author: KNOLL, J.

text:
    STATE of Louisiana v. Danny POPULIS.
    No. 2011-KK-2604.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   KNOLL, J.

I would grant this application. I disagree with the judgment revoking relator’s probation for execution of his sentence. Relator committed only a “technical violation” of his probation by associating with known felons. See La. C.Cr.P. art. 900(A)(6)(c). Therefore, the district court could only impose a sentence of “no more than ninety days.” La. C.Cr.P. art. 900(A)(6)(b). While the State also presented evidence regarding relator’s arrest for possession and manufacture of methamphetamines, there is no indication the district court based its decision on this evidence. Therefore, I would remand this case to the district court for further findings of fact regarding whether relator’s conduct leading to his arrest provided a sufficient basis for revoking his probation for a “non-technical” violation. La. C.Cr.P. art. 900(A)(6)(c)(i)(aa) (the term “technical violation” does not include “being arrested, charged, or convicted of .... [a] felony.”).


source: Caselaw Access Project

license: Public Domain

text:
    Louise Fourie DE KLERK v. Andrew Struben DE KLERK.
    No. 2011-CC-2617.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re De Klerk, Louise Fourie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2009-12158; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0831.

Denied.


text:
    POSITIVE CHOICES COUNSELING SERVICES, INC. v. DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2011-C-2623.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Positive Choices Counseling Services, Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 586,973; to the Court of Appeal, First Circuit, No. 2011 CA 0391.

Denied.


text:
    STATE ex rel. Earnest ROGERS v. STATE of Louisiana.
    No. 2011-KH-2763.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Rogers, Earnest; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 10 — 11— 0782; to the Court of Appeal, First Circuit, No. 2011 KW 2021.

Denied.


text:
    STATE ex rel. Farrenton R. JOSHUA v. STATE of Louisiana.
    No. 2011-KH-2764.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Joshua, Farrenton R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, Nos. 12-10-0055, 12-10-0056; to the Court of Appeal, First Circuit, No. 2011 KW 2089.

Denied.


text:
    STATE ex rel. Damon PATTERSON v. STATE of Louisiana.
    No. 2011-KH-2814.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Patterson, Damon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Divs. C, 3, Nos. 509-482, 528-361; to the Court of Appeal, Fourth Circuit, No. 2011-K-1583.

Denied. Moot.


text:
    Wanda DESENTZ v. David DUNN, M.D. and Hospital District No. 2 for the Parish of Jefferson, State of Louisiana a/k/a East Jefferson General Hospital.
    No. 2012-CC-0001.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Desentz, Wanda; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 643-080; to the Court of Appeal, Fifth Circuit, No. 11-C-956.

Denied.

KNOLL, J., would grant.

GUIDRY, J., recused.


text:
    STATE ex rel. Kevin T. GROSS v. STATE of Louisiana.
    No. 2012-KH-0119.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Gross, Kevin T.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 803975; to the Court of Appeal, First Circuit, No. 2011 KW 1944.

Denied.

WEIMER, J., recused.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Demarco R. WASHINGTON.
    No. 10-CA-353.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.
    Rehearing Granted for Limited Purpose Feb. 7, 2011.
    Paul D. Connick, Jr., District Attorney Terry M. Boudreaux, Thomas J. Butler, Brandon Kinnett, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    William Noland, Attorney at Law, Brandon, MS, for Surety/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

1 ^Appellant Safety National Casualty Corporation (“Safety”) appeals the trial court’s judgment that denied its Motion to Set Aside Judgment of Bond Forfeiture. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

The record reflects that the defendant, Demarco R. Washington, was charged on March 6, 2007 by bill of information with a violation of LSA-R.S. 14:95.1, felon in possession of a firearm. On October 9, 2007, Safety, through its agent, # 1 Bail Bonds, executed an appearance bond with Mr. Washington as principal. Mr. Washington failed to appear for a hearing as noticed on May 27, 2008. On May 30, 2008, Mr. Washington appeared in court. At that hearing, the trial court reset Mr. Washington’s case for trial on June 18, 2008. On May 30, 2008, both oral and written notice of the June 18, 2008 trial date was given to Mr. Washington.

¡¡¡On June 18, 2008, because Mr. Washington failed to appear in court, the trial court issued an attachment for his arrest. The State then moved in open court for forfeiture of Mr. Washington’s bond. The matter was heard immediately, whereupon the trial court granted the bond forfeiture. A judgment to that effect was rendered and signed on that date. Notices of the signing of this judgment were mailed to all parties on June 24, 2008, per LSA-R.S. 15:85(3)(a).

More than four months later, on October 29, 2008, Safety filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment. This motion was filed as a summary proceeding in Mr. Washington’s criminal matter. This motion argued that Mr. Washington’s failure to appear in court on May 27, 2008 required the State to issue a notice to the surety or its agent (Safety or #1 Bail Bonds, respectively) for Mr. Washington’s subsequent court date of June 18, 2008, as required by LSA-C.Cr.P. art. 344(B), and that the State had failed to issue such required notice to Safety or its agent. In an “amended” motion filed by Safety on December 3, 2008, Safety further argued that Mr. Washington failed to appear in court on June 18, 2008 because he was ill, a “nonforfeiture situation” under LSA-R.S. 15:87.

Safety’s Motion to Set Aside was briefly argued before Judge Regan, the trial judge, on January 16, 2009, whereupon Judge Regan took the matter under advisement. On January 29, 2009, the parties again appeared before Judge Regan, who, in open court, orally denied Safety’s Motion to Set Aside, ruling that the matter was “done properly.” A written judgment to that effect was signed by Judge Rowan on April 17, 2009. A timely appeal followed, wherein this court vacated the April 17, 2009 judgment, finding it was an absolute nullity because it was signed by a different judge than the one who heard the argument, and ^remanded for the signing of a proper judgment. A new judgment was signed by Judge Regan on January 5, 2010. This timely appeal followed.

On appeal, Safety argues that the trial court erred in finding that the State of Louisiana placed into evidence at the June 18, 2008 bond forfeiture hearing proper evidence of proof of notice to Safety, or to its Agent, for the June 18, 2008 court appearance date, as required by LSA-R.S. 15:85(1). Second, Safety argues that the trial court erred in denying the Motion to Set Aside Judgment of Bond Forfeiture because the judgment rendered on June 18, 2008 was a nullity pursuant to LSA-R.S. 15:85(1) and LSA-C.C.P. art.2002.

ANALYSIS

There are statutory limitations on the right of a defendant or surety to object to judgments of bond forfeiture. In particular, LSA-R.S. 15:85 provides, in pertinent part:

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture . Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.
(9) Nullity actions. Nullity actions pursuant to Code of Civil Procedure Art.2001 et seq. not filed unthin the sixty days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.

| ¡¡(Emphasis added.)

As this Court recently stated in State v. Curtis, 08-1262 (La.App. 5 Cir. 5/12/09), 15 So.3d 173, 176:

... [A] party seeking to set aside a bond forfeiture judgment must file a motion raising “defenses and actions in nullity by use of summary proceedings” within sixty days of the mailing of the notice of bond forfeiture. Only those defenses based upon La. C. Cr. P. art. 345 and La. R.S. 15:87 may be raised “within six months from mailing the notice of the signing of the judgment of bond forfeiture.” La. R.S. 15:87 A provides that the six month delay outlined in La. R.S. 15:85(5) applies when the defendant “has a physical disability, illness, or injury,” when the defendant “is being detained in the jail or penitentiary of another jurisdiction,” and when the defendant “is serving in the armed forces of the United States.” La. C. Cr. P. art. 345 provides that the six month delay applies when the surety “surrender[s] the defendant or the defendant ... surrender[s] himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond.” The defense of insufficient service to the defendant is not listed in La. C. Cr. P. art. 345 or La. R.S. 15:87.
This Court has held on several occasions that the defense of insufficient service to the defendant pursuant to La. C. Cr. P. art. 344 must be brought within sixty days from the mailing of the notice of bond forfeiture, rather than six months from the mailing of the notice of bond forfeiture. See, e.g., State v. Ainsworth, 04-177 (La.App. 5 Cir. 6/29/04), 878 So.2d 864.

In its Motion to Set Aside, Safety argued that it had not received service of the June 18, 2008 court date as required by law, a defense that Safety could only bring as a summary proceeding within 60 days of the mailing of the notice of judgment of bond forfeiture, as per LSA-R.S. 15:85(5).

In State v. Curtis, supra, this Court was faced with a very similar scenario on appeal. Therein, the trial court granted the State’s motion to forfeit bond after the defendant failed to appear in court. Safety National Casualty filed a Motion to Set Aside Bond Forfeiture two hundred thirty-one days after the mailing of the notice of bond forfeiture. The trial court ruled against Safety, who then took an appeal to this court on the grounds of insufficient notice and service of the court date to the | r,defendant. After finding that the State had in fact sent the subpoena to the wrong address and that the defendant had not been properly served, this Court went on, however, to note that Safety had brought its Motion to Set Aside Bond Forfeiture too late, as LSA-R.S. 15:85 required summary proceedings to be brought within 60 days of the mailing of the notice of bond forfeiture. Accordingly, this Court held that Safety could not take advantage of the defense of improper notice because the Motion to Set Aside Bond Forfeiture had not been filed within the sixty day limit imposed by LSA-R.S. 15:85. Because Safety’s Motion was untimely, this Court was without authority to consider the merits, and affirmed the judgment in favor of the State, denying the Motion to Set Aside Bond Forfeiture.

