author: McDonald, j.

text:
    William TAYLOR v. HANSON NORTH AMERICA.
    No. 2012 CA 0286.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 9, 2013.

      Matthew W. Tierney, Kristine D. Smiley, Baton Rouge, LA, for Plaintiff/Appel-lee William Taylor.
    Frank R. Whiteley, Metairie, LA, for Defendant/Appellant Hanson North America.
    Before KUHN, PETTIGREW, McDonald, jj.
   McDonald, j.

|2In this workers’ compensation dispute, Hanson North America (Hanson), appeals a judgment of the Office of Workers’ Compensation (OWC) in favor of claimant, William Taylor. For the reasons that follow, we affirm,

Mr. Taylor was injured in the course and scope of his employment as a kiln operator on May 19, 1995, when a kiln exploded, blowing the door off the hinges. The door landed on Mr. Taylor and two other workers, injuring Mr. Taylor’s right leg and lower back. After the accident, Mr. Taylor continued to work until January of 1997, when he was no longer able to work, and he began receiving temporary total disability benefits of $323.00 per week.

Weekly benefits were terminated after the OWC ruled on March 12, 2008, that Mr. Taylor had received 520 weeks of indemnity benefits effective January 10, 2007, and found that Mr. Taylor had failed to prove entitlement to permanent and total disability benefits, supplemental earnings benefits, or temporary total disability benefits. Mr. Taylor appealed that judgment to this court, which ruled on appeal that there were genuine issues of material fact that required a hearing, reversed the summary judgment in favor of Hanson, and remanded the case for further proceedings. Taylor v. Hanson North America, 08-1944 (La.App. 1 Cir. 5/8/09), 13 So.3d 660.

Mr. Taylor filed a supplemental and amending disputed claim for compensation on July 21, 2010, asserting that he was permanently and totally disabled and entitled to disability benefits for life; that he was incapable of gainful employment due to his physical injuries, functional limitations, age, experience, and education; that he was entitled to vocational rehabilitation services, and that, despite request and amicable demand, he had not been provided adequate and sufficient rehabilitation services; that the medical treatment recommended by his treating physician, a spinal cord stimulator, had been denied; that his medical bill |sand expenses had not been properly and timely paid; and that he was entitled to penalties and attorneys fees.

Mr. Taylor filed a second supplemental and amending disputed claim for compensation on November 1, 2010, asserting that he was entitled to and had been denied vocational rehabilitation, that he was entitled to and had been denied payment of mileage for medical appointments, that he had been denied his choice of physician in the field of neurosurgery and orthopedic surgery, and that he was entitled to penalties and attorneys fees. Hanson answered the first supplemental and amending claim asserting that Mr. Taylor had already received all of the benefits to which he was entitled under the law, and alternatively, disputed the amount of benefits claimed by Mr. Taylor and asserted its right to reimbursement, offsets, and credits.

After a trial, the OWC ruled in favor of Mr. Taylor, concluding that Mr. Taylor was permanently and totally disabled from the date of judgment, and finding that the spinal cord stimulator was reasonable and medically necessary, ordering that Hanson approve Mr. Taylor’s choice of orthopedic surgeon and neurosurgeon, denying Mr. Taylor further vocational rehabilitation, and assessing Hanson with all costs.

Hanson appealed that judgment and makes the following assignments of error:

1. That the [OWC] erred in finding that a spinal cord stimulator for plaintiff-appellee was reasonable and necessary medical care when both the SMO [second medical opinion] and [OWC] appointed IME testified emphatically that Taylor would not benefit from this treatment.
2. That the [OWC] erred in finding that plaintiff-appellee is entitled to his choice of treating physicians in the area of orthopedic surgery and/or neurosurgery; and
|43. That the [OWC] erred in finding that plaintiff-appellee is permanently and totally disabled as a result of the work-related accident which occurred on May 19, [1995].

Mr. Taylor filed an answer to the appeal, asserting that the OWC erred in ruling that the permanent and total disability benefits were awarded only from the date of signing the judgment and, in the alternative, asserts that the OWC erred in ruling on December 3, 2010, that Mr. Taylor was limited in discovery to documents from April 2006, forward.

THE STANDARD OF REVIEW

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 04-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 00-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. 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 fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556. Thus, “[if] the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 01-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Villar v. Industrial Metal Recyclers, 12-0319, p. 3 (La.App. 1 Cir. 11/2/12), 111 So.3d 372, 375, 2012 WL 5377676.

| .ASSIGNMENT OF ERROR NO. 3

Hanson asserts that the OWC erred in finding that Mr. Taylor is permanently and totally disabled as a result of the work-related accident that occurred on May 19, 1995. Louisiana Revised Statutes 23:1221(2)(c) provides in pertinent part:

[Compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 02-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469-70.

As set forth in La. R.S. 23:1226(D), before a claimant is found to be permanently and totally disabled, it shall be determined whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education. Severio, 02-0359 at p. 10, 845 So.2d at 471.

In its reasons for judgment, the OWC explained its determination that Mr. Taylor was permanently and totally disabled, as follows:

[This tribunal] now will address the issue of permanent and total disability pursuant to the statutory provisions of the Louisiana Revised Statute [23:1221(2) ] and the applicable jurisprudential laws hearing the specific facts and evidence in the ease so far.
[fiMr. Taylor and his vocational rehabilitation expert, Neil Barre, B-a-r-r-e, were the only live witnesses presented by the claimant. The defendant called no live witnesses.
Mr. Taylor testified his daily activities are extremely limited and that he lives a poor quality of life, admitting having a heart valve replacement surgery, diabetes, and is drawing Social Security Disability in the amount of roughly $1,476 per month.
He emphasized that engaging in gainful work is beyond his physical limitations. Neil Barre, who qualified as an expert before [this tribunal], testified that due to Taylor’s third grade reading level, together with other elementary-level mental abilities, having reviewed the medical data reports, et cetera, these along with his physical restrictions, and the fact that in his expert opinion there exist no available jobs for Mr. Taylor, rendered Mr. Taylor unemployable.
On cross examination of Mr. Barre[,] he was questioned whether or not Taylor could physically perform the duties, tasks and responsibilities of the position of a ticket taker.
Barre responded that there were no available positions suitable for this claimant. Barre took the proverbial high road in his response, ... this [tribunal] will, in this determinative process by commenting on the ticket taker dyno [sic] defense.
Certainly Taylor’s overall general health has deteriorated over the years. He has serious concerns unrelated to the condition directly resulting from his injury of May [1995].
Also, the most current medical records of the treating physician, Dr. Clark, with whom Taylor has treated, again, on dozens of occasions over nearly 20 years, [continue] to disable Taylor and [Dr. Clark] requests, as a result of Taylor having nerve root impingement caused by L5-S1 disc herniation with radiating leg pain, use of multiple pain medications [which] is contributory to Taylor’s abilities and/or lack thereof.
After considering the evidence taken as a whole, the medical evidence of Dr. Clark proves to be reliable, consistent and accurate as it pertains to Taylor’s work-related injury and present condition as a result thereof, [this tribunal] in weighing all of the evidence finds Taylor has met his burden by clear and convincing evidence pursuant to Louisiana Revised Statute [23:1221(2) ], and is permanently and totally disabled, and this disability is a direct result of the lingering residual effects of the May 19, [1995] accident with this employer.

Mr. Hanson was 69 years old at the time of the trial, and has an eighth-grade education. His work history consists of manual labor positions. He has had no vocational training or technical training and has no degrees or certifications. Mr. |7Taylor testified that he has pain in his back and legs, has great difficulty standing, sitting, or walking for too long and that he experiences pain if he lifts heavy objects. He experiences difficulty bending, stooping, and squatting.

While Hanson asserts that Mr. Taylor is retired and has no desire to return to work, a close look at the testimony shows that Mr. Taylor testified that he would go back to work if he could and that he considered himself retired because he could not go back to work.

Mr. Taylor began treatment with Dr. John E. Clark, a physiatrist at Louisiana Spine & Sports Medicine, in 1997 for the work-related injuries, and he has continued receiving medical care from Dr. Clark through the date of trial. Dr. Clark issued a report on November 4, 2010, which stated that Mr. Taylor would not be able to return to a competitive job market.

Following an extensive review of the record and exhibits in this matter, we are unable to say that the OWC erred in determining that based on Mr. Hanson’s physical restrictions, the lack of vocational rehabilitation, his limited education, and lack of transferable skills, he is permanently and totally disabled and therefore entitled to benefits. The OWC made specific findings that Mr. Hanson was a credible witness and that he was unemployable. The OWC’s judgment concerning the finding of permanent and total disability and the award of benefits for same is reasonable and supported by the record.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error Hanson asserts that the OWC erred in finding that a spinal cord stimulator was reasonable and necessary medical care when both the employer’s choice of physician, Dr. Wayne Lindemann, an expert in the field of physical medicine and rehabilitation, and the independent medical examiner, Dr. |RJohn Nyboer, an expert in the field of physical medicine and rehabilitation, with a subspe-cialty in pain management, testified that Mr. Taylor would not benefit from this treatment.

Louisiana Revised Statutes 23:1203 provides that the employer shall furnish all necessary drugs, supplies, hospital care and services, and medical and surgical treatment. In the reasons for judgment, the OWC explained why it found the spinal cord stimulator to be reasonable and necessary medical care:

The claimant’s treating physician prescribed a spinal cord stimulator on or about April 29, 2008.
Consequently Hanson sent Mr. Taylor to defendant’s choice of physician, Dr. Lindemann, who essentially opined that the stimulator should not be administered primarily due to the lack of objective findings concerning Mr. Taylor’s complaints of back pain, noting Taylor is neurologically intact.
Thereafter the [OWC] appointed its IME, Dr. [Nyboer], who also concluded Taylor was not a candidate for a spinal cord stimulator.
However, this [tribunal] has reviewed the totality of the medical evidence of record. It concludes that Dr. Clark continues to request authorization for this treatment, and in doing so articulates sound medical reasoning for its necessity.
Given the doctor’s professional and recent request it is determined to be reasonable and necessary and thus approved.
Noteworthy also to this [tribunal] is the fact that Dr. Clark has continued to see Mr. Taylor over the years, many years, and at least on dozens of occasions, whereas the other physicians mentioned, who disagreed with Clark’s recommendation of the spinal cord stimulator, had only seen Mr. Taylor on a limited basis.

