text:
    STATE of Louisiana, Appellee v. Charles WYNNE, Jr., Appellant.
    No. 47,625-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

hOn January 27, 2011, defendant, Charles Wynne, Jr., was charged by bill of information with operation of a clandestine methamphetamine laboratory, a violation of La. R.S. 40:983, and simple arson, a violation of La. R.S. 14:52(A)(2) and 14:52(B). On August 17, 2011, a jury found defendant guilty as charged. On September 26, 2011, defendant was sentenced to ten years at hard labor on the meth lab charge and to five years at hard labor on the simple arson charge, with the sentehces to run concurrently. The trial court also recommended mental health treatment. Defendant has appealed his sentences as excessive. We affirm defendant’s convictions and sentences.

Facts

On August 16, 2011, following jury selection, defendant’s jury trial commenced with the testimony of Fire Chief David Camp of the Springhill Fire Department. Camp stated that on the afternoon of November 20, 2010, the Springhill Fire Department responded to a house fire at the residence at 407 Sixth Street Northeast. The origin of the fire was determined to be in a back comer room of the house, where the following items were found among the debris: a five-gallon propane tank, a smaller propane tank, a fish cooker burner, three one-gallon cans (similar to cans of solvent), a camping stove, a fuel tank for the camping stove, a lantern, numerous bottles of propane gas, six batteries, an aluminum pot, a pair of pliers, sheet metal cutters, a chemistry book, several bundles of rubber or rubber tubing, the ^remains of a camp stool, and a five-gallon plastic jug. On cross-exam, Chief Camp testified that the fire, which had originally been contained, rekindled later that day. Due to the extent of the damage from the first fire, plus the explosion, he would not let anyone enter the structure to fight the fire from within. He testified that the house had no electricity or gas service at the time of the fire, and the destruction was total. He estimated the house to be valued at around $20,000.

Fire Captain Brian Montgomery, who also served as a Springhill Police Officer, identified each of those items as being parts or precursors of a methamphetamine lab. Trooper Brian Driskill, of the Louisiana State Police, an expert in the field of identification of methamphetamine labs and the manufacturing process for methamphetamine, testified that the items found in the home were used in the manufacturing of methamphetamine. He also tested the contents of the larger propane cylinder, which tested positive for anhydrous ammonia.

Trooper Driskill interviewed defendant and asked him what he used the propane bottle for, and defendant stated that he was living in the house which had no utilities or heat, so he was using it as a heat source. However, the propane cylinder contained anhydrous ammonia, which is not a fuel source for heat but is actually a farm fertilizer. When Trooper Driskill told defendant that, he insisted he had no idea how the anhydrous ammonia got into the tank, which he had bought from Wal-mart just two weeks prior.

Evidence was introduced that defendant had purchased products containing pseu-doephedrine approximately 16 times from pharmacies in the |3Sprmghili area during the period February 2010 through November 2010. On direct examination, Trooper Driskill testified that pseudoephedrine is the key ingredient in the manufacturing of methamphetamine. According to Trooper Driskill, the type of methamphetamine that defendant was manufacturing was by the “Nazi” or anhydrous ammonia method.

On direct examination, Jeffrey Broome, a driver for Advanced Emergency Medical Services, testified that he treated defendant at the scene for burns on November 20 and then transported him to the hospital that same day. Defendant admitted to using speed (methamphetamine) within 48 hours prior to the fire. In addition, David Boudreaux, a narcotics officer with the FBI Violent Crimes Task Force, also testified that he spoke to defendant in December 2010 as part of the investigation and defendant admitted to using methamphetamine approximately 48 hours before the fire. Defendant also told him he was using the propane to keep warm because there was no heat in the house at the time.

As a witness for the defense, Mike Out-lander testified that defendant had connected the fish cooker to a propane tank and used it as a source of heat. Additionally, Chad Watts testified that there were no utilities in the home and that defendant used the fish cooker to warm up the house.

The jury found defendant guilty on both charges and a pre-sentence investigation report was ordered. On September 26, 2011, defendant was sentenced to imprisonment at hard labor for ten years on the methamphetamine laboratory charge and five years at hard labor on the arson charge, with the sentences to run concurrently.

|4Specifically, the court stated:

The Court has considered Article 894.1 of the Code of Criminal Procedure and finds that you are in need of correctional treatment that can be provided most effectively by your commitment to an institution. A lesser sentence would deprecate the seriousness of your crimes. Your criminal conduct certainly caused and threatened serious harm ... They were no grounds which would excuse or justify your criminal conduct ... The Court believes your conduct was the result of circumstances which are likely to recur.

The court also recommended that defendant receive mental health treatment while incarcerated and ordered that he be given credit for time served. Additionally, the court advised defendant that he had two years to file for post-conviction relief and 30 days to appeal the sentence. On October 6, 2011, defense counsel filed a motion to reconsider sentence as excessive. This motion was denied on March 5,2012.

Discussion

Excessive Sentence

According to defendant, his concurrent sentences of ten years at hard labor for operating a methamphetamine laboratory and five years at hard labor for simple arson are excessive. Defendant urges that the trial court only considered his prior criminal history and did not consider:

(1) his age of 45 at the time of the incident; (2) that he is not the worst of offenders; (3) that drug abuse was the source of this criminal activity given that he had used methamphetamine within 48 hours of the fire; and (4) that this was not a crime of violence. It is defendant’s position that the goals of punishment and rehabilitation, the interests of society, and the costs of incarceration can be accomplished by less severe sentences.

IfiOn the other hand, the state asserts that the sentences are not excessive and notes the court’s reasons for imposing the particular sentences. The state also emphasizes defendant’s criminal history, his lack of remorse for his actions despite the overwhelming evidence presented against him, and his status as a third-felony offender.

La. R.S. 40:983 provides:

(A) Creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance is any of the following:
(1) The purchase, sale, distribution, or possession of any material, compound, mixture, preparation, supplies, equipment, or structure with the intent that it be used for the unlawful manufacture of a controlled dangerous substance.
(2) The transportation or arranging for the transportation of any material, compound, mixture, preparation, supplies, or equipment with the intent that such material, compound, mixture, preparation, supplies, or equipment be used for the unlawful manufacture of a controlled dangerous substance.
(3) The distribution of any material, compound, mixture, preparation, equipment, supplies, or products, which material, compound, mixture, preparation, equipment, supplies, or products have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.
(4) The disposal of any material, compound, mixture, preparation, equipment, supplies, products, or byproducts, which material, compound, mixture, preparation, equipment, supplies, products, or byproducts have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.
(B) It shall be unlawful for any person to knowingly or intentionally create or operate a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance.
I b(C) Whoever commits the crime of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance shall be sentenced to imprisonment at hard labor for not less than five years nor more than fifteen years; and may, in addition, be sentenced to pay a fine of not more than twenty-five thousand dollars.

La. R.S. 14:52 provides:

(A) Simple arson is either of the following:
(1) The intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner and except as provided in R.S. 14:51.
(2) The starting of a fire or causing an explosion while the offender is engaged in the perpetration or attempted perpetration of another felony offense even though the offender does not have the intent to start a fire or cause an explosion.
(B) Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars and imprisoned at hard labor for not less than two years nor more than fifteen years.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/03/10), 55 So.3d 90.

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of 17manifest abuse of discretion, a sentence will not be set aside as excessive. Id.

Although it is not required to list every aggravating or mitigating circumstance, the court’s reasons show that it considered the guidelines of La. C. Cr. P. art. 894.1. Specifically, the court noted defendant’s extensive criminal history, the serious harm posed to defendant and to others by his conduct, how the conduct was a result of circumstances which were likely to recur, and how a lesser sentence would deprecate the seriousness of his crimes.

The maximum sentences for the crimes of conviction, operating a methamphetamine laboratory and simple arson, are fifteen years at hard labor and five years at hard labor respectively. Defendant was sentenced to concurrent terms of ten years on the meth lab count and five years on the arson count for a total sentence of ten years at hard labor. Given defendant’s prior criminal history and the danger posed to himself and others with his action, there is no manifest abuse of the trial court’s discretion in this case. Defendant’s sentences are not grossly out of proportion to the seriousness of the offenses.

Conclusion

For the reasons set forth above, defendant’s convictions and sentences are affirmed.

Affirmed.