The facts and reasoning of State v. Curtis compel the same result in this case. Though raised by neither party to this appeal, we find that Safety’s Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment filed on October 29, 2008, more than four months after the mailing of the notice of bond forfeiture, as a summary proceeding within Mr. Washington’s criminal proceeding, was untimely.

Safety cites State v. Fall, 08-295 (La.App. 5 Cir. 12/16/08), 3 So.3d 54, for the position that the motion to set aside on the grounds of nullity may be filed at any time pursuant to LSA-C.C.P. art.2002, and thus their Motion was timely. We find Fall distinguishable in that the meaning and applicability of the provisions of paragraph (9) of LSA-R.S. 15:85 were not addressed in that opinion. Nullity suits may indeed be brought after the sixty-day period found in LSA-R.S. 15:85(5), but only as ordinary civil proceedings. See State v. Berry, 29,359 (La.App. 2 Cir. 4/2/97), 691 So.2d 375.

|7We note that Safety filed an Amended Motion on December 3, 2008, additionally alleging that Washington was “ill” on the June 18, 2008 court date, a “non-forfeiture” situation under LSA-R.S. 15:87 that, according to LSA-R.S. 15:85, may be brought as a summary proceeding within six months of from the mailing of the notice of the signing of the judgment of bond forfeiture. However, at the two hearings on the Motion and the Amended Motion held on January 16 and January 29, 2009, Safety failed to argue that ground or produce any evidence supporting it, and additionally has not briefed it here. Accordingly, Safety abandoned that motion, and its filing date does not serve to make the original Motion to Set Aside timely.

Because Safety’s Motion to Set Aside Judgment of Bond Forfeiture was untimely, this Court is without authority to consider the merits of Safety’s appeal. Accordingly, we affirm the trial court’s judgment denying Safety’s Motion to Set Aside Judgment of Bond Forfeiture.

AFFIRMED

REHEARING GRANTED

IT IS HEREBY ORDERED that appellant’s Application for Rehearing is granted for the limited purpose of changing the closing paragraph of the opinion issued on November 23, 2010 to delete the first sentence thereof, and to read as follows:

For the reasons set forth above, we affirm the trial court’s judgment denying Safety’s Motion to Set Aside Judgment of Bond Forfeiture.

      . State v. Washington, 09-618 (La.App. 5 Cir. 12/29/09), 30 So.3d 856.

      . Whether the State introduced proper evidence of the service was apparently not an issue in State v. Curtis, as evidenced by the opinion's lack of discussion on that topic.


author: WALTER J. ROTHSCHILD, Judge.

text:
    John M. NUNEZ, Jr. v. JEFFERSON PARISH DEPARTMENT OF PARKS AND RECREATION.
    No. 10-CA-787.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Rehearing Granted for Limited Purpose of Clarifying Opinion Sept. 28, 2011.

      Alan B. Tusa, Carol T. Richards, Attorneys at Law, Covington, LA, for Plaintiff/Appellant.
    Clement P. Donelon, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

12John M. Nunez, Jr. seeks review a ruling of the Jefferson Parish Personnel Board which granted the Appointing Authority’s Motion to Dismiss his appeal of an action reassigning him to another position. For the reasons stated herein, we affirm.

On September 30, 2009, John Nunez, who is employed as a playground supervisor by the Jefferson Parish Department of Parks and Recreation, filed a Petition for Appeal following his September 2, 2009 reassignment to another playground within the department. By this appeal, Mr. Nunez alleged that he was entitled to whistle-blower protection for cooperating with a criminal investigation. He sought reassignment back to his original position at Girard Playground.

On December 23, 2009, the Appointing Authority, Jefferson Parish Department of Parks and Recreation, filed a Motion to Dismiss on the basis that Mr. Nunez failed to plead his case with specificity according to the personnel rules. This matter was heard on January 12, 2010, and the hearing [^officer for the Personnel Board determined that the specificity requirements contained in the personnel rules did not apply to Mr. Nunez’s claim. The Motion to Dismiss was thus denied on February 18, 2010, and the matter was reset for trial on the merits.

On May 10, 2010, the Appointing Authority filed a second Motion to Dismiss, on the basis that Mr. Nunez failed to mitigate his damages by refusing an unconditional offer to transfer him to one of two playgrounds on the East Bank of Jefferson Parish. The merits of the appeal were heard before the hearing officer for the Personnel Board on May 25, 2010. During this hearing, counsel for Mr. Nunez asserted a motion to recuse the hearing officer and the motion was denied. Counsel for Nunez requested a stay to allow him to seek review of the ruling, but the hearing officer denied the request for a stay.

The trial proceeded as scheduled and Mr. Nunez was called as a witness by the Appointing Authority. He testified that he was employed by the Jefferson Parish Recreation Department for 13 years. He had been assigned for many years to Gir-ard Playground, which was in close proximity to his house, and his arrival time each day was set at 6 p.m. He stated that in September of 2009, he was transferred to Rose Thorne Playground in Lafitte which was almost 30 miles from his house and he was required to arrive at 5 p.m. He testified that this assignment resulted in an extreme hardship to him.

Mr. Nunez admitted that he received correspondence in May 2010 from C.J. Gibson, the director of the department, indicating that Mr. Nunez could be reassigned to Lakeshore Playground or Pontiff Playground, which were each approximately 7 miles from his house. Mr. Nunez also admitted |4that all employees except one had been transferred from Girard Playground at the same time as Mr. Nunez.

The Appointing Authority submitted into evidence the letter from Mr. Gibson offering Mr. Nunez a transfer to a playground closer to his home. The hearing officer then took the matter under advisement and allowed the parties to submit memos. The hearing officer then stated that the parties were in settlement negotiations and that he would continue the hearing to be reset at a later date. At this time, the Appointing Authority indicated that the positions at Lakeshore and Pontiff Playgrounds were still open and would be available to Mr. Nunez for two weeks.

Following the hearing, Mr. Nunez filed into the record several subpoena requests, and the Appointing Authority filed a Motion to Quash the requests. Further, C.J. Gibson, the Director of Jefferson Parish Parks and Recreation, sent correspondence dated June 3, 2010 to Mr. Nunez reiterating the unconditional offer of a transfer in position. The record also contains a letter dated June 7, 2010 from counsel for Mr. Nunez to counsel for the Appointing Authority indicating that Mr. Nunez was willing to accept the offer of a position at Lakeshore Playground, but that he would not agree to dismiss his case “until it can be resolved as to the remaining issues.”

Thereafter, the parties filed supplemental memoranda in support of and in opposition to the Appointing Authority’s Motion to Dismiss. On July 6, 2010, the hearing officer rendered judgment dismissing the matter as being moot. The judgment also stated that all rights in any other forum that Mr. Nunez may by law assert would be preserved. Mr. Nunez now appeals from this judgment on the basis of several assignments of error.

¡¡¡Applicable Law

A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). Adams v. Jefferson Parish Dept. of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215.

In Jefferson Parish, an aggrieved public employee may apply to the Personnel Board for a review of discharge or disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Adams, supra. The Personnel Board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking the action. La. R.S. 33:2561; St. Pe’ v. Jefferson Parish Dept. of Public Works-Drainage Pump Stations, 06-779 (La.App. 5 Cir. 3/13/07), 956 So.2d 623, 625. The rules of the Personnel Board indicate that decisions of the Board shall be subject to review by this Court on any question of law or fact. Rule 8.1.

On appeal, this Court should apply the clearly wrong or manifest error rule. Adams, supra. An appellate court review of an administrative decision is limited to a determination of whether the decision was made in good faith for legal cause; unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. Adams, supra.

The Motion to Dismiss

Mr. Nunez first contends that the Personnel Board failed to give proper notice of the January 12, 2010 hearing on the Motion to Dismiss. 1 nFurther, appellant contends that the hearing officer improperly signed the Motion to Dismiss transmitted by facsimile setting the hearing for May 25, 2010. Appellant also contends that the hearing officer improperly denied Mr. Nunez’ subpoenas requested in connection with the hearing. Finally, Mr. Nunez contends that the hearing officer erred in granting the Motion to Dismiss.

Appellant contends that he failed to receive proper notice of the January 12, 2010 hearing on the Appointing Authority’s first Motion to Dismiss. However, the record in this case indicates that on December 29, 2009, the hearing officer scheduled the matter for hearing and faxed notice of the hearing to counsel for Mr. Nunez. Counsel for Mr. Nunez stated he did not receive the notice until January 8, 2010, but stated he was not requesting a continuance. The record indicates the hearing officer offered to continue the matter. Further, the record indicates the hearing officer ruled in favor of Mr. Nunez on this motion, and we therefore find no merit in appellant’s argument concerning a lack of notice of this hearing.

