author: DECUIR, Judge.

text:
    David DOTY v. USF INSURANCE COMPANY, et al.
    No. 11-1198.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      W. Jay Luneau, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, David Doty.
    Matthew D. Monson, The Monson Law Firm, LLC, Mandeville, LA, for Defendants/Appellants, USF Insurance Company, West Builders, LLC.
    Trevor Jones, In Proper Person, Ville Platte, LA.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

|! David Doty filed suit against Trevor Jones, West Builders, LLC, and USF Insurance Company (the latter two collectively referred to herein as “West”) after he was injured by the collapse of an attic stairway in a newly constructed home. Partial summary judgment was granted in Doty’s favor on the issue of fault, although the apportionment of fault was deferred to trial on the merits. West has appealed that judgment. The trial court also denied summary judgment on the question of Jones’ employee/independent contractor status, deferring that issue to trial on the merits. Doty’s writ application on the employment status issue was denied, with this court finding no irreparable harm in the denial of summary judgment. See CW-11-918 (La.App. 3 Cir. 8/18/11). Doty also filed suit against the homeowner and her insurer, both of whom have been dismissed from the suit and are not part of this appeal.

The facts in the record show that David Doty was hired by Rachel Brown to install an alarm system in her newly constructed home. The house was constructed by West Builders, LLC, a company owned by Brad West. Trevor Jones was the carpenter hired by West to complete the trim work on the house, and, as part of that work, he installed the attic stairway on September 17, 2008. On November 21, 2008, Doty went into the attic of the home and surveyed the area to determine placement of the alarm system. During the course of his work, Doty was on the attic stairway when it collapsed, and both he and the entire stairway fell to the ground. Photographs of the stairway were taken on the day of the accident. Later, West sent Jones back to the house to replace the stairway and throw out the one that had collapsed.

Jones testified by deposition. He described placing the stairway into the opening in the ceiling and attaching it to the ceiling with trimming nails. He then |2sent his assistant out to their truck to get the larger screws or anchor bolts required to secure it properly. When Jones discovered he did not have the appropriate screws, he called Brad West to advise him of the problem. According to Jones, Mr. West told him to leave that job, go to another customer who was waiting for him, and Mr. West would take care of the attic stairway himself. Later, when Jones reminded Mr. West that the stairway was not secure, he replied that other workers were using the stairway, and it looked fine to him. Photographs taken on the day of Doty’s accident show nothing but small finishing nails in the frame of the stairway.

Brad West’s deposition was taken prior to Jones’ deposition. He emphatically denied having any knowledge of a defect in the stairway prior to, or even after, Doty’s accident. He did not mention a conversation with Jones about the security of the installation. No deposition or affidavit testimony was offered later to contradict Jones’ description of the conversations between Brad West and Jones.

In this appeal, West alleges three errors in the trial court’s judgment. First, West contends the trial court improperly granted summary judgment for personal liability against Trevor Jones, a defendant who has not answered the suit and has made no appearance in the record or in response to the motion for summary judgment. The record reflects, however, that Jones was properly served and gave deposition testimony attesting to the facts as alleged by the plaintiff. Jones, an hourly wage carpenter with no high school education, has apparently not hired counsel and has made no effort to defend himself in this suit. Furthermore, while the question of Jones’ status as an employee or independent contractor has not been decided, the Plaintiff has also alleged vicarious liability on the part of West for Jones’ acts of negligence, a type of liability which, under certain circumstances, 13can attach to the principal of an independent contractor as well as to an employer. See, Parker v. Boise Southern Co., 570 So.2d 6 (La.App. 3 Cir.), writ denied, 575 So.2d 888 (La.1991).

In granting partial summary judgment in Doty’s favor, the trial court found Jones “responsible for causing the subject incident.” Judgment against Jones at this stage in the proceedings is erroneous as Jones has not filed an answer. See La. Code Civ.P. art. 966; Leger v. Weinstein, 03-1497 (La.App. 3 Cir. 10/27/04), 885 So.2d 701, writs denied, 04-2903, 04-2899 (La.2/4/05), 893 So.2d 873, 882. Accordingly, we must reverse the partial summary judgment rendered against Jones.

Next, West contends the trial court erred in accepting hearsay testimony from Jones in support of the summary judgment granted in Doty’s favor. In his deposition testimony, Jones recounted statements of Brad West wherein he stated that he would secure the stairway himself. He also instructed Jones to leave the stairway the way it was and proceed to a different jobsite. We find no merit to the hearsay objection raised by West. Under La.Code Evid. art. 801(D)(2), the comments to Jones are personal admissions, statements made by Brad West and offered against him, and are specifically excluded from the definition of hearsay. Accordingly, the hearsay issue raised in this appeal is without merit.

Finally, West urges this court to find error in the trial court’s refusal to assign comparative fault to the plaintiff. Although not admitted into evidence, West referred to a document obtained from the stair manufacturer’s website which, counsel avers in brief, sets forth a maximum weight capacity of 250 pounds. Doty, whose medical records from the day of the accident were submitted into evidence, weighed 253 pounds when he arrived at the hospital. Doty also admitted in deposition testimony that he knew attic stairways generally have certain weight | capacities. West contends that Doty’s excess weight should be considered comparative fault, although no evidence of causation was presented. Without ruling on the admissibility of the evidence, the trial court found the weight comparison irrelevant in the face of uncontradicted photographic and deposition evidence showing no anchor bolts were attached to the stairway to secure it into place. We agree with the trial court’s ruling.

Summary judgment is a favored procedure and it “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.” La.Code Civ.P. art. 966(B). Article 967(B) of the Louisiana Code of Civil Procedure provides that when a motion for summary judgment is made and supported by competent evidence, “an adverse party may not rest on the mere allegations or denials of his pleading,” but his response must set forth specific facts showing that there is a genuine issue for trial. The provision further states, “If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” Id.

Our review of the record shows that summary judgment was properly granted against West Builders and its insurer. Accordingly, that portion of the judgment is affirmed. That portion of the judgment rendered against Trevor Jones is hereby reversed. Costs of this appeal are assessed to the West Defendants.

AFFIRMED IN PART AND REVERSED IN PART.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Angelo BRACEY v. CITY OF ALEXANDRIA.
    No. 11-621.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiff/Appellee, Angelo Bracey.
    Michael J. O’Shee, Steven M. Oxenhan-dler, Misty Shannon Antoon, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellant, City of Alexandria.
    Brian D. Cespiva, The Cespiva Law Firm, Alexandria, LA, for Defendant/Ap-pellee, Alexandria Municipal Fire & Police Civil Service Board.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

IjThe defendant, the City of Alexandria (City), appeals a trial court judgment affirming a determination of the Alexandria Municipal Fire and Police Civil Service Board (Civil Service Board), that an investigation by the City and the Alexandria Fire Department (Fire Department) into a firemen’s alleged misuse of sick leave was untimely, rendering its termination of the firemen an absolute nullity. We affirm the trial court judgment.

DISCUSSION OF THE RECORD

Angelo Bracey was an eighteen-year employee of the Fire Department. On October 13, 2009, he began taking sick leave based on a diagnosis of an unspecified type of depressive disorder by Dr. Edwin Urbi, an Alexandria psychiatrist. When Dr. Urbi released Mr. Bracey to return to work on January 7, 2010, he continued on sick leave based on an excuse from Dr. Robert K. Rush, an Alexandria occupational medicine doctor. At that time, Dr. Rush was treating Mr. Bracey for back and neck injuries he sustained in an automobile accident. Thereafter, Dr. Rush provided Mr. Bracey with three additional medical excuses from work based on his treatment of Mr. Bracey’s cervical lumbar strain injury. As late as May 22, 2009, Mr. Bracey was receiving medical treatment from a Dr. Oas for injuries he claims to have received in a work-related accident on May 22, 2009.

