text:
    Blane GUILLORY v. Rachel Cefalu GUILLORY.
    No. 2008-1375.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Howard C. Dejean, Opelousas, LA, for Plaintiff/Appellee, Blane Guillory.
    Errol L. Cormier, Lafayette, LA, for Defendant/Appellant, Rachel Cefalu. Guil-lory.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| defendant-appellant, Rachel Cefalu Guillory, appeals the trial court’s judgment which denied her request for final periodic spousal support and an extension of interim periodic spousal support from her ex-spouse, Blane Guillory. She asserts that the trial court manifestly erred in finding her partially at fault in the dissolution of the marriage and that she failed to establish good cause for an extension of the interim support obligation.

The judgment of the trial court is affirmed.

I.

ISSUES

1. Did Mrs. Guillory establish the requisite freedom from fault necessary to establish entitlement to final periodic spousal support?
2. Did Mrs. Guillory establish “good cause” for a post-divorce extension of Mr. Guillory’s obligation to pay interim periodic spousal support?

II.

FACTS

Blane Guillory and Rachel Cefalu Guillo-ry were married on August 5, 2006. They were married approximately seventeen months before Mr. Guillory moved out of the matrimonial domicile in December of 2007 and filed a Petition for Divorce. Mrs. Guillory subsequently filed a Rule for Spousal Support, seeking both interim and final periodic spousal support.

Mr. Guillory is a self-employed businessman who was the family’s primary income source. Mrs. Guillory, who attended college for two years pursuing a degree in business, did not work during the marriage except for a brief time in 2006 when she worked at one of Mr. Guillory’s businesses performing typical clerical Rduties in addition to handling the business’s payroll. She earned a nominal salary. Mrs. Guillory’s work experience prior to that was comprised of bartending and waiting tables. Also, in the year preceding her marriage, she worked for a period of approximately five months in Iraq, in a clerical capacity, at a recreational facility used by this country’s military troops. Her salary was $3,000.00 per month. However, due to hazard pay she received, she earned $8,000.00-$11,000.00 per month during that period.

After Mr. Guillory moved out of the matrimonial domicile, he made cash deposits to Mrs. Guillory’s checking account for a period of approximately three months. The amounts are not made clear in the record. Mr. Guillory also gave Mrs. Guil-lory a lump sum payment of $25,000.00 for the purpose of assisting her in establishing a new residence if she wished.

The matrimonial domicile, the separate property of Mr. Guillory, continued to be occupied by Mrs. Guillory for approximately three months after he moved out. During that time, Mr. Guillory continued to pay all of the expenses associated with maintenance of the home. He also continued to pay the credit card bills created by Mrs. Guillory after the separation. Those bills included costs for fuel for the Mercedes-Benz vehicle that she drove, as well as for her food and entertainment. In March of 2008, Mrs. Guillory moved to what was described as an “upscale” apartment. She returned the Mercedes-Benz to Mr. Guillory a few months later, in May of 2008.

Mrs. Guillory subsequently filed a motion for an extension of interim periodic spousal support, recognizing that Mr. Guil-lory’s obligation to provide her with interim support could be terminated once the divorce judgment was rendered. The trial on the merits of the divorce and Mrs. Guillory’s spousal support requests |swas held on August 4, 2008. The trial court granted the divorce judgment and denied Mrs. Guillory’s requests for final periodic spousal support and her request for an extension of interim periodic spousal support. Mrs. Guillory appeals.

III.

LAW AND DISCUSSION

A spouse who can prove a need for financial support and no fault in the dissolution of the marriage prior to the filing of marriage termination proceedings may be entitled to receive interim periodic support or final periodic support. La.Civ.Code arts. Ill and 112. In this case, Mrs. Guil-lory received interim periodic spousal support for a period pending termination of the marriage. The interim periodic support she received prior to the rendition of the judgment of divorce is not the subject of this appeal. Rather, Mrs. Guillory seeks a reversal of the trial court’s determination that she is not entitled to final periodic spousal support post-divorce and that she was not entitled to an extension of interim spousal support for a period of four months as she had requested.

The trial court’s determinations on these domestic relations issue are to be given great deference on appellate review. Pearce v. Pearce, 348 So.2d 75 (La.1977); see also Wolff v. Wolff, 07-332 (La.App. 3 Cir. 10/3/07), 966 So.2d 1202. Therefore, the trial court’s findings of fact vrill not be disturbed unless they are manifestly erroneous or clearly wrong. Wolff, 966 So.2d 1202.

\AFinal Periodic Spousal Support

Louisiana Civil Code Article 112 requires that a spouse seeking final periodic support as a consequence of a divorce prove his or her freedom from fault in the dissolution of the marriage. That spouse must prove also his or her need for the support and the other spouse’s ability to provide such support. Article 112(A) states:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.

(Emphasis added). “ ‘Fault’ contemplates conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties or responsibilities.” Goodnight v. Goodnight, 98-1892, p. 3 (La.App. 3 Cir. 5/5/99), 735 So.2d 809, 812 (quoting Guillory v. Guillory, 626 So.2d 826, 829 (La.App. 2 Cir.1993)). Those spousal obligations include fidelity, support, and assistance. La.Civ.Code art. 98. The contemplated misconduct rises to the level of fault when it is of a “serious nature” and is also “an independent^] contributory or proximate cause of the separation.” Pearce, 348 So.2d at 77. The behaviors should be of the nature that “compel a separation because the marriage is unsupportable.” Allen v. Allen, 94-1090, p. 13 (La.12/12/94), 648 So.2d 359, 363 (quoting Brewer v. Brewer, 573 So.2d 467, 469 (La.1991)).

Because Louisiana’s statutory law does not define acts or omissions constituting fault sufficient to deny final periodic spousal support, criteria developed through pri- or jurisprudence is relied upon to make such a determination. Allen, 648 So.2d 359. These include those grounds formerly providing a basis for legal separation: “adultery, habitual intemperance, excesses, cruel treatment or outrages, making living together insupportable, and abandonment.” Id. at 362.

|sMrs. Guillory denies bearing any fault in the dissolution of the marriage, asserting that the evidence relied upon by the trial court to make this determination was insufficient to serve as a basis for denying her claim for final support. She claims that the trial court essentially found that her behavior constituted habitual intemperance or excesses, cruel treatment, or outrages, but she contends the behaviors mentioned do not rise to that level. Specifically, she was accused of arguing fairly regularly with Mr. Guillory; locking him out of the home on occasion when he arrived home late at night; staying away from home for days at a time, without answering Mr. Guillory’s calls to her mobile phone to advise him of where she was or when she planned to return; and purposely delaying the couple’s planned wedding anniversary trip by arriving home late and angrily failing to prepare to leave as had been previously scheduled.

