author: PETERS, J.

text:
    James SHARP v. LANDSCAPE MANAGEMENT SERVICES.
    No. 11-0340.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Paul J. Cox, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Ap-pellee, James Sharp.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendant/Appellant, Landscape Management Services and Bridge-field Casualty Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

|, The defendants, Landscape Management Services and its insurer, Bridgefield Casualty Insurance Company, appeal the judgment of the workers’ compensation judge (WCJ) in favor of the plaintiff, James Sharp, retroactively reinstating his temporary total disability benefits and awarding him penalties and attorney fees. For the following reasons, we affirm the award of penalties and attorney fees, but reverse the award of temporary total disability benefits and render judgment converting the temporary total disability benefits to supplemental earnings benefits based on a zero earning capacity.

DISCUSSION OF THE RECORD

There is no dispute but that Mr. Sharp suffered a work-related injury to his lower back on February 28, 2007, while employed as a landscape laborer for Landscape Management Services (Landscape Management). He underwent a microdis-cectomy on July 31, 2007, which was performed by Dr. John Raggio, a Lake Charles, Louisiana neurosurgeon. At some point after the surgical procedure, Dr. Raggio retired from practice and Mr. Sharp commenced treatment with Dr. Ricardo Leoni, a Lafayette, Louisiana neurosurgeon.

Dr. Leoni saw Mr. Sharp professionally on five occasions, commencing on June 12, 2008, and ending on November 6, 2008. Based on his examinations of the patient, Dr. Leoni concluded that Mr. Sharp was in need of additional surgical intervention and recommended that he undergo an L4-5 laminectomy with medial facetectomy and foraminotomies at L3-4, L4-5, and L5-S1 and a possible fusion. When Mr. Sharp expressed a hesitancy to undergo additional surgical procedures, Dr. Leoni recommended that he undergo conservative treatment by a Lake Charles rehabilitation doctor.

Un January of 2008, while Mr. Sharp was still under Dr. Leoni’s care, Matthew Richard, the adjustor handling the case on behalf of the employer and insurer, retained McNabb Rehabilitation Services of Lafayette, Louisiana, to provide vocational rehabilitation services to Mr. Sharp. Blake Stevens, a vocational rehabilitation counselor with McNabb Rehabilitation Services, obtained Mr. Sharp’s file on January 28, 2008, and reviewed the medical history available to him at that time. Included within that medical history was a December 2007 functional capacity evaluation (FCE) which had been ordered by Dr. Raggio. The finding of that evaluation was that Mr. Sharp should be restricted to light duty requiring a maximum lifting of twenty pounds.

Mr. Stevens met with Mr. Sharp on March 25, 2009, in Lake Charles, Louisiana, and interviewed him concerning his work and education history. During the interview, Mr. Stevens learned that Mr. Sharp graduated from Fenton High School in 1979, and twelve years later, completed approximately one and one-half months of electronic training at Sowela Technical Institute in Lake Charles. Mr. Sharp had worked on and off for Landscape Management for approximately fifteen years before the accident, working primarily as a laborer/delivery person. Specifically, his entire work career amounted to his employment with Landscape Management and another landscape company, as a farm hand, and as an industrial laborer in construction work. Mr. Stevens was also able to ascertain that Mr. Sharp had basic mathematic skills; that he owned a home computer and was able to navigate the Internet and Windows; and that his work history was limited to that of a heavy duty work level laborer.

With regard to Mr. Sharp’s employment with Landscape Management, Mr. Stevens learned in the interview that Mr. Sharp’s duties included picking up and delivering sand, gravel, soil, and plants; and operating a flatbed truck while | graveling to and from wholesalers in Forest Hill, Louisiana, and delivering to customers. His duties required him to lift items weighing between ten and one hundred pounds.

Approximately one month after Mr. Stevens met with Mr. Sharp, Dr. Leoni ordered a second FCE addressing Mr. Sharp’s abilities. This April 2009 FCE restricted Mr. Sharp to sedentary to light duty level tasks and limited his lifting ability to a maximum of ten pounds.

Based on the information he had available to him, Mr. Stevens concluded that no additional vocational testing was required of Mr. Sharp, and he determined that although he lacked secretarial skills, Mr. Sharp demonstrated semi-skilled intelligence, general education development levels, and transferable skills. Subsequent to the April 2009 FCE, Mr. Stevens performed a labor market survey and contacted approximately thirty potential employees in an effort to fit a job opportunity to Mr. Sharp’s skills and limitations. In July of 2009, he was finally able to identify two such employment positions that seemed to be acceptable. Both positions, one with Centennial Wireless and the other with Payday Loans, were customer service representative positions and were of a sedentary nature. Both were full-time positions and paid up to $10.00 per hour depending on the applicant’s experience. Believing that Mr. Sharp met the requirements of these entry-level positions, Mr. Stevens sought confirmation from Dr. Leoni that Mr. Sharp could perform these jobs. Dr. Leoni approved the positions on August 18, 2009, and Mr. Stevens confirmed with the potential employers that the positions were still open. He then notified Mr. Sharp of the opportunities. Mr. Sharp received the notification letter on August 20, 2009, that the positions were available and that Dr. Leoni had approved them for him.

|4In response to Mr. Stevens’ efforts, Mr. Sharp applied for both positions. Payday Loans rejected him because of his lack of experience, and Centennial Wireless informed him that it had no position available for him. He did not notify Mr. Stevens of the rejections. Instead, he began to inquire about the availability of similar employment on his own. Specifically, he applied for employment at Goodwill, Salvation Army, Kmart, Ryan’s Steakhouse, Kroger Grocery Store, Albertsons, and two different Wal-Mart locations. He did not meet the physical requirements for the forklift position at Goodwill, found that there were no openings at Salvation Army, and received no response from the other potential employers. Thereafter, he continued to update his applications to Kmart, Wal-Mart, Albertsons, and Kroger Grocery Store.

Despite the fact that Dr. Leoni did not approve the two positions located by Mr. Stevens until August 18, 2009, Mr. Richards caused Mr. Sharp’s TTD benefits to be terminated on August 13, 2009. Landscape Management and its insurer then began paying Mr. Sharp SEBs based on an earning capacity of $10.00 per hour. Neither Mr. Stevens nor Mr. Richard ever followed up to see if Mr. Sharp obtained employment with Payday Loans, Centennial Wireless, or any other potential employer.

On November 80, 2009, Mr. Sharp filed a disputed claim for compensation against Landscape Management and Bridgefield Casualty Insurance Company, seeking reinstatement of his TTD benefits, penalties and attorney fees based on Landscape Management’s termination of his TTD benefits, relief in a dispute over the recommended surgery, and their failure to reimburse him for his medical travel mileage. Landscape Management and its insurer responded to the claim by asserting that the termination of TTD benefits was based on the fact that the | ⅞vocational rehabilitation services provided to Mr. Sharp led to an offer of work and the resultant reduction in benefits based on the availability of wages.

After a trial on the merits, and after taking the matter under advisement, the WCJ rendered oral reasons, finding that Landscape Management had improperly converted Mr. Sharp’s TTD benefits to SEBs as it failed to prove that the two positions at issue were actually available at the time Mr. Sharp applied for them. Based on this finding, the WCJ ordered Mr. Sharp’s TTD benefits retroactively reinstated as of August 13, 2009, and awarded him $2,000.00 in penalties and $7,500.00 in attorney fees. The WCJ executed a judgment to this effect on December 16, 2010.

Landscape Management appeals from this judgment, raising four assignments of error:

I. The trial court committed manifest error when it awarded James Sharp temporary total disability indemnity benefits.
II. The trial court committed manifest error in finding that James Sharp met his burden of proving that he could not earn 90% of his pre-injury wages.
III. The trial court committed manifest error in finding that the defendants did not tender “available” jobs to James Sharp.
IV. The trial court committed manifest error in awarding penalties and attorney’s fees.

OPINION

The only issue addressed in the trial on the merits was whether Landscape Management improperly converted Mr. Sharp’s TTD benefits to SEBs. The law pertaining to SEBs was recently set forth by the supreme court in Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, pp. 4-6 (La.1/9/11), 56 So.3d 170, 174-75:

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

In awarding Mr. Sharp TTD benefits, the WCJ rendered the following oral reasons for judgment:

The controversy centers on Mr. Sharp’s contention that his employer’s workers’ compensation insurance carrier inappropriately and illegally terminated his temporary total disability payments on August 13, 2009. For its part, the defendant insisted that termination action was justified because he simply refused to accept suitable employment which was offered to him.
|7In essence, Mr. Sharp argued that he met his burden of proving that he could not earn 90 percent of his pre-injury wages because he could no longer work as a laborer and none of the jobs to which he was referred by the insurer were actually available within the meaning of the R.S. 23:1221[ (3)(c)(i) ].
Mr. Sharp’s live testimony leaves little doubt that under the very best of circumstances, both his viability and his desirability in the job market are markedly limited. He is a landscaper, and a disabled one at that. He has two herniated discs in his back.
It would take a very expansive view of the situation here to envision Mr. Sharp doing anything clerical or financial, but that’s not the point. The testimony shows clearly that the jobs which the insurer recommended to him were simply not available.
It appears from the evidence that Mr. Sharp made an honest effort to secure employment at both businesses but was rejected at both places. The term “energetically” decidedly does not apply to the insurer’s efforts to find suitable employment for this rather limited individual.
For reasons patently obvious as a result to any reader of the trial transcript, the Court orders that Mr. Sharp’s temporary total disability indemnity benefits be restored retroactive to August 13, 2009. Penalties are assessed at $2,000 and attorney’s fees are $7,500.

