author: ROLAND L. BELSOME, Judge.

text:
    INDUSTRIAL PIPE, INC. v. PLAQUEMINES PARISH COUNCIL, et al.
    No. 2013-CA-1345.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.
    Rehearing Denied July 2, 2014.
    Miles P. Clements, Heather McArthur, Frilot L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Christopher K. Tankersley, Dennis J. Phayer, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendants/Appellants.
    Corrine Van Dalen, Andrew Gerow, Student Attorney, Renee Orenstein, Student Attorney, Brennan Young, Student Attorney, Tulane Environmental Law Clinic, New Orleans, LA, for Intervenors/Appel-lants.
    (Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge Sandra CABRINA JENKINS).
   ROLAND L. BELSOME, Judge.

| jThis appeal is taken from the trial court’s granting of a Coastal Use Permit (CUP) in favor of Industrial Pipe. For the following reasons, we affirm.

Industrial Pipe operates the Oakville Landfill in Plaquemines Parish. Industrial Pipe has 65.7 acres of land permitted by the Louisiana Department of Environmental Quality for the operation of a Type III C & D landfill. Within the 65.7 acres are 8.3 acres which are designated wetlands. A CUP is required in order for Industrial Pipe to operate in the 8.3 acres of wetlands.

Originally, Industrial Pipe submitted its application for a CUP in October of 2001. The Plaquemines Parish Council (Council) granted the CUP in November of 2003. In 2009, this Court determined that the granting of the CUP by the Council was proeedurally flawed, since the Statement of Justification for Recommendation of Coastal Zone Permit was not issued by the Parish Coastal Zone Administrator until April 21, 2006. That action by the Council violated the procedural guidelines. Thus, the CUP was vacated.

|2In April of 2010, Industrial Pipe submitted a new CUP application. The Department of Natural Resources determined the issue was a local concern and did not review either CUP application. After Plaquemines Parish’s Coastal Program Manager and the Parish Coastal Zone Advisory Committee reviewed the new application, