact in this case. Therefore, the trial court determined whether the parties were entitled to summary judgment as a matter of law. For the following reasons, we agree with the trial court’s grant of summary judgment in favor of David Drive, the grant of partial summary judgment in favor of Subway, and the denial of the summary judgment of the Hardgraves and R.J.P. Enterprises. We also find the trial court correctly amended the original judgment regarding attorney’s fees.

First, we disagree with Subway’s argument and find the rider to the lease agreement relied on by Subway, which required notice from David Drive to Subway in the event of a default, does not apply to this situation. The rider to the lease agreement stated:

R3. Landlord and Tenant acknowledge that it is extremely important that rent be paid in a timely manner as required by this Lease. Since the Tenant may be subletting the Premises to a licensee/franchisee of Doctor’s Associates, Inc. and the licensee/franchisee may be paying rent directly to the Landlord, the Tenant does not receive rental income and will not know if rent has not been paid. Since the parties recognize that time is of the essence in this matter, Landlord agrees to give written notice to Tenant within thirty |s(30) days of any default committed under this Lease by a sublessee or assignee of Tenant. Failure of Landlord to give such notice will constitute a waiver of monetary and non-monetary claims against the Tenant. Any notice which is to be given to Tenant shall be deemed sufficiently given if sent by certified or registered mail, postage prepaid, addressed as follows:
Tenant: (1) Subway Real Estate Corp.
325 Bic Drive
Milford, CT 06460-3059
(2) To the Development Agent at:
724 Adams St.
New Orleans, LA 70118
(3) And the demised premises.

The Hardgraves do not dispute the fact that following Hurricane Katrina, they ceased making rental payments to David Drive. Jay Hardgrave testified in his deposition that they ceased making payments upon instructions from the Subway Restaurant Corporate office. He further stated that, based on advice of his attorney, he believed there was no longer a valid lease.

The subject property where the restaurant was located was destroyed in Hurricane Katrina. We agree with the trial court that the lease was automatically terminated since the property was destroyed. We agree with the trial court’s conclusion that this rider applied to a default involving the failure of a sublessee to pay rent during the regular course of business and not this situation which involved the destruction of the building that was the subject of the lease following a specific event. Since we find this rider does not apply to this situation, Subway remains liable under the terms of the original lease agreement with David Drive.

We further affirm the trial court’s award of $205,608.92 to David Drive for the insurance proceeds it was entitled to pursuant to the lease agreement. The testimony and evidence presented at the hearing demonstrated that this was the total amount of insurance proceeds paid to R.J.P. Enterprises, or the Hardgraves, | ciby State Farm for the damages sustained to the restaurant as a result of Hurricane Katrina. David Drive is entitled to these proceeds under the lease agreement. David Drive is the owner of the property and was listed as an additional insured on the insurance policy.

On appeal, Subway argues David Drive is not entitled to $44,816.19 paid for the personal property of the Hardgraves and R.J.P. Enterprises. However, as noted by David Drive in its opposition, Jay Hard-grave testified in his deposition that this amount represented some personal property of the business, but also items such as a freezer that were fixtures in the building. Mr. Hardgrave gave no further explanation of what personal property would have been covered by this insurance payment. Thus, we find the trial court correctly included the insurance payment for the contents of the building in the total award for David Drive.

We also find that David Drive is entitled to the one year loss of rent awarded by the trial court. The lease agreement provided the following:

17. At all times during the term of this lease and as part of the consideration of this lease, Lessee shall provide and maintain, at Lessee’s expense, the following insurance in favor of Lessor as the insured:
(a) “All Risk” Insurance, covering all improvements located on the leased premises, in such amount and with such provisions so as to cover their full replacement cost;
(b) “All Risk” Insurance covering loss of rents, in an amount not less than the amount of the rent under this lease for one (1) year;

Additionally, the sublease between Subway and the Hardgraves provided that the sublessee must perform all obligations of the original lease. Therefore, we find the Hardgraves were responsible for providing the insurance coverage required by the lease between Subway and David Drive. R.J.P. Enterprises obtained a policy of insurance from State Farm. This insurance policy was in effect at the time of Hurricane Katrina. The policy also listed David Drive Enterprises as an additional insured, as required by the original lease between | mDavid Drive and Subway. After the hurricane, State Farm paid the Hard-graves one year loss of rent. Therefore, pursuant to the lease agreement, David Drive is entitled to this amount representing one year of loss of rent.