There is no question that Mr. Sharp sustained a work-related injury to his lower back while employed as a landscape laborer for Landscape Management, and that initially he was entitled to TTD benefits. In fact, the parties stipulated that he received TTD benefits at the rate of $269.08 from the date of his injury through August 12, 2009. With regard to the continuation of benefits, Mr. Sharp bears the burden of establishing by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment as a result of a work-related injury in order to be awarded TTD benefits. La. R.S. 23:1221(1). Disability can be proven by both medical and lay testimony, and the WCJ must weigh all of the evidence in order to determine whether the employee has satisfied his burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07—2388 (La.2/15/08), 976 So.2d 178. The WCJ’s finding of disability is a factual determination that is subject to the manifest error analysis. Id.

In this case, the record establishes that based on the April 18, 2009 functional capacity evaluation, Dr. Leoni concluded that Mr. Sharp could perform sedentary to light duty work. Thus, it was not error for Mr. Richard to convert Mr. Sharp’s benefits to SEBs, and the WCJ erred in reinstating Mr. Sharp’s TTD benefits. However, once it was determined that SEBs were the appropriate benefits payable, the burden shifted to Landscape Management to establish by a preponderance of the evidence that not only was Mr. Sharp able to perform a certain job, but that the job was offered to him and was available to him within his community or reasonable geographic location. Poissenot, 56 So.3d 170. Landscape Management failed in this respect. The two positions identified by Mr. Stevens were within Mr. Sharp’s physical limitations, but neither position was ever offered to him. Thus, while the weekly payments may be classified as SEB payments, they are to be paid based on a zero earning capacity. Accordingly, the judgment of the WCJ reinstating Mr. Sharp’s TTD benefits is reversed, and we now render judgment in favor of Mr. Sharp awarding him SEBs as of April 18, 2009, paid based on a zero earning capacity.

Finally, Landscape Management appeals the WCJ’s award of penalties and attorney fees to Mr. Sharp. The decision to cast an employer with penalties and attorney fees is a question of fact which will not be reversed on appeal absent manifest error. Ashworth v. Administaff, Inc., 10-318 (La.App. 3 Cir. 10/6/10), 48 So.3d 1178. The failure to provide the payment of workers’ compensation indemnity benefits will result in an assessment of penalties and attorney fees pursuant to La.R.S. 23:1201(F), unless the employee’s claim is reasonably | controverted or the nonpayment’s resulted from conditions beyond the employer’s control.

In this instance, we find no error in the WCJ’s assessment of penalties and attorney fees based on Landscape Management’s payment of Mr. Sharp’s indemnity benefits at an incorrect rate. Landscape Management reduced Mr. Sharp’s indemnity benefits to SEBs based on its determination that either of the two customer service representative positions were available to him. When this turned out not to be the case, it did nothing further in assisting Mr. Sharp to find work. Mr. Stevens, other than meeting with Mr. Sharp once and then identifying the two positions, made no effort to contact Mr. Sharp in a continual effort to assist him. When questioned by the WCJ, Mr. Stevens opined that communication is a two-way street and that he felt that his clients should call him to update their progress in obtaining employment. Accordingly, we affirm the WCJ’s award of penalties and attorney fees to Mr. Sharp.

DISPOSITION

Based on the foregoing, the judgment of the trial court awarding penalties and attorney fees to Mr. Sharp is affirmed; the judgment reinstating Mr. Sharp’s TTD benefits is reversed; and judgment is now rendered awarding Mr. Sharp SEBs at a zero earning capacity rate as of April 18, 2009. The costs of this appeal are assessed to the defendants, Landscape Management Services and Bridgefield Casualty Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Bryce MOUTON v. OLD REPUBLIC INSURANCE CO., et al.
    No. 11-458.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Archie P. Joseph, Law Offices of Archie P. Joseph, Breaux Bridge, LA, for Plaintiff/Appellant, Bryce Mouton.
    Douglas K. Williams, Nicholas R. Bursa-vich, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendants/Appel-lees, Old Republic Insurance Company, Par Electrical Contractors, Inc., and Ryan L. Tiede.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| Plaintiff, Bryce Mouton, appeals the trial court’s refusal to award him any damages in this automobile accident case. For the following reasons, we affirm the trial judge’s finding that Plaintiff failed to prove causation as to his alleged TMJ injury, reverse the trial judge’s finding that the accident was not the cause in fact of any damages to Mouton, and render judgment in favor of Mouton in the amount of $2,458.31 for medical expenses and $2,500.00 for general damages for his back injury.

FACTS AND PROCEDURAL HISTORY

This appeal arises out of an automobile accident that occurred on September 8, 2008. On that date, Mouton was driving a 2005 Buick LeSabre, owned by his mother, east on Egan Road in Crowley, Louisiana. He had two passengers in the vehicle with him. He stopped at a red light at the intersection of Egan Road and N. Parker-son Avenue and was directly behind a 2001 Ford F-350 owned by Par Electrical Contractors, Inc. and driven by Ryan L. Tiede. When Tiede noticed that an eighteen-wheeler was attempting to make a left turn to go west on Egan Road, he began to back up in order to avoid what he thought might be a collision between his vehicle and the eighteen-wheeler. Tiede’s vehicle collided with the vehicle being driven by Mouton. Mouton alleged that Tiede was ticketed for “improper backing” by the Crowley Police Department; however, in his trial testimony, Tiede denied being issued any citation as a result of the accident.

Mouton did not request medical attention at the scene of the accident and drove from Crowley to his home in Lafayette, Louisiana, immediately after the accident. Mouton alleges that on the drive to Lafayette, he began to experience pain and stiffness in his back. Once he arrived in Lafayette, he presented to the ^emergency room at Lafayette General Medical Center where he was diagnosed with a back strain and was given Motrin. Mouton alleges that several days after the accident, he began having jaw pain. Two months later, on November 18, 2008, he sought treatment from Dr. Bryan LeBean, a specialist in internal medicine, who diagnosed him with a lumbar strain and TMJ syndrome. In his deposition, Dr. LeBean testified that Mouton’s straight leg raising testing was negative (which is a normal finding), that there was no evidence of muscle spasm, that there was no limitation on range of motion, that his gait was normal, that there were no deficits in sensation or strength, that no x-rays were required, that the examination of Mouton’s jaw was normal, and that Mouton failed to follow his recommendation for physical therapy.

Mouton filed suit against Tiede, Par Electrical, and Old Republic Insurance Company (the insurer of Par Electrical). The matter proceeded to trial, and the trial judge found that the cause of the accident was Tiede’s backing up. However, the trial judge refused to award any damages to Mouton because he was not convinced that the “minor impact was the cause and fact of any damages that Mr. Mouton suffered.” The trial judge further stated that he was “not convinced with the testimony of the plaintiff in this case that he was injured.” The trial judge ordered Defendants to pay costs. This appeal by Mouton followed.

DISCUSSION

Mouton first alleges that the trial judge committed reversible error in failing to rule on his motion in limine before trial. On their exhibit list, Defendants indicated that they would seek to introduce Mouton’s criminal records at trial. Mouton filed a motion in limine prior to trial seeking to have such evidence excluded. The Defendants objected to the timeliness of the motion since the pre-trial order required that motions in limine be made four weeks prior to trial, and |athis motion was not filed until seven days prior to the trial. Over Defendants’ objection, the trial judge considered the matter immediately prior to the beginning of the trial. The trial judge decided to defer the matter to the merits and rule on any objection at the time the issue came up due to Defendants’ argument that there were issues regarding Mouton’s use of both legal and illegal drugs. Mouton now claims that the trial judge allowed defense counsel to question him about his marijuana conviction during the merits of the trial in contravention of La.Code Evid. art. 609 because his conviction was more than ten years old. Mouton cites the following colloquy:

Q: Have you ever been convicted of marijuana usage?
Mr. Joseph: Objection your Honor.
Ms. Sims: I think the relevance is his motive in treating with his physician
Mr. Joseph: ... were [sic] going to revert back to the [C]ode of Evidence in regards to those conviction.
The Court: Yeah. I’m going to sustain the objection as not being relevant.

