author: PATRICIA RIVET MURRAY, Judge.

text:
    Helen Louise Malone HOLLOWAY, Edward J. Holloway, Jr., Michael Holloway, Robbin Holloway Broussard, Renee Holloway Johnson and Dwight Holloway as the Widow and Surviving Children of the Deceased, Edward J. Holloway v. STATE of Louisiana, through the BOARD OF SUPERVISORS OF LSU, Representing the Medical Center of Louisiana at New Orleans.
    No. 2010-CA-1754.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Harry T. Widmann, Harry T. Widmann & Associates, Metairie, LA and Pascal F. Calogero, Jr., Pascal F. Calogero, Jr., APLC, New Orleans, LA, for Plaintiffs/Ap-pellees.
    James D. “Buddy” Caldwell, Attorney General, Keary L. Everitt, Special Assistant Attorney General, Marie G. Everitt, Special Assistant Attorney General, David M. Latham, Special Assistant Attorney General, Everitt Pratt & Latham, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

1 defendant, the State of Louisiana, through the Board of Supervisors of LSU, representing The Medical Center of Louisiana at New Orleans [hereinafter collectively referred to as “LSU”] appeals the trial court’s judgment awarding damages to the widow and children of Edward J. Holloway for his wrongful death. Plaintiffs filed an answer to the appeal arguing that the trial court incorrectly reduced their damages by applying one, rather than two, “caps” pursuant to La. R.S. 40:1299.39, the Malpractice Liability for State Services Act [“MLSSA”]. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Mr. Holloway, then 66 years old, was admitted to the Medical Center of Louisiana at New Orleans [“MCLNO”] on March 17, -2000, after he had come to the emergency room complaining of nausea, vomiting, lower abdominal pain and distention that had persisted for several days. Mr. Holloway had a history of chronic obstructive lung disease, alcohol abuse, and a 1989 prostatectomy and small bowel resection. At MCLNO Mr. Holloway underwent surgery to cure a [ 2twisted bowel on March 18th; three days later, on March 21st, he underwent a bowel resection because his bowel had again become obstructed. He developed pneumonia, however, and his condition continued to deteriorate such that on April 5th, a tracheotomy was performed on him, a feeding tube was inserted into his stomach, and he was transferred to a long term care facility, LifeCare. Following those procedures, Mr. Holloway developed peritonitis, and he died on April 25, 2000, due to “sepsis with shock as a consequence of abdominal wall cellulitis and pneumonia.”

On July 29, 2003, after a Medical Review Panel had determined that LSU had not breached the applicable standard of care, Mr. Holloway’s widow and five major children filed the instant action against LSU pursuant to La. R.S. 40:1299.39 (MLSSA) in civil district court, alleging Mr. Holloway’s death was the result of medical malpractice at a state facility. A bench trial was held June 2-3, 2010. On July 30, 2010, the trial court rendered judgment in favor of the plaintiffs awarding the following:

(1) $350,000 to Mr. Holloway’s widow for the loss of love, affection, companionship, service and support of her husband;
(2) $250,000 to each of Mr. Holloway’s five offspring for the loss of love, affection, companionship, and mental distress suffered on account of the wrongful death of their father;
(3) $76,249.49 for medical expenses and $5589.51 for funeral expenses;
|3(4) Legal interest pursuant to La. R.S. 13:5112 (which provides the rate and terms of payment of legal interest awarded against the state).

In accompanying written Reasons for Judgment, the trial court stated that the plaintiffs had proved by a preponderance of the evidence that the physicians and/or other healthcare personnel responsible for the care and treatment of Mr. Holloway while he was at the MCLNO had breached the applicable standard of care in two respects: (1) by prematurely removing Mr. Holloway’s nasal gastric tube within twenty-four hours after his March 18th surgery, thereby increasing the risk of aspiration of gastric contents into his lungs; and (2) by failing to properly attach to his abdominal wall the feeding tube that was inserted on April 5th following his second surgery, such that the tube became dislodged. As a result of the tube becoming dislodged, Mr. Holloway developed celluli-tis in his anterior abdominal wall. According to the trial court, this condition coupled with the spilling of gastric juices caused peritonitis, as a result of which Mr. Holloway went into septic shock and died. The trial court specifically found that the plaintiffs had carried their burden of proving that the conduct of the physicians and staff that treated Mr. Holloway at the MCLNO was beneath the standard of care and that their negligence was a direct cause of Mr. Holloway’s death. The trial court additionally found that the defendant, LSU, was responsible for the negligence of its employees under the doctrine of responde-at superior. Finally, noting the close and loving relationship Mr. Holloway had shared with his wife and children, even though they were all of the age of majority at the time of his death, the trial court |4reasoned that the amounts of general damages it awarded were supported by the record.

In addition to the monetary awards made, the trial court’s judgment specified that the defendant was exempt from paying costs pursuant to La. R.S. 13:4521 (providing that the state, or any employee thereof acting within the course and scope of his employment, with certain exceptions, is not required to pay court costs in any judicial proceeding instituted by or against the state). Finally, the judgment provided that its award of damages was subject to the limitation of recovery as provided for in La. R.S. 40:1299.42.

The defendant filed a Motion for New Trial on the basis that the trial court had mistakenly cited La. R.S. 40:1299.42(the medical malpractice statute governing the liability of private healthcare providers) instead of La. R.S. 40:1299.39 (MLSSA, which governs medical malpractice liability for state services) as the basis for limiting the plaintiffs’ recovery. The plaintiffs then filed a “Motion to Amend Judgment and Motion for New Trial for Reargument Only” arguing that the judgment should be amended to correct the mistake of citing the incorrect statute; additionally, plaintiffs contended a new trial (for reargument purposes only) should be granted on the issue of whether their recovery of damages should be limited to a single $500,000 cap under MLSSA or whether two |flsuch caps were warranted by the trial court’s finding that there were two separate acts of malpractice. These motions were heard on September 3, 2010. In open court, the trial judge indicated she was granting the defendant’s motion for new trial on the issue of the citation of the wrong statute and would amend the judgment accordingly. The trial judge also indicated that she was denying the plaintiffs’ motion for new trial requesting the application of two, instead of one, cap on the plaintiffs’ recovery under MLSSA, reasoning that she had found two acts of medical malpractice but only one injury, Mr. Holloway’s death.

On September 16, 2010, the trial court issued a written judgment formally granting the defendant’s Motion for New Trial and plaintiffs’ Motion to Amend Judgment on the issue of the citation of the incorrect statute, and denying the plaintiffs’ Motion for New Trial for Reargument Only. Additionally, the court on its own motion granted a new trial for the purpose of amending the original judgment to include an award of judicial interest. That same day, the trial court issued an “Amended Judgment” that was identical to the July 30, 2010 judgment except for the substitution of La. R.S. 40:1299.39 in place of La. R.S. 40:1299.42 and the addition of an award of “legal interest pursuant to La. R.S. 13:5112.” The trial court also reissued with its Amended Judgment the identical reasons for Judgment that had accompanied its July 30th judgment.

On October 11, 2010, the trial court granted LSU an order of suspensive appeal from the July 30, 2010 judgment and the September 16, 2010 amended judgment. LSU cites a single assignment of error: that the plaintiffs failed to Improve the existence of an employment/ responde-at superior relationship between LSU and the individual physicians and/or staff members upon whose negligence LSU’s liability was founded. Answering the appeal, the plaintiffs assert that the trial court erroneously applied a single medical malpractice “cap” as provided for in La. R.S. 40:1299.39.

ISSUES

There are only two issues on appeal:

(1) Did the trial court err by casting LSU in judgment without sufficient proof that the physicians found to be negligent were employees of LSU for whose actions LSU was legally responsible?
(2) Did the trial court err by failing to conclude that its factual findings in the instant case warranted the application of a double medical malpractice “cap” limiting the plaintiffs’ recovery to $1,000,000, rather than to the single $500,000 cap provided for by La. R.S. 40:1299.39(F)?
We address these issues separately.

DISCUSSION

I. Proof of Respondeat Superior

By this assignment of error, the defendant argues that the plaintiffs failed to prove that LSU is responsible under the theory of respondeat superior for the negligence of the individuals that treated Mr. Holloway at MCLNO. Citing no jurisprudence but relying solely on La. R.S. 13:5108.1, the defendant argues that the plaintiffs failed to show the name of each individual whose negligent conduct 17contributed to Mr. Holloway’s death, to introduce the employment contract each individual had with LSU, and finally to prove that each individual was acting within the scope of his employment with LSU by treating Mr. Holloway.

The plaintiffs point out that La. R.S. 18:5108.1, entitled “Indemnification of officers and employees of the state; civil rights; representation by attorney general” has no applicability to an action brought under MLSSA. Additionally, they argue that introduction of the individual employment contracts was not necessary in the instant case because the medical records admitted into evidence provided sufficient proof that all the doctors and staff members who cared for Mr. Holloway at the MCLNO were employed by LSU and were acting within the course and scope of their employment. Finally, the plaintiffs cite the testimony of Dr. De-Boisblanc, a former professor at LSU, who confirmed that staff surgeons at the MCLNO are employees of LSU.

We note that this issue was first raised in a Motion for Involuntary Dismissal pursuant to La. C.C.P. art. 1672(B) filed by LSU after the plaintiffs had presented their evidence in the trial court. At that time, the trial court reviewed the medical records to determine whether she could infer from their contents the existence of a respondeat superior relationship. Specifically noting that the admission forms and surgical consent forms for Mr. Holloway listed “LSU surgery” in the blank Isdesignated for “authorized physician,” the trial court found that the plaintiffs had established a prima facie case that the physicians and staff caring for Mr. Holloway were employees of LSU working under the control and supervision of LSU.

