author: WALTER J. ROTHSCHILD, Judge.

text:
    Paula A. ROUSSELL v. V.J. ROLLO SECURITY SERVICE, INC.
    No. 10-CA-245.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Paula A. Roussell, I.P.P., Mount Airy, LA, Plaintiff/Appellant.
    Amanda H. Carmon, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2In this worker’s compensation case, claimant, Paula A. Roussell, appeals from the December 21, 2009 judgment of the worker’s compensation judge which granted the Exception of Prescription filed by defendants, V.J. Rollo Security Service Inc. (“V.J. Rollo”) and Louisiana Workers’ Compensation Corporation (“LWCC”), and dismissed her claims with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Paula Roussell contends that on August 31, 2002, while in the course and scope of her employment with V.J. Rollo, she suffered injuries to her back and legs while closing a gate at the chemical plant where she was working. Following this incident, Ms. Roussell was provided with medical and indemnity benefits from LWCC on behalf of its insured, V.J. Rollo. However, LWCC did not make any indemnity payments to Ms. Roussell or pay any medical payments on her behalf after 2003.

|sOn August 12, 2009, Ms. Roussell filed a Disputed Claim for Compensation with the Office of Worker’s Compensation asserting that she suffered a work-related accident and was entitled to worker’s compensation benefits, but her wage benefits had been terminated, medical treatment had not been authorized, and that she had been totally disabled since 2005. On November 20, 2009, V.J. Rollo filed an Exception of Prescription, arguing that Ms. Roussell’s claim for worker’s compensation benefits had prescribed and should be dismissed. A hearing was held before the worker’s compensation judge on December 21, 2009. After hearing argument from Ms. Roussell, in proper person, and counsel for V.J. Rollo and LWCC, as well as testimony from Lisa Robbins, the LWCC claims representative assigned to Ms. Roussell’s claim, the worker’s compensation judge granted the Exception of Prescription and dismissed Ms. Roussell’s claims with prejudice. It is from this judgment that Ms. Roussell appeals.

LAW AND DISCUSSION

On appeal, Ms. Roussell asserts that the worker’s compensation judge erred in granting defendants’ Exception of Prescription and dismissing her claims, arguing that her claims were timely filed or that prescription was interrupted or suspended under the doctrine of contra non valentum. V.J. Rollo and LWCC respond that Ms. Roussell’s claims were filed over six years after the last payment of benefits was made and thus, her claims are clearly prescribed.

The prescriptive period for a claim for worker’s compensation indemnity benefits is set forth in LSA-R.S. 23:1209(A) as follows:

(1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties Rhave agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

Thus, under LSA-R.S. 23:1209(A), worker’s compensation claims for indemnity benefits are barred unless filed: 1) within one year from the date of the accident; 2) one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; or 3) one year from the time the injury develops if not immediately manifested, but no more than two years after the accident. Feyerabend v. Boomtown Casino, 08-807, p. 4 (La.App. 5 Cir. 2/25/09), 9 So.3d 228, 230; Jackson v. General Motors Truck Plant, 38,987, p. 5 (La.App. 2 Cir. 10/27/04), 886 So.2d 603, 606.

The prescriptive period for a claim for worker’s compensation medical benefits is set forth in LSA-R.S. 23:1209(0 as follows:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

| ¿Thus, under La. R.S. 23:1209(0, when medical payments have been made after an accident, the claim for medical benefits prescribes three years from the date of the last payment of medical benefits. TIG Ins. Co. v. Louisiana Workers’ Compensation Corp., 09-330, p. 5 (La.App. 1 Cir. 9/11/09), 22 So.3d 981, 985.

The party pleading prescription generally has the burden of proving it. Frazier v. Deltide Fishing and Rental Tool, Inc., 03-53, p. 5 (La.App. 5 Cir. 5/28/ 03), 848 So.2d 143, 146. However, when prescription is evident from the face of the pleadings, the claimant bears the burden of showing that the action has not prescribed. Id. Accordingly, the claimant must prove that prescription was interrupted, suspended, or renounced. Bracken v. Payne and Keller Co., Inc., 06-865, p. 6 (La.App. 1 Cir. 9/5/07), 970 So.2d 582, 588.

The accident at issue here occurred on August 31, 2002. Ms. Roussell did not file a claim for compensation until August 12, 2009. The parties do not dispute that indemnity and medical benefits were paid after the accident. However, at the hearing on this matter, Lisa Robbins testified that the last payment of medical benefits on Ms. Roussell’s claim was made on May 28, 2003, and the last payment of indemnity benefits was also made in 2003. LWCC’s claims payment report was admitted into evidence in support of defendants’ assertion that no medical or indemnity benefits were paid after 2003.

At the hearing on this matter, the worker’s compensation judge asked Ms. Rous-sell if she had proof of any worker’s compensation payments made to her or any healthcare provider within the past three years. Ms. Roussell | ^replied that she did not. She stated that she paid all of her own medical expenses from 2005 through 2009. Ms. Roussell further admitted that LWCC did not pay any medical expenses since 2003.

Based on LSA-R.S. 23:1209(A) and (C), when Ms. Roussell filed her Disputed Claim for Compensation on August 12, 2009, her claim for worker’s compensation benefits was prescribed on its face. Thus, it was Ms. Roussell’s burden to show that prescription was interrupted, suspended, or renounced.

Ms. Roussell contends that her claims have not prescribed based on the doctrine of contra non valentum. Contra non valentum is a judicially created exception to the running of liberative prescription. Derrick v. Yamaha Power Sports of New Orleans, 03-184 (La.App. 5 Cir. 6/19/03), 850 So.2d 829, 832. The four recognized situations where the doctrine applies to prevent the running of prescription are:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;

(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;

(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;

(4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Id.; Hebert v. Shelton, 08-1275, p. 11 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197, 1206.

|7The evidence before us does not show that any of the situations to which contra non valentum applies were present in this case.

Ms. Roussell asserts that prescription was suspended, because her employer lulled her into a false sense of security by promising to take care of her. In order for a claimant to prove that her tardiness in filing a worker’s compensation claim was due to being lulled into a false sense of security by the employer, a worker’s compensation claimant must show that words/actions, or inactions on the part of the employer caused her forbearance. Feyerabend, 08-807 at 6, 9 So.3d at 231; Williams v. William Wrigley, Jr. Co., 94-370, p. 4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1092, 1094, writ denied, 95-373 (La.4/7/95), 652 So.2d 1346.

The record does not show that V. J. Rollo lulled Ms. Roussell into a false sense of security regarding the payment of worker’s compensation benefits. No payments were made to Ms. Roussell or any of her healthcare providers after 2003. At the hearing in this matter, Ms. Roussell admitted that after 2003, Ms. Robbins would not pay her or approve any treatments for her. She presented no other evidence to demonstrate that Ms. Robbins or anyone at V.J. Rollo promised to pay for any medical expenses or other benefits after 2003.

Ms. Roussell further claims that she has the right to seek modification of a compensation award on the grounds of a change in condition, pursuant to LSA-R.S. 23:1310.8(B). However, there is no previous award of compensation benefits to Ms. Roussell by a worker’s compensation court, so there is no previous award subject to modification. Accordingly, LSA-R.S. 23:1310.8(B) does not apply in this case.

| /The findings of a worker’s compensation judge are given great deference and will not be set aside by an appellate court absent a finding of manifest error or unless they are clearly wrong. Sperandeo v. Sydran Food Services, II, L.P., 01-675 (La.App. 5 Cir. 12/12/01), 806 So.2d 724, 727. After reviewing the record before us, along with the applicable law, we find no error in the worker’s compensation judge’s determination that Ms. Roussell did not meet her burden of establishing that prescription was interrupted or suspended. The record before us clearly demonstrates that Ms. Roussell’s claim for worker’s compensation benefits was prescribed when she filed her Disputed Claim for Compensation. Thus, Ms. Roussell’s claims on appeal are without merit.