Finally, we find that David Drive is entitled to judicial interest on the award of damages and attorney’s fees as requested in its answer to this appeal. LSA-C.C.P. art. 1921 provides that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” David Drive correctly asserts on appeal that the claims made in its petition are claims arising from money due pursuant to a contract. In this case, David Drive seeks amounts due to it pursuant to the lease agreements. Subway argues in opposition that David Drive did not specifically request judicial interest in its petition or amended petition, therefore, David Drive is not entitled to interest on any award. We note that David Drive’s petition does request “all other and further relief to which it is entitled.” Thus, we find David Drive is entitled to judicial interest on the award for damages and attorney’s fees, from the date of judicial demand, even though judicial interest was not specifically requested in its petition. We also find each party is responsible for their own costs of appeal.

Accordingly, we affirm the trial court’s award of $205,608.92 in damages and $44,000.00 in attorney’s fees to David Drive. However, we amend the judgment to also include an award of judicial interest from the date of demand. We further order each party to pay their own costs of appeal.

AMENDED; AFFIRMED AS AMENDED.


author: ROLAND L. BELSOME, Judge.

text:
    Sybil A. BOOTH, Individually, and as Mother and Natural Tutrix of Her Minor Daughter, Ajanee A. Booth v. ORLEANS PARISH SCHOOL BOARD and Robert Williams.
    No. 2009-CA-1505.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 22, 2010.

      Patrick H. Hufft, New Orleans, LA, for Plaintiff/Appellant.
    William D. Aaron, Jr., Renee F. Smith, Goins Aaron, APLC, New Orleans, LA, for Defendant/Appellee, Orleans Parish School Board.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|,The instant lawsuit arises from the alleged tortious conduct of an employee of the Orleans Parish School Board, Robert Williams. The victim’s mother, Sybil Booth, filed claims individually and on behalf of her minor child Ajanee Booth, alleging that the Orleans Parish School Board was vicariously liable for Robert Williams’ acts and also independently liable for failing to supervise the students and employees, as well as negligent hiring. All claims against the School Board were dismissed on summary judgment. For the reasons that follow we affirm in part, reverse in part, and remand.

On the morning of February 5, 2001, eight year old Ajanee Booth arrived at Lorraine Hansberry School between 7:15 and 7:20 a.m. Although school did not begin until 8:00 a.m., Ajanee participated in the breakfast program which commenced 25-30 minutes before the start of school. According to Ajanee’s account of the events that morning, when she walked up to the school she was approached by Robert Williams, the school janitor. Mr. Williams told Ajanee that one of her teachers wanted to see her and proceeded to walk her upstairs to a Rclassroom. Once in the classroom Mr. Williams told her to take off her shoe and sock, and she complied. He then placed a towel over her head and told her to get on her knees. Then he began touching her foot with some part of his body that was not his hand. Shortly thereafter he told her to put her shoe back on and not to tell anyone what had happened. Two days later, Ajanee informed her aunt of what had happened. Then her mother and the police were notified of the incident.

The petition for damages was filed on October 5, 2001 naming Orleans Parish School Board and Robert Williams as defendants.

Upon completion of discovery and prior to trial, the Orleans Parish School Board (School Board) filed a motion for summary judgment. After hearing arguments, the trial court granted the School Board’s motion for summary judgment, dismissing all claims against the School Board with prejudice. Subsequently, a motion for new trial was filed and ultimately denied. This appeal followed.

This Court conducts a de novo review of the granting of summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226.

Appellants argue that the trial court erred in failing to find genuine issues of material fact as to any of the claims against the School Board. La. C.C.P. art. 966 provides that “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mov-ant bears the initial burden of |sproof. La. C.C.P. art. 966(C)(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

This Court acknowledges the duty placed upon the School Board’s employees to provide reasonable supervision for the children entrusted to their care. Hickingbottom v. Orleans Parish School Board, 623 So.2d 1363, 1366 (La.App. 4 Cir. 8/31/93). A school board can be found liable where there is a causal connection between a lack of supervision and an incident which could have been avoided by the exercise of a reasonable degree of supervision. Vaughn ex. rel. Vaughn v. Orleans Parish School Bd., 01-0556 (La.App. 4 Cir.2001), 802 So.2d 967.