Mrs. Guillory defends her actions by stating that many of the couple’s arguments were akin to mere “fussing” or “bickering” and offer insufficient support for a finding of fault. In addition, she claims that any instances of her locking Mr. Guillory out of the home were due to his staying out late at night two to three times a week, drinking alcohol, and that it was not unreasonable for her to respond to this behavior as she did.

We do not find that Mrs. Guillory satisfied her burden of establishing her freedom from fault, and we find no error in the trial court’s determination that Mrs. Guil-lory bore fault in the dissolution of the marriage. Mr. Guillory offered contradicting explanations for the acts and omissions mentioned by the trial court in its ruling as a basis for concluding that she shared in the fault leading to the breakup of the marriage. For example, he denied that he was out late drinking and testified that he often met with clients after business hours but typically returned home before |fill:00 p.m. He denied that he returned home drunk or that she had cause to lock him out of the home on those nights. Mr. Guillory also testified that Mrs. Guillory simply seemed generally unhappy in the marriage and exhibited a foul mood, which he opined was perhaps due to their age disparity and her dislike for his time spent away from her dealing with his work or other family obligations. Mrs. Guillory, on the other hand, did not contradict Mr. Guillory’s account of her multiple instances of “disappearing” for days at a time and purposely avoiding any contact with Mr. Guillory during that time. She did not contradict his description of her exhibiting generally negative behavior nor her exhibition of an unhappiness with the marriage.

Although we recognize that a spouse should not be deprived of permanent spousal support simply because he or she is not totally blameless for the dissolution of the marriage, in light of the conflicting testimony and facts and circumstances of this case, we are satisfied that the trial court’s finding that the wife was not free from fault is not manifestly erroneous. See Pearce, 348 So.2d 75. Therefore, since the necessary element of freedom from fault was not successfully established, we find no error in the trial court’s judgment denying Mrs. Guillory’s claim for final periodic spousal support.

Extended Interim Spousal Support

Louisiana Civil Code Article 111 provides that interim periodic spousal support may be awarded pending a divorce proceeding or thereafter. Article 113 of the Civil Code further explains this award:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. If l7a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from, the rendition of judgment of divorce, but only for good cause shown.

(Emphasis added).

At issue is the trial court’s denial of Mrs. Guillory’s request for a four-month extension of the interim spousal support obligation. We find that Mrs. Guillory failed to establish “good cause” for the extension and find no error in the trial court’s ruling.

Whether “good cause” exists for the extension of interim support must be determined on a case-by-ease basis. The disability of the claimant spouse or a situation where a claimant spouse is prevented from seeking employment due to circumstances beyond his or her control might be “good cause” to extend interim support.

Piccione v. Piccione, 01-1086, pp. 9-10 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, 433.

As stated earlier, “the claimant-spouse bears the burden of proving necessitous circumstances or insufficient means for his or her maintenance” when seeking spousal support. Goodnight, 735 So.2d at 814. This applies to interim spousal support claims as well, among other factors that are also to be considered. La.Civ. Code art. 111; Piccione, 824 So.2d 427. In Goodnight, this court recognized that the following factors were a proper consideration when determining a need for spousal support: “income, means, earning capacity, assets, the liquidity of the assets, [his or] her financial obligations, [his or] her health and age and any other circumstances deemed relevant by the court.” Id. Earning capacity alone, we stated, is not a sufficient basis to deny a request for spousal support, and we agreed with other courts that the claimant-spouse should not be required, necessarily, to accept |Rany type of employment immediately after a divorce. Id. The trial court should be mindful to consider any difficulties in finding employment suitable for the “spouse’s age, training, and ability.” Id. (citations omitted). These considerations continue to be relevant when determining whether good cause exists for a requested extension of the interim periodic spousal support obligation.

In this case, the record supports the trial court’s judgment denying Mrs. Guillo-ry’s request for an extension of this support. Mrs. Guillory completed approximately two years of college coursework, successfully worked in clerical/office environments after leaving college, and is a licensed bartender with experience also as a waitress. The facts also reveal that she had been voluntarily out of the workforce for only one year at the time the divorce action was instituted. There was no evidence presented of her current financial status, i.e., necessitous circumstances, other than her unemployed status. Nevertheless, at the time of the divorce hearing, Mrs. Guillory testified that she had not seriously undertaken a job search since the couple’s separation, offering no proof of her having faced any impediments to finding suitable employment. Mrs. Guillo-ry is in her mid-20s and did not establish at trial any compelling reason of any significance or gravity that would make it inequitable to deny an extension of such support. See Piccione, 824 So.2d 427.

IV.

CONCLUSION

The trial court’s judgment denying final periodic spousal support and an extension of interim periodic spousal support to defendant-appellant, Rachel Cefalu Guillory, is affirmed. All costs of this appeal are assessed to Rachel Cefalu Guillory.

AFFIRMED.


source: Caselaw Access Project

author: PAINTER, Judge. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    J.M., individually and on behalf of her minor daughter, A.C. v. ACADIA PARISH SCHOOL BOARD, Jane Doe, Steve Duplechin, and ABC Insurance Company.
    No. 2008-1377.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Lauren K. Ledet, L. Clayton Burgess, Lafayette, LA, for Plaintiff-Appellant: J.M., individually and on behalf of her minor daughter, A.C.
    Ronald J. Fiorenza, Andrew E. Shaffer, Alexandria, LA, for Defendanb-Appellee: Acadia Parish School Board, Sophia Joseph, and Steve Duplechin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

11 Plaintiff, J.M., appeals the judgment of the trial court dismissing her action based on a finding that, although there was a breach of duty, that breach was not a cause-in-fact of any injury to Plaintiff. For the following reasons, we affirm.

FACTS

The underlying facts of this case are not in dispute. On Friday, March 31, 2006, J.M. watched her fifteen-year-old daughter, A.C., get onto the school bus. After traveling about two blocks on the bus, A.C. asked the driver to let her off saying that she had a ride to school. The driver, Sophia Joseph, allowed A.C. to exit the bus without asking for or receiving the written permission slip required by school board policy. Instead of going to school, A.C. was picked up by a friend and driven to the home of her eighteen-year-old boyfriend, N.W. While there, she engaged in sexual relations with him.