      . At the sentencing hearing, the state filed a habitual offender bill of information charging defendant as a third felony offender. Defendant was arraigned on the habitual offender bill and pled not guilty.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Vernon McMILLAN, Plaintiff-Appellant v. CITY OF MONROE, Defendant-Appellee.
    No. 47,700-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Street & Street, by C. Daniel Street, Monroe, LA, for Appellant.
    Hammonds & Sills, by Courtney T. Joiner, Angie D. Baldwin, Assistant City Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

liA retired Monroe firefighter was denied Workers’ Compensation benefits under the Firefighter’s Heart and Lung Statute, La. R.S. 33:2581. He filed a disputed claim for compensation with the Office of Worker’s Compensation. The Workers’ Compensation Judge (“WCJ”) awarded medical benefits and reimbursement costs for out-of-pocket expenses relating to his heart condition, but denied penalties and attorney fees. This appeal solely concerns the denial of penalties and attorney fees. For the following reasons, we affirm.

Facts

Vernon McMillan (hereinafter “McMillan”), who is now 70 years old, was a City of Monroe (“City”) firefighter for 32 years. In 1999, four years after his retirement, he was denied benefits under the Firefighter’s Heart and Lung Statute, La. R.S. 33:2581. As a claim for lung damage, the prior litigation is relevant only since the City relied heavily in the present case upon the prior medical records as grounds for denying McMillan’s current heart-related claim. While McMillan complained of heart pains in some of these prior tests, his doctors’ reports, a stress test, and a chest x-ray did not find any heart irregularities at that time.

The facts of the current litigation occurred in 2009, almost 14 years after his retirement as a firefighter. On July 28, 2009, McMillan went to the St. Francis Medical Center emergency room complaining of chest pains. According to McMillan’s emergency room doctor, Dr. Greg Sampognaro, he presented with unstable angina blockage in his right coronary artery and | {.chronic blockage of a branch off of the right coronary artery. The following day, Dr. Sampognaro put in a stent to alleviate the arterial blockage. McMillan was released on July 30. Thereafter, McMillan contacted Michael Shore, the workers’ compensation administrator for the City, regarding his claim for benefits under the Heart and Lung Statute. The City ultimately denied coverage of his heart condition.

On March 9, 2010, McMillan filed a disputed claim for compensation with the Office of Worker’s Compensation. At the hearing, McMillan testified regarding his employment and health histories. He stated that he worked as a firefighter from August 1963 until December 1995. In his 32-year career, McMillan rose in the ranks from a private, to lieutenant, then captain, and finally to a District Chief, the position he held for 10 years prior to retiring. He testified that firefighters did not wear masks until the 1980s. In the beginning, McMillan testified that he would often cough up black stuff for days. Even after the implementation of smoke masks, he testified that it was nearly impossible not to inhale smoke during a fire. As a District Chief, he had to “supervise the firefighting part of it, and to actually fight fire.” Regardless of his position or rank, he stated that he was always exposed to smoke.

As his medical history and lifestyle habits are relevant indicators of his risk factors for heart problems, McMillan was questioned at length about these topics. The seven risk factors for heart problems were provided by Dr. Sampognaro’s deposition. According to Dr. Sampognaro, the more risk | .¡factors that a person has, the more likely he is to have blockage in his arteries. The seven risk factors are listed below:

1) A man over the age of 45
2) High cholesterol
3) High blood pressure
4) Diabetes
5) Tobacco abuse
6) Family history
7) Sedentary lifestyle

Regarding these factors, McMillan acknowledged that the first two risk factors apply to him. Next, he stated that he does not take any medication for high blood pressure or diabetes. While he had smoked in the past, he explained that he had not smoked in over 10 years. As for his family history, both of his parents died from heart attacks when they were in their 80s. Given that they did not have heart problems until their 80s, McMillan did not believe that his parents’ fatal heart attacks qualify as a risk factor. Furthermore, McMillan testified that he often worked out at the gym and has worked part-time as a stagehand for the City of Monroe since retiring from the Fire Department. As a result, McMillan argued that only the first two factors apply.

Shore testified next. Shore admitted that he primarily relied on the 1983, 1997, and 1999 test results that indicated that McMillan’s heart was fine. Nevertheless, he testified that he did receive and review Dr. Sampognaro’s procedure and discharge report from the hospital. He found it noteworthy that the report stated that McMillan had multiple risk factors for heart disease, but admitted he did not know what these risk factors were. Shore conceded that none of the reports ruled out McMillan’s fire service as |4a contributing factor. Furthermore, he testified that he did not ask Dr. Sampognaro or any other doctor whether there was any connection between McMillan’s prior employment and his heart condition. Yet, Shore stated that the lack of heart abnormalities in the reports from the prior litigation, Dr. Sampognaro’s analysis that McMillan possessed multiple risk factors, and the 14-year delay in the condition’s manifestation led him and the City to deny McMillan benefits for his heart condition.

Dr. Sampognaro’s deposition was admitted into evidence at the hearing. When questioned about the 1997 and 1999 tests, Dr. Sampognaro dismissed them. According to him, the stress test “didn’t look at heart function” and the chest x-ray really just “tells us the size of the heart.” Furthermore, he stated that a stress test only has a “75% change (sic) of it picking up an obstructive blockage.” He admitted that it is possible to have “blockages, but no symptoms.” Dr. Sampognaro testified that only a heart cath, not a stress test, would have been able to determine definitively whether there was any blockage.

In regard to his personal knowledge, he first saw McMillan in St. Francis’ emergency room when he presented with unstable angina. He explained that unstable angina is “new onset angina within the last few weeks or angina that was stable now getting worse.” Dr. Sampognaro stated that McMillan had an 80% blockage in one of his major right coronary arteries. As a result, a stent was put in to alleviate this blockage. In addition to this, Dr. Sampog-naro testified that McMillan also had a 100% blockage of a branch off of the right coronary artery. He stated that this was |sa chronic blockage because “it’s been there for several months to years and he had already felt — built his own collateral to that vessel, so he sort of rerouted the blood to his own system.” He did not have any idea how long the chronic blockage had been there.

Dr. Sampognaro testified that since McMillan had not smoked in the last 10 years, his risk of coronary artery disease had gone back to that of a nonsmoker. Dr. Sampognaro acknowledged that he was not an expert on the risks associated with fire-related smoke inhalation; therefore, he could not say whether the lack of smoke inhalation for the last 18-14 years would also discount it as a risk factor. He testified that there was “nothing in the records that suggest that he has coronary artery disease based on being a firefighter.” Yet, Dr. Sampognaro admitted that he could not say one way or the other that McMillan’s fire service did not contribute to his heart disease.

The WCJ rendered its judgment on December 29, 2011, and ruled in McMillan’s favor awarding past and future medical benefits. There was no award for wage benefits.

In its reasons for judgment, the WCJ stated that:

Unless affirmative proof is adduced to prove a lack of causation, the presumption requires that the disabled fireman be entitled to coverage under the Act. Affirmative proof has been held to include expert medical testimony that the firefighter’s condition did not develop during and/as a result of his work. Said proof is void in this case.

Nevertheless, despite this finding and an award for medical benefits, the WCJ denied McMillan’s request for penalties and attorney fees. The WCJ held that since this was a doubtful case given the 14-year delay in the | r,condition’s manifestation, the City reasonably controverted the claim precluding McMillan’s request for penalties and attorney fees. McMillan now appeals, challenging the WCJ’s denial of penalties and attorney fees.

Discussion

The Firefighter’s Heart and Lung Statute, La. R.S. 33:2581 (the “Act”), provides as follows:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, pri-ma facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

The Act creates a presumption that the nature of a firefighter’s work caused, contributed to, accelerated or aggravated his heart disease or infirmity which manifests itself after the first five years of employment. City of Bossier City v. Colvin, 45,-278 (La.App.2d Cir.5/19/10), 36 So.3d 1207, McCoy v. City of Shreveport, 26,181 (La.App.2d Cir.1/25/95), 649 So.2d 103. Nevertheless, this court has previously noted that “since the statute provides no conclusive presumption but only an evidentiary benefit, [Code of Evidence] Article 306 provides that the trier of fact need not credit the inference gained from the Act if ‘it is persuaded by the controverting evidence of the nonexistence of the inferred fact.’ ” La.Code Evid. art. 306; Gilliland v. City of Monroe, 42,458 (La.App.2d Cir.10/10/07), 968 So.2d 270, 274, writ denied, 07-2476, (La.3/7/08), 977 So.2d 908. “The length of time between the manifestation of the infirmity and retirement may be a factor in rebutting the presumption of development and causation during employment.” Coats v. City of Bossier City, 31,-164 (La.App.2d Cir.10/30/98), 720 So.2d 1283, 1287, writ denied, 99-0019 (La.2/12/99), 738 So.2d 581.

Since the City of Monroe did not appeal the award of medical benefits, our review is limited to whether the City reasonably controverted this claim. In order to reasonably controvert a claim and avoid penalties and attorney fees,

the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885.

