author: CIKLIN, J.

text:
    REGIONS BANK, an Alabama banking corporation, successor by merger with Union Planters Bank, N.A., Appellant, v. Paul RHODES and Sunset Lakes of St. Lucie, LLC, a Florida limited liability company, Appellees.
    No. 4D13-72.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Gary T. Stiphany and Jonathan H. Kaskel of Garbett, Stiphany, Allen & Roza, P.A., Miami, for appellant.
    William H. Pincus of Pincus & Currier LLP, West Palm Beach, for appellee Paul Rhodes.
   CIKLIN, J.

The appellant, Regions Bank (“Regions”), appeals the trial court’s order denying the bank’s motion for attorneys’ fees and costs under its proposal for settlement. Regions argues that the court erred in finding the proposal was premature and thus invalid under Florida Rule of Civil Procedure 1.442(b). We affirm because, like the trial judge, we find the proposal for settlement was served less than ninety days after the action commenced as to Regions, and thus the proposal was not in compliance with the rule.

On March 3, 2010, Interstate Citrus Partners brought suit against Sunset Lakes of St. Lucie, LLC. Later, the ap-pellee, Paul Rhodes (“Rhodes”), was substituted as the plaintiff. With the court’s permission, Rhodes filed a second amended complaint which added Regions as a defendant. The second amended complaint was deemed filed on May 27, 2010, the date the court entered its order permitting the second amendment.

On June 30, 2010, Regions served Rhodes with its offer of judgment and proposal for settlement pursuant to section 768.79, Florida Statutes (2010), and Florida Rule of Civil Procedure 1.442. After the court entered summary judgment in favor of Regions, Regions moved for attorneys’ fees and costs under the offer of judgment and proposal for settlement. Rhodes opposed the motion and argued the proposal was premature under Rule 1.442. The court agreed and entered an order denying fees.

“The standard of review in determining whether a proposal for settlement complies with section 768.79, Florida Statutes ... and Florida Rule of Civil Procedure 1.442 is de novo.” Palm Beach Polo Holdings, Inc. v. Madsen, Sapp, Mena, Rodriguez & Co., P.A., 957 So.2d 36, 37 (Fla. 4th DCA 2007) (citation omitted).

Section 768.79(1), Florida Statutes (2010), governs offers of judgment and provides in relevant part: “[I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred ... from the date of filing of the offer if the judgment is one of no liability .... ” The statute does not provide time frames for service of offers of judgment because such timing requirements are procedural and governed by Florida Rule of Civil Procedure 1.442. Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262, 264 (Fla. 4th DCA 2000) (citing Timmons v. Combs, 608 So.2d 1 (Fla.1992)). Rule 1.442 provides the following relevant time requirement: “[A] proposal to a plaintiff [by a defendant] shall be served no earlier than 90 days after the action has been commenced.” Fla. R. Civ. P. 1.442(b).

Regions argues that the settlement proposal was timely under the plain language of Rule 1.442(b), as it was served on Rhodes more than ninety days after the filing of the initial complaint, which did not name Regions as a defendant. Alternatively, Regions argues that a premature offer by a defendant does not invalidate a proposal for settlement because it is a harmless technical violation of Rule 1.442(b).

Rhodes argues that the action commenced when Regions was first named as a defendant — in the motion for leave to amend the complaint — and thus the proposal was premature. Rhodes urges that a premature offer by the defendant is invalid.

We are called upon to address two issues: (1) whether the proposal for settlement was premature under the plain language of Rule 1.442(b) because it was served earlier than ninety days after commencement, and (2) if so, whether a defendant’s premature proposal invalidates the proposal.

Turning to the first issue, the rule is clear that the proposal must be made no earlier than ninety days after “the action has been commenced.” Fla. R. Civ. P. 1.442(b). Florida Rule of Civil Procedure 1.050 provides that “[e]very action of a civil nature shall be deemed commenced when the complaint or petition is filed .... ” The only complaint filed that included an action against Regions was the second amended complaint, which was deemed filed on May 27, 2010. As the offer of judgment was served on June 30, 2010, it was premature.

Regions alternatively argues that a premature offer made by a defendant to a plaintiff is not invalid because no prejudice to the plaintiff occurs. This court has held that an analysis of possible prejudice was not relevant in that the offer either complied with the procedural timing requirements or it didn’t. Under Rule 1.442, any premature offer is an invalid offer. See Grip Dev., Inc., 788 So.2d at 264-65. Although Grip involved a plaintiffs premature proposal for settlement, Rule 1.442 does not distinguish between a plaintiffs settlement proposal and a defendant’s settlement proposal. Regions relies on two Third District cases where the court held that the premature offers of judgment were harmless technical violations that did not invalidate the offers. See Shoppes of Liberty City, LLC v. Sotolongo, 932 So.2d 468, 469 (Fla. 3d DCA 2006); Kuvin v. Keller Ladders, Inc., 797 So.2d 611, 612-13 (Fla. 3d DCA 2001). However, the Third District’s focus on whether the violation of the rule may be harmless is contrary to the strict construction approach taken by the Florida Supreme Court. See Campbell v. Goldman, 959 So.2d 223, 226-27 (Fla.2007) (finding that an offer of judgment which referenced Rule 1.442 but failed to cite section 768.79, Florida Statutes, as required by the offer of judgment statute and Rule 1.442, rendered the offer invalid, and rejecting the “mere technical violation” rationale adopted by the Fourth and Fifth Districts).

Simply stated, because the proposal for settlement was served less than ninety days after the action commenced as to Regions, it did not meet the plain language requirements of Rule 1.442. Therefore, the trial court did not err in denying the motion for fees and costs that was based on a premature proposal. To the extent the Third District’s opinions in Kuvin, 797 So.2d 611, and Sotolongo, 932 So.2d 468, could be read as holding that a “harmless” or “mere technical violation” exception applies to compliance with the plain language requirements of Rule 1.442, we certify conflict.

Affirmed; conflict certified.

MAY, J., and SCHIFF, LOUIS, Associate Judge, concur.

      . Section 768.79, Florida Statutes (2010), governs offers of judgments. The procedural companion to the statute, Rule 1.442, is titled "Proposals for Settlement,” but provides that the "rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals ....” Fla. R. Civ. P. 1.442(a).

      . Relying on Third District cases, Regions argues in tire initial brief that its premature offer as a defendant should not be treated in the same manner as a premature offer by a plaintiff, because plaintiffs have "plenty of time to consider the merits of the claim well before asserting it,” and thus are not prejudiced by a premature offer made by a defendant.

      . It is not necessary for us tó decide whether the complaint was "filed” on (I) the date the motion to amend was filed, (2) the date the court deemed the amended complaint filed, or (3) the date the amended complaint was filed with the clerk, because the proposal was premature using any of these dates.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jason ELSNER, individually, Luca Minna, individually, Global Trading & Marketing, LLC, a Florida limited liability company, Oro Companies, LLC, a foreign limited liability company, Petitioners, v. E-COMMERCE COFFEE CLUB, a Florida General Partnership, Espresso Italiano Holding, LLC, a Florida limited liability company, Miga Holdings, Inc., a Delaware Corporation, Co-Energy, Inc., a foreign corporation, and Antonio Angelico, an individual, Respondents.
    No. 4D13-131.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Jonathan A. Heller of the Law Offices of Jonathan A. Heller, P.A., Miami and Jeffrey A. Sarrow, Coral Springs, for petitioners.
    Ira Marcus of Ira Marcus, P.A., Fort Lauderdale, for respondents.
   PER CURIAM.

The defendants in ongoing litigation among business partners seek a writ of certiorari to quash a discovery order which compelled the production of financial documents from two of the defendants. The discovery is allegedly relevant to claims in the verified amended complaint that these defendants have misappropriated funds and breached fiduciary duties. Because petitioners have failed to establish that the trial court’s order departs from the essential requirements of law, we deny the petition.

“[T]he disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.” Friedman v. Heart Inst. of Port St. Lucie, 863 So.2d 189, 194 (Fla.2003) (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002)). But, “where materials sought by a party ‘would appear to be relevant to the subject matter of the pending action,’ the information is fully discoverable.” Bd. of Trs. of the Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 458 (Fla.2012) (citations omitted). “The concept of relevancy has a much wider application in the discovery context than in the context of admissible evidence at trial.” Id.