Hanson argues that it was not until after the OWC granted judgment terminating benefits on March 12, 2008, that one month later, on April 29, 2008, Dr. Clark recommended a trial with a spinal cord stimulator. However, our review of the evidence shows that Dr. Clark actually first recommended a spinal cord stimulator to Mr. Taylor on January 29, 2008.

bWhen Dr. Lindemann saw Mr. Taylor in July 2009, the most recent medical record he had was from January 2008. Dr. Lindemann evaluated Mr. Taylor on one occasion. Dr. Lindemann testified that he believed a spinal cord stimulator was not appropriate because Mr. Taylor did not exhibit radiculopathy. However, we note that Dr. Clark’s medical records report radiculopathy, and Dr. Nyboer testified that Mr. Taylor had chronic radicular pain. Dr. Lindemann testified that other medical options must be ruled out prior to proceeding with a spinal cord stimulator, however, the only option he suggested for Mr. Taylor was a continuation of pain medication.

Dr. Nyboer testified that he examined Mr. Taylor one time. He testified that Mr. Taylor had chronic low-back pain and chronic right-lower-extremity radicular pain. Dr. Nyboer testified that he did not think Mr. Taylor was an “ideal candidate” for a spinal cord stimulator due to his heart condition.

As a general rule, while the trier of fact is required to weigh the testimony of all medical witnesses, the testimony of the treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Clark v. Godfrey Knight Farms, Inc., 08-1723, p. 16 (La.App. 1 Cir. 2/13/09), 6 So.3d 284, 295, writ denied,, 09-0562 (La.5/29/09), 9 So.3d 163. The opinion of the TME is not conclusive, and the OWC must evaluate all of the evidence presented in making a decision as to the claimant’s condition. The significant weight given to the opinion of the IME can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. McKinney v. Coleman, 36,-958, pp. 5-6 (La.App. 2 Cir. 3/14/03), 839 So.2d 1240, 1244. The OWC deferred to the treating physician due to the extensive length of treatment by the treating physician. Even if this court would have decided this issue differently, this court | inmay not reverse if the fact finder’s findings are reasonable and not manifestly erroneous. Sistler, 558 So.2d at 1112. Based on our review of the record, we cannot say that the OWC’s determination that the spinal cord stimulator was reasonable and medically necessary was manifestly erroneous.

ASSIGNMENT OF ERROR NO. 2

Hanson asserts that the OWC erred in finding that Mr. Taylor is entitled to his choice of treating physicians in the area of orthopedic surgery and neurosurgery. Louisiana Revised Statutes 23:1121 provides that the employee shall have the right to select one treating physician in any field or specialty. Mr. Taylor’s treating physician, Dr. Clark, made a referral to an orthopedic or neurosurgeon after recommending a spinal cord stimulator. After a review of the record, we cannot say that the OWC erred in finding that Mr. Taylor was entitled to his choice of physicians in the area of orthopedic surgery or neurosurgery.

THE ANSWER TO THE APPEAL

In his answer to the appeal, Mr. Taylor asserts that the OWC erred by improperly ruling that the permanent and total disability benefits were awarded only from the date of signing the judgment, and in the alternative, improperly ruling on December 3, 2010, that Mr. Taylor was limited in discovery to documents from April 2006, forward. The answer to the appeal is denied.

Therefore, for the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. The answer to the appeal is denied. Costs are assessed against Hanson.

AFFIRMED.

      . Although titled as an answer to the first supplemental and amending disputed claim for compensation, we note that Hanson’s answer was filed after the second supplemental and amending disputed claim for compensation had been filed.

      . A physiatrist is a medical doctor who specializes in physical medicine, rehabilitation, and pain medicine.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    WRW PROPERTIES, LLC, Plaintiff-Appellant v. The CITY OF SHREVEPORT, Defendant-Appellee.
    No. 47,657-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    Weiner, Weiss & Madison, Shreveport, LA, by John M. Madison, Jr., for Appellant.
    The Malone Law Firm, L.L.C., Shreveport, LA, by Mary Ellen Winchell, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

1/We decide here whether this record justifies the district court’s affirmation of the Shreveport City Council’s rejection of an application for a building site plan. We hold that it does not, and reverse.

This is not a zoning dispute, and it is not a separation of powers matter. This case is about a city council arbitrarily preventing a property owner from using its property exactly as zoned. This record does not support this blatant violation of plaintiff corporation’s use by right.

Several years after the subject property was zoned 1-1 (Light Industrial), an adjoining tract was zoned for residential purposes by the Shreveport City Council, allowing construction of Sagewood Subdivision. In hindsight, it is clear that residential zoning of the contiguous property was a poor decision, as conflicts such as this lawsuit were likely to occur.

Some residents of Sagewood objected to WRW’s request to construct a fourth building on the site, even though:

1. A strikingly similar building plan for a third building on the property had been approved by the council only eight months before the Council rejected this plan;

2. WRW complied with the Metropolitan Planning Commission’s modification suggestions that it plant trees along the boundary with Sagewood and construct an 8-foot wooden fence between the properties;

3. No complaint was made that any proposed actions of WRW violated any city zoning regulations;

4. WRW was seeking a use by right, which should be presumptively approved; and

5. Adverse decisions as to a use by right should be strictly scrutinized.

The Metropolitan Planning Commission approved the request. The dispute moved to the Shreveport City Council.

12At the council meeting in question, only one person spoke against the building plan. The speaker made several incorrect claims that are belied by documentary filings, as well as by basic common sense. His objections were actually putative zoning issues and were inappropriate to this situation.

WRW was requesting approval of a building site plan in conformity with all zoning regulations. If the actual use of the proposed building subsequently violated any zoning requirements, the city would always be able to seek redress in the courts, for the enforcement of any zoning laws.

This is the third time in the last five years that we have reversed Shreveport City Council actions that have violated a property owner’s use by right. Two cases from 2009, authored by Judge Moore, reversed this same council, on the same grounds for which we reverse today.

| ^Subsection (a) of Shreveport Ordinance § 106-44 provides guidance as to the appropriate analysis of these disputes. Adequate compliance with the controlling ordinance is not reflected in this record.

If the council’s action here is lawful, there would be no need for zoning regulations. Without consistent zoning ordinances, there would be no planned and orderly growth of municipalities. Replacing long-term rationality with short-term expediency, ie., looking at each situation on a purely ad hoc political basis, is no way to run Mayberry, much less Shreveport.

Zoning regulations must be uniformly applied within each district or zone of the municipality. Jenkins v. St. Tammany Parish Police Jury, 98-2627 (La.7/2/99), 736 So.2d 1287.

|4This arbitrary action of the Shreveport City Council is contrary to law and adverse to our basic precepts of equal protection and due process. The plaintiff here sought no variance and no re-zoning. What the plaintiff corporation wanted to do was to utilize its property in strict compliance with all zoning ordinances, after making the changes required by the Metropolitan Planning Commission. The plaintiff is entitled to exercise its use by right.

DECREE

We reverse the trial court and render judgment in favor of WRW Properties, L.L.C., approving construction of the proposed building, subject to the conditions required by the Metropolitan Planning Commission.

No costs of court are assessed, as per La. R.S. 13:4521.

REVERSED AND RENDERED.

      . Two examples:
      Claim # 1. The speaker alleged that the building had burned and emitted smoke.
      Answer to # 1. There are three buildings on the property, none of which have burned. Certainly the PROPOSED building has never burned, since it doesn’t exist.
      Claim # 2. The speaker further complained that the proposed building would back up to within seven feet of his back door.
      Answer to #2. The drawing annexed to the application clearly reflects that the correct distance is slightly over 72 feet. The speaker exaggerated by a factor of 11.

      . These two referenced opinions are directly on point and highly instructive:
      • Uniform application of land use regulations is required by La. Const. Art. VI, § 17. Urban Housing of America, Inc. v. City of Shreveport, 44,874 (La.App.2d Cir.10/28/09), 26 So.3d 226, writ denied, 2010-0026 (La.4/23/10), 34 So.3d 269.
      • Use by right is presumptively valid and should be approved. See D‘Argent Properties, LLC v. City of Shreveport, 44,457 (La.App.2d Cir.6/24/09), 15 So.3d 334, writ denied, 2009-1726 (La.11/6/09), 21 So.3d 308.

      . We realize that our opinions can be pretty dry, but it would help if the Shreveport City Council would at least consider our rulings that involve the council, particularly when the alternative is to continually repeat the same mistakes in an endless political loop.

      . Sec. 106-44. — Planning commission approvals.
      (a) Intent.
      To ensure a safe, efficient, attractive and well-ordered community and best serve the interests of public health, safety and welfare, the development plans of all non-residential uses, multi-family dwellings, planned unit developments and planned building groups are subject to review and approval by the planning commission prior to the issuance of building permits, unless specifically waived by ordinance. Moreover, in order to provide for the location of uses with unique characteristics which may be necessary or appropriate within a given district but which might otherwise adversely impact future development, existing nearby properties or the community, a classification of permitted uses is established in each district that requires the review and approval of a specific development plan by the planning commission. Planning commission approvals may be conditional, subject to any modifications specified. Relevant objectives for the development include, but are not limited to:
      (1) That it be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity;
      (2) That it not be hazardous or disturbing to existing or future nearby uses, property or persons through activities, processes, materials, equipment or operations that produce excessive traffic, noise, smoke, fumes, glare or odors without adequate means of control;
      (3) That it be adequately served by essential public facilities without the need for excessive additional requirements at public expense that is detrimental to the economic welfare of the community; and
      (4) That it not result in the destruction, loss, damage or reduction of the public enjoyment of a natural, scenic or historic feature of major importance.


author: HUGHES, J.

text:
    Brett GABRIEL v. LAFOURCHE PARISH WATER DISTRICT.
    No. 2012 CA 0797.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 2013.