The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact and the WCJ’s finding should not be disturbed on appeal absent manifest error. Coats, supra; Oliveaux v. Riverside Nursing Home, 29,419 (La.App.2d Cir.04/02/97), 691 So.2d 340; Smith v. Tudor Const., 25,783 (La.App.2d Cir.05/04/94), 637 So.2d 666. To reverse a fact finder’s determination under the manifest error standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding 18of the trier of fact; and (2) the court must further determine that the record establishes a finding that is clearly wrong. Stobart v. State, 617 So.2d 880, 882 (La.1993).

The WCJ’s statement that proof of other causes for McMillan’s heart condition was “void in this case” was clearly overstated in view of MeMillan’s various other possible factors for heart disease and the passage of time since his retirement. While the City could not prove that McMillan’s fire service did not contribute to his heart condition, the City did present evidence of contributing factors tending to rebut the presumption of the Act. Importantly, Dr. Sampognaro’s initial report indicated that McMillan exhibited several risk factors that could have at least contributed to his heart condition. Of the risk factors for heart disease, McMillan’s medical history exhibited arguably three factors-his age, high cholesterol, and family history. Additionally, the 14-year gap in the heart condition’s manifestation as noted by the WCJ provided the City with sufficient support to reasonably controvert the claim, espe-daily considering the prior medical reports. Based on the medical factors and the penal nature of the disputed awards, we affirm the WCJ’s denial of penalties and attorney fees.

Conclusion

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Costs of these proceedings are assessed to appellant.

AFFIRMED.


author: MADELEINE M. LANDRIEU, Judge.

text:
    ST. BERNARD PORT, HARBOR AND TERMINAL DISTRICT v. GUY HOPKINS CONSTRUCTION CO., INC. United States Fire Insurance Company and ABC Insurance Company.
    No. 2012-CA-0167.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.
    Rehearing Denied Feb. 27, 2013.

      Alvin J. Bordelon, Jr., Regina S. Wedig, Bordelon & Theriot, Metairie, LA, for St. Bernard Port, Harbor and Terminal District.
    Scott E. Frazier, Kracht Frazier Madison, LLP, Baton Rouge, LA, for Defen-danVAppellant, Guy Hopkins Construction Co., Inc.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

| jThis case arises out of the performance of a publicly-bid construction contract awarded to Guy Hopkins Construction Co., Inc. [“Hopkins”] by the St. Bernard Port, Harbor and Terminal District [“the Port”]. Both parties appeal the trial court’s September 6, 2011 judgment, which awarded Hopkins damages in the amount of $101,316.47. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Approximately twelve years ago the Port solicited bids for Phase I of a major public works renovation [“the Project”]. Hopkins submitted the lowest bid and was awarded the Project. On August 7, 2000, Hopkins entered into a construction contract with the Port in the amount of $3,441,252.00. The contract specified that all work was to be completed within 150 days. The specified work consisted of the demolition and removal of existing structures in the fifty-acre Project area, the placement of sand that was to be compacted, graded, and coated with a layer of base course (crushed limestone), and the installation of water/sewer and drainage pipes and certain prep work for an electrical system to be installed in |2the second phase of the renovation. The Port issued the Notice to Proceed on August 15, 2000. Due to several negotiated extensions of time, the Project was due to be completed on September 14, 2001. The parties disagree as to what happened next. Hopkins contends it completed the final punch list for the Project but the Port refused to issue payment. Conversely, the Port claims that Hopkins abandoned the unfinished Project on December 10, 2001. After placing Hopkins in default, the Port terminated Hopkins on February 7, 2002.

On April 18, 2002, the Port filed suit against Hopkins and its liability insurers for breach of contract and damages, Hopkins filed a reconventional demand against the Port seeking the balance due under the contract and compensation for additional work it allegedly had performed. Hopkins also asserted a third party demand and reconventional demand against the Project Engineer, Burk-Kleinpeter, Inc. [“BKI”], seeking damages for delays that allegedly resulted from deficiencies in the design and administration of the Project. Hopkins’s claim against BKI was settled prior to trial. In addition, Hopkins, its insurers and the Port reached a partial settlement, leaving only certain claims to be decided at trial, including Hopkins’s claims for the contract balance and other amounts allegedly due it for several items of additional work, and the Port’s claims for allegedly defective work and for liquidated damages.

|aThe case was tried on multiple dates over a five-year period, namely: May 31-June 1, 2005; February 27-March 2, 2007; January 28-80, 2008; September 30-Octo-ber 2, 2008; January 7-8, 2009; and February 18, 2009. After taking the matter under advisement, the trial court on March 12, 2010 rendered judgment in favor of the plaintiff, the Port, in the amount of $357,765.19 and issued extensive written reasons for judgment. Both parties filed motions for new trial on specific issues, which the trial court granted. After conducting a hearing on those issues, the trial court, on September 1, 2011 rendered judgment against the Port, awarding the defendant, Hopkins, damages in the amount of $59,538.47. A few days later, on September 6th, the trial court on its own motion amended the judgment to correct “an error in computation.” The amended judgment increased Hopkins’ award to $101,306.47. On September 7th, the trial court issued extensive written reasons addressing all the issues covered by the three successive judgments.

In its Reasons for Judgment, the trial court noted several general findings of fact that precipitated its rulings as to specific items of recovery between the parties The court noted that Hopkins was the lowest bidder on the Project by approximately $2,000,000.00, a margin that prompted the Port to inquire as to whether Hopkins was aware of the scope of the Project. After ignoring the Port’s suggestion that it reconsider its bid, Hopkins was awarded the Project and soon discovered that it involved more extensive work than Hopkins had originally contemplated. The court specifically noted that the Hopkins employee responsible for formulating the bid was fired shortly thereafter. Two major issues faced by | ¿Hopkins were an extensive amount of concrete demolition and problems with the concrete crushing operations. The delays caused by these issues were compounded by a continuous change by Hopkins in supervisors for the Project, as well as “continuous machinery, manpower and management problems” that persisted throughout the Project. The trial court found that, in order to keep the work progressing, the parties had agreed upon three change orders during the course of the Project, all of which had amended the contract. Finally, the court found that the Engineer, BKI, which was a party to the contract, had served as the “initial interpreter of [the contract] requirements” in deciding upon the acceptability of the work. The trial court specifically noted that any claims of Hopkins or the Port that could have been brought against the Engineer had been assumed by Hopkins via its settlement with BKI.

After setting forth these general findings, the trial court addressed nineteen specific claims for compensation by Hopkins and six by the Port, providing its reasons for granting or denying each amount. The court explained that the final award to Hopkins was determined by calculating the difference between the amounts awarded to the Port and those awarded to Hopkins, which resulted in the Port owing Hopkins the sum of $101,306.47.

Hopkins appeals the judgment, raising ten assignments of error. The Port has filed an answer to the appeal. It asserts a cross-appeal raising five assignments of error.

_y_ISSUES

For purposes of this discussion, the parties’ fifteen specific assignments of error are grouped into the following five general issues:

I. Whether the Port is entitled to compensation for various items of work that it claims Hopkins either failed to perform satisfactorily or failed to complete as per the terms of the contract;
II. Whether Hopkins is entitled to compensation for its performance of various items of additional work that it claims were outside the scope of the contract;
III. Whether Hopkins is entitled to the unpaid balance of the contract, subject to deductions for specific instances of deficient or incomplete performance;
IV. Whether the Port is entitled to liquidated damages in the amount awarded;
V. Whether the Port is entitled to attorney fees.

STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more | (¡errors of law made by the trial court have interdicted the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735 (citations omitted). A legal error occurs when a trial court applies incorrect principles of law, and the error is prejudicial. Id. Legal errors are prejudicial when they materially affect the outcome of a case and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Id.

A contract is the law between the parties to it, and the courts are obliged to give legal effect to such contracts according to the common intent of the parties. La. C.C. art. 2045; Belle Pass Terminal Inc. v. John, Inc., 92-1544, 1545, p. 16 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 479. The parties’ intent is to be determined by the words of the contract when they are clear, explicit and lead to no absurd consequences. La. C.C. art. 2046; R.J. Messinger, Inc. v. Rosenblum, 2003-2209, 2210, pp. 7-8 (La.App. 4 Cir. 5/11/05), 904 So.2d 760, 765. In such a case, the meaning and intent of the parties to a written contract must be determined as a matter of law from the four corners of the instrument without resorting to extrinsic evidence. Martin Exploration Co. v. Amoco Production Co., 93-0849 (La.App. 1 Cir. 5/20/94), 637 So.2d 1202, 1205. If, however, the meaning of a 17contractual provision is doubtful, the provision must be interpreted in light of considerations such as “the nature of the contract, equity, usage, and the conduct of the parties before and after the formation of the contract.” La. C.C. art. 2053.