DECREE

For the foregoing reasons, we affirm the worker’s compensation judge’s December 21, 2009 judgment granting defendants’ Exception of Prescription and dismissing Ms. Roussell’s claims against them.

AFFIRMED.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Joseph Andrew McFALL v. Shannon Mishell ARMSTRONG, Wife of Joseph Andrew McFall.
    No. 10-CA-181.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Laura J. Todaro, Neil D.W. Montgomery, Attorneys at Law, Kenner, Louisiana, for Plaintiff/Appellant.
    Maria M. Chaisson, Chaisson & Chais-son Law Firm, Attorney at Law, Destre-han, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

12This is an appeal by Mr. McFall from the trial court’s judgment awarding Ms. McFall interim spousal support. For the reasons which follow, we affirm the trial court’s judgment in part and amend in part.

STATEMENT OF THE CASE

Joseph and Shannon McFall were married on April 16, 1994. Joseph McFall filed a petition for divorce on October 15, 2009. On November 2, 2009, Shannon McFall filed an answer and reconventional demand in which she sought interim periodic spousal support. Ms. McFall had also filed a petition for protection from abuse in the trial court on September 22, 2009. That petition was dismissed by the trial court, but then later reinstated by the trial court. Mr. McFall filed an appeal from the trial court’s judgment reinstating Ms. McFall’s petition for protection from abuse. In an opinion dated June 29, 2010, this Court reversed the trial court’s decision finding the matter was not properly reinstated after dismissal. McFall v. McFall, 10-56 (La.App. 5 Cir. 6/29/10), 44 So.3d 329.

A hearing was held on November 30, 2009 and the issue of interim spousal support was addressed. The trial court issued a written judgment and reasons for judgment on December 15, 2009 awarding Ms. McFall interim spousal support of $1,075.00 per month, retroactive to September 22, 2009. The trial court also |3awarded her exclusive use of the family home, payment of her car loan and insurance, and payment of the mortgage during the pendency of the proceedings, subject to a one-half rental rate credit in the community property partition.

Mr. McFall filed a motion for new trial on the spousal support judgment, which was denied. Mr. McFall now appeals the trial court’s judgment awarding interim spousal support. For the reasons which follow, we affirm in part and reverse in part the judgment of the trial court.

DISCUSSION

Mr. McFall appeals the trial court’s award of interim spousal support of $1,075.00 per month. On appeal, he argues that the interim spousal support award exceeds the level of his net income and his ability to pay when combined with his child support obligation and the award exceeds the standard of living of the parties prior to their separation. Mr. McFall further argues the award should be retroactive to November 2, 2009, the date Ms. McFall filed her answer and reconventional demand seeking interim spousal support. Finally, Mr. McFall argues the trial court should have allowed him to reserve his rights to determine credits for support he had paid from the date of judicial demand until the date of the hearing.

In opposition, Ms. McFall contends Mr. McFall’s tax returns show a much higher earning than he claims and the trial court correctly awarded support based on the income reported in his tax returns. She also argues she originally sought interim spousal support in her September 22, 2009 filing of the petition for protection from abuse; therefore, the trial court correctly awarded support retroactive to that date. Finally, Ms. McFall contends the trial court correctly found that Mr. McFall had not provided any support for his wife or children since the separation, so it was proper for the trial court to deny his right to reserve the issue for later.

| ¿Interim Spousal Support

The trial court awarded Ms. McFall $1,075.00 per month for interim spousal support. A court may award interim periodic support to a spouse in a divorce proceeding based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. LSA-C.C. arts. Ill and 113. Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. St. Pierre v. St. Pierre, 09-1124 (La.App. 5 Cir. 5/25/10), 42 So.3d 426, (citation omitted). The needs of the claimant spouse have been defined as “the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay,” and the claimant spouse has the burden of proving his or her need. Id. The trial court is vested with much discretion in determining awards of spousal support and these determinations will not be disturbed absent a clear abuse of discretion. Id.

Following the hearing, the trial court found Ms. McFall has needs beyond her imputed income and Mr. McFall has the ability to pay. Ms. McFall was not employed at the time of the hearing. She had previously worked as a certified medical assistant; however, she had not worked in this position since 1995 and had not maintained her certifications. The trial court found her skills were obsolete or of no use. Thus, the trial court imputed minimum wage to Ms. McFall as income potential.

We find the trial court did not abuse its discretion in reaching this conclusion. Even if Ms. McFall returned to work, she would most likely not be able to return to the same position at the same salary she was previously at as a certified medical assistant. Additionally, she no longer has the certifications | Bnecessary to work in the same position. Therefore, the trial court correctly imputed an income potential of minimum wage to Ms. McFall.

Next, the trial court determined Mr. McFall’s income and benefits to be in excess of $90,000.00 per year. Mr. McFall claimed he only earned $56,680.00 per year. However, based on his testimony and demeanor in the courtroom, the trial court found him to be “anything but credible.” The trial court found that Mr. McFall owns two SpeeDee Oil Change franchises and owns concession vending machines that operate at each franchise location. The trial court also found that Mr. McFall has unreported cash business. Additionally, Mr. McFall uses business funds to pay the note and insurance on the family vehicle, family cell phones, and family health insurance. The tax returns presented by Mr. McFall indicate an income over $90,000.00. Mr. McFall disputes this amount, claiming he earns significantly less. However, the trial court questioned his credibility and clearly did not give great weight to his testimony. Therefore, we find no abuse, of the trial court’s discretion in determining Mr. McFall’s income to be more than $90,000.00.

We also agree with the trial court that Ms. McFall does have a need for spousal support. Ms. McFall presented an income and expense statement showing monthly expenses of $4,311.00. These expenses are necessary to maintain the same standard of living as the couple enjoyed prior to the separation. Further, Mr. McFall has the ability to pay spousal support, based on his income established by the trial court and discussed above. Thus, we find the trial court did not abuse its discretion by awarding $1,075.00 per month to Ms. McFall for interim periodic spousal support.

Retroactivity of Spousal Support Award

The trial court ordered that the interim spousal support award be made, retroactive to the initial date of filing, which it considered to be September 22, 1 fi2009, the date Ms. McFall filed her petition for protection from abuse. Ms. McFall did request interim spousal support in that petition; however, the trial court dismissed the petition upon her failure to appear at the hearing. The trial court later found her failure to appear was caused by Mr. McFall’s intimidation and threats; thus, the trial court reopened the dismissed petition. Mr. McFall appealed the reopening of the dismissed petition. On June 29, 2010, this Court reversed the trial court’s reopening of the dismissed petition. McFall, supra. Therefore, the spousal support award in this case cannot be made retroactive to September 22, 2009, the date the dismissed petition was filed.

Ms. McFall did request spousal support in her answer and reconventional demand filed in response to Mr. McFall’s petition for divorce. Her reconventional demand was filed on November 2, 2009. Therefore, we amend the trial court’s judgment making the award retroactive to September 22, 2009 and find Ms. McFall’s award is retroactive to November 2, 2009, the date she filed her reconventional demand seeking support.

Finally, we find no abuse of the trial court’s discretion in not reserving Mr. McFall’s right to address the issue of credits for prior spousal support payments at a later date.