Even before Dr. Urbi’s release of Mr. Bracey, Bernard Wesley, the Fire Department Chief, initiated surveillance on him. In December 2009, Chief Wesley retained the services of Gravel Investigations, an Alexandria, Louisiana private-investigation firm, to conduct the surveillance investigation. Gravel Investigations conducted surveillance between December 22 and December 23, 2009, and between February 1 and February 5, 2010, at the instruction of Chief Wesley.

RBased on information obtained through the surveillance activities, Chief Wesley informed Mr. Bracey by letter dated February 16, 2010, that the Fire Department was commencing an investigation into his use of sick leave. Following this investigation, Chief Wesley and Alexandria Mayor Jacques Roy informed Mr. Bracey, by an April 21, 2010 letter, that the City was terminating his employment based on several factors: dishonesty; his unwillingness to be available, deliberate omissions, and insubordination; sick-leave abuse; and violations of City rules and regulations and civil service law.

Mr. Bracey appealed his termination to the Civil Service Board, arguing, among other things, that the City’s action against him was absolutely null as its investigation into the matter exceeded sixty days, contrary to the provisions of La.R.S. 38:2186. After a hearing on the timeliness issue only, the Civil Service Board dismissed the City’s disciplinary action as being untimely. The City appealed this decision to the Ninth Judicial District Court, which affirmed the Civil Service Board’s decision.

In its appeal, the City raises three assignments of error:

1. The trial court erred as a matter of law by applying the “manifestly erroneous” standard of review instead of examining the matter de novo.
2. The trial court erred as a matter of law by affirming the Alexandria Municipal Police and Fire Civil Service Board’s (the “Board”) decision [sic] the City violated the 60-day investigative period under the statutes, regardless of the appropriate standard of review.
3. The trial court judgment violates public policy by prohibiting an appointing authority from conducting supervisory surveillance, | ¡¿hereby allowing a classified employee to engage in improper conduct and waste public resources.

DISCUSSION

The trial court issued extensive reasons for judgment, and we adopt the trial court’s well-reasoned analysis as our own:

Facts and Procedural History

Bracey was fired from the Alexandria Fire Department (ADF) in April of 2010 for making alleged inconsistent dishonest statements to the Fire Department, manipulation of sick leave, unwillingness to perform his duties, and breaching his obligation of diligently pursuing full recovery with [sic] his medical ailments. On October 13, [2009], Bracey went on extended sick leave for mental stress. On January 7, 2010, Bracey provided ADF with a release from mental stress sick leave and simultaneously submitted a different sick leave slip from a different doctor for injuries sustained by him in a car accident. He remained on sick leave until his termination. He filed an appeal with the Civil Service Board. On August 11, 2010, the Civil Service Board granted Bracey’s Motion to Dismiss finding that the City did not complete its investigation timely.
On December 22 and 23, 2009, the Gravel Investigations, Inc. conducted video surveillance of Bracey at the request of ADF Chief Bernard Wesley. The Civil Service Board’s opinion used December 22, 2009, as the start date of the investigation of Bracey. The City argues that because firemen at the Fire Department are given 52 weeks of sick leave each year, the fire employee is still subject to supervision and periodic monitoring while on sick leave. Chief Wesley testified that he authorized the December 22 and 23 surveillance simply to monitor and check on Bracey without any intentions of imposing discipline. Chief Wesley stated he simply filed these surveillance videos, which showed Bracey running errands, when he received them because they meant nothing to him at the time. Bracey was out on mental stress-leave. Chief Wesley had also authorized surveillance on other fire employees and did not take any disciplinary action on that basis for those employees. On February 1, 2010, Chief Wesley authorized new surveillance on Bracey. He did not receive video or reports from this surveillance until February or early March, 2010.
On February 16, 2010, Chief Wesley initiated the formal internal affairs investigation into possible misconduct by Bracey, and he sent Bracey an investigation letter accordingly. Chief Wesley testified that in mid-February, he became suspicious of Bracey’s activities after receiving additional sick leave slips from Bracey, some of which contradicted other sick leave slips. Only after this did ADF interrogate Bracey. Chief Wesley contends that after the interrogation, he realized Bracey gave inconsistent statements and untruthful testimony, which caused him to go |4back to the prior surveillance videos and reports. The City alleges that the formal investigation was concluded on April 13, 2010-56 days after it began. Bracey was discharged on April 21, 2010. Bracey appealed to the Civil Service Board on May 6, 2010. On August 11, 2010, the Civil Service Board convened a hearing and took evidence but did not decide the merits of the case, instead dismissing the disciplinary action because it was not completed timely. The Board heard the testimony of Bracey,[] Mark Gravel, and Chief Wesley.
Memorandums were filed by the City, the Civil Service Board, and Bracey in support of their positions.
Law and Argument
La. R.S. 33:2186 requires that any investigation of a fire employee under that statute shall be completed within sixty days, including the conducting of any pre-disciplinary hearing or conference.
The City argues that because the Civil Service Board’s decision hinged on a matter of legal interpretation of La. R.S. 33:2186 and the merits of the case have never been ruled upon, the court should conduct a de novo review. Guillot v. Louisiana Gaming Control Bd., 1998-1461 (La.App. 1 Cir. 10/26/99), 761 So.2d 561, 562. The Civil Service Board argues that the standard of review should be manifest error because it only made a factual determination as to when the investigation began. It argues that deference should be given to the factual conclusions of the Civil Service Board, and its decision should not be overturned if it is based on a valid legal basis.
The City also relies on Middleton v. City of Natchitoches, 06-1531 (La.App. 3 Cir. 4/4/07); 954 So.2d 356, in which the 3rd Circuit held that de novo review was the proper standard of review for a Civil Service Board decision granting a Motion for Summary Judgment. However, this court interprets Middleton to say that in appellate review of summary motions, the district court must conduct its review by using the same standards that the appellant court would apply. Accordingly, in Middleton, the court was bound to determine whether there were issues of material fact in dispute. If there were not, the court would affirm the trial court’s granting of a Motion for Summary Judgment. The standard of review is still the same. In this instance, the Civil Service Board took evidence, considered that evidence, and made a ruling based upon its findings. Subsequently, this court’s standard of review is manifest error. Under this standard, this court can only overturn the Civil Service Board’s decision if it finds that it was manifestly erroneous, arbitrary and capricious.
The court finds that the Civil Service Board made a factual determination. It made a credibility call after hearing the testimony of [ 5Chief Wesley, Bracey, and Mark Gravel. Applying the manifest error doctrine, the court finds that the Civil Service Board’s decision to dismiss the disciplinary action taken against Bracey should not be overturned.

With regard to the City’s first assignment of error, we first note that the standard of review applying in civil service matters was set forth by the supreme court in Mathieu v. New Orleans Public Library, 09-2746, pp. 5-6 (La.10/19/10), 50 So.3d 1259, 1262-63 (alteration ours):

Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. Bannister [v. Department of Streets ], 95-0404 at 8 [ (La. 1/16/96) ], 666 So.2d [641,] 647; Walters [v. Department of Police of the City of New Orleans ], 454 So.2d [106,] 113 [ (La.1984) ]. Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Bannister, 95-0404 at 8, 666 So.2d at 647; Walters, 454 So.2d at 114. Then, the court must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Id. “Arbitrary or capricious” means the absence of a rational basis for the action taken, Bannister, 95-0404 at 8, 666 So.2d at 647; “abuse of discretion” generally results from a conclusion reached capriciously or in an arbitrary manner, Burst v. Board of Commissioners, Port of New Orleans, 93-2069, p. 5 (La.App. 1 Cir. 10/7/94), 646 So.2d 955, 958.

This guidance directly refutes the City’s first assignment of error that the trial court erred in applying the manifest error standard to the Civil Service Board’s fact finding process. We find no merit in this assignment of error.