In the present case the trial court made numerous, detailed factual findings based upon its consideration of thirteen days of testimony spread out over a five-year period and the submission of voluminous documentary evidence; including the contract, which exceeds two hundred pages in length. Both parties seek a de novo review, arguing that the manifest error standard does not apply here because the trial court committed legal errors in interpreting various provisions in the contract. The parties disagree, however, as to what provisions of the contract have been misinterpreted. Reviewing the record, we do not find that the trial court made any legal error so substantial that it tainted the fact-finding process and rendered the entire matter subject to de novo review. Therefore, we have reviewed this matter according to two different standards, applying the legal correctness standard to the trial court’s interpretations of the contractual language and the manifest error standard to the trial court’s findings of fact.

DISCUSSION

I. Whether the Port is entitled to compensation for allegedly unsatisfactory and/or incomplete work by Hopkins

In this category, Hopkins challenges the amounts awarded to the Port for the cost of base course material not placed by Hopkins, the cost of removing certain utility poles, and the cost of reinstalling a sewer line. Additionally, the Port | ^challenges the trial court’s refusal to award it compensation for excess sand allegedly placed by Hopkins; Hopkins’s alleged overbilling for concrete demolition and removal; and the leveling and compacting of the excess sand placed by Hopkins.

Before addressing these six specific items, however, we first address Hopkins’s arguments that the trial court committed two errors of law: (1) by misinterpreting a provision in the contract that should have precluded the Port from recovering any damages for work allegedly not completed by Hopkins; and, alternatively, (2) by improperly relieving the Port of its burden to prove its claims for defective work.

Hopkins first argues that the Port should not be compensated for any completion costs because these items were outside the original contract and were neither approved by BKI nor incorporated into a change order. The applicable provision of the contract is contained in Article 15, entitled “Suspension of Work and Termination.” The article lists the causes for which the Owner may terminate the contract and permits the Owner (the Port), after providing the requisite notice of termination, to:

... finish the Work as OWNER may deem expedient. In such case CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds the direct, indirect and consequential costs of completing the Work (including but not limited to fees and charges of engineers, architects, attorneys and other professionals and court and arbitration costs) such excess will be paid to CONTRACTOR. If such costs exceed such unpaid balance, CONTRACTOR shall pay the difference to OWNER. Such costs incurred by OWNER will be approved as to reasonableness by ENGINEER and incorporated into a Change Order, but when exercising any rights or remedies under this |aparagraph OWNER shall not be required to obtain the lowest price for the Work performed. [Emphasis supplied.]

Citing the highlighted language, Hopkins argues that there was no evidence that BKI approved or incorporated into a change order the completion work that the Port hired other contractors to perform after Hopkins abandoned the Project. Because of the absence of such evidence, Hopkins contends the Port is not entitled to any reimbursement for the completion work.

We disagree. There is nothing in the contract to suggest that the absence of the Engineer’s approval or change order serves as a complete bar to recovery by the Owner for completing the work, especially where, as the trial court found here, the Contractor has abandoned the project. In fact, a reading of the entire contract refutes that any such meaning was intended. In Article 14, entitled “Substantial Completion,” the words of the contract are clear and explicit regarding the Contractor’s continuing obligation to perform. Section 14.15 states, in pertinent part:

CONTRACTOR’S obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by ENGINEER, nor the issuance of a certificate of Substantial Completion, nor any payment by OWNER to CONTRACTOR ... nor any act of acceptance by OWNER ... nor any correction of defective Work by OWNER will constitute an acceptance of work not in accordance with the Contract Documents or a release of the CONTRACTOR’S obligation to perform .... [Emphasis in the original]

The trial court found the amounts awarded for completion costs to be reasonable after hearing all the evidence. Moreover, insofar as the failure to approve the costs for reasonableness or incorporate them into a change order is attributable to BKI, Hopkins’s settlement with BKI precludes the raising of this issue.

[ mHopkins next argues that the trial court failed to place the burden of proof upon the Port to show the existence of defective work and the cost to repair same. Hopkins cites Schiro-Del Bianco Enterprises, Inc. v. NSL, Inc., 99-1237 (La.App. 4 Cir. 5/24/00), 765 So.2d 1087, for the proposition that once a contractor has substantially performed under a construction contract, the owner bears the burden of proving the existence of defective work. This argument is without merit. There is nothing in the record to indicate that the trial court improperly allocated the burden of proof between the parties. The record confirms that the trial court properly placed the burden on the Port to prove its claims of breach by Hopkins, including the existence of defective and/or unfinished work and the costs to repair or complete this work, and placed the burden on Hopkins to prove the claims it raised by recon-ventional demand, such as its entitlement to the balance due on the contract.

We therefore reject Hopkins’s contention that the trial court committed legal error either by misinterpreting the contract or by misalloeating the burden of proof. We now turn to the factual errors allegedly made by the trial court.

A. Cost of base course material not placed by Hopkins

The trial court awarded the Port the amount of $162,750.00 to compensate it for 10,500 cubic yards of base course the Port ordered to be placed at the site by another contractor after Hopkins abandoned the project. The trial court reasoned that under the contract, the Port had the right to require Hopkins to provide 125% of the amount of base course specified therein (which amount was 30,000 cubic Inyards according to the last Change Order) at $20.50 per cubic yard. When it abandoned the project, Hopkins had placed a total of 27,000 cubic yards of base course out of the 37,500 cubic yards (125% of 30,000) the Port was entitled to, a difference of 10,500 cubic yards of base course. Jerry Graves, the Port’s project manager, testified that Hopkins refused to place base course in the North stack area, and the Port eventually paid another contractor $36.00 per cubic yard of base course to do so. The trial court specifically noted that the Engineer had requested that Hopkins place additional base course by letter dated August 22, 2001, but Hopkins had refused to comply. The trial court therefore awarded the Port the difference in price ($15.50 per cubic yard) multiplied by 10,500 yards.

Hopkins argues that the trial court erred in making this award because it was only instructed to place base course in the South area of the project, not the North area. However, the testimony of Mr. Graves and our reading of the August 22, 2001 letter contravene this argument. We do not find the trial court’s award of this amount to be manifestly erroneous.

B. Removal of utility poles

The trial court awarded the Port $20,203.00 to compensate it for the cost of removing certain utility poles that Hopkins had not removed. Hopkins contends that the contract language afforded Hopkins the discretion to determine which poles conflicted with its construction operations and, therefore, should be removed. In support of this contention, Hopkins points to an August 13, 2001 letter written by Jason Keller, the project supervisor for Hopkins, which informed the Engineer 112that because no poles had been designated for removal in the plans, Hopkins would remove only those poles that prevented its work from progressing. Hopkins further contends that in addition to those poles, it also removed certain other poles that the Port verbally directed it to remove, for which Hopkins seeks additional compensation in the amount of $7,443.00.

Hopkins’ argument is not supported by the words of the contract. The contract describes the “Work” as consisting of “the removal and satisfactory disposal or relocation of all existing manholes, pipe, driveways, sidewalks, disconnected utility poles, fences, culverts, pavements, buildings ... and all other miscellaneous structures and obstructions which conflict with construction applications and are not designated to remain, or are indicated on the Contract Drawings to be removed.” This language does not indicate that Hopkins had the sole discretion to determine which poles should be removed; nor does it indicate that Hopkins would be entitled to extra compensation if the Port and/or the engineer disagreed with Hopkins’ determination and directed Hopkins to remove more poles. Moreover, the testimony of Jerry Graves confirmed that, as this was a demolition project, Hopkins was supposed to remove all poles in the way of the Project, not just those in Hopkins’s way. The trial court noted that Hopkins’s own supervisor, Steve Price, agreed with this assessment of Hopkins’s responsibility.

The trial court, found, as a matter of fact, that Hopkins breached the contract by failing to remove all utility poles in the way of construction. The record supports this finding. Thus, we find no manifest error in the trial court’s ruling and | isdecline to disturb the award to the Port. For the same reason, we also decline to award Hopkins the additional compensation it seeks.

C. Reinstallation of sewer line

The trial court awarded the Port $33,345.00 to compensate it for having to reinstall a sewer line after discovering that Hopkins had improperly laid the line “with a ‘belly.’ ” Hopkins contends the Port did not submit any documentation to support its claim that the foundation material for the line had collapsed. Additionally, Hopkins contends it should not have to pay for this item because the reinstallation incorporated a different design with a different foundation.