      Brett Gabriel, Raceland, LA, Plaintiff/Appellant Pro Se.
    Denise M. Ledet, Metairie, LA, for Defendant/Appellee, Lafourche Parish Water District.
    Before PARRO, WELCH, and HUGHES, JJ.
   HUGHES, J.

12This is an appeal of a judgment of the Office of Workers’ Compensation (OWC), granting defendant/appellee’s exception of res judicata and dismissing plaintiff/appellant’s claim with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Brett Gabriel worked as a crewman for the Lafourche Parish Water District (LPWD). During the course of his employment, he was involved in several work-related accidents. The last occurred on September 12, 2007, when he fell into a hole and allegedly suffered injuries to his neck, shoulder, and knees. LPWD paid some of Mr. Gabriel’s medical expenses from the date of the accident until January 1, 2008, and also paid him temporary total disability (TTD) benefits from the date of the accident until January 7, 2009.

On December 11, 2008 Mr. Gabriel filed a “Disputed Claim for Compensation” against LPWD, seeking payment for an MRI, TENS unit supplies, pain management treatment, and authorizations for cervical surgery and a motorized wheelchair. Mr. Gabriel also sought penalties and attorney’s fees for LPWD’s failure to approve the requested medical treatment, and he marked as. applicable in the dispute, “Workers’ Compensation Rate is Incorrect-Should be,” but left blank the space where he should have indicated the specific dollar amount that he alleged he was entitled to.

Trial was held on November 18, 2009, and May 10, 2010. Mr. Gabriel had received medical treatment for severe osteoarthritis in his knees prior to the September 2007 work-related accident. The parties stipulated that the accident caused an aggravation of that pre-existing condition. At the conclusion of the evidence, the OWC found that Mr. Gabriel had not |3sustained a neck or shoulder injury in the September 2007 accident, but that he had sustained a temporary aggravation of his pre-existing knee condition. The OWC further found that the aggravation had completely resolved by March 3, 2008. Thus, judgment was rendered in favor of LPWD on all issues except liability for pain management treatment for the aggravation of the knee injury from January 2, 2008, to March 3, 2008. Mr. Gabriel appealed that judgment, which was affirmed by this court on December 21, 2011. Gabriel v. Lafourche Parish Water District, 2011-0930 (La.App. 1 Cir. 12/21/11), 80 So.3d 780. No appeal of this court’s decision was filed.

On September 14, 2011, while that appeal was pending, Mr. Gabriel filed a second “Disputed Claim for Compensation” for the same September 12, 2007 accident. In the new claim, Mr. Gabriel again requested disability status and wage benefits, this time specifically noting that he was requesting supplemental earnings benefits (SEBs) from January 7, 2009 (the date on which LPWD terminated his weekly TTD benefits), to present. He also sought additional medical treatment of both knees, the reinstitution of vocational rehabilitation services, and penalties and attorney’s fees for LPWD’s failure to pay the SEBs. LPWD filed an exception raising the objection of lack of subject matter jurisdiction, alleging that the issues raised were the same issues pending on appeal to this court. Mr. Gabriel then amended his claim to dismiss all claims except his claim for SEBs and the attorney’s fees and penalties arising therefrom. LPWD again urged the exception of lack of subject matter jurisdiction and also filed exceptions raising the objections of res judicata or alternatively, prescription.

14After a hearing, the OWC determined that Mr. Gabriel’s entitlement to SEBs had been “covered” at the first trial, explaining that “indemnity is a subcategory of disability” and that its finding of no disability barred any subsequent claims for indemnity. The OWC further noted that had a disability been found, indemnity would have been awarded at the trial. On February 20, 2012, judgment was ■ rendered, sustaining the exception of res judi-cata and dismissing Mr. Gabriel’s claims with prejudice. Mr. Gabriel appeals and makes the following assignments of error:

1. The trial judge committed manifest error denying claim for SEB benefits based on a change in condition from the previously suffered aggravation.
2. In her written reasons for judgments deny claim for SEB payment ruling that all indemnity payments are the same, meaning a denial of TTD benefits are the same as a denial of all indemnity benefits even if the claim for SEB wasn’t specifically mentioned.

LAW AND ANALYSIS

In general, the doctrine of res judicata, as set forth in LSA-R.S. 13:4231, bars a subsequent action when all of the following elements are satisfied, in a prior action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. See Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

| /Louisiana Revised Statutes 13:4231 was substantially amended in 1990, and it now embraces the broad usage of res judicata to include both claim preclusion (traditional res judicata) and issue preclusion (collateral estoppel). Under issue preclusion or collateral estoppel, resolution of an issue of fact or law essential to the determination of the dispute precludes relitigation of the same issue in a different action between the same parties. Chaisson v. Central Crane Service, 2010-0112, pp. 5-6 (La.App. 1 Cir. 7/29/10), 44 So.3d 883, 886-87 (citing LSA-R.S. 13:4231, 1990 Comment (b); Mandalay Oil & Gas, L.L.C. v. Energy Development Corporation, 2001-0993, p. 9 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, 135-36, writ denied, 2004-2426 (La.1/28/05), 893 So.2d 72).

However, as applied to workers’ compensation claims, res judicata does not bar re-litigation of claims subject to the OWC’s modification jurisdiction, as set forth in LSA-R.S. 23:1310.8(A) and (B). See Magee v. Abek, Inc., 2005-0388, pp. 2-3 (La.App. 1 Cir. 5/5/06), 943 So.2d 372, 373-74. The modification power of LSA-R.S. 23:1310.8(A) and (B) exists for the purpose of modifying awards due to a change in the worker’s condition. Because changes in medical condition and disability status are dynamic and ongoing by their nature, the legislature enacted LSA-R.S. 23:1310.8(A) and (B) to afford needed flexibility to ensure that benefits correspond to such changes. Res judicata thus cannot preclude litigation seeking a change in the amount of compensation benefits based upon a change in disability. Chaisson v. Central Crane Service, 2010-0112 at p. 9 n. 6, 44 So.3d at 888 n. 6.

However, in the present case, the original OWC judgment held that Mr. Gabriel’s disability after March 3, 2008, was not related to the work accident. That judgment, affirmed by this court on December 21, 2011, was not further appealed and has become final. While the judgment did award Mr. Gabriel medical expenses from January 2, 2008 to March 3, 2008, and he thus may be entitled to seek a modification of that award, the modification authority of the OWC is only available if a claimant applies for same on the grounds of a change in condition. See LSA-R.S. 23:1310.8(B). Mr. Gabriel made no such claim. He did not allege that he suffered any change in his condition subsequent to the trial. Instead, he continued to argue that the OWC erred, based upon the evidence before it at the trial. Specifically, he pointed out that he was returned to work on March 3, 2008 |7with a “light duty” work restriction. Because he had no work restrictions prior to the September 2007 accident, Mr. Gabriel alleged that the OWC erred in finding that the aggravation had resolved on March 3, 2008, and that thereafter, he suffered no degree of disability related to the accident.

Again, a judgment of the OWC can only be modified “on the ground of a change in conditions.” LSA-R.S. 23:1310.8(B); See Anzalone v. Allstate Ins. Co., 97-0866 (La.App. 1 Cir. 4/8/98), 714 So.2d 18, writ denied, 98-2180 (La.11/13/98), 730 So.2d 939.

In his request for modification, Mr. Gabriel claimed entitlement to SEBs and alleged 'that because he did not seek SEBs in the first claim, he is not barred under res judicata from doing so now. To establish an entitlement to SEBs, Mr. Gabriel must prove that he was injured as a result of a work-related accident, and that the injury resulted in a disability that prohibits him from earning at least 90% of his pre-accident wages. However, the issue of disability in this case has been resolved. The disability status was a previously litigated issue of fact, which is essential to the determination of whether Mr. Gabriel is now entitled to SEBs. It was evident at the hearing that Mr. Gabriel understood that entitlement to any form of wage benefits depended upon his first establishing that his disability was causally related to the work accident:

THE COURT: So regarding the disability status, you’re showing the connection of indemnity. If disability was determined in your favor, then, of course, you’re saying indemnity benefits would have to be addressed?
MR. GABRIEL: Exactly, Your Honor.

| sHowever, disability was not determined in Mr. Gabriel’s favor. Absent an allegation or evidence that his disability status has changed in any way since the last day of the original trial on May 10, 2010, Mr. Gabriel cannot seek a modification of the ruling on that issue. See Pal v. Stranco, 10-1507 (La.App. 1 Cir. 8/3/11), 76 So.3d 477, 483, writ denied, 2011-1834 (La.11/4/11), 75 So.3d 925; see also Magee v. Abek, Inc., 943 So.2d at 374; Anzalone, 714 So.2d at 20; Fox v. Reynolds Indust. Contr., 44,938 (LaApp. 2 Cir. 1/27/10), 33 So.3d 895, writ denied, 2010-0676 (La.5/28/10), 36 So.3d 250.

CONCLUSION

For the reasons assigned, the judgment of the OWC granting the exception of res judicata and dismissing the suit is affirmed. Costs of this appeal are assessed to plaintiff/appellant, Mr. Brett Gabriel.

AFFIRMED.

      . While not apparent in the record before us, LPWD had obviously paid for the medical treatment for which it was liable from the date of the accident through January 1, 2008. As such, the judgment held that only the pain management treatment from January 2, 2008 to March 3, 2008 was owed. Because LPWD voluntarily paid Mr. Gabriel TTD benefits until January 7, 2009, no award of compensation benefits was made.