We also find no merit in the City’s second and third assignments of error. Louisiana Revised Statutes 33:2181(B) provides the minimum standards applicable to an investigation of a fireman, one of which is notification in writing of the nature of the investigation prior to commencement of a formal investigation. La.R.S. 33:2181(B)(1). Additionally, La.R.S. 33:2186(A) provides in pertinent part that “[a]ny investigation of a fire employee which is conducted pursuant to this Sub-part | fishall be completed within sixty days, including the conducting of any pre-disci-plinary hearing or conference.” (Emphasis added.)

In this case, Gravel Investigations began its surveillance on December 22, 2009, and the formal investigation was not completed until April 13, 2010, or more than sixty days after the initial investigation began. The Civil Service Board rejected the City’s assertion that the December surveillance was nothing more than ordinary supervision and monitoring of an employee. We find no manifest error in that factual determination.

DISPOSITION

For the foregoing reasons, we affirm the district court in all respects. We assess all costs of this appeal to the City of Alexandria in the amount of $721.50. La.R.S. 13:5112.

AFFIRMED.

      . Subsequent to the district court's decision, Mr. Bracey was reinstated by the City and returned to sick-leave status. On December 1, 2011, he was again terminated from his employment by the City, this time for exhausting his sick leave. Mr. Bracey appealed that decision to the Board, who affirmed his dismissal. His appeal to the district court is still pending at this time. Mr. Bracey and the Board have filed a joint motion to dismiss this appeal as being moot. However, this court, in a September 14, 2011 judgment, held that this matter is still relevant as the outcome of the second action is still pending and a dismissal of the current appeal might render the City remediless.

      . Although the district court states that Mr. Bracey testified at the hearing before the Board, the only two witnesses to testify were Chief Wesley and Mark Gravel of Gravel Investigations, Inc.


text:
    MOUNT ZION MISSIONARY BAPTIST CHURCH v. Ameal JONES, Sr.
    No. 11-0961.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Bradley L. Drell, B. Gene Taylor, III, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiff/Appellee, Mount Zion Missionary Baptist Church.

      Tiffany N. Sanders, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Ameal Jones, Sr.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

|, This litigation involves an internal dispute over church leadership in the Mount Zion Baptist Church, Incorporated, a/k/a Mount Zion Missionary Baptist Church, located in Alexandria, Louisiana. Ameal Jones, Sr., appeals a trial court judgment granting a preliminary injunction to Mount Zion removing him as pastor of the church, nullifying an election of trustees favorable to him, and prohibiting him or his agents from entering the church. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

The record of this litigation is extensive and continues to grow. However, we will limit our opinion to the issues raised by the March 2, 2011 trial court judgment that is the judgment at issue in this phase of the litigation.

The evidentiary record before us establishes that Mount Zion Baptist Church, Incorporated, is a Louisiana nonprofit corporation chartered on June 26, 1928. At some point after incorporation it adopted a set of bylaws for the day-to-day operation of the church, but, as is the case in many nonprofit corporations, the church did not necessarily follow the strict letter of the bylaws in its activities. In a December 4, 1993 business meeting, the church voted to amend its articles of incorporation by adding certain tax-related provisions, and this amendment was filed with the Louisiana Secretary of State’s office on October 29, 1996.

The articles of incorporation provide that “[t]he corporate powers of this corporation shall be vested in a Board of Trustees comprised of seven persons ... who shall be elected annually by the members of the corporation, and who shall serve until their successors are elected and qualified.” It further provides that “[a] majority of the Board of Trustees shall constitute a quorum for the transaction of business.”

|2In August of 2006, Johnnie Simmons, Kelvin Sanders, Jean Anderson, Quincy Boyd, Connie Ware, and Daisy Nash were elected as trustees for the church. In December of that same year, Mr. Jones was selected as the church’s pastor.

While there are numerous underlying reasons for the internal dispute in the church, this litigation has as its origin a November 16, 2009 church meeting involving some of the trustees, deacons, and church members. A vote by secret ballot was taken on the question whether to retain Mr. Jones as the church’s pastor. Forty-four of those present voted to declare the pulpit vacant immediately, one voted to retain Mr. Jones as pastor, and two ballots were returned blank.

On the next day, Dexter Sapp, who claimed to be acting on behalf of the Board of Deacons, forwarded a letter to Mr. Jones that stated the following:

This letter will serve as formal notice that after a duly announced Church meeting and a duly held vote your services are herein terminated, effectively immediately. The termination includes your duties as Pastor, the radio ministry and the presiding over any committee, as an[sic] chairperson or ex facto member.
Further, you are prohibited, from going into or upon the property of Mount Zion Missionary Baptist Church. Should you go into or enter upon any said property it will be considered a criminal trespass and you shall be promptly and forcibly be [sic] removed by law enforcement. Thank you for efforts thus far, but the Church has decided it needs to go in a different direction.

The Board of Trustees held a called meeting on December 16, 2010, attended by Mr. Simmons, Mr. Sanders and Ms. Nash. The minutes of that meeting list Ms. Anderson and Mr. Boyd as being absent, but are silent as to whether Ms. Ware remained a member of the Board of Trustees. The minutes do, however, reflect that at the meeting a vote was taken to remove Ms. Ware as Director of Finance for the church. They also reflect that five members of the Board of Deacons were present as Dwell: Chairman David Smith, Fred Baldwin, Glenn Cooper, Charles Keller and Ed Stafford. According to the minutes, “all board members present” voted to declare the pulpit vacant and immediately set up a pulpit committee to search for a new pastor. The minutes are silent as to what action, if any, was taken by the deacons present.

Even before the vote of the Board of Trustees on December 16, 2010, the first pleading was filed by the church seeking an injunction prohibiting Mr. Jones from going onto the church property. The trial court issued a temporary restraining order that same day, granting the church the relief it requested and setting a show cause hearing for a future date. After significant procedural maneuvering, on February 24, 2011, the matter went to trial on a number of different issues. Before the trial on the merits began, the trial court rejected a number of exceptions and motions filed by Mr. Jones. With regard to the remaining issues, the trial court ruled in the church’s favor. On March 2, 2011, the trial court executed a written judgment which provided in part that the church’s preliminary injunction was granted and that Mr. Jones was discharged as pastor of the church; that the purported election of a new Board of Trustees on February 13, 2011, was nullified and set aside; and that Mr. Jones and his agents or representatives were prohibited and enjoined from entering or occupying any of the property of the church “as pastor pending any further action in accordance with the Church bylaws and Louisiana law.” (Emphasis added.)

In his appeal of this judgment, Mr. Jones asserts four assignments of error:

1. The Trial Court erred in ruling that Mt. Zion’s bylaws did not apply to the Appellant’s termination.
2. The Trial Court erred in its finding that the Appellant was validly terminated.
3. Trial court erred when it granted a temporary restraining order, preventing an election of a new board of trustees, then later voiding an election of the board of trustees, when the members had the statutory right to conduct an election.
|44. Trial court erred in recognizing certain individuals as members of the board of trustees, when there was insufficient evidence tending to prove that they were elected by the church and pursuant to the articles and bylaw[s].

OPINION

After Mr. Jones perfected his appeal, the church filed a motion to dismiss the appeal, asserting that the issues raised therein are moot. In support of its motion, the church attached a copy of the transcript of a trial court hearing held on October 26, 2011, which purports to be a hearing on a request by the church for a new preliminary injunction. The evidence presented at that hearing consisted of the testimony of Richard Quinney, a church member who claimed to be present at church on September 18, 2011, at which time Mr. Jones announced from the pulpit that he was no longer going to fight for the church’s pulpit. Even assuming we can consider this new evidence, this does not render the appeal moot. The issues on appeal consist of more than Mr. Jones’ dismissal as pastor. That being the case, we reject the church’s motion to dismiss the appeal.