With regard to the notice of the hearing on the second Motion to Dismiss, the record indicates that the Motion was filed with the hearing officer by facsimile on May 10, 2010 and a hearing date was set for May 25, 2010. Both counsel for the Appointing Authority and the hearing officer stated on the record that a copy of the motion and order setting the hearing was faxed to counsel for appellant on the day it was filed, 15 days prior to the setting of the hearing. The hearing officer stated on the record that he signed the faxed copy in order to keep the proceeding moving. Counsel for Mr. Nunez appeared at the hearing, and the hearing officer gave Mr. Nunez |7over 30 days to file an opposition to the motion. We fail to find error in the setting of this hearing or in the notice provided to appellant.

Appellant next contends that the hearing officer erred in failing to allow him to issue subpoenas duces tecum and further to subpoena counsel for the Appointing Authority for trial. The record indicates that the hearing officer allowed issuance of the subpoenas duces tecum, and the return was set for the Friday before the hearing. Counsel for Mr. Nunez did not appear to examine the documents. Further, the hearing officer stated that he disallowed issuance of the subpoenas for counsel for the Appointing Authority because counsel was to be present at the hearing. We find no abuse of discretion in this ruling, and the record shows that counsel was present at the hearing. Appellant suffered no prejudice as a result of the hearing officer’s decision not to issue the subpoenas.

Appellant argues that the hearing officer improperly dismissed the case as being moot as substantial issues remained in controversy in this matter. Appellant contends that he expressly reserved his right to continue to litigate the matter, and although he accepted an alternate position, he has not been restored to his original position and he has not been reimbursed for the mileage expenses incurred in trav-elling to Lafitte.

In rendering judgment on the Motion to Dismiss, the hearing officer found that the position Mr. Nunez accepted at Lakeshore Playground was substantially equivalent to the position he had held at Girard Playground, and that the Personnel Board had no authority to award compensatory damages for mileage or attorney’s fees. The hearing officer correctly concluded that the Personnel Board cannot award monetary damages for the alleged wrongful behavior. See, Greenleaf v. DHH, Metropolitan Developmental Center, 594 So.2d 418, 425 (La.App. 1st Cir.1991), writ denied, 596 So.2d 196 (La.1992); Crockett v. State Through Dept. of Public Safety and Corrections (Louisiana State Penitentiary, Angola), 97-2528 (La.App. 1 Cir.1998), 721 So.2d 1081, 1083.

In the present case, Mr. Nunez’ appeal to the Personnel Board sought reassignment to his original position. During the hearing of this matter, he also indicated he was seeking reimbursement for travel expenses as well as attorney’s fees. However, after Mr. Nunez accepted the position with Lakeshore Playground, there were no further issues to be resolved that were within the jurisdiction of the Personnel Board. Rather, the district court has jurisdiction under La. R.S. 23:967 to award compensatory damages and reasonable attorney fees for violation of whistleblower laws. Goldsby v. State, Dept. of Corrections, 03-343 (La.App. 1 Cir. 11/7/03), 861 So.2d 236, 239, writs denied, 04-328, 04-330 (La.4/8/04), 870 So.2d 271. Under these circumstances, we find no error in the ruling of the hearing officer dismissing Mr. Nunez’ appeal on the basis of mootness.

Recusal

Mr. Nunez next contends that the hearing officer had a conflict of interest in serving in his capacity as an impartial adjudicator and that the hearing officer improperly denied his Motion to Recuse and erred in continuing to preside over the matter after the recusal motion was filed. Appellant seems to argue that the hearing officer who was an appointee of the Jefferson Parish Personnel Board was in collusion with counsel for the Appointing Authority, a department within Jefferson Parish government.

However, the Jefferson Parish Personnel Board is a separate entity from the departments of Jefferson Parish government. There is no indication |9that there is an organizational conflict between the two entities which would cause the hearing officer to be biased in favor of the Appointing Authority.

The grounds for recusal before the Personnel Board are the same as those applicable in the trial court. Singletary v. Department of Public Works-Sewerage, 626 So.2d 741 (La.App. 5 Cir.1993), writ denied, 630 So.2d 791 (La.1994). Mr. Nunez relies on La. C.C.P. art. 151(A) which provides that a judge shall be recused when he “is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to an extend that he would be unable to conduct fair and impartial proceedings.” La. C.C.P. art. 154 provides that if a valid ground for recusal is set forth in the motion, the judge shall recuse himself or refer the motion to another judge for a hearing.

Mr. Nunez moved to recuse the hearing officer in this case on two specific grounds: that he signed a faxed copy of the Motion to Dismiss and that he prevented subpoenas from being issued in this case. The hearing officer found no valid ground for recusal was set forth in the motion, and refused to either recuse himself or refer the matter to another judge for hearing. After a review of the record, we find no error in this ruling.

As previously discussed herein, both of the rulings complained of by appellant are reasonable exercises of the hearing officer’s discretion in handling the case. Although neither of the rulings were in appellant’s favor, there has been no showing that the rulings were the result of any bias or inability of the hearing officer to be impartial. As the hearing officer failed to find a valid ground for recusal set forth in the motion, the hearing officer did not err in continuing to preside over the case. We find no support in the record for appellant’s claim of bias or partiality on the part of the hearing 1 inofficer, and we thus fail to find the hearing officer erred in continuing to preside over this instant matter after denying the motion to recuse.

Conclusion

Accordingly, for the reasons assigned herein, we hereby affirm the judgment of the hearing officer for the Jefferson Parish Personnel Board dismissing appellant’s appeal as moot. Appellant shall bear all costs of this appeal.

AFFIRMED.

ON REHEARING

hOn application for rehearing, we grant rehearing for the limited purpose of clarifying the opinion to replace the final paragraph on Page 8 to read as follows:

Although the Jefferson Parish Personnel Board is contained within a department of Jefferson Parish government, there is no indication that there is an organizational conflict between the departments which would cause the hearing officer to be biased in favor of the Appointing Authority.

In all other respects, the opinion remains unchanged.


author: HILLARY J. CRAIN, Judge Pro Tem.

text:
    Charles HOGAN v. John H. TURNIPSEED and Juana T. Turnipseed.
    No. 10-CA-1065.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.

      David S. Moyer, Attorney at Law, Lut-ing, LA, for Plaintiff'Appellant.
    Geri Broussard Baloney, Attorney at Law, Garyville, LA, for Defendant/Appel-lee.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tem.

12This case involves the respective rights of a mortgage holder on an immovable and those of a third party possessor and owner of the property when it has been seized by the sheriff preparatory to its sale under a writ of fien facias.

The facts of this litigation are as follows. Charles Hogan, plaintiff, sold the house and lot at issue here to John Turnipseed and his wife Juana, and held a mortgage on the property. When the Turnipseeds failed to make the required payments, Hogan sued them on the note. A judgment in his favor was rendered on August 27, 2003, in the amount of $64,433.35, with interest at 8.75% from September 1, 2001, until January 1, 2014, and with legal interest thereafter, plus 25% of the principal and interest as attorney fees. Sometime in the fall of 2009, Hogan began proceedings to have the property seized and sold at public auction. The total amount owed at that time was alleged to be almost $130,000. There is no explanation of record as to why there was a six year gap in these proceedings.

During these six years several other events affecting the property occurred. In 2004, the Parish of St. John the Baptist sued the Turnipseeds alleging that the | ¡¡house on the property was in such disrepair that it should be demolished. A judgment ordering demolition was entered on July 7, 2004. On that same date, by an authentic act of cash sale, the Turnipseeds sold the property to the Broussard-Balo-ney Law Firm, APC, for $10,000. The law firm rebuilt the building and was using it commercially when Hogan commenced proceedings to have the property seized and sold.

The law firm intervened in this proceeding seeking to enjoin the sale under the provisions of La. C.C.P. Art. 2703. That article sets forth the rights of third party possessors who have not assumed payment of any debt secured by a mortgage on property to be seized and sold at a sheriffs sale. A hearing on the intervention was held on January 29, 2010, and a judgment was signed on May 6, 2010. In that judgment, the district judge found that the house no longer existed, and that the mortgage on that portion of the property was extinguished. She held that Hogan still had a valid mortgage on the lot, and determined that the lot had a value at the time of the hearing of $22,500. She further found that the 25% attorney fees specified in Hogan’s note from the Turnipseeds was excessive and that a proper amount was $5,500. She also found that the new building was valued at $186,000, and that 5% of the materials from the original house had been used in its construction, and at this rate had a value of $9,300. Finally, she determined that interest on Hogan’s mortgage should be at the legal rate commencing in 2003, but not to exceed 8.75%. The judgment ordered the law firm to pay these amounts to Hogan, or alternatively the sheriffs sale would not be enjoined. Both parties now appeal.

Broussard-Baloney Law Firm, APC asserts that the judgment is in error as to the amount of Hogan’s judgment which is secured by the mortgage on the lot, and that the firm is being improperly cast in judgment for the enhancement of the value 14of the property occasioned by its own endeavors. Hogan argues to the contrary that the judgment in effect improperly reduces the final judgment which he obtained when he sued the Turnipseeds on the note. He also urges that the law firm did not establish that it owns the property.

As to ownership of the property, the law firm introduced an authentic act of cash sale establishing that it purchased the property in 2004. Hogan, for his part, introduced a list of assets filed in a bankruptcy proceeding in 2008 by Mrs. Turnip-seed listing the property as being owned by her. This latter document is not competent evidence to challenge the authentic act, and we therefore reject this argument.