      . Louisiana Revised Statute 13:4231 provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

      . Louisiana Revised Statute 23:1310.8(A) and (B) provide, in pertinent part:
      A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123....

      ' B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

      . Mr. Gabriel filed a second claim for compensation benefits rather than a petition for modification of a prior award as provided in LSA-R.S. 23:1310.8. However, at the hearing on the exceptions, he made an oral motion to modify the alleged prior award, which was granted. Moreover, courts have traditionally treated second suit filings such as this as requests for modification. See Fox v. Reynolds Ind. Contractors, 44,938 (La.App. 2 Cir. 1/27/10), 33 So.3d 895, writ denied, 2010-0676 (La.5/28/10), 36 So.3d 250; see also Matheme v. Gold Crest Cleaners, Inc., 486 So.2d 943 (La.App. 1 Cir.1986). As such, the second disputed claim for compensation will be treated as a petition for modification of a prior award based upon an alleged change in disability status.

      . The OWC’s reasons for judgment clearly hold that Mr. Gabriel's pre-existing severe osteoarthritis, not the aggravation of that condition caused by the accident, was the reason that he was released to work with restrictions: "light duty was due to his pre-existing condition, and not any aggravation. It was just time that the employee changed his job duties. The aggravation had nothing to do with it. The aggravation was mainly for [necessitated] medical treatment to bring him back to his severe pre-existing condition.” Gabriel v. LPWD, 11-0930 (La.App. 1 Cir 12/21/11), 80 So.3d 780, 782.


author: MADELEINE M. LANDRIEU, Judge. BONIN, J.,

text:
    MORETCO, INC. v. PLAQUEMINES PARISH COUNCIL, et al.
    No. 2012-CA-0430.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.

      James M. Garner, Elwood F. Cahill, Jr., Matthew C. Clark, Sher, Garner Cahill Richter Klein & Hilbert, LLC, New Orleans, LA, for PlaintiffiAppellant.
    David F. Waguespack, Stephen P. Scul-lin, Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, New Orleans, LA, for Defendant/Appellees, Plaquemines Parish Council, et al.
    L.V. Cooley, IV, Plaquemines Parish Government, Special Assistant Parish Attorney Belle Chasse, LA, for Defendant Plaquemines Parish Government, et al.
    Gladstone Jones, H.S. Bartlett, III, New Orleans, LA, Amicus Curiae, National Urban League Of Greater New Orleans.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

LThe plaintiff, Moreteo, Inc., appeals the trial court’s denial of it petition for preliminary injunction. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

In June of 2008, Moreteo, a Nevada corporation, entered into an agreement to purchase a thirty-five acre tract of land located in Plaquemines Parish with the intention of developing the property into a shopping center anchored by a grocery or department store. Subsequently, Moreteo entered into negotiations with Walmart and now intends Walmart to be the anchor store.

On April 22, 2010, in anticipation of developing a Master Plan for Plaquemines Parish, the Parish Council adopted Ordinance 10-109 [hereinafter referred to as “the first moratorium ordinance”], which provided a moratorium until the end of the calendar year on the issuance by any parish department or agency of permits for any building activity or work that exceeded thirty thousand dollars in cost without special permission of the Council. The ordinance also provided that the Council could consider releasing from the moratorium any qualified permit applicant who presented sufficient evidence that the following conditions had been met to the satisfaction of the Council:

(a) Zoning compliance
(b) Planning compliance
(c) Traffic impact studies
(d) Impact fees for any improvements to public access roads
|4(e) Impact fees for water and/or sewerage
(f) Impact fees for drainage
(g) Engineering considerations
(h) Such other reasonable issues before the Council

Prior to the Council’s adoption of the first moratorium ordinance, Moreteo participated in several meetings with various parish officials concerning Moretco’s planned shopping center development, which was to be located the district represented by Councilman Keith Hinkley. During these meetings, the officials voiced certain concerns about the plans but seemed to have a favorable attitude toward the project. Moreteo agreed to make changes to address these concerns. However, Moreteo did not apply for a building permit either before or during the period of time the first moratorium was in effect. That moratorium expired on December 31, 2010.

On January 10, 2011, Moreteo filed an application for a building and construction permit for a “Commercial development to include Wal-Mart, Retail, Business and Restaurant uses.” On January 27, 2011, the Council adopted Ordinance 11-13 [“the second moratorium ordinance”], which established a new moratorium that would expire on December 31, 2011, or upon the completion of a Master Plan for the parish. Ordinance 11-13 provided that the second moratorium 15“shall be deemed effective as of January 1, 2011.” The provisions of the second moratorium ordinance were virtually identical to those of the first, except that “Fire, EMS and police response time impacts” was added to the list of conditions for which at a permit applicant had to present evidence in order to be considered for exemption from the moratorium. On March 10, 2011, the Council adopted Ordinance 11-49 [hereinafter referred to as “the zoning amendment ordinance”], which amended the Comprehensive Zoning Ordinance to provide that no retail establishment with a floor area in excess of 25,000 square feet would be permitted in certain districts “except as a Planned Unit Development subject to the requisite site plan review process of the Plaque-mines Parish Planning Development Board and final approval by the Plaquemines Parish Council.”

In April of 2011, Moreteo filed this action against Plaquemines Parish, the Plaquemines Parish Council and its members, and Plaquemines Parish President William “Billy” Nungesser [hereinafter collectively referred to as “the Council”] seeking injunctive and declaratory relief to prohibit the application of the second moratorium ordinance and the zoning amendment ordinance to Moretco’s planned shopping center development. Moretco’s request for a preliminary injunction was tried on January 4-6, 2012. On February 22, 2012, the trial court rendered judgment with written reasons denying the preliminary injunction. Moreteo appeals that judgment.

ISSUES

| ^Moreteo contends that the trial court erred by declining to grant a preliminary injunction for the following reasons:

(1) The ordinances are unconstitutionally vague;
(2) The retroactive application of the ordinances to Moretco’s permit application would violate Moretco’s constitutional rights; and
(3) The passage of the ordinances was an arbitrary and capricious abuse of the Council’s power motivated by Councilman Hinkley’s racial bias.

APPLICABLE LAW

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties pending trial on the merits. Sessions, Fishman & Nathan, L.L.P. v. Salas, 2004-1790 (La.App. 4 Cir. 5/25/05), 905 So.2d 373, 377. To prevail in the trial court on a petition for preliminary injunction, the petitioner is required to establish by prima facie evidence that: (1) it will suffer irreparable injury, loss, or damage if the injunction is not issued; (2) it is entitled to the relief sought; and (3) it will likely prevail on the merits of the case. Limousine Livery, Ltd. v. A Airport Limousine Serv., L.L.C., 2007-1379 (La.App. 4 Cir. 3/12/08), 980 So.2d 780, 783. A showing of irreparable injury is not required in cases where the conduct sought to be restrained is unlawful, such as when the conduct constitutes a direct violation of a prohibitory law. Asaro v. City of New Orleans, 2010-0572, p. 3 (La.App. 4 Cir. 12/22/10), 54 So.3d 1214, 1217, writ denied, 2011-0353 (La.4/1/11), 60 So.3d 1257. When deciding whether a preliminary injunction should issue, trial judges have great latitude of discretion in |7choosing whether to grant or deny the relief requested. E. New Orleans Neighborhood Advisory Comm’n v. Levy Gardens Partners 2008, LLC, 2009-0326, p. 5 (La.App. 4 Cir. 7/15/09), 20 So.3d 1131, 1135.

An appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction. La. C.C.P. art. 3612; Ellis Const., Inc. v. Vieux Carre Resort Properties, L.L.C., 2005-1109 (La.App. 4 Cir. 6/7/06), 934 So.2d 206, 209. The appellate court should not overturn the denial or dissolution of a preliminary injunction absent a clear abuse of the tidal court’s great discretion. FQCPRQ v. Brandon Investments, L.L.C., 2005-0793 (La.App. 4 Cir. 3/29/06), 930 So.2d 107, 109.

DISCUSSION

Moreteo argues that the trial court abused its discretion by declining to grant a preliminary injunction prohibiting the Council from applying the second moratorium ordinance and the zoning amendment ordinance to Moretco’s permit application. Moreteo admits that it has not sought the Council’s approval for its development as would be required under the provisions of each of those ordinances before any permits could be issued. Because neither ordinance has yet been applied to Moreteo, in order to show its entitlement to a preliminary injunction, Moreteo had to demonstrate in the trial court that each ordinance was invalid on its face. Moreteo thus contended in the trial court that the ordinances are unconstitutionally vague; that applying these ordinances retroactively to Moretco’s previously-filed permit application would unconstitutionally deprive Moreteo of |8vested rights; and that the passage of these ordinances was an abuse of the Council’s power unfairly targeting the Moreteo project. Moreteo did not argue that the trial court’s failure to grant the preliminary injunction would result in irreparable harm, but that an exception to the irreparable harm requirement applies here because the conduct sought to be restrained is unlawful.

In its Reasons for Judgment, the trial court found that Moreteo failed to show that it was entitled to the injunction or that it would likely prevail on the merits. On appeal, Moreteo seeks reversal of this judgment by reiterating the same arguments it made in the trial court as to the invalidity of the ordinances.

I. Vagueness

Citing McCauley v. Albert E. Briede & Son, 231 La. 36, 90 So.2d 78 (1956), Moreteo argues that the ordinances are vague because they fail to establish any rule or standard to guide the officials charged with their administration and therefore leave their interpretation, administration and enforcement to the “unbridled discretion” of the governing authority. McCauley involved a “variance” or “special use” provision of a city zoning ordinance that gave the city council the right, by special permit, to authorize the location of a mortuary in any district where one would otherwise be prohibited. The ordinances presented here are clearly different from the provision invalidated in McCau-ley. The second moratorium ordinance passed by the Parish Council in this case requires that certain information, such as “traffic impact studies” and “Fire, EMS, and police response time impacts” be submitted and considered by the Council in making its decision. The zoning amendment ordinance requires that a retail establishment | Jarger than 25,000 square feet be submitted as a Planned Unit Development and subjected to the site plan review process of the Plaquemines Parish Planning Development Board before being considered for approval by the Council. Unlike the provision in McCauley, which provided no standard or guide, these ordinances include requirements and guidelines to aid the Council in its decision-making. However, Moreteo argues that these requirements are not well-defined or sufficiently specific.