Standard of Review on Remaining Issues

We first note that although Mr. Jones bases his appellate arguments on the premise that the trial court granted a permanent injunction, the trial court’s judgment of March 2, 2011, clearly states that it granted only a preliminary injunction. A trial court’s determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review. Smith v. W. Va. Oil & Gas Co., 373 So.2d 488 (La.1979).

Louisiana Code of Civil Procedure Article 3601(A) provides that “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” During the pendency of an action for a permanent injunction the court may issue a temporary restraining order, a preliminary injunction, or both. La.Code Civ.P. art. |fi3601(C). A preliminary injunction merely requires a prima facie showing that the plaintiff has a good chance to prevail on the merits. Novelaire Technologies, L.L.C. v. Harrison, 08-157 (La.App. 5 Cir. 8/19/08), 994 So.2d 57. Although the hearing on the preliminary injunction may touch upon, or even tentatively decide, the substantive issues that comprise the petition for the permanent injunction, those substantive issues raised in the principal demand will be decided only after a full trial under ordinary process. Smith, 373 So.2d 488; Novelaire Technologies, L.L.C., 994 So.2d 57.

Assignments of Error Numbers One and Two

In his first two assignments of error, Mr. Jones asserts that the trial court erred in basing its decision that his employment as pastor of Mount Zion was properly terminated pursuant to La.R.S. 12:225(E) and in not applying the church’s bylaws. We find no merit in either of these assignments of error.

Louisiana Revised Statutes 12:222(A) provides that nonprofit corporations may adopt bylaws, and La.R.S. 12:222(B) provides that those bylaws “shall operate merely as regulations among the shareholders or the members.” Additionally, La.R.S. 12:225(E) provides that, within a corporate structure, “[a]ny officer or agent may be removed by the board of directors with or without cause at any time, without prejudice, however, to the contract rights of the person so removed,” and the church’s bylaws define the pastor as an officer of the church. Still, Mr. Jones asserts that the church bylaws provisions relative to termination of a pastor, and not La.R.S. 12:225(E), govern.

Mr. Jones is correct that the church bylaws provide procedures to raise the question of whether to retain a pastor. Article VII, Section II of the church bylaws addresses two different scenarios that might arise. In the first scenario, found in Section 11(A), “[t]he pastor may call for an expression vote from the voting members of the church to determine their desire as to the continued service of him as pastor.” (Emphasis added.) In the second scenario, found in Section 11(B), “[t]he deacons and | ^trustees, desiring an expression of the church as to the continuation of the services of the pastor, shall call a special business meeting for that purpose.” (Emphasis added.)

The trial court based its decision that the church had made a prima facie showing sufficient to justify the grant of the preliminary injunction on La.R.S. 12:225(E). While we do note that the bylaws make other methods available for removal of a pastor, we do not find that those methods are exclusive. That being the case, we find no abuse of discretion in the trial court’s determination that the church established a prima facie showing that the vote of a majority of the Board of Trustees was sufficient to remove Mr. Jones from the pulpit.

Assignment of Error Number Three

After a January 24, 2011 hearing, the trial court issued a ruling that the Board of Trustees in place prior to the suit being filed would remain in office “until we decide otherwise, either by another vote or by determining if this last vote was valid.” On February 11, 2011, the trial court issued a temporary restraining order enjoining Mr. Jones “and his agents and representatives” from “calling, holding, and conducting any election or other procedure for the purpose of electing, removing, or otherwise changing the composition of the board of directors of Mount Zion Baptist Church, Inc. or the Board of Trustees of Mount Zion Missionary Baptist Church at any time.” Mr. Jones ignored this order and presided over a February 13, 2011 meeting wherein a new Board of Trustees was elected.

On February 18, 2011, the church filed a rule for contempt and a rule to vacate the February 13, 2011 election. The trial court addressed this issue in its March 2, 2011 judgment by nullifying the election of the new trustees. In the first part of this assignment of error Mr. Jones argues that the trial court erred in granting the February 11, 2011 temporary restraining order. We find no merit in this argument.

Louisiana Code of Civil Procedure Article 3603(A)(1) provides that the trial court shall grant a temporary restraining order without notice when “[i]t clearly 17appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition.” Although La.Code Civ.P. art. 3612 provides that “there shall be no appeal from an order relating to a temporary restraining order,” this case also involves the subsequent order enforcing that temporary restraining order. See Parker v. Chimneywood Homeowners’ Ass’n, Inc., 02-2475 (La.App. 4 Cir. 12/17/03), 866 So.2d 289, writ denied, 04-202 (La.9/3/04), 882 So.2d 606 (wherein the appellees asserted that there was no right of appeal from a temporary restraining order, but the fourth circuit determined that it had the authority to review the matter on appeal, stating that “[w]e agree that appeals are not permitted in cases involving temporary restraining orders; however, this case also involved a Motion for Preliminary Injunction.” Id. at 293). We find the trial court did not err in granting the temporary restraining order given the underlying facts of this litigation.

In the second half of this assignment of error, Mr. Jones assets that the trial court erred in voiding the results of the February 13, 2011 election. Having reached the conclusion that the trial court’s grant of a temporary restraining order was well within its sound discretion, it follows that Mr. Jones’ complaint in the second half of this assignment of error is without merit as well.

Assignment of Error Number Four

In his final assignment of error, Mr. Jones contends that the trial court erred in ruling in its March 10, 2011 order that Mount Zion’s Board of Trustees would consist of six people: Mr. Simmons, Mr. Sanders, Ms. Nash, Dr. Ware, Mr. Smith, and Mr. Boyd. We decline to address this assignment of error as the judgment complained of was rendered after the March 2, 2011 judgment that is the subject of this appeal.

^DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. Mount Zion Missionary Baptist Church’s motion to dismiss the appeal is denied. We assess all costs of this appeal to Ameal Jones, Sr.

AFFIRMED. MOTION TO DISMISS DENIED.

      . Additional issues concerning the corporate governance of the church are simultaneously on appeal in Edward Ambush v. The Mount Zion Baptist Church, Inc., through its Board of Trustees, 11-1028 (La.App. 3 Cir.2/22/12), So.3d _, 2012 WL 555151.

      . There is some question concerning the election procedure and there is no explanation why only six trustees were elected, but the parties do not dispute the fact that an election occurred at this time. Additionally, the parties do not dispute the fact that no election was held from that point through the beginning of this litigation.

      . Mr. Smith is also listed in the minutes as an ad hoc member of the Board of Trustees.


author: AMY, Judge.

text:
    Robert MINOR v. J & J CARPET, INC.
    No. 11-974.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Donald J. Anzelmo, Snellings, Breard, Sartor, Inabnet & Trascher, L.L.P., Monroe, LA, for Defendant/Appellee, J & J Carpet, Inc.
    Paul H. Benoist, Benoist Law Offices, Natchez, MS, for Plaintiff/Appellant, Robert Minor.

      Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

hln a previous hearing, the workers’ compensation judge found that the claimant had been injured in the course and scope of his employment and awarded benefits. The claimant subsequently instituted this proceeding, seeking to enforce the judgment and requesting penalties and attorney fees. After a hearing, the workers’ compensation judge found that the defendants reasonably relied on representations by the claimant’s attorney that he would obtain and forward the outstanding medical bills. However, the workers’ compensation judge found that the defendants paid three medical bills untimely. Accordingly, the workers’ compensation judge awarded penalties and attorney fees for those three bills and otherwise denied the claimant’s requests. The claimant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Robert Minor, alleged that he injured his back while picking up a piece of granite. After his employer denied workers’ compensation benefits, he instituted a disputed claim for benefits. After a hearing, the workers’ compensation judge found that the claimant was injured in the course and scope of his employment and, in a judgment signed on September 14, 2009, awarded indemnity benefits, medical benefits, and penalties and attorney fees. The defendants appealed and a panel of this court affirmed the judgment of the workers’ compensation judge. See Minor v. J & J Carpet, Inc., 10-45 (La.App. 3 Cir. 6/2/10), 40 So.3d 434.