Clearly, the trial judge sustained the objection and did not allow any evidence of prior criminal convictions into evidence. Therefore, we find this argument to be without merit.

Next, Mouton argues that the trial judge committed reversible error in a “trial by ambush” by allowing trial testimony from a Facebook page that was not previously listed in Defendants’ witness and exhibit list. In order, to preserve an evidentiary issue for review by this court, the complaining party must enter a contemporaneous objection to the evidence or testimony and state the reasons therefor. See Etcher v. Neumann, 00-2282 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, writ denied, 02-905 (La.5/31/02), 817 So.2d 105. We agree with Defendants 14that Mouton failed to make a contemporaneous objection at trial, and, as such, he is barred from now challenging this line of questioning on appeal. Therefore, this assignment of error is not properly before this court.

Whether or not to admit impeachment evidence is a decision that falls within the discretion of the trial court. State v. Tauzin, 38,436 (La.App. 2 Cir. 8/18/04), 880 So.2d 157. In this instance the trial judge sustained Mouton’s objection to the introduction of the Facebook page into evidence. Thus, we find no merit to Mouton’s argument regarding same.

Finally, Mouton asserts that the trial judge abused his discretion when he concluded that the accident resulted in a minor impact with minor property damages which could not cause any injury to him. Defendants argue that there is no objective evidence that any injuries resulted from this minor accident. The trial judge found that he “was not convinced with the testimony of the plaintiff in this case that he was injured” and that “in reading the medical report of Dr. LeBean, there was [sic] only subjective findings, meaning only complaints made of these things, and no spasms or anything to verify that there was [sic] any damages caused by it.”

Mouton argues that the abuse of discretion applies when this court examines a fact finder’s award of damages. Defendant, on the other hand, argues that Mouton failed to prove that he sustained any injuries as a result of the accident and that the manifest error standard of review applies. We disagree with both. In this case, the trial judge did not reach the issue of damages because he determined that the accident did not cause any injuries to Mouton. In LeBlanc v. Stevenson, 00-157, p. 6 (La.10/17/00), 770 So.2d 766, 771-72, our supreme court stated:

Having determined that the trial court was manifestly erroneous in finding that LeBlanc’s injuries were not caused by Stevenson’s actions, we must now consider an award of damages. Where a fact lafinder does not reach an issue because of an earlier finding which disposes of the case, the court of appeal, in reversing the earlier finding, must make a de novo determination of the undecided issues from the facts in the record. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Austin v. Fibrebond Corp., 25,565 (La.App. 2 Cir. 2/23/94), 638 So.2d 1110, writ denied, 94-1326 (La.9/2/94), 643 So.2d 149. The reviewing court must make an award that is just and fair for the damages revealed by the record, where the trial court, as here, has made no award for damages. Dundas v. Real Superstore, 94-979 (La.App. 3 Cir. 2/1/95), 650 So.2d 402, writ denied, 95-0470 (La.4/28/95), 653 So.2d 590. Thus, the court of appeal conducted a de novo review of the record to ascertain whether LeBlanc was entitled to damages.

Thus, we first apply the manifest error standard of review to the trial judge’s finding that Mouton did not suffer any injuries causally related to the accident in question. “The plaintiff bears the burden of proving both his injuries and a causal connection between the injuries and the tort, by a preponderance of the evidence.” Cash v. Charter Mktg. Co., 607 So.2d 1036, 1039 (La.App. 3 Cir.1992). There is no dispute that Mouton went the emergency room soon after the accident and that he was diagnosed with a back strain. Defendants presented no evidence to show that this emergency room visit was related to anything other than the subject accident. Our review of the record shows that there is no reasonable factual basis for the trial judge’s finding that Mouton did not suffer any injuries causally related the subject accident. Accordingly, we find the trial judge’s ruling manifestly erroneous, reverse that ruling, and proceed to a de novo review to determine an award of damages that is just and fair. LeBlanc, 770 So.2d 766.

Despite Mouton’s argument that the minimal force of the collision causing the injuries is of no material importance, we note that in determining damages, the finder of fact may consider the minimal nature of the accident. Coleman v. U.S. Fire Ins. Co., 571 So.2d 213 (La.App. 3 Cir.1990); Fletcher v. Langley, 93-624 (La.App. 3 Cir. 2/2/94), 631 So.2d 693, writ denied, 94-521 (La.4/7/94), 635 So.2d 1139. In this case, the evidence of minimal property damage as well as the |6testimony of Tiede supports the conclusion that the collision was slight. We agree that “[significant injuries can and do result from collisions with minimal force.” Velasquez v. Richard, 243 So.2d 308, 309 (La.App. 4 Cir.1971). Mouton testified that the collision caused him to be jerked back and forth. Mouton’s treating physician, Dr. LeBean, testified by deposition, that Mouton complained of back and jaw pain after the subject accident. Dr. LeBean testified that the musculoskeletal examination of Mouton’s back was abnormal and that he diagnosed Mouton with a lumbar strain and TMJ syndrome. Mouton saw Dr. Le-Bean on five occasions over a ten-month period. We do note that Mouton missed several appointments and attended only one therapy visit. There was no evidence that Mouton had been injured before this accident. Neither was there any evidence that Mouton was injured in any manner other than this accident. However, Dr. LeBean also testified that from an objective standpoint, he did not find any evidence that showed, more probably than not, that Mouton had a jaw injury. Therefore, he proved minimal damages as to his back injury only.

Mouton asks us to award him past medical expenses in the amount of $2,458.31. We find that amount to be supported by the record in that the charge from Lafayette General Medical Center was $289.00, Dr. LeBean’s charges were $865.00, and his pharmacy bills were $1,304.31. Mouton also asks that we award $35,000.00 for pain and suffering and $5,000.00 for loss of enjoyment of life. We do not find such an award to be supported by the record. Instead, we award $2,500.00 in general damages, as we find that amount to be fair and reasonable for a minor soft-tissue injury of short duration. See Hamilton v. Wild, 40,410 (La.App. 2 Cir. 12/14/05), 917 So.2d 695, wherein the plaintiff was awarded $1,500.00 for a soft-tissue injury of nine-months duration; Kimble v. Reason, 626 So.2d 6 (La.App. 1 Cir.1993), wherein the plaintiff was awarded $3,000.00 for a 17soft-tissue injury of six-months duration; and Collins v. Bentley, 24,457 (La.App. 2 Cir. 10/26/94), 645 So.2d 283, wherein the plaintiff was awarded $2,000.00 for a soft-tissue injury of a three-month duration. We do not award any damages for the alleged TMJ syndrome as there is no evidence that this was causally related to the accident in question or that Mouton received any treatment or therapy related thereto.

DECREE

For all of the foregoing reasons, we affirm the trial judge’s finding that Plaintiff failed to prove causation as to his alleged TMJ injury. However, the trial court’s finding that the accident was not the cause in fact of any damages to Mouton is reversed. We hereby render judgment in favor of Mouton in the amount of $2,458.31 in medical expenses and $2,500.00 in general damages for his back injury. Costs of this appeal are assessed to Defendants/Appellees, Old Republic Insurance Company, Par Electrical Contractors, Inc., and Ryan L. Tiede.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Neither of the two passengers testified at trial.


text:
    J. Clemille SIMON and Katheryn Simon v. R. Scott BELAIRE, et al.
    No. 11-442.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Robert A. Robertson, Lafayette, LA, for Defendants/Appellants, R. Scott Belaire and Sharon Belaire d/b/a Belaire Quality Builders.
    Barry Domingue, J. Clemille Simon, Lafayette, LA, for Plaintiffs/Appellees, J. Clemille Simon and Katheryn Simon.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| j Defendants, Scott and Sharon Belaire d/b/a Belaire Quality Builders, appeal the trial court’s grant of Plaintiffs’ motion for summary judgment. For the following reasons, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

Plaintiffs, J. Clemille Simon and his wife, Katheryn Simon, hired R. Scott Be-laire, d/b/a Belaire Quality Builders, in connection with the construction of a house in Lafayette, Louisiana. It is uncontested that Simon himself was listed on the permits as the prime contractor for the project. In April 2008, Belaire submitted an invoice for his services in the amount of $16,067.00. At about the same time, Simon fired Belaire telling him that numerous defects had been detected by A1 Mallet, an expert retained by the Simons.