The Port cites the contract, which required Hopkins to dig the trench and install the sewer line so that it would properly drain. Hopkins was charged with selecting the means to accomplish this end. The evidence confirms that Hopkins suggested that railroad ballast be used for the bedding, and that this request was approved by the Engineer with the instruction that Hopkins was to notify the Engineer if soil conditions changed such that the soil would not support the ballast. Hopkins never notified the Engineer of any problems with support for the sewer line. However, after Hopkins abandoned the Project, the Port discovered that the line backed up with waste and did not drain. The evidence also showed that the line sagged. The Port submitted invoices showing the costs it incurred to have the line tested and repaired.

|14We find no manifest error in the trial court’s determination that Hopkins failed to properly install the sewer line as per the terms of the contract. We therefore decline to disturb this award.

D. Excess sand placed by Hopkins

The trial court denied the Port’s claim seeking compensation in the amount of $127,544.00 for 12,780 cubic yards of excess sand that was left at the Project site when Hopkins abandoned the job. The Port seeks reimbursement for the amount it paid for the sand and the cost of moving it to another area. The trial court found as a matter of fact that the Port had continually requested more sand, and that, after Hopkins had abandoned the job, the Port had kept the sand and actually used it.

The Port argues on appeal that Hopkins bore the contractual responsibility to calculate the amount of sand needed. The Port also contends that it was Hopkins that had continually requested more sand, but acknowledges that the Port approved these requests. Finally, the Port argues that pursuant to the bid documents for the contract, Hopkins was only entitled to be paid for the amount of sand it actually used, which amount was not able to be determined by the Port until after Hopkins had abandoned the Project. Hopkins argues that it would be unjust enrichment for Hopkins to be required to reimburse the Port for sand the Port kept and used, and further, that the Port failed to submit documentation of the costs it allegedly incurred to move the sand.

11fiThe contract does not clearly delineate which party should bear the cost of excess sand that was obtained but not used for the Project. Moreover, the Port did not meet its burden of showing that the amount of sand obtained was excessive, considering that Hopkins abandoned the project before it was completed. Because the Port approved the amount of sand ordered, kept it, and actually used it, we find no manifest error in the trial court’s denial of the Port’s reimbursement claim. We therefore decline to disturb the trial court’s ruling in this respect.

E. Concrete demolition and removal

The trial court denied the Port’s claim seeking reimbursement in the amount of $310,786.66, which sum Hopkins allegedly overbilled the Port for concrete that was demolished and removed from the Project site. The Port contends this claim was wrongfully denied.

It is undisputed that Hopkins was to be paid a per-unit price for each ton of concrete that was demolished and hauled away. The Port’s claim for reimbursement is based upon its contention that the trucks used to haul away the concrete actually contained a mixture of concrete, dirt and sand; the Port contends that the inclusion of substances other than concrete increased the weight that Hopkins used to calculate the payment owed by the Port. In support of its claim, the Port introduced photographs of huge piles of concrete mixed with soil at the site and the testimony of various witnesses that the trucks being used for concrete removal also contained soil and mud. The Port had engineer Peter Burk calculate the amount Hopkins allegedly overbilled for concrete. In addition, the Port | ^introduced the minutes of numerous progress meetings in an attempt to show that a settlement reached in November, 2000, for the soil-charged-as-concrete had only applied to that particular month, and that the Port representatives had continued to complain about the same issue at subsequent meetings.

The trial court found that the Port had failed to meet its burden of proving that there was an overabundance of dirt in the demolished concrete that was weighed. The trial court additionally found that the minutes of the weekly meetings indicated that the Port had foregone its objections with respect to this issue.

At trial, Hopkins submitted into evidence logs and scale tickets, which were approved and paid by the Port, for the demolished concrete. The record does not demonstrate that the trial court committed manifest error by finding that the Port failed to present sufficient proof of this claim. We therefore decline to disturb the trial court’s ruling in this regard.

F. Leveling and compacting of excess sand

The trial court denied the Port’s claim seeking compensation in the amount of $41,778 for leveling and compacting of the excess sand Hopkins left at the site. The Port contends this claim was proved at trial by the evidence it submitted, which included payment requests by the contractor the Port hired to do re-compacting and fine grading of certain areas of sand. The trial court found that this claim was “justified” by the fact that piles of sand were left on the site by Hopkins when it abandoned the Project. However, the trial court denied the claim |17on the basis that the Port failed to produce sufficient proof of the cost of leveling and compacting this sand. For its part, Hopkins argues that the trial court’s ruling is correct because the Port failed to produce any documentation or evidence showing that the grading done was necessary.

We find no manifest error in the trial court’s ruling that the invoices submitted by the Port are not sufficient to prove this claim. We therefore decline to disturb that ruling.

II. Whether Hopkins is entitled to be compensated beyond the contract price for additional work it allegedly performed

A. Handling of berm material

The trial court denied Hopkins’s claim seeking additional payment in the amount of $119,199.00 for its having to move berm material twice on account of a design change made by the Port. Hopkins contends that because the Port decided to expand the parking area to include the North “stack” area, where Hopkins had already placed the berm material, Hopkins had to remove some of the material to achieve the final grade for the asphalt. Hopkins further contends that after it had stockpiled the berm material, the Port directed Hopkins to place the material in the pot lines, which, according to Hopkins, was beyond the scope of the work called for in the contract.

The Port refutes Hopkins’s contention that the moving of the berm material was necessitated by a design change. The Port presented evidence showing that because Hopkins had failed to properly grade the berm material it had placed | isoriginally, the level was too high, and therefore Hopkins was directed to move the excess berm material from the stack area in an attempt to bring the area to grade. Additionally, the Port’s witnesses testified that after the Project was abandoned, the contractor the Port hired to complete the Project discovered that Hopkins had removed too much berm material, leaving the area below grade and necessitating that it be filled in.

Weighing the evidence, the trial court found that the necessity of moving the berm material twice was caused by Hopkins’s failure to properly grade the berm material the first time, and therefore, the Port should not have to reimburse Hopkins for the extra work. Based on the record, this finding is not manifestly erroneous. We therefore decline to disturb the trial court’s ruling.

B. Demolition of underground tunnel tops

The trial court denied Hopkins’s claim seeking additional payment in the amount of $105,825.16 for the demolition of certain underground tunnel tops. Hopkins contends that the contract drawings showed the tunnel tops to be near ground level and intersecting the potline walls, in which case Hopkins could have easily filled the tunnels with sand (as required by the contract) without performing any concrete demolition. Hopkins further contends that once the work had begun, Hopkins discovered that the underground tunnels were irregular in depth and the tunnel tops were below the potline floor slab, thereby requiring Hopkins to break through the concrete tunnel tops in order to fill the tunnels with sand. Hopkins argues that the placement of these underground tunnels was a “latent physical [ ^condition ... encountered at the site” that differed materially from those “indicated in the contract” or “ordinarily encountered” or “generally recognized as inherent in the work” pursuant to Section 104.06 A of the Red Book. According to this provision, upon written notice of such a condition, the Engineer is required to investigate and determine whether an adjustment in the contract price is warranted. Hopkins contends that the Port refused to pay additional compensation on a time and materials basis for the demolition of these underground tunnel tops despite having done so in the case of other underground obstructions encountered by Hopkins.

The Port argues that this claim by Hopkins is one of the consequences of Hopkins’s own failure to properly investigate the site before submitting its bid on the Project. The record reflects that Hopkins’s own project supervisor, Jason Keller, testified that the tunnel top demolition was an element in the contract and that the contract required Hopkins to fill those tunnels with sand using whatever method it chose. Additionally, Mr. Keller testified that Hopkins had requested and obtained permission to leave the broken-up concrete in the tunnels rather than having to remove it. Finally, Mr. Keller acknowledged that Change Order No. 3, which amended the contract, allocated an additional $25,000.00 to Hopkins to cover all past, present and future time and materials claims, which would include the tunnel top demolition.

| gpThe trial court denied this claim on the basis that it, along with all other time and materials claims, was settled by Change Order No. 3. The record supports the trial court’s finding. We therefore decline to disturb this ruling.

C. Grading of a larger surface area

The trial court denied Hopkins’s claim seeking additional compensation in the amount of $64,328.67 for having to spread base course over a larger surface area than contemplated in its bid. Hopkins contends that because the Port reduced the thickness of the base course from twelve inches to nine inches over most of the Project, Hopkins was required to spread, grade and finish a larger surface area. Hopkins further contends that the Port wrongfully refused to agree to a price adjustment for this “clearly significant” change.

As the Port points out, the contract price was based upon the amount of base course used, not the surface area. The Port argues that Hopkins’s compensation did not change because the parties agreed to reduce the thickness of the base course layer from twelve inches to nine inches, but to spread the same amount of base course over a larger surface area. There was never an agreement to change the method of pricing. Hopkins was paid by the cubic yard for the amount of base course used, which complied with the contract.