Now considering this issue in light of the entire record, we agree with the trial court’s determination that the plaintiffs provided sufficient proof of the respondeat superior relationship between LSU and the individuals whose actions the trial court found to be beneath the standard of care. We first note that this action is governed by the MLSSA, not La. R.S. 13:5108.1, which is part of the Governmental Claims Act (La. R.S. 13:5101 through 5113). La. R.S. 13:5108.1 specifically provides for the state to indemnify and defend any covered individual against any lawsuit seeking damages for the alleged negligence or other act of the individual while he was engaged in the performance of his duties of employment with the state. The defendant herein specifically relies upon the Definitions section of 13:5108.1, which states, in pertinent part:

E. Definition.

As used in this Section “covered individual” includes:
⅜ ‡ ‡ ⅜ ‡
(2) A physician who either contracts with or provides services on behalf of the state or any of its departments, whether compensated or not, in treating and performing evaluations of persons when such persons cause harm to third parties. For purposes of this Section, such physicians who provide services under contract shall be deemed to be employees of the contracting agency. (Emphasis added).

| ^According to the defendant’s argument, this provision requires that the employment contracts of the individual physicians be introduced into evidence in order to prove LSU’s responsibility for their actions under the doctrine of respondeat superior.

We find defendant’s argument to be misplaced. By its own terms, the above-cited provision does not apply to the instant situation because it is not alleged that the person who was being treated, Mr. Holloway, caused harm to any third party; rather, it is alleged that the physicians treating Mr. Holloway at MCLNO caused harm to Mr. Holloway. Moreover, in the instant situation indemnification is clearly not applicable because only the state is named as a defendant. Finally, even if any of the individual doctors had been named as a defendant, the MLSSA prohibits entry of judgment against an individual physician. Detillier v. Kenner Regional Medical Center, 03-3259, pp. 15-16 (La.7/6/04), 877 So.2d 100, 110-111. In Detillier, the Louisiana Supreme Court held that although an individual health care provider may (but is not required to) be named as a defendant in an action brought under the MLSSA, any judgment obtained shall be entered against only the state entity, reasoning that: “The essence of the MLSSA is that a person qualified or covered under the Public Act is insulated from being cast in judgment.” Id., p. 16, 877 So.2d at 111.

The MLSSA’s definition of “State health care provider” or “person covered by this Part” is an extensive list, including but not limited to: the state or any of its departments; state hospitals and facilities; employees of the state acting within the | mcourse and scope of their duties in providing health care in connection with a state entity; physicians acting pursuant to a staff appointment to a state hospital or facility; residents, interns, or students supervised by such physicians; and health care providers performing voluntary professional services in a health care facility for or on behalf of the state. See La. R.S. 40:1299.39 A.

Thus, in an action filed under the MLSSA, one of the facts the plaintiff must prove by a preponderance of the evidence is that the person or persons whose conduct caused the plaintiffs damages was covered under the Act. Nothing in the MLSSA, or otherwise in the law, suggests that the introduction of an employment contract is required to satisfy the plaintiffs burden of proof in this respect. Proof of a fact by either direct or circumstantial evidence is sufficient to constitute a preponderance, when considering the evidence as a whole, such proof shows that the fact is more probable than not. Joseph v. Broussard Rice Mill, 00-0628, pp. 7-8 (La.10/30/00), 772 So.2d 94, 100 (citations omitted). Circumstantial evidence is evidence of facts or circumstances from which one might infer, using reason and common experience, the existence of other connected facts. Id., p. 8, 772 So.2d at 100-101. Circumstantial evidence may be as persuasive as testimonial or direct evidence in demonstrating the existence or nonexistence of a fact at issue. Id., p. 8, 772 So.2d at 101.

In the instant case, the medical records indicate that all the physicians who provided care to Mr. Holloway at MCLNO were staff surgeons, residents or interns working at MCLNO, a state facility run by LSU. In addition, Dr. DeBoisblanc’s | n testified as to his personal knowledge that Dr. Hunt (identified in the medical records as the staff doctor who performed Mr. Holloway’s March 18, 2000, surgery and the supervisor of Dr. Karam, the resident who gave the order to pull Mr. Holloway’s nasal gastric tube) was a staff general surgeon at MCLNO in 2000. Dr. DeBoisblanc further testified that staff surgeons at MCLNO were employees of LSU. From the totality of the evidence, the trial court made a reasonable inference that the persons whose negligence resulted in Mr. Holloway’s death were employees of LSU acting within the course and scope of their employment. We note that the defendant did not introduce any evidence to contradict the clear inference suggested by these medical records. Therefore, in the absence of any evidence to the contrary, we find no manifest error in the trial - court’s determination that the plaintiffs met them burden of proving that LSU was liable under the doctrine of respondeat superior for the negligent actions of the doctors and staff members who treated Mr. Holloway.

II. Application of the MLSSA’s cap on recovery

In answer to the appeal, the plaintiffs contend that the trial court erred by applying the $500,000 statutory cap to the plaintiffs’ award of damages as provided for by the MLSSA. As noted previously, the MLSSA provides that “no judgment shall be rendered ... for the injury or death of any patient in any action or claim for an alleged act of malpractice in excess of five hundred thousand dollars plus interest and costs, exclusive of future medical care and related benefits valued in excess of such five hundred thousand dollars.... ” La. R.S. 40:1299.39(F). The | ^.plaintiffs’ contention that the trial court should have applied two caps instead of the one provided for in the statute is based upon a jurisprudential exception first recognized in Batson v. South Louisiana Medical Center, wherein the Louisiana Supreme Court held that under certain circumstances, more than one cap can be awarded injuries to a single person, stating: “We find that the MLSSA does not prohibit multiple statutory caps for multiple acts of negligence which produce separate and independent damages.” Batson v. South Louisiana Medical Center, 99-0232 (La.11/19/99), 750 So.2d 949, 957.

In the instant case, it is indisputable that the trial court found there were two separate acts of malpractice — the premature removal of the nasal gastric tube and the failure to properly attach the feeding tube to the abdominal wall — that contributed to Mr. Holloway’s death. However, the trial court also found that there was only one injury, stating at the hearing on the plaintiffs’ motion for new trial: “My intent was that there was only one injury, the ultimate death of Mr. Holloway.” This fact distinguishes the instant case from Batson, in which the trial court determined that the plaintiff had suffered three separate injuries as a result of three separate and unrelated acts of malpractice committed by separate caregivers, to wit: (1) The failure of treating surgeons to administer antibiotics, which resulted in sepsis; (2) The negligence of treating orthopedists and physical therapists, which resulted in severe flexion contractures (body curled in a fetal position); and (3) the failure of ICU physicians and nursing staff to frequently re-position the patient, which resulted in severe decubitus ulcers (bed sores). See 99-0232, pp. 2-5, 750 | i3So.2d at 951-953. The trial court found the state healthcare providers to be 100% at fault in causing Ms. Batson’s sepsis, which had resulted in a permanent hearing loss, a cognitive brain deficit, and incontinence; 60% at fault in causing Ms. Bat-son’s flexion contractures, which had resulted in her inability to completely straighten her body; and 70% at fault in causing Ms. Batson’s bed sores, which had resulted in permanent scarring. Id., p. 4, 750 So.2d at 953. The trial court in Bat-son awarded separate amounts of damages for each of these three injuries. The Louisiana Supreme Court found no manifest error in these factual findings of the trial court, and held that under such circumstances, the application of three separate caps was permissible under MLSSA.

In the instant case, the plaintiffs argue that the two acts of negligence resulted in two different injuries to Mr. Holloway; they contend that the premature removal of the nasal gastric tube caused him to aspirate stomach contents into his lungs, which resulted in pneumonia, and that the subsequent failure to secure his feeding tube caused the tube to become dislodged, which resulted in sepsis. To accept this argument, we would have to find that the trial court committed manifest error by determining that the plaintiffs herein suffered only one injury: Mr. Holloway’s death. However, we find no manifest error based on this record.

Although the plaintiffs contend that the pneumonia and sepsis constitute two separately compensable injuries, they failed to introduce any evidence to show that Mr. Holloway suffered damages specifically attributable to the pneumonia |14other than that it further weakened Mr. Holloway’s condition such that he eventually required a tracheotomy and a feeding tube, became ventilator dependent, and was ultimately too immune deficient to recover from the sepsis. One of the plaintiffs’ experts, Dr. Repsher, opined that but for the pneumonia, Mr. Holloway would not have needed the feeding tube or the tracheotomy; he also testified that the pneumonia “may well have contributed” to Mr. Holloway’s death. The plaintiffs other expert, Dr. Balliro, opined that the aspiration pneumonia was a component of Mr. Holloway’s death, but that the relative contribution of the pneumonia as opposed to the abdominal wall cellulitis/ peritonitis was arguable. He further testified that before the nasal gastric tube was pulled and Mr. Holloway aspirated, Mr. Holloway probably would have survived; that the aspiration pneumonia made it more likely than not that he would die; and that after the gastric tube became dislodged, Mr. Holloway had no chance of surviving. Both of the plaintiffs’ experts believed that the main cause of death was the peritonitis and resulting sepsis.

Despite having sought damages for Mr. Holloway’s “conscious pain and suffering” in their petition, the plaintiffs introduced no evidence regarding his pain and suffering; nor did they appeal the trial court’s failure to award any such survival damages. With regard to medical expenses, the only evidence introduced was the invoice for Mr. Holloway’s treatment at Life-Care, a private facility. The trial court’s award of $76,249.49 in medical expenses exactly matches the amount of total “payments” shown on the LifeCare bill. The only other evidence |, ¡¡regarding damages is the testimony of Mr. Holloway’s wife and five children as to the grief, suffering and deprivation each of them experienced as a result of Mr. Holloway’s death. Although the plaintiffs’ contend that the trial court erred by failing to apportion the damages between two injuries, the pneumonia and the peritonitis/ sepsis, the record is devoid of evidence upon which the court could have based such an apportionment.

Because the trial judge found that the two separate acts of negligence combined to cause one injury, she awarded only a lump sum for medical expenses, and separate amounts of general damages to each individual plaintiff for his or her loss of companionship, society and suffering on account of Mr. Holloway’s death. Reviewing this record, we cannot say that the trial court’s determination that Mr. Holloway suffered only one injury is unreasonable in light of the totality of the evidence. It was the plaintiffs’ burden to prove that the defendant’s separate acts of negligence resulted in two separately compensable injuries with separate damages in order to trigger the application of two caps under the Batson exception to the MLSSA. The trial court obviously concluded that the plaintiffs failed to meet that burden in the instant case. We find no manifest error in the trial court’s conclusion.