The Louisiana Supreme Court has stated:

A law is fatally vague and offends due process when a person of ordinary intelligence does not have a reasonable opportunity to know what is prohibited so that he may act accordingly or if the law does not provide a standard to prevent arbitrary and discriminatory application. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). Laws regulating businesses are held to a lesser standard of “definiteness” than statutes imposing criminal penalties. Carlin Communications, Inc. v. South Central Bell Telephone Co., 461 So.2d 1208, 1214 (La.App. 4th Cir.1984).
Economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.

Med Exp. Ambulance Serv., Inc. v. Evangeline Parish Police Jury, 96-0543 (La.11/25/96), 684 So.2d 359, 367 (quoting Village of Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94, 71 L.Ed.2d 362) (Emphasis supplied). Therefore, to successfully challenge an ordinance as vague, “the opponent of the ordinance must prove that the ordinance is vague ‘not in the sense that it requires a person to conform ... to an imprecise but comprehensible normative standard, but rather in the sense that no standard conduct is specified at all.’ ” Id., p. 11, 684 So.2d at 367 (quoting Village of Hoffman Estates, supra, 455 U.S. at 497, n. 7, 102 S.Ct. at 1191, n. 7).

As the trial court noted in its Reasons for Judgment, Moreteo had the opportunity to submit to the administrative process by presenting its project to the Council for a final decision, but Moreteo chose not to do so. Thomas McAlister, the vice-president and corporate representative of Mor-eteo, testified before the trial court that Moreteo never asked the Council to clarify or interpret the requirements of the ordinances, and that he decided not to seek the Council’s approval for the project because he believed to do so would have been futile. According to the trial court, because Moreteo failed to exhaust its administrative remedies, Moreteo “was not in a position” to challenge the ordinances as being vague. Essentially, the trial court found Moretco’s action to be premature.

Regardless of whether Moretco’s action is premature, however, we agree with the trial court that Moreteo failed to meet its burden of showing that these ordinances are impermissibly vague. To do so Moret-eo would have to show that the challenged ordinances lack any standard to guide the Council so that any decisions made would be completely arbitrary. A plain reading of the ordinances themselves refutes Mor-etco’s contention. The trial court did not abuse its discretion by declining to enjoin the application of the ordinances on account of vagueness.

II. Retroactivity

Moreteo next argues that applying the ordinances retroactively to its previously-filed permit application would violate Moretco’s constitutional right to due process. It is undisputed that Moretco’s permit application regarding this property was filed prior to the Council’s passage of the second moratorium |n ordinance and the zoning amendment ordinance. It is also undisputed that Moretco’s permit application had not been acted upon and was pending at the time these ordinances were adopted. At trial, Jeffrey Moore, the CEO of Moreteo, testified that Moreteo has spent approximately one million dollars to date developing its proposed shopping center and has obligated itself to buy the property in question. Moreteo representatives also testified that they had participated in several meetings with various parish officials concerning the project and had been encouraged by the progress made. The trial court did not discredit this testimony. However, it found these facts to be irrelevant to the legal issue presented here, which is whether filing an application for a permit gives the applicant a vested property right of which he may not be deprived without due process of law.

Louisiana courts have clearly resolved this issue by holding that applying for a permit does not afford the applicant any vested rights. In the landmark case of Palermo Land Co., Inc. v. Planning Comm’n of Calcasieu Parish, the Louisiana Supreme Court stated:

Everyone holds his property subject to the police power. Because a person applies for a permit at a time when it might be lawfully granted does not give him a vested right to the permit. An ordinance may be validly passed after the making of such application which would prohibit the issuance of the permit.

Id., 561 So.2d 482, 488 (La.1990) (quoting State ex rel. Manhein v. Harrison, 164 La. 564, 114 So. 159, 163 (1927)). As this court has recently reiterated:

Vested rights do not simply accrue “because a person applies for a permit at a time when it might be lawfully granted.” Id. [Palermo, supra, at 488] Accordingly, “[t]he only zoning cases in which vested rights are properly an issue are those in which the opponent of the ordinance has obtained a building permit, has begun construction, and has become liable for work and materials.” Id. at 487 n. 4 (citing Dunn v. Parish of Jefferson, 256 So.2d 664, 667 (La.App. 4 Cir. 01/10/72), writ refused, 260 La. 1137, 258 So.2d 382 (1972)).

E. New Orleans Neighborhood Advisory Comm’n v. Levy Gardens Partners 2008, LLC, supra, p. 8, 20 So.3d at 1136-37.

As it did in the trial court, Moretco cites Asaro v. City of New Orleans, 2010-0572 (La.App. 4 Cir. 12/22/10), 54 So.3d 1214, in support of its argument that the ordinances may not be applied retroactively. Like the trial court, we find Moretco’s reliance upon this case to be misplaced.

In Asaro, this court made the following statement, upon which Moreteo relies:

AHEPA argues that because its permit application was made prior to the date that this motion was passed, the moratorium does not apply in this case. We agree.

Id., p. 9, 54 So.3d at 1220, writ denied, 2011-0353 (La.4/1/11), 60 So.3d 1257. Taken out of context, this statement appears to support Moretco’s argument. However, this statement does not represent the holding of the case. In Asaro, the permit application to which the court refers was not only filed, but also granted and the permit issued, before the enactment of the moratorium. The issues in Asaro were: (1) whether the building. permit had expired before the moratorium was enacted; and (2) if not, whether revised building plans submitted by the contractor after the permit was issued but before the moratorium was enacted constituted a new permit application, which would be subject to the moratorium. This court found that the original permit had not expired, and the revised plans did not constitute an application for a new permit. Therefore, this court held:

The uncontroverted testimony of the Director of Safety and Permits established that the submission of plan revisions on May 19, 2009 didj^not constitute a new permit application. The same permit number was used for the plan modification review. Because the submission of plan revisions for review was not an application for a pemit, the moratorium put in place by the passage of City Council Motion M-09-372 does not apply to the permit issued to AHEPA.

Id. (Emphasis supplied).

The present case differs materially from Asaro in that no permit has been issued to Moreteo. Under these circumstances, applying the second moratorium ordinance and the zoning amendment ordinance to Moretco’s pending permit application does not offend due process or deprive Moreteo of any vested right. The trial court did not abuse its discretion by declining to enjoin the application of the ordinances on this basis.

Ill Abuse of Power

Moretco’s final argument is that it is entitled to a preliminary injunction because the passage of the ordinances were improper, arbitrary and capricious actions of the Council motivated by the racial bias of Councilman Hinkley, in whose district the property is located. The trial court found that Moreteo failed to make a prima facie showing that the mere passage of the ordinances was unlawful because it was solely motivated by racial bias. In its Reasons for Judgment, the trial court also noted that insomuch as Moreteo was claiming that the ordinances would be unconstitutional in their application, that claim was premature because Moreteo had not yet submitted its permit application for approval by the Council as required by the ordinances. In view of the record, we find no abuse of discretion in the trial court’s conclusion.

|14Zoning is a legislative function, and Louisiana law affords local governing bodies, such as the Plaquemines Parish Council, the authority to amend, supplement, change, modify or repeal existing zoning ordinances. See La. R.S. 33:106; Palermo, 561 So.2d at 491. There is a presumption of validity attached to all zoning ordinances, and the burden of proving such an ordinance to be invalid lies with the challenger. Id. at 490. The Louisiana Supreme Court has described this burden as “extraordinary.” Id. Here, Moreteo had the burden to establish that the challenged ordinances have no real or substantial relationship to the general welfare of the Plaquemines Parish community. Id. The Louisiana Supreme Court set forth the scope of judicial review of zoning decisions as follows:

It is not necessary, for the validity of the ordinance in question, that we should deem the ordinance justified by considerations of public health, safety, comfort, or the general welfare. It is sufficient that the municipal council could reasonably have had such considerations in mind. If such considerations could have justified the ordinances, we must assume that they did justify them.

Palermo, 561 So.2d at 491 (quoting State ex rel. Civello v. City of New Orleans, 154 La. 271, 282, 97 So. 440, 443-44 (1923)). The Court went on to state:

A challenge to a zoning decision in Louisiana is a de novo proceeding in which the issue is whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law. Hernandez v. City of Lafayette, supra [399 So.2d 1179 (La.App. 3 Cir.1981) ]; Westside Lumber & Supply v. Parish of Jefferson, 357 So.2d 1384 (La.App. 4 Cir.1978). Whether an ordinance bears the requisite relationship to the health, safety and welfare of the public is a factual question which must be determined from the evidence in the record. If it appears appropriate and well founded concerns for the public could have been the motivation for the zoning ordinance, it will be upheld.

Id. at 492 (footnote omitted).

| lsReviewing the record before us according to the standard set forth above, we do not find that Moreteo presented sufficient evidence at the hearing to show that it will prevail on the merits in proving that the challenged ordinances could not have been motivated by any legitimate concern for the welfare of Plaquemines Parish citizens.

Jeffrey Moore of Moreteo testified that he and other Moreteo representatives met with certain parish officials, including Councilman Hinkley, on March 17, 2011 in an attempt to settle the issues that became the basis of the instant lawsuit. According to Mr. Moore, at this meeting Councilman Hinkley expressed concern about allowing Moretco’s planned development because it included a Walmart. When Mr. Moore asked Councilman Hinkley why he did not like Walmart, the Councilman responded “off the record” by saying he did not “want those people from Behrman Highway” coming into Plaquemines Parish. Mr. Moore testified that he understood the comment to mean that Councilman Hink-ley did not want African American shoppers because in Mr. Moore’s own experience, eighty to ninety percent of those who shopped at the current Walmart on Behr-man Highway in Orleans Parish were African Americans.