After the September 14, 2009 judgment became final, the claimant filed a motion to enforce judgment, alleging that the defendants had failed to pay the claimant’s outstanding medical bills in accordance with the time periods delineated in La.R.S. 23:1201(G). Therein, the claimant requested penalties and attorney fees [2and that he be authorized to file a copy of the judgment in the mortgage records of several parishes. Further, the claimant asked the workers’ compensation judge to request that the Louisiana Insurance Commissioner suspend or revoke the workers’ compensation insurer’s license. On the morning of the hearing, the claimant filed a motion to amend, in part asserting that the defendants were not entitled to rely on the reimbursement fee schedule and should pay 100% of the claimant’s medical bills and that the payment should be made directly to the claimant and not the medical providers.

After a hearing, the workers’ compensation judge found that the defendants reasonably relied on a letter from the claimant’s attorney “that he would forward the bills for payment.” Based on this finding, the workers’ compensation judge found that the majority of the medical bills were paid timely. However, the workers’ compensation judge found that three bills were not paid within thirty days after “the defendants were placed on notice that they were due and that it was up to them to be paid.” Thus, the workers’ compensation judge awarded penalties for the failure to pay those bills within the time periods set out in La.R.S. 23:1201(G). The workers’ compensation judge also awarded $1,000.00 in attorney fees. Otherwise, the workers’ compensation judge denied the claimant’s requests.

The claimant appeals, asserting as error:
1. The trial court committed legal error when, in a complete benefits denial case, post-final, non-appealable judgment, it reduced Claimant’s outstanding medical expenses from one hundred percent (100%) to the reimbursement schedule amount that would have been applicable, had the defendants accepted Claimant’s claim at the outset and paid Claimant[’s] medical expenses timely.
2. The trial court committed legal error by construing Exhibit D-l as a waiver by Claimant, thereby allowing the Employer Defendant and its insurance carrier to late-pay the medical expenses |aof Claimant to Claimant’s medical providers at the workers!’] compensation reimbursement schedule, without penalty, more than thirty (30) days after the original judgment was noticed by this court on June 2, 2010, and became final and non-appealable on or about July 2, 2010, and by not awarding Claimant penalties of at least $34,425.90.
3. The trial court committed legal error by failing to grant an order authorizing the filing of a certified copy of the judgment dated September 14, 2009 in the mortgage records of Concordia Parish, Louisiana, East Baton Rouge Parish, and any other parish where the assets of J & J Carpet, Inc[J and LEM-IC Insurance Company may be found, pursuant to Louisiana Revised Statutes 23:1201.3.
4. The trial court committed legal error by not ordering or requesting that the Louisiana Insurance Commissioner suspend or revoke the license or authority of LEMIC Insurance Company to do workers’ compensation business in this state based on its claims adjusting practices whereby it intentionally did not pay Minor’s medical expenses, post final, non-appealable judgment.
5. The trial court committed legal error by not ordering the Employer Defendant to reimburse Mississippi Medicaid all sums expended for Robert Minor’s care arising from his work injury of January 11, 2008.
6. The trial court abused its discretion by awarding Claimant attorney!] fees of only $1,000.00 for post-final, non-appealable judgment discovery, evidence gathering, research, preparation of pleadings, briefing, travel and trial of the Motion to Enforce on a post-final, non-appealable judgment claim with $98,062.23 in unpaid medical bills, subject to a 24% penalty.

Discussion

Findings of Fact

The claimant asserts that the workers’ compensation judge erred in considering a letter from claimant’s counsel as a “waiver,” which permitted the defendants to pay the claimant’s medical bills outside of the thirty day time period permitted by La.R.S. 23:1201(G). The claimant additionally asserts that many of the medical bills were entered into evidence at a previous hearing and that the defendants should have been aware of the bills.

| Louisiana Revised Statutes Article 23:1201(G) concerns the defendants’ failure to pay a judgment timely, stating, in relevant part:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control.

The reasoning for a defendant’s failure to pay a final, nonappealable judgment within thirty days is a finding of fact subject to the manifest error standard of review. Wilzcewski v. Brookshire Grocery Co., 10-1148 (La.App. 3 Cir. 3/16/11), 59 So.3d 530.

According to the insurer’s claims adjuster, Alyson Cranston, she received a letter from claimant’s counsel dated July 13, 2010, stating that he had “requested from all the providers all unpaid medical bills on this matter.” The record indicates that the defendants paid all other portions of the September 14, 2009, judgment timely and, when the claimant forwarded medical bills to the defendants in July and October 2010, the defendants paid those bills timely. We note that Ms. Cranston testified that it would be very hard for the insurer to obtain all of the claimant’s medical bills, especially because many services are billed separately from hospital stays.

Ms. Cranston testified that after the motion to enforce judgment was filed on December 14, 2010, she started “tracking down” the medical bills when she realized that the claimant’s attorney was not going to forward any more of the bills to her. The record indicates that most of the claimant’s medical bills were paid by January 11, 2011. However, according to the record, three bills were paid in |flMarch 2011, and the workers’ compensation judge found that those three bills were not paid timely.

Given the deference afforded the workers’ compensation judge’s findings regarding the reasoning behind the defendants’ failure to timely pay the medical benefits, we find no error in the workers’ compensation judge’s determination that the defendants were not liable for penalties and attorney fees pursuant to La.R.S. 23:1201(G). The record supports the workers’ compensation judge’s finding that the defendants reasonably relied on a letter sent by claimant’s counsel on July 13, 2010 indicating that the claimant would forward any unpaid medical bills to the defendants. See Laird v. Highpoint Sw. Servs., 10-600 (La.App. 4 Cir. 9/22/10), 49 So.3d 928. Cf. Davis v. City of New Orleans, 97-1626 (La.App. 4 Cir. 1/28/98), 706 So.2d 669.

This assignment of error is without merit.

Applicability of Fee Schedule and Reimbursement of Mississippi Medicaid

The claimant also contends that the workers’ compensation judge erred in not awarding 100% of the claimant’s medical expenses, rather than the amount under the reimbursement fee schedule, and that the workers’ compensation judge erred in not requiring the defendants to reimburse Mississippi Medicaid for its expenses related to the claimant’s care. In this case, the first time that the claimant asserted these claims was in his motion to amend the motion to enforce judgment. |fiThe record indicates that the motion to amend was filed on May 2, 2011. The hearing was held in this matter on May 2, 2011. With regard to reimbursement of Mississippi Medicaid, the record does not indicate that additional argument was held on this issue at the hearing. With regard to the claimant’s request concerning the applicability of the fee schedule, the workers’ compensation judge found that both the defendants and the court would be prejudiced by considering such a late-filed request. Specifically, the workers’ compensation judge stated that she was not going to allow “that type of ‘quote-unquote’ pleading” and that only penalties and attorney fees would be addressed at the hearing.

Given the claimant’s untimely assertion of his requests concerning the applicability of the fee schedule and Medicaid reimbursement, we find no error in the workers’ compensation judge’s decision to not consider those requests. See Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654.

This assignment of error is without merit.

Recording of Judgment

The claimant also asserts that the workers’ compensation judge erred in failing to authorize him to file a certified copy of the original judgment in the mortgage records of any parish where the assets of the defendants might be located. The defendants note that the workers’ compensation judge granted this request orally at the hearing, but that it was not memorialized in the written judgment.