Accordingly, we hold that the trial court did not err by limiting the plaintiffs’ recovery to a single $500,000 cap under the MLSSA.

^CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

      . This is the cause of death as listed on Mr. Holloway’s death certificate.

      . La. R.S. 40:1299.39 provides in pertinent part:

        Notwithstanding any other provision of the law to the contrary, no judgment shall be rendered and no settlement or compromise shall be entered into for the injury or death of any patient in any action or claim for an
      alleged act of malpractice in excess of five hundred thousand dollars plus interest and costs, exclusive of future medical care and related benefits valued in excess of such five hundred thousand dollars.

      . La. C.C.P. art. 1672 provides, in pertinent part:
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . At the time of Mr. Holloway's death, the Governmental Claims Act expressly excluded MLSSA claims by providing, in pertinent part: "Nothing in this Part shall apply to claims covered by R.S. 40:1299.39.” This sentence was deleted from La. R.S. 13:5101 B by La. Acts 2010, No. 301, § 1.

      . In their initial petition, the plaintiffs claimed Mr. Holloway’s death was the result of the failure to properly seal the feeding tube by attaching it to the abdominal wall. In a subsequent supplemental and amending petition filed by leave of court, the plaintiffs added an allegation that the nasal gastric tube had been prematurely removed.


source: Caselaw Access Project

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

license: Public Domain

text:
    FOUNDATION MATERIALS, INC. v. CARROLLTON MID-CITY INVESTORS, L.L.C. and Harmon Construction, L.L.C.
    No. 2010-CA-0542.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.

      Irl R. Silverstein, David A. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Plaintiff/Appellee.
    Scott G. Wolfe, Jr., Seth J. Smiley, Wolfe Law Group, L.L.C., New Orleans, LA, for Harmon Construction, LLC.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

|! This is a contractual dispute. The defendant, Harmon Construction, L.L.C. (“Harmon”), appeals from an adverse judgment granting summary judgment in favor of the plaintiff, Foundation Materials, Inc. (“FMI”), and awarding FMI $70,475.00 in damages, together with legal interest, attorneys’ fees, and costs. For the following reasons, we affirm the trial court’s judgment.

FMI was a subcontractor to Harmon in the construction of a Home Depot in New Orleans. Harmon was a subcontractor to White-Spunner Construction, Inc. (“WSC”), who acted as a general contractor on the project. In November 2007, FMI filed suit against Harmon and the property owner alleging it had entered into a contract with Harmon for the removal of an existing foundation on the property and for the labor, materials, and equipment for pilings to be driven on the property for the new foundation. According to FMI, the total sums due under all of the agreements between it and Harmon was $110,820.00, and that in August 2007, Harmon had made a $40,345.00 payment, leaving a remaining balance due of $70,475.00.

|2Harmon answered FMI’s suit in April 2008, followed by a third party demand against WSC in August 2008. Also in August 2008, FMI filed its original motion for partial summary judgment seeking to recover $70,475.00 from Harmon, the balance FMI claims was due under the agreements between the parties. Opposing FMI’s motion, Harmon submitted an un-notarized affidavit of its owner, Clifton Harmon. Refusing to consider Mr. Harmon’s affidavit because it was not notarized, the trial court found there were no genuine issues of material fact and that FMI was entitled to judgment as a matter of law. Accordingly, the trial court granted FMI’s motion and Harmon appealed. Thereafter, we reversed on the ground that FMI failed to present a prima facie showing that its motion should be granted. See, Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 09-0414 (La.App. 4 Cir. 8/26/09), 17 So.3d 513. Specifically, the only evidence FMI offered in support of its original motion was the affidavit of its president, Paul Tassin, which did not refer to and/or authenticate any document (ie., the contract documents upon which its claim was based), but rather, merely tracked the language of FMI’s petition stating in a conclusory manner that the parties had a contractual agreement under which Harmon was obligated to FMI for the total sum of $110,820.00, of which a balance of $70,475.00 remained due and owing. Because the unsworn, unauthenticated documents attached to FMI’s petition were not properly before the trial court for consideration in deciding the motion for summary judgment, we held the trial court erred in granting the motion. FMI filed a writ application to the Supreme Court, which was denied.

|sIn December 2009, subsequent to the Supreme Court’s denial of its writ application, FMI filed a second motion for partial summary judgment submitting the revised affidavit of Mr. Tassin, which specifically authenticates the contract documents upon which FMI’s claim is based. Additionally, referenced in and attached to Tassin’s affidavit, were copies of the contract documents evidencing the agreement between the parties. The documents included a Demo Proposal, dated, signed and accepted by Harmon’s project manager, Rick Barrah, on 3 July 2007, which included a typewritten charge of $13,680.00 for demolition work at the jobsite, and a corresponding invoice (# 7247) dated 9 July 2007, submitted by FMI to Harmon for this demolition work in the amount of $13,680.00. Also attached to Tassin’s affidavit was a Piling Proposal Agreement, which was signed and accepted by Barrah on 6 August 2007, showing a typewritten charge of $88,940.00 for foundation piling work and a handwritten charge of $8,200.00 for demobilization of equipment and restocking fees. Invoice # 7293, dated 13 August 2007, in the amount of $88,940.00 and representing the cost of the foundation piling work, and invoice # 7299, dated 17 August 2007, in the amount of $8,200.00 for the demobilization and restocking fees, were also attached to Tas-sin’s affidavit.

In opposition to FMI’s motion, Harmon submitted the purported affidavit of Clifton Harmon, which the trial court determined failed to set forth any specific fact rebutting the authenticity of the contract documents introduced into evidence by FMI at the hearing on its motion. In light of the record before it, the trial court granted FMI’s second motion for partial summary judgment and awarded to it the sum of $70,475.00 together with legal interest and attorneys’ fees in accordance with the terms set forth in the contract documents.

14Harmon filed the instant appeal claiming the trial court erred in granting FMI’s motion because FMI has, once again, failed to meet its burden establishing it is entitled to summary judgment and that there remain genuine issues of material fact precluding summary judgment in this case. Additionally, Harmon contends that FMI’s motion was untimely in that sufficient discovery in this matter had not been completed prior to FMI’s filing of its motion, and that the trial court abused its discretion in failing to conduct a hearing on Harmon’s motion to amend its answer prior to hearing and ruling upon FMI’s summary judgment motion based the court’s misinterpretation of Local Rule 9.9.

“Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” Foundation Materials, Inc. v. Carrollton Mid-City Investors, 09-0414, p. 3 (La.App. 4 Cir. 8/26/09), 17 So.3d 513, 515 citing King v. Parish National Bank, 04-0337 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)). Appellate courts review grants of summary judgment de novo using the same standard applied by the trial coui’t in deciding the motion for summary judgment. Foundation Materials, Inc., 09-0414, p. 3, 17 So.3d at 515. According to that standard, summary judgment shall be granted 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.

We find that the affidavit of Tassin referencing and authenticating the contract documents, which were submitted and introduced into evidence by FMI in support of its motion for summary judgment, establish a prima facie case that RFMI’s motion should be granted. The amounts set forth in the July 2007 Demo Proposal and the August 2007 Piling Proposal Agreement, each signed and accepted by Harmon’s project manager, Barrah, and substantiated by the three invoices, total $110,820.00. Accordingly, Tassin’s affidavit and the attached contract documents sufficiently establish the existence of an obligation and/or agreement between the parties and the dollar amount FMI claimed due and owing.

Once the moving party has discharged the initial burden of establishing a prima facie case that it is entitled to summary judgment, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. When a motion for summary judgment is made and supported, the non-moving party may not rest on the mere allegations or denials of his pleadings, but the non-moving party’s response, by affidavits or with other competent evidence as provided by law, must set forth specific facts showing that a genuine issue of material fact exists for trial. La. C.C.P. art. 967 B. If the non-moving party does not so respond, “summary judgment, if appropriate, shall be rendered against him.” Id.

In the instant case, Harmon presented a three-page affidavit captioned “AFFIDAVIT OF CLIFTON HARMON” in opposition to FMI’s summary judgment motion. Included in the affidavit is the following:

BEFORE ME, undersigned Notary-Public, personally came and appeared Robert G. Rogers, a person of the full age of majority and resident of Louisiana, who in fulfillment of the requirements of LA. C.C.P. Art. 1702, declared under oath the following:
|fil. That this affidavit is based upon and supported by his personal knowledge and understanding;
2. That he is owner of Harmon Construction, L.L.C. (“Harmon”);.... [Emphasis added.]

The affidavit goes on to attest to other things, including several declarations which are made merely “upon [the] belief’ of the affiant. On the third page, at the end of the attestations, appears the signature of Clifton Harmon, Sr., not of the named affiant, Robert G. Rogers.

We find the opposing affidavit submitted by Harmon is inconsistent and fatally flawed and, accordingly, must be disregarded altogether as it does not meet the requirements of article 967 of the Louisiana Code of Civil Procedure, which provides in pertinent part:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein ... Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

|7The affidavit states that “Robert G. Rogers,” and not “Clifton Harmon” is the person who declared under oath that the affidavit is based upon and supported by his own personal knowledge and understanding of the preceding facts; however, the affidavit is signed by someone other than Mr. Rogers. Article 967’s requirement that affidavits should be made on personal knowledge must be strictly enforced. The affiant must affirmatively establish that he is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Barnes v. Sun Oil Co., 362 So.2d 761, 763 (La.1978). Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. Hibernia Nat. Bank v. Rivera, 07-962, pp. 8-9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 539. The purpose of the requirement of “personal knowledge” is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Id. Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment. Hibernia Nat. Bank, 07-962, p. 9, 996 So.2d at 540.