Around noon that day, J.M. received a phone call from Crowley High School Principal Steve Duplechin telling her that A.C. had not arrived at school that day. Duple-chin told her he believed that A.C. was with N.W. However, he refused to give her N.W.’s address. J.M. went to the Acadia Parish Sheriffs office for help locating her daughter. At the end of the school day, the Sheriffs office obtained N.W.’s address from the school. However, by the time the information was received, A.C. had left that location and was hiding from her mother because of her fear of the consequences of skipping school. She was located by the police on Sunday, April 2, 2006.

J.M. filed this suit on behalf of herself and her daughter seeking damages arising out of the incident. The trial court, after hearing evidence in the case, found |2that while the School Board, through its employee, breached a duty owed to Plaintiff, it was not a cause-in-fact of any harm incurred as a result of the incident. As a result, he dismissed the action. J.M. appeals.

DISCUSSION

J.M. asserts that the trial court erred manifestly in failing to find that the School Board’s breach of duty was a cause-in-fact of the damages arising out of the incident.

“Breach of duty and cause in fact are factual questions to be determined by the factfinder.” Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030, p. 11 (La.9/5/07), 966 So.2d 36, 44.

The testimony established the following: On approximately March 24, 2006, A.C. and N.W. were caught at school in what was referred to as a public display of affection. The principal testified that he warned N.W. of the possible legal consequences of a relationship between an eighteen year old and a fifteen year old. J.M. testified that after her daughter went missing she found a form in the girl’s backpack indicating that her daughter had been given a three day in-school suspension for the incident, but the principal testified that a search of the school records did not show any suspension of either N.W. or A.C. during that time. A.C. testified that she was given an in-sehool suspension as well.

About two weeks before the incident made the basis of this suit, J.M. discovered a cell phone in her daughter’s room that she knew did not belong to a family member. At first her daughter claimed that the phone belonged to her friend C.R. However, a call to the girl’s house established that the phone did not belong to her. A.C. finally confessed that the phone belonged to N.W. When she discovered the boy’s age, she called him and told him that he should come get his phone and that lashe needed to talk to him. N.W.’s mother accompanied him to Plaintiffs house. J.M. told N.W. that he could not continue to have a relationship with her daughter. At this time, she apparently learned that on at least one on two prior occasions when A.C. had climbed out an open window late at night, she had been at N.W.’s house and his mother had sent her away.

On approximately March 30, 2006, A.C. and her friend C.R. planned to skip school to spend the day with their boyfriends. A.C.’s sister, E.C., was aware of the plan but did not participate. On Friday, March 31, 2008, A.C. asked to be let off the bus and told the driver that she had her mother’s permission to do so. The bus driver testified that she believed the girl because she was well behaved and never a trouble maker on the bus. A.C. was picked up by C.R. and C.R.’s boyfriend who took her to N.W.’s house. Sometime during the morning, E.C. used another student’s cell phone to call A.C. and tell her she needed to go home or get to school, because she was in trouble. Around noon, Duplechin called J.M. and N.W.’s mother. However, Mrs. N.W., a school teacher, was on a field trip and could not return home to find out what was going on. Instead she sent N.W.’s grandmother to check on him. When she arrived at the house, the girls hid until she left then got a ride to an abandoned house where they stayed until Sheriffs deputies found them on Sunday.

J.M. went to the school at approximately 3:00 p.m. where she spoke to E.C. and found out about the plan to skip school and that A.C. planned to get back on the bus at the end of the day. J.M. called her husband and found out that A.C. had not gotten off the bus, and that C.R.’s mother wanted to talk to her. C.R.’s mother informed J.M. that she had spoken to C.R. and tried to get her to come home but that the girls were scared, and she could not convince them to come home. J.M. searched A.C.’s 1¿room to try to find some clue as to her possible whereabouts and found letters to A.C. from N.W. which indicated that the two had an ongoing sexual relationship. A.C. alleges that sometime Saturday or Sunday, a man who was visiting the abandoned house tried unsuccessfully to force her to have sex with him. Because of this, she called N.W. on C.R.’s cell phone, and he came to the house. She may have also spoken to her sister during the weekend. Finally, a neighbor reported activity at the abandoned house, and the Crowley Police or Sheriffs Deputies found the girls.

A.C. was received psychological treatment at Stuller Place in Lafayette, Louisiana for the problems allegedly resulting from this incident and an incident of sexual abuse which happened earlier in her childhood.

J.M. argues that but for the driver allowing A.C. to get off the bus, A.C. would have gotten to school and J.M., would not have been charged with truancy. However, no evidence was introduced, outside of J.M.’s testimony, to show that J.M. was charged with truancy or that if such a charge was brought, whether this incident was the basis for the charge. J.M. further argues that but for the driver allowing A.C. to exit the bus, she would not have gone missing for three days. However, in her brief she asserts that the School Board is responsible only for damages attributable to the period between the time she found out her daughter was not at school and the end of the school day.

“To prevail in tort, Louisiana law requires proving five separate elements, to wit: (1) duty; (2) breach of duty; (3) eause-in-fact; (4) scope of liability or protection; and (5) damages.” Frederick v. Vermilion Parish Sch. Bd., 00-382, p. 3 (La.App. 3 Cir. 10/18/00), 772 So.2d 208, 212, writ denied, 00-3171 (La.1/12/01), 781 So.2d 561 (footnotes omitted).

|sThe trial court concluded that the bus driver’s action, while a breach of her duty, was not a cause-in-fact of the harm to Plaintiffs.

As observed by the Supreme Court in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972):
“Cause” in legal cause demands an inquiry into whether a legal standard of care exists and requires delving into policies for and against extending the asserted legal standard of care to protect the particular plaintiff against the particular harm. (Citations omitted). Moreover, whereas the question of cause-in-fact involves a factual determination, the determination of legal cause involves a purely legal question. (Citation omitted).
Every negligence case must be decided on its own facts and circumstances. Roberts v. Benoit, 605 So.2d 1032 (La.1991). In some instances a risk may not be found within the scope of a duty where the circumstances of that particular injury to that plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. See Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).
We are mindful that foreseeability, as the determining test, is neither always reliable nor the only criterion for comparing the relationship between a duty and a risk. Some risks that arise because of a defendant’s conduct are not within the scope of the duty owed to a particular plaintiff simply because they are unforeseeable. The ease of association of the injury with the rule of conduct that is urged, however, is the proper inquiry. Hill, supra. Nevertheless, the extent of protection owed a particular plaintiff is determined on a case-to-case basis to avoid making a defendant an insurer of all persons against all harms. (Citation omitted).