“A party’s finances, if relevant to the disputed issues of the underlying action, are not excepted from discovery under this rule of relevancy, and courts will compel production of personal financial documents and information if shown to be relevant by the requesting party.” Friedman, 863 So.2d at 194. A trial court has broad discretion in controlling discovery and in balancing “ ‘the right to privacy and the right to know.’” Id. (citations omitted). The trial court’s discretion in this regard is not limited by specific rules or formulas. All About Cruises, Inc. v. Cruise Options, Inc., 889 So.2d 905, 907 (Fla. 4th DCA 2004) (quoting Friedman, 863 So.2d at 195).

Trial court rulings on discovery issues must stand except in extraordinary cases. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099-1100 (Fla.1987). While the potential invasion of privacy may provide a threshold showing of irreparable harm, certiorari may be granted only where the petitioner “affirmatively estab-lishe[s]” that the financial information is irrelevant to any issue in the litigation and not likely to lead to the discovery of admissible evidence. See Bd. of Trs., 99 So.3d at 457 (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla.1995)). The heavy burden in a certiorari proceeding is on the petitioner, who must show that the trial court’s order departs from the essential requirements of law. Where the petitioner fails to clearly establish that the financial information is wholly irrelevant to any issue in the litigation, certiorari is inappropriate. See id.

We reject petitioners’ argument that the trial court departed from the essential requirements of law in failing to conduct an evidentiary hearing before compelling discovery of the financial information. Petitioners rely on language in Borck v. Borck, 906 So.2d 1209, 1211 (Fla. 4th DCA 2005), Rowe v. Rodriguez-Schmidt, 89 So.3d 1101, 1103-04 (Fla. 2d DCA 2012), and Spry v. Professional Employer Plans, 985 So.2d 1187, 1188-89 (Fla. 1st DCA 2008). We find these cases distinguishable and decline to adopt a per se rule requiring a trial court always to conduct an evidentia-ry hearing before ordering financial discovery from a party. Such a mandatory rule would be inconsistent with the Florida Supreme Court’s refusal to limit the discretion of trial courts with specific rules or formulas. Friedman, 863 So.2d at 194-95.

Rowe and Borck concerned discovery from non-parties. Our decision in Borck observed that a non-evidentiary hearing had been held and that the trial court ordered the discovery from the non-parties based on representations of counsel “without any evidentiary inquiry.” 906 So.2d at 1211. Borck did not hold that an evidentiary hearing was mandatory in all circumstances. The court in Rowe likewise observed that no evidence had been presented to support the relevance of the financial discovery from the nonparty. The Rowe court granted certiorari because there was no evidentiary basis to support the discovery from the nonparty’s. 89 So.3d at 1004 (“Here, the trial court departed from the essential requirements of the law because it ordered production of a nonparty’s financial information without considering any evidence regarding its relevance.”).

Spry involved discovery of personal financial information from the claimant in a workers’ compensation case. Again, there was no evidentiary basis for concluding that the discovery was relevant to any issue in those proceedings. Spry, 985 So.2d at 1188 (“[T]he JCC [Judge of Compensation Claims] departed from the essential requirements of law by ordering discovery without considering evidence as to its relevance.”). The Spry court’s comment, that “[t]he relevance of financial information should be determined only after an evidentiary hearing,” id., is dicta. This comment should not be read to create a per se rule requiring trial courts to conduct mini-trials on discovery issues in all cases. Indeed, the First District has not ruled that an evidentiary hearing is always required before a JCC may order financial discovery from a workers’ compensation claimant. See Jackson v. Computer Sci. Raytheon, 36 So.3d 754, 755 (Fla. 1st DCA 2010) (“[I]t is unnecessary to address the second argument as to whether a hearing must always be held prior to ordering the production of financial documents even when relevancy may be readily apparent.”).

The circumstances of this case are not like those in Borck, Rowe, or Spry, and we do not agree that a trial court must always conduct an evidentiary hearing before it may order financial discovery from a party. For example, we have not required an evidentiary hearing where a court has allowed a punitive damage claim and the accompanying broad financial discovery that is permitted from the party in that situation. Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996). All that is required is a “reasonable evidentia-ry basis” to allow the punitive damage claim to go forward. Henn v. Sandler, 589 So.2d 1334, 1335 (Fla. 4th DCA 1991).

The financial information requested here is relevant to the issues as framed by the pleadings. The plaintiffs verified amended complaint provided a reasonable eviden-tiary basis for the financial discovery. Petitioners have not shown a departure from the essential requirements of law.

At the time this petition was filed, the trial court had not heard petitioners’ motion to dismiss the verified complaint. Denial of this petition is without prejudice for petitioners to ask the trial court to exercise its discretion and stay the discovery pending a ruling on the motion to dismiss. See Deltona Corp. v. Bailey, 336 So.2d 1163, 1169-70 (Fla.1976); Capco Props., LLC. v. Monterey Gardens of Pinecrest Condo., 982 So.2d 1211, 1214 (Fla. 3d DCA 2008).

Petition for Writ of Certiorari Denied

STEVENSON, CIKLIN and CONNER, JJ., concur.


text:
    KATHLEEN G. KOZINSKI, P.A., Appellant, v. Jill A. PHILLIPS, Appellee.
    No. 4D13-293.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Kathleen G. Kozinski of Kathleen G. Ko-zinski, P.A., North Palm Beach, for appellant.
    Jeremy R. Bloor, Peter M. Bernhardt and Mary F. April of McDonald Hopkins LLC, West Palm Beach, for appellee.
   CIKLIN, J.

The plaintiff, Kathleen G. Kozinski, P.A. (“Kozinski”), appeals the trial court’s order granting the defendant Jill Phillips’s motion to vacate judgment and quash service of process (the “Order”). Among other things, Kozinski argues that the trial court erred by setting aside a judgment due to defective or irregular service of process more than a year after the court rendered the judgment. Kozinski also argues that the trial court erred by determining that the final judgment was void because Ko-zinski failed to file an original promissory note with the court before the court entered the judgment. We agree with Ko-zinski on both issues, and accordingly we reverse the trial court’s Order and remand the case to the trial court to reinstate the judgment in favor of Kozinski.

In July 2010, Kozinski entered into a fee agreement with Audre Phillips and her daughter, Jill Phillips, to represent them in trust litigation. In addition to setting an hourly rate and payment conditions, the fee agreement required Jill Phillips to execute a life insurance policy in lieu of a fee and cost retainer, to be paid to Kozinski in the event Jill Phillips died during the litigation. The fee agreement also required Jill Phillips to execute a promissory note stating that she or her successors would be obligated to pay Kozinski $750,000 for “value received.” Jill Phillips executed the promissory note in September 2010.

On December 22, 2010, Kozinski filed a complaint against Jill Phillips alleging that Phillips retained Kozinski “pursuant to a certain retainer agreement.” Kozinski further alleged that Phillips owed Kozinski $450,000, “but has not paid [Kozinski] pursuant to the terms and conditions of the retainer agreement, and [Kozinski] demands judgment therefore.” The complaint also asserted that Jill Phillips had executed a promissory note “[i]n order to secure fees and costs of [Kozinski].”

The bottom of the complaint included a section labeled “Acceptance of Service” which stated “Defendant, JILL A. PHILLIPS, hereby accepts personal service of the foregoing Complaint this 21st day of December, 2010, and agrees to the entry of judgment without further notice.” Jill Phillips signed the “Acceptance of Service” section. Kozinski attached copies of the fee agreement and promissory note to the complaint.

Kozinski then sent Jill Phillips a letter informing her that a complaint had been filed against her and requesting that Jill and Audre Phillips sign a waiver of conflict and waiver of summons. Kozinski also sent Jill Phillips a notice which again informed her that a complaint had been filed against her, that she had the right to hire an attorney to represent her in the action, and that if she failed to file written defenses, a default would be entered against her for the relief demanded in the complaint.

On December 23, 2010, Jill Phillips and Audre Phillips (despite the fact that Kozin-ski did not sue Audre) executed a document titled “Waiver of Service of Summons” which stated “We waive service of summons of the Complaint.” In the same waiver, Jill and Audre Phillips waived “any actual or perceived conflicts of interest” with Kozinski. Kozinski did not file this waiver with the trial court before the court entered the default judgment.

Kozinski filed a Motion for Default Final Judgment in the case against Jill Phillips. Kozinski sent Jill Phillips a notice of hearing on the motion. Phillips did not appear at the hearing, and on January 14, 2011, the trial court rendered a final judgment in favor of Kozinski in the amount of $450,000. The order noted that Jill Phillips personally accepted service, waived notice of hearing, received notice of the hearing, and did not appear at the hearing.