In the instant case, because we cannot reconcile from the affidavit who — Robert Rogers or Clifton Harmon, Sr. — has the requisite personal knowledge or is competent to testify as to the matters set forth in the body of the affidavit opposing FMI’s motion, we find that Harmon’s opposing affidavit fails to satisfy the requirements of La. C.C.P. art. 967 and must be disregarded in these summary judgment proceedings. We then turn to the other documents submitted by Harmon in support of its opposition to determine if it has raised a genuine issue of material fact to defeat FMI’s summary judgment motion.

| sApart from the affidavit, the only documents relied upon by Harmon in opposing FMI’s motion are its Exception, Answer, Amended and Supplemental Exceptions and Affirmative Defenses, and the Exceptions, Answer, and Amended Exceptions and Answer filed by WSC to Harmon’s third party demand made against it. As noted in article 967, a party opposing a properly supported motion for summary judgment cannot rely on the mere allegations or denials of his pleadings to defeat the motion, but rather, must by affidavit, deposition, or answer to interrogatories, set forth specific facts to show that a genuine issue of material fact exists. Harmon has failed to do so.

FMI properly supported its motion for summary judgment with the affidavit of Tassin and its reference/attachment of the contract documents establishing a prima facie case that it is entitled to the balance owed under its contract with Harmon. Harmon was required to submit evidence by affidavit or otherwise rebutting FMI’s claim and/or setting forth specific facts evidencing a genuine issue of material fact precluding summary judgment. Harmon’s fatally flawed and contradictory affidavit does not set forth specific facts showing that a genuine issue for trial exists. The partial summary judgment granted in FMI’s favor was correct.

Accordingly, we pretermit the other assignment of errors raised by Harmon on this appeal.

DECREE

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

AFFIRMED.

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

hi respectfully dissent.

There is a genuine issue of material fact which precludes summary judgment in this matter. See LA. C.C.P. ART. 966 B. That issue is whether Foundation Materials performed its obligations under the (sub)contract with Harmon Construction in order to collect contractual damages from Harmon. Foundation Materials is required to establish its performance both as movant and the party with the burden of proof at the trial. See LA. C.C.P. ART. 966 C(2).

On the one hand, Paul Tassin, the president of Foundation Materials, swears that his company is owed $70,475 “despite competition [sic] of all work” by his company under its contract. On the other hand, Clifton Harmon, Sr., the owner of Harmon Construction, swears that Foundation Materials “never completed the work it was required to complete under the Contract”.

Because I cannot determine on the basis of the competing affidavits whether the work required by the subcontract was completed or not, I disagree that summary judgment is proper.

      . In its third party demand, Harmon alleged that it had subcontracted with FMI in order to perform certain services under its original subcontract with WSC. Harmon further alleged that WSC had failed to perform under the terms of the original subcontract and that WSC was liable to Harmon for any damages that FMI may be awarded in this case.

      . It is the law of Louisiana that the intent of a pleading should be determined by its substance rather than its caption. Ratcliff v. Boydell, 566 So.2d 197, 200 (La.App. 4th Cir. 1990). We find this equally applies to affidavits.

      . La. C.C.P. art. 1702 sets forth the requirements necessary for the confirmation of a default judgment, which is not the proceeding involved in the instant case.

      . Article 967 requires that affidavits be made on the personal knowledge of the affiant. The affidavit must affirmatively establish that the affiant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). Personal knowledge encompasses only those facts which the affiant saw, heard or perceived with his own senses. Thus, no matter how apparently reliable, those matters occurring "upon belief” of the affiant are universally rejected as a substitute for personal knowledge and therefore cannot form the basis for defeating a motion for summary judgment.

      . This sworn statement is aligned with the unsworn but well-pleaded answer and recon-ventional demand to the third party demand filed by the general contractor.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Johnny Manuel POLANCO.
    No. 11-158.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant — Johnny Manuel Polanco.
    Cecil R. Sanner, District Attorney, Cameron, LA, Winfred Thomas Barrett, III, Lake Charles, LA, for Plaintifi/Appellee— State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

1 ]For the reasons discussed in the consolidated case of State of Louisiana v. Johnny Manuel Polanco, 11-157 (La.App. 3 Cir. 6/1/11), 66 So.3d 643, the judgment of the trial court is affirmed.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Harold BROOKS v. LOUISIANA DEPT. OF PUBLIC SAFETY & CORRECTIONS.
    No. 11-71.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    Rehearing Denied Aug. 10, 2011.

      Jennifer Del Murray, Louisiana Dept, of Public Safety & Corrections, Baton Rouge, LA, for Defendant/Appellant, Louisiana Dept, of Public Safety & Corrections.
    Chad Patrick Pitre, Attorney at Law, Opelousas, LA, for Plaintiff/Appellee, Harold Brooks.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| Harold Brooks was arrested by State Trooper Timothy Barlow on March 28, 2010 for violating La.R.S. 14:98, operating a vehicle while intoxicated. Barlow stopped Brooks on Louisiana Highway 182 in St. Landry Parish after he noticed Brooks crowding both the center line and the fog line of the road. Brooks exited his vehicle in an unsteady fashion and gripped the bed rail of his Chevrolet S-10 pickup to steady himself. Brooks consented to a field sobriety test, but was unable to follow Barlow’s instructions. Barlow administered an intoxilyzer test that registered Brooks’ blood alcohol level at 0.123%. Barlow was then arrested Brooks and seized Brooks’ commercial driver’s license. Barlow issued Brooks a temporary receipt of license in accordance with La.R.S. 32:667(A)(1). At that time, Brooks signed a Request for Administrative Hearing form.

On March 31, 2010, the District Attorney for the 27th Judicial District dismissed the charges against Brooks.

Brooks was notified on May 24, 2010, that his administrative hearing was set for June 29, 2010. His attorney filed a motion to dismiss the administrative hearing. That motion was granted by the Administrative Law Judge on June 10, 2010. On June 23, Brooks requested rehearing of the order terminating his administrative adjudication. Because the request for rehearing was filed more than ten days after the June 10 order, it was denied pursuant to La.R.S. 49:959, the provision of the Administrative Procedures Act governing rehearing. That section mandates that requests for rehearing must be filed within ten days.

When his request for rehearing was denied, Brooks filed suit in the 27th Judicial District Court, seeking judicial review of his adjudication and reinstatement of his driver’s license. The State, through the Department of Public Safety and Corrections, Office of Motor Vehicles (the State), filed exceptions of no 12cause of action and lack of subject matter jurisdiction. It argued that Brooks’ withdrawal of his request for an administrative hearing and his failure to timely request rehearing constituted a failure to exhaust his administrative remedies; therefore, the district court was without jurisdiction to hear the matter.

The trial court maintained the State’s exceptions. It reasoned that Brooks’ license had been suspended pursuant to La. R.S. 32:667, which did not require a conviction as a condition precedent to the suspension of his license. A judgment to that effect was signed by the trial court on August 18, 2010. Brooks then sought a new trial on the grounds that Section 667 requires that a driver be convicted before his license is suspended. The trial court granted the request for new trial and ruled in favor of Brooks. The State was ordered to reinstate Brooks’ commercial driver’s license.

The State appeals this ruling. For the reasons that follow, we affirm.

ANALYSIS

The suspension of drivers’ licenses for various offenses is governed by several statutes. Generally, La.R.S. 32:667(A) requires the seizure of a driver’s license by an officer arresting that driver for violation of any statute or ordinance prohibiting the operation of a motor vehicle while intoxicated when the driver either refuses a chemical test or submits to a test that registers his blood alcohol level at 0.08% or above. If the driver is younger than 21, the blood alcohol level threshold for license seizure is 0.02%. Section 667 also provides that a driver can request an administrative hearing to have his license reinstated. If he does not request an administrative hearing within 15 days of arrest, his license is suspended for various periods, depending upon the driver’s status in terms of previous violations, his refusal to submit to chemical testing, the amount of alcohol in his Rblood if he does submit to testing, and whether he was involved in an accident that resulted in serious bodily injury or fatality. La.R.S. 32:667(B).

The seizure of the driver’s license is mandated by subsection (A) upon his arrest. The suspension under subsection (B) is premised upon the driver’s failure to request an administrative hearing, or upon an adjudication that the license should be suspended. However, subsection (H) provides that when a driver’s license has been seized, suspended, or revoked in connection with “charges of violation of a criminal law, and the charge or charges do not result in a conviction, plea of guilty, or bond forfeiture, the person charged shall have his license immediately reinstated” if he can demonstrate that the appropriate prosecutor either dismissed the charges or has permanently refused to prosecute or that he has been acquitted.

Because the charges against Brooks were dismissed by the district attorney, the State was required to immediately reinstate his license under the plain terms of subsection (H).

The State points out that La.R.S. 32:414.2 governs the disqualification of a commercial driver’s licensee from operating a commercial motor vehicle. Section 414.2 ascribes to commercial drivers a much higher standard of conduct behind the wheel than other laws impose upon non-professionals. For instance, a commercial driver’s license holder has committed a “serious traffic violation” when he is convicted of exceeding the speed limit by 15 miles per hour or more, when he “tailgates” another vehicle, when he fails to stop at a railroad grade crossing when required, or if he fails to negotiate a railroad grade crossing due to insufficient undercarriage clearance. La.R.S. 32:414.2(A)(1)(d). These “serious traffic 14violations” can all result in the disqualification of a driver from operating a commercial motor vehicle.

Section 414.2 specifically provides for the circumstance of a driver convicted of operating a motor vehicle while intoxicated or who refuses chemical testing. La.R.S. 32:414.2(A)(2), (3), and (4). These statutes prescribe the period of disqualification to drive a commercial vehicle for licensees who are convicted of intoxicated driving.

However, the State argues, La.R.S. 32:414.2(A)(1)(b)(i) does not require a conviction. That statute reads (emphasis theirs):

There shall be no economic hardship license to operate a commercial motor vehicle. Upon receipt of a conviction of an offense which requires disqualification of commercial driving privileges, the department shall disqualify the individual from commercial driving privileges. A disqualification shall be imposed even if the conviction is set aside or dismissed pursuant to any provision of the Code of Criminal Procedure unless the conviction is set aside or dismissed because of an appeal of the conviction. The disqualification shall become part of the individual’s official operating record.