In denying this claim, the trial court found that if the twelve-inch depth had been used as originally planned, it would have required Hopkins to place the base course material twice: one shallow layer laid and compacted with a second layer laid and compacted over the first. The record supports the trial court’s conclusion. | ⅞1We find no manifest error in the trial court’s denial of this claim, and therefore decline to reverse that ruling.

D. Installation of additional fill material

Hopkins argues on appeal that the trial court should have awarded it an additional $73,492.79 for the placing of extra fill material in the North stack area. Hopkins contends that because the finished grade elevation of this area was changed from twelve inches to nine inches, Hopkins was required to install more fill than originally contemplated. Jason Keller testified that Hopkins chose to use base course instead of sand for additional fill material in the pot line area because Hopkins was having a problem grading the sand. As a result, Hopkins wound up using more base course, but less sand, than planned for the entire Project. Because the contractual unit price for sand was lower than that for base course, Hopkins sought compensation for the additional base course used at the sand rate. Mr. Keller testified that Hopkins had hired Alpha Testing to perform a survey upon which the calculations necessary to determine the amount of compensation due had been based.

Hopkins’s claim was rejected by the trial court but not addressed in the Reasons for Judgment. Arguing that the trial court did not err by rejecting this claim, the Port emphasizes Mr. Keller’s admissions that Hopkins had chosen to substitute base course for sand without the permission of the Engineer or the Port, and that there was no contractual provision for the payment of base course when used in lieu of sand. The Port also points out that the Engineer had rejected UgHopkins’s calculation (the “Wink calculation”) and had refused to use it as a basis for payment.

Viewing the record as a whole, we do not find sufficient evidence to demonstrate that the trial court’s failure to award Hopkins the compensation sought in this instance was clearly wrong or manifestly erroneous. Accordingly, we decline to disturb the trial court’s ruling.

E. Concrete demolition and concrete box construction

The trial court denied Hopkins’s claims seeking $12, 444.75 for the demolition of a large tank foundation and several large footings encountered in the North stack area after the grade elevation was changed, and $8,225.02 for the construction of a concrete box around three existing pipes, which had been broken by a third party. In refuting this claim, the Port relies upon the testimony of Jerry Graves that these items would have been paid on a time and materials basis, and therefore were covered by Change Order No. 3, which settled all such claims by a $25,000.00 payment to Hopkins. The trial court found that all claims for additional demolition and/or removal of underground obstructions in the North stack area were “settled in the agreement by the Port ... contained in change Order # 3.” The record does not show this conclusion to be manifestly erroneous. We therefore decline to disturb the trial court’s ruling.

III. Whether Hopkins is entitled to the unpaid balance of the contract

The trial court awarded Hopkins the unpaid balance of the contract, which the parties agreed was $459,081.86, subject to deductions for the damages due to l^the Port for Hopkins’s unfinished and/or improperly performed work. The Port argues that this award is manifestly erroneous because Hopkins’s breach of the contract, causing damages to the Port, precludes a finding that “substantial completion” was achieved. The Port further contends that substantial completion would be necessary for the trial court to grant Hopkins the unpaid balance of the contract. In support of this contention, the Port cites Pete’s Plumbing and Heating, Inc. v. Geissert, 413 So.2d 554 (La.App. 4th Cir.1982), for the proposition that, where there has not been substantial completion, the contractor bears the burden of proving that it is entitled to any compensation. The Port thus contends that Hopkins failed to prove its entitlement to the unpaid balance.

The Port’s reliance upon Pete’s Plumbing and Heating v. Geissert is misplaced. Whether there was substantial completion is not at issue in the instant case. On the issue of Hopkins’s entitlement to the unpaid balance of the contract, both Hopkins and the Port rely upon the same contractual provision, Section 15.2.9, which reads, in pertinent part:

OWNER may, after giving CONTRACTOR seven days’ written notice ... terminate the services of CONTRACTOR, exclude CONTRACTOR from the site and take possession of the Work ... and finish the Work as OWNER may deem expedient. In such case, CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the contract price exceeds the direct, indirect and consequential costs of completing the Work ... such excess will be paid to CONTRACTOR. If such costs exceed such unpaid balance, CONTRACTOR shall pay the difference to OWNER.

Significantly, the above-cited provision does not mention substantial completion. Moreover, a plain reading of this provision refutes the Port’s argument. The stipulation that the Contractor is not “entitled to receive any further payment until l^the Work is finished” obviously contemplates the Work having been finished by the Oumer (or by whomever he has hired to finish it), rather than by the Contractor. In fact, by awarding Hopkins the unpaid balance of the contract after deducting the damages caused by Hopkins to the Port, the trial court complied exactly with the above-quoted contractual provision. We therefore reject this assignment of error by the Port.

IV. Whether the Port is entitled to additional liquidated damages

Prior to trial, the Port had withheld from Hopkins 42 days of liquidated damages at $500.00 per day, which equals $21,000.00. At trial, the Port sought 91 additional days of liquidated damages at $500.00 per day, or $46,000.00. The trial court awarded the Port the additional $46,000.00. Therefore, the total amount of liquidated damages covered 133 days, the time between the Project’s extended completion date of September 14, 2001, through the Port’s termination of Hopkins in February, 2002. Hopkins contends that the amount awarded by the trial court was clearly wrong considering that Hopkins worked for approximately sixteen months on a project that was originally scheduled to be completed in 150 days, an indication that the scope of the Project turned out to be substantially different from what was initially contemplated by the parties.

The Port emphasizes that Hopkins’s argument ignores the effect of Change Orders Nos. 1, 2, and 3, which extended the total contract time to 405 days. In addition, the Port points out that under the contract, the Port could have assessed liquidated damages of $2000.00 per day after the first 7 days, which the Port did not seek to do.

With regard to liquidated damages, the contract in Section 00850, SP (Special Provision)^, provides, in pertinent part:

| ^LIQUIDATED DAMAGES. Time is an essential condition of the contract. Should the Contractor fail or refuse to perform the work within the contract time stipulated herein, the Contractor agrees to pay to the Owner ... the sum of $500.00 per day for each calendar day for the first seven (7) calendar days and $2,000.00 per day for each calendar day thereafter beyond the completion time specified unless the contract time is extended by the Owner. The Owner shall retain the amount of such damages from any money due or to become due the Contractor under this contract without the necessity of the Owner putting the Contractor or his Surety either or both in default.

In its Reasons for Judgment, the trial court stated that the Port’s claim for liquidated damages was justified based upon its findings that: “Hopkins did not only underbid the project, but did not do adequate investigation of the amount and nature of the work to be performed under the contract before it submitted its bid. Further, delays caused by machinery (concrete crusher) failure, supervisory problems, manpower problems, and improper performance caused delays to the project that cannot be attributed to the Port.” Based upon the record, we find no manifest error in the trial court’s conclusion. We therefore decline to disturb the award of liquidated damages.

V. Whether the Port is entitled to attorney’s fees

The trial court declined to grant the Port’s claim seeking $147,503.00 in attorney’s fees. In its Reasons for Judgment, the trial court indicated that the language of the contract providing for indemnification and attorney’s fees applied only to third-party actions brought against the Owner or Engineer for loss or damage attributable to the contractor’s negligence, not to actions between the parties to the contract. Section 6.30 of the contract provides, in pertinent part:

CONTRACTOR shall indemnify and hold harmless OWNER and ENGINEER ... from and against all claims, damages, losses and 12f,expenses ... (including but not limited to fees and charges of ... attorneys ...) arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible property (other than the Work itself) ... and (b) is caused in whole or in part by any negligent act of omission of CONTRACTOR....

Citing Cox Communications v. Tommy Bowman Roofing, LLC, 2004-1666 (La.App. 4 Cir. 3/15/06), 929 So.2d 161, the Port argues that the trial court erred in interpreting this provision. In Cox, this court held that an indemnity provision in a roofing contract was not limited to third party claims, but could also apply to claims for negligent performance brought by one contracting party against the other.

However, the Cox case is not dis-positive of the issue presented here, which is not indemnity for negligent performance, but rather the Port’s entitlement to attorney’s fees. Unlike the instant case, Cox did not involve reciprocal claims by each contracting party alleging that the other had not fulfilled its obligations under the contract. In the instant case, both Hopkins and the Port prevailed on some of their claims. Moreover, the contract between them strictly limits indemnity claims to those arising out of negligent acts or omissions, whereas the claims involved in this suit are for breach of contract. The Port’s reliance upon Cox is therefore misplaced.