Plaquemines Parish President Billy Nungesser testified that in his opinion, the moratorium “sent the wrong message” to developers, and unfairly targeted Moreteo by “changing the rules in the middle of the ... game.” He also testified that he remembered Councilman Hinkley at the March 17th meeting having objected to Walmart because it might bring in people from outside the parish. In addition, Mr. Nungesser remembered that Councilman Hinkley had mentioned Behrman Highway. However, Mr. Nungesser also recalled Councilman Hinkley |1fihaving expressed other concerns about Walmart, such as its size and the traffic associated with it.

The testimony of two other participants in the March 17, 2011 meeting directly contradicted that of Mr. Moore with regard to Councilman Hinkle/s comments. Francis Jay Lobrano, a lawyer who had assisted the Council in drafting the ordinances, testified that Councilman Hinkley did not make any racist remarks regarding Walmart or people coming over from Orleans Parish to shop there. Mr, Lobrano testified that Councilman Hinkley was not opposed to Walmart itself but rather to the size of this particular proposed Walmart. Mr. Lobrano’s testimony was corroborated by that of Stan Metcalf, the Director of Economic Development and Tourism for Plaquemines Parish, who also stated that Councilman Hinkley did not make a racist comment, and that the Councilman expressed opposition to Walmart because of its size.

In addition, the video recording of the January 27, 2011 Council meeting admitted into evidence further belies Moretco’s argument regarding the reason for Councilman Hinkley’s opposition to Walmart. At the January 27th meeting, Councilman Hinkley was asked by an audience member whether the passage of the second moratorium ordinance “would kill the Walmart project.” He responded by saying that the ordinance would not necessarily kill the project, but would require that the developer’s plans be presented to the Council so that the Council could consider whether the plans were conducive to the needs of the parish in that location, particularly with regard to drainage and traffic issues.

Given the disputed testimony, the trial court found insufficient evidence to indicate that the second moratorium ordinance or the zoning amendment ordinance was motivated by racial bias or discrimination rather than by legitimate concerns |17for parish welfare. We must defer to the trial court’s determinations of credibility in deciding whether that court abused its discretion. As the trial court noted, the evidence demonstrated the existence of other, legitimate considerations that could have prompted the passage of these ordinances, such as potential traffic and drainage problems caused by larger developments, the opposition of surrounding homeowners, and the potential harm to smaller businesses. The trial court also noted that there was presently no development in the parish comparable in size to that proposed by Moreteo, another factor that supports the existence of a legitimate basis, that is — concerns related to size — for adopting the ordinances. The trial court therefore concluded that Moreteo had failed to meet its burden of showing that it would prevail at trial in proving the ordinances to be unconstitutionally arbitrary and capricious or an abuse of the Council’s power.

On appeal, Moreteo argues strenuously that President Nungesser’s testimony was sufficient to make out a prima facie case that the ordinances targeted Moretco’s development and were passed solely to kill the Walmart project for discriminatory reasons. However, because President Nungesser has no authority over zoning decisions, which are solely the function of the Council, his opinions regarding the Council’s motivation for passing the ordinances are irrelevant. President Nunges-ser testified as a fact witness, not an expert. His opinion that the Council had unfairly “changed the rules of the game” is not supported by the evidence, which demonstrates that the provisions of the first and second moratoriums are virtually identical. Moreover, his testimony, like that of any other witness, is subject to the trial court’s assessment of credibility.

1^Moreteo also argues that the trial court committed legal error by failing to apply an adverse inference to the Council’s failure to call Councilman Hinkley as a witness. The Louisiana Supreme Court has stated:

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebutta-ble and is tempered by the fact that a party need only put on enough evidence to prove the case.

Driscoll v. Stucker, 2004-589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47 (citation omitted).

Whether to apply such an inference is fully within the discretion of the trial court. Roth v. New Hotel Monteleone, LLC, 2007-0549, p. 6 (La.App. 4 Cir. 1/30/08), 978 So.2d 1008, 1012. Louisiana jurisprudence has held that the trial court’s failure to apply the negative inference is not an abuse of discretion under any one of these circumstances: where the witness’s testimony would be cumulative; where the party seeking to avail itself of the negative inference has the burden of proof on the issue that would be addressed by the witness’s testimony; and where the witness is equally available to the opposing party. As all of these circumstances are present here, and any one would have been sufficient to justify the trial court’s refusal to apply the presumption, we cannot say that the court’s failure to do so was an abuse of discretion.

Finally, Moreteo supports its argument that the passage of the ordinances was an arbitrary and capricious abuse of power by asserting that this case is analogous to Berry v. Volunteers of America, Inc., 10-832 (La.App. 5 Cir. 4/26/11), 64 So.3d 347. We disagree. In Berry, property owners who had signed |19an agreement to sell a parcel of their property to the Volunteers of America for the construction of a housing complex for elderly, low-income individuals sued the Jefferson Parish Council after it changed the zoning on that parcel from commercial to residential, thus precluding the housing complex. The property owners claimed that the ordinances accomplishing the rezoning were arbitrary and capricious, were an unconstitutional taking of their property without due process of law, and were improperly motivated by the Jefferson Parish Council’s desire to keep the elderly poor from living in Jefferson Parish. The Jefferson Parish Council filed a motion for summary judgment asserting that all actions taken by the Parish with regard to the plaintiffs’ property were proper exercises of the Parish’s police power. The trial court granted summary judgment and dismissed the plaintiffs’ case. The Fifth Circuit reversed, holding that there were genuine issues of fact that ■ precluded summary judgment. The facts cited by the appellate court included evidence submitted by the plaintiffs showing that: (1) the ordinances had been submitted and the rezoning accomplished without the usual advertisement or notice, and (2) the particular Councilman who had introduced the ordinances had on various occasions made public remarks indicating he was opposed to the housing complex because it would invite “poor New Orleanians” into Jefferson Parish and would attract occupants who were “ignorant or lazy.” 10-832 at pp. 10-11, 64 So.3d at 352-53.

Moretco’s reliance upon Berry is misplaced. Upon de novo review, the Berry court found there were material issues of fact that precluded summary judgment and entitled the plaintiffs to a trial of their claims. Unlike in Berry, here Moretco’s request for a preliminary injunction was fully tried on the merits and the trial court’s decision is reviewed by us under an abuse of discretion standard. UpMoreover, in Berry the plaintiffs’ property had been rezoned to a classification that did not permit the housing development. By contrast, here the zoning classification of the land which Moreteo seeks to develop has not changed, and the no action has yet been taken by the Council regarding the proposed development except to require that Moreteo submit its plans to the Council for approval, which Moreteo has not yet done. Because of these key factual distinctions, we do not find that Berry lends any support to Moretco’s argument. We therefore reject Moretco’s contention that the trial court abused its discretion by declining to issue a preliminary injunction on the basis that the passage of the challenged ordinances was an unconstitutional abuse of the Council’s power.

CONCLUSION

Because Moreteo failed to meet its burden of proving that it is entitled to a preliminary injunction or that it will likely prevail at trial in seeking a permanent injunction, we conclude that the trial court did not abuse its discretion.

AFFIRMED

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

hi respectfully dissent.

A

The moratorium in this case is arbitrariness masquerading as regulation. Our Constitution protects the right of every person, even a Nevada corporation like Moreteo, “to acquire, own, control, use, enjoy, protect, and dispose of private property.” La. Const. Art. I, § 4(A). While this light like the others is not in every respect absolute, it is only “subject to reasonable statutory restrictions and the reasonable exercise of police power.” Id. (emphasis added) And because this moratorium as written is not a reasonable exercise of the police power, it unconstitutionally deprives Moreteo of the equal protection of the laws and its enforcement should be enjoined.

Here, after Moreteo acquired its property, a first permits-moratorium, which applied to only some council-districts in Plaquemines Parish, was adopted. The stated purpose was to afford the Parish Council adequate time to adopt a so-called Master Plan. Without a Master Plan being adopted, the moratorium expired. Upon its expiration, Moreteo applied for its permit. But for the moratorium, it is undisputed that Moreteo would have been entitled to a permit for the construction of a large store on its property.

|aThe Parish Council’s response, at the instance of Councilmember Hinkley, was to adopt a second moratorium, which was declared to be retroactive; the intent and effect of the retroactivity provision was to prevent approval of Moretco’s pending permit application. The second moratorium was for the purpose of “prohibiting the issuance of permits ... for the construction, renovation or remodeling of any commercial property” within the boundaries of the affection portions of the parish. But what the Parish Council bound, it could also loose. Thus, the ordinance allowed that “[o]nly with the permission of the Parish Council, through an Ordinance, as per law, said moratorium may be considered for release by this Council upon application of a qualified permit-applicant who presents for consideration sufficient evidence that the following conditions are met and satisfactory to this Council”. Plaquemines Parish Council Ordinance No. 11-18 (emphasis added)

Without picking through each of the conditions, it suffices to note that they range on a continuum from the clarity of “zoning compliance” to the obscurity of “such other reasonable issues before the Council.” On the basis of these conditions, we are to believe that the Plaque-mines Parish Council is not unbridled in its exercise of its police power with respect to this property. Of course, the “zoning compliance” condition cannot save the moratorium. If the permit-application was not zoning compliant, there is no issue. The moratorium itself is the means by which “zoning compliance” — a straightforward, objective and ascertainable standard — is ignored!