Thus, the dismissal of the charges does not relieve Brooks of his suspension, according to the State’s interpretation of the statute. We disagree. The statute does not provide for disqualification when the charges are dismissed, but rather if the conviction is dismissed, unless it was set aside or dismissed because of an appeal. Both the phrases “set aside” and “dismissed” refer to “conviction.”

Our interpretation is reinforced by other subsections of La.R.S. 32:414.2. Subsection (A)(4)(a)(i) provides for a one-year disqualification for a first conviction for operating a noncommercial motor vehicle with a blood alcohol level of 0.08% or higher. Subsection (A)(4)(a)(ii) provides for a one-year disqualification for a first conviction for operating a commercial motor vehicle Rwith a blood alcohol level of between 0.04 and 0.08 percent. The statute defines “conviction” as:

[A]n unvacated adjudication of guilt or a determination in a court of original jurisdiction or by an authorized administrative tribunal that a person has violated or failed to comply with the law; an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court; a plea of guilty or nolo contendere accepted by a court; the payment of a fine or court costs; or a violation of a condition of release without bail, regardless of whether the penalty is rebated, suspended, or probated. A conviction shall occur regardless of whether a person is referred to a remedial or pretrial diversion program as an alternative to the imposition of a penalty, fine, or other sanction.

La.R.S. 32:414.2(A)(9)(a).

None of these circumstances include the dismissal of charges by the district attorney except by pretrial diversion, and the record does not reflect that Brooks has been diverted. Because Brooks was not convicted of operating a motor vehicle while intoxicated, he is not disqualified from operating a commercial motor vehicle under La.R.S. 32:414.2.

Trucking is heavily regulated by the federal government. The State asserts that Brooks’ license is subject to suspension in accordance with federal regulations. Specifically, 49 C.F.R. § 383.51(b) provides for the disqualification of a driver for certain offenses. But these offenses only include convictions for operating a motor vehicle while intoxicated or refusing to be tested. The definition of “conviction” for purposes of the federal regulations is identical to the definition adopted by Louisiana is La.R.S. 32:414.2(A)(9)(a). The problem with the State’s argument lies in the fact that Brooks was not adjudicated by any tribunal as having violated any law. He was not convicted under the definition of the Louisiana Revised Statutes or the Code of Federal Regulations.

1 (¡Lastly, the State argues that the suspension of Brooks’ license is supported by the “implied consent” statute, La.R.S. 32:661. In pertinent part, the statute reads:

When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.

La.R.S. 32:661(C)(1)(c).

This argument fails. WTiile it is true that a driver’s license can be suspended if he submits to chemical testing and his blood alcohol concentration equals or exceeds 0.08%, the license must be immediately reinstated if the charges are dismissed. Section 661(C) merely requires that the State advise a driver of the fact that his driving privileges can be suspended if he registers a 0.08% blood alcohol level under La.R.S. 32:667.

CONCLUSION

Brooks’ license was suspended once testing registered his blood alcohol level at 0.123%, by virtue of La.R.S. 32:667(B). However, when the district attorney dismissed the charges against Brooks, the State was required to reinstate his license immediately. The judgment of the trial court is affirmed. All costs of appeal, in the amount of $499.50, are taxed to the State of Louisiana through the Department of Public Safety and Corrections, Office of Motor Vehicles pursuant to La. R.S. 13:5112.

AFFIRMED.


author: MICHAEL E. KIRBY, Judge.

text:
    Peterson M. YOKUM, Polly Elizabeth Anderson, Vieux Carre Property Owners, Residents & Associates, Inc., and French Quarter Citizens for the Preservation of Residential Quality v. NICHOLAS S. KARNO II, INC. d/b/a Old Opera House; Karno Companies, Inc.; James River Insurance Company; TUV Insurance Company; Mintz & Mintz Realty, LLC; 544 Funky, LLC d/b/a Funky 544 Rhythm and Blues Cafe’; Anna Medo; Jude Marullo; and XYZ Insurance Company.
    No. 2010-CA-1239.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 2011.
    Rehearing Denied July 13, 2011.

      Stuart H. Smith, Alan Alario II, Michael G. Stag, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Peter J. Butler, Jr., Richard G. Passler, Barrett R. Stephens, Breazeale Sachse & Wilson, LLP, New Orleans, LA, for Defendant/Appellee (Nicholas S. Karno, II, Inc. d/b/a Old Opera House).
    (Court Composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

. , , „ |tPlaintiffs Vieux Carre Property Own- „ ., , , . . , T ers, Residents, and Associates, Inc. (“VCPORA”) and French Quarter Citizens for the Preservation of Residential Quality, Inc. (“FQC”), appeal the district court’s February 10, 2010 judgment insofar as it granted the exception of no right of action asserted by defendant, Nicholas S. Karno, II, Inc., d/b/a Old Opera House (“Old Opera House”), dismissing with prejudice these plaintiffs’ claims against Old Opera House. For the reasons that follow, the trial court judgment is affirmed, in part, and reversed, in part, and the case is remanded to allow plaintiffs to amend their petition.

The two plaintiffs that are appellants herein, as well as Peterson M. Yokum and Polly E. Anderson, filed a petition for damages and injunctive relief against Old Opera House and numerous co-defendants, for injuries allegedly sustained as a result of loud noises emanating the premises of Old Opera House located at 601 Bourbon Street.

|2In the petition, the plaintiffs allege that Mr. Yokum and Ms. Anderson reside at 723 Toulouse Street, New Orleans, which is located in the French Quarter in an area zoned VCC-2, or “Vieux Carre Commercial District-2 Mixed residential.” They allege that Old Opera House has violated La. R.S. 26:90 A(14)(a) and La. R.S. 26:286 A(14)(a), which make it unlawful for a person holding a retail dealer permit under the alcoholic beverage control law to play unreasonably loud music. The plaintiffs further allege that Old Opera House has violated the municipal noise ordinances for the City of New Orleans, specifically City Code Section 66-202, governing the maximum permissible sound levels, and City Code Section 66-208(5), governing the specific nuisance noises that are prohibited.

In response, Old Opera House filed a peremptory exception of no right of action, arguing that plaintiffs VCPORA and FQC, as private, non-governmental, non-profit corporations, lack standing to seek injunc-tive relief because they have no real and actual interest in the action. Following a hearing, the trial court granted the exception of no right of action, dismissing with prejudice the claims of VCPORA and FQC.

The sole issue on appeal is whether the trial court erred by finding that the VCPORA and FQC have no right of action against Old Opera House.

“Whether a plaintiff has a right of action is a question of law subject to de novo review.” Lutz Oil & Gas, L.L.C. v. Pride Energy Company, 2007-1291, p. 3 (La.App. 4 Cir. 10/15/ 08), 998 So.2d 128, 130 (citing Oakville Community Action Group v. Plaquemines Parish Council, 2005-1501, p. 3 (La.App. 4 Cir. 9/27/06), 942 So.2d 1152, 1155). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Id. at pp. 3-4, 998 So.2d at 130 (citing Badeaux v. Southwest Computer Bureau, Inc., 2005-612, 2005-719, p. 6 (La.3/17/06), 929 So.2d 1211, 1217).

It is well-settled that in Louisiana a plaintiff must have a real and actual inter-est in the action he asserts. La. C.C.P. art. 681. Without a showing of a special interest that is separate and distinct from the interest of the general public, a plaintiff may not proceed. League of Women Voters of New Orleans v. City of New Orleans, 881 So.2d 441, 447 (La.1980).

Whether an association has standing to bring suit on behalf of its members involves a three-part test articulated by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 482 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In Hunt, the Supreme Court held that an association will have standing to bring a suit solely on behalf of its members and in the absence of injury to itself when: “(a) its members would otherwise have standing sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief sought requires the participation of individual members in the lawsuit.” Hunt, supra, 432 U.S. at 343, 97 S.Ct. at 2441.

|4The Louisiana Supreme Court, adopting the Hunt criteria in Louisiana Hotel-Motel Association v. Parish of East Baton Rouge, 385 So.2d 1193, 1196-97 (La.1980), held that to satisfy the first Hunt criterion, the association must establish present or probable future harm to the members. Id., 385 So.2d at 1197; see also Louisiana Associated General Contractors, Inc. v. State of Louisiana, through Div. of Admin., Office of State Purchasing, 95-2105 (La.3/8/96), 669 So.2d 1185, 1191.

This Court recently held that VCPORA and FQC lacked standing to enjoin alleged violations of city zoning ordinances in Vieux Carre Property Owners, Residents and Associates, Inc. v. Hotel Royal, L.L.C., 2009-0641 (La.App. 4 Cir. 2/3/11), 55 So.3d 1, rehearing granted, (La.App. 4 Cir. 1/5/11); writ denied 2011-0258 (La.4/29/11), 62 So.3d 112.

In Vieux Carre Property Owners, VCPORA and FQC filed suit to enjoin the owners of Hotel Royal from expanding and converting their small guest house into a sprawling hotel with a bar and diner, via the annexation and renovation of an adjacent apartment building. The petitioners claimed that the renovation violated Section 8.10.2 of the Comprehensive Zoning Ordinances of the City of New Orleans, which permitted an existing hotel in the Vieux Carre to be structurally altered or extended -within its existing boundaries provided there was no increase in the number of sleeping rooms or change in use. They alleged that allowing the property’s expansion threatened “the architectural, historical, cultural and aesthetic integrity, and values of the Vieux Carre” and would “create additional traffic 1 ¡^resulting in congestion, noise, and other activities destructive to the French Quarter.” The trial court granted an exception of no right of action asserted by the property owners, dismissing VCPORA and FQC’s claims.