According to the evidence in the instant case, the school was unlocked and students were allowed into the cafeteria prior to the start of the breakfast program. Based on the testimony of the school’s principal, Mardele Simmons Early, there was a supervising teacher and cafeteria worker on site for the breakfast program from approximately 7:00 a.m. Principal Early further testified that Hansberry had a security plan in place that included the presence of a security guard to help ^ensure the safety of the children. However, she could not recall the exact time the security plan called for the security guard to report to duty making it impossible for her to determine if the security plan was properly implemented on the day of this incident occurred. Ms. Booth stated she was aware that the school provided security and testified that she thought Mr. Williams was a security guard because “he was always walking around with a walkie-talkie.”

The School Board continues to emphasize that Ajanee was dropped off before the official start of the breakfast program and therefore they had no duty to supervise or protect her from the tortious conduct of its employee. We disagree. Ms. Booth’s testimony established that Ajanee was dropped off at approximately the same time every morning. Each time Ajanee was dropped, Ms. Booth observed that the school was always open and according to Principal Early there was staff present. A reasonable person would conclude that once the students are allowed to enter the school building, they are under the school’s care and the duty to supervise is assumed. Additionally, there are genuine issues of material fact regarding the proper implementation of Hansberry’s security plan. For these reasons, we find that the trial court erred in granting summary judgment in favor of the School Board on the claims of negligent supervision.

Appellants further seek to have the School Board found vicariously liable for the alleged tortious acts of Mr. Williams. The School Board contends it is not vicariously liable because the janitor’s actions were not within the course and scope of an employee’s work. Baumeister v. Plunkett, 95-2270 (La.1996), 673 So.2d 994. The risk of harm must be fairly attributable to the activity the employee is hired to perform. Id. In Baumeister, the Supreme Court reiterated the factors to consider when determining vicarious liability: (1) whether the tortious Ract was primarily employment rooted; (2) whether the act was reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether it occurred during the hours of employment. Id. at 996-997 (citing LeBrane v. Lewis 292 So.2d 216 (La.1974)). Liability can be established even if all of the factors are not met. Id. (citing Miller v. Keating, 349 So.2d 265, 268 (La.1977)).

It is undisputed that the alleged tortious conduct occurred on the School Board’s premises during Mr. Williams’ hours of employment. In considering whether the tortious act was reasonably incidental to the performance of Mr. Williams’ duties, we must look at the facts and circumstances specific to this case. Principal Early testified that in his duties as a janitor Mr. Williams possessed keys to the premises and was allowed free access to the school grounds and buildings. His status as janitor also permitted Mr. Williams access to the young children attending Hansberry. Given his prominent presence on the school’s campus and the fact that he was an adult, it is natural that an eight year old child would view him as an authority figure, which explains why Ajanee did not question his directive.

In Samuels v. Southern Baptist Hospital, 594 So.2d 571 (La.App. 4 Cir.1992), this Court found an employer, Baptist Hospital, vicariously liable for the rape of a patient by a hospital employee. As this Court stated in Samuels, “[t]he scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks.” Id. at 573 (citing Ermert v. Hartford Inc. Co., 559 So.2d 467 (La.1990)). In this case, it is clear that it was Mr. Williams’ position and duties as a School Board employee that allowed him unrestricted access to Ajanee and the empty classroom | Bwhere she was taken. See Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1st Cir.1979) (City held vicariously liable for conduct of police officers who used their position of trust and authority to get woman into patrol car where they raped her.)

We find that the evidence in this case is sufficient to support the claim of vicarious liability being presented to a fact finder. Accordingly, the trial court erred when it granted summary judgment and dismissed the claim for vicarious liability.

Next the appellants claim that the School Board was negligent in its retention/supervision of Mr. Williams. The record before this court does not support the contention that the School Board knew or should have known that Mr. Williams was capable of this type of criminal activity. As a condition of his employment, the School Board performed a background check on Mr. Williams and found that he did not have a record of criminal activity. Also, even though appellants claim the School Board was aware that Mr. Williams had done this before, there is nothing that substantiates that the same kind of incident was reported prior to Ajanee’s experience. Mrs. Booth testified in her deposition that teachers told her that this was not the first time Mr. Williams had exhibited such behavior. However, the teachers were not identified or presented as witnesses and Mrs. Booth did not have independent knowledge that there were prior occurrences. Also, the security report that appellants assert creates a genuine issue of material fact regarding a prior incident appears on its face to be misdated, that is further substantiated by Debbie Madison’s statement and the recorded police report. On the record before us we are unable to ascertain grounds to maintain the appellants’ claims for negligent hiring/retention of Mr. Williams.