Jones v. Gaines, 43,049 p. 18-19 (La.App. 2 Cir. 3/5/08), 978 So.2d 522, 532-33, writ denied, 08-0752 (La.6/20/08), 983 So.2d 1273.

In this case, we conclude that while the conduct of the bus driver was a breach of her duty, the risk that arose was not within the scope of the duty because of lack of foreseeability. The events following the breach of the duty are not easily associated with the bus driver’s breach of duty. Accordingly, we find no error in the trial court’s | (¡decision to dismiss Plaintiff’s claims. Therefore, we will not reverse the judgment of the trial court.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff-Appellant, J.M.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

|/The trial court determined that the School Board’s conduct was neither a cause-in-fact nor a legal cause of J.M.’s injuries. While the majority asserts that this is a cause-in-fact case, it confuses cause-in-fact with legal cause because the jurisprudence on which it relies focuses on legal cause.

Unquestionably, the School Board had a legal duty which was breached in this case. J.M.’s worry and consternation over her daughter’s whereabouts would not have happened if the bus driver had not imprudently allowed her minor daughter to exit the bus. Many parties are to blame in this case, not the least of which are A.C. and her sister. Nonetheless, when there are many concurrent causes leading to injury, the question that must be asked is whether one of the causes was a substantial factor in bringing about the harm. See Daye v. General Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654. Given the factual circumstances of this case, I conclude that the School Board’s conduct was a substantial factor in bringing about the harm caused to J.M.

|.2We must next determine whether the School Board’s breach of its duty extends to protecting J.M. against the risk of harm which she suffered. Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 620 (1972). Did the School Board’s duty and breach of its duty include within the scope of that protection the risk that J.M. would be criminally charged with truancy and the risk that she would be emotionally affected by ignorance of her daughter’s whereabouts? I think so. Was there an ease of association between the risk that this harm would occur to J.M. and the legal duty which was breached? See Lazard v. Foti, 02-2888 (La.10/21/03), 859 So.2d 656. Again, I think so.

The majority makes reference also to the lack of evidence showing that J.M. was charged with truancy or the relationship of this incident to this charge. However, there was nothing to contradict J.M.’s testimony on this point. Nor was she found not credible by the trial court. There is no sound reason for the rejection of J.M.’s testimony. Assuming, arguendo, that the majority’s position is a valid one, there is no dispute about the fact that J.M. was emotionally troubled by her daughter’s absence. The record demonstrates and common sense dictates this observation.

For the foregoing reasons, I would find the School Board liable for the injuries suffered by J.M.


author: THIBODEAUX, Chief Judge.

text:
    Cherry D. COTTON v. FIRST FLEET.
    No. 2008-1363.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plaintiff/Appellant, Cherry D. Cotten.
    Robert A. Dunkelman, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendant/Appellee, First Fleet.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff-appellant, Cherry D. Cotten, asserts that the Office of Workers’ Compensation (OWC) erred by failing to include the value of certain fringe benefits in the calculation of Cotten’s average weekly wage (AWW) to determine Cotten’s indemnity benefits. The OWC agreed with the defendant First Fleet’s position that this court’s previous remand for recalculation of the AWW was limited to establishing the number of days Cotten worked during the twenty-six weeks preceding her injury. We reverse because we vacated the OWC’s judgment with respect to AWW and remanded for an appropriate calculation of the AWW, and because we find that the interest of justice requires us to do so.

I.

ISSUE

We shall consider whether the OWC should have included the value of Cotteris vacation pay and health insurance benefits in the calculation of Cotteris AWW, where this court vacated the OWC’s previous determination of Cotten’s AWW because the OWC erroneously failed to establish the number of days Cotten worked during the twenty-six weeks preceding the accident, where this court did not mention fringe benefits in its opinion, though Cotten appealed on this ground, and where we remanded for an appropriate calculation of AWW.

II.

FACTS

After a trial, the OWC determined that Cotten sustained an injury while in the employ of First Fleet. See Cotton v. First Fleet, 07-29 (La.App. 3 Cir. 5/2/07), 957 So.2d 229, imits denied, 07-1488, 07-1543 (La.10/5/07), 964 So.2d 947, 948. Relying on First Fleet’s pre-trial statement that an agreement as to the AWW could probably be reached, Cotteris counsel failed to introduce evidence of the fringe benefits Cotten received. Thus, the OWC determined the amount of Cotteris worker’s compensation benefits without considering the value of the fringe benefits. Cotten requested a new trial on the AWW issue, but the workers’ compensation judge (WCJ) denied the motion.

Because Cotten was paid on the basis of miles driven, the OWC improperly determined Cotteris AWW by not applying La. R.S. 2S:1021(12)(d). Cotton, 957 So.2d 229. Therefore, this court vacated the OWC’s determination of the AWW and remanded the case for proper calculation:

[T]he WCJ’s judgment is vacated insofar as it purports to set out Mrs. Cotton’s average weekly wage. This matter is remanded to allow evidence to be adduced with regal’d to the number of days worked by Mrs. Cotton during the twenty-six weeks preceding the accident, and for a recalculation of her average weekly wage as set out in La.R.S. 23:1021(12)(d).
|3[W]e vacate the WCJ’s determination of the average weekly wage and remand for a determination of the number of days actually worked by Mrs. Cotton during the twenty-six weeks prior to the April 1, 2004 accident so as to allow an appropriate calculation both of average weekly wage and the proper SEB [supplemental earnings benefits] payment owed.

Id. at 239.

At the hearing, the OWC again refused to allow the evidence of the fringe benefits and limited its inquiry to the number of days Cotten worked during the twenty-six weeks preceding the accident. This appeal followed.

III.

STANDARD OF REVIEW

This case involves interpretation of our previous decision in this case, construction of our rules of civil procedure and rules of appellate courts, as well as determination of proper methodology to establish AWW, all of which are questions of law that we review de novo. See Ewing v. Armstrong World Indus., Inc., 02-918 (La.App. 3 Cir. 2/19/03), 846 So.2d 813, writ denied, 03-738 (La.2/13/04), 867 So.2d 699.

IV.