In accordance with the above, we affirm the trial court’s award of interim spousal support to Ms. McFall in the amount of $1,075.00 per month. We amend the trial court’s finding that the award be made retroactive to September 22, 2009 and find the award should be made retroactive to November 2, 2009.

AFFIRMED IN PART; AMENDED IN PART.


text:
    Ralph P. MANNING v. Curley SAMPSON and Metals USA Plates and Shapes Southeast, Inc.
    No. 10-CA-151.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Ivan A. Orihuela, Riguer Silva, Attorneys at Law, Kenner, Louisiana, for Plaintiff/Appellant.
    Randall C. Mulcahy, Sean E. Rastanis, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¿Plaintiff, Ralph Manning, appeals from a summary judgment granted in favor of defendants, Curley Sampson and Metals USA Plates and Shapes Southeast, Inc. (“Metals USA”), which dismissed plaintiffs claims against them. For the following reasons, we affirm.

STATEMENT OF THE CASE

Task Force Temporary Services, Inc. (“Task Force”) is an agency that provides temporary labor to companies. Through Task Force, Ralph Manning began working at the Metals USA facility in Wagga-man, Louisiana, in May of 2005. On July 12, 2005, while working at the Metals USA facility, Mr. Manning suffered injuries when a beam allegedly fell from an overhead crane and struck him in the face. On July 12, 2006, Mr. Manning filed a tort suit against Curley Sampson, who was operating the overhead crane, and Metals USA, seeking damages for his injuries.

On February 23, 2009, Mr. Sampson and Metals USA filed a Motion for Summary Judgment, asserting that Mr. Manning was a borrowed servant of Metals |sUSA at the time of the accident and thus, his tort suit was barred by the exclusivity provisions of the Louisiana Worker’s Compensation Act. Mr. Manning filed an Opposition on August 11, 2009.

A hearing was held before the trial court on August 11, 2009. After hearing argument from counsel for plaintiff and defendants, the trial judge granted defendants’ Motion for Summary Judgment and dismissed plaintiffs lawsuit, finding that this was a “classic borrowed servant” case and that plaintiffs exclusive remedy was for worker’s compensation benefits. The trial judge signed a written judgment on August 31, 2009. Plaintiff appeals.

DISCUSSION

Appellate courts review the granting of a summary judgment de novo under the same criteria governing the trial court’s consideration of whether a summary judgment is appropriate. Gootee Construction, Inc. v. Amwest Surety Insurance Co., 00-1639 (La.App. 5 Cir. 2/28/01), 781 So.2d 792, 795, writ denied, 01-866 (La.5/11/01), 792 So.2d 739. LSA-C.C.P. art. 966 B provides that a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Summary judgment is favored, but the burden of proof remains with the mover. Prince v. K-Mart Corp., 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the non-moving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and |4967; Smart v. Winn-Dixie of Louisiana, Inc., 99-435 (La.App. 5 Cir. 9/28/99), 742 So.2d 1062, 1064, writ denied, 99-3111 (La.1/7/00), 752 So.2d 870.

On appeal, Mr. Manning contends that the trial court erred in granting summary judgment in favor of Mr. Sampson and Metals USA, because: 1) the issue at hand is factual and must be resolved on a case-by-case basis; 2) the trial court considered only one factor and did not analyze the totality of the circumstances before rendering its decision; 3) the totality of the circumstances and the facts are overwhelming that Mr. Manning was an employee of Task Force, not Metals USA, on the date of the accident; 4) genuine issues of material fact exist; and 5) Mr. Sampson and Metals USA did not meet their burden of proving a statutory employment relationship to avoid tort liability.

The dispositive issue in this case is whether Mr. Manning was Metals USA’s borrowed servant at the time of the accident, under LSA-R.S. 23:1031(C). Pursuant to LSA-R.S. 23:1032, if Mr. Manning was a borrowed servant of Metals USA, Metals USA and Mr. Sampson are immune from tort liability and Mr. Manning’s exclusive remedy is for worker’s compensation benefits. The following factors have been set by the courts to determine whether a worker should be characterized as a borrowed servant:

1) Who had the right of control over the employee and the work he was performing beyond mere suggestion of details or cooperation?
2) Whose work was being performed?
3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
4) Did the employee acquiesce in the new work situation?
5) Did the original employer terminate his relationship with the employee?
6) Who furnished the tools and place for performance?
7) Was the new employment over a considerable length of time?
8) Who had the right to discharge the employee?
9) Who had the obligation to pay the employee?

Sanchez v. Harbor Constr. Co., Inc., 07-234, pp. 4-5 (La.App. 4 Cir. 10/3/07), 968 So.2d 783, 786; Hall v. Equitable Shipyard, Inc., 95-1754, p. 4 (La.App. 4 Cir. 2/29/96), 670 So.2d 543, 545-46.

Although no one factor is disposi-tive in determining borrowed servant status, the right of control factor weighs heavily in favor of borrowed servant status. Andrew-Hong v. Gray Insurance Co., 06-93, p. 2 (La.App. 4 Cir. 11/2/06), 945 So.2d 124, 126.

In the present case, in support of their Motion for Summary Judgment, defendants submitted the affidavit of Charles Crum, who is the general manager of Metals USA. In his affidavit, Mr. Crum stated that under the agreement between Metals USA and Task Force, Metals USA would contact Task Force when it needed additional employees, and it would identify the position needed to be filled, the requirements for that position, and the rate of pay for the individuals to be hired. Mr. Crum stated that once an employee was sent by Task Force to Metals USA, Metals USA had direct control over the employee and provided the equipment for the employee to do his job. He further indicated that Metals USA had the right to terminate Mr. Manning at any time while he was working at Metals USA.

Also in support of their motion, defendants submitted excerpts from the deposition of Ralph Manning. In his deposition, Mr. Manning testified that he contacted Task Force and told them that he wanted to be a forklift operator and that he was looking for something long-term or permanent. Task Force told him about the job at Metals USA, and he was interested, so he interviewed with them. While working at the Metals USA facility, a Metals USA employee always directed him and told him what to do, and he considered Metals USA’s employees to be his supervisors. No one from Task Force instructed him on what he needed to do at |fiwork. Metals USA provided him with a hard hat and safety glasses to use, and all of the equipment he used belonged to Metals USA. Mr. Manning did note that Task Force supplied him with a t-shirt to wear while working at Metals USA, in order to differentiate him as a temporary agency employee. Mr. Manning acknowledged that Metals USA could fire him or give him a raise, if they chose to do so. He further stated that he never did any work directly for Task Force.

In opposition to the Motion for Summary Judgment, Mr. Manning asserted that he was never an employee of Metals USA and that he was at all times an employee of Task Force. Along with his opposition memorandum, Mr. Manning submitted his check stubs which show that he was paid by Pioneer, L.L.C., which he states is a company that is associated with Task Force. These check stubs reflect that Pioneer withheld taxes and paid Mr. Manning his wages. Mr. Manning also submitted his entire deposition and some of his medical records which list Task Force as his employer.

The courts have found borrowed servant status in cases similar to this one. In Maddox v. Superior Steel, 00-1539 (La. App. 1 Cir. 9/28/01), 814 So.2d 569, Melvin Maddox was employed by Western Staff Services (“Western”), a temporary employment service, and contracted to work for Superior Steel, Inc. (“Superior”). He was injured while working at Superior and filed a tort suit against Superior. Superior filed a Motion for Summary Judgment, arguing that plaintiffs sole remedy was worker’s compensation and that Superior has tort immunity as the statutory employer of Mr. Maddox. The trial judge granted summary judgment. On appeal, the First Circuit analyzed the factors for determining borrowed servant status and upheld the trial court’s ruling. In its opinion, the Court specifically noted: there was an agreement between Superior and Western regarding the lease of labor; Superior had the right of control over Mr. Maddox when he was at the job )7site; Superior furnished the tools and the place to perform the work; Mr. Maddox was doing work for Superior at the time of the accident; Western issued Mr. Maddox’s paycheck, but Superior provided the actual funds from which Mr. Maddox was paid; and Superior had the right to terminate an employee sent to it by Western.