In LaRocca v. Bailey, 01-618, pp. 11-12 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263, 1270-71, a panel of this court discussed the conflict between the judge’s oral reasons for judgment and a signed, written judgment, stating:

What is said in open court will not take the place of a signed judgment. In René v. René, 95-0460 (La.App. 4 Cir. 6/29/95)[,] 657 So.2d 788, the court found that a trial judge’s oral reasons for judgment following the hearing must be reduced to a signed, written judgment before the movant could appeal. “When the oral reasons or minute entry conflicts with the written judgment, the latter governs. The trial judge may, within his authority, fender judgment which differs substantially from his prior oral statements. Such oral reasoning forms no part of the judgment. It is the formal, signed judgment which governs the controversy.” Marino v. Marino, 576 So.2d 1196, 1198 (La.App. 5 Cir.1991). (Citation omitted). Even written reasons for judgment contained in the record are unappealable until qualified within the context of a written, final, and appealable judgment. City of Kaplan v. Mayard, 616 So.2d 826 (La.App. 3 Cir.1993).

Accordingly, this court reviews the signed, written judgment, which makes no mention of the claimant’s request to record a copy of the judgment in the mortgage records of various parishes. Generally, where the judgment is silent as to a demand which was at issue, that request is deemed denied. Soileau v. Soileau, 03-1282 (La.App. 3 Cir. 4/7/04), 870 So.2d 584.

Louisiana Revised Statutes 23:1201.3(A) addresses the workers’ compensation judge’s ability to authorize judicial mortgages, stating, in relevant part:

If payment of compensation or an installment payment of compensation due under the terms of an award, except in case of appeals from an award, is not made within ten days after the same is due by the employer or insurance carrier liable therefor, the workers’ compensation judge may order a certified copy of the award to be filed in the office of the clerk of court of any parish, which award whether accumulative or lump sum, when recorded in the mortgage records, shall be a judicial mortgage as provided in Civil Code Article 3299.

The language of La.R.S. 23:1201.3(A) is permissive and not mandatory. See La. R.S. 1:3 and 1:4; Whitley v. State ex rel. Bd. of Sup’rs of La. State Univ. Agr. Meck. Coll., 11-40 (La.7/1/11), 66 So.3d 470. Thus, we find no error in the workers’ compensation judge’s omission of this request in the written judgment.

This assignment of error is without merit.

Revocation of Insurer’s License

The claimant additionally asserts error in the workers’ compensation judge denial of his entreaty that the workers’ compensation judge request that the Louisiana Insurance Commissioner suspend or revoke the defendant’s workers’ compensation insurer’s license. At the hearing, in her reasons for judgment, the workers’ compensation judge indicated that the claimant’s request in this regard was denied.

Louisiana Revised Statutes 23:1201.3(C) provides that,

If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Workers’ Compensation Act, the insurance commissioner, on the request of a workers’ compensation judge or the director, shall suspend or revoke the license or authority of such insurance carrier to do compensation business in this state.

A plain reading of the statute requires a finding by the workers’ compensation judge or the director that the insurance carrier “intentionally, knowingly, or willfully” violated the Workers’ Compensation Act. A review of the record indicates that the workers’ compensation judge made no such finding. To the contrary, as discussed previously, the workers’ compensation judge found that the defendants relied on a letter from the claimant’s counsel “that he would forward bills for payment.” Further, we found no error in the workers’ compensation judge’s findings or in her judgment awarding penalties and attorney fees for three late-paid medical bills. Accordingly, we find no error in the workers’ compensation judge’s denial of the claimant’s request concerning revocation or | ¡¡suspension of the insurer’s license to do compensation business in this state.

This assignment of error is without merit.

Attorney Fees

Finally, the claimant asserts that the workers’ compensation judge erred in awarding only $1,000.00 in attorney fees. The amount of an award of attorney fees is within the discretion of the workers’ compensation judge, so long as that amount is supported by the record. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. “The factors usually taken into account when fixing the amount of attorney fees to be awarded in workers’ compensation cases are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case.” Langley v. Petro Star Corp. of La., 01-198, p. 11 (La.6/29/01), 792 So.2d 721, 727.

The record indicates that the hearing in this matter took less than one day. Further, although the penalties sought by the claimant were large, he was ultimately successful on only a portion of that claim. Accordingly, we find no error in the workers’ compensation judge’s award of $1,000.00 in attorney fees.

This assignment of error is without merit.

Attorney Fees for Work Done on Appeal

The claimant also asserts that he is entitled to an award of attorney fees in the amount of $7,500.00 for work done on appeal. We have already determined that the claimant’s assignments of error are without merit, and we decline to award additional attorney fees for this unsuccessful appeal. Soileau v. R & H Refractory Services, Inc., 01-355 (La.App. 3 Cir. 10/3/01), 796 So.2d 903, writ denied, 01-2954 (La.1/25/02), 807 So.2d 841.

hnDECREE

The judgment of the workers’ compensation judge is affirmed in all respects. Costs of this proceeding are assessed to the claimant, Robert Minor.

AFFIRMED.

      . In the judgment signed on June 2, 2011, the workers’ compensation judge awarded penalties for two bills payable to Natchez Community Hospital in the amounts of $557.60 and $458.18 and one bill payable to River Oaks Hospital in the amount of $17,435.13.

      . Louisiana Revised Statutes 23:1203(B) addresses the employer’s obligations regarding payment for medical services, stating:
      The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation.

      . The workers' compensation judge indicated that the motion had been “faxed over Friday at 12:35 p.m. and the original brought into court this morning.”

      . We note that although the workers’ compensation judge refused to consider the claimant’s request at the May 2, 2011 hearing, she permitted claimant’s counsel to file an appropriate motion within thirty days on that issue.

      . The claimant's request to suspend or revoke the insurer’s license was not mentioned in the signed, written judgment. As previously mentioned, generally, where the judgment passes over in silence a matter which was at issue, that issue is considered denied. Soileau, 870 So.2d 584.


text:
    CITY OF LAFAYETTE v. Sam B. WOFFORD, III.
    No. 11-988.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Harrietta J. Bridges, Baton Rouge, LA, for Appellants, State of Louisiana, Department of Public Safety and Corrections, Office of State Police.
    Gary J. Haynes, Lafayette, LA, for Plaintiff/Appellee, City of Lafayette.
    Sam B. Wofford, III, Lafayette, LA, for Defendant/Appellee, in Proper Person.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

hThe defendant, Sam B. Wofford, III, was arrested for operating a vehicle while intoxicated. Thereafter, the defendant entered into a pretrial diversion program and sought to have the records related to his arrest expunged. After the trial court granted the defendant’s request, the State of Louisiana, Department of Public Safety and Corrections (DPS) objected, arguing that it was statutorily obligated to maintain a public record of the defendant’s arrest. The defendant filed a motion to enforce the expungement order and, after a hearing, the trial court ordered DPS to expunge the defendant’s records, finding that only the prosecuting authority is authorized to maintain a public record of the defendant’s name, date of arrest, and a description of the pretrial intervention or diversion program into which the defendant was placed. DPS appeals. For the following reasons, we reverse and vacate the judgment of the trial court.

Factual and Procedural Background

On June 26, 2009, the defendant was arrested for the offense of operating a vehicle while intoxicated — 1st offense (OWI), a violation of La.R.S. 14:98. At some point, the defendant entered into the district attorney’s pretrial diversion program. According to a letter from the Chief City Prosecutor dated August 9, 2010, charges were refused by the Lafayette City Prosecutor’s Office on July 26, 2009.

On August 9, 2010, the defendant filed a motion in the City Court of Lafayette seeking to have the records related to his June 26, 2009, arrest expunged. The trial court granted the motion on August 25, 2010, ordering that, except for a list maintained by the prosecutor’s office pursuant to La.R.S. 15:242, all agencies |2and law enforcement officers expunge and seal any record of the defendant’s OWI arrest. After it received the trial court’s order, DPS notified the defendant and the clerk of court, via letter, that it could not comply with the order because the defendant’s OWI arrest records were ineligible for ex-pungement under La.R.S. 15:578.1.