LAW AND DISCUSSION

First Fleet argues that because this court specifically mentioned La.R.S. 23:1021(12)(d) and not La.R.S. 23:1021(12)(f) — the statute that requires consideration of fringe benefits in calculation of AWW — the remand was limited to taking evidence of the number of days Cotten worked during the twenty-six weeks preceding the accident. In support, First Fleet cites a long-established rule that

When an appellate court renders a final judgment on the merits of a case, disposing of all of the issues tendered, and |4remands the case to the trial court for the puipose merely of having a certain calculation made, or of having certain specified facts ascertained, and with instructions to the trial court to render judgment according to the opinion rendered by the appellate court, the merits of the case are not subject to review or reconsideration by means of another appeal.

Stassi v. Gureasko, 289 La. 951, 120 So.2d 489, 491 (1960). Thus, First Fleet asserts, the OWC committed no error by relying on this rule and not considering Cotten’s fringe benefits.

First Fleet further stresses that Cotten presented the same arguments in its first appeal to this court, i.e., that the determination of AWW was improper not only because the evidence of the number of days worked was not taken, but also because the fringe benefits were not included in the calculation of the AWW. Therefore, First Fleet argues, because this court did not specifically mention the issue of fringe benefits, that relief was denied to Cotten.

Yet, this argument proves too much. The rule First Fleet cites states that the trial court’s determination is not subject to the second review when the appellate court rendered a final judgment “disposing of all of the issues tendered.” Id. (emphasis added). Cotten requested in the first appeal that the value of her fringe benefits be added to the calculation of her AWW. She, thereby, tendered the issue. This court, as First Fleet correctly pointed out, did not mention this issue in its remand and, therefore, did not dispose of it.

First Fleet strenuously argued that this court, in fact, disposed of this issue because “when a Court’s Judgment is silent as to relief sought, that relief sought is denied.” This articulation of the well-established rule is not exactly accurate. This rule applies only when an appellate court interprets a judgment of the trial court. Thus, the more precise expression of the rule is: “all of the issues presented by the pleadings upon which evidence has been offered will be considered as having been |fidisposed of by final judgment in the cause, and any demand passed over in silence will be considered as having been rejected by the trial court.” Maricle v. Casablanca Convertors, Inc., 546 So.2d 275, 277 (La.App. 3 Cir.1989) (citations omitted) (emphasis added). Thus, where the appellate court does not address an issue a party presents for review, it does not mean that the appellate court rejected the argument or denied the relief sought. It means simply that the appellate court, for whatever reason, refused or failed to address the issue or has found it unnecessary to review the issue.

Because there is no presumption that the appellate court rejected or denied the relief sought, the supreme court often does not simply reinstate the trial court’s judgment where the appellate court erred as to one of the issues submitted for its review, reversed based on that error, and did not consider other issues submitted to it. See Logan v. La. Dock Co., Inc., 541 So.2d 182 (La.1989). Instead, in these circumstances, “it is usually the better practice for ... [the supreme] court to remand the case to the court of appeal for such review.” Id. at 193 (citations omitted). Accordingly, we shall examine whether the OWC should have included the value of Cotten’s fringe benefits when it determined her AWW.

This court vacated the entire judgment pertaining to the AWW. Thus, the OWC had to start anew and determine Cotten’s AWW based on law. Louisiana Revised Statutes 23:1021(12)(f) requires that

any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be inclucL ed in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer.

| (¡(emphasis added). Therefore, when this court vacated the OWC’s judgment, the OWC should have re-determined Cotten’s AWW and included the value of the fringe benefits.

Although this court remanded the case based on specific reasoning, it vacated the entire judgment as to AWW. As explained above, there is no presumption that the appellate court denied relief sought if the judgment of the appellate court is silent as to additional relief that is requested, e.g., fringe benefits. Moreover, this court was not silent on the relief — it vacated the judgment and the remedy was the remand for a proper calculation of the AWW. Just because this court was silent on an alternative reason for vacating the judgment and remanding, i.e., the exclusion of fringe benefits from the calculation of AWW, it does not mean that the OWC can fix the AWW contrary to the established, specific, and well-settled rules of law.

Even if we accept, arguendo, First Fleet’s arguments, La.Code Civ.P. art. 2164 states that “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” “The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” La.Code Civ.P. art. 2164 cmt. a (1960). Similarly, this court is empowered to review issues not submitted to the trial court for consideration if the interest of justice clearly so requires. Uniform Rules — Courts of Appeal, Rule 1-3.

It is also a well-settled rule that

whenever the mechanics of our law or the technicalities involved therein work a hardship or, in the final analysis are so designed as to defeat the ultimate ends of justice then, in that event, ‘the mechanics or technicalities’ of the law should be abandoned in order that the ends of justice might, in every instance, be served.

McClung v. Delta Shipbuilding Co., 39 So.2d 754, 756 (La.App.Orleans 1949).

Even though the language of our previous opinion in this case could be viewed as overly restrictive, we are of the opinion that here, in addition to the reasons already articulated above, the interest of justice clearly requires inclusion of Cot-ten’s fringe benefits’ value into the calculation of her AWW. First, the inclusion of fringe benefits into the calculation of AWW is a very well and long established rule, dictated by an explicit mandate of La.R.S. 23:1021(12)(f) and decades of our jurisprudence. See e.g. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La.1/30/04), 865 So.2d 79; Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395; Morgan v. Equitable Gen. Ins. Co., 383 So.2d 1067 (La.App. 3 Cir.1980); Ardoin v. S. Farm Bureau Cas. Ins. Co., 134 So.2d 323 (La.App. 3 Cir.1961); Richmond v. Weiss & Goldring, Inc., 124 So.2d 601 (La.App. 3 Cir.1960). Second, although Cotten argued for the inclusion of the fringe benefits in her previous appeal, we did not consider that argument and remanded for recalculation of the AWW on other grounds instead. Under these circumstances, the technicality of the somewhat limiting language in our previous opinion should give way to the ends of justice.

This court vacated the judgment of the OWC and remanded for “an appropriate calculation both of average weekly wage and the proper SEB payment owed.” Cotton, 957 So.2d at 239. The appropriate calculation of the AWW includes the value of fringe benefits, as mandated by our statutes and jurisprudence. Though this court found it unnecessary to include the alternative grounds — fringe benefits — for finding judgment of the OWC erroneous, it is not the reason to deny Cotten the benefits that she is so obviously entitled to. Therefore, this is precisely a case where the interest of justice requires us to remand this case to the OWC so that | sthe WCJ makes an accurate determination of Cotten’s AWW according to the mandates of our law.

V.

CONCLUSION

The OWC’s judgment not to consider the value of Cotten’s vacation pay and health insurance benefits is reversed. We remand to the OWC for a proper and accurate determination of Cotten’s AWW based on all relevant factors. Costs of this appeal are assessed to First Fleet.