We do determine, however, that the trial judge did not correctly apply the rights applicable to third party possessors of mortgaged property when the mortgagee forecloses on that property. Those rights and remedies are provided for in La. C.C.P. Art. 2703 as follows:

Rights of third possessor
When property sold or otherwise alienated by the original debtor or his legal successor has been seized and is about to be sold under executory process, a person who has acquired the property subject to the mortgage or privilege thereon and who has not assumed the payment of the indebtedness secured thereby may:
(1) Pay the balance due on the indebtedness, in principal, interest, attorney’s fees, and costs;
(2) Arrest the seizure and sale on any of the grounds mentioned in Article 2751, or on the ground that the mortgage or privilege was not recorded, or that the inscription of the recordation thereof had preempted; or,
(3) Intervene in the executory proceeding to assert any claim which he has to the enhanced value of the property due to improvements placed on the property by him, or by any prior third possessor through whom he claims ownership of the property. This intervention shall be a summary proceeding initiated by a petition complying with Article 891.

1 ¡¡The law firm did not opt to pay the mortgage as per Art. 2703(1), and that provision is thus inapplicable to this case.

A seizure and sale may also be enjoined under Art. 2703(2) for the reasons specifically listed there, as well as on the grounds mentioned in La. C.C.P. Art. 2751. That latter article provides for enjoining the sale because of extinguishment, but it is for extinguishment of the debt supporting the mortgage, not the extin-guishment of the mortgaged property itself. Intervenors cite La. C.C. Art. 3319(1) as grounds for a third party possessor to enjoin a sale because of partial extinguishment of the mortgage on the property, citing Coen v. Gobert, 154 So.2d 443 (La.App. 2nd Cir.1963) as support for that proposition. However, Art. 2703(2) refers only to Art. 2751 and that article makes no reference to anything but extin-guishment of the debt. Additionally, Coen involves an attempt to enforce a mortgage on a piece of property not subject to the mortgage to which a building had been moved from the mortgaged property. The court held that the mortgagee renounced the mortgage on the building by agreeing for it to be moved. Here, even though the building on the mortgaged property was substantially replaced by another building also on the mortgaged property, we find no authority for the proposition that the mortgage was partially extinguished. Rather this case falls under the general rule that improvements placed on the mortgaged property are subject to the mortgage on the property. Federal Land Bank v. Cook, 155 So. 249, 179 La. 857 (La.1934).

LWe conclude that the third party possessor herein must assert its rights under La. C.C.P., Art. 2703(3), which is for the enhanced value of the property due to the improvement placed thereon. We further conclude that Glass v. Ives, 126 So. 69, 169 La. 809 (La.1929) furnishes guidance for applying that article. In Glass, the court determined that Ives had purchased the property from Hammond subject to judgments against Hammond. Ives reconfigured an old bank building into one that could be rented to several tenants, thus enhancing the value of the property. The court held that the property should proceed to sheriffs sale; that from the proceeds of the sale the judgment creditors should receive first the value of the property prior to the improvements; that from the remaining proceeds the third party possessor Ives should receive the enhanced value of the property not to exceed the amount actually expended for improvements; that if there were remaining funds they would go to the judgment creditors to satisfy the judgments plus interest and attorney fees; and in the event that there were still funds available, these would go to Ives as the owner of the property. This procedure is now set forth in La. C.C. Art. 3318.

The court in Glass also made the determinations of value from evidence presented at the trial prior to the sheriffs sale. We have evidence of values presented at the hearing in this case from which we can determine the amounts due the parties should the matter proceed to sheriffs sale.

Evidence presented showed that the house located on the property when it was mortgaged had subsequently been abandoned for a number of years. Beverly Milliotto, supervisor of the parish Code Enforcement and Inspection office, testified at length about numerous inspections that officers from her department had conducted at the building beginning in 2003, and their attempts to have code violations corrected. When none of their efforts produced results, the Parish took |7legal action. She described the condition of the building at the time the demolition order was sought as follows: the yard was grown up in weeds, the front and rear porches were falling off, the windows were broken out, there was extensive rot throughout the building, and it was open to the elements.

Carl Baloney, a member of the Brous-sard-Baloney firm, also testified about the condition of the property at the time of the purchase. He noted that his law office is next door to the property. He described the weeds as being ten feet tall with debris throughout. The building had been invaded by rats. Pigeons, which came in through holes in the roof and windows, were nesting throughout. The roof had collapsed in places. The plumbing was completely gone and the electrical system was exposed. The porches were rotted out, as were most of the first and second story floors. The studs and sills were also rotten and the building was starting to lean. There was also evidence of vagrants using the building, setting fires in it, and using it to store contraband.

He described the process by which he had constructed the new building on the mortgaged property. He said that 99% of the wood used in this process was new, while the remaining 1% consisted of a few pieces of cypress that came from the original structure. His basic description of this work was that the sills, joist, studs, floors, roof timbers, and roofing were replaced as the work progressed. All of the windows were replaced, and the plumbing and electrical systems were all new work, as was all of the interior dry wall. He testified that the firm spent approximately $75,000 to reconstruct the building.

Under the Glass v. Ives, supra, analysis we must determine the value of the property at the time the law firm acquired it and began the improvements. The testimony bearing on this point was provided by Jimmy Thorn, Jr., an expert appraiser. His analysis was that in 2004, when the parish obtained the demolition 1 Rorder, the then residential lot was worth $10,500. He further noted, however, that because of that order, the demolition costs would have been $7,500, leaving a net value of $3,000. At the time of the hearing, he was of the further opinion that because the law firm had converted the lot to commercial use, its value had increased to $22,500. The new building he appraised for $186,000. Based on this testimony, we find the value prior to the improvements to be $10,500. Although the appraiser also deducted $7,500 as the costs of demolition, we note that according to the testimony of Carl Baloney the demolition occurred simultaneously with the rebuilding of the structure, and thus there was no additional expenditure to tear down the old structure. We also determine that the cost of improvements made was $75,000 as testified to by Carl Baloney. The value of Hogan’s judicial mortgage is as expressed in the judgment of August 27, 2003, which judgment was duly recorded.

For the foregoing reasons, we amend the judgment to provide that when the property is sold, Hogan is entitled to an initial payment of $10,500 from the proceeds. The Baloney-Broussard Law Firm, APC, is entitled to the next $75,000. If there are still funds available Hogan is to be paid the amounts owing on the mortgage. Any funds remaining after these payments shall go to the law firm as owner of the property.

For the foregoing reasons the judgment of the district court is reversed as to enjoining the sheriffs sale because of partial extinguishment of the mortgaged property, it is amended as to the sums due the parties after the sheriffs sale, and as amended, affirmed, and is remanded to the district court for further proceedings consistent with this opinion.

REVERSED IN PART, AMENDED AND AS AMENDED, AFFIRMED AND REMANDED.

      . This case held that a building erected on a mortgaged tract of land becomes subject to the mortgage. The court relied on prior La. C.C. Art. 464 (1870), and prior Art. 3310 (1870) in reaching its decision. The former article provided that "lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by nature,” and the latter stated that "the conventional mortgage, when once established on an immovable, includes all the im-proveniente which it may afterward receive.” Article 464 was amended and renumbered as Art. 462 in 1979 and now provides that "tracts of land, with their component parts, are immovables.” Article 3310 has been eliminated. The Revision Comment-1991 to La. C.C. Ait. 3286 explains that Art. 3310 was "omitted as being unnecessary and incomplete, since the effect is not limited to conventional mortgages, but arises from the nature of the classifications of the property itself."


author: CARAWAY, J.

text:
    Annette R. NESBITT, Plaintiff-Appellee v. B. Woodrow NESBITT, Jr., Defendant-Appellant.
    No. 46,514-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Francis M. Gowen, Jr., Shreveport, LA, for Appellant.
    Donald L. Kneipp, Monroe, LA, for Ap-pellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

1! After an unsuccessful attempt to enjoin the execution of a money judgment by his judgment creditor, appellant filed this summary proceeding seeking a determination of the payoff of the judgment debt and tendering into the court registry an amount of money far less than the amount of the judgment. The trial court denied relief and appellant appeals. Finding no cause of action and a frivolous appeal, we amend the trial court’s judgment which denied appellant’s claims, dismiss the action, and award attorney’s fees to appellee.

Facts

Appellant, Woodrow Nesbitt, Jr. (“Nes-bitt”), and appellee, Annette Pittman, formerly Annette Nesbitt (“Pittman”), were married in 1968 and divorced on June 14, 2002. After the parties entered into a partial voluntary partition of community property, several disputes arose between them involving the partition of the remaining community property. These disputes have been the subject of two prior rulings of this court. Nesbitt v. Nesbitt, 40,442 (La.App.2d Cir.1/13/06), 920 So.2d 326, writ denied, 06-0720 (La.6/2/06), 929 So.2d 1255; Nesbitt v. Nesbitt, 44,413 (La.App.2d Cir.6/24/09), 15 So.3d 1229, writs denied, 09-1649, 09-1729 (La.10/16/09), 19 So.3d 483, 484 (hereafter referenced as Nesbitt II).