In October 2012 — about twenty-one months after the trial court rendered the final judgment in favor of Kozinski — Jill Phillips moved to vacate the judgment under Florida Rule of Civil Procedure 1.540. Among other reasons, Phillips argued the judgment was void and should be vacated because service of process on Phillips was improper, defective, and invalid, and because Kozinski failed to file the original promissory note in the action.

Kozinski filed a memorandum of law in response to the motion to vacate. Kozin-ski argued that defective service makes a judgment voidable, not void, and that the one-year limitation for moving to vacate a voidable judgment had passed. Kozinski also argued that filing the original promissory note was unnecessary because Kozin-ski was suing under the fee agreement, not the promissory note.

The trial court vacated the judgment, quashed the acceptance of service and waiver of service, and gave Kozinski 120 days to file a new complaint. In the Order, the trial court determined that the judgment was void, not voidable, because Phillips was never properly served. Because it was void, the trial court reasoned, the one-year time limitation was not applicable to Phillips. The court also concluded that without proper service, personal jurisdiction was actually never obtained over Phillips in the first instance. Finally, the court found that the judgment must be vacated because Kozinski failed to attach the original promissory note to her complaint or file the original promissory note with the court before the final judgment was entered.

Kozinski timely appealed the Order. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5).

Analysis

“An order granting a motion to vacate a default final judgment is reviewed under a ‘gross abuse of discretion’ standard.” DND Mail Corp. v. Andgen Props., LLC, 28 So.3d 111, 113 (Fla. 4th DCA 2010) (citations omitted). “A ruling on personal jurisdiction should be reviewed de novo.” Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (citation omitted).

Florida law clearly distinguishes between void judgments, which a party may move to vacate at any time, and voidable judgments, which a party must move to vacate within one year of the entry of the judgment. See Cannella v. Auto-Owners Ins. Co., 801 So.2d 94, 100 (Fla.2001) (citing Decker v. Kaplus, 763 So.2d 1229, 1230 (Fla. 5th DCA 2000)). A total lack of service of process renders a judgment void, not voidable. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1080 (Fla. 4th DCA 2000) (“[A] judgment entered without service of process on the defendant is void and may be attacked at any time ....”) (citations omitted). Defective service of process, however, renders a judgment voidable. See Cannella, 801 So.2d at 100; Decker, 763 So.2d at 1230.

As the Decker court explained:

A distinction is to be noted between a total want of service where the defendant received no notice at all, and a sendee which is irregular or defective but actually gives the defendant notice of the proceedings against him. The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned so that the judgment based upon it is voidable only and not void and cannot be collaterally attacked.

Decker, 763 So.2d at 1230 (quoting State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936)).

“It is only where service is so defective as to amount to no notice that a judgment is void, because then there is a denial of due process. Where notice is adequate, defects in process or service of process are waived if not timely raised.” Paleias v. Wang, 632 So.2d 1132, 1135 (Fla. 4th DCA 1994) (Klein, J., concurring specially) (citations and footnote omitted). Further, cases addressing insufficient service of process have emphasized that a defendant may not “simply ignore the process, sit idly by, let default be entered against it,” and then successfully move to set aside the judgment more than a year after it is rendered. Craven v. J.M. Fields, Inc., 226 So.2d 407, 410 (Fla. 4th DCA 1969). Instead, “[a] party complaining of an irregular service or return is required to move diligently to effectuate those remedies available to [the party] by our rules of civil procedure lest [the party] suffer the consequences.” Id.

In this case, Kozinski personally served the complaint on Jill Phillips, Kozinski mailed Phillips a notice with information typically included in a summons, and Ko-zinski sent Phillips a notice of the hearing on the motion for default judgment. We agree with Phillips that Kozinski never served Phillips with process in compliance with the statutes. Nevertheless, we conclude that Kozinski’s defective attempts at service of process were sufficient to put Phillips on notice of the proceedings against her. Because the defective service was sufficient to put Phillips on notice of the lawsuit against her, the one-year time limitation for voidable judgments applied and it was improper for the trial court to vacate the 2011 judgment almost two years after it was entered.

We stress that our holding should be limited to the facts of this case, in which Kozinski served Phillips with numerous, albeit defective, documents that undoubtedly gave Phillips multiple actual notices of the suit against her and her obligation to timely contest the action or risk a default judgment. A specific and unequivocal notice of the commencement of litigation is the purpose of service of process. We do not condone Kozinski’s method of commencing her lawsuit against Phillips, and our holding should not be construed as eliminating the need for proper service of process under the statutes.

We now turn to the second issue: whether the judgment was void because Kozinski failed to file the original promissory note before the trial court entered the final judgment. Kozinski was not required to file the original promissory note in her lawsuit because she sued under the fee agreement, not the promissory note. While the complaint could have been worded better, the complaint alleged that Phillips retained Kozinski and owed Kozinski $450,000 “but has not paid [Kozinski] pursuant to the terms and conditions of the retainer agreement.” The complaint did not seek to collect under the promissory note, and therefore Kozinski was not required to attach it.

For the foregoing reasons, we reverse the Order and remand the case with instructions to the trial court to reinstate the 2011 judgment.

Reversed and remanded with instructions.

WARNER and GERBER, JJ., concur.

      . On appeal, the parties dispute whether Jill Phillips effectively waived service of process. Because we conclude that the one-year time limitation for vacating the judgment applied, we do not reach the issue of whether Jill Phillips waived service of process.

      . Florida Rule of Civil Procedure 1.540(b) provides that “the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons ... that the judgment or decree is void ...."

      .A void judgment may be attacked at any time, but in order to attack a voidable judgment, the moving party has "one year after the final judgment [is] entered to move to set aside the judgment pursuant to Florida Rule of Civil Procedure 1.540(b).” Decker v. Kaplus, 763 So.2d 1229, 1230 (Fla. 5th DCA 2000) (citation omitted).

      . We suspect that, with the benefit of hindsight, Kozinski would have either properly served Phillips with process or taken greater care to ensure that her request for waiver of service of process complied with the strict requirements of Florida Rule of Civil Procedure 1.070(i).

      . Because we conclude that Kozinski was not required to attach or file the original promissory note, we do not address whether this was a proper argument for a 1.540(b) motion filed more than a year after judgment was entered.


text:
    STATE of Louisiana v. Darrell NEDD.
    No. 2013-KK-1068.
    Supreme Court of Louisiana.
    May 12, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 511-450; to the Court of Appeal, Fourth Circuit, No. 2013-K-0590.

Writ Granted. The Trial Court’s ruling granting the defendant’s subpoena duces tecum is hereby reversed. Compelled disclosure of the documents requested by the defendant would effectively reveal the identity of the State’s confidential informant, thereby impermissibly intruding upon the State’s “privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in investigation of a possible violation of a criminal law.” La. Code Evid. art. 514(A).

JOHNSON, C.J., and WEIMER and HUGHES, JJ., would deny the writ.


text:
    STATE of Louisiana v. Chasity ANDREWS.
    No. 2013-KK-1059.
    Supreme Court of Louisiana.
    May 13, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 515-510; to the Court of Appeal, Fourth Circuit, No. 2013-K-0588.

Writ granted. The trial court was within its authority to reduce the amount of bail and re-fix it at the amount originally set by the magistrate. At the hearing scheduled for May 14, 2013, if the district court reinstates the bond originally set, the court must do so in writing. See La.C.Cr.P. art. 338. Because this act would modify the bail order, a valid bail must be posted pursuant to La. C.Cr.P. art. 342.

GUIDRY and HUGHES, JJ, to deny.


text:
    Shelley McCLENDON and Johnny McClendon v. Adrienne WILLIAMS, M.D., P & S Surgery Center, L.L.C., and Rosemary B. Stage, M.D.
    No. 2013-C-0693.
    Supreme Court of Louisiana.
    May 24, 2013.
    Rehearing Denied Aug. 30, 2013.
   In re McClendon, Johnny; McClendon, Shelly; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Oua-chita, 4th Judicial District Court Div. I, No. 062269, Alvin R. Sharp, J.; to the Court of Appeal, Second Circuit, No. 47,-577-CW.

Granted. The judgment of the court of appeal is reversed. Case is remanded to trial court for further proceedings.