On May 17, 2011, the defendant filed a motion requesting that the trial court review DPS’s refusal to expunge the records. After a hearing, the trial court found that, for defendants who enter pretrial diversion, after an expungement is granted, La. R.S. 15:242 and 15:578.1 permit only the prosecuting attorney to maintain records relating to that defendant’s OWI arrest. Accordingly, on July 20, 2011, the trial court ordered DPS to expunge the defendant’s OWI arrest records.

DPS now appeals, alleging as error:
the trial court’s granting of an order to expunge the defendant’s DWI arrest records following completion of the pretrial diversion program in contravention of the requirement that such a record shall be a public record and maintained for a period of five years and not be subject to expungement or destruction during that period in accordance with La.R.S. 15:578.1.

Discussion

Eligibility for Expungement

DPS’s sole assignment of error concerns the interpretation of La.R.S. 15:242 and 15:578.1. However, DPS is appealing a judgment ordering enforcement of a previously issued order. As part of our initial consideration of the underlying order, we first address the defendant’s eligibility for expungement at the time the trial court initially granted the motion for expungement. See La.Code Civ.P. art. 2164; Wooley v. Lucksinger, 09-571 (La.4/1/11), 61 So.3d 507.

|sThe expungement of criminal records is provided for in La.R.S. 44:9. Only specified criminal arrest and conviction records may be expunged pursuant to La. R.S. 44:9. State v. Gerchow, 09-1055 (La.App. 1 Cir. 3/11/10), 36 So.3d 304. Criminal arrest and conviction records that do not satisfy the requirements of the statute are ineligible for expungement. Id. The supreme court, observing the “convoluted nature” of La.R.S 44:9 and its related statutes, has noted “that [o]ur observation that the clarity of these laws, as amended, leaves much to be desired is an understatement.” Expunged Record (No.) 249,044, 03-1940, p. 6 (La.7/2/04), 881 So.2d 104, 108 (quoting State v. Savoie, 92-1586, 93-1955, p. 1 (La.5/23/94), 637 So.2d 408, 409).

Louisiana Revised Statute 44:9(A) provides for the expungement or destruction of misdemeanor criminal records, stating, in relevant part (emphasis added):

A. (1) Any person who has been arrested for the violation of a municipal or parish ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record, under either of the following conditions:
(a) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or
(b) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.
(2) If the court finds that the mover is entitled to the relief sought as authorized by this Subsection, it shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other photographic, electronic, or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint, or any other information of any and all kinds or descriptions. The court shall order such custodians of records to file a sworn affidavit to the effect that the records have been destroyed and that no notations or references have been retained in the agency’s central repository which will or might | ¿lead to the inference that any record ever was on file with any agency or law enforcement office. The original of this affidavit shall be kept by the court so ordering same and a copy shall be retained by the affiant agency which said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal record keeping purposes to preserve the integrity of said agency’s files and shall not be used for any investigative purpose. This Subsection does not apply to arrests for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98 or 98.1.[]

In the case where prosecution has not been instituted, in order for a defendant’s arrest records to be eligible for expungement, the time limitation for the institution of prosecution must have passed. La. R.S. 44:9(A)(l)(a). See State v. Labauve, 05-1273 (La.App. 1 Cir. 9/20/06), 943 So.2d 1186, writ denied, 06-2525 (La.12/15/06), 945 So.2d 694; State v. L.B., 95-2116 (La.App. 1 Cir. 5/30/96), 676 So.2d 179. At the time the trial court granted the defendant’s motion for expungement, the time period for prosecution had not passed. Similarly, although the defendant asserts in his motion to expunge records that “the City of Lafayette dismissed the charges in this matter on the misdemeanor | Bcharge[ ],” the record does not indicate that, if prosecution had been instituted, any charges were “finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.” La.R.S. 44:9(A)(l)(b).

In light of the ineligibility of the defendant for the relief granted in the underlying order, we find error in the trial court’s granting of the motion to enforce the August 25, 2010, order expunging the defendant’s OWI records. Accordingly, we reverse the trial court’s July 20, 2011, judgment.

Applicability of La.R.S. 15:252 and 15:578.1 to DPS

In its sole assignment of error, DPS asserts that the trial court erred in ordering it to expunge the defendant’s OWI arrest records. “It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies.” St. Charles Gaming Co., Inc. v. Riverboat Gaming Comm’n, 94-2697, p. 7 (La.1/17/95), 648 So.2d 1310, 1315. As we have reversed the July 20, 2011, judgment of the trial court, any further discussion of DPS’s arguments concerning the interpretation of La.R.S. 15:242 and 15:578.1 is moot. Thus, we pretermit discussion of this issue.

DECREE

For the foregoing reasons, we reverse and vacate the entirety of the July 20, 2011, judgment. All costs of these proceedings are cast to the defendant, Sam B. Wofford, III.

REVERSED; JUDGMENT VACATED.

      . The record contains a letter from the Fifteenth Judicial District Attorney’s Office, dated March 16, 2011 and file marked July 27, 2011, indicating that the defendant completed his pretrial diversion program successfully on March 3, 2011 and that the "pending charges against you will not be prosecuted and your record will show no conviction on these charges.” (Emphasis in original.)

      . The trial court’s July 20, 2011 judgment ordered DPS to “expunge the arrest record of Sam B. Wofford, III as previously ordered by the court and that the order of expungement that was signed on August 25, 2010 be complied with pursuant to LSA-R.S. 15:242 and LSA-R.S. 15:578.1[J” The trial court stayed its order during the pendency of this appeal.

      . We note that the final sentence of La.R.S. 44:9(A)(2) was determined to be unconstitutional in State v. Bradley, 360 So.2d 858 (La.1978).

      . The defendant was arrested on June 26, 2009 for a violation of La.R.S. 14:98. According to a letter from the Lafayette City Prosecutor’s Office, the charges against the defendant were refused on July 26, 2009. La. R.S. 44:9(A)(1) requires that the defendant petition "the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested" (emphasis added). The clear language of La.R.S. 44:9(A)(1) anticipates that, where prosecution has not been instituted, a defendant will file his or her petition for expungement in the district court. Here, the record is unclear concerning whether prosecution was instituted against the defendant. See La.Code Crim.P. art. 382, La.Code Civ.P. art. 934(7). Moreover, according to the record, the underlying order was issued by the City Court of Lafayette, not a district court.

      . We acknowledge that in State v. Granger, 07-2285 (La.5/21/08), 982 So.2d 779, the basis for the defendant’s motion for expungement was that the two-year time limitation for prosecution had passed. As reported by the supreme court, the facts indicate that the time limitation had not passed at the time the defendant filed his motion. However, the facts indicate that prosecution had been instituted by bill of information and that the defendant entered a pretrial diversion program. Further, the opinion does not indicate whether the defendant’s prosecution was disposed of by dismissal, sustaining of a motion to quash, or acquittal. Ultimately, in Granger, the supreme court found that La.R.S. 15:578.1 was constitutional and dismissed the defendant’s motion for expungement. Consequently, we find that Granger does not offer significant guidance in this case.


author: GENOVESE, Judge.

text:
    Brenda BOWER v. Marx MENARD.
    No. 11-1005.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Nicholas Bellard, Bellard Law Offices LLC, Crowley, LA, for Defendant/Appellant, Marx Menard.
    Robert B. Purser, Meghan L. Young, Opelousas, LA, for Plaintiff/Appellee, Brenda Bower.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Brenda Bower sued Marx Menard for the return of one-half of the funds Mr. Menard received when he redeemed six certificates of deposits (CDs) and the funds in a checking account which named them as alternate depositors. The trial court rendered judgment in favor of Ms. Bower. Mr. Menard appeals. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Menard and Ms. Bower lived together, but never married, from 1992 until 2009. In 2002, six CDs were purchased from Farmers State Bank & Trust Company (Farmers State Bank) located in Church Point, Louisiana, in the name of Marx Menard or Brenda Bower. Shortly after their relationship ended in 2009, Mr. Menard obtained the funds by redeeming all six CDs and closing their joint checking account.