17For the reasons discussed we find that the trial court erred in its granting of summary judgment in favor of the School Board on claims asserted for negligent supervision and vicarious liability. Accordingly, the appellants’ claims for negligent supervision and vicarious liability are remanded for a trial on the merits. We further find that the trial court correctly dismissed the claims for negligent hiring/retention of Mr. Williams and therefore affirm that portion of the judgment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . Also see, Doe v. City of New Orleans, 577 So.2d 1024 (La.App. 4 Cir.1991), (sexual assault of 4th grader in restroom during school hours); Brooks v. Orleans Parish School Board, 560 So.2d 633 (La.App. 4 Cir.1990),(student pushed fellow student off slide during recess); Clark v. Jesuit High School, 572 So.2d 830 (La.App. 4 Cir.1990), (student shot fellow student with BB gun during school hours); Laneheart v. Orleans Parish School Board, 524 So.2d 138 (La.App. 4 Cir.1988), (student fell and injured himself while playing in the school yard during school hours); Patterson v. Orleans Parish School Board, 461 So.2d 386 (La.App.1984), (student injured when his hand got caught in a door during school hours); Santee v. Orleans Parish School Board, 430 So.2d 254 (La.App. 4 Cir.1983), (student injured while playing on school grounds during lunch recess); Schnell v. Travelers Insurance Co., 264 So.2d 346 (La.App. 4 Cir.1972), (student lost sight in one eye when injured during school hours).


author: MURRAY, Judge. Judge PATRICIA RIVET MURRAY.

text:
    RAIN CII CARBON LLC v. M.H. DETRICK CO. and Maryland Casualty Company.
    No. 2010-CA-0510.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 22, 2010.
    Opinion Clarifying on Grant of Rehearing Oct. 5, 2010.

      Randall A. Smith, J. Geoffrey Ormsby, Smith & Fawer, L.L.C., New Orleans, LA, for M.H. Detrick Co.
    Ralph S. Hubbard III, Seth A. Schmeeckle, Rachel A. Meese, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant/Appellant Maryland Casualty Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MURRAY, Judge.

| ¶ Defendant Maryland Casualty Company [“MCC”] appeals the trial court’s granting of a preliminary injunction enjoining MCC from prosecuting an action it filed in an Illinois state court against its co-defendant M.H. Detrick Company [“Detrick”].

FACTS AND PROCEEDINGS BELOW

On September 28, 2009, the plaintiff, Rain CII Carbon, L.L.C. [“Rain”] filed the instant suit against Detrick and its insurer, MCC, alleging Detrick had sold Rain a defective brick installation system that had failed, causing a temporary shutdown of Rain’s Norco plant. On October 23, 2009, MCC filed suit against Detrick and Rain in Illinois seeking a declaratory judgment that its policy did not provide coverage for the damages allegedly sustained by Rain. Approximately three weeks later, Rain filed a motion in the instant suit seeking a preliminary injunction preventing MCC from pursuing the Illinois litigation; De-trick joined in the motion. Then, on November 25, 2009, Detrick filed its answer, as well as a cross claim against MCC, in the instant case.

|2The trial court heard oral argument on the motion for preliminary injunction, and rendered judgment on December 11, 2009 granting the motion and enjoining MCC from proceeding with the Illinois declaratory judgment action. MCC filed both the instant appeal and an application for supervisory writs asking this court to vacate the preliminary injunction.

Subsequent to the filing of the appeal and the writ application, the parties entered into mediation. Upon joint motion of the parties, we stayed consideration of the writ application until March 1, 2010 pending the outcome of mediation. On February 23, 2010, the parties entered into a settlement whereby Rain, in exchange for a sum paid by MCC, completely released all its claims against Detrick and MCC. MCC accepted the settlement subject to a reservation of its rights to seek recovery from its insured, Detrick, to the extent that it might be determined that coverage does not exist under MCC’s policy. Pursuant to the settlement, on March 30, 2010, the district court entered an order dismissing with prejudice Rain’s claims against both defendants. In addition, the Illinois court on April 2, 2010, entered an order dismissing Rain without prejudice from the Illinois action.