In May 2008, the Simons filed this suit. In September 2010, the trial court entered an order setting the matter for trial and setting dates for discovery as follows:

IT IS HEREBY ORDERED, that the trial in the matter of J. CLEMILLE SIMON and KATHERYN SIMON vs. R. SCOTT BELAIRE AND SHARON BELAIRE d/b/a BELAIRE QUALITY BUILDERS be set for jury trial on the 16th day of May, 2011, at 1:30 p.m. o’clock in Lafayette Parish.
IT IS FURTHER ORDERED THAT DISCOVERY DEPOSITIONS OF THE PARTIES BE CONDUCTED ON OR BETWEEN THE DATES OF OCTOBER 13TH, 14TH, AND 15TH OF 2010.
IT IS FURTHER ORDERED THAT THE DISCOVERY DEPOSITIONS OF PARTIES AND/OR NON PARTIES BE CONDUCTED ON OR BETWEEN THE FOLLOWING DATES: NOVEMBER 15 & 16TH, 2010; JANUARY 5TH, 6TH, AND 7TH, 2011; AND THE WEEK OF FEBRUARY 28TH, 2012.
IT IS FURTHER ORDERED THAT THE PARTIES ALSO COMPLY WITH THE STANDING PRE TRIAL ORDER OF THE|2.15TH[] JUDICIAL DISTRICT COURT AND ANY DEADLINES CONTAINED THEREIN.

On January 26, 2011, Plaintiffs filed a motion for summary judgment seeking a determination that Scott Belaire was not a licensed contractor; was functioning as a licensed contractor on the Simon house job; billed and was paid as a contractor for his supervision/oversight; that the project cost over $75,000.00; that La.R.S. 37:2150, et seq., prohibits anyone except a licensed contractor from receiving payment for oversight of a residential construction project costing over $75,000.00; that Scott Belaire violated La.R.S. 37:2150 and was fined; that they, Plaintiffs, were entitled to a return of the contractor’s fees paid to Belaire; and damages for defects in the construction and for repairs required by those defects.

A hearing on the motion for summary judgment was set for February 14, 2011. On January 31, 2011, Defendants filed a motion to continue the hearing, citing their lack of representation and that as owners of a florist shop, that date was the busiest of their year. The motion was denied. Defendants retained counsel and re-urged their motion to continue on February 10, 2011, citing the need for time to respond to the motion for summary judgment. Plaintiffs moved to strike Defendants’ opposition to the motion for summary judgment as well as an objection to the motions to continue. On February 11, 2011, Defendants filed a motion to strike Plaintiffs’ motion for summary judgment.

The trial court struck Defendants’ opposition and, on February 14, 2011, the trial court denied the motion to continue and granted Plaintiffs’ motion for summary judgment. Defendants appeal.

DISCUSSION

Defendants assert that the trial court erred in granting the motion for summary judgment. We agree. After review, we find that the failure to allow | .^Defendants to complete discovery, as set out in the trial court’s discovery schedule, renders the motion for summary judgment premature.

Generally, a motion for summary judgment may only be granted “[a]fter adequate discovery or after a case is set for trial.... ” La. C.C.P. art. 966(C)(1). Although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case. Doe [v. ABC Corporation ], 00-1905 (La.App. 4 Cir. 6/27/01), 790 So.2d 136; Rumore v. Wamstad, 99-557, p. 7 (La.App. 5 Cir. 2/8/00), 751 So.2d 452, 456, citing Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908 (La.1986).

Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Group), Ltd., 03-1600, pp. 3-4 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, 969.

In the present case, we find that the information sought by Defendants pertains directly to the unresolved factual issue of damages. Further, the additional discovery sought is relevant to the issues before the court on summary judgment. Plaintiffs’ case rests largely on the testimony of their expert, A1 Mallet. As of the time of the hearing on the motion for summary judgment, his deposition had not been taken, nor had Defendants’ expert had an opportunity to inspect the property. Given that time still remained under the trial court’s own discovery order in which to complete this discovery, we find that the trial court abused its discretion in granting the motion for summary judgment.

Accordingly, this court reverses the grant of the motion for summary judgment, renders judgment denying Plaintiffs’ motion for summary judgment, and remands to the trial court to allow adequate time for completion of discovery. Having so found, we need not consider whether the court properly denied Defendants’ motions to continue or whether it properly struck Defendants’ memorandum in opposition to the motion for summary judgment.

| CONCLUSION

For these reasons, the judgment of the trial court granting Plaintiffs’ motion for summary judgment is reversed and judgment is rendered denying Plaintiffs’ motion for summary judgment. The matter is remanded to the trial court to allow time for discovery to be completed. Costs of this appeal are assessed to Plaintiffs.

REVERSED, RENDERED, AND REMANDED.


author: SAUNDERS, Judge.

text:
    George McGREW v. QUALITY CARRIERS, INC.
    No. 11-440.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Joseph J. Bailey, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Plaintiff/Appellant, George McGrew.
    Scott T. Winstead, Sutterfield & Webb, LLC, Orleans, LA, for Defendant/Appel-lee, Quality Carriers, Inc.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| ¶ This is a workers’ compensation case where a truck driver performed work for a carrier service. The primary issue presented to the court is whether a truck driver could carry his burden to prove at trial that he fits into the manual labor exception to the general rule that independent contractors are not entitled to workers’ compensation benefits per La.R.S. 23:1021(7). The hearing officer granted the carrier service’s motion for summary judgment. We reverse, finding that one could reasonably infer from the evidence that the truck driver could carry his burden at trial.

FACTS AND PROCEDURAL HISTORY:

George McGrew (McGrew) agreed to work as a truck driver for Quality Carriers, Inc. (Quality) via a contract dated May 8, 2009. McGrew also entered into a purchase and lease back agreement with Quality where he agreed to purchase a truck from Quality and lease that truck back to Quality. Payments to purchase the truck were taken from the pay McGrew was to receive from Quality. McGrew would use that truck to drive a dedicated route for Quality. That route was from Winnfield, Louisiana, to Oakdale, Louisiana. On the route, McGrew would load his trailer with resin at Arclin in Winnfield, drive to Mari-co in Oakdale, and unload his trailer of resin there. According to McGrew’s testimony, he would make three runs daily.

In order to accomplish his run, McGrew would have to perform various activities, including climbing onto the trailer. On May 11, 2009, McGrew slipped and fell while attempting to climb onto the trailer attached to his truck. The fall resulted in McGrew being injured.

On May 6, 2010, McGrew filed a disputed claim for compensation against Quality, alleging that he was an employee of Quality and, as such, was entitled to 12workers’ compensation benefits. In December 2010, Quality filed a motion for summary judgment on the basis that McGrew was an independent contractor and not engaged in manual labor for a substantial amount of his work time. In response, McGrew argued that there was an issue of fact as to whether he was an employee or independent contractor and, in the alternative, that even if he was an independent contractor, there was an issue of fact as to whether he fit into the manual labor exception of La.R.S. 23:1021(7).

After considering briefs and oral arguments, the hearing officer concluded that McGrew was an independent contractor and that Quality was entitled to summary judgment because McGrew, at trial, could not cany his burden to prove that he fit into the manual labor exception of La.R.S. 23:1021(7). Therefore, the hearing officer dismissed McGrew’s claim for compensation with prejudice. McGrew has appealed this ruling, asserting two assignments of error.

ASSIGNMENTS OF ERROR:

1. The hearing officer erred in finding that McGrew did not spend a substantial amount of his time engaged in manual labor, when the deposition testimony showed that he was required to climb ladders, pull and connect heavy hoses, turn valves[,] loosen and tighten bolts, [and] open and close hatches to load and unload the truck on each of his dedicated runs.

2. The hearing officer erred in failing to give any consequence to the last sentence of [La.]R.S. 23:1021(10) where evidence established to that McGrew purchased the tractor from Quality, and leased the tractor and his labor back to Quality; at a minimum, the contract should have been disallowed in determining whether [] McGrew was an employee of Quality, and summary judgment should not have been granted on conflicting evidence.

ASSIGNMENT OF ERROR NUMBER ONE:

McGrew’s first assignment of error is that the hearing officer erred in finding that he “did not spend a substantial amount of his time engaged in manual labor when the deposition testimony showed that he was required to climb ladders, lapull and connect heavy hoses, turn valves[,] loosen and tighten bolts, [and] open and close hatches to load and unload the truck on each of his dedicated runs.” This assignment does not accurately state the finding of the hearing officer considering the burdens of proof in a summary judgment setting. The hearing officer found that McGrew could not carry his burden to prove, at trial, that he fit into the manual labor exception found in La. R.S. 23:1021(7). We agree with McGrew that the hearing officer’s finding in this regard is in error.

This case is before us after the hearing officer granted Quality’s motion for summary judgment. A summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrógate-ries, 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).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2). When analyzing whether to grant a summary judgment, courts “are required to construe factual inferences that are reasonably drawn from the evidence presented in favor of the party opposing the motion; all doubt is to be resolved in the non-moving party’s favor.” Johnson v. State Farm Ins., 08-1250, p. 2 (La.App. 3 Cir. 4/1/09), 8 So.3d 808, 810.