REVERSED AND REMANDED.

      . There was a typographical error in the spelling of Cotten's name.

      . The statute provides, in pertinent part:
      "Wages” means average weekly wage at the time of the accident. The average weekly wage shall he determined as:

      Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
      La.R.S. 23:1021 (12)(d).


author: PAINTER, Judge.

text:
    Kim WILLIAMS v. AVERITT EXPRESS, INC.
    No. 2008-1343.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Kirk L. Landry Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant Appellant, Averitt Express, Inc.
    Louis Wellan, Attorney at Law, Alexandria, LA, for Plaintiff-Appellee, Kim Williams.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| defendant, Averitt Express, Inc., appeals the workers’ compensation judge’s ruling in favor of Kim Williams. The WCJ found that Williams met his burden of proving a work-related injury, that he was entitled to Supplemental Earnings Benefits (SEB), and that he had not violated the provisions of La.R.S. 23:1208. The WCJ awarded SEB from the date of termination including interest as well as indemnity and medical benefits from the time Defendant claimed a violation of La. R.S. 23:1208. The WCJ also found that Defendant was arbitrary and capricious in its termination of benefits and awarded $2,000.00 in penalties and $6,500.00 in attorney’s fees. For the following reasons, we affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2003, Williams was employed by Defendant as a truck driver. Williams contends that on April 29, 2003, while in the course and scope of his employment, he injured his cervical spine while attempting to hook/unhook a trailer in Defendant’s work yard in Shreveport, Louisiana. Williams finished his work for the day and reported the injury to his supervisor the same day. His supervisor sent him to Louisiana Occupational Health Services at that time. Williams saw Dr. Gordon Webb on April 29, 2003. Dr. Webb returned Williams to “regular duty.” Williams continued to treat with Dr. Webb until May 15, 2003, when Dr. Webb referred him to Dr. Lawrence Drerup, a neurosurgeon. Williams saw Dr. Drerup on June 3, 2003, and Dr. Drerup took Williams off work pending further evaluation and testing.

A cervical myelogram was performed on June 6, 2003. The findings of that study indicated that Williams was suffering from bulging discs. Williams then began | .¿seeing Dr. Stephen Katz for cervical epidural steroid injections. In January 2004, Williams was still under the restriction that he was not to drive commercial vehicles. There was no recommendation of surgery, however, Williams was advised to curtail his activities.

Defendant paid Williams weekly indemnity payments in the amount of $416.00 until October 3, 2003. Benefits were discontinued at that time on Defendant’s assertion that Williams was working. Williams then filed a disputed claim for compensation alleging wrongful termination/reduction of benefits. On February 3, 2004, Defendant answered and filed a reconventional demand alleging that Williams violated La.R.S. 23:1208 and had, therefore, forfeited all benefits. According to Defendant, Williams made statements to the claims handler that he was not working while Defendant had obtained video surveillance purporting to show that Williams was working at his brother’s tractor shop. Williams denied this allegation. Williams did not receive any medical or indemnity benefits after the filing of the reconventional demand.

Following a trial on the merits, the WCJ found that Williams proved that he sustained a work-related injury on April 29, 2003. The WCJ went on to find that Williams had not violated the provisions of La.R.S. 23:1208. The WCJ then found that Williams established that he was entitled to SEB from the date indemnity benefits were terminated and to indemnity and medical benefits from the time that Defendant claimed the La.R.S. 23:1208 violation. Finally, the WCJ found that the termination of benefits was arbitrary and capricious and awarded a $2,000.00 penalty and $6,500.00 in attorney’s fees. Defendant is now before us on appeal, asserting that Williams is not entitled to SEB, that the WCJ erred in awarding penalties and | ¡¡attorney’s fees, that the WCJ failed to consider its fraud defense, and that the WCJ committed manifest error in finding that Williams sustained a work-related injury. We note that Williams has neither answered the appeal nor filed his own appeal.

DISCUSSION

It is well-settled that:

The standard of review applied to factual findings in workers’ compensation matters is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993).

Lollis v. Shaw Global Energy Serv., 07-395, p. 3 (La.App. 3 Cir. 10/03/07), 966 So.2d 1118, 1120. When the fact finder’s conclusions are reasonable in light of the record reviewed in its entirety, this court cannot reverse, even if it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

This court has also recognized:

As stated in Bruno v. Harbert Int. Inc., 593 So.2d 357, 361 (La.1992):
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.

Lollis, 966 So.2d at 1120-21.

14In this case, Defendant argues that “[t]he trial court committed manifest error finding that the claimant had sustained an injury by accident in the course and scope of his employment in the first place, pretermitting all other assignments of error and issues in the case.” Accordingly, we will consider this argument first.

Defendant asserts that two unbiased witnesses testified that Williams had been injured in a car race the weekend before the alleged work-related accident. Eve and Kenneth Fulmar both testified, via deposition, that they told Edgar Wade Webb, Williams’ “front line leader” at Av-eritt, that one of his employees had been racing at Thunder Valley Speedway and had “hit the wall” the weekend before Williams’ alleged work-related accident. Mr. Fulmar testified that he did not think anyone was injured in the crash. However, Mr. Fulmar admitted that he did not know for sure that Williams was driving the car that wrecked and the only way that he knew that it had anything to do with Williams is because Webb told him what Williams’ car looked like. Webb also testified at trial as to what the Fulmars told him. Williams testified that he was not involved in any racetrack accident. We agree with the WCJ in his statement:

[T]he employer is relying primarily upon double hearsay evidence that is that the Fulmars related what they heard an announcer at a racetrack announce. They had no personal knowledge of who Mr. Kim Williams was. There is no corroborating evidence submitted on behalf of the employer that this particular Mr. Kim Williams involved in this litigation, was involved in any car wreck at any racetrack or sought any medical care as a result of any alleged car wreck at any racetrack.

The WCJ also found that Williams’ version of the accident was corroborated by the report of injury form filled out by the employer and that the relation of the occurrence of the accident was further corroborated in the medical records from each and every physician from whom Williams sought treatment. The WCJ found | .^Williams to be a credible witness. As we have recognized, under the manifest error standard of review, reasonable credibility evaluations and factual inferences should not be disturbed upon review where conflict exists in the testimony or the facts. Such is the case here. Based on the record before us, we cannot say the WCJ was manifestly erroneous or clearly wrong in its factual finding on this issue. Accordingly, we affirm the WCJ’s ruling that Williams proved he sustained an injury in a work-related accident.