In the parties’ last appeal, Nesbitt II, this court allocated all of the community assets and reimbursements owed to each party. As the result of Nesbitt II, Nesbitt received an allocation of all of the remaining disputed |gassets since they involved his employment as a lawyer and his personal wine collection. Those assets and their established values were:

Wine collection $309,085.00

Campaign funds $ 92,210.57

PLC, law firm $173,765.84

Retirement $ 11,400.00

Total Amount $586,461.41

As noted in the final judgment, Pittman was entitled to an equalizing payment of one-half that value, or $293,231.76.

Next, the partition judgment of the district court as recast and amended in Nes-bitt II can be summarized for the total reimbursements, including the equalizing payment, as follows:

Reimbursements to Nesbitt

Two months’ rent $ 4,600.00

Mortgage payments $ 3,839.00

Judgment from prior accident $127,146.27

His ½ share of the money giv- $ 23,700.00 en to the community property regime from the sale of his separate property

Total Amount $159,285.27

Reimbursements to Pittman

Her ½ share of all community $293,231.76 assets

Electric Bills $ 743.16

Money Advanced to PLC $ 5,443.26

Damages By Nesbitt to Com- $ 40,000.00 munity House

½ of the campaign debt owed to $145,150.00 Bancorp that was secured by the community

Total Amount $484,568.18

Thus, by subtracting the reimbursements owed to Nesbitt from those owed to Pittman, Nesbitt owed Pittman $325,282.91 under the prior judgment.

In addition to the $325,282.91 owed to Pittman, the Nesbitt II judgment went further in its ruling and granted Pittman a lien to secure this | ¡¿judgment. Upon any default by Nesbitt, Pittman was given the right to enforce a lien against any property necessary to:

“effectuate said equalizing payment to plaintiff. Should there be a deficiency, the collection of the lien shall first apply to the wine collection, then the defendant’s share of the community and finally to the separate property of B. Woodrow Nesbitt, Jr.”

Nesbitt II at 1235.

After the Nesbitt II judgment became final, Nesbitt instituted the following proceedings challenging Pittman’s actions in execution on the judgment. First, due to Nesbitt’s failure to satisfy the judgment, Pittman obtained a writ of fieri facias to seize the wine collection. On August 25, 2010, Nesbitt filed a rule for injunctive relief to stop Pittman from seizing the wine. As to the exceptions, Nesbitt argued that the issues of the wine’s value and his use of the wine ‘as cash’ to satisfy any deficiency were res judicata as a result of Nesbitt II. Asserting the law of the case, Nesbitt believed Pittman’s actions were contrary to the prior rulings. In his rule to show cause, Nesbitt argued that the proper procedure for Pittman’s action was under a writ of sequestration rather than a writ of fieri facias and that the value of wine as determined in Nesbitt II would remain constant for the execution of Pittman’s judgment.

In the arguments over Nesbitt’s action for injunction, both parties submitted calculations of the total amount that they believed was owed to Pittman. Nesbitt’s calculations showed that he only owed $22,607.96 while Pittman determined the total amount was $325,282.91.

On September 24, 2010, the trial court upheld Pittman’s action to seize the wine collection under a writ of fieri facias and denied all of | ¿Nesbitt’s requests for relief, including his request for injunctive relief. Importantly, the trial court denied Nes-bitt’s argument that he only owes $22,607.96. Additionally, the trial court listed the relevant reimbursements for each party, and by simply adding these amounts and then subtracting the reimbursements owed to Nesbitt, the total payoff of $325,282.91 was clearly reflected in the trial court’s ruling.

The trial court went further in its decision and noted that the lien was granted in Nesbitt II to secure the judgment. When Nesbitt defaulted on the judgment, Pittman was entitled to and did properly seize the wine collection under a writ of fieri facias. While Nesbitt filed a notice of intention to file a supervisory writ, he did not appeal the denial of injunctive relief.

Despite the September 24 ruling denying injunctive relief, Nesbitt next filed a rule on October 18, 2010, entitled “Rule to Determine Payoff of Judgment Rendered September 24, 2010 by Second Circuit Court of Appeal, Recognition of Amount Deposited by B. Woodrow Nesbitt, Jr., as a Payoff Completely Pays the Judgment of June 24, 2009, or Determination of What Amount is Needed to Payoff the Judgment.” This summary proceeding was accompanied by Nesbitt’s payment of $24,901.11, which he deposited into the court as an alleged satisfaction of his debt. In the alternative, Nesbitt sought a declaration of how much was needed to pay off the judgment. Nesbitt’s rule calculates the $24,901.11 in the same way as that previously rejected by the trial court in its September judgment, the only difference being the addition of judicial interest. On October 22, 2010, the trial court ordered Pittman to file a detailed itemization of her ^^reimbursements, computation and payoff calculations. After receiving submissions from both parties regarding the amount owed by Nesbitt, the trial court merely attached the Nesbitt II holding and rendered judgment that Nesbitt owed $325,282.91 plus interest.

From this ruling, Nesbitt appeals. He seeks a declaration that he owes $22,607.96 plus legal interest under the Nesbitt II judgment and that the judgment “can be paid in wine or the money as placed into the registry of the court.” The appellee requests that the court hold that the appeal is frivolous.

Discussion

Using the form of the trial court’s original judgment of partition, this court at the conclusion of its opinion in Nesbitt II recast that judgment with a partial amendment. Nesbitt II at 1234-1236. Regarding the judgment’s provisions for reimbursements owed by the spouses, the judgment was for the payment of money, i.e. a money judgment. The offsetting effect of those reimbursements was that Nesbitt was to pay to Pittman more than the reimbursement she owed to him so that he became the judgment debtor for a money judgment. In Succession of Jenkins, 41,202 (La.App.2d Cir.7/26/06), 936 So.2d 268, 271, this court set forth the law regarding the definitive nature of a money judgment as follows:

The specific nature and amount of damages should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Security Nat. Partners, Limited Partnership v. Baxley, 37,747 (La.App.2d Cir.10/29/03), 859 So.2d 890. As our supreme court held a century ago in Fontelieu v. Fontelieu, 116 La. 866, 41 So. 120, 125 (1906):
[fi[I]f a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it with certainty and precision. If the amount remains to be determined by a future contingency, or ascertained by references, or diminished by the allowance of an unliquidated credit, or is otherwise indefinite and uncertain, it is no proper judgment.

In Nesbitt II, no argument was presented challenging as indefinite, uncertain, or incalculable, the money judgment for the partition reimbursements. When the Nes-bitt II judgment became final, therefore, Nesbitt was a judgment debtor under a definitive money judgment. We see nothing in our judgment of Nesbitt II that makes it uncertain or incalculable as a money judgment against Nesbitt.

The next phase for civil procedure concerns the execution of the judgment by the judgment creditor. Pursuant to La. C.C.P. art. 2291 and the special directive of the Nesbitt II judgment, Pittman began execution on her money judgment by directing the seizure and sale of Nesbitt’s wine by a writ of fieri facias. While Nes-bitt attempted to enjoin the execution of the judgment pursuant to La. C.C.P. art. 2298, that summary procedure was denied him by the trial court’s first ruling in this matter on September 24, 2010. That denial of relief is now a final judgment, and Pittman is at liberty to obtain payment of her judgment by the seizure and sale of the wine.

The next proceeding instituted by Nes-bitt is the action now before us. The action tenders an “unconditional” payment on Pittman’s money judgment into the court’s registry and seeks declaratory judgment relief concerning the amount of Nesbitt’s obligation as a judgment debtor. This |7summary proceeding is not a procedure recognized in Book IV of the Code of Civil Procedure for the execution of judgments. It presupposes that Pittman will neither obtain satisfaction of the judgment through her pending seizure of the wine nor simply choose to forgive the debt. Under the applicable procedure for the execution of the judgment, it is the judgment creditor’s choice of action for collection of her debt. Yet, Nesbitt’s filing of the present rule to show cause preempts the process. Moreover, falling on the heels of Nesbitt’s unsuccessful injunction action, the present action asserts essentially the same claims again to the trial court.

A summary proceeding, like an ordinary action, is subject to a peremptory exception. La. C.C.P. arts. 2593 and 2595. The pertinent question in reviewing an exception of no cause of action is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114.

While the peremptory exception of no cause of action has not been raised and addressed on appeal by the parties, this court may notice and determine whether the present rule to show cause states a cause of action. La. C.C.P. art. 927(B).

Once a writ of fieri facias has been obtained, La. C.C.P. art. 2291, et seq., procedure articles control the rights and possible actions of both the judgment debtor and creditor. The judgment debtor’s primary defense is injunctive relief, and La. C.C.P. art. 2298 provides, in pertinent part:

Injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ of fieri facias shall be granted to the 1 ¿judgment debtor or to a third person claiming ownership of the seized property:
(2) When subsequent to the judgment payment has been made, or compensation has taken place against the judgment, or it has been otherwise extinguished. If the payment, compensation, or extinguishment is for a part of the judgment, the injunction shall be granted to that extent, and the execution shall continue for the amount of the excess.