In Andrew-Hong v. Gray Insurance Co., 06-93 (La.App. 4 Cir. 11/2/06), 945 So.2d 124, Martin Andrew was doing carpentry work for ConstructionSouth, Inc. when he was killed during a work-related accident. Mr. Andrew’s children filed suit against ConstructionSouth asserting that Mr. Andrew was employed by Labor Finders, Inc., a temporary labor service, at the time of the accident and that Construction-South was liable in tort for Mr. Andrew’s injuries and resulting death. Construc-tionSouth and its insurer filed a Motion for Summary Judgment claiming that Mr. Andrew was a borrowed servant and as such the exclusive remedy of the plaintiffs was under the worker’s compensation laws. The trial court granted the motion for summary judgment. On appeal, the Fourth Circuit affirmed the summary judgment after reviewing the factors for determining borrowed servant status and specifically noting that ConstructionSouth, not Labor Finders, supervised employees at the work site, ConstructionSouth provided the equipment and tools for the employees to use, and ConstructionSouth had the authority to fire the employees for dissatisfactory work. The Court noted that Labor Finders would issue the checks to the employees it provided to Construc-tionSouth, but ConstructionSouth was the source of the funds used to pay the wages.

See also Pradia v. Southern Personnel of LA, Inc., 00-365 (La.App. 3 Cir. 10/11/00), 776 So.2d 474, writ denied, 00-3018 (La.1/5/01), 778 So.2d 599.

In the present case, the deposition of Ralph Manning makes it evident that he was a borrowed employee of Metals USA at the time of the accident. Mr. [ ^Manning admitted that Metals USA had the right of control and that Metals USA’s employees told him what work to do. He stated that he considered employees of Metals USA to be his supervisors. He acknowledged that Metals USA could fire him or give him a raise, if they chose to do so. He further stated that Metals USA provided him with safety glasses, a hard hat, and the equipment needed to perform his job. Although Mr. Manning did not fill out an application for employment with Metals USA, he was interviewed prior to starting work at their facility.

Mr. Manning argues that his check stubs demonstrate that he was an employee of Task Force, because he was paid by Pioneer, L.L.C., which is associated with Task Force. Although Mr. Manning’s check stubs show that he was paid by Pioneer, L.L.C., we note that the “obligation to pay” factor of the borrowed servant analysis focuses on who provided the funds to pay the employee, not from which employer’s bank account the employee’s paychecks originate. Sanchez, 07-234 at 10, 968 So.2d at 789. In his affidavit, Mr. Crum indicates that once Task Force issued the payroll checks to the employees, such as Mr. Manning, Metals USA would reimburse Task Force for the amounts expended on the payroll. In his deposition, Mr. Manning admitted that he did not know the payment arrangements between Task Force and Metals USA.

In his brief, Mr. Manning notes that Metals USA is not listed on any of his medical records. However, the fact that Task Force, not Metals USA, is listed as his employer on some of his records is not controlling in the test for determining borrowed servant status.

Mr. Manning claims that the trial judge only considered one factor and did not analyze the totality of the circumstances before rendering a decision. However, the transcript does not support this claim. At the hearing, the trial judge noted that the most important element is the right to control the work, but he also |3specifically stated that he was looking at the totality of the circumstances when he determined that Mr. Manning was a borrowed servant.

We have thoroughly reviewed the matter before us de novo. We have considered each of the arguments set forth by Mr. Manning on appeal, and we find that none of them have merit. Considering the undisputed facts, along with the jurisprudence and factors for determining borrowed servant status, we find that the totality of the circumstances clearly shows that Mr. Manning was a borrowed servant of Metals USA at the time of the accident. As such, his lawsuit against defendant is barred by the exclusivity provisions of the worker’s compensation act.

DECREE

Based on the foregoing, we affirm the summary judgment granted in favor of defendants, Curley Sampson and Metals USA, dismissing plaintiffs claims against them.

AFFIRMED.


author: PATRICIA RIVET MURRAY, Judge.

text:
    NOVELAIRE TECHNOLOGIES, L.L.C. v. Martin Kenneth HARRISON, Barbara Bucklin and Essential Humidity Solutions, L.L.C.
    No. 2009-CA-1372.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 2010.

      A. Justin Ourso, III, Christopher D. Martin, David P. Borghardt, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., Baton Rouge, LA, for Plaintiff/Ap-pellee.
    Glen R. Galbraith, Seale & Ross, P.L.C., Hammond, LA, for Defendants/Appellants, Martin Kenneth Harrison, Barbara Buck-lin and Essential Humidity Solutions, L.L.C.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

| ¶ This is a suit for breach of contract, unfair trade practices, and breach of fiduciary duty. The plaintiff NovelAire Technologies, L.L.C., is a manufacturer of energy recovery and dehumidification equipment, including desiccant dehumidifiers. The defendant Martin Harrison is a former NovelAire employee who worked as a designer in the engineering department for over four years until he resigned. The defendant Essential Humidity Solutions, L.L.C. (“EHS”) is a business entity that Mr. Harrison and his fiancée, Barbara Bucklin, created to compete with NovelAire in manufacturing and selling desiccant dehumidifiers. Seeking damages and injunctive relief, NovelAire sued Mr. Harrison, Ms. Buck-lin, and EHS. From a judgment in Nove-lAire’s favor, Mr. Harrison, Ms. Bucklin, and EHS appeal. On Ms. Bucklin’s motion, this court dismissed her appeal. For the reasons that follow, we affirm.

| .FACTUAL AND PROCEDURAL BACKGROUND

From May 1992 until June 1998, Mr. Harrison worked for AAR Corp., a defense contractor in Cadillac, Michigan. While working for AAR, he became familiar with the design of desiccant dehumidifiers, which AAR used in its defense projects. From July 1998 until January 2004 when he resigned, Mr. Harrison worked for No-velAire in Baton Rouge, Louisiana. While working for NovelAire, Mr. Harrison’s job duties included making improvements to the company’s product line. He assisted in both NovelAire’s development of a line of desiccant dehumidifiers — the DH-50— and in NovelAire’s improvement to that product line. He also introduced Nove-lAire to his former employer, AAR; and AAR became NovelAire’s sole customer for the DH-50 line.

In June 1999, NovelAire and Mr. Harrison entered into a written agreement, which provided:

2. Any and all inventions, discoveries and improvements which Employee has conceived or made, and/or may conceive or make, during the period of his said employment, relating to employer’s business or arising out of or resulting from his said employment, shall be the sole and exclusive property of Employer or its nominee.
3. Employee, whenever requested by Employer, will execute any and all instruments which Employer may deem necessary to assign and convey to it, its successors or assigns, the sole and exclusive right, title and interest in and to any such inventions, discoveries and improvements, and Letters Patent for same, or such other interests therein as Employee may possess or acquire, together with all instruments deemed necessary by Employer in order to apply for and obtain Letters Patent of the United States and/or foreign countries therefor; and Employee agrees that such obligation to execute any such instruments shall continue after the termination of his employement. All expenses of applying for and obtaining Letters Patent when authorized by Employer to be done shall be borne by it. |⅞4. Employee shall not disclose or use, directly or indirectly at any time, either during or subsequent to the said employment, any secret or confidential information, knowledge or data of Employer or of any of its affiliated companies (whether or not obtained, acquired or developed by Employee), unless he shall first secure the written consent of Employer.