In the case before us, Quality, as movant, has the initial burden to prove that it is entitled to summary judgment. At issue in Quality’s motion is whether 14McGrew is its employee such that McGrew could receive benefits under our workers’ compensation statutes. At trial, McGrew has the burden to prove that he is Quality’s employee in order receive workers’ compensation benefits. Therefore, Quality need not negate all of the elements of McGrow’s petition for workers’ compensation benefits, it merely needs to point out an absence of support for an essential element of McGrow’s petition, i.e., that McGrew is its employee. Quality did so by producing a contract where the parties agreed that McGrew was an independent contractor. Thereafter, the burden shifts to McGrew to show support for his claim that he is the employee of Quality or that he fits under an exception in the workers’ compensation statutes such that he was covered by the act regardless of his status as an independent contractor.

At the end of the hearing on the motion for summary judgment, the hearing officer found that McGrew could not carry his burden to show at trial that he fit into the manual labor exception found in La.R.S. 23:1021(7). Given the directive to view the facts in this case in a light most favorable to McGrew, we conclude that this finding by the hearing officer was in error.

Independent contractors are excluded from our workers’ compensation statutes “unless a substantial part of the work time ... is spent in manual labor.” La.R.S. 23:1021(7). Labor is deemed “manual” if the physical elements predominate over the mental elements in performing that labor. Riles v. Truitt Jones Const., 94-1224 (La.1/17/95), 648 So.2d 1296. “Substantial part” illiberally construed and is not determined by the use of mathematics. Id. Rather, “substantial part” is viewed as “the converse of immaterial or insubstantial.” Id. at 1300 (quoting Welch v. Newport Indus., Inc., 86 So.2d 704, 707 (La.App. 1 Cir.1956)).

Here, McGrew testified via deposition that in his normal daily work for Quality, he made three runs from Arclin to Martco. According to McGrew, in each run, he spent approximately fifteen minutes preparing the trailer to be loaded at Arclin. Next, he drove an hour and a half to arrive at Martco where he estimates that he spent another fifteen minutes preparing the trailer to be unloaded. The preparation to load and unload the trailer for one run involves climbing and descending the ladder on the side of his trailer multiple occasions, unscrewing and screwing bolts for the “manhole” cover on top of his trailer, inspecting and cleaning out hoses, attaching those hoses either to his trailer or to the loading apparatus at the plant, and opening and closing valves to begin and end the loading of the resin onto his trailer.

Each of these activities is characterized by utilizing the physical elements more than the mental elements. Thus, each is “manual labor.” A reasonable inference from McGrew’s testimony is that in a normal work day, he spent one and a half hours performing manual labor. This certainly is not immaterial or inconsequential and constitutes a “substantial part” of his work time.

While it is true that there are cases where truck drivers do not fit into the manual labor exception of La.R.S. 23:1021(7), whether a substantial part of one’s job involves manual labor is addressed on a case-by-case, not job-by-job basis. Guillory v. Overland Express Co., 01-419 (La.App. 3 Cir. 10/3/01), 796 So.2d 887. Here, McGrew testified that he had multiple other truck driving jobs and that this particular job was more physical than other truck driving jobs he had performed. | fiThis is reasonable, as other cases involving truck drivers can conceivably involve a driver merely loading and/or unloading the trailer once or even less daily with more time spent driving compared to this particular truck driving job with Quality.

Given the context, and we are to view the facts presented in this case, we find one can reasonably infer that McGrew has carried his burden to prove that his job fit under the manual labor exception of La. R.S. 23:1201(7). Accordingly, we reverse the hearing officer’s grant of summary judgment to Quality and remand this case for further proceedings consistent with this opinion.

ASSIGNMENT OF ERROR NUMBER TWO:

McGrew asserts in his second assignment of error that the hearing officer erred in failing to give any consequence to the last sentence of La.R.S. 23:1021(10) where evidence established that he purchased the tractor from Quality and leased the tractor and his labor back to Quality. While our finding in assignment of error number one renders this assignment moot, we note that La.R.S. 23:1021(10) states:

“Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.

Our view of this statute as applicable to the case at bar is that McGrew is not an owner operator as defined. Thus, the fact that McGrew has a contract with Quality delineating him as an independent contractor is not the only factor in determining whether McGrew is classified as an employee or independent contractor. Rather, 17the court properly would look to the factors noted in Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972) and consider that a contract’s content is not the determinative factor in deciding whether one is an employee or independent contractor. Crysel v. Gifford-Hill & Co., 158 So. 264 (La.App. 2 Cir.1935); Murphy v. Tremont Lumber Co., 22 So.2d 79 (La.App. 2 Cir.1945).

We do note that this court was not asked to adjudicate the underlying issue of whether the hearing officer properly found that Quality carried its burden to prove that McGrew was an independent contractor. This issue was not specifically raised in an assignment of error nor was it directly addressed by McGrew.

CONCLUSION:

George McGrew raises two assignments of error, both asserting that the hearing officer erroneously granted Quality Carriers, Inc.’s summary judgment dismissing his workers’ compensation claims. We conclude that one can reasonably infer that McGrew has carried his burden to prove that his job fit under the manual labor exception of La.R.S. 23:1201(7). Accordingly, we reverse the hearing officer’s grant of summary judgment to Quality Carriers, Inc. and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GENOVESE, J., concurs in the result.

      . Louisiana Revised Statutes 23:1021(7) defines an "independent contractor” as:
      [A]ny person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.


text:
    Waymon Derek JONES, et ux. v. BROOKSHIRE GROCERY COMPANY, et al.
    No. 11-418.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellee, Brookshire Grocery Company.
    Gary Paul Koederitz, Koederitz Law Firm, LLC, Baton Rouge, LA, for Plaintiff/Appellant, Waymon Derek Jones, Veronica Jones.

      Travis Ron LeBleu, Maride & Associate, Baton Rouge, LA, for Defendant/Ap-pellee, Precise Food Ingredients, Inc.
    Chase Tettleton, Babcock Partners, LLC, Baton Rouge, LA, for Defendant/Ap-pellee, TexAmerican Food Marketing, Inc.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| ¶ This is a negligence case where a consumer of a warehouse-style grocery chain ingested store-prepared chicken on which he found small metal flakes. Plaintiffs-Appellants, Waymon Jones and his wife Veronica Jones, filed suit against Defendants, Brookshire Grocery Company (hereinafter “Brookshire”), Texamerican Food Marketing, Inc., and Precise Ingredients, Inc., in Alexandria City Court (hereinafter “ACC”), asserting claims for personal injuries arising out of his consumption of the contaminated food.

The ACC found defendant Brookshire at fault and liable for damages for anxiety and medical expenses resulting from the incident. Further, the court dismissed all demands against Defendants, Texamerican Food Marketing, Inc. and Precise Ingredients, Inc. Plaintiff-Appellant appeals the award entered against Brookshire. Jones also appeals the ACC’s failure to award loss of consortium damages to his wife. We affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

Waymon Jones (hereinafter “Jones”) and his co-worker visited Super 1 Foods, operated by Brookshire, in Alexandria while on their lunch break on February 6, 2008. There, the co-worker purchased lunch for the two, including fried chicken tenders. While eating the food back at work, Jones noticed what he thought were large flakes of black pepper on the chicken’s breading. Upon closer inspection, he concluded that the specks were in fact small metal flakes, approximately the size of the head of a straight pin.

Jones notified the store’s deli manager, who verified that small metal flakes were present on chicken in the same batch in which Jones’s chicken was cooked. |zSoon after the event, Jones claims to have experienced sore gums, abdominal pain, bloody stool, diarrhea, and fever. In response to the symptoms, Jones visited his family doctor, Dr. Chris Griffin, on February 18, 2008. There, Jones underwent a CT scan. On interpreting the results, Dr. Griffin diagnosed Jones with diverticulitis and prescribed medicine.

Jones visited a second doctor, a gas-troenterologist, Dr. James Hobley, in Shreveport, starting in March 2008. After several visits, and upon clinical examinations and a colonoscopy, Dr. Hobley diagnosed Jones with predominant constipation irritable bowel syndrome (hereinafter “predominant constipation IBS”). Dr. Hobley did not find that Jones had diverticulitis, which was Dr. Griffin’s diagnosis. Rather, Dr. Hobley found that Jones had diverticulitis. The difference between the two is that diverticulitis is the presence of small pockets on the wall of the colon; whereas diverticulitis is the infection of such pockets. No finding of diverticulitis was made, either through clinical, radiological, or endoscopic testing.