WEIMER, GUIDRY and CLARK, JJ„ would deny.


text:
    Phillip PATTERSON, et ux. v. STEPHENSON’S TREE SERVICE, LLC, et al.
    No. 2013-C-0684.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Patterson, Charlotte; Patterson, et ux., Phillip; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div., No. 2010-0323, H. Stephen Winters, J.; to the Court of Appeal, Second Circuit, No. 47,702-CA.

Granted. There are genuine issues of material fact regarding the cause of plaintiffs injuries and whether the source of liability is covered by defendant’s CGL policy with Maxum. Accordingly, the issues were not properly resolved by summary judgment and the judgment is set aside. The case is remanded to the trial court for further proceedings.

VICTORY, J., would deny.


text:
    Jonathan PARKER v. Clyneatha ERNESTINE.
    No. 2013-CJ-0800.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Parker, Jonathan; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 09-C-5092, Donald W. Hebert, J.; to the Court of Appeal, Third Circuit, No. 12-1324.

Granted. In light of the apparent confusion between the parties and the district court over the proper interpretation of the court of appeal’s earlier order of remand, the judgment of the court of appeal dismissing relator’s petition is vacated, and the case is remanded to the district court for a full evidentiary hearing.

WEIMER and CLARK, JJ., would deny.


text:
    Alfreda Melerine PIZANI, et al. v. ST. BERNARD PARISH, et al.
    No. 2012-CC-2208.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Lake Borgne Basin Levee District; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 109-548; to the Court of Appeal, Fourth Circuit, No. 2012-C-1084.

Granted. Remanded to court of appeal for briefing, argument and opinion.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 2013-ADMIN-338.
    No. 2013-OB-1063.
    Supreme Court of Louisiana.
    May 31, 2013.
   In re Ellis, Cardell; — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of Disciplinary Board, No. 2013-ADMIN-338.

Granted for the sole purpose of transferring the matter to the Office of the Disciplinary Counsel for review by the Chief Disciplinary Counsel. See Supreme Court Rule XIX, § 11(A).


text:
    STATE of Louisiana v. Dannon TURNER.
    No. 2013-KK-1172.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 513-605; to the Court of Appeal, Fourth Circuit, No. 2013-K-0401.

Writ granted. The trial court abused its discretion in excluding evidence of defendant’s jail calls under La.Code Crim. Proc. art. 729.5. The rulings of the lower courts are reversed and the matter remanded to the trial court.

WEIMER and HUGHES, JJ., would deny.


text:
    In re George J. FOREST, Jr.
    No. 2013-OB-2235.
    Supreme Court of Louisiana.
    Sept. 25, 2013.
   ORDER

| Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that George J. Forest, Jr., Louisiana Bar Roll number 5698, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Jefferson D. Hughes III.

Justice, Supreme Court of Louisiana


author: JOHNSON, Chief Justice. GUIDRY, Justice,

text:
    WASHINGTON PARISH SHERIFF’S OFFICE and Robert J. “Bobby” Crowe, in his Official Capacity as the Duly Elected Sheriff and Ex-Officio Sales and Use Tax Collector for Washington Parish v. LOUISIANA MACHINERY COMPANY, LLC. Washington Parish Sheriff’s Office and Robert J. “Bobby” Crowe, in his Official Capacity as the Duly Elected Sheriff and Ex-Officio Sales and Use Tax Collector for Washington Parish v. Louisiana Machinery Rentals, LLC.
    No. 2013-C-0583.
    Supreme Court of Louisiana.
    Oct. 15, 2013.
    Jones Walker Waechter Poitevent Car-rere & Denegre, LLP, Jesse R. Adams, III, Andre Brian Burvant, Kathryn Scion-eaux Friel, Matthew Andrew Mantle, New Orleans, LA, for Applicant.
    Rainer, Anding, Mclindon & Talbot, Robert R. Rainer, Drew Michael Talbot, Baton Rouge, LA, for Respondent.
   JOHNSON, Chief Justice.

|,Louisiana Machinery Company, L.L.C. and Louisiana Machinery Rentals, L.L.C. (collectively “the Companies”), Louisiana’s exclusive Caterpillar franchise dealers, sold, leased, and/or repaired Caterpillar equipment and machinery in parishes throughout Louisiana. Following a multi-parish audit, the taxing authorities from numerous parishes began tax collection proceedings against the Companies, alleging they incorrectly failed to charge and collect sales and use taxes from their customers on their taxable sales, leases, and/or repairs for certain tax periods, and that the Companies were liable for these taxes, penalties, and interest under the provisions of |2the Uniform Local Sales Tax Code (“ULSTC”).

In these cases, the tax collector for Washington Parish obtained partial summary judgments in the district court, declaring that the tax assessments it issued to the Companies are final and the execu-tory judgments of the court and could not be challenged by the Companies. The Companies appealed to the First Circuit, which affirmed the grants of partial summary judgment.

From this adverse ruling, the Companies applied for supervisory review to this court. We granted the Companies’ writ application and consolidated these cases for argument with nearly identical cases emanating from the Third Circuit, wherein that court reversed the district court’s grants of partial summary judgment. We granted certiorari to resolve this split in the circuits. For the reasons set forth below, we reverse the ruling of the court of appeal in these cases.

FACTS AND PROCEDURAL HISTORY

The Washington Parish Sheriffs Office (“Collector”) is the designated tax collector for Washington Parish. A tax audit of the Companies revealed deficiencies for the period December 1, 2003, through June 30, 2007. On November 23, 2009, the Collector began the tax collection process by sending each of the Companies a 30-DAY NOTICE OF INTENT TO ASSESS Additional Tax Due-La. R.S. W8S748B for the tax deficiency, plus penalties and interest. Companies did not protest this |3notice, as provided for by La. R.S. 47:337.49. On December 23, 2009, the Collector issued each of the Companies a formal NOTICEfS] OF ASSESSMENT 60-Day Assessmentr-La. R.S. 17:337.51, The Companies did not formally respond to the assessments, but instead provided additional tax records to the auditors. The Collector reviewed the additional audit documentation and subsequently reduced the | assessment for one of the Companies and increased the assessment for the other. The Collector then issued to each of the Companies a REVISED-NOTICE OF ASSESSMENT 60-Day Notice-La. R.S. 4-7:387.51 (“revised notices of assessments”) dated May 5, 2010. The revised notices provided, in relevant part (emphasis in original):

NOTICE: As provided in La. R.S. 47:337.51 B, if you wish to protest, you have thirty (30) calendar days from the date hereof to file with this office a written protest, signed by you or you duly authorized agent, which shall be under oath, fully disclosing the reasons thereof, and request a hearing.
If you do not timely file a written protest and request a hearing, you have sixty (60) calendar days from the date hereof to:
1) Pay the amount set forth herein, or
2) Pay the total amount set forth herein above under protest as provided in La. R.S. 47:337.63 and file suit for recovery within thirty (30) days of payment, or
3) Within thirty (30) days of receipt of this Notice of Assessment, file suit in any state court of competent jurisdiction contesting the final assessment, and in connection therewith, post a commercial bond or other security as provided in La. R.S. 47:337.64 in accordance with the procedures set forth therein.
DO NOT DISREGARD THIS NOTICE. FAILURE TO ACT WITHIN THE TIME OR MANNER PROVIDED WILL RESULT IN THE ASSESSMENT BECOMING FINAL AND ENFORCEABLE BY WARRANT FOR DISTRAINT. ADDITIONAL PENALTIES, INTEREST AND COLLECTION FEES MAY BE ASSESSED AT THAT TIME.
IMPORTANT: The collector may, in his discretion, proceed to enforce the collection of any taxes due by means of any of the following remedies or procedures: (1) Assessment and distraint, as provided by R.S. 47:337.48 through 337.60(2) Summary court proceeding, as provided in R.S. 47:337.61(3) Ordinary suit under provisions of the general laws regulating actions for the enforcement of obligations, (4) Rule to cease business as provided in R.S. 47:337.33. The Collector by issuing this Notice does not waive the right to assert such other remedies.