The agreement further provided it was retroactive to the date on which Mr. Harrison commenced employment (the “Agreement”).

While working for NovelAire, Mr. Harrison began preparations to go into competition with NovelAire. These preparations included:

• Conceiving of at least three improvements to the DH-50 line — (1) a sheet metal housing, (2) a dual voltage heater, and (3) a center-mounted control— and failing to disclose these improvements to NovelAire;
• Using his computer at NovelAire to work on a drawing for the new sheet metal housing design;
• Employing the assistance of another NovelAire employee and using the company’s equipment to punch out parts for a prototype of the improved sheet metal housing design;
• E-mailing Ms. Bucklin and a friend who worked at AAR regarding possible names for his new business;
• Disclosing to AAR some or all of his conceived improvements;
• Talking with vendors, including Nove-lAire’s vendors, about sourcing components for his improved dehumidifier;
• Ordering one hundred circuit boards from one of NovelAire’s vendors to use in his improved dehumidifier; and
• Copying NovelAire’s DH-50 dehumidifier manual onto his home computer for subsequent use as a template for a manual for his improved dehumidifier.

On January 23, 2004, Mr. Harrison resigned. (NovelAire paid him through February 6, 2004.) On January 30, 2004, No-velAire informed Mr. Harrison by letter of its concerns that he had breached his fiduciary duties and engaged in unfair trade practices. According to the letter, Nove-laire was aware that, while |4working for the company and on company time, Mr. Harrison used company materials, resources, and equipment to develop secretly an improved desiccant dehumidifier design without reporting this to NovelAire. The letter further informed him that NovelAire was also aware that Mr. Harrison had shared this improvement with NovelAire’s customer and that he had sent the customer “at least one proprietary drawing of the company” without informing NovelAire. The letter admonished Mr. Harrison that NovelAire would seek legal remedies if he attempted to sell his improved desiccant dehumidifier to NovelAire’s customer.

On February 5, 2004, Mr. Harrison and Ms. Bucklin formed EHS. Shortly thereafter, Mr. Harrison, through EHS, began manufacturing and selling his improved desiccant dehumidifier line — the EHS-55 — to AAR. The price EHS charged AAR for the EHS-55 line was between one hundred to four hundred dollars less than the price that NovelAire charged AAR for the DH-50 line.

On June 9, 2004, NovelAire commenced this suit asserting the following causes of action: (i) as to Mr. Harrison, breach of contract, breach of fiduciary duty, and unfair trade practice; (ii) as to Ms. Bucklin, unfair trade practice and intentional interference with contract; and (iii) as to EHS, unfair trade practice. NovelAire sought not only damages, but also injunctive relief prohibiting the Harrison Defendants from marketing, designing, distributing, manufacturing, or selling a desiccant dehumidifier based on the NovelAire DH-50.

In July 2007, a hearing was held on the preliminary injunction at which several witnesses testified and documentary evidence was introduced. The trial court found that Mr. Harrison conceived of at least three improvements to the DH-50 during the time that he was employed by NovelAire: (1) the sheet metal housing, (2) the dual voltage heater, and (3) the center-mounted control. The trial | ¡¡court also found that Mr. Harrison failed to disclose these improvements to NovelAire; instead, he took the improvements and utilized them for his own profit. The trial court determined that Mr. Harrison’s actions violated not only the Agreement, but also his fiduciary duty to his former employer. The trial court further determined that a showing of irreparable harm was unnecessary for issuing the preliminary injunction under La. C.C. art. 1987, which provides that “[t]he obligor may be restrained from doing anything in violation of an obligation not to do.” The trial court still further determined that NovelAire had made a strong showing that it would succeed at trial on the merits. The trial court thus granted a preliminary injunction enjoining all the defendants from:

(i) “designing, manufacturing, marketing, distributing, or selling ... a desiccant dehumidifier based upon the design of the NovelAire DH-50 desiccant dehumidifier, including, but not limited to, the Essential Humidity Solutions EHS-55 desiccant dehumidifier;” and
(ii) “disclosing to any third party any improvements to the NovelAire DH-50 desiccant dehumidifier, including, but not limited to, any improvements embodied in the EHS-55 desiccant dehumidifier.”

In Novelaire Technologies, L.L.C. v. Harrison, 08-157 (La.App. 5 Cir. 8/19/08), 994 So.2d 57 (“Novelaire I”), the appellate court affirmed the trial court’s decision granting the preliminary injunction.

On January 5, 2009, the trial was held on the merits of NovelAire’s request for permanent injunctive relief and damages. At trial, the parties stipulated to the introduction of the record from the preliminary injunction hearing. The parties further stipulated that the Harrison Defendants’ actions caused NovelAire to be injured and that NovelAire lost profits as the result of their actions in the amount of | r,$691,598.27. This figure represented the sale by EHS to AAR of 927 desiccant dehumidifiers (EHS-55 units). This figure was calculated based on the assumption that AAR would have purchased the units (DH-50 instead of EHS-55 units) from NovelAire at a total sales price of $1,435,970. Based on NovelAire’s historic pricing and production costs, the loss profit was calculated to be $691,598.27, the stipulated amount. The parties still further stipulated to the determination of attorney’s fees.

Following the trial on the merits, the trial court rendered judgment in Nove-lAire’s favor awarding $691,598.27 in damages plus judicial interest from the date of judicial demand; $625,872.75 in attorneys’ fees plus judicial interest from the date of judgment; and all costs of the action. The trial court also ordered that a permanent injunction issue in the same form and in the same scope (quoted above) as the preliminary injunction. This appeal followed.

DISCUSSION

A trial court’s decision granting a permanent injunction is reviewed under a manifest error standard. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29; Foret v. Terrebone, Ltd., 93-676 (La.App. 5 Cir. 1/25/94), 631 So.2d 103, 105. Legal errors are reviewed under a de novo standard. Audubon Orthopedic and Sports Medicine, APMC v. Lafayette Ins. Co., 09-0007, p. 19, n. 11 (4/21/10), 38 So.3d 963, 977. Damage awards for breach of contract are reviewed under an abuse of discretion standard. Id., 09-0007 at p. 25, 38 So.3d at 980.

|7On appeal, the Harrison Defendants contend the trial court erred in three respects: (i) upholding a contract that prevents Mr. Harrison from exercising a lawful profession that has neither geographic nor temporal restrictions — invalid non-compete contract; (ii) precluding them from using technology which is, under federal law, in the public domain — federal preemption; and (iii) issuing a vague and overly broad injunction — invalid injunction. We separately address each of these arguments.

(i) Invalid non-compete contract

The Harrison Defendants contend that the Agreement, as interpreted by the trial court, prevents Mr. Harrison from exercising a lawful profession — manufacturing and selling dehumidifiers. They contend that an agreement that prevents a former employee from exercising a lawful profession is a non-compete contract under La. R.S. 23:921, which provides that “[e]very contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.” La. R.S. 23:921 A(l). Under this statute, a non-compete contract is only valid if it meets the geographic and temporal limitations set forth in La. R.S. 23:921 C, which imposes a limit to the specific parish (or parishes) the employer carries on a like business and a time limit of two years from the termination of employment. Since the Agreement contains neither a geographic nor a temporal limit, the Harrison Defendants contend it is null.