We next consider Defendant’s argument that the WCJ committed legal error in awarding SEB to Williams by failing to include a decree in the judgment and by misstating and misapplying the applicable burden of proof. According to the provision of La.R.S. 23:1221(3)(a), in order to be entitled to receive SEB, a claimant must prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. The burden of proof is as follows:

The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the facts and circumstances of the case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. If the claimant meets this burden, then the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant or that the job was available to her or within her or the employer’s geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the employer satisfies that burden, then the claimant must show by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the offered or available employment, solely as the result of substantial pain. LSA-R.S. 23:1221(3)(c)(ii); Payne v. Lawn Lourd, Lawn Service, 35,491 (La.App.2d Cir.12/5/01), 803 So.2d 321.

Brooks v. Madison Parish Serv. Dist. Hosp., 41,957, p. 13 (La.App. 2 Cir. 3/7/07), 954 So.2d 207, 215, writ denied, 07-720 (La.5/18/07), 957 So.2d 155.

| (¡Furthermore,

The SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and suitable jobs are available. Blanchard v. Federal Exp. Corp., 95-0349, p. 4 (La.App. 1 Cir. 11/9/95), 665 So.2d 11, 13. However, a “suitable job” is one that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant’s age experience, and education. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 11 (La.7/1/97), 696 So.2d 551, 557.

Adams v. Dependable Source Corp., 06-1331, p. 6 (La.App. 1 Cir. 5/4/07), 961 So.2d 1183, 1187.

Williams’ major job activity was as a commercial truck driver. He testified that pre-accident, he was earning approximately $60,000.00 per year. Post-accident, Williams was earning $14,000.00 to $31,000.00 per year. Williams returned to work sometime in 2004. At the time of trial, he was employed as a school bus driver for Rapides Parish School Board and ran his own business as a delivery driver. He testified that he made about $14,000.00 from the school board and from $400.00 to $600.00 per week in his delivery business. Defendants produced records showing that Williams had revenues from deliveries of $21,583.00 in 2005, and $26,613.00 in 2006. Defendant contends that Williams is working when he chooses to, earning what he chooses to, and is in complete unilateral control of his own earnings. Williams, on the other hand contends that he is unable to return to his previous employment with Defendant and that he is unable to earn at least ninety percent of his pre-injury wages.

We conclude that the medical exhibits reflect that the WCJ had sufficient evidence from which to conclude that Williams’ earning capacity was severely curtailed and that he was not engaged in suitable employment. As such, Williams met his burden of proof, and the burden shifted to Defendant. The WCJ noted, and we |7agree, that “there has been no showing that he has ever been release[d] by any physician to return to the operation of a commercial vehicles [sic] and that “[t]he employer made absolutely no showing of any available job that would pay Mr. Williams 90 percent of his pre-injury wage.” Accordingly, we conclude that the WCJ did not err in awarding SEB to Williams because he was not employed in a suitable job. This assignment of error lacks merit.

Defendant also complains that the WCJ performed no calculations as to the rate of SEB and that the judgment does not specify a start time or ending time for SEB. Defendant’s assertion is not entirely correct. The judgment does specify that SEB is owed “from the date defendant, Averitt Express terminated his indemnity benefits.” The method of determining the amount of an award of SEBs is provided in La. R.S. 23:1221(3)(a):

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

The WCJ determined that Williams’ average weekly wage was $1,131.36, giving him an average monthly wage of $4,902.56. From the record, we have determined that Williams actually earned an average of $3,174.84 per month post-accident. The difference between his pre-accident average monthly wage and his post-accident average monthly earnings is $1,727.72. Sixty-six and two-thirds |Rpercent of that figure is $1,151.87. We conclude that Williams is entitled to monthly SEBs of $1,151.87 beginning October 3, 2003, the date benefits were terminated. Accordingly, we amend the judgment to reflect this figure and start date. No end date is required in judgment as SEB discontinues by operation of law upon the occurrence of one of the events listed in La.R.S. 23:1221(3)(d) or the passage of five hundred and twenty weeks (the maximum period for which the right to SEB extends).

We next turn to the issue of penalties and attorney’s fees. Defendant contends that the law does not allow the award of a penalty for not continuing to pay SEB. As stated above, Williams received weekly indemnity payments in the amount of $416.00 until October 3, 2003. Williams contended that Defendant wrongfully terminated said benefits and the WCJ agreed.

Louisiana Revised Statutes 23:1201(1) provides, in pertinent part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

This portion of the statute became effective in 2003 when La.R.S. 23:1201.2 (cited by Defendant) was repealed. Thus, this provision was effective when benefits were terminated in this case. A WCJ’s decision to award penalties and attorney’s fees is subject to the manifest error standard of review. Bolton v. Mike Fleming Const., 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177. We find no manifest error in the WCJ’s imposition of penalties and attorney’s fees.

Defendants finally contend that the WCJ failed to actually consider its fraud defense in that the WCJ did not consider Williams’ alleged false statements to the claims handler. Instead, according to Defendant, the WCJ focused on whether or not | pWilliams was actually working. In Cotton v. First Fleet, 07-29, p. 5 (La.App. 3 Cir. 5/2/07), 957 So.2d 229, 234-35, writs denied, 07-1488, 07-1543 (La.10/5/07), 964 So.2d 947, 948, this court noted that:

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.
The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.

Defendant contends that it is not “splitting hairs” in this assignment of error, but we do not agree. The WCJ necessarily had to analyze whether or not claimant was actually working to determine whether or not he made a false statement concerning the same to the claims handler. The WCJ concluded the Williams was not actually working during the period in question. We agree with the WCJ and with Williams’ assertion that the evidence supports the conclusion that Williams was not, in fact, working at the time the alleged statements were made to the claims handler. There was testimony that Williams did not work for his brother, was never paid for work by his brother, and the video surveillance did not prove that he was employed there. We find no manifest error in the WCJ’s findings in this regard.

|10DECREE

For the foregoing reasons, we amend the judgment of the WCJ to reflect that SEB is to be paid in the amount of $1,151.87 per month, beginning October 3, 2003, the date benefits were terminated, plus interest. In all other respects, the judgment of the WCJ is affirmed. Costs of this appeal are assessed against Defendant-Appellant, Averitt Express, Inc.