IsThe Companies did not respond to the revised notices of assessments. On October 25, 2010, the Collector filed in the district court a Petition for Rule to Show Cause in Summary Sales and Use Tax Proceeding against each Company as summary proceedings under the provisions of La. R.S. 47:337.33 and La. R.S. 47:337.61. The Collector alleged in detail the assessment procedures it followed, specifically asserting that the revised assessments were issued in accordance with all statutory requirements and erroneously alleging it gave notice to the Companies they had sixty calendar days to either (1) pay the amount assessed; (2) file a written protest under oath setting forth the reasons for the protest, and request a hearing; or (3) pay the amount assessed under protest and file suit for recovery. The petitions further alleged that because the Companies did not timely respond, the assessments are now final and constituted an established liability equivalent to judgments against the Companies. In addition to claiming the taxes due plus interest, the Collector sought injunctions pursuant to La. R.S. 47:337.33, enjoining the Companies from conducting business in the parish until payment was made in full, and further sought recognition of liens and privileges on the Companies’ property pursuant to La. R.S. 47:337.65. The |fiCollector attached to its petitions the affidavit of Meehelle Galloway, Chief Financial Officer for the Collector, who stated that the facts as alleged in the petitions were true and correct to the best of her knowledge and belief. Therefore, the Collector alleged it had established a prima facie case in accordance with La. R.S. 13:5034, 47:337.61 and comparable provisions of local ordinances, and that the burden shifted to the Companies to establish anything to the contrary.

On December 6, 2010, the Companies filed answers, exceptions, and affirmative defenses. On December 13, 2010, the Companies filed supplemental and amending answers and affirmative defenses, asserting to the extent the Collector might contend that provisions of the ULSTC preclude them from raising or presenting evidence relevant to defenses as to the validity and/or correctness of the audit and/or assessment with no right of judicial review, then those statutes, as interpreted by the Collector, are unconstitutional. The Collector moved to strike the Companies’ supplemental and amending answers and affirmative defenses on the grounds that they were urged separately and weeks after their first responsive pleadings, and that these defenses had been rejected by both the Louisiana and United States Supreme Courts.

Additionally, the Collector filed partial motions for summary judgment, seeking a declaration that the revised notices of assessments are final and executory | judgments of the court. The Companies opposed the motions, arguing the motions for partial summary judgment relied on the erroneous premise that the assessments are final and cannot be challenged. The Companies asserted there were issues of material fact related to the correctness of the amount of tax assessed and whether the audit was conducted in accordance with law. The Companies further challenged the adequacy of Ms. Galloway’s affidavit which was made “to the best of [her] knowledge and belief,” pursuant to La. R.S. 47:337.61(4), rather than following the more stringent requirements for affidavits in summary judgment procedures pursuant to La. C.C.P. art. 966, et seq.

Following a hearing, the district court granted the Collector’s partial motions for summary judgment. The district court rendered judgments in favor of the Collector, declaring that the revised notices of assessments were the final and executory judgments of the court, reasoning that the ULSTC provides finality to an assessment after sixty days from the issuance of the assessment without a response by the taxpayer. The district court also granted the Collector’s motions to strike, finding that La. R.S. 47:337.61(2) clearly requires that all defenses be presented at one time, and no court shall consider any defense unless so presented. The Companies appealed.

|sThe First Circuit affirmed. Relying on its previous opinion in Livingston Parish School Board v. Louisiana Machinery Company, L.L.C., the court of appeal stated that because a prior assessment is not a prerequisite to bringing a summary proceeding, compliance with the notice provisions applicable to a formal assessment in La. R.S. 47:337.51 is not a condition precedent. However, because the Collector’s summary proceedings were entirely premised and dependent upon the alleged finality of the revised assessments, compliance with the notice provisions was necessary. In finding the notices were sufficient, the court found they provided the Companies with notice of the amount of sales and/or use taxes, interest, and penalties owed for the specified period, and set forth the remedies available to the Companies as taxpayers under La. R.S. 47:337.51(A) and more specifically as dealers under La. R.S. 47:337.51(B). The court also found the revised notices went beyond the statutory requirements by setting forth an alternative remedy for dealers who pay under protest under La. R.S. 47:337.64. The court of appeal concluded that because the notices |9complied with statutory notice provisions and the Companies chose not to avail themselves of any of the statutory remedies available, once the sixty-day period expired with no protest or payment from the Companies, the revised assessments were final and were the equivalent of final and enforceable judgments. Thus, the Companies were precluded from thereafter raising defenses, whether by exception or on the merits, in a summary rule to collect the sales tax. Finally, the court held that when the Collector established through the affidavit of Ms. Galloway that it had followed all of the steps of the assessment procedure without any response from the Companies, it satisfied its burden of proving that the assessments had become final, and that it was entitled to judgments in its favor as a matter of law.

We granted the Companies’ writ application following this adverse ruling from the First Circuit.

DISCUSSION

For the reasons assigned this day in Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La.10/15/13), 124 So.3d 1065, 2013 WL 5788749, we find the revised notices of assessments did not comply with the mandatory statutory notice provisions of La. R.S. 47:337.51(A) and, therefore, the assessments were not final. We also find for the reasons expressed in Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC that the record does not support the Collector’s motions for partial summary judgment absent reliance on the assessments. As a result, we find the court of appeal erred in affirming the district court’s grants of partial summary judgment.

For these same reasons, the district court erred in prohibiting the Companies | infrom pursuing their defenses on the basis of the alleged finality of the assessments. Because we remand this matter to the district court for further proceedings, we address the issue of whether the Companies’ defenses were asserted timely. Although the specific issue of whether the notices complied with the requirements of La. R.S. 47:337.51 was not raised until this matter was before the court of appeal, we have already determined in Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC that the issue of validity of the notices is not a defense in this case, but rather an element of the Collector’s claims, which were based on the alleged finality of the assessments. In addition to challenging the validity of the notices, the Companies asserted numerous defenses. La. R.S. 47:337.61(2) requires all defenses to be “presented at one time” and filed “prior to the time fixed for the hearing,” otherwise the court is prohibited from considering the defense. In this case, the Collector filed its petition on October 25, 2010, and the hearing was set for January 14, 2011. The Companies filed defenses on December 6, 2010. Because these defenses were asserted prior to the time fixed for the hearing, they were timely asserted. The Companies also filed supplemental defenses on December 13, 2010. While these defenses were presented prior to the hearing, they were not “presented at one time” with the previously-filed defenses. Thus, based on the clear wording of the statute, any defenses asserted solely in the December 13, 2010, filings were not asserted timely and cannot be considered by the district court on remand.

DECREE

REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUIDRY, Justice, dissents and assigns reasons.

GUIDRY, Justice,

dissents and assigns reasons.

hFor the reasons expressed in my dissent in Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La.10/15/13), 124 So.3d 1065, 2013 WL 5788749, (Guidry, J., dissenting), I also dissent from the majority decision in this companion case finding that the revised tax assessment notices sent to the defendant companies did not comply with mandatory statutory notice provisions in La. Rev.Stat. 47:337.51(A) and (B). The district court, in my view, correctly rendered judgments in favor of the Collector declaring that the revised notices of assessments were the final and executory judgments of the court. Therefore, the court of appeal properly affirmed the district court’s grant of partial summary judgment in favor of the Collector.

      . La. R.S. 47:337.1 et seq.

      . Washington Parish Sheriff's Office v. Louisiana Machinery Co., LLC, 12-0024, 12-0025 (La.App. 1 Cir. 2/15/13) (unpublished).

      . Washington Parish Sheriff's Office v. Louisiana Machinery Co., LLC, 13-0583 (La.5/17/13), 118 So.3d 382.

      . Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La.5/17/13), 118 So.3d 381.

      . The Third Circuit case is resolved in separate opinion issued contemporaneously herewith.

      . La. R.S. 47:337.48(B) provides, in pertinent part: “If a return or report made and filed does not correctly compute the liability of the taxpayer, the collector shall cause an audit, investigation, or examination, as provided for by R.S. 47:337.35, to be made to determine the tax, penalty, and interest due. Having determined the amount of tax, penalty, and interest due, the collector shall send by mail a notice to the taxpayer ... setting out his determination and informing the person of his purpose to assess the amount so determined against him after thirty calendar days from the date of the notice.”

      . La. R.S. 47:337.49 provides, in pertinent part: "The taxpayer ... within thirty calendar days from the date of the notice provided in R.S. 47:337.48(B), may protest thereto. This protest must be in writing and should fully disclose the reasons, together with facts and figures in substantiation thereof, for objecting to the collector’s determination. The collector shall consider the protest, and shall grant a hearing thereon, before making a final determination of tax, penalty, and interest due.”