Dr. Hobley states that Jones’s diverticulitis typically could not have developed in the interim time period, three months, between Jones’s consumption of the metal shavings and his first visit with Dr. Hob-ley. Accordingly, Dr. Hobley concludes that Jones’s diverticulitis was most likely a preexisting condition. He states that one can have diverticulitis for years without manifesting any symptoms. Further, Dr. Hobley states that constipation most likely caused Jones’s diverticulitis, not consumption of metal shavings. The shavings, however, could aggravate the diverticulitis by causing infection or inflammation; Dr. Hobley was inconclusive on whether this happened here.

lsOn the issue of causation, Dr. Hobley stated that consumption of the metal shavings could potentially have been an inciting event, but only due to lack of any other causal findings. When further pressed on the issue, Dr. Hobley responded that he was uncomfortable saying that the metal shavings were the most probable cause, because such a statement would give too much credence to their status as a potential or actual cause.

At trial, the court found that the evidence did not reveal any significant injuries which could be related to consumption of the small metal flakes. However, the court found that Jones had suffered anxiety related to the incident and awarded him $2,000.00. In addition, the court awarded medical expenses in the amount of $6,955.99. Jones now appeals, alleging two assignments of error.

ASSIGNMENT OF ERRORS

1. Whether the trial court erred in failing to apply the presumption of causation between the consumption of contaminated food by appellant, Waymon Jones, and his subsequent symptoms and treatment, as required by Housley v. Cerise, 579 So.2d 973 (La.1991).

2. Whether the trial court erred in failing to award damages to appellant, Veronica Jones, for loss of consortium.

LAW AND ANALYSIS

Assignment of Error Number One

Jones contends in his first assignment of error that the ACC erred in failing to apply the presumption of causation between consumption of contaminated food and his subsequent symptoms. We find no merit in this contention. Jones’s assignment of error deals with a question of fact. Accordingly, the trial court’s | Judgment will be reviewed under a standard of manifest error. Housley, 579 So.2d at 980.

Jones argues that the trial court should have applied a presumption in his favor. The presumption, or the Housley rule, states that:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Housley, 579 So.2d at 980.

In the instant case, the trial court was not manifestly erroneous in finding that the Housley rule does not apply; inasmuch as it was reasonable for him to find that Jones failed to prove that the accident was a reasonably possible cause of the disabling condition. This issue turns on Dr. Hobley’s conclusion that diverticulitis typically does not develop in only three months, the length of time between the incident and Jones’s treatment. In other words, Jones’s condition predated his consumption of the metal particles. The court found, according to the findings of Dr. Hobley, no causal connection between the underlying condition, diverticulitis, and the accident, consumption of the metal shavings. We do not find that this conclusion was manifestly erroneous.

When asked what occurs when a person consumes metal shavings, Dr. Hobley responded that typically nothing happens. Many times, he stated, the shavings, depending on their size and quantity, will simply pass through. The particles here were the size of the head of a straight pin. While the metal particles may or may not have caused certain symptoms of the condition to arise, the trial court did not err in finding that Jones failed to sufficiently prove causation.

| ¿Moreover, even if the standard were applied, the result would not be in Jones’s favor. Again, the standard is that the accident must be a reasonably possible cause of the disabling condition. The ACC found Jones’s evidence insufficient to meet this standard. Dr. Hobley’s testimony, the primary medical evidence on which Jones relies, is too tenuous to establish consumption of metal shavings as a reasonably possible cause of the diverticulitis. Dr. Hobley testified that he was uncomfortable in attributing causation to the metal shavings. In illustration of his reluctance, he stated that consumption of the metal shavings “would be kind of looked at as a sentinel event, potentially.” In addition, he called Jones’s condition “insidious,” or having a cause unknown to doctors. In conclusion, the metal shavings are a potentially possible cause; but Jones has not established that they are a reasonably possible cause. The trial court did not commit manifest error in finding that Dr. Hob-ley’s testimony failed to prove enough to invoke the Housley presumption.

In conclusion, we find the record sufficient to support the trial court’s finding that Jones failed to show enough causation. Thus, the trial court’s decision to refrain from invoking the Housley presumption was not manifestly erroneous.

Assignment of Error Number Two

Jones also argues that the trial court erred by failing to award his wife, Veronica Jones (hereinafter “Veronica”), damages for loss of consortium. We find merit in this contention. Jones’s assignment of error as to loss of consortium should not be overturned on appeal in the absence of manifest error. Peoples v. Fred’s Stores of Tennessee, Inc., 09-1270 (La.App. 3 Cir. 6/2/10), 38 So.3d 1209, writ denied, 10-1882 (La.10/29/10), 48 So.3d 1090.

|fiThe elements of a claim for loss of consortium are the following:

In order to prove a claim for loss of consortium, a plaintiff must prove three things: (1) the liability of the defendant, (2) his or her spouse’s damages, and (3) his or her consequent loss of consortium damages. Loss of consortium is more than just a loss of general overall happiness, it also includes love and affection, society and companionship, sexual relations, the right of performance of material services, the right of support, aid, and assistance, and felicity.

Bellard v. South Central Bell Telephone Co., 96-1426, p. 21 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 707, writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202.

Here, the first two elements are satisfied by the fact that Brookshire has been held liable to Waymon for damages. An award to Veronica for loss of consortium reasonably flows from the award to Way-mon Jones for anxiety suffered.

The third element for a claim of loss of consortium is satisfied by Veronica’s un-controverted testimony. It is clear that she suffered greatly during her husband’s illness. During the first half of February 2008, when Waymon first experienced symptoms, Veronica was recovering from major surgery which she underwent on January 28, 2008. She testified that when Waymon fell ill, she not only had to care for him, but for herself and for their two minor children, who were twelve and seven at the time. In addition to the physical aspects of caring for him, Veronica and the children suffered through Waymon’s emotional illness and medicinal side effects. She testified that she and the kids bore the brunt of Waymon’s irritability, anger, screaming, yelling, and hatefulness. Today still, although it appears the worst is over, Veronica must take special precautions when she feeds her husband, as restrictions remain over his diet.

|7In conclusion, the parties have shown sufficient evidence to award damages to Veronica for loss of consortium. Brook-shire was held liable to Waymon for damages, and Veronica’s testimony shows her loss of consortium relating to her husband’s illness. In fact, Brookshire failed to challenge her testimony; thus, the evidence is uncontroverted. We reverse the ACC’s denial of Veronica’s claim. Veronica is awarded $1,000.00 for loss of consortium from Brookshire.

CONCLUSION

Waymon Jones was unable to show that there was manifest error on part of the trial court in failing to invoke the Housley presumption. Therefore, we affirm that part of the underlying judgment. Jones was able to meet the standard for loss of consortium damages for his wife. Therefore, we award $1,000.00 in damages to Veronica Jones for loss of consortium. All court costs are assessed against the Defendant, Brookshire Grocery Company.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED

GENOVESE, J., concurs in the result.


text:
    STATE of Louisiana v. John Craig BORDELON.
    No. 11-413.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Ronald E. Dauterive, Assistant DA, Lafayette, LA, for Plaintiff Appellee, State of Louisiana.
    Richard Damian Mere, Attorney at Law, Lafayette, LA, for Defendant Appellant, John Craig Bordelon.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

11 This is a forfeiture case wherein $23,287.00 was seized from a residence and forfeited under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, La.R.S. 40:2601, et seq. The owner of the residence challenged the forfeiture. The Fifteenth Judicial District Court, Parish of Lafayette, issued a judgment ordering the forfeiture of the currency. The owner of the residence appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

On February 3, 2009, John Craig Borde-lon (Bordelon) was arrested and charged with monies derived from drug transactions, possession of Soma tablets, and possession of drug paraphernalia. In conducting a search of Bordelon’s home, law enforcement seized, inter alia, $23,287.00 in United States Currency located in a safe. On June 30, 2009, the State filed a petition for forfeiture of the currency. On July 16, 2009, Bordelon answered this petition disputing the State’s petition. On August 2, 2010, a trial on this matter took place in Lafayette, Louisiana in the Fifteenth Judicial District Court.

The trial court found that the State met its burden to prove that the currency was derived from illegal activity and granted a judgment ordering the currency forfeited to the State. Bordelon has appealed this judgment, asserting a single assignment of error.

DISCUSSION OF THE MERITS:

In his only assignment of error, Borde-lon argues that the trial court erred in granting the forfeiture in the absence of sufficient evidence of all of the underlying elements necessary to prove the forfeiture by a preponderance of the evidence. We find no merit to Bordelon’s argument.