Ms. Bower filed suit against Mr. Menard alleging co-ownership of the CDs and the funds in the checking account and seeking the return of one-half of the funds Mr. Menard received when he redeemed same. Ms. Bower alleged that she and Mr. Me-nard each contributed to the purchase of the CDs and the funds on deposit in the checking account. She asserted that when the CDs were purchased, both she and Mr. Menard were present. She and Mr. Me-nard also opened the checking account together; however, she never received any monies therefrom when Mr. Menard redeemed the CDs and closed the checking account.

Mr. Menard did not deny redeeming the CDs, closing the checking account, or obtaining the funds as a result thereby. However, he disputed Ms. Bower’s allegation that she had any ownership interest in either the CDs or the funds in the checking account.

| aA trial was held on April 20, 2011. At trial, Ms. Bower testified that she began living with Mr. Menard shortly after they met in 1992 and continued living with him until their relationship ended in 2009. According to Ms. Bower, she and Mr. Me-nard shared everything during their eighteen-year relationship, including the day-to-day responsibilities associated with managing Mr. Menard’s bar, Cajun Country Lounge, in Church Point. Though she did not receive a paycheck, Ms. Bower testified that she worked at the bar; she regularly performed the bookkeeping, she worked as a bartender, she cleaned the bar, she cooked suppers hosted at the bar, and she frequently closed the bar. Ms. Bower further testified that the interest payments from the CDs were used by both her and Mr. Menard to support their household and their lifestyle.

The testimony of Debra Matte, Customer Service Representative for Farmers State Bank & Trust Company, corroborated Ms. Bower’s assertion that Mr. Menard and Ms. Bower were present when each of the CDs were purchased and that the checking account named them as alternate depositors. Ms. Matte testified that she personally sold the CDs to Ms. Bower and Mr. Menard. She further testified that Farmers State Bank & Trust Company considered both Ms. Bower and Mr. Me-nard as having an ownership interest in the CDs and the checking account, and that either Ms. Bower or Mr. Menard could have redeemed the CDs and closed the checking account at any time. The evidence presented at trial revealed that the proceeds Mr. Menard received when he redeemed the CDs and closed the checking account totaled $355,007.65.

According to Mr. Menard, he purchased the CDs and put them and the checking account in both his and Ms. Bower’s names in case of an emergency; if something were to happen to him, he wanted Ms. Bower to have access to the money to provide for herself and his children; he did not consider Ms. Bower a |sco-owner. Mr. Menard disputed Ms. Bower’s claims that she worked at his bar and claimed that she never contributed money towards their living expenses. Instead, he alleged that he supported Ms. Bower completely during the entire eighteen years of their relationship. Mr. Menard testified that the money in the checking account and the money used to purchase the CDs was money that he had acquired from the sale of farming equipment, from a personal injury settlement, and from the sale of his bar. However, he did not introduce any documentary evidence corroborating this contention. Alternatively, Mr. Menard argued that the CDs were an incorporeal movable and that he never transferred ownership of the CDs by authentic act. See La.Civ.Code art. 473 and La.Civ.Code art. 2481.

The trial court took the matter under advisement and, on May 13, 2011, issued Reasons for Judgment, awarding Ms. Bower $177,503.82 as her one-half interest in the CDs and the funds from the checking account. A judgment consistent with the trial court’s written reasons was signed June 15, 2011. From this judgment, Mr. Menard appeals.

ASSIGNMENTS OF ERROR

Mr. Menard alleges that the trial court erred in the following respects:

1.The [tjrial [cjourt erred in awarding [Ms.] Bower any money for the certificates of deposit without [Ms. Bower] producing any evidence at all as to a valid donation inter vivos being made of the incorporeal movable CDs, or that there was actual valid purchase of the CDs by Ms. Bower. Absent such evidence!,] there can be no valid donation and any transfer is absolutely null.
2. The [t]rial [c]ourt erred in misapplying the burden of proof in this matter. As Plaintiff and in attempting to prove a donation[,] Ms. Bower had the burden of proving the validity of a donation by “strong and convincing evidence^”] The [c]ourt in this matter has shifted the burden onto Mr. Menard to prove where the funds in the CDs originated.
3. The [t]rial [c]ourt in this matter has erred in creating some form of “palimony” or co-ownership by unmarried persons as a legal regime to justify the award unto Ms. Bower[ ].

|4LAW and discussion

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” S.J. v. Lafayette Parish School Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. If a trial court’s findings are reasonable based on the entire record and evidence, an appellate court may not reverse those findings even if it is convinced that it would have weighed the evidence differently. Id. “The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between respective courts.” Edwards v. Daugherty, 98-635, p. 4 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, 348, writ denied, 99-2034 (La.9/17/99), 747 So.2d 568.

Sylvester v. Fontenot, 10-1115, p. 6 (La.App. 3 Cir. 3/9/11), 58 So.3d 675, 679-80.

Mr. Menard’s assignments of error assert that the trial court erroneously held that the funds in the Farmers State Bank accounts were co-owned and that the trial court erroneously divided the funds equally. The trial court gave reasons for its determination that the funds were co-owned as follows:

Looking at the totality of the circumstances in this case, the evidence and testimony were strong and convincing that Marx Menard intended to give [Ms. Bower] an interest in the CDs at issue.
The CDs were in the name of Marx Menard or Brenda Bower.
Mr. Menard testified that he wanted [Ms. Bower] to have the money for [her] and the children if something had happened to him.
In this case, all of the CDs except one was [sic] in the name of Marx Menard or Brenda Bower.
[Mr. Menard] could have easily put only one or none of the CDs in the name of Brenda Bower or Marx Menard, if that was not his intention.
There were no documents introduced that the money to open the CDs came from farming or a personal injury claim.

Louisiana Civil Code Article 797 provides that “[o]wnership of the same thing by two or more persons is ownership in indivisión. In the absence of other | ^provisions of law or juridical act, the shares of all co-owners are presumed to be equal.” Thus, “there is a presumption that a joint bank account is owned in equal shares by each depositor.” Sylvester, 58 So.3d at 681 (citing Cooper v. Hibernia Nat’l Bank, 405 So.2d 540 (La.App. 4 Cir.1981)). “That presumption can be rebutted by appropriate evidence.” Id. (citing Succession of Hodge, 424 So.2d 363 (La.App. 2 Cir.1982)). It is evident from its reasons for judgment that the trial court clearly found Ms. Bower more credible.

When the findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the findings of fact, for only the factfinder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 682 (quoting Hebert v. Rapides Parish Police Jury, 06-2001, p. 3 (La.1/16/08), 974 So.2d 635, 654 (on rehearing)). We find the evidence supports the trial court’s determination that Ms. Bower and Mr. Menard were co-owners of the CDs and the checking account. Each of the six CDs and the checking account state on its face that the funds were deposited by and are payable to Marx Menard or Brenda Bower. Mr. Menard offered no competent, documentary evidence to support his assertions that the CDs and money in the checking account were his alone. Therefore, we find that Mr. Menard failed to overcome the presumption that the funds were jointly owned by him and Ms. Bower. We also find no manifest error in the trial court’s award of $177,503.82 to Ms. Bower representing her one-half interest in the CDs and the funds in the checking account.

Finally, in brief, Ms. Bower requests additional damages for what she categorizes as Mr. Menard’s frivolous appeal “instituted for the sole purpose of delay.” An appellee, such as Ms. Bower, may seek additional damages on account of a frivolous appeal. See La.Code Civ.P. art. 2164. However, an appellate court does not have jurisdiction to consider a request for damages for a frivolous appeal Rabsent an appeal or an answer to an appeal. See La.Code Civ.P. arts. 2121 and 2133. Consequently, Ms. Bower’s request is not properly before this court and will not be considered.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Defendant/Appellant, Marx Menard, is to bear all costs of this appeal.

AFFIRMED.