Pursuant to this court’s order, MCC supplemented its writ application with copies of the district court’s order of dismissal and the Illinois court’s order of dismissal. On April 8, 2010, we granted the writ application and vacated the district court’s anti-suit injunction. Subsequently, however, Detrick moved for rehearing and at that time, apprised this court of the existence of the instant, | spending appeal of the district court’s judgment. We granted rehearing, vacated our prior writ disposition, and dismissed MCC’s writ application on the grounds that the district court’s ruling was a final, appealable judgment.

DISCUSSION

Motion to Strike

MCC’s primary argument on appeal is that the dismissal of the plaintiff Rain’s main demand after the issuance of the preliminary injunction transformed MCC’s Illinois action into the first-filed suit and made the district court’s preliminary injunction inappropriate. In support of this argument, MCC has attached to its brief copies of the aforementioned order of the district court dismissing Rain’s claims and the order of the Illinois court dismissing Rain from that litigation. Detrick, however, has filed a Motion to Strike these attachments to MCC’s brief, as well as MCC’s primary argument, on the basis that an appellate court is precluded from considering any evidence or ruling upon any issue that was not considered or ruled upon by the trial court. Having deferred ruling upon Detrick’s motion until now, we grant the motion.

We agree that proceedings that occurred after the judgment being appealed are not properly before the appellate court and therefore should not be considered. Cabral v. Ward, 609 So.2d 872, 877 (La.App. 5 Cir.1992). See also: State v. Jones, 1997-2593, p. 6 (La.3/4/98), 707 So.2d 975, 978-79; LHO New Orleans LM, L.P. v. MHI Leaseco New Orleans, Inc., 2006-0489, p. 13 (La.App. 4 Cir. 4/16/08), 983 So.2d 217, 226. As a court of record, an appellate court must limit its review to the evidence in the record before it; therefore, the court generally cannot consider any actions of the trial court taken after the granting of the motion |4for appeal. See La. C.C.P. art. 2164; River Parishes Financial Services, L.L.C. v. Goines, 2007-0641, pp. 5-6 (La.App. 5 Cir. 2/6/08), 979 So.2d 518, 521.

Accordingly, although we recognize that the posture of the instant case has changed since the district court’s granting of the preliminary injunction, for purposes of this appeal we consider only whether the trial court properly issued the injunction at the time that judgment was rendered.

Preliminary Injunction

A trial court has broad discretion in the granting or denial of a preliminary injunction, and its decision will not be disturbed on review absent clear abuse of that discretion. Cajun Elec. Power Co-op., Inc. v. Triton Coal Co., 590 So.2d 813, 816 (La.App. 4th Cir.1991). Louisiana jurisprudence clearly supports a trial court, under appropriate circumstances, enjoining the prosecution of a suit subsequently filed in another state involving the same controversy. Id., Transamerica Insurance Company v. Whitney National Bank, 251 La. 800, 806-807, 206 So.2d 500,502-503 (1968). The jurisprudence reflects that courts abhor a multiplicity of lawsuits to settle a single issue, as such actions are expensive for the litigants and result in an unnecessary duplication of judicial time. Cajun Electric Power Co-op, supra, at 816; Bell v. Travelers Indemnity Co., 500 So.2d 828, 831 (La.App. 1st Cir.1986). Because multiple lawsuits are reprobated by jurisprudential rule, it is not necessary to allege or prove irreparable injury when seeking an injunction to enjoin a declaratory judgment action filed subsequent to the initial lawsuit to clarify an issue involved in the original lawsuit. Bell v. Travelers Indemnity Co., supra, at 831.