Louisiana Revised Statutes 40:2604 states:

|2The following property is subject to seizure and forfeiture as contraband, derivative contraband, or property related to contraband under the provision of Section 4 of Article I of the Constitution of Louisiana:
(1) All controlled substances, raw materials, or controlled substance analogues that have been manufactured, distributed, dispensed, possessed, or acquired in violation of R.S. 40:961 et seq.
(2) All property that is either:
(a) Furnished or intended to be furnished by any person in exchange for a controlled substance in violation of R.S. 40:961 et seq.
(b) Used or intended to be used in any manner to facilitate conduct giving rise to forfeiture, provided that a conveyance subject to forfeiture solely in connection with conduct in violation of R.S. 40:961 et seq. may be forfeited only pursuant to the provisions of this Chapter.
(3) Proceeds of any conduct giving rise to forfeiture.
(4) All weapons possessed, used, or available for use in any manner to facilitate conduct giving rise to forfeiture.
(5) Any interest or security in, claim against, or property or contractual right of any kind affording a source of control over any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of through conduct giving rise to forfeiture.

The district attorney has the initial burden of showing the existence of probable cause for forfeiture of the property. La. R.S. 40:2612.

Probable cause is a “reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” It may be established by demonstrating “‘by some credible evidence, the probability that the money was in fact drug related.’ ” U.S. v. One 1987 Mercedes 560 SEL, 919 F.2d 327 (5th Cir.1990). “Probable cause can be established by circumstantial or hearsay evidence.” The government need not prove beyond a reasonable doubt that a substantial connection exists between the forfeited property and the illegal activity. Rather in forfeiture actions, the government merely must demonstrate the existence of probable cause for belief that a substantial connection exists between the property to be forfeited and the illegal drug transaction. Furthermore, it is not necessary that the | ^government trace the property to a particular drug transaction. Rather, it is the totality of the circumstances that leads to a finding of probable cause. This evidence goes beyond a mere suspicion. It must be judged not with clinical detachment but with a common sense view to the realities of normal life. U.S. v. One 1987 Mercedes 560 SEL, supra.

State v. Albritton, 610 So.2d 209, 213 (La.App. 3 Cir.1992).

“[Circumstantial evidence and hearsay can be sufficient to establish probable cause. Nevertheless, the trial court has the discretion to give such evidence the import it deserves.... Factual determinations in civil forfeiture cases will not be disturbed absent manifest error.” State v. $29,177.00 U.S. Currency, 93-592, p. 5 (La.App. 3 Cir. 2/2/94), 638 So.2d 653, 657, writ denied, 94-1955 (La.11/28/94), 644 So.2d 378.

In the case before us, the trial court was presented with evidence that Bordelon was arrested on three prior occasions for possession with intent to distribute various illegal drugs. Regarding the arrest that resulted in forfeiture currently before us, law enforcement received information from a confidential informant that Bordelon was dealing illegal drugs from his residence. Thereafter, a canine open air sniff outside Bordelon’s residence indicated the presence of narcotics. After obtaining a warrant, Bordelon’s residence was searched, and the following was recovered: one gram of marijuana, a drug ledger notebook, 2 digital scales, storage and sealer bags, crack cocaine push rods, a prescription bottle containing three Soma tablets, and $23,287.00. Bordelon was then arrested for monies derived from drug transactions, possession of Soma tablets, and possession of drug paraphernalia.

Bordelon testified that the currency was from a combination of his seasonal chimney sweep business and $20,000.00 he inherited from his Rmother in 2002. Borde-lon’s claim of inheritance was corroborated by the stipulated testimony of his brother, Randy.

The trial court weighed the evidence presented and determined that the State carried its burden of proving that the currency was derived from illegal activity under La.R.S. 40:2601, et seq. After a thorough review of the record, we find no error in the trial court’s determination. Given the totality of the circumstances and the evidence presented, especially Bordelon’s nearly thirty-year history in dealing narcotics, the trial court could reasonably find from “a common sense view to the realities of normal life” probable cause existed that the large sum of money in Bordelon’s residence was derived from illegal activity, namely dealing illegal drugs. Accordingly, we affirm the trial court’s judgment.

CONCLUSION:

Bordelon raised one assignment of error that the State failed to meet its burden of proof. We found no merit to this argument. Therefore, we affirm the trial court’s judgment. Defendant, John Craig Bordelon is cast with all costs of this appeal.

AFFIRMED.


author: COOKS, Judge.

text:
    Alan KITE v. KITE BROS., et al.
    Nos. 11-334, 11-335.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Kenneth Michael Wright, Kenneth Michael Wright, LLC, Lake Charles, LA, for Plaintiff/Appellant, Alan Kite.
    Scott J. Scofield, Phillip W. DeVilbiss, Scofield, Gerard, Singletary & Pohorelsky, Lake Charles, LA, for Defendants/Appel-lees, Robert J. Kite and Kite Bros., L.L.C.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

| T In 1961, Robert Kite (Mr. Kite) co-founded a recreational vehicle dealership with his brother. The company was originally formed as a corporation, Elite Bros., Inc. On April 30, 1998, Kite Bros., Inc. became inactive when Mr. Kite formed a limited liability corporation, Kite Bros., L.L.C. Since its formation, Mr. Kite has been the sole member, manager and owner of Kite Bros., L.L.C.

At different points in the 1980s, Mr. Kite’s two sons, Alan Kite and Jeff Kite, began working for the corporation. When Kite Bros., L.L.C. was formed, both brothers were employed there, although the record indicated Alan never had employment contracts with either Kite Bros., Inc. or Kite Bros., L.L.C. Over time, Alan was given the authority to write checks on the company account, including payroll checks. However, it was testified that neither Alan nor Jeff had authority to change their salary or commission rate.

Mr. Kite testified he was always very generous to Alan, and paid him substantially more than other salesmen with the company, receiving a salary of $1,500.00 per week. Alan also received a commission based on a written schedule which Mr. Kite created. Alan was provided with a company truck and a company credit card. Testimony revealed Alan consistently made in excess of $200,000.00 in annual compensation.

In September of 2005, Alan and Jeff, on their own, raised their salaries. The raises Alan took were significant, at times more than triple his previous weekly salary. Alan and his brother also agreed they would take another ten percent (10%) of all revenues of Kite Bros., L.L.C. Alan testified he and his brother would continue to take the increased salaries and the cut of revenues “until everything settled down after the storm [Hurricane Rita].”

It was undisputed that neither Alan nor Jeff cleared their raises nor the decision to take ten percent (10%) of the revenues with Mr. Kite. In January of 122006, Mr. Kite discovered Jeffs salary had been raised without his permission. Mr. Elite told Jeff to return his salary to the authorized level. Mr. Kite then proceeded to revoke Alan and Jeffs authority to write checks and cancelled their credit cards. Despite this, Alan submitted a pay sheet the following week documenting a salary due of $5,000.00, rather than the agreed upon $1,500.00 per week.

On January 19, 2006, both Alan and Jeff left the employ of Kite Bros., L.L.C. It was disputed as to whether the brothers left on their own accord or were fired. Not in dispute is that when Alan left the premises, he took with him business papers belonging to Kite Bros. L.L.C. without permission. Among the papers removed were records which documented the deferred commissions due to Alan.

Mr. Kite filed a criminal complaint over the papers removed by Alan. When the investigating officer contacted Alan, he was assured by Alan that the papers would be returned the next day. However, Alan did not return the papers and kept them in his possession until August of 2006, when his attorney returned some of the papers to Mr. Kite’s attorney. Alan has continued to remain in possession of some of the business papers to this date.

According to Mr. Kite, when Alan left he wanted to make sure Alan received everything he was entitled to in terms of compensation. However, reaching an exact figure owed was difficult due to the lack of documentation because of Alan’s removal of certain business records. Mr. Kite testified, to be safe, he simply wrote Alan a check for $100,000.00, minus employment taxes. He believed this more than adequately covered any compensation Alan was due. Alan acknowledged receiving this check in February of 2006.

In March of 2006, Alan and Jeff filed a lawsuit against their father and Kite Bros., L.L.C. Several claims were alleged, including: (1) retaliatory discharge; (2) detrimental reliance; (3) defamation; (4) failure to pay final wages; (5) failure to | adeliver insurance policies; (6) failure to deliver retirement accounts; and (7) a claim for an injunction ordering the return of a bass boat. Mr. Kite and Kite Bros., L.L.C. brought reconventional demands against the brothers for taking unauthorized salaries and raises.

Mr. Kite, stating he was saddened by the family squabbling, agreed during a mediation to settle Alan and Jeffs claims. The settlement agreement required that Mr. Kite be treated with respect and he be granted access to his grandchildren. Asserting that Alan did not uphold the agreement, Mr. Kite filed a lawsuit seeking to declare the mediated agreement null. That lawsuit was consolidated with the suit stemming from Alan and Jeffs claims. The mediated agreement was rescinded.

During that time period, Alan and Jeff began a competing RV dealership, Kite RV, L.L.C. Shortly after its inception, Alan and Jeff began arguing over control of the company. As a result, Jeff reconciled with his father and dismissed his claims against him.