As this court has held, whether to award attorney’s fees in a particular case is left to the sound discretion of the trial court. Dixie Services, L.L.C. v. R&B Falcon Drilling USA Inc., 2005-1212, 2006-1209 (La.App. 4 Cir. 3/21/07), 955 So.2d 214, 220. We find no abuse of discretion in the trial |j>7court’s decision to deny the Port attorney’s fees in this instance, and therefore decline to disturb the trial court’s ruling in this respect.

CONCLUSION

For the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED

      . The parties agreed that the Project was to be governed by the Louisiana Standard Specifications for Roads and Bridges, 2000 ed., State of Louisiana, Department of Transportation and Development (also known as "the Red Book”).

      . The parties agreed that the unpaid balance on the contract was $459,081.86.

      . Hopkins obtained an order appealing both the September 1st judgment and the September 6th amended judgment, but does not assert any assignments of error related to the September 1 st j udgment.

      . In its Reasons for Judgment the trial court states: "Piles of sand were left on the site by Hopkins when it abandoned the Project.”

      . See footnote 1, supra.


author: ROBERTA. CHAISSON, Judge.

text:
    LEBEOUF REAL ESTATE COMPANY v. Barbara Q. LEBEOUF, Troy M. Lebeouf, Charmaine Lebeouf, Catherine Lebeouf Moore, and the Succession of Elmo F. Lebeouf, Jr.
    No. 12-CA-385.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 17, 2013.
    Stephen D. Marx, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Kim Segura Landry, Attorney at Law, Gonzales, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   ROBERTA. CHAISSON, Judge.

|aThe judgment at issue here resulted from a motion for summary judgment urged by plaintiffs in this declaratory judgment action. The motion presented two issues: 1) did the defendant — owners properly withdraw from the partnership, and 2) did the remaining owners tender the proper amount to the withdrawing owners for their share of the partnership?

The trial judge ruled that the defendant owners did properly withdraw, but that these parties retained the right to contest the amount tendered by the remaining owners. In effect, the judgment grants the motion for summary judgment as to the first issue, but denies it as to the second. Plaintiffs, the remaining owners, appealed that judgment as to the second issue. No one appealed the judgment as to the first issue.

What is in fact being appealed, therefore, is the denial of a motion for summary judgment. Article 1915(B)(1) of the Code of Civil Procedure provides that when a court renders a “partial summary judgment,” that judgment shall not be a final, appealable judgment unless designated as a final judgment by the court. However, before such a designation may be made, the judgment must first be one | ¡¡granting a summary judgment, not one denying a summary judgment. A denial of a summary judgment is clearly an interlocutory judgment and is appealable only when expressly provided by law. La. C.C.P. art. 2083(C). We know of no law which would authorize the appeal of such a judgment, and the parties have not shown otherwise.

In the above circumstances, this court lacks jurisdiction to entertain this matter as an appeal. Accordingly, the appeal is dismissed. Plaintiffs-appellants are given 30 days from this date to perfect a writ application in the matter if they so desire.

APPEAL DISMISSED


author: EDWIN A. LOMBARD, Judge.

text:
    Bryan MULVEY v. DEPARTMENT OF POLICE.
    No. 2012-CA-1041.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2013.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Richard Cortizas, City Attorney, Shar-onda R. Williams, Chief of Litigation, Shawn Lindsay, Elizabeth Robins, Assistant City Attorneys, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

hThe Appellant, Officer Bryan Mulvey, seeks review of the decision of the Civil Service Commission, denying his appeal of a four (4) day suspension imposed by the appointing authority, the New Orleans Police Department. Finding that the investigation of the appointing authority was not conducted in accordance with the minimum standards provided for in La.Rev.Stat. 40:2531, we reverse the decision of the Commission and render the discipline imposed against Officer Mulvey an absolute nullity.

Officer Mulvey is employed by the New Orleans Police Department (“NOPD”) as a Police Officer III with permanent status. On March 16, 2011, the NOPD issued a disciplinary letter to Officer Mulvey wherein the NOPD stated that it determined that Officer Mulvey violated the rule relative to neglect of duty. Specifically, the NOPD concluded that Officer Mul-vey violated the rule that requires officers to “thoroughly search for, collect, preserve and identify evidence in an arrest or investigative situation.” Rule 4: Performance of Duty, paragraph 4-Neglect of Duty, (c)(8). As a result, the NOPD suspended Officer Mulvey for four (4) days.

| «.Officer Mulvey appealed the suspension to the Civil Service Commission (“Commission”), which appointed a hearing officer to receive testimony. At the hearing, the NOPD called Sgt. Andre LeBlanc, who is assigned to the Public Integrity Bureau (PIB), to testify. Sgt. LeBlanc testified that he received a complaint that Officer Mulvey failed to thoroughly investigate a report of a missing teenager. The complainant, Brunella Heary-Ramirez (Mrs. Heary-Ramirez), alleged that she provided information about her missing step-daughter to Officer Mulvey, who failed to investigate said information. Specifically, Mrs. Heary-Ramirez provided information that an individual with the Salvation Army was seen earlier in the week speaking to children in her neighborhood about an after school program. After reporting her step-daughter missing, Mrs. Heary-Ramirez remembered the man from the Salvation Army and went there to question him. The gentleman gave his name and telephone number to Mrs. Heary-Ramirez, which she then provided to Officer Mulvey. Sgt. LeBlanc testified that although Officer Mulvey determined that the information was not credible, Officer Mulvey should have contacted the Salvation Army and asked questions. When asked how Officer Mulvey’s actions impaired the efficiency of the operations of the NOPD, Sgt. LeBlanc testified that he did not know.

Sgt. LeBlanc further testified as to the length of the investigation of Officer Mul-vey. He testified that the investigation began on June 18, 2010, and Officer Mul-vey received notice of a disciplinary hearing on December 7, 2010. Sgt. LeBlanc noted that on September 24, 2010, Officer Mulvey received notice that the investigation had been completed, and the notice stated that Officer Mulvey would be “notified if a disciplinary hearing is required.”

l-iNext, Mrs. Heary-Ramirez testified that she contacted the NOPD upon realizing that her step-daughter was missing. After the initial call, Mrs. Heary-Ramirez stated that an additional four to seven calls were made to the NOPD wherein she provided information to the responding officer. Mrs. Heary-Ramirez testified that earlier in the week, she observed a Salvation Army employee approach her children and tell them about an after-school program. When Mrs. Heary-Ramirez found her step-daughter missing, she thought the Salvation Army employee may be involved as his behavior earlier in the week was unsettling. Mrs. Heary-Ramirez testified that she and her husband went to the Salvation Army, located the employee, questioned him, and obtained his name and telephone number. Mrs. Heary-Ramirez testified that she provided this information to Officer Mulvey as she believed that the police could do a better job of questioning the individual. Mrs. Heary-Ramirez further testified that she became upset upon later learning that Officer Mulvey did not look into the information provided about the Salvation Army employee.

Lastly, Officer Mulvey testified that he received several of the follow-up calls from Mrs. Heary-Ramirez. Officer Mulvey testified that while he is not a detective, he followed up on the information provided by Mrs. Heary-Ramirez that he believed might result in the return of her stepdaughter. Officer Mulvey noted that he received the information regarding the Salvation Army employee around 5:00 p.m. on a Saturday, and that his shift ended at 11:00 p.m. Officer Mulvey noted that Mrs. Heary-Ramirez felt that her step-daughter had been kidnapped. Based on his experience and training, Officer Mulvey believed that the stepdaughter was a runaway, not a kidnapping victim. Officer Mulvey further testified that, based on his experience and training, he determined that the | information regarding the Salvation Army employee was not credible, as the employee gave his name and telephone number to Mrs. Heary-Ramirez. Additionally, the Salvation Army is an adult shelter that does not provide shelter to runaway juveniles.

After reviewing the testimony and evidence, the Commission determined that police officers are to utilize their training and experience in the field. The Commission noted that Officer Mulvey investigated credible leads. The Commission further found that Officer Mulvey did not investigate the Salvation Army lead because he believed that the information was not credible, not because the information was received at the end of his shift. However, the Commission determined that Officer Mulvey should have investigated the information regarding the Salvation Army employee, if only to assure the parents that the matter was being taken seriously. Thus, the Commission denied the appeal of Officer Mulvey.

Officer Mulvey timely filed the instant appeal in our Court, and raises two (2) assignments of error:

1. The Commission erred in not overturning the discipline imposed because the NOPD failed to meet the requirements of La.Rev.Stat. 40:2531(B)(7); and
2. The Commission erred in finding that legal cause existed to discipline Officer Mulvey.

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such | ¡^discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 04-1888, pp. 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const. art. X, § 12; Cornelius v. Dept. of Police, 07-1257, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 00-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

As we further explained in Cure, 07-0166, p. 2, 964 So.2d at 1094-95:

The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Civil Service Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. A decision by the Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Civil Service Commission. [Citations omitted.]