NovelAire replies that this issue was addressed by the Fifth Circuit in its earlier decision in this case. Concluding that the Agreement is not an invalid non-hcompete contract within the meaning of La. R.S. 23:921, the Fifth Circuit reasoned:

The Defendants are not precluded from operating a business selling dehumidifiers. Harrison is simply precluded under the contract from using any improvements or designs he made while working for the Plaintiff, and from disclosing or using the Plaintiffs confidential information for his own profit without consent of the Plaintiff. Thus, the non-competition statute is inapplicable here.

Novelaire I, 08-157 at p. 6, 994 So.2d at 61. NoveLAire also points out that the Harrison Defendants’ argument is not based on the language of the Agreement itself, but rather on the remedial provisions of the injunction. By its terms, the Agreement does not restrain Mr. Harrison from engaging in a lawful profession. Rather, NovelAire contends that the Agreement is a standard contract to provide for the ownership, as between an employer and an employee, of discoveries the employee made while working for the employer, and to keep those discoveries confidential. NovelAire contends that neither of these contractual requirements constitute non-compete contracts. We agree.

An employer may require an employee not to disclose confidential information. “Confidentiality agreements have been held enforceable and not subject to the prohibition (and requirements) of La. R.S. 23:921.” Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329, 334, n. 15 (La.App. 1st Cir.1984); see also Rick J. Norman, Louisiana Prac. Employment Law § 14:14 (2009 ed.)(noting that “[a]n employee who contracts to keep his employer’s business confidential is liable to his employer for breach of that agreement even though the confidential information might not technically constitute trade secrets.”) A confidentiality agreement unlike a covenant not to compete “cannot be challenged as an unreasonable restraint of trade.” 2 Louis Altman and Malla Pollack, \c,Callmann on Unfair Competition, Trademarks and Monopolies § 14:6 (4th ed. 2010)(“Callmann”).

An employer also “may require the employee to disclose and assign his inventions to the employer; this is the usual practice in U.S. technology companies.” Callmann, supra at § 14:17. This type of employee-invention assignment agreement — contractual requirement than an employee’s inventions or improvements made during the employment shall be the property of the employer — is “not a covenant not to compete, does not limit the employee’s post-employment activities except with respect to the affected inventions and improvements, and is not subject to the limitations and requirements applicable to covenants not to compete.” Call-mann, supra (citing Novelaire I, supra).

Summarizing, neither the requirement that Mr. Harrison disclose to NovelAire his discoveries, nor the requirement that he not disclose confidential information constitute a non-compete contract governed by La. R.S. 23:921.

(ii) Federal preemption

The Harrison Defendants contend that both NovelAire’s breach of contract and unfair trade practice act claims against it are preempted by federal patent law. We separately address each claim.

Insofar as NovelAire’s breach of contract claim, the Harrison Defendants focus on the provision in the Agreement that all the technology Mr. Harrison developed while employed shall be NovelAire’s “sole and exclusive property.” The Harrison Defendants contend that this provision can only apply to items susceptible to private ownership. Things in the public domain— in civil law | interminology, common things —are insusceptible to private ownership. Contracts cannot create ownership rights in things in the public domain. In support of their public domain argument, the Harrison Defendants cite absolutist language in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), that “[a]n unpatentable article, like an article on which the patent has expired is in the public domain and may be made and sold by whoever chooses to do so.” Id.

The relevance of the public domain doctrine in this case, according to the Harrison Defendants, is that the technology in NovelAire’s DH-50 line (with the exception of its desiccant wheel) is not patented and thus is in the public domain. According to the Harrison Defendants, a third party long ago patented the dehumidifier technology on which NovelAire’s DH-50 line is based, and the patent has expired. The technology is therefore in the public domain. The only technology NovelAire added is an improved desiccant wheel on which NovelAire has a patent. Mr. Harrison did not use NovelAire’s patented wheel; rather, he purposefully selected a product (wheel) from another vendor so as not to infringe on NovelAire’s patent. The dehumidifier technology in the DH-50 line is easily susceptible of being reversed-engineered by anyone with knowledge in the field. Indeed, NovelAire’s DH-50 line was developed by reverse-engineering a competitor’s older unit. The Harrison Defendants thus contend that the Agreement, to the extent it provides for NovelAire’s ownership of the technology in its DH-50 line, is null.

I,insofar as NovelAire’s unfair trade practice claim, the Harrison Defendants contend that this claim is preempted because state laws cannot “be used to prohibit a member of the public from making and selling such items” in the public domain. Stated otherwise, they contend that state laws cannot create patent-like protection for an article that is in the public domain. In support, they cite Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 164, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989), in which the Supreme Court held that a Florida statute criminalizing the reverse-engineering of another company’s product conflicted with established patent law that allows a person to reproduce a product that is in the public domain and unprotected by a patent. Particularly, they quote the language that “[s]tates may not offer patent-like protection to intellectual creations which would otherwise remain unprotected as a matter of federal law.” Bonito Boats, 489 U.S. at 156-57, 109 S.Ct. 971. The Harrison Defendants acknowledge that the Supreme Court has ruled that, in certain cases, patent law does not necessarily preempt state unfair competition law; however, they contend that the Supreme Court has differentiated between the traditional unfair trade practice laws— which focus on protecting consumers not competing manufacturers — and new causes of action that states may create.

The public domain concept on which the Harrison Defendants rely is a “question-begging legal concept.” Mine Safety Appliances Co. v. Electric Storage Battery Co., 56 C.C.P.A. 863, 405 F.2d 901, 902 (Cust. & Pat.App.1969). “Whether or not things are in or out of the public domain and free or not free to be copied may depend on all sorts of legal concepts including patent law, antimonopoly policy and statutes, the law of unfair competition, copyright law, and the law of trademarks and trademark registration.” Id. Based on a judicial determination of the legal rights at issue, courts “express the ultimate conclusion by saying something is in the ‘public |12domain’ — or not in it.” Id.; see also Reingold v. Swiftships, Inc., 126 F.3d 645, 652 (5th Cir.1997)(noting that “[mjatter is in the public domain only if no intellectual property law, such as patent, copy right, or trade secrets, protect it.”) Simply put, the public domain concept is a legal conclusion.

As noted earlier, the Harrison Defendants cite in support of their public domain argument the Supreme Court’s absolutist language in the Sears case that anyone can make and sell an unpatented item. However, the Supreme Court, in the subsequent Bonito Boats case, clarified that “while Sears speaks in absolutist terms, its conclusion that the States may place some conditions on the use of trade dress indicates an implicit recognition that all state regulation of potentially patentable but un-patented subject matter is not ipso facto pre-empted by the federal patent law.” Bonito Boats, 489 U.S. at 154, 109 S.Ct. 971. Continuing, the Supreme Court pointed out that it made this ruling express in its subsequent decision in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974), which held that “state protection of trade secrets' did not operate to frustrate the achievement of the congressional objectives served by the patent laws.” Bonito Boats, 489 U.S. at 155, 109 S.Ct. 971. The Supreme Court further pointed out that it had “since reaffirmed the pragmatic approach which Kewanee takes to the preemption of state laws dealing with the protection of intellectual property.” Bonito Boats, 489 U.S. at 156, 109 S.Ct. 971 (citing Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979)).