When the condition of “such other reasonable issues before the Council” is considered within the context of the moratorium-ordinance, then it is clear that the moratorium cannot constitutionally be enforced because it is enforceable at the whim of the Council. A zoning ordinance “is invalid where it leaves its ^interpretation, administration or enforcement to the unbridled discretion, caprice or arbitrary action of the municipal legislative body or administrative bodies or officials.” McCauley v. Albert E. Briede & Son, 231 La. 36, 48, 90 So.2d 78, 82 (1956). The fundamental requirement for any zoning ordinance is that it “must establish a standard to operate Uniformly and govern its administration and enforcement in all cases.” Id. (emphasis added).

This specific moratorium-ordinance is the antithesis of a valid zoning ordinance. At every turn, it is designed to reserve unto the Council exclusively, and on its own terms, the interpretation, administration, and enforcement of the Ordinance. See, e.g., Gaudet v. Economical Super Mkt., Inc., 237 La. 1082, 1091, 112 So.2d 720, 722-723 (1959) (holding that ordinance allowing the granting of a conditional use permit “will not have an unduly detrimental effect upon the character of the neighborhood, traffic conditions, ... public health, public safety or general welfare” is unconstitutional and invalid because it “fail[ed] to prescribe uniform rules or standards to guide the City Council”); Summerell v. Phillips, 282 So.2d 450, 453 (La.1973) (zoning ordinance requiring adoption of an ordinance to create a special zone for a mobile home or trailer park but which provides no objective standards to City-Parish Council is unconstitutional); Morton v. Jefferson Parish Council, 419 So.2d 431, 435 (La.1982) (ordinance respecting issuance of a special use permit is unconstitutional notwithstanding “inclusion of general criteria on which approval is contingent”).

Ordinance 11-13 “denies equal protection of the law and is invalid” because it allows the Council to waive or uphold the moratorium without any standard to guide it. Cf. McCauley, 231 La. at 50, 90 So.2d at 83; see also La. Const, art. I, § 3 (“No person shall be denied the equal protection of the laws.”) Because Ordinance 11-13 is unconstitutional on its face, Moreteo is entitled to injunctive hrelief without the ordinary requisite showing of irreparable injury under La. C.C.P. art. 3601 A. See Jurisich v. Jenkins, 99-0076, p. 4 (La.10/19/99), 749 So.2d 597, 599 (when the conduct which is sought to be enjoined or restrained is unconstitutional, i.e. a violation of a constitutional right, petitioner is entitled to injunctive relief without showing irreparable harm). See also McCau-ley, id. (“Judge is hereby ordered to issue a preliminary injunction”); Gaudet, 237 La. at 1094, 112 So.2d at 724 (“Additionally, the district judge is hereby directed to issue a preliminary injunction”).

Thus, I would reverse the trial court and order the issuance of the preliminary injunction to prevent the enforcement of the moratorium.

B

That really should be the end of the matter. But there is that other matter, which the majority opinion addresses and which, I suppose, was the impetus for the appearance of the National Urban League and the Urban League of Greater New Orleans as amici curiae in this matter. The majority opinion describes it as Moretco’s argument that the “actions of the Council [were] motivated by the racial bias of Councilman Hinkley,” at p. 12, 112 So.3d at 293, ante.

In Part A, ante, I addressed the “what” of the moratorium and, in this Part, I address the “why.” At the outset I concede that there may be many good public policy (or even political) reasons for the adoption of a permits-moratorium in certain limited areas of Plaquemines Parish. But at the same time I want to emphasize that the trial judge did not decide whether Mr. Hinkley was racially biased. Thus, the majority’s treatment rejecting Moret-co’s claim by concluding that Moreteo “failed to make a prima facie case in support of this allegation,” at p. 12, 112 So.3d at 293, ante, and its subsequent justification claiming to be deferring to |sthe trial judge’s determinations of credibility, at p. 16, 112 So.3d at 295, ante, are insupportable on this record. My reading of the trial judge’s written reasons, however, differs from the majority; the trial judge only concluded as a matter of law that Moret-co’s claim of Mr. Hinkley’s bias was “premature.” The trial court side-stepped racial bias as a motivating factor. Because there are “other, legitimate considerations that could have prompted the passage of these ordinances,” id. (emphasis added), the trial judge refused to address the matter of racial bias.

My purpose here is not now to determine Mr. Hinkley’s true motivation because it ought to have nothing to do with the result in this case. My purpose is to highlight that by enacting such a whimsical ordinance, which in practice entrusts all the unbridled decision-making to the selfsame decision-maker, necessarily excites the suspicions of the disaffected applicant and others. And we should not be dismissive of or diminish the rightful concerns (which the record establishes are justified) that a public officer’s official actions are undertaken from an objectionable motive nor automatically conclude that a hypothetical justification for why the ordinance was adopted precludes an examination and determination of the actual basis for its adoption. See, e.g., Berry v. Volunteers of America, Inc., 10-832, p. 12 (La.App. 5 Cir. 4/26/11), 64 So.3d 347, 353 (councilperson’s public objection about relocating Orleans Parish public housing residents to Jefferson Parish; genuine issue of fact whether councilperson’s official action were legitimate exercise of zoning authority or effort to thwart specific project).

Oddly, while the moratorium was in effect and without awaiting the adoption of the so-called Master Plan, the Council at the instance of Mr. Hinkley adopted Ordinance 11-49. Ordinance 11-49 applies to the same limited ^geographical areas of Plaquemines Parish as Ordinance 11-13. Ordinance 11-49 amended the parish’s Comprehensive Zoning Ordinance so as to require for Moretco’s property a Planned Unit Development and limit its retail establishment floor area to twenty-five thousand square feet. Ordinance 11^9 also incorporated “the land use and development standards enumerated in the Plaque-mines Parish Master Plan.” This action seems to reinforce that for whatever motive Mr. Hinkley was adamant about impeding Moreteo’s reasonable development of its property.

“Whenever the propriety of a zoning decision is debatable, it will be upheld.” Palermo Land Co., Inc. v. Planning Comm. of Calcasieu Parish, 561 So.2d 482, 493 (La.1990). Here, I emphasize that the “what” of this moratorium ordinance is not, in my view, debatable. But — if we are past that issue and must go to the “why”— we cannot avoid deciding and resolving as a matter of fact whether the adoption of these ordinances were the reasonable exercise of the police power or a reprehensible exercise of political power. Thus, before the case is decided against Moreteo, we should remand to the trial court for a determination of the basis of the official action. See Berry, supra.

I, therefore, dissent.

      . There is a dispute among the parties concerning the nature of this application. Mor-eteo maintains it was an application for a permit as to the entire shopping center, or alternatively, as to the Walmart building alone. The Council presented testimony at trial to show that a single permit application for the entire development would be improper because Moreteo would be required submit an application and obtain a permit for each building to be constructed on the site. It is undisputed that Moreteo subsequently submitted applications for permits for several ancillary buildings.

      . The ordinance was originally introduced on by Councilman Hinkley on January 13, 2011, and was later amended to set January 1, 2011 as its effective date. It was adopted as amended on January 27, 2011.

      . This included the district represented by Councilman Hinkley, which is where the subject property is located.

      . In Asaro, AHEPA applied for a building permit on September 9, 2008; the permit was issued on March 13, 2009; AHEPA submitted revised plans on May 19, 2009; and the moratorium was enacted on July 23, 2009.

      . The allegations of racial bias and discrimination raised in this appeal, if true, are serious. The Appellants raise genuine issues of concern in referencing Councilman Hinkley's remarks. The record does not demonstrate racism on the face of these ordinances or that racial bias was the sole motivation for their passage. Whether the ordinances may be dis-criminatorily applied to Moreteo in the future is not before us because Moreteo has not yet applied for a permit under the ordinances.

      . See Wilson v. U.S. Fire and Casualty Company, 593 So.2d 695, 700 (La.App. 4th Cir.1992).

      . See Francis v. Francis, 2007-1622, p. 4 (La.App. 3 Cir. 4/30/08), 981 So.2d 920, 922.

      . See Stewart v. Great Atlantic and Pacific Tea Company, 94-1592, p. 4 (La.App. 4 Cir. 3/16/95), 657 So.2d 1327, 1329-30.

      . We also find that Moreteo failed to meet the third prong of its burden of proof by showing that it would suffer irreparable harm unless the preliminary injunction was issued. On appeal, Moreteo again suggests that it does not have to prove irreparable harm because the Council’s actions were unlawful. See Asaro v. City of New Orleans, supra. For the reasons stated herein, we find that the Council’s actions were not unlawful.

      . All of the “following conditions" are itemized in the majority opinion at pp. 3-4, at 112 So.3d at 289-90, ante.

      . I want to emphasize, however, that a true moratorium (that is one in which a temporary delay in the issuance of any and all permits without any provision for an exception) would not be antithetical to a valid zoning ordinance.

      . That is, we would not need to reach the issues of retroactivity, presumption arising from the failure to call a witness, or the prohibition of ex post facto laws on the impairment of contracts.

      . There were several unflattering suggestions about why Mr. Hinkley was motivated to oppose Moretco's use of its property. It may well be that no one is the true motivation and it may well be that none are.

      . Ordinance 11-13 describes the applicable portion of District 2 as that of “south of the Intracoastal Waterway (GIWW)”. Ordinance 11-49 describes the applicable portion of District 2 as “east of the Intracoastal Waterway”.


author: MARC E. JOHNSON, Judge.

text:
    APEX REALTY, LLC v. VIDRINE’S OF GONZALES, LLC and E. Wayne Vidrine, Sr.
    No. 12-CA-530.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Kyle S. Sclafani, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    George B. Recile, Attorney at Law, Me-tairie, LA, for Defendants/Appellants. ■

      Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

Defendants/appellants, Vidrine’s of Gonzales, LLC (“VOG”) and E. Wayne Vidrine, Sr., appeal a default judgment taken against them by plaintiff/appellee, Apex Realty, LLC (“Apex”), in a suit for breach of a lease. For the reasons that follow, we amend the judgment and, as amended, affirm the trial court’s confirmation of the default judgment.