AFFIRMED AS AMENDED.


text:
    Joyce G. BULLER v. Peggy CLARK.
    No. 2008-1336.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Susan Ford Fiser, Alexandria, LA, for Defendant/Appellee, Peggy Clark.
    Beau Layfield, Marksville, LA, for Plaintiff/Appellant, Joyce G. Buller.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

hThe plaintiff-appellant, Joyce Buller, seeks to enforce a right of first refusal against the defendant-appellee, Peggy Clark, over ten years after the agreement granting the right was entered into by the parties. The trial court granted Clark’s exception of no cause of action. For the reasons set forth below, we affirm.

I.

ISSUES

We must decide whether the trial court erred in applying La.Civ.Code art. 2628 and in granting the defendant’s exception of no cause of action.

II.

FACTS AND PROCEDURAL HISTORY

In 1996, Buller and Clark purchased immovable property in Alexandria, Louisiana which contained a commercial building. They executed and recorded a Joint Ownership Agreement (Agreement) giving each other a right of first refusal should either party desire to sell her undivided interest in the property. They also agreed to share equally in the costs for maintenance, insurance, and taxes on the property. Buller operated a beauty salon in one portion of the building, and Clark operated a florist shop in the other portion of the building.

In 2008, Clark sold her undivided one-half interest in the property to Larry Clark for $250,000.00. Buller brought suit against Clark, alleging that she violated the Agreement by not first offering Buller an opportunity to buy Clark’s interest in the property.

Clark filed an exception of no cause of action, arguing that Buller had no cause of action for enforcing a right of first refusal where that right was extinguished in 2006 pursuant to La.Civ.Code art. 2628. Buller argued the exception in Article |⅛2628 for ongoing obligations, i.e., the obligations to share maintenance fees, insurance costs, and property tax. The trial court disagreed and granted Clark’s exception of no cause of action. We agree with the trial court.

III.

LAW AND DISCUSSION

Standard of Review

Appellate review of an exception of no cause of action is a question of law and is, thus, subject to a de novo review. La. Crawfish Producers Assn.-West v. Amerada Hess Corp., 05-1156 (La.App. 8 Cir. 7/12/06), 985 So.2d 380, writ denied, 06-2301 (La.12/8/06), 943 So.2d 1094.

Louisiana Civil Code Article 2628

Louisiana Civil Code Article 2628 provides as follows:

Art. 2628. Time limitation for option and right of first refusal
An option or a right of first refusal that concerns an immovable thing may not be granted for a term longer than ten years. If a longer time for an option or a right of first refusal has been stipulated in a contract, that time shall be reduced to ten years. Nevertheless, if the option or right of first refusal is granted in connection with a contract that gives rise to obligations of continuous or periodic performance, an option or a right of first refusal may be granted for as long a period as required for the performance of those obligations.

Clearly, the first sentence of the article limits both an option and a right of first refusal concerning immovable property to a term of ten years. With regard to the third sentence of Article 2628, providing an exception for contracts giving rise to “obligations of continuous or periodic performance,” we find that an agreement to share expenses is not the kind of obligation contemplated in the language of the |3exception. Clark suggests that such a legal obligation that would extend the term of a right of first refusal beyond ten years would be a mortgage. The published comments to Article 2628 indicate that a lease would be such an obligation.

In any event, it is very clear that the right of first refusal cannot be indefinite and that any continuing obligation that would extend the right would itself have to have a definite term or ending date. More specifically, published comments (a) through (c) to Article 2628 provide as follows (emphasis added):

(a) This Article changes the latv by providing a maximum term for options to buy and rights of first refusal that concern immovable things.
(b) A right of first refusal or an option to buy for a perpetual or indefinite term is null. See Crawford v. Deshotels et al., 359 So.2d 118 (La.1978); Becker and Assoc. Inc. v. Lou-Ark Equipment Rentals, Inc., 331 So.2d 474 (La.1976); Bristor[Bristo] v. Christine Oil & Gas Co., 139 La. 312, 71 So. 521 (1916).
(c) The failure to expressly state a termination date in an option or a right of first refusal made part of a lease having a definite term does not render the option or right of first refusal invalid if the time for its acceptance is necessarily limited by the term of the lease. Becker and Assoc. Inc. v. Lou-Ark Equipment Rentals, Inc., 331 So.2d 474 (La.1976); Smith Enterprises, Inc. v. Borne, 245 So.2d 9 (La.App. 1st Cir.1971); Kinberger v. Drouet, 149 La. 986, 90 So. 367 (1922).

Only two reported cases specifically address Article 2628. In Gorum v. Optimist Club of Glenmora, 99-1963 (La.App. 3 Cir. 8/30/00), 771 So.2d 690, writ denied, 00-2740 (La.11/27/00), 775 So.2d 451, this court enforced a right of first refusal granted in favor of the vendor in the 1970s. There, the right was made part of a contract entered into prior to the 1993 enactment of Article 2628. Therefore, Go-rum is distinguishable.

The Second Circuit Court of Appeal specifically addressed the exception in Article 2628, finding it inapplicable, in Youngblood v. Rosedale Development Co., L.L.C., 39,939 (La.App. 2 Cir. 9/21/05), 911 So.2d 418. There, a developer purchased fifteen acres out of plaintiffs’ 384 acre tract with an option to buy more acreage, as long as future purchases were for a minimum of twelve acres. The option was renewable for three additional years with each purchase. The developer transferred its rights within six months, and its successors exercised the option four times over the next six years, purchasing a total of only 56 acres. The plaintiffs refused the next attempt by the developers to exercise the option, arguing that they never intended to extend the option past their lifetimes. Such could occur where, applying the math, the developers could take 73 years to exercise their option on the last twelve acres.

The developers in Youngblood argued the exception to Article 2628. However, the court found that the developers never obligated themselves to develop all of the land by increments or to purchase any more acreage after the first 15 acres. Therefore, the option to buy was not granted “in connection with a contract that gives rise to obligations of continuous or periodic performance,” and it could not fall into the exception provided in Article 2628. La.Civ.Code art. 2628; Youngblood, 911 So.2d at 420. While the Second Circuit in Youngblood would not declare the option null and void, it did reverse the trial court and reduce the term of the option to ten years, pursuant to Article 2826, which had the effect of terminating the option in 2006 about a year after the decision was rendered.

In the present case, we find that an agreement to share expenses for maintenance, insurance, and taxes is not an obligation with a definite term, as contemplated by the language in Article 2628 providing an exception to the ten-year limit on a right of first refusal.

_kiv.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment granting the exception of no cause of action in favor of Peggy Clark. Costs of this appeal are assessed against the plaintiff-appellant, Joyce G. Buller.

AFFIRMED.