Although Bonito Boats held that a state cannot enforce a statute that provides patent-like protection to patented or unpatented devices, the Supreme Court in Bonito Boats reaffirmed its holding in Kewanee that federal patent law does not preempt state unfair trade practice laws. See Reingold, 126 F.3d at 652, n. 2. No-velAire’s state law claims are closer to the trade secret law sought to be | ^enforced in Kewanee Oil than the Florida statute struck down based on preemption in Bonito Boats. As the Fifth Circuit in Novelaire I noted, the state unfair trade practice law at issue in this case is distinguishable from the criminal law at issue in Bonito Boats prohibiting the reverse engineering of another company’s product. “Here, the claim under the unfair trade practices statute is that the Defendants allegedly acted in concert to violate the contract and breach the trust of the Plaintiff by using its resources to develop the improvements that then allowed them to compete with the Plaintiff for, and obtain, the business of its only customer for that product.” Novelaire I, 08-157 at p. 7, 994 So.2d at 62. As the court in Novelaire I concluded, “[t]here is no conflict between the federal and state laws in this case.” Id., 08-157 at p. 8, 994 So.2d at 62.

Summarizing, the Harrison Defendants’ liability in this case stems from two sources. First, Mr. Harrison breached the Agreement requiring him to disclose developments he made while employed at Nove-lAire. This type of employee-invention assignment agreement is not inconsistent with federal patent law and thus is not preempted. Callmann, supra at § 14:20. Second, Mr. Harrison breached his contractual and fiduciary duties not to disclose NovelAire’s confidential information. In so doing, he also violated the state unfair trade practice law. This aspect of Nove-lAire’s claim stems from Mr. Harrison’s “less than savory business practices rather than [his] ... reliance on public domain sources of information. This is not the stuff of preemption.” Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 559 F.3d 1, 3 (1st Cir.), reh’g denied, 552 F.3d 47 (1st Cir.2009)(rejecting the defendant’s patent preemption argument in denying rehearing in a trade secrets misappropriation and unjust enrichment case). Moreover, “the Supreme Court has suggested that states should 1 ucontinue to regulate just these sorts of less-than-upright business practices even if they incidentally involve intellectual property and information that may be subject to federal patent law.” Id. (citing Bonito Boats, supra.). Thus, the Harrison Defendants’ reliance on federal patent preemption is misplaced.

(iii) Invalid injunction

The Harrison Defendants final contention is that the permanent injunction issued in this case is vague and overly broad. The vagueness of the injunction, they contend, is that it fails to describe the design elements of a dehumidifier that Mr. Harrison is prohibited from using. The controlling law regarding the scope of an injunction is La. C.C.P. art. 3605, which provides that an order granting injunctive relief “shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.” The permanent injunction in this case provides that Mr. Harrison is prohibited from designing, making, or selling “a desiccant dehumidifier based upon the design of the NovelAire DH-50 desiccant dehumidifier, including, but not limited to, the Essential Humidity Solutions EHS-55 desiccant dehumidifier.” We find, as NovelAire contends, that the injunction is not vague as it outlines in reasonable detail the prohibited conduct without referring to the petition or any documents.

The Harrison Defendants also contend that the injunction is overly broad because it effectively deprives Mr. Harrison of the ability to work in his field — the manufacture and sale of dehumidifiers. We disagree. Mr. Harrison is not prohibited from working at his trade. Rather, as NovelAire points out, he is only | ^prohibited from “designing, making, or selling a dehumidifier that is based upon NovelAire’s custom-made DH-50 dehumidifier, including the dehumidifier that EHS was selling, which incorporated certain improvements to NovelAire’s DH-50 dehumidifier that [Mr.] Harrison had discovered.” He is also prohibited from disclosing any confidential information he obtained from NovelAire, without its permission. The injunction thus only prohibits him from engaging in conduct that would violate the Agreement. Accordingly, the scope of the injunction is not overly broad.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed. The costs of the appeal are assessed against the appellants, Mr. Harrison and EHS.

AFFIRMED.

      . A desiccant is a substance used to absorb water or moisture, and a desiccant dehumidifier is a machine that uses a desiccant to remove moisture from a stream of air. As one of the witnesses at trial further explained, "desiccant dehumidification is just dehumidi-fication that usually has two counter-flow air streams that are rotating or some other mechanism for putting desiccants in the two air streams. In one stream, the water is removed usually by heat or low relative humidity air. In the other stream, the water is absorbed from a higher relative humidity stream.”

      . While the appeal was pending, Ms. Bucklin filed for bankruptcy. As part of a settlement in the bankruptcy proceeding, she filed a motion to voluntarily dismiss her appeal, which this court granted. Thus, the claims against her — intentional interference with contract and unfair trade practice — are not before us on appeal. The only defendants before us on appeal are Mr. Harrison and EHS (the “Harrison Defendants.”)

      . Although the suit was filed in East Baton Rouge Parish (the Nineteenth Judicial District Court) and the trial on the preliminary injunction was held there, the First Circuit Court of Appeal en banc recused itself. The Louisiana Supreme Court appointed the Fifth Circuit Court of Appeal to decide the appeal of the preliminary injunction.

      . Because the First Circuit Court of Appeal en banc recused itself from this case, the Louisiana Supreme Court appointed this court (the Fourth Circuit Court of Appeal) to decide the instant appeal.

      . Although the Harrison Defendants also assign as error the trial court’s assessment of damages against Ms. Bucklin, this assignment of error is moot given Ms. Bucklin’s dismissal of her appeal.

      . Because the Harrison Defendants did not assign as error the trial court’s finding that Mr. Harrison breached his fiduciary duty, we do not address that claim.

      . Common things cannot be owned by anyone; "[t]hey are such as the air and the high seas that may be freely used by everyone comformably with the use for which nature has intended.” La. C.C. art. 449.

      . Reverse-engineering refers to "[t]he process of discovering how an invention works by inspecting and studying it, esp. by taking it apart in order to learn how it works and how to copy it and improve it.” Bryan A. Garner, Black's Law Dictionary 1345 (8th ed.2004).

      . As noted elsewhere, the permanent injunction further provides that Mr. Harrison is prohibited from: "disclosing to any third party any improvements to the NovelAire DH-50 desiccant dehumidifier, including, but not limited to, any improvements embodied in the EHS-55 desiccant dehumidifier.”


author: PATRICIA RIVET MURRAY, Judge. BONIN, J.,

text:
    STATE of Louisiana v. Demond TAYLOR.
    No. 2010-K-1223.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad M. Scott, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge PAUL A. BONIN).
   PATRICIA RIVET MURRAY, Judge.

liOn December 14, 2009, the defendant, Demond Taylor, then an eighteen year old high school student, and other students were caught in a school bathroom smoking cigarettes. Recovery School District Officer Murphy Laiche searched Mr. Taylor. As part of the search, Officer Laiche required Mr. Taylor to remove his shoes so that they could be searched. Inside Mr. Taylor’s shoes Office Laiche found narcotics — alprazolam and marijuana. Mr. Taylor was arrested and charged in two separate cases: a felony case for possession of alprazolam; and a misdemeanor case for possession of marijuana, first offense. In both cases Mr. Taylor filed a motion to suppress.

On March 1, 2010, the trial court held a single motion to suppress hearing and granted both motions to suppress. On April 29, 2010, this court denied the State’s writ application seeking review of that ruling. State v. Taylor, 10-0451, unpub. (La.App. 4 Cir. 4/29/10) (J. Tobias dissenting). On June 25, 2010, the Louisiana Supreme Court granted the State’s writ application, vacated the trial l2court’s ruling, and remanded for reconsideration of the motions to suppress. State v. Taylor, 10-1107 (La.6/25/10), 38 So.3d 360. In so doing, the Supreme Court instructed the trial court to reconsider the motions under the standard enunciated in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).