Nesbitt’s rule to show cause does not seek injunctive relief. It does not assert that the judgment has been extinguished. The pleading asserts that the total amount of the money judgment reflected in Nesbitt II was not a definitive money judgment for $325,282.91. We find that the judgment was a definitive final judgment. Thus, from this consideration of Nesbitt’s claims, we find that his action shall be dismissed on the peremptory exception of no cause of action.

Frivolous Appeal

The appellee requests in her brief that Nesbitt receive sanctions for this frivolous appeal and bear her attorney’s fees. She did not answer the appeal. La. C.C.P. art. 2133 states that “an appellee shall not be obliged to answer the appeal ... unless he demands damages against the appellant.” Additionally, La. C.C.P. art. 2164 states that:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

Article 2164 grants the appellate court the authority to address the issue of frivolous appeal from the proceedings conducted before it. The award of damages and attorney's fees for frivolous appeal, like sanctions at |flthe trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact or law. Johnson v. Johnson, 08-0060 (La.App.4th Cir.5/28/08), 986 So.2d 797.

Although an appeal or answer to the appeal is required for appellate review and modification of the trial court’s award of damages, the issue of frivolous appeal first arises at the appellate court level and therefore may be adjudicated and remedied by this court. The jurisprudence has also determined that when an issue of attorney’s fees is present in the case, it is within the appellate court’s discretion to award or increase attorney’s fees for the expense of the appeal regardless of whether the appellee answered the appeal. La. C.C.P. art. 2164; Gandy v. United Services Auto Assoc., 97-1095 (La.App.5th Cir.10/14/98), 721 So.2d 34; Smith v. Pilgrim’s Pride Corp., 44,080 (La.App.2d Cir.2/25/09), 4 So.3d 983, writ denied, 09-0961 (La.6/19/09), 10 So.3d 739. Factors considered in determining the amount of attorney’s fees include the skill exercised by the attorney and the time and work required on appeal. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App.2d Cir.4/7/04), 870 So.2d 515, as cited in Smith, supra.

In this case, Nesbitt filed the current rule in the trial court less than a month after he was denied injunctive relief. His present pleading states no cause of action and was repetitive of his prior assertions. Accordingly, we find this appeal frivolous. The appellee shall therefore be awarded $2,500 in attorney’s fees.

| m Conclusion

For the foregoing reasons, the judgment of the trial court denying appellant relief is amended reflecting the dismissal of the action on the peremptory exception of no cause of action. We also find the appeal to be frivolous and award the appellee $2,500 in attorney’s fees. Costs of this appeal are assessed to appellant.

JUDGMENT AMENDED; AS AMENDED CASE DISMISSED.

      . La. C.C.P. art. 2291 provides: A judgment for the payment of money may be executed by a writ of fieri facias directing the seizure and sale of property of the judgment debtor.


author: DENNIS R. BAGNERIS, SR., Judge. BELSOME, J., MURRAY, J.,

text:
    FIRST NBC BANK v. Marlin N. GUSMAN in his Capacity as Sheriff for the Parish of Orleans.
    No. 2011-CA-0458.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.
    Rehearing Denied Oct. 26, 2011.

      Gregory J. St. Angelo, Jose Carlos Mendez, La Nasa St. Angelo <& La Nasa, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Jeffrey G. Douglas, Peter C. Rizzo, New Orleans, LA, for Defendant/Appellee.
    Andrew L. Kramer, Binford E. Parker III, New Orleans, LA, for Alfortish Holdings, L.L.C.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, SR., Judge.

|,Plaintiff, First NBC Bank (“FNBC”), appeals a judgment of the trial court, which denied its request for a writ of mandamus and a preliminary injunction following the sale of immovable property at a Sheriffs sale to the highest bidder, intervenor Alfortish Holdings, L.L.C. (“Al-fortish”). On appeal, Alfortish filed a motion to strike certain portions of FNBC’s reply brief. For the following reasons, we affirm the judgment of the trial court; and we deny Alfortish’s motion to strike portions of FNBC’s reply brief.

FACTS

On November 24, 2010, Marlin N. Gus-man, defendant and Sheriff for the Parish of Orleans, conducted a public auction of immovable property located at 984 Topaz Street situated in the Parish of Orleans, State of Louisiana (the “Property”). Al-fortish was the successful bidder at the public auction and the Property was sold for $255,000.00. On that same date, Al-fortish tendered a deposit to the Sheriff for 10% of the bid amount, or $25,500.00, with the balance to be paid within thirty days. Alfortish paid the full purchase price for the Property on January 7, 2011.

|2On January 14, 2011, FNBC, a junior lien holder of the Property, filed a petition for writ of mandamus and temporary restraining order against Sheriff Gusman alleging that because the balance of the purchase price was not paid within thirty days of the public auction, a temporary restraining order and writ of mandamus should be issued to enjoin the Sheriff from proceeding with the sale of the Property and to order the Sheriff to re-advertise the Property for sale. In its petition, FNBC declared that its counsel contacted the Sheriffs office on January 11, 2011 and was informed that the purchase price had not been paid by that date. Attached to the petition was a copy of a January 6, 2011 letter faxed to the Sheriffs office, claiming that FNBC was an “interested party” and requesting that the Sheriff re-advertise the Property for sale because more than thirty days elapsed since the adjudication of the Property and the balance of the purchase remained unpaid. Based on these allegations, which were not confirmed by supporting affidavits, the trial court issued a temporary restraining order on January 14, 2011, “restraining Marlin N. Gusman, or anyone acting on his behalf or at his direction from proceeding with the sale of the immovable property referenced in the foregoing petition.” The trial court further ordered that security be fixed at $15,000.00, which FNBC paid on January 20, 2011.

On January 20, 2011, Alfortish filed a petition for intervention, requesting a judgment denying FNBC’s request for a preliminary injunction and writ of mandamus and awarding all damages and expenses, including attorney’s fees, incurred as a result of FNBC’s filing of the petition and wrongfully obtaining the temporary restraining order. On January 25, 2011, Alfortish filed an opposition to petition for writ of mandamus and temporary restraining order arguing that because of the crash of the computer system for the Orleans Parish Conveyance Office, [.«¡which occurred on October 26, 2010 and continued until January 4, 2011, it was unable to confirm clear title. Due to the crash, Al-fortish alleges that it obtained a written extension of time through January 14, 2011 from the seizing creditor, Wells Fargo Bank, and provided that extension to the Sheriff on December 22, 2010. Attached to the opposition, the co-manager of Al-fortish, Timothy R. Alfortish, filed an affidavit stating that on December 17, 2010, he “obtained an oral extension to pay the remaining amount due for the sale of the Property through and until January 14, 2011 from the seizing creditor, Wells Fargo Bank” and that “[o]n December 22, [2010] a representative of Wells Fargo Bank, Catherine Middleton, sent an email to Brenda Douglas from the Sheriffs Office, confirming the extension of time through and until January 14, 2011.”

After a hearing on January 26, 2011, the trial court denied FNBC’s application for a preliminary injunction and writ of mandamus. On January 28, 2011, Sheriff Gus-man completed the sale to Alfortish and recorded an act of transfer in the Orleans Parish Conveyance Office. FNBC now appeals the judgment denying the preliminary injunction and writ of mandamus.

STANDARD OF REVIEW

To obtain a preliminary injunction, a petitioner must demonstrate that he will suffer irreparable injury, that the petitioner is entitled to the relief sought, and must make a prima facie showing that he will likely prevail on the merits of the case. Saunders v. Stafford,, 2005-0205, p. 5 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754. A “[r]eview of the granting or denial of a preliminary injunction is whether the trial court committed an error of law or made a factual finding which is manifestly erroneous or clearly wrong.” Id. |4Further, a mandamus is an extraordinary remedy, which must be used sparingly by the court and only to compel action that is clearly provided by law. Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4, (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. Id. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Fire Protection Dist. Six v. City of Baton Rouge Dept. of Public Works, 2003-1205, p. 3 (La.App. 1 Cir. 12/31/03), 868 So.2d 770, 772.

DISCUSSION

The issue on appeal is whether the trial court erred in denying FNBC’s request for a writ of mandamus and preliminary injunction when Alfortish failed to pay the entire purchase price within thirty days after the adjudication. At the time of this 2010 judicial sale, the Civil Code articles pertaining to sales by public auction provided:

La. R.S. 9:3167 — Judicial sales are subject to the rules laid down above for public sales in general, in all such things as are not contrary to the formalities expressly prescribed for such sales, and with the modifications contained hereafter.
La. R.S. 9:3157 — When the highest price offered has been cried long enough to make it probable that no higher will be offered, he who has made the offer is publicly declared to be the purchaser, and the thing sold is adjudicated to him.
La. R.S. 9:3158 — This adjudication is the completion of the sale; the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale.

Further, the Code of Civil Procedure specifically addresses an adjudication at the time of a judicial sale under a writ of fieri facias and provides as follows:

| Jug. C.C.P. art. 2371 — The adjudication transfers to the purchaser all the rights and claims of the judgment debtor as completely as if the judgment debtor had sold the property.
La. C.C.P. art. 231p2 — Within fifteen days after the adjudication, the sheriff shall pass an act of sale to the purchaser, in the manner and form provided by law.
The act of sale adds nothing to the force and effect of the adjudication, but is only intended to afford proof of it.