In Cajun Elec. Power Co-op., Inc. v. Triton Coal Co., supra, this court considered whether the trial court erred when it denied the plaintiffs’ motion for a | (¡preliminary injunction to prevent the defendant from proceeding with a subsequently filed suit in a Wyoming court involving substantially the same parties and the same issues. On March 19, 1991, the plaintiffs filed suit against defendant for breach of contract for the sale of coal to be used in Cajun Electric’s generating facility, alleging a dispute about the interpretation of the price. On March 29,1991, prior to answering the plaintiffs’ suit, defendant filed an action in a Wyoming court naming plaintiffs as defendants. On August 6, 1991, defendant filed an answer and recon-ventional demand against the plaintiffs in the Louisiana suit. Thereafter, plaintiffs filed a motion for preliminary injunction preventing defendant from pursuing the Wyoming suit. In reversing the trial court’s denial of the motion for preliminary injunction, this court stated:

However, we have carefully reviewed the pleadings filed in both the Louisiana and Wyoming courts and find that both arise out of the same controversy; i.e., the dispute over interpretation of the price adjustment clauses in the 1985 contract. The factual situation addressed in both suits are identical; all of the issues asserted in the Wyoming suit are likewise addressed in the main demand and reconventional demand in the court below. There are no issues asserted in the Wyoming action which would not be addressed by the Louisiana court in the action filed here. Further, we can find no distinction in the relief sought in either suit: both seek to obtain the same result.
We conclude that the trial court clearly abused its broad discretion in refusing to enjoin Triton from prosecuting the suit in Wyoming. The two suits are clearly duplicative, and permitting both suits to continue only thwarts the legitimate effort to avoid a multiplicity of lawsuits for the benefit of both of the litigants and the courts.

590 So.2d at 817-818.

Analogously, in Transamerica Insurance Company v. Whitney National Bank of New Orleans, supra, the Louisiana Supreme Court noted:

Generally speaking, in situations of this kind, the pendency of another action involving the same set of circumstances has often been determinative. |fiAnd courts generally will either dismiss or stay a subsequent petition for a declaratory judgment. ...
Here the action for relief ... will necessarily settle the identical issue raised in the declaratory action, and the parties are the same parties. There appears to be no sound reason to permit this declaratory action for it promotes multiplicity of suits, which are expensive for the litigants and an unnecessary duplication of judicial time and effort generally to be abhorred by the courts.

206 So.2d at 502.

In the instant case, Rain’s suit seeking damages from Detrick and its insurer, MCC, was filed before MCC filed its declaratory action in Illinois concerning coverage under its policy for the damages alleged sustained by Rain. We agree with the trial court’s finding that the two suits involved the same parties and the same issues. Moreover, MCC’s inclusion of an additional insured as a defendant did not preclude the granting of plaintiffs anti-suit injunction because the only issues alleged in MCC’s declaratory action concerned whether there was coverage under the policy issued to Detrick for the damages sustained by Rain.

Because Rain’s suit was filed first and the two suits involved the same parties and the same issues, we conclude the trial court did not abuse its discretion in granting plaintiffs motion for a preliminary injunction. We therefore affirm that judgment.

Despite this affirmation, however, we cannot ignore the undisputed fact that at present, Detrick and MCC are the only two parties remaining in the litigation, with the sole remaining issue being De-trick’s cross claim seeking coverage and defense from MCC. MCC argues strenuously that, given the current posture of this case, the still-pending Illinois action has become the first-filed suit, and therefore, the preliminary injunction is no longer appropriate and must be vacated. Although MCC urges us to consider this argument in the interest of judicial economy, for the 17reasons heretofore stated we cannot do so until the district court has had an opportunity to decide the issue. We nevertheless recognize that, although this issue belongs in the district court, the parties have been unable to raise it there during the pendency of this appeal because the trial court was divested of jurisdiction over all issues relating to the granting of the preliminary injunction upon its signing of the order of appeal. See La. C.C.P. art. 2088. Under these circumstances, we deem it appropriate and just for us to remand the matter to the district court to consider whether the preliminary injunction should remain in place, be made permanent, or be dissolved, in light of the dismissal of the main demand subsequent to the issuance of the injunction.

CONCLUSION

Accordingly, for the reasons stated, the district court’s December 11, 2009 judgment is affirmed, and the matter is remanded to that court for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

ON APPLICATION FOR REHEARING

Judge PATRICIA RIVET MURRAY.