      .This statute was amended by Acts 2010, No. 1003, § 2, effective January 1, 2011. Because the notices of assessments were issued prior to the effective date of the amendment, the pre-2011 version of the statute is relevant. In 2009, La. R.S. 47:337.51 provided, in pertinent part:
      A. Having assessed the amount determined to be due, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at the address given in the last report filed by said taxpayer, or to any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. If no report has been timely filed, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. This notice shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with R.S. 47:337.63.
      B. If any dealer shall be aggrieved by any findings or assessment of the collector, he may, within thirty days of the receipt of notice of the assessment or finding, file a protest with the collector in writing, signed by himself or his duly authorized agent, which shall be under oath and shall set forth the reason therefor, and may request a hearing. Thereafter, the collector shall grant a hearing to said dealer, if a hearing has been requested, and may make any order confirming, modifying or vacating any such finding or assessment. The filing of any such protest shall not abate any penalty for nonpayment, nor shall it stay the right of the taxing authority to collect the tax in any manner herein provided. . Appeals from the decision of the collector shall be directed to any state, city or federal court of competent jurisdiction. This Section shall afford a legal remedy and right of action in any state, city or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of the local ordinance and this Chapter as to the legality of any tax accrued or accruing or the method of enforcement thereof.

      . La. R.S. 47:337.33(A)(1) provides: "On motion in a court of competent jurisdiction, the collector may take a rule on a taxpayer, to show cause in not less than two or more than ten days, exclusive of holidays, why the taxpayer should not be ordered to cease from further pursuit of his business for failure to pay to the taxing authority amounts collected from others by his business as sales and use tax, along with any interest, penalty, and costs related to such tax. Such rule may be taken only for amounts due as a result of assessments or judgments which have become final and nonappealable.”

      . La. R.S. 47:337.61 provides, in pertinent part: "In addition to any other procedure provided in this Chapter or elsewhere in the laws of this state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising, there is hereby provided a summary proceeding for the hearing and determination of all claims by or on behalf of the taxing authority, or by or on behalf of the collector, for taxes and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows....”

      . La. R.S. 47:337.65 provides: "Except as is specifically provided in the laws regulating building and loan associations, any tax, penalty, interest, attorney fees, or other costs due shall operate as a lien, privilege and mortgage on all of the property of the tax debtor, both movable and immovable, which said lien, privilege and mortgage shall be enforceable in any court of competent jurisdiction in an action, at law, or may be enforced as otherwise provided by this Chapter. The collector may cause notice of such lien, privilege and mortgage to be recorded at any time after the tax becomes due, whether assessed or not, and regardless of whether or not then payable, in the mortgage records of any parish wherein the collector has reason to believe the tax debtor owns property. The lien, privilege and mortgage created by this Section shall affect third parties only from the date of recordation and shall take their respective ranks by virtue of recordation.”

      .La. R.S. 13:5034 provides: “Whenever the pleadings filed on behalf of the state, or on behalf of any of its officers charged with the duty of collecting any tax, excise, license, interest, penalty or attorney's fees, shall be accompanied by an affidavit of the officer or of one of his deputies or assistants, or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in the pleadings shall be accepted as prima facie trae and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.”

      . La. R.S. 47:337.61(4) provides: “Whenever the pleadings filed on behalf of the taxing authority, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant's knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.”

      . La. C.C.P. art. 967 provides in relevant part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

      .La. R.S. 47:337.61(2) provides: “All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Civil Procedure.”

      . 11-1235 (La.App. 1 Cir. 6/8/12), 98 So.3d 407.

      . La. R.S. 47:337.64 provides, in pertinent part:
      A. Any taxpayer who has received a notice of assessment for sales and use taxes from any collector or taxing authority and whose remedy is to make a payment under protest may in lieu thereof comply with the alternative provisions of this Section, rather than making a payment under protest.
      B. If the taxpayer files suit in any state court of competent jurisdiction contesting the assessment within the time provided by law and satisfies the alternative remedies provided for in Subsection C of this Section, no collection action shall be taken in connection with the assessment of taxes, interest, and penalties, which are the subject of the taxpayer’s suit; however, the collector shall be permitted to file a recon-ventional demand against the taxpayer in such suit.
      C.(l)(a) The taxpayer may file with the court a rule to set bond or other security, which shall be set for hearing within thirty days of the filing of the rule to set bond or other security and shall attach to the petition evidence of the taxpayer's ability to post bond or other security.

      (4) If the taxpayer timely files the suit referred to herein, no collection action shall be taken in connection with the assessment of taxes, interest, and penalties, which are the subject of the taxpayer’s suit, unless the taxpayer fails to post bond or other security or make the payment under protest required by the court; however, the collector shall be permitted to file a reconventional demand against the taxpayer in such suit.

      . Because the issues raised in the Companies' other assignments of error are not necessary to our resolution of this matter, we pretermit their discussion.


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    STATE of Louisiana v. Willie HUMPHREY.
    No. 2013-OK-0481.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   PER CURIAM.

| T Granted. The state has sought review of the district court’s grant of respondent’s motion to correct an illegal sentence, and the court’s reduction in the term of years imposed, following respondent’s release from the penitentiary on parole. The re-sentencing of respondent had the effect of reducing his parole term. Respondent contended in his motion that the sentencing practices of the district court in 1976 resulted in a constitutionally excessive sentence that was not meaningfully tailored to his culpability. Because the motion did not point to a claimed illegal term in the sentence, it presented a claim properly cognizable in an application for post-conviction relief, if at all. See State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694. This Court has determined, however, that La. C.Cr.P. art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides no basis for |2review of claims of excessiveness or other sentencing error post-conviction. See State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. The district court therefore erred in granting the motion to correct an illegal sentence. Accordingly, the district court’s judgment is reversed and respondent’s original sentence, and with it, his original parole term, are reinstated. Respondent’s release on parole is not otherwise impacted.


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    STATE ex rel. James Richard WEEMS v. STATE of Louisiana.
    No. 2013-KH-1419.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Weems, James Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 62,012; to the Court of Appeal, Third Circuit, No. KH 12-00573.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Lesley HILLIARD v. STATE of Louisiana.
    No. 2013-KH-1420.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Milliard, Lesley; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 501172; to the Court of Appeal, First Circuit, No. 2013 KW 0216.

Denied.


text:
    STATE ex rel. Kenneth RATCLIFF v. STATE of Louisiana.
    No. 2013-KH-1433.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Ratcliff, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 359-453; to the Court of Appeal, Fourth Circuit, No. 2013-K-0654.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Earl DUPRE, Sr. v. STATE of Louisiana.
    No. 2013-KH-1435.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Dupre, Sr., Earl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 355904; to the Court of Appeal, First Circuit, No. 2013 KW 0571.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Larry FORTUNE v. STATE of Louisiana.
    No. 2013-KH-1437.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Fortune, Larry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 445-271; to the Court of Appeal, Fourth Circuit, No. 2013-K-0602.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030; cf. La.C.Cr.P. arts. 930.4(A),(D).


text:
    STATE of Louisiana v. Taron DUNCAN.
    No. 2013-KK-1795.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 514-908; to the Court of Appeal, Fourth Circuit, No. 2013-K-0730.

Denied.

CLARK and HUGHES, JJ, would grant.


text:
    STATE of Louisiana v. Taron DUNCAN.
    No. 2013-KK-1810.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re State of Louisiana; — -Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 514-908; to the Court of Appeal, Fourth Circuit, No. 2013-K-0851.

Denied.

CLARK and HUGHES, JJ, would grant.


text:
    Patrick GLEASON v. LAFAYETTE GENERAL MEDICAL CENTER.
    No. 2013-C-1874.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Lafayette General Medical Center Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 04, No. 10-06134; to the Court of Appeal, Third Circuit, No. WCA 12-652.

Denied.


text:
    ST. LANDRY HOMESTEAD FEDERAL SAVINGS BANK v. Hubert VIDRINE, Jr., et al.
    No. 2013-C-2218.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re St. Landry Homestead Federal Savings Bank; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 11-C-5310-A; to the Court of Appeal, Third Circuit, No. 12-1406.

Denied.


text:
    ST. LANDRY HOMESTEAD FEDERAL SAVINGS BANK v. Hubert VIDRINE, Jr., et al.
    No. 2013-C-2219.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Vidrine Estates LLC; Vidrine Jr., Hubert et al.; Vidrine, Tammy; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 11-C-5310-A; to the Court of Appeal, Third Circuit, No. 12-1406.