In affirming the trial court, this Court determined that VCPORA and FQC did not satisfy the first Hunt criterion because they failed to establish harm that was “ ‘present or probable for the future’ ” for its members and failed to demonstrate ‘“clear, direct economic injury to [its] members.’ ” Vieux Carre Property Owners, supra, 2009-0641, p. 2, 55 So.3d at 7 (citations omitted). The Court further acknowledged that “[a]s the Hunt test is phrased in conjunctive terms, the failure to satisfy any part of the inquiry is disposi-tive, and further examination is unnecessary.” Id.

Here, VCPORA and FQC fail to allege in their petition the identity of a single member of either association that is within listening distance of Old Opera House that has suffered actual damage either to his(her) person or to his(her) property as a result of Old Opera House’s alleged illegal conduct. Although the petitioners allege that Mr. Yokum and Ms. Anderson live in close proximity to the Old Opera House, they do not allege that either of them is a member of either association. Moreover, the VCPORA and FQC also fail to allege or demonstrate that either association has, itself, sustained actual damage as a result of Old Opera House’s activities. Thus, we find VCPORA and FQC have not satisfied the first part of the Hunt analysis.

|fiThe second inquiry of the analysis, whether the interests VCPORA and FQC seek to protect are germane to the organizations’ purposes, is arguably met. The petition alleges that VCPORA’s mission is to “preserve the Vieux Carre as a national treasure, to maintain its quaint and distinctive character, and to achieve in that historic, living neighborhood, a quality of life which can be enjoyed by its residents, fellow citizens, businesses, and visitors.’ ” Likewise it alleges that FQC’s mission is “to preserve the residential quality in the French Quarter, as well as the historical character and architecture in the Vieux Carre.’ ” However, satisfaction of only one of the criteria to the three-part analysis is insufficient to establish standing. See Vieux Carre Property Owners, supra, 2009-0641, p. 11, 55 So.3d at 11.

As to the third inquiry, whether the claim asserted or the relief sought by the association requires the participation of the individual members, we acknowledge that the injunctive relief sought in this case may not necessarily require the participation of the individual members. See Louisiana Associated General Contractors, Inc., supra, 95-2105, at p. 7, 669 So.2d at 1191 (noting that “because the suit merely seeks injunctive and declaratory relief, as opposed to monetary damages on behalf of individual contractors, neither the claim asserted nor the relief requested require the participation of individual members in the lawsuit”). Nonetheless, even if VCPORA and FQC satisfy the third criterion, they fail to establish standing because the first criterion has not been met.

17La. C.C. P. art. 934 provides that when the grounds of objection pleaded by a peremptory exception, such as no right of action, may be removed by amendment of the petition, the judgment sustaining the exception “shall order such amendment within the delay allowed by the court.” Therefore, the case shall be remanded to allow the VCPORA and FQC to amend the petition, if they can, to allege facts necessary to satisfy the first criterion of the Hunt test.

Accordingly, for the reasons stated above, the February 10, 2010 judgment is affirmed, in part, to maintain the granting of the exception of no right of action, and reversed, in part, insofar as it dismissed VCPORA’s and FQC’s claims with prejudice. Further, the case is remanded for the trial court to allow VCPORA and FQC to amend the petition, if they can, within a delay set by the court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

      . Plaintiffs also named Funky 544, L.L.C., d/b/a Funky 544 Rhythm and Blues Café; Anna T. Medo, the owner and lessor of the premises located at 544 Bourbon Street, where Funky 544 is located; Jude Marullo, the manager of the Funky 544; and XYZ Insurance Company, the insurer for Funky 544, as defendants. The February 10, 2010 judgment dismissed the plaintiffs’ claims against Funky 544, Anna Medo and Jude Ma-rullo on an exception of improper cumulation of actions. The dismissal of the plaintiffs’ claims against these defendants is not at issue in this appeal.

      . Old Opera House also raised exceptions of • improper cumulation of actions, no cause of action, and vagueness. The February 10, 2010 judgment denied as moot the exception of no cause of action and dismissed as moot the exception of vagueness. The judgment granted the exception of improper cumulation of actions raised by defendants Funky 544, Anna Medo and Jude Marullo. See n. 1, supra.


author: COOKS, Judge. AMY, J.,

text:
    Dwayne OLIVIER v. CITY OF EUNICE.
    No. 10-1433.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.

      Kevin L. Camel, Cox Cox Filo Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellant, Dwayne Olivier.
    D. Heath Trahan, Randall B. Keiser, Keiser Law Firm, P.L.C., Alexandria, LA, for Defendant/Appellee, City of Eunice.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, J. DAVID PAINTER and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

11 Dwayne Olivier injured his back on October 16, 2006, while in the course and scope of his employment as a firefighter for the City of Eunice (the City). He was treated for his back injury by Dr. Fraser Landreneau, an orthopedist. Mr. Olivier suffered from herniated disks at the L4-5 and L5-S1 levels. In May of 2007, Dr. Landreneau recommended lumbar surgery, but Mr. Olivier was unable to undergo the surgery due to aortic valve stenosis, a serious heart condition. In Dr. Landre-neau’s opinion, Mr. Olivier was disabled from performing any gainful employment.

On October 17, 2007, Mr. Olivier’s sick leave expired, and he began receiving temporary total disability (TTD) benefits at the maximum compensation rate. On that same date, the City terminated Mr. Olivier’s employment. Mr. Olivier then applied for and later began to receive disability retirement benefits from the Firefighter’s Retirement System, effective the date of his termination.

The City was insured for workers’ compensation claims through the Louisiana Municipal Risk Agency, whose claim administrator is Risk Management, Inc. (hereafter RMI). In September of 2007, RMI hired Strategic Case Management to perform a vocational assessment of Mr. Olivier. Tiffany Harrington, the vocational counselor, found in her initial report that Mr. Olivier was permanently restricted to light duty due to his back injury. She also noted his heart condition, for which he was under treatment. Ms. Harrington determined that the City did not have any alternative employment for Mr. Olivier. At that point, she conducted a labor market survey. Eventually, Mr. Olivier’s file was closed in April of 2008, without having located a position fitting his work restrictions.

Because Mr. Olivier’s heart condition made it too risky to perform the recommended back surgery, Dr. Landreneau released Mr. Olivier from his care in 12August 2007. He was referred to Dr. . Reginald Ardoin, a pain management specialist, for treatment of his chronic pain.

In January of 2009, RMI again began vocational services on Mr. Olivier. Ms. Harrington met with Mr. Olivier and was instructed he was no longer seeing Dr. Landreneau, but was scheduled to see Dr. Ardoin. In her letter to Mr. Olivier, Ms. Harrington notes that Dr. Landreneau had previously approved some jobs with a light duty restriction. Although he was no longer treating Mr. Olivier, Ms. Harrington sent job leads to Dr. Landreneau seeking his approval. Even though RMI during this time approved and paid for Mr. Olivier’s treatment with Dr. Ardoin, Ms. Harrington never contacted Dr. Ardoin for his approval of any potential jobs. Nor did Ms. Harrington contact Dr. Jon Le-leux, who was treating Mr. Olivier for his heart condition, to ascertain if that infirmity would affect his ability to return to work. Ms. Harrington eventually presented Mr. Olivier with a list of “available” positions.

Mr. Olivier applied for all the potential jobs listed and was told by several employers he was not qualified and/or the job was not actually available. Mr. Olivier did not receive any interviews or job offers.

On September 3, 2009, RMI terminated Mr. Olivier’s TTD benefits and began paying him supplemental earnings benefits (SEB) at $279.62 per week. The amount of the SEB was determined by averaging the jobs on the list provided by Ms. Harrington in March of 2009. This was done despite the fact that a number of jobs on the list were not available.

On May 22, 2007, Mr. Olivier filed a disputed claim for compensation with the Office of Workers’ Compensation. He sought indemnity payments based on the City’s reduction of his pay during the fifty-two week sick-leave period following the accident. Mr. Olivier also sought penalties and attorney fees due to RMI’s failure to ^reimburse mileage expenses on several occasions.

On November 15, 2007, the City filed an answer in which it sought an offset pursuant to La.R.S. 28:1225. On October 16, 2008, the City amended its answer to specifically state that it was seeking an offset based on Mr. Olivier’s receipt of disability retirement benefits.

The parties then filed cross-motions for partial summary judgment with respect to Mr. Olivier’s claim for SEB during the first year following the accident due to the City’s reduction of his sick leave pay. The Workers’ Compensation Judge (WCJ) denied the City’s motion and granted Mr. Olivier’s motion, awarding SEB for the period January 2007 through October 2007.

On September 17, 2009, Mr. Olivier amended his disputed claim for compensation to include a claim for TTD benefits stemming from the reduction of benefits to SEB on September 3, 2009. Mr. Olivier also sought penalties and attorney fees for the allegedly improper reduction in benefits.

Trial on the merits was held on August 16, 2010. The issues were the reduction in benefits from TTD to SEB, the alleged failure to timely reimburse medical mileage claims, and the City’s request for an offset pursuant to La.R.S. 23:1225. The WCJ rendered judgment finding the reduction to SEB was proper, but the rate was incorrect. Penalties in the amount of $2,000.00 and reasonable attorney fees in the amount of $5,000.00 were awarded. The WCJ denied the request for penalties and attorney fees for alleged late payment of mileage expenses, finding Mr. Olivier was unable to prove his entitlement to same. The judgment also provided that “La.R.S. 23:1225, rather than La.R.S. 11:2258(D), shall govern the amount of any offset due to the defendants after the new SEB rate is used in the calculation.” Mr. Olivier has appealed the WCJ’s judgment, asserting the following assignments of error:

|41. The WCJ failed to use the correct average weekly wage.
2. The WCJ erred in finding the City of Eunice met its burden of proving suitable jobs were available within Mr. Olivier’s physical capabilities. The City failed to obtain any release to return to work from claimant’s treating physicians, and failed to present any evidence to establish Mr. Olivier’s disability status as of September 3, 2009.
3. The WCJ erred in holding the City of Eunice was entitled to an offset under La.R.S. 23:1225 due to Mr. Olivier’s receipt of disability retirement benefits from the Firefighter’s Retirement System.
4. The WCJ awarded inadequate attorney fees for work performed by claimant’s counsel.