On January 21, 2010, Mr. Kite moved for summary judgment dismissing Alan’s claims. The motion for summary judgment was supported with numerous affidavits and depositions supporting the granting of summary judgment.

In his argument to defeat the motion for summary judgment, Alan argued simply that there were several genuine issues of material fact that precluded summary judgment. The trial court ordered Alan to “identify in writing the specific statements” that created the genuine issues of material fact. However, Alan did not provide the court with any such written documentation.

On July 16, 2010, the trial court issued written reasons granting partial summary judgment, dismissing several, but not all, of Alan’s claims. The trial court granted summary judgment on the defamation claim, finding “the fact that Alan did do what any reasonable person would see was stealing would be a | complete defense to the action for defamation.” The trial court also granted summary judgment on Alan’s ownership claim based on the doctrine of detrimental reliance, finding “Alan has acknowledged elsewhere that [Mr. Kite] was the sole owner of [Kite Bros.,] LLC and Alan disclaimed any ownership of the [Kite Bros.,] LLC in his divorce proceedings. The trial court also granted summary judgment dismissing Alan’s retaliatory discharge claim. It was acknowledged by both parties at the hearing that the claim regarding failure to deliver retirement accounts, as well as the claim for an injunction ordering the return of a bass boat, were moot. The judgment did not dismiss Alan’s two other claims alleging the failure to pay final wages and deliver insurance policies.

At Alan’s request, the trial court stated that these partial summary judgments were final pursuant to La.Code Civ.P. art. 1915(B)(1). Alan then filed the present appeal, asserting the trial courts grants of partial motion for summary judgment were in error.

ANALYSIS

Designation of Judgment as Final.

As the three of Alan’s claims that were dismissed was done so in a partial motion for summary judgment, we first consider whether the judgment is properly before the court. An appellate court cannot determine the merits of an appeal unless its jurisdiction is properly invoked by a valid final judgment. La.Code Civ.P. art. 2083. In this case, at Alan’s request, the trial court designated its partial summary judgment as final pursuant to La. Code Civ.P. art. 1915(B)(1). No reasons for this determination were given, other than the trial court stating in the judgment that “there is no just reason for delay.”

This court in Fakier v. State of La., Bd. of Sup’rs for University of La. System, 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, 1027, set forth the 15procedure to be followed in reviewing an Article 1915(B) judgment designated without reasons:

The proper standard of review for an order designating a judgment as final and immediately appealable, when the order is accompanied by explicit reasons for the certification, is whether the trial court abused its discretion. However, if the trial court fails to give explicit reasons for the certification, the appellate court should conduct a de novo determination of whether the certification was proper. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113. Accordingly, we will conduct a de novo review. Likewise, because the peremptory exception of no cause of action raises a question of law and the district court’s decision is based solely on the sufficiency of the petition, review of the district court’s ruling on a peremptory exception of no cause of action is de novo. Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641.

The Fakier court, citing the supreme court’s opinion in R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, listed several non-exclusive factors for use by trial courts when determining certification of a judgment and for use by appellate courts when conducting de novo reviews when no reasons are given by the trial court for designation. The factors for examining certification are:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Fakier, 983 So.2d at 1029 (quoting Messinger, 894 So.2d at 1122).

Our analysis of the case at bar under the Fakier factors favors designation of the judgment as final. There is little relation between the unadjudicated and adjudicated claims, and there is little possibility the issues considered in this appeal would be revisited in future proceedings.

Therefore, we find no error in the trial court’s decision to designate the judgment as final.

|,,¡Standard of Review.

Louisiana Code of Civil Procedure Article 966(B) states that summary judgment shall be rendered “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.” In Boykin v. PPG Industries, Inc., 08-117, p. 4 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, 842, writs denied, 08-1634 and 08-1649 (La.10/31/08) 994 So.2d 537, this court explained the standard of review applicable to motions for summary judgment, stating:

Appellate courts review a trial court’s grant or denial of a motion for summary judgment using the de novo standard of review, under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate in any given case. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

Defamation Claim.

Alan based his defamation claim on the basis that Mr. Kite referred to Alan as a “thief’ and a “liar.” Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello v. Hardy, 03-1146, pp. 12-14 (La.1/21/04), 864 So.2d 129. The trial court granted summary judgment in favor of Mr. Kite essentially on the basis that truth is an absolute defense against a defamation claim.

In Kennedy v. Sheriff of E. Baton Rouge, 05-1418, p. 25 (La.7/10/06), 935 So.2d 669, 686, our supreme court stated:

[B]ecause of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Summary adjudication, we have recognized, is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.

|7The evidence clearly established Alan, without his father’s permission, raised his salary substantially and also unilaterally gave himself an unauthorized percentage of all revenues of Kite Bros., L.L.C. Further, it was undisputed that Alan, without permission, removed business documents’ from the Kite Bros., L.L.C. office. He also refused to return the records, despite his statement to the police that he would do so.

The trial court did not err in granting summary judgment dismissing Alan’s claim for defamation.

Retaliatory Discharge.

In this claim, Alan contended Kite Bros., L.L.C. violated state law by renting recreational vehicles. Alan stated he objected to this practice in September of 2005, and as such, when he left Kite Bros., L.L.C. four months later his departure gave rise to a retaliatory discharge claim under the Louisiana Whistleblower’s statute, La.R.S. 23:967. We find no merit in Alan’s position, and the trial court did not err in granting summary judgment on this issue.

Trial testimony revealed that the two contracts for renting recreational vehicles entered into by Kite Bros., L.L.C., were facilitated by Alan himself. Not only did Alan actively participate, if not orchestrate, the rental of the recreational vehicles, he has listed as one of his claims in the suit below the entitlement to ten percent of the funds realized from the lease of these vehicles. The trial court noted the folly of this argument, as “the Whistle-blower Statute only offers protection to a specific class of employees: those employees who face ‘reprisals’ from their employers based solely upon an employee’s knowledge of an illegal workplace practice and his refusal to participate in the practice or intention to report it.” Hale v. Touro Infirmary, 04-03, p. 6 (La.App. 4 Cir.11/3/04), 886 So.2d 1210, 1215, writ denied, 05-0103 (La.3/24/05), 896 So.2d 1036 (emphasis added). Thus, |sAlan cannot be found to be a “good faith” whistleblower, which is a requisite condition on bringing a whistleblower claim. Accardo v. Louisiana Health Services & Indemnity Co., 05-2377 (La.App. 1 Cir. 6/21/06), 943 So.2d 381.

Moreover, not only did Alan not cite his alleged complaint as a reason for his departure from Kite Bros., L.L.C., the record established Alan remained with the company for over four months after his supposed objection (September of 2005) to the leasing of the RVs. When he finally left in January of 2006, Kite Bros., L.L.C. had obtained a license to lease vehicles. Lastly, it was specifically testified to by Alan, that he “never threatened my father to turn him in.” The trial court did not err in granting summary judgment dismissing Alan’s claims for retaliatory discharge.

Detrimental Reliance.

Alan sought a one percent ownership interest in Kite Bros., L.L.C. based on the doctrine of detrimental reliance. Louisiana Civil Code Article 1967 provides for the doctrine of detrimental reliance as follows:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The doctrine of detrimental reliance is not favored in the law and all claims must be examined carefully and strictly. Moroux v. Toce, 06-831, 06-832 (La.App. 3 Cir. 11/2/06), 943 So.2d 1263, writ denied, 07-117 (La.3/16/07), 952 So.2d 698.

Alan’s own testimony does not establish that he was ever promised a one percent ownership interest in Kite Bros., L.L.C. Although Alan claimed his father “made the statement [to Alan] that he wanted [Alan] to have a controlling interest over the business to keep it going,” it was acknowledged this was a statement rather than any promise. Further, despite this claim of his reliance on a statement |flmade over twenty years ago of a potential ownership interest in the business, there have been several judicial admissions by Alan during the years that Mr. Kite was the sole owner of the company. In 1992, Alan filed to partition community property during a divorce, and represented to the court that he had no ownership interest in Kite Bros., Inc. In 1996, in another divorce proceeding, Alan again represented he owned no interest in Kite Bros., Inc. In a May 2003 application to the Louisiana State Policy Board, Alan certified that Mr. Kite owned “100%” of Kite Bros., L.L.C.

Moreover, there is no evidence that Alan ever changed his position as a result of the alleged promise. Both before and after the alleged promise Alan was an at-will employee. Alan even admitted this when asked how his position changed as a result of the alleged promise, he said he could not answer without speculating.

The trial court did not err in granting summary judgment on Alan’s detrimental reliance claim.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Plaintiff-Appellant, Alan Kite.

AFFIRMED.