Additionally, La. R.S. 13:4360 provides the following:

A. If the terms of the sale provide for the full payment of the adjudication price at the moment of the adjudication, or if the terms provide for a deposit, and the purchaser fails to make such full payment or deposit, the seizing creditor may direct the officer conducting the sale either to re-offer the property immediately, or re-advertise the property for sale as provided in Sub-section C of this Section. If the property is re-offered for sale immediately, the first purchaser is relieved of any liability.
B. If the purchaser makes the deposit required by the terms of the sale, and fails to pay the entire purchase price within thirty days after the adjudication, on demand of any interested party the officer conducting the sale shall re-advertise the property for sale as provided in Sub-section C of this Section.
C. When the property is re-advertised, it shall be in the manner required by law for the advertisement of the original sale, and the second sale is at the risk and for the account of the first purchaser. Should there be a loss because of the second sale, the first purchaser is liable for such loss; but should the property bring a higher price at the second sale, the first purchaser has no right to the increase.
The first purchaser may not bid at a second sale.

When we . examine the actions of Alfortish regarding the sheriff’s sale adjudication under these provisions, especially in light of the fact that the Orleans Parish’s mortgage and conveyance records system crashed during this time period, |¿we find no merit in FNBC’s argument that the Sheriff was required to re-advertise the Property upon Alfortish’s failure to pay the entire purchase price within thirty days of the adjudication. The public records doctrine is founded upon our public policy and social purpose of assuring stability of land titles. Camel v. Waller, 526 So.2d 1086, 1089 (La.1988) citing Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 772, 105 So.2d 392, 414 (1958). The purpose of the public records law is intended to enforce the public’s fundamental, constitutional right to public records in the most expansive and unrestricted way possible. Alliance for Affordable Energy v. Frick, 96-1763 p. 4, (La.App. 4 Cir. 5/28/97), 695 So.2d 1126, 1135. Not only does the result sought by FNBC conflict with the purpose of the public records doctrine, but the seizing creditor, Union Corp, agreed to the short extension and Alfortish paid the full price prior to FNBC’s petition being filed. Under these unusual set of facts, we see no error in the trial court’s judgment denying FNBC’s writ of mandamus and temporary restraining order.

Because we find Sheriff Gusman was not required to re-advertise the Property under these peculiar facts, we pretermit any discussion as to whether FNBC was required to tender a deposit for re-advertisement. Further, because we find no merit in Alfortish’s motion to strike certain portions of FNBC’s reply brief, we hereby deny the motion.

AFFIRMED; MOTION TO STRIKE PORTIONS OF REPLY BRIEF DENIED

BELSOME, J., concurs with reasons.

MURRAY, J., dissents with reasons.

BELSOME, J.,

concurs •with reasons.

| j Although I concur in the result reached by the majority opinion, I write separately to further emphasize the unusual circumstances that surrounded the time period in which this particular sale took place. The crash of the computer system that maintained the mortgage and conveyance records created an unprecedented hurdle for real estate transactions during that period which resulted in the brief extension granted Alfortish Holdings, LLC by the seizing creditor Wells Fargo Bank. Under these limited circumstances, I do not find the trial court was manifestly erroneous or clearly wrong in denying FNBC’s preliminary injunction and writ of mandamus.

MURRAY, J.,

dissents with reasons.

_JjThe governing statute in this case is La. R.S. 13:4360(B). The statute provides that if the purchaser at a judicial sale makes the required deposit, but fails to pay the entire purchase price within thirty days after the sale, any interested party may demand that the property be re-advertised. The statute further provides that the officer conducting the sale “shall re-advertise the property for sale.” La. R.S. 13:4360(B). The word “shall” is mandatory. La. R.S. 1:3.

Construing a similarly worded prior statutory provision, the Louisiana Supreme Court in Pontchartrain Realty Co. v. Passera, 172 La. 243, 248, 133 So. 761, 763 (1931), rejected the buyer’s argument that the statute could not be invoked when the seizing creditor could not tender good title to the property. The Supreme Court reasoned that “[t]he law is plain and makes no exceptions. It applies to all cases where real property is sold by sheriffs and constables.” Pontchartrain, 172 La. at 248, 133 So. at 763. The Supreme Court further reasoned that “[a]n adjudi-catee’s failure to comply [by paying the balance within thirty days | ¡>after the sale] gives any person who is interested in having the property sold the absolute right to demand that it, be readvertised for sale and when such demand is made, as was done in this case, it is made the mandatory duty of the sheriff or constable to proceed.” Id. The Supreme Court still further reasoned that the statutory provision was unambiguous and that the sheriff in that context had “no discretion.” Pontchartrain, 172 La. at 247, 133 So. at 763.

The governing statute in this case, La. R.S. 13:4360(B), is likewise unambiguous and imposes a mandatory duty on the sheriff under the circumstances presented here. The purchaser, Alfortish Holding, L.L.C., failed to pay the balance of the purchase price within thirty days of the sale. An interested party, First NBC Bank (“FNBC”), made a timely request of the sheriff (the officer conducting the sale) to re-advertise the property. Under these circumstances, the sheriff had a mandatory duty to comply with FNBC’s request.

Accordingly, I would reverse the trial court’s judgment, recognize the adjudication to Alfortish is an absolute nullity, and remand for the trial court to order the sheriff to resell the property in accordance with law.

      . The provision at issue in the Pontchartrain case provided that:
      [UJnless within thirty days from the date of any sale made as aforesaid the entire purchase price be paid, then on demand of any party in interest the Sheriff or Constable shall advertise the property for sale after fifteen days’ notice and three advertisements within that time, and the sale shall be at the risk and for the account of the former purchaser, and should there be any loss by reason of said second sale the first purchaser shall be liable therefor, but should the property at the second sale bring an increased price, the first purchaser shall have no right to any portion of said increase.

        Pontchartrain, 172 La. at 247, 133 So. at 763.


author: GENOVESE, Judge. GENOVESE, Judge.

text:
    Barbara RICHARD v. CALCASIEU PARISH SCHOOL BOARD.
    No. 11-469.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Opinion on Grant of Rehearing Dec. 28, 2011.

      Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendant/Appellant, Calcasieu Parish School Board.
    Mark Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Barbara Richard.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_LJn this workers’ compensation case, employer, Calcasieu Parish School Board (School Board), appeals the judgment of the Office of Workers’ Compensation (OWC) reinstating temporary total disability benefits (TTD) to claimant, Barbara Richard, and awarding her $7,000.00 in attorney fees. Ms. Richard answered the appeal, seeking penalties and additional attorney fees for work necessitated by the employer’s appeal. For the following reasons, we affirm and render.

FACTS AND PROCEDURAL HISTORY

Ms. Richard sustained a work-related injury on January 3, 2003, while employed by the School Board. She was treated conservatively for several years during which the School Board paid her medical benefits and $323.64 a week in TTD. Effective May 1, 2010, the School Board reduced Ms. Richard’s benefits to SEB in the amount of $97.19 a month.

Ms. Richard originally filed a Disputed Claim for Compensation (1008) in 2007, and, relevant to the present appeal, she amended her 1008 in May 2010 when her benefits were reduced to SEB. Although Ms. Richard listed several other issues in dispute, at the trial on December 8, 2010, the parties stipulated that the only issues to be decided were the appropriateness of the School Board’s reduction of workers’ compensation benefits from TTD to SEB and whether said reduction warranted an award of penalties and attorney fees. The workers’ compensation judge (WCJ) found that the School Board failed to meet its burden of proof relative to its entitlement to a reduction in benefits from TTD to SEB. Thus, the WCJ signed a judgment on February 21, 2011, restoring Ms. Richards’ benefits to TTD status and awarding her attorney fees of $7,000.00. It is from this judgment that [2the School Board appeals, and Ms. Richard answers the appeal seeking a penalty award and additional attorney fees for work done on appeal.

ISSUES

We must decide whether the WCJ erred (1) in finding that the School Board failed to meet its burden of proof in holding that TTD benefits be reinstated, and (2) in awarding Ms. Richard attorney fees.

LAW AND DISCUSSION

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must not determine whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Richard v. Vermilion Hosp., 10-385, pp. 3-4 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, 1223, writ denied, 10-1611 (La.10/8/10), 46 So.3d. 1269 (quoting Landry v. Furniture Ctr., 05-643, pp. 5-6 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 309, writ denied, 06-358 (La.4/28/06), 927 So.2d 290). Additionally, “[t]he decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review.” Weaver v. S. Erectors, Inc. of Florida, 10-783, p. 13 (La.App. 3 Cir. 12/8/10), 53 So.3d 547, 555 (citing Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181).

IsReduction in Benefits to SEB

Pursuant to La.R.S. 23:1221(3)(a), an employee is entitled to receive SEB if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of his/her average pre-injury wage. The landmark decision on the application of this statutory provision is Banks v. Indus. Roofing and Sheet Metal Works, Inc., 96-2840, pp. 8-9 (La.7/1/97), 696 So.2d 551, 556 (emphasis added), wherein our supreme court opined as follows:

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman, 93-1530 at p. 7, 630 So.2d at 739. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, 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 his or the employer’s community or reasonable geographic region. LA.REV. STAT.ANN. § 23:1221(3)(c)(i) (West Supp.1997); Daigle, 545 So.2d at 1009. Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008, 1014-15 (La.App. 3d Cir.1992).