Furthermore, the Louisiana Supreme Court has explained that “it is well settled in the jurisprudence that in civil service cases if there is any evidence before the commission showing that the employee’s conduct is prejudicial to the service, | fiits ruling will not be disturbed.” Leggett v. Nw. State Coll., 242 La. 927, 939, 140 So.2d 5, 10 (1962).

In the first assignment of error, Officer Mulvey argues that the Commission erred by not overturning the discipline because the NOPD failed to meet the minimum standards set forth in La.Rev.Stat. 40:2531(B)(7). The minimum standards presented therein require that an investigation of a police officer to be completed within sixty days. La.Rev.Stat. 40:2531(B)(7). La.Rev.Stat. 40:25S1(B)(7) specifies that the investigation shall be considered complete upon notice to the employee “of a pre-disciplinary hearing or a determination of an unfounded or un-sustained complaint.”

|7In this case, the NOPD presented evidence that the investigation commenced on June 29, 2010. The NOPD received a sixty day extension, giving the NOPD until October 16, 2010, to complete the investigation. On September 24, 2010, the NOPD presented Officer Mulvey with a notice which stated that the investigation was completed, and that he would be “notified if a disciplinary hearing is required.” The notice further stated that “the investigator’s recommended disposition” was that the alleged violation be sustained. Thus, the NOPD argues that Officer Mulvey received notice within the time required by La.Rev.Stat. 40:2531(B)(7).

The NOPD further argues that even if we find that the investigation was untimely completed, we should nevertheless uphold the disciplme imposed pursuant to Cornelius v. Dept. of Police, 09-1459 (La.App. 4 Cir. 6/9/10), 41 So.3d 617. The NOPD alleges that in Cornelius, we considered a violation of La.Rev.Stat. 40:2531, and the penalty provision presented in section C of the statute; yet, we denied the request of a NOPD officer, the appellant, to find the discipline imposed to be an absolute nullity. In Cornelius, the appellant raised the issue of whether the Commission erred in upholding the discipline imposed because the appointing authority did not record the officer’s statement during an informal DI-3 investigation that later became a formal DI-1 investigation. The appellant argued that this was a violation of the Police Officers’ Bill of Rights, La.Rev.Stat. 40:2531(B)(3), rendering the discipline an absolute nullity pursuant to La.Rev.Stat. 40:2531(C). Our Court held that this assignment of error was without merit because during the course of the formal DI-1 investigation a recorded administrative statement was produced; thus, the appellant was afforded all the rights guaranteed pursuant to La.Rev.Stat. 40:2531.

|8We find Cornelius to be distinguishable from the matter sub judice. In Cornelius the Commission did not err in upholding the discipline imposed by the appointing authority where the formal DI-1 investigation was conducted in compliance with La. Rev.Stat. 40:2581(C), whereas in the instant matter the investigation of the appointing authority was non-compliant due to its untimeliness.

As Officer Mulvey contends, on November 29, 2010, after the October 16, 2010 deadline, he received notice of the pre-disciplinary hearing set for December 18, 2010. He argues that the notice dated November 29, 2010, failed to comply with the time requirement provided in La.Rev. Stat. 40:2531. We agree.

As previously stated, La.Rev.Stat. 40:2531(B)(7) specifies that the investigation shall be considered complete upon notice of the employee “of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint.” Although, as stated above, the NOPD provided a notice dated September 24, 2010, said notice did not definitively state that a pre-disciplinary hearing was scheduled. Furthermore, the NOPD presented no evidence that Officer Mulvey received notice of a pre-disciplinary hearing before the October 16, 2010 extension deadline.

We explained in Carter v. Dept. of Police, 09-0723, p. 4 (La.App. 4 Cir. 10/21/09), 24 So.3d 255, 258, that “the Louisiana Supreme Court found that the failure to comply with the sixty-day investigatory period required by La.Rev.Stat. 40:2531 is relevant as to whether the appellant is prejudiced by that failure, but does not require summary dismissal.” Id. (Quoting Marks v. NOPD, 06-0575, p. 12 (La.11/29/06), 943 So.2d 1028, 1036). In Marks, the Supreme Court reasoned that La.Rev.Stat. 40:2531 did not “establish a penalty for non-compliance and in|flthe absence of prejudice”, the Supreme Court held that it could not supply a penalty. Id.

However, La.Rev.Stat. 40:2531 was amended by the Louisiana legislature after the Marks decision, by Acts 2007, No. 258. Said amendment added section C to La.Rev.Stat. 40:2531, which provides:

C. There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity. [Emphasis added.]

“Prior to the 2007 amendments to LSA-REV. STAT. 40:2531, the statute contained no penalty provision for non-compliance with the sixty-day rule.” Landry v. Baton Rouge Police Dept., 08-2289, p. 6 (La.App. 1 Cir. 5/8/09), 17 So.3d 991, 995. Presently, non-compliance with the minimum standards set forth in La.Rev.Stat. 40:2531 results in the discipline imposed being declared an absolute nullity.

In the instant matter, the NOPD issued its September 24, 2010 notice to Officer Mulvey that its investigation was complete, but further stated, “[y]ou will be notified if a disciplinary hearing is required.” The September 24, 2010 notice does not meet the statutory requirements of La.Rev.Stat. 40:2531(B)(7) because the NOPD had not yet determined whether the allegations against Officer Mulvey merited holding a pre-disciplinary hearing. We note that La.Rev.Stat. 40:2531(B)(7) specifies that with regard to pre-disciplin-ary hearings, an investigation is not complete until an officer has received notice of a hearing. |inWhen, as in the instant matter, the appointing authority is considering holding a disciplinary hearing and has already received the maximum sixty-day extension, a notice that does not timely alert an officer as to whether a disciplinary hearing is definitively required is deficient, dilatory and fails to sufficiently alert an officer of the status of his or her investigation. Furthermore, the record reveals that Officer Mulvey received notice of a pre-disciplinary hearing two (2) months after the September 2010 notice was sent, on November 29, 2010, which is more than a month past the October 16, 2010 extension deadline granted to the appointing authority. Therefore, we find that the investigation by the appointing authority of Officer Mulvey was non-compliant with the minimum standards set forth in La.Rev.Stat. 40:2531(B)(7), and the discipline imposed against him is rendered an absolute nullity-

We further note, however, that Officer Mulvey violated Uniform Rules, Courts of Appeal, Rule 3-1.1. Rule 3-1.1 provides, in pertinent part, that every application for an appeal from an administrative body shall include an assignment of errors, which shall set out separately each error asserted and a designation of the record to be incorporated with the transcript. Officer Mulvey filed an application with the Commission for an appeal wherein he listed two (2) assignments of error: 1) the Commission erred in determining that he was disciplined for cause, and 2) the Commission erred when it determined that his behavior bore a real and substantial relationship to the efficiency of the public service. Nevertheless, Officer Mul-vey did not assign as error that the Commission erred by not overturning the discipline imposed because the NOPD failed to meet the minimum standards set forth in La.Rev.Stat. 40:2531(B)(7). Rule 3-1.1 does not provide a penalty for a violation thereof.

luThe Louisiana Supreme Court in IT Corp. v. Comm’n on Ethics for Pub. Employees, 464 So.2d 284 (La.1985), addressed a violation of Rule 3-1.1. In IT, the appellant raised six (6) assignments of error, one of which was whether the Commission on Ethics for Public Employees erroneously imposed two (2) $5,000.00 fines against the appellant under the pre-1980 Ethics Code. After addressing the merits of the assignment of error and determining that it was without merit, the Supreme Court further noted that the appellant had not complied with Rule 3.1-1, La.Rev.Stat. 42:1142, and Louisiana Court of Appeal, First Circuit, Rule 1. Id., 464 So.2d at 292. The NOPD argues that we should apply the IT holding to the instant matter, and find that Officer Mulvey abandoned the instant assignment of error. Nevertheless, we decline to create a penalty for Rule 3.1-1 where the assignment of error does have merit, and the Supreme Court has not held that a violation of Rule 3.1-1 alone requires the assignment of error to be deemed abandoned.

Lastly, we pretermit a discussion of the remaining assignment of error having determined that the penalty imposed by the Commission is an absolute nullity.

CONCLUSION

For the foregoing reasons, the decision of the Civil Service .Commission is reversed and the discipline imposed by the appointing authority is rendered an absolute nullity.

REVERSED

BELSOME, J., concurs in the result.

      . La.Rev.Stat. 40:2531(B)(7) provides:
      B. Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:

        (7) When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the police employee or law enforcement officer who is under investigation. The police employee or law enforcement officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the police employee or law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disci-plinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.