Apex filed a petition for damages on January 5, 2012 seeking past due rent and taxes and other damages for VOG’s alleged failure to pay rent under a lease agreement. Apex alleged VOG entered into a sublease on August 28, 2004, wherein VOG agreed to lease immovable property with improvements located at 2028 Highway 30 in Gonzales to operate a restaurant for a term of 20 years. According to the petition, VOG agreed to pay monthly rent in the amount of $7,822.26, through October 2012, in addition to property taxes. Apex asserted VOG paid its September, October and November 2011 rent by checks, but the checks were returned “NSF” due to insufficient funds. Apex claimed that it |ano titled VOG of the default, but VOG failed to cure the default. Apex further alleged that Mr. Vidrine personally guaranteed the obligations of VOG and, thus, was liable as a guarantor. In addition to damages relating to the breach of lease, Apex sought damages for the “NSF” checks under La. R.S. 9:2782; specifically, twice the value of each insufficient check.

On March 6, 2012, Apex filed a motion for preliminary default on the basis defendants had failed to answer the petition, despite being served on January 11, 2012. The trial court granted the preliminary default the same day. Thereafter, on March 20, 2012, Apex filed an ex parte motion to confirm the default judgment. Attached to its motion to confirm default was the affidavit of Scott Hall, a member of Apex Realty, LLC; the sublease upon which the suit was based; an Act of Cash Sale showing Apex owned the property at issue; two notice of default letters, one sent to Mr. Vidrine and the other to VOG; an Order of eviction dated January 3, 2012; receipts of costs related to the eviction proceeding; and, an itemization of damages. That day, the trial court confirmed the default judgment against VOG and Mr. Vidrine and awarded Apex $64,519.57 in damages. VOG and Mr. Vidrine timely appealed.

On appeal, VOG and Mr. Vidrine argue Apex failed to produce sufficient evidence to prove a prima facie case against them in order to confirm the preliminary default.

The procedure for obtaining a default judgment is set forth in La. C.C.P. arts. 1701 and 1702. If a defendant fails to answer within the time prescribed by law, judgment by default may be entered against him. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702(A). The default judgment cannot be different in kind from what is Ldemanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.

A plaintiff seeking to confirm a default judgment must prove both the existence and the validity of his claim. Arias v. Stolthaven New Orleans, LLC, 08-1111 (La.5/5/09), 9 So.3d 815, 820. The elements of a prima facie case must be established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that it would prevail at trial on the merits. Arias, supra; White Haute, LLC v. Mayo, 09-955 (La.App. 5 Cir. 3/23/10), 38 So.3d 944, 951. When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. La. C.C.P. art. 1702(B)(1).

When reviewing default judgments, an appellate court is restricted to determining whether the record contains sufficient evidence to support a prima facie case. U.S. Bank Nat. Ass’n v. Custer, 09-802 (La.App. 5 Cir. 2/9/10), 33 So.3d 303, 305. On appeal, appellant has the burden of overcoming the presumption that the judgment has been rendered upon sufficient evidence to establish a prima facie case and is legally correct. Id.

Appellants first argue that Apex failed to prove it was entitled to damages under La. R.S. 9:2782 for the “NSF” checks because it failed to produce a copy of the dishonored checks. Appellants contend that under La. C.C.P. art. 1702.1, when a suit is based on a negotiable instrument, the instrument must be produced or introduced into evidence. Appellants further assert that Mr. Vidrine’s personal guaranty for the obligations of VOG do not encompass punitive damages and, thus, he cannot be personally liable for damages under La. R.S. 9:2782.

|sIn its appellee brief, Apex concedes there are deficiencies in the evidence required to prove damages for the “NSF” checks. As such, Apex agrees the damages awarded in the default judgment should be reduced by $8,812.26, the amount it listed as the “nsf fee” in its itemization of damages attached to its motion to confirm default as Exhibit G. Since there is no dispute that Apex’s evidence was insufficient to prove its entitlement to damages for the dishonored checks, we reduce the judgment of the trial court to $55,707.31.

Second, appellants argue that Apex is not the proper party to enforce the sublease because it is not a party to the sublease and it failed to prove that it has an interest in the rights derived from the sublease. VOG and Mr. Vidrine contend there was no proof the unrecorded sublease was conveyed in the Act of Sale that transferred ownership of the immovable property. Essentially, appellants assert Apex has no right of action.

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. Whether a plaintiff has a right of action is a question of law. Mang v. Heisler Properties, LLC, 11-867 (La.App. 5 Cir. 5/22/12), 96 So.3d 521, 524, writ denied, 12-2083 (La.11/16/12), 102 So.3d 42.

The record shows that the sublease at issue was entered into by Shoney’s, Inc. (the landlord) and VOG (the tenant) on August 23, 2004. The sublease refers to the Prime Lease, which was between Shoney’s Properties Group 4, LLC (the landlord) and Shoney’s, Inc. (the tenant). There is no indication the lease or sublease was ever recorded. On March 12, 2008, Sholand Properties Group 4, LLC, f/k/a Shoney’s Properties Group 4, LLC, entered into an Act of Sale and transferred ownership of the immovable property to Apex. There was no mention of the lease or sublease in the Act of Sale.

| (Appellants argue that because the sublease was never recorded and the Act of Sale was silent on whether the sublease was assigned or transferred with the conveyance of ownership of the immovable property, Apex has failed to prove it has a right to enforce the lease. Generally, an instrument involving immovable property shall have effect against third persons only if it is recorded. La. C.C. art. 1839. A third person who acquires an immovable that is subject to an unrecorded lease is not bound by the lease. La. C.C. art. 2712. However, an unrecorded lease can be acknowledged and assumed by third parties. Restaurant Indigo, Inc. v. Thompson, 98-2704 (La.App. 4 Cir.5/19/99), 733 So.2d 1271, 1273. Under La. C.C. art. 1843, the law provides for the ratification of obligations, including obligations arising under a lease. Means v. Comcast, Inc., 44,503 (La.App. 2 Cir. 8/19/09), 17 So.3d 1012, 1015.

Although the lease at issue in this case was not assumed by Apex in the Act of Sale, the record shows Apex and VOG affirmed the lease by their actions. Specifically, VOG occupied the land for more than three years after the transfer of ownership of the land from Shoney’s to Apex and paid rent in accordance with the terms of the lease. Apex accepted the payment of rent tendered by VOG from the time Apex acquired ownership of the land in 2008 through the time VOG defaulted on the lease and Apex filed suit. There was no other lease contract between VOG and Apex, and by their acts they both ratified the written 2004 sublease, and it was binding on them both. Accordingly, we find that Apex had a right of action to enforce the terms of the lease.

Appellants next argue that Apex failed to give proper notice of the default as required under the sublease. In particular, appellants claim that under the terms of the sublease, all notices required to be given were to be in writing and delivered by certified mail to VOG at 405 David Drive, Metairie, Louisiana. Appellants 17contend Apex mailed the notices of default to a different address and, therefore, failed to prove its case by prima facie evidence.

We find appellants’ argument to be without merit. The provision upon which appellants rely is paragraph 22 of the sublease entitled “NOTICES” which provides,

... all notices and other communications required or permitted to be given hereunder shall be in writing and shall be delivered by a nationally recognized overnight courier or mailed by certified mail, postage prepaid, return receipt requested, addressed as follows ... [i]f to Tenant ... Vidrine’s of Gonzales L.L.C.[,] 405 David Drive[,] Metairie, LA. [Emphasis Added.]

A review of the sublease shows it did not require any type of notice be given in the event of VOG’s default for failure to pay rent. To the contrary, when VOG failed to pay rent, the express language of the sublease provides that Apex had the right to terminate the sublease, remove VOG from the property, and re-let the premises “without formal demand or notice of any kind.” We find nothing in the sublease that required notice of default be given to appellants.

We find the record contains sufficient evidence to support a prima facie case that VOG breached the 2004 sublease and the damages Apex suffered as a result of the breach. The sublease shows VOG agreed to pay monthly rent in the amount of $7,822.26 between November 2008 and October 2012, in addition to property taxes. A personal guaranty executed by Mr. Vidrine for the obligations of VOG under the sublease is attached to the sublease.

Apex obtained ownership of the land at issue in 2008 as evidenced by the Act of Sale submitted into evidence. The affidavit of Scott Hall, a member of Apex, shows VOG tendered rent checks for the months of September, October and November 2011, but the checks were dishonored for insufficient funds. Mr. Hall |Rstated that VOG had yet to pay rent for those three months. As a result, VOG was evicted in January 2012. Mr. Hall also stated that under the sublease, VOG owed property taxes in the amount of $990.00 for September 2011, and $1,540.38 per month thereafter.

The sublease provides for late fees for the delinquent payment of rent in the amount of 5% of the amount owed. It further provides for attorney fees and expenses incurred because of the default. In his affidavit, Mr. Hall referenced a spreadsheet of past due rents, property taxes, late fees, attorney fees and expenses incurred by Apex because of VOG’s default. We find this evidence sufficiently supports the trial court’s judgment confirming the default of appellants and awarding damages to Apex.

DECREE

For the foregoing reasons, we amend the award of damages in the March 20, 2012 trial court judgment from $64,519.57 to $55,707.31, and affirm the judgment as amended. Each party is to bear their own costs for this appeal.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED

      . The lease provided for an increase of monthly rent in periodic increments after October 2012 until the expiration of the lease.

      . The record shows Apex mailed the first notice of default on October 6, 2011 to Mr. Vidrine at 4742 Argonne St., Metairie, Louisiana. The second notice of default was mailed on November 16, 2011 to VOG, to Mr. Vid-rine’s attention, at 2028 Highway 30, Gonzales, Louisiana.

      . Mr. Hall explained that the property taxes increased in October 2011 because of an increase in taxes assessed by the Parish of Ascension against the property.