In T.L.O., the Supreme Court addressed the warrantless search of a high school student’s purse and concluded that in the school setting a modification of the degree of suspicion required to justify a search was warranted. T.L.O., 469 U.S. at 340, 105 S.Ct. 733. The Supreme Court held that for a search by a school official “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause,” Id. at 341, 105 S.Ct. 733. Simply put, “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Id. The Supreme Court enunciated a two-prong test for determining whether a school official’s search of a student was reasonable under all the circumstances. First, from its inception the search must be justified— “there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” T.L.O., 469 U.S. at 342, 105 S.Ct. 733. Second, the scope of the search must be reasonable — “the measures adopted are reasonably related to the objectives of the search and |3not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id.

On July 30, 2010, the trial court, applying the T.L.O. standard, again granted Mr. Taylor’s motions to suppress. The trial court concluded under the specific record in this matter that the search was not reasonable. The trial court reasoned that the search of Mr. Taylor’s shoes in which drugs were found was excessive and unwarranted. The trial court distinguished this case from T.L.O. as to the nature of the infraction, noting that “the defendant was discovered to be smoking a cigarette on school property and his shoes were removed in order to facilitate a search for cigarettes.” The trial court determined that it was “an impossibility for a person to store cigarettes in a shoe being wor[n] and then to later smoke those same cigarettes.” The trial court thus found the search was in violation of both T.L.O. and Safford Unified School Dist. No. 1 v. Redding, — U.S.-, 129 S.Ct. 2633, 2639, 174 L.Ed.2d 354 (2009). The trial court expressly noted that “[n]o other evidence was presented to the Trial Court which would warrant the removal of the defendant’s Ushoes and validate the search.” From that ruling, the State filed the instant writ application.

The issue presented is whether the officer who searched Mr. Taylor (Officer Laiche) had reasonable grounds for suspecting that a search of his shoes would reveal evidence that he was violating the school rules — either possessing cigarettes, smoking cigarettes, or both — and whether the search was reasonable in its scope and not excessively intrusive in light of the student’s age and sex and the nature of the infraction. T.L.O., supra. The trial court was provided with no evidence regarding the circumstances leading to the search or the nature of the search itself, beyond the bare facts. Officer Laiche never testified before the trial court. Although the arresting New Orleans Police Department officer testified, he did not provide any pertinent information except where the contraband was found and the nature of the original infraction.

Officer Laiche was apparently searching for cigarettes in Mr. Taylor’s shoes, an unlikely place to conceal a legal substance, at least in the trial court’s opinion. It is unclear from the record whether it is an infraction of the school rules to possess cigarettes on school property or only to smoke cigarettes. It is unknown if Mr. Taylor denied that he smoked or only denied being in possession of additional cigarettes. It is unknown whether any of the other students caught smoking in the restroom either admitted supplying the cigarettes to Mr. Taylor or possessed any. It is unknown whether the other students reported that Mr. Taylor supplied the | .^cigarettes that they were smoking. There is no testimony from Officer Laiche explaining that students are routinely caught hiding cigarettes in their shoes. There is no testimony or evidence indicating whether Officer Laiche searched the remainder of Mr. Taylor’s clothing or forced him to empty his pockets before ordering him to remove his shoes. Given all the unknown facts, it is difficult to evaluate the reasonableness of Officer Laiche’s actions under the particular circumstances of this case.

The State had the burden of proving that the warrantless search was reasonable. The gist of the State’s argument is that a search of the outer clothing— including the shoes — of a student is always reasonable, considering that such a limited intrusion was rather summarily found reasonable in Redding. The State distinguishes a search of a student’s shoes from the strip search of a thirteen-year old girl found unreasonable and thus unconstitutional in the Redding case. We decline to hold, as the State suggests, that a search of a student’s shoes is always reasonable whenever the student is found to be violating a school rule against smoking. Rather, we find it necessary to examine the facts of the particular case to make the determination of whether the T.L.O. standard was satisfied. Arguably, being forced to remove one’s shoes is not very intrusive in the present times when one cannot board an airplane without doing so. If that were the extent of the search and if Officer Laiche had testified and articulated his basis for the search, the search may have been reasonable under the T.L.O. standard. However, on remand, the State failed to present Officer Laiche’s testimony.

| ^Applying the appropriate T.L.O. standard and considering the lack of evidence submitted by the State, the trial court found that the search of Mr. Taylor’s shoes was not reasonable. A trial court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Anderson, 06-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546, writ denied, 07-0468 (La.10/12/07), 965 So.2d 399 (citing State v. Pham, 01-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218). On the record before this court, we cannot conclude the trial court erred in ruling that that the State failed to satisfy its burden of proving that this warrantless search was reasonable.

WRIT DENIED.

BONIN, J., dissents and assigns reasons.

BONIN, J.,

dissents and assigns reasons.

hi respectfully dissent.

“[T]he legality of the search of a student should depend simply upon the reasonableness, under all the circumstances, of the search.” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). We “review the district court’s ultimate determination of Fourth Amendment reasonableness de novo.” State v. Pham, 01-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218.

As set forth in T.L.O., 469 U.S., at 341-342, 105 S.Ct. 733 (emphasis added)

Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Requiring a student to remove his shoes in order for school officials to search for contraband cigarettes is, as the majority concedes, hardly “excessively intrusive” in today’s environment. Moreover, there is surely no indignity associated with this search which could implicate the rule of reasonableness. See \ ¿.Stafford Unified School District v. Redding, — U.S.-, 129 S.Ct. 2633, 2642, 174 L.Ed.2d 354 (2009).

Accordingly, upon de novo review for reasonableness, I would grant the application, reverse the trial court’s ruling, and allow the prosecution to introduce the al-prazolam and marijuana evidence at trial.

      . The docket master reflects that Mr. Taylor's date of birth is May 13, 1991. The date of the incident was December 14, 2009. Thus, he was eighteen years old at the time; and he could legally buy and possess cigarettes.

      . The facts in T.L.O. were as follows. A teacher found T.L.O., a female student, and another student smoking cigarettes in a school bathroom. Smoking cigarettes was a violation of a school rule. The teacher escorted the two students to the office of the assistant vice principal, who questioned them. T.L.O. denied having smoked. Doubting this statement, the assistant vice principal opened T.L.O.'s purse to search for cigarettes. He immediately saw a pack of cigarettes and a package of rolling papers. Associating the rolling papers with the use of marijuana, he thoroughly searched her purse and found, among other things, marijuana. Delinquency charges were brought against T.L.O.

      . In Redding, the Supreme Court addressed the scope prong of the T.L.O. test and found a search of a student’s locker and outer clothing was reasonable, but a strip search of the female student was not. The incident began when a middle school assistant principal received a report that a student gave pills to other students. The assistant principal called the student into the office and searched her backpack but found no pills. The student was then escorted to the school nurse's office where she was required to remove her outer clothing and then, as part of the search, was directed to pull out her bra to the side and shake it; she was also directed to pull out the elastic on her underwear. No pills were ever found in the student’s possession. The Supreme Court found that the assistant principal had justification to search the student’s backpack and outer clothing because of the report that the student had given pills to another student. The court opined that ”[i]f a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall [backpack] that has become an item of student uniform in most places today.” Redding,
        -U.S. at-, 129 S.Ct. at 2641. However, the court found that the extension of the search to the student’s undergarments was improper because there was no "indication of danger to the students from the power of the drugs or their quantity," and there was no reason to believe the student "was carrying pills in her underwear.” Id. at -, 129 S.Ct. at 2642-43. The Court emphasized that such a search was so intrusive that it required "its own specific suspicions.” Id. at-, 129 S.Ct. at 2643.

      . In this respect, this case is distinguishable from T.L.O. in that the search of T.L.O.’s purse was likely to reveal cigarettes if she possessed them; a purse would be the likely place to keep them.