Denied.


text:
    Annarena ST. PIERRE and James St. Pierre v. Henry LAFONT, Jr.
    No. 2013-CC-2220.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Lafont Jr., Henry J.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, No. 116,027; to the Court of Appeal, First Circuit, No. 2013 CW 0782.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. James BERTRAND.
    No. 2013-KK-2221.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Bertrand, James; — Defendant; Applying For Writ of Mandamus and/or Writ of Prohibition, Parish of Evangeline, 13th Judicial District Court Div. A, No. 79492-FA; to the Court of Appeal, Third Circuit, No. KW 13-00527.

Denied.


text:
    Tommy DUBOIS v. Gordon ARMSTRONG, et al. Tammy Dubois v. Gordon Armstrong, et al.
    No. 2013-CC-2222.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re SMI Global Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. C, No. 74089 C/W 74090; to the Court of Appeal, Third Circuit, No. CW 13-00840.

Denied.

VICTORY, J., would grant.

CLARK, J., would grant for reasons assigned in Judge AMY’s dissent.


text:
    STATE of Louisiana v. Michael ROBERTSON.
    No. 2013-KK-2244.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Robertson, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 07-12-0625; to the Court of Appeal, First Circuit, No. 2013 KW 1302.

Denied.


text:
    STATE of Louisiana v. Michael E. IRBY.
    No. 2013-KK-2247.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Irby, Michael E.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. O, No. CR-64-12; to the Court of Appeal, Third Circuit, No. KW 13-00744.

Denied.


text:
    Cynthia PAIGE, et al. v. DURA-WOOD, L.L.C., et al.
    No. 2013-CC-2258.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Roy O. Martin Lumber Company, L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 214,913; to the Court of Appeal, Third Circuit, No. CW 13-00923.

Denied.

VICTORY, J., concurs in result.


text:
    Alvin JONES v. BUCK KREIHS MARINE REPAIR, L.L.C.
    No. 2013-C-2260.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Buck Kreihs Marine Repair, L.L.C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2011-00359; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0083.

Denied.

VICTORY, CLARK and HUGHES, JJ., would grant.


text:
    Vincent SMITHSON v. STATE of Louisiana, Medical Center of Louisiana at New Orleans, LSU Health Sciences Center, Health Care Services Division, et al.
    No. 2013-CC-2261.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Barron' M.D., Bruce; Board of Supervisors of Louisiana State University and Agricultural and Mechanical College; Culotta M.D., Anthony; Health Care Services Division; Hill M.D., William; LSU Health Sciences Center; Medical Center of Louisiana at New Orleans; State of Louisiana, et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2010-05308; to the Court of Appeal, Fourth Circuit, No. 2013-C-0647.

Denied.


text:
    Melba Margaret Schwegmann BROWN v. CHONEKAS, WINSBERG, EVANS & McGOEY, L.L.C. et al.
    No. 2013-C-2262.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Melba Margaret Schwegmann Brown; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2010-09296; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0314.

Denied.


text:
    Tommy HARP v. William AUTREY and Autrey Investment Properties, L.L.C.
    No. 2013-C-2263.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Harp, Tommy; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 53,905; to the Court of Appeal, Second Circuit, No. 47,749-CA.

Denied.

HUGHES, J., would grant.


text:
    VARSITY EVENT MANAGEMENT, L.L.C. v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION, INC.
    No. 2013-CC-2264.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Varsity Event Management, L.L.C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Cal-casieu, 14th Judicial District Court Div. H, No. 2012-586; to the Court of Appeal, Third Circuit, No. CW13-00794.

Denied.

HUGHES, J., recused.


text:
    Diana LEWIS v. Trina DORSEY and Baton Rouge City Police Department.
    No. 2013-CC-2243.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Lewis, Brian; Lewis, Diana;— Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 549358; to the Court of Appeal, First Circuit, No. 2013 CW 0732.

Denied.


text:
    STATE ex rel. William S. Carter v. STATE of Louisiana.
    No. 2013-KH-2267.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Carter, William S.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. B, No. 145,006; to the Court of Appeal, Second Circuit, No. 48445-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    Marlene THORNHILL, Felton Thornhill, Elton Thornhill and Cynthia Thornhill Woodham v. WEST MONROE GUEST HOUSE, INC. d/b/a West Monroe Guest House, et al.
    No. 2013-CC-2295.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re West Monroe Guest House, Inc. D/B/A West Monroe Guest House; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. J, No. 12-2224; to the Court of Appeal, Second Circuit, No. 48,708-CW.

Denied.

CLARK, J., would grant.


text:
    Mechelle ROBINSON, Sada Robinson and Jasmine Robinson, Individually and on Behalf of Joey Robinson v. AMTEK OF LOUISIANA, INC., Cleco Power, LLC, Cleco Corporation, Cleco Support Group, LLC, St. Tammany Parish, Mid-Continent Casualty Company, Mid-Continent Assurance Company, and Oklahoma Surety Company.
    No. 2013-CC-2299.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Amtek of Louisiana Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 603,947; to the Court of Appeal, First Circuit, No. 2013 CW 0865.

Denied.

VICTORY, J., would grant.


text:
    Lorraine T. COBB & Joseph Cobb v. DR. Horace L. MITCHELL, M.D., the Neuromedical Center & Louisiana Medical Mutual Insurance Company.
    No. 2013-C-2315.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Cobb, Joseph; Cobb, Lorraine T.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 530,701; to the Court of Appeal, First Circuit, No. 2012 CA 1032 and 2012 CW 0067.

Denied.


text:
    Calvin GUIDRY and Denise Guidry v. US AGENCIES CASUALTY INSURANCE COMPANY, INC., Patricia Mousseau, Glenn Mousseau, Venture Transport Logistics, L.L.C. and Zurich American Insurance Company.
    No. 2013-CC-2317.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Hudson Insurance Company;— Other; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. D, No. 106— 901; to the Court of Appeal, First Circuit, No. 2013 CW 0780.

Denied.

WEIMER and CLARK, JJ„ would grant.


text:
    Steven DUPLECHAIN, III v. ACE TRANSPORTATION, L.L.C., et al.
    No. 2013-CC-2320.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re: Duplechain III, Steven; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 2008-5205; to the Court of Appeal, Third Circuit, No. CW 13-00095;

Denied.

JOHNSON, C.J., and KNOLL and HUGHES, JJ., would grant.


text:
    STATE of Louisiana v. Taron DUNCAN.
    No. 2013-KK-2363.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 514-908; to the Court of Appeal, Fourth Circuit, No. 2013-K-0899.

Denied.


text:
    STATE of Louisiana v. Reginald WASHINGTON.
    No. 2013-KK-2705.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   In re Washington, Reginald; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 515-059; to the Court of Appeal, Fourth Circuit, No. 2013-K-1204.

Denied as untimely. See Rule X, § 5.


author: LOLLEY, J.

text:
    Tammy HAAS, Plaintiff-Appellant v. DILLARD’S, INC., Defendant-Appellee.
    No. 48,277-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Rehearing Denied Nov. 14, 2013.
    C. Bryan Racer, for Appellant.
    Azelie Ziegler Shelby, Baton Rouge, for Appellee.
    Before STEWART, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

| j Tammy Haas appeals the judgment of the Office of Workers’ Compensation, District IE, Parish of Ouachita, State of Louisiana (“OWC”), in favor of Dillard’s, Inc., and Gallagher Bassett Services, Inc. (collectively, “defendants”). For the following reasons, we reverse the OWC’s judgment and remand for further proceedings.

Facts

On May 16, 2010, Haas was employed by Dillard’s, Inc. (“Dillard’s”). She alleges that while in the course and scope of her employment she was installing shelving and fell, injuring herself. Haas filed a disputed claim for compensation against Dillard’s and its third party administrator, Gallagher Bassett Services, Inc. (“Gallagher”), on March 31, 2011. She claimed no wage benefits were paid and no medical treatments were authorized. She also sought disability status. Specifically, she requested a surgical procedure recommended by her treating physician, Dr. C. Russ Greer. Service was made via certified mail on Gallagher and Dillard’s on April 4th and 8th, 2011, respectively.

A phone conversation took place on March 30, 2011, between Gallagher’s claims adjustor assigned to Haas’ case, Raven Landry, and Haas’ attorney. Information was conveyed to Landry that Haas was scheduled for surgery on April 18, 2011, with her treating physician, Dr. Greer. At that time, Landry verbally informed the attorney that the defendants wished to exercise their right to have Haas examined by a physician of their choice. He responded to Landry that he would check with 12Haas. On April 12, 2011, Landry was informed Haas would not submit to an examination by the defendants’ choice of physician.