ON REHEARING GRANTED

hWe grant rehearing for the sole purpose of clarifying our September 22, 2010 opinion in the following respect. In our discussion concerning the trial court’s granting of the preliminary injunction, we indicated that the sole remaining issue in the instant case is Detrick’s cross claim “seeking coverage and defense” from MCC. By using those words, we did not intend to suggest that Detrick’s cross claim is limited to the issues of coverage and defense. Given that the nature of the cross claim was not before this court, our statement was intended only to emphasize that the cross claim is the sole claim remaining to be litigated in the trial court. We therefore clarify our opinion by deleting that characterization of Detrick’s cross claim from our discussion.

In all other respects, the opinion is affirmed as written.

      . According to the petition, MCC is a Delaware corporation with its principal place of business in Illinois, and Detrick is a Maryland corporation with its principal place of business in Illinois.

      . Rain also named a third defendant, Heat Systems, Inc., which potentially is an additional insured under MCC's policy but which is not a party to the instant Louisiana suit.

      . The motion for appeal was filed December 18, 2010, and the order of appeal was signed on December 21, 2010, the same day that the writ application was filed.

      . We found that, although the trial court had not abused its discretion by issuing the anti-suit injunction, the subsequent dismissal of the plaintiff's claims had changed the posture of the case. Because the only remaining claim in the district court was the cross-claim by Detrick against MCC, which was filed approximately one month after MCC filed its action in Illinois, we concluded that the Illinois action had become the first-filed suit and therefore the district court’s anti-suit injunction was no longer appropriate. Rain CII Carbon, LLC, v. M.H. Detrick Co., 2009-1707 (La.App. 4 Cir. 4/8/10) (unpublished).


text:
    James Randall LAIRD v. HIGHPOINT SOUTHWEST SERVICES.
    No. 2010-CA-0600.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 22, 2010.

      Gregory J. Hubachek, Natchitoches, LA, for Plaintiff/Appellant.
    Michael L. Stewart, John W. Norwood IV, Maria B. DeGracia, Law Office of Michael L. Stewart, Metairie, LA, for Defendant/Appellee.
    Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY.
   MAX N. TOBIAS, JR., Judge.

hThe claimant/appellant, James Randall Laird, appeals from a judgment by the Office of Workers’ Compensation (“OWC”) that denied his claim for penalties, costs, and attorney’s fees. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

In his disputed claim for compensation, Mr. Laird alleged that the defendant/ap-pellee, Highpoint Southwest Services, and its insurer, the Hartford Insurance Company (hereinafter collectively referred to as “Hightower”), failed to comply with a Consent Judgment signed by the parties. Additionally, Mr. Laird claimed that he was entitled to an award of attorney’s fees and penalties, as well as reimbursement of costs.

The matter was set for trial in December 2009; however, trial was had on briefs and documentary evidence filed into the record. On 11 January 2010, the OWC rendered judgment in favor of Hightower, dismissing Mr. Laird’s claim with prejudice. This timely appeal followed.

|2In workers’ compensation cases, the appropriate standard of review is the manifest error-clearly wrong standard. Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117; MacFarlane v. Schneider National Bulk Carriers, Inc., 07-1386, p. (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188. If, however, the trial court comitts a legal error, a de novo review is applied. Id.

In the instant case, we find no error of law by the OWC. Thus, we apply the manifest error-clearly wrong standard of review.

The issue presented in this case is whether the OWC appropriately applied La. R.S. 23:1201 G, which provides in pertinent part:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate. [Emphasis supplied.]

Pursuant to the Consent Judgment entered into by the parties and approved by the OWC on 17 March 2009, Hightower was required to perform certain obligations as outlined therein: (1) pay penalties and attorney’s fees; (2) provide Mr. Laird with (a) a therapeutic mattress, (b) therapeutic shoes, (c) a shower massage device; and (3) pre-authorize massage therapy. Mr. Laird claims that | oHightower failed to perform any' of their obligations in a timely manner as required by the statute.

It is undisputed that the payment of penalties and attorney’s fees occurred on 21 April 2009, five days after the thirty-day deadline provided by La. R.S. 23:1201 G. On 25 March 2009, counsel for High-tower sent Mr. Laird’s counsel a motion to dismiss, advising that once the motion to dismiss was signed and returned, the checks would be sent. The executed motion to dismiss was not returned.

The Consent Judgment did not require that a motion to dismiss be signed before the payment of penalties and attorney’s fees by Hightower. We find the record reflects nothing outside Hightower’s control to excuse the untimely payment of that award. Thus, we reverse the trial court on this issue and award Mr. Laird the amount of $2,400.00 for the late payment. Because La. R.S. 23:1201 G requires Hightower to pay reasonable attorney’s fees, we must remand this matter to the OWC for the purpose of determining same for this one item.