In Banks, our supreme court succinctly set forth the requisite evidence for an employer to fulfill its burden of proving job availability, stating as follows:

|4(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.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Id. at 557 (footnote omitted). Moreover, this court has added the additional requirement that the vocational rehabilitation consultant obtain the approval for the identified job from the employee’s treating physician. Chelette v. Riverwood Int’l USA, Inc., 02-1347 (La.App. 3 Cir. 4/30/03), 843 So.2d 1245, rev’d in part on other grounds, 03-1483 (La.10/17/03), 858 So.2d 412.

In the instant matter, the WCJ found that the School Board failed to meet its burden of proof as required by La.R.S. 23:1221(3)(a), Banks, and Chelette. We find no manifest error in this determination.

A detailed discussion of Ms. Richard’s medical history is not necessary for purposes of this appeal. The crux of the matter before this court is whether the School Board appropriately reduced Ms. Richard’s benefits to SEB based on the approval of her treating physician, Dr. Dale Bernauer, of the jobs presented to him by the vocational rehabilitation consultant, despite Dr. Bernauer’s March 10, 2010 letter to the School Board setting forth additional criteria which he found “medically necessary” for Ms. Richard to be able to return to sedentary work. We agree with Ms. Richard that “this medically necessary restriction by the treating physician is crucial in determining whether any of the jobs presented by [the School Board] to Ms. Richard were actually physically available to her.” If they Rwere not, then the employer failed to meet the statutory and jurisprudential requirements for a reduction in Ms. Richard’s workers’ compensation benefits from TTD to SEB.

The most current functional capacity evaluation (FCE) performed on Ms. Richard was completed on October 17, 2009. The FCE indicated that she was capable of performing a sedentary level job. In accordance therewith, the vocational rehabilitation consultant, Leonard Francois, attempted to locate jobs suitable for Ms. Richard in keeping with her education, her work history, and her physical restrictions. Upon locating appropriate employment opportunities, Mr. Francois contacted the employer, obtained a job description, and prepared a representative job description which was presented to Dr. Bernauer. Dr. Bernauer indicated that Ms. Richard was “currently able to perform” the jobs described therein. Mr. Francois made the availability of these jobs known to Ms. Richard after confirming with the employer that the described positions were still available. Thereafter, the School Board reduced Ms. Richard’s workers’ compensation benefits from TTD to SEB.

However, two weeks before giving his approval, Dr. Bernauer wrote a letter to the School Board dated March 10, 2010, stating that “[i]f she is going back to work sedentary, she needs to actually stand more than sit and have time to take breaks. This would be medically necessary for her.” Ms. Richard contends that based upon these restrictions, she was not physically able to perform the jobs located by Mr. Francois and relied upon by the School Board in reducing her benefits.

Mr. Francois testified at trial, detailing the actions he took in locating suitable jobs for Ms. Richard and, ultimately, obtaining the approval for Ms. Richard to perform these jobs from Dr. Bernauer. However, Mr. Francois | f,admitted that he had never seen the March 10, 2010 correspondence from Dr. Bernauer, and he was unaware that Dr. Bernauer had indicated that it was “medically necessary” that Ms. Richard be able to take breaks if she were to be able to perform sedentary work. Accordingly, Mr. Francois testified that he did not take this restriction into account when identifying employment opportunities. Mr. Francois testified that, generally, an employee is allowed one fifteen-minute break in the morning and one fifteen-minute break in the afternoon. Therefore, he candidly admitted that if Ms. Richard required additional breaks as stated by Dr. Bernauer, the jobs which he located were “probably not” jobs that Ms. Richard could realistically perform.

Based upon the evidence, the WCJ found that given the additional restriction, which Dr. Bernauer stated was “medically necessary,” the jobs presented to Ms. Richard were not jobs that were actually physically available to her. It was his conclusion that Ms. Richard’s benefits were reduced to SEB based upon the purported availability of jobs “which the totality of the opinions from the treating physician clearly showed she could not” perform.

The burden of proof herein rests with the School Board to establish by a preponderance of the evidence that Ms. Richard was physically able to perform a particular job and that that job was available to her. The record supports the WCJ’s conclusion that the jobs presented to Ms. Richard were not physically available to her. Accordingly, we find no manifest error in the WCJ’s ruling that Ms. Richard be restored to TTD status effective May 1, 2010.

Penalties and Attorney Fees

The School Board contends that the WCJ erred in awarding Ms. Richard $7,000.00 in attorney fees. In her answer to appeal, Ms. Richard seeks a modification of the OWC judgment requesting the imposition of a penalty against [ 7the School Board and that this court award her additional attorney fees for work done on this appeal.

Louisiana Revised Statutes 23:1201 provides that penalties and attorney fees may not be awarded if a claim is “reasonably controverted.” “An employee’s right to benefits will be considered to be reasonably controverted when the employer or his insurer had ‘sufficient factual information to reasonably counter the factual information presented by the claimant.’ ” Gradney v. Louisiana Commercial Laundry, 09-1465, p. 6 (La.App. 3 Cir. 5/12/10), 38 So.3d 1115, 1120 (quoting Thibodeaux v. L.S. Womack, Inc., 94-1375, p. 2 (La.App. 3 Cir. 4/5/95), 653 So.2d 123, 125).

On this issue, the WCJ concluded that penalties were not warranted, reasoning that “this is a situation where an employer holds in one hand an approval of a potential job, and in the other hand has a piece of paper from the self-same physician which just doesn’t mesh with the first document.” Although he questioned why the School Board didn’t contact Dr. Bernauer for clarification, the WCJ concluded that penalties were not warranted in this case. However, Ms. Richard did prevail at trial which is consistent with the WCJ’s award of a reasonable attorney fee. We find no manifest error in this conclusion.

|rMs. Richard also seeks an award of additional attorney fees for the work done on appeal. After considering her request, we award Ms. Richard $3,500.00 for work done on appeal.

DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed. Additionally, we render an additional award of $3,500.00 in attorney fees for work performed on appeal. All costs of this appeal are assessed to the Calcasieu Parish School Board.

AFFIRMED AND RENDERED.

ON REHEARING

GENOVESE, Judge.

| We revisit this case pursuant to the application for rehearing by the employer, Calcasieu Parish School Board (School Board), relative to the workers’ compensation claim of the employee, Barbara Richard. We grant this rehearing solely on the issue of whether the workers’ compensation judge (WCJ) erred in restoring Ms. Richard’s workers’ compensation benefits to temporary total disability (TTD) status. In our original opinion, we affirmed the decision of the WCJ reinstating TTD benefits to Ms. Richard. Pertinent hereto is the decision of this court by another panel rendered the same day as the instant case entitled Sharp v. Landscape Management Services, 11-340 (La.App. 3 Cir. 10/5/11), 74 So.3d 1239.

In the instant case, we affirmed the WCJ’s reinstatement of TTD benefits in favor of Ms. Richard and his award of $7,000.00 in attorney fees, plus we awarded $3,500.00 in attorney fees for work done on appeal. However, the sole issue before us on this rehearing is whether Ms. Richard is entitled to TTD benefits or supplemental earnings benefits (SEB).

The law pertaining to SEB was recently set forth by our supreme court in Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, pp. 4-6 (La.1/9/11), 56 So.3d 170, 174-75 (footnote omitted):

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.”
2Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, 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 his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(e)(i); Banks, supra at 556; Daigle, supra at 1009.
The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

As set forth in Poissenot, as quoted in Sharp, and La.R.S. 23:1221(1), Ms. Richard bears the burden of establishing by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment as a result of a work-related injury in order to be awarded TTD benefits. The record clearly indicates that the most current functional capacity evaluation (FCE) performed on Ms. Richard was completed on October 17, 2009. The FCE indicated that she was capable of performing a sedentary level job. Therefore, it was not error for the School Board to convert Ms. Richard’s benefits to SEB, and the WCJ erred in reinstating Ms. Richard’s TTD benefits.

However, once it was determined that SEB were the appropriate benefits payable to Ms. Richard, then the burden shifted to the School Board to establish by |sa preponderance of the evidence that a particular job was available to her and that she was physically able to perform that particular job. Given the restrictions placed on Ms. Richard by Dr. Bernauer as set forth in the record, the jobs presented to Ms. Richard were not jobs that were actually physically available to her. Therefore, the SEB are to be paid based on a zero earning capacity.

DISPOSITION

The WCJ erred in restoring Ms. Richard to TTD benefits status. Our original judgment and that of the WCJ restoring Ms. Richard to TTD benefits status are reversed, and judgment is now rendered awarding Ms. Richard SEB at a zero earning capacity rate as of May 1, 2010. All other aspects of our original judgment are affirmed.

REHEARING GRANTED; AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Louisiana Revised Statutes 23:1221 provides in pertinent part as follows:
      (3) Supplemental earnings benefits.
      (a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages” by fifty-two and then dividing the quotient by twelve.

      . Louisiana Revised Statutes 23:1201 provides in pertinent part as follows:
      F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:

      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.