I. Average Weekly Wage.

We find no error in the WCJ’s calculation of average weekly wage. Apparently, Mr. Olivier contends the trial court should have used an annual salary of $38,900.00, rather than $38,580.00. The transcript indicates the parties stipulated that $38,580.00 was Mr. Olivier’s correct annual salary, which was what the WCJ used in his calculation. When the $3,600.00 in supplemental pay is added, it results in an actual salary upon which benefits are based of $42,180.00.

II. Reduction from TTD to SEB.

A workers compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment because of his physical condition. Greis v. Lake Charles Mem’l Hosp., 97-1258 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, writs denied, 98-937, 98-939 (La.5/15/98), 719 So.2d 467.

Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). “The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly | searning capacity.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 9 (La.7/1/97), 696 So.2d 551, 556; La.R.S. 23:1221(3)(a). As noted by our supreme court in Banks, 696 So.2d at 556 (quoting Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993)), “[t]he purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.”

Once the claimant has met this initial burden of proving entitlement to SEB, the burden of proof shifts to the employer if it wishes to prove the employee is earning less than he or she is able to earn. The employer bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in the employee’s or the employer’s community or reasonable geographic region. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). In Banks, 696 So.2d at 557, the supreme court held an employer may discharge its burden of proving job availability by establishing, at a minimum, the following:

(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

The Banks court further held that a “suitable job” was a position that claimant was not only physically capable of performing, but one that also fell within the limits of claimant’s age, experience, and education, unless the employer or potential employer was willing to provide any additional necessary training or education. Id,.; see also Lacaze v. Alliance Compressors, 03-1566 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150; City of Eunice v. Carrier, 02-1132 (La.App. 3 Cir. 02/19/03), 844 So.2d 900, writ denied, 03-813 (La.5/09/03), 843 So.2d 409. The courts have clearly provided that this analysis is “necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker[s’] compensation law is to be liberally construed in favor of finding coverage.” Daigle, 545 So.2d at 1007; see also Banks, 696 So.2d at 556, and Manpower Temp. Servs. v. Lemoine, 99-636 (La.App. 3 Cir. 10/20/99), 747 So.2d 153, 157.

We find the record in the present case reveals Mr. Olivier was not provided with appropriate vocational services. It is clear that Ms. Harrington failed to contact Dr. Ardoin. RMI was paying Dr. Ardoin to treat claimant during the time the job list was compiled. Ms. Harrington also did not contact Dr. Leleux to assess how Mr. Olivier’s heart condition would affect his ability to return to work. In a February 10, 2009 letter to claimant, Ms. Harrington notes that Dr. Landreneau had approved some jobs based on light duty restrictions, but the approval to which she refers was provided some eighteen months earlier. Despite the fact that he was no longer Mr. Olivier’s treating physician, in March of 2009, Ms. Harrington sent job leads to Dr. Landreneau for his approval. In Montgomery v. Lafayette Parish School Board, 09-643, p. 8 (La.App. 3 Cir. 12/9/09), 31 So.3d 1071, 1075, mit denied, 10-1069 (La.9/3/10), 44 So.3d 686, we specifically noted that “[ijmplicit in the ‘availability’ requirement of Banks is physician approval. See East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99), 746 So.2d 715.” In this case, the record is clear that neither of Mr. Olivier’s treating physicians, Dr. Ardoin and Dr. Leleux, were contacted to approve the jobs provided by Ms. Harrington. Thus, Ms. Harrington failed to get physician approval as required by Banks and its progeny.

Further, the record reveals that the list of jobs provided to Mr. Olivier were not actually available when he received the list. When Mr. Olivier applied for the | -/dispatcher position on the list, he was told that he was not qualified and that the job was not available. Two other employers told him he was physically incapable of performing the job. Another allegedly “available” position was not actually open, but the employer would only keep applications on file. The record revealed that despite applying for these allegedly “available” jobs, Mr. Olivier received neither a job offer nor even an interview.

A review of the record clearly establishes the City failed to carry its burden of proving Mr. Olivier was physically able to perform a certain job and that the job was offered and available to him. The WCJ committed clear error in finding the jobs provided to Mr. Olivier were “suitable” or “available” under the Banks standard. Accordingly, the City improperly reduced Mr. Olivier from TTD benefits to SEB. Therefore, we reverse this portion of the judgment and award TTD benefits to Mr. Olivier at the maximum compensation rate based on an annual salary of $42,180.00.

III. Offset.

The WCJ found that the City was entitled to offset Mr. Olivier’s indemnity benefits due to his receipt of disability retirement benefits from the Firefighters’ Retirement System (FRS). However, the WCJ did not specify the amount of the offset, indicating in the judgment that the parties were to request a hearing if they could not agree on the amount of the offset due. The parties also disagree as to whether any offset due is pursuant to La. R.S. 23:1225 or another offset provision, La.R.S. 11:2258(D).

A. Which Offset Statute is Applicable.

Louisiana Revised Statutes 23:1225(0(1) provides for an offset of workers’ compensation benefits when other specified benefits are also being received by the employee. The statute provides for an offset as follows:

If an employee receives remuneration from:

|s(a) Benefits under the Louisiana Workers’ Compensation Law.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers’ compensation benefits,
then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.

It is well established in our jurisprudence that La.R.S. 23:1225(C)(1) is a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed. Jones v. Gen. Motors Corp., 03-1766 (La.4/30/04), 871 So.2d 1109 (citing Cousins v. City of New Orleans, 608 So.2d 978 (La.1992)); see also Mouton v. Walgreen Co., 07-1403 (La.App. 3 Cir. 4/2/08), 981 So.2d 75. “An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit.” Id. at 88 (emphasis added).

Mr. Olivier argues that La.R.S. 11:2258(D) applies instead of La.R.S. 23:1225(C). Louisiana Revised Statutes 11:2258(D) provides as follows:

Notwithstanding the provisions of R.S. 23:1225, when any member becomes disabled and is entitled to a disability benefit from the retirement system, the disability benefit payable for any month that the member is also receiving worker’s compensation benefits shall be reduced, if necessary, so that the total of both benefits shall not exceed the member’s average final compensation. The benefit to be paid shall be computed such that the disability benefit from the retirement system and the worker’s compensation benefit shall each be paid in respect to the ratio that each individual benefit bears to the total of both benefits, to which the member would be entitled prior to reduction, multiplied by the average final compensation of the member.

In response, the City argues La.R.S. 23:1225(C) is not trumped by the | flprovisions of La.R.S. 11:2258(D). However, the language of La.R.S. 11:2258(D) plainly provides “[njotwithstanding the provisions of R.S. 23:1225.” Further, as Mr. Olivier notes, La.R.S. 11:2258(D) specifically addresses benefits provided under the FRS, as opposed to La.R.S. 23:1225, which is a general provision applying to disability benefit plans of all types. It is well understood in the area of statutory construction that the more specific statute will control over the more general one. Dupont v. State, Dep’t. of Transp. and Dev., 01-188 (La.App. 3 Cir. 10/3/01), 797 So.2d 776. Therefore, we find any offset the City is entitled to is pursuant to La. R.S. 11:2258(D).

B. Amount of Offset Due.

Initially, Mr. Olivier argued that the City failed to introduce any evidence to calculate the offset which the City asserts it is owed, and this failure is fatal to its request. However, at oral argument, counsel for Mr. Olivier acknowledged the record contained the necessary information to calculate the offset due. Both parties were allowed to file supplemental briefs on the issue of the calculation of the amount of offset due.

To determine the amount of an offset under La.R.S. 11:2258(D), the following figures are necessary: (1) the average final compensation, (2) the amount of the maximum FRS benefit, and (3) the amount of workers’ compensation benefits. The parties agree Mr. Olivier’s average final compensation is $3,169.69 per month. The second figure is the maximum FRS benefit, which is sixty (60) percent of the average final compensation, or $1,901.81. This is the maximum amount of retirement benefit to which Mr. Olivier is entitled, before any reduction for the receipt of workers’ compensation benefits.

The final figure is the monthly amount of workers’ compensation benefits. Mr. 1 mOlivier is entitled to $454.00 per week in workers’ compensation benefits, or $1,967.33 per month ($454.00 multiplied by fifty-two (52) weeks, divided by twelve (12) months). Thus, the combined benefit, reached by adding the FRS benefits ($1,901.81) and the workers’ compensation benefit ($1,967.33), is $3,869.14. We next determine the percentages that the FRS benefits and the workers’ compensation benefits are to the combined benefits. The FRS benefits amount ($1,901.81) is 49.15 percent of the combined benefits, and the workers’ compensation benefits amount ($1,967.33) is 50.85 percent of the combined benefits. The workers’ compensation benefits percentage (50.85%) is then multiplied against the average final compensation ($3,169.69) to get the reduced workers’ compensation benefit amount of $1,611.79 per month. Thus, pursuant to La.R.S. 22:1185(D), the City would be entitled to an offset of $355.54 per month based on Mr. Olivier’s entitlement to $1,967.33 per month in workers’ compensation benefits.

IV. Inadequate Attorney Fees.

Lastly, it is contended the award of $5,000.00 in attorney fees was inadequate to reflect the amount of work performed by Mr. Olivier’s counsel. We find the WCJ did not abuse its vast discretion in its award of attorney fees.

V. Additional Attorney Fees for Work on Appeal.

Finally, we address Mr. Olivier’s request for additional attorney fees for work necessitated by this appeal. “Because attorney fees were correctly awarded below, failing to award increased attorney fees for the additional work required for this appeal would be inconsistent with that judgment.” Frank v. Kent Guidry Farms, 01-727, p. 5 (La.App. 3 Cir. 5/8/02), 816 So.2d 969, 973, writ denied, 02-1608 (La.6/27/03), 847 So.2d 1273. Given the amount of work counsel for Mr. Olivier performed on appeal, we grant an additional $5,000.00 in attorney fees.