On April 14, 2011, the defendants filed their motion to compel Haas’ medical examination, and they also requested an expedited hearing on the motion. Along with that motion, they filed a petition for temporary restraining order and preliminary injunction. A telephone hearing was held. Haas was ordered by the workers’ compensation judge (“WCJ”) to submit to a medical examination by Dr. Douglas Brown before going through with the lumbar discectomy. The WCJ also granted the defendants’ request for TRO, restraining Haas “from having surgery with Dr. Greer on Monday, April 18, 2011, at Defendants’ expense and until such time as a determination is made regarding the reasonableness of undergoing an exam by a physician chosen by Dillard’s, Inc.”

Despite the WCJ’s order, on April 18th Haas underwent the surgery “for a number of reasons” she claimed. Needless to say, she did not submit to the medical examination with Dr. Brown prior to the surgery; ultimately, however, on July 11, 2011, Haas was examined by Dr. Brown, whose examination supported Haas’ need for surgery.

In August 2011, a hearing was held on the defendants’ rule to show cause why Haas should not be held in contempt. The WCJ ruled from the bench, deciding that Haas’ indemnity benefits would be suspended from April 15 to July 11, 2011, for failure to be examined by Dr. Brown. In regard to violating the TRO, the WCJ ruled that defendants would not have to pay for the lumbar discectomy. As stated, Haas was subsequently |sexamined by Dr. Brown on July 11, 2011, and he concluded the surgery was “necessary and consistent with her injury.” A judgment on the defendants’ contempt motion was signed on September 12, 2011, which Haas appealed. However, that judgment was determined by this court not to be a final, appealable judgment. The matter was converted to an application for supervisory review, which was ultimately denied. Afterwards, the WCJ signed a consent judgment on September 25, 2012, wherein the parties agreed there were no more issues for trial. This appeal followed.

Discussion

Initially, we note the following as expressed by the Louisiana Supreme Court in Rhodes v. Lewis, 2001-1989, pp. 7-8 (La.05/14/02), 817 So.2d 64, 69: “The purpose of the Workers’ Compensation Act is to set up a court-administrated system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of workmen .... The purpose of the changes [was] to provide a speedy resolution to workers’ compensation claims and a swift recourse for injured workers.” (Citations omitted). Notably, the Workers’ Compensation Act provides a means whereby employees injured by an accident arising out of and in the course of his employment can pursue legislatively defined compensation benefits — i.e., medical and wage benefits. O’Regan v. Preferred Enterprises, Inc., 1998-1602 (La.03/17/00), 758 So.2d 124.

14With that in mind, we address Haas’ appeal, whose assignments of error address the applicability of La. R.S. 23:1124 to this matter. The statute provides, in pertinent part, as follows:

A. If the employee refuses to submit himself to a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter shall be suspended until the examination takes place. The employee shall receive at least fourteen days written notice prior to the examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

The crux of this matter is Haas’ initial refusal to submit to an examination by defendants’ physician, and her choice to proceed with her surgery. Haas argues that the WCJ erred in imposing a sanction for failure to postpone her scheduled surgery, because her employer failed to provide her with 14 days’ written notice of the examination with Dr. Brown as required by La. R.S. 23:1124(A). Second, she maintains that the exclusive penalty for an employee failing to comply with the medical examination is suspension of benefits, which is provided by the statute, not absolution from liability for the employer.

Here, the judgment of the OWC consisted of two parts: (1) for failing to submit to the second medical exam, the suspension of Haas’ benefits from April 15, 2011 (the date she was ordered to submit to an examination with the defendants’ choice of physician) until July 11, 2011 (the date Haas was ultimately examined by the defendants’ physician); and, (2) for proceeding with her surgery, the finding that Haas was in contempt of court for violating the TRO issued by the OWC. As stated, on that count Haas was penalized by absolving the defendants from payment for her surgery.

| ^Initially, we note that La. R.S. 23:1124, entitled “Refusal to submit to examination; effect on right to compensation,” addresses specifically this issue of an employee’s refusal to submit to a medical examination. As to the first penalty assessed in the WCJ’s judgment (the suspension of Haas’ benefits), the WCJ’s penalty at first glance appears to be made in accordance with La. R.S. 23:1124(A); nonetheless, we find that it was made in error, because it fails to conform with the clear and specific dictates of the statute. Notably, none of the parties complied with the statute. There is no question that Haas “refusfed] to submit [herjself to a medical examination at the behest of the employer,” and arguably obstructed that said examination by having surgery. Thus, the WCJ’s apparent frustration with Haas is somewhat understandable.

However, on the other hand, the defendants were not in compliance with the statute either, because they failed to give Haas 14 days’ written notice prior to the examination. Although Haas was informed on April 15, 2011, by the WCJ’s written order that she was to submit to an examination by Dr. Brown, the order does not contain a date as to when that examination was to take place. The record does contains a letter dated April 26, 2011, in which Haas’ attorney informs the WCJ that Haas would submit to the employer’s medical examination, but there is nothing in the record to indicate that Haas did indeed receive the written notice required by the statute. Ultimately, Haas did submit to a second medical examination by a physician chosen by the defendants on July 11, 2011. Therefore, considering that the defendants did not provide Haas with the requisite | f,written notification as required by the statute, we conclude the OWC erred in its penalty against her.

As to the WCJ’s finding that Haas was in contempt of court, we agree that the WCJ exceeded her authority, regardless of whether or not the OWC has jurisdiction to issue a TRO. Initially, we reiterate that the penalty was excessive primarily because La. R.S. 23:1124(A) provides the exclusive penalty for a claimant’s refusing a second medical exam. Furthermore, the WCJ’s order technically did not prohibit Haas from having the surgery, only from having the surgery at the defendants’ expense. Therefore, in going through with her scheduled surgery prior to submitting to the second medical examination, we cannot say Haas was strictly in contempt of the order. Haas was simply warned that if she carried through with the surgery, the defendants were not responsible for payment. However, such an order was in error, because it was excessive for two reasons (besides the exclusive penalty provided in La. R.S. 23:1124(A)). First, absolving the employer of liability for an employee’s injury that may have legitimately occurred on the job flies in the face of the express purpose of the Workers’ Compensation Act. Second, even if Haas was in contempt, La. R.S. 23:1310.7 provides the exclusive penalty for a workers’ compensation party in constructive contempt, which statute states in pertinent part:

A. A workers’ compensation judge shall have the power to enforce any order or judgment he shall deem proper which is issued pursuant to the powers and jurisdiction provided for in this Chapter and the Constitution of Louisiana. This power shall not include the authority to order a person confined.
|7(2) Constructive contempt in a workers’ compensation proceeding shall be as defined in Louisiana Code of Civil Procedure Article 224, except that it shall be concerning the workers’ compensation judge and hearing procedures instead of the court. In a case of constructive contempt, the workers’ compensation judge may assess a civil fine of up to five hundred dollars for each such contempt violation which shall be payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation.

Thus, absolving the defendants of liability for Haas’ “constructive contempt” clearly exceeds the dictates of the statute, and the WCJ’s judgment ordering same was in error.

Finally, one procedural conundrum of this case is that the WCJ never made any finding that Haas’ injury occurred by an accident arising out of and in the course of her employment. At least, the record does not reflect that such a fact was ever determined. Presumably, the parties were working under that assumption up until the point that the disagreement over Haas’ surgery occurred. Considering our findings herein, in order to make any sort of final determination regarding the payment of Haas’ medical benefits, there must be a finding of whether or not a compensable injury occurred. Thus, the matter is remanded for that determination and further proceedings connected therein.

Conclusion

So considering, we reverse the WCJ’s judgment against Tammy Haas and in favor of Dillard’s Inc. and Gallagher Bassett Services, Inc. This matter is remanded to the Office of Workers’ Compensation to determine whether Haas was injured by an accident arising out of and in the course of her employment and if so, a determination of wages and medicals consistent |Rwith this opinion. All costs of this appeal are assessed against the defendants.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, MOORE, LOLLEY and PITMAN, JJ.

Rehearing denied.

      . In the final consent judgment which is currently on appeal, the WCJ noted its September 12, 2011 judgment, and stated that "there are no other issues remaining for trial,” and went on to dismiss Haas’ complaint. It would appear from the record that the parties' intent was to finalize all other issues before the WCJ, but to preserve the one issue regarding Haas' surgery.