By letter dated 1 April 2009, counsel for Hightower informed Mr. Laird’s counsel that each individual item set forth in the Consent Judgment had been authorized; the ordering and delivery of the medical devices/equipment would be arranged by an independent vendor, PMSI. Mr. Laird’s counsel was told that if PMSI did not contact him within a day or two of the date of the letter, he should contact PMSI at its toll-free number that was provided in the letter. Hightower’s counsel also requested a call if Mr. Laird had any problems in securing the devices/equipment.

On 21 April 2009, the appellees’ counsel learned that none of the devices/equipment had been delivered. This was the first notice Hightower and |4their counsel received concerning problems with the mattress, shoes, and shower massage device (showerhead).

In a letter dated the same day, counsel for Hightower stated in pertinent part:

As for the showerhead and shoes, I explicitly stated in my April 1 letter to you that they are authorized. Silvo [claims adjuster for the Hartford] gave PMSI your number, and I gave you PMSI’s number, and asked you to call them if you didn’t hear from them in the next few days. We have no idea what type of shoes, what size shoes, what brand of shoes, etc. that Mr. Laird needs, as it was not specified in Dr. Bourgeois’ prescription. Similarly, we do not know what type of showerhead Mr. Mr. Laird needs, and it was not specified in Dr. Bourgeois’s prescription. Mr. Laird has to go to pick out what he needs.
We called PMSI and authorized everything, and we gave them your number to set everything up for Mr. Laird. Similarly, I gave you the number to PMSI in my April 1, 2009, letter, as you asked me to do in a telephone conversation after we settled this matter. In accordance with our Consent Judgment, everything was authorized, and I do not think it is asking too much for Mr. Laird to go pick out his shoes and showerhead.

By letter dated 22 April 2009, Mr. Laird’s counsel wrote to opposing counsel stating that, after “lengthy discussions” with PMSI, he learned that the mattress would be delivered in two to three weeks, the shoes selected by Mr. Laird were on back order, and the shower massage device desired by Mr. Laird had been discontinued, requiring him to select a different model. The mattress was delivered on 22 May 2009 and the shoes were received on 8 May 2009; the record does not reflect the exact delivery date of the showerhead, however, it was received after 27 May 2009. No evidence exists in the record concerning when |.-discussions began with PMSI or that delivery of these items could not have been timely made.

Finally, with regard to the massage therapy, the record reflects that Hightower received a prescription from Mr. Laird’s treating physician ordering massage therapy in October 2008 for three massages per week for six weeks. The 1 April 2009 letter stated: “[t]he massage therapy is authorized. Please have Mr. Laird set up an appointment and have the facility call for authorization!;,].... ” It was referring to the October 2008 prescription. The record does not reflect a reason for a subsequent prescription from Mr. Laird’s psychiatrist in May 2009. It was Mr. Laird’s job to set an appointment for massage therapy. We find this argument to be without merit.

We find that Hightower acted in good faith by authorizing every item set forth in the Consent Judgment. Hightower could not deliver a mattress, shoes, or shower-head without Mr. Laird’s cooperation. It is disingenuous for Mr. Laird to wait until after the thirty-day deadline to advise Hightower or its counsel of his difficulties and then seek further penalties and attorney’s fees in the process.

But for the payment of the penalties and attorney’s fees, we find that Hightower did everything within Hightower’s power to timely satisfy the Consent Judgment within thirty days from its signing. Based on the foregoing, we reverse the OWC. We award Mr. Laird the sum of $2,400.00 and remand this matter to the trial court for the purpose of determining reasonable attorney’s fees for the | fifailure to timely pay the previous penalty and attorney’s fees. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . With respect to the mattress, it is undisputed that before the Consent Judgment was signed, Hightower had authorized, and even attempted to deliver, a Tempurpedic mattress to Mr. Laird’s home. However, Mr. Laird did not like the mattress and refused delivery. After the Consent Judgment was signed, Hightower authorized a "higher model” mattress, although one had not been prescribed by Mr. Laird’s treating physician. A new box spring was also authorized and delivered, although the Consent Judgment did not require it.