DECREE

For the foregoing reasons, we reverse the portion of the WCJ’s judgment improperly reducing Mr. Olivier from TTD benefits to SEB, and award Mr. Olivier TTD benefits at the maximum compensation rate based on an annual salary of $42,180.00. The portion of the judgment granting the City an offset pursuant to La.R.S. 23:1225(C) is reversed. The judgment is amended to award the City an offset pursuant to La.R.S. 22:1185(D) of $355.54 per month. The judgment is also amended to award Mr. Olivier an additional $5,000.00 in attorney fees for the work performed on appeal. In all other aspects the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissents and assigns reasons.

|TI respectfully dissent from the majority opinion.

Significantly, I differ from the majority insofar as I would affirm the award of supplemental earnings benefits. I find the claimant’s argument as to the propriety of temporary total disability benefits does not accurately reflect the necessary burden of proof. Instead, La.R.S. 23:1221(1)(c) dictates that the claimant prove by clear and convincing evidence that he or she:

is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

(Emphasis added.) Rather than being physically unable to engage in any employment, the claimant has been released to return to light duty. Although the claimant has a notable heart condition, he failed to establish what impact this has on his ability to work. Instead, on the issue of the ability to work, the record only includes the claimant’s return to light duty status. While I differ from the majority on the award of TTD benefits rather than SEBs, I agree that the employer failed to adequately establish the availability of jobs suitable to the claimant as needed for reduction of the amount due under La.R.S. 23:1221(3)(c)(i). Accordingly, I would affirm the award of SEBs, but I would amend the judgment to award the indemnity benefit at the full rate.

|2I also differ from the majority’s determination regarding the offset issue. In my opinion, La.R.S. 23:1225 is applicable to the establishment of the compensation rate offset, whereas La.R.S. 11:2258 dictates how disability retirement benefits are to be paid by the Firefighters’ Retirement System. Accordingly, I would affirm the workers’ compensation judge’s ruling in this respect. Further, I would not calculate the amount of any offset due insofar as the workers’ compensation judge specifically refrained from doing so in anticipation of the parties’ joint calculation of the applicable figure. I would remand this issue for the workers’ compensation judge’s consideration.

Finally, and while I would affirm the amount of the attorney fees awarded below, I dissent from the majority’s determination to award additional attorney fees for work performed on appeal insofar as the claimant is the appellant. The supreme court has stated that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending the employer’s unsuccessful appeal.” Frith v. Riverwood, Inc., 04-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15 (emphasis added). Thus, an award of attorney fees on appeal is appropriate where “the defendant appeals, obtains no relief, and the appeal necessitates additional work by the claimant’s counsel.” Ware v. Mitchell, 05-1289, p. 4 (La.App. 3 Cir. 4/12/06), 928 So.2d 699, 702. See also Johnson v. Conagra Poultry Co., 09-646 (La.App. 3 Cir. 12/9/09), 26 So.3d 982, writ denied, 10-350 (La.4/16/10), 31 So.3d 1067. In this case, the claimant is the appellant and is therefore not defending the employer’s appeal. Accordingly, I respectfully dissent from the majority’s award of attorney fees for work performed on appeal.

In sum, I would amend the judgment with regard to the rate of SEBs. In all other respects, I would affirm.

      . In its brief, the City references a figure of $1,816.01 as the amount of monthly workers’ compensation benefits. This figure appeared in the FRS records, but appears to be incorrect. Counsel for Mr. Olivier opines this figure is apparently based on the reduced amount of workers' compensation benefits Mr. Olivier was receiving at the time that calculation is done. In any event, we agree with counsel for Mr. Olivier that the correct amount of monthly workers’ compensation benefits is $1,967.33.


author: CARLTON, J.,

text:
    Johnny HOLLINGSWORTH, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01044-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Johnny Hollingsworth, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Johnny Hollingsworth appeals the Tishomingo County Circuit Court’s denial of his motion for post-conviction relief. On appeal, Hollingsworth asserts that: (1) his guilty plea was not entered voluntarily, knowingly, or intelligently; and (2) he was denied effective assistance of counsel. Finding that the circuit court lacked jurisdiction to hear Hollingsworth’s motion for post-conviction relief, we vacate the judgment of the circuit court and Hollings-worth’s petition for lack of jurisdiction.

FACTS

¶ 2. On July 8, 2007, a Tishomingo County grand jury indicted Hollingsworth for the manufacture of marijuana, less than one kilo but more than thirty grams, under Mississippi Code Annotated section 41-29-139(a)(1)(b)(2) (Rev.2005). On September 2, 2008, he entered a guilty plea to the charge of manufacture of marijuana and received a twenty-year suspended sentence. The circuit judge placed him on probation under the supervision of the Mississippi Department of Corrections (MDOC) for five years, provided that Holl-ingsworth complied with all the conditions listed in his sentencing order, including, but not limited to, not possessing or using alcohol or drugs and not violating any laws of this State or the United States.

¶ 3. On May 15, 2009, the State filed a petition to revoke probation and impose a suspended sentence, alleging that Holl-ingsworth violated his probation after he was arrested in Tishomingo, Mississippi, and charged with DUI, Careless Driving, and Driving While License Suspended. A hearing was held on May 28, 2009, and Hollingsworth admitted that he was indeed arrested on those charges. The circuit court revoked his probation and placed him in the intensive supervision/house arrest program (ISP) for twelve months. The circuit court further ordered that upon successful completion of the program, Hollingsworth be placed on post-release supervision for a period of five years. The order also indicated that if Hollingsworth did not successfully complete the program, he would automatically be placed in whatever facility the MDOC deemed appropriate to serve the twenty-year sentence.

¶ 4. A rules-violation report prepared by the MDOC indicated that on May 29, 2009, the day after Hollingsworth’s revocation hearing, the Tishomingo County Sheriffs Department received a phone call that Hollingsworth was intoxicated and had crashed his car into his front yard. Deputies arrived on the scene and arrested Hollingsworth. Hollingsworth’s girlfriend informed David Murphy of the MDOC that Hollingsworth had consumed several beers, half a pint of whiskey, and five prescription pain pills. Murphy took Holl-ingsworth to the emergency room for treatment, where he also witnessed Holl-ingsworth talk about his girlfriend in a threatening manner. Murphy returned Hollingsworth to jail after his release from the emergency room. Hollingsworth’s house-arrest status was subsequently revoked, and he was placed him in the eusto-dy of the MDOC, where he began serving the twenty-year suspended sentence.

¶ 5. On January 31, 2010, Hollingsworth filed a petition to show cause, requesting reinstatement to the intensive supervision program. The circuit court issued an order on February 16, 2010, continuing the matter for ninety days so that Hollings-worth could exhaust his remedies under the Administrative Remedy Program.

¶ 6. On May 27, 2010, Hollingsworth filed a motion for judicial review requesting that the circuit court “reinstate the five years of supervised probation so that he can go on with his life and not be throwed [sic] away for twenty years.” The circuit court entered an order denying the motion on June 7, 2010, stating that Hollingsworth “was given multiple opportunities to reform his actions however as evidenced by the Violation Report Form, [he] declined to do so.” Hollingsworth now appeals the circuit court’s denial of his motion for judicial review, which we treat as a motion for post-conviction relief.

STANDARD OF REVIEW

¶ 7. Our standard of review for a denial of the motion for post-conviction relief is well established. We will not reverse the trial court’s judgment unless we find that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002) (citing Kirksey v. State, 728 So.2d 565, 567 (¶ 8) (Miss.1999)). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 8. As a preliminary matter, we must point out that this Court has established that the circuit court lacks jurisdiction to determine whether Hollingsworth was improperly removed from ISP. In Ivory v. State, 999 So.2d 420, 425 (¶ 11) (Miss.Ct.App.2008), this Court stated that “[t]he statutes governing the ISP provide that an offender in the ISP is under the full and complete jurisdiction of the MDOC and is subject to removal from the program by the classification hearing officer.” See Miss.Code Ann. § 47-5-1003(3) (Supp.2010). Therefore, “the authority to reclassify an inmate from house arrest and to place her in the general prison population is within the exclusive jurisdiction of the MDOC and outside the authority of the original sentencing judge.” Ivory, 999 So.2d at 425 (¶ 11) (citing Lewis v. State, 761 So.2d 922, 923 (¶ 4) (Miss.Ct.App.2000)).

¶ 9. Additionally, this Court has clarified that a complaint about removal from ISP is not properly brought in a motion for post-conviction relief; instead, “a prisoner may have an adverse reclassification decision reviewed pursuant to the Administrative Remedy Program (ARP) promulgated by the MDOC pursuant to Mississippi Code Annotated section 47-5-801 (Rev. 2004).” Id.; see also Lewis, 761 So.2d at 923 (¶ 6); McBride v. State, 914 So.2d 260, 263 n. 1 (Miss.Ct.App.2005). The record reflects that in response to Hollingsworth’s petition to show cause, in which he requested reinstatement to the ISP, the circuit court continued the matter for ninety days to allow Hollingsworth to exhaust his remedies under the ARP, pursuant to Mississippi Code Annotated section 47-5-803(2) (Rev.2004). Although the circuit court’s order for continuance mandated that the circuit court clerk “shall accept no further filing in this cause from this Petitioner until Petitioner files proof of completion of the ARP,” we note that Hollings-worth filed his motion for judicial review on May 27, 2010. However, no ARP rulings appear in the record before us, and nothing in the record reflects whether Hollingsworth’s pursuit of a remedy through the ARP process was ultimately successful. Section 47-5-803(2) plainly states that a prisoner must exhaust his administrative remedies before he can file suit in court. The record fails to contain any document showing that Hollingsworth exhausted his administrative remedies on these claims; thus, the circuit court lacked jurisdiction to consider them. See Walker v. State, 35 So.3d 555, 558 (¶ 12) (Miss.Ct.App.2010); Adams v. Epps, 900 So.2d 1210, 1213 (¶ 12) (Miss.Ct.App.2005). Therefore, we vacate the circuit court’s judgment and dismiss Hollingsworth’s petition for lack of jurisdiction.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS VACATED, AND THIS CASE IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TISHOM-INGO COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J„ NOT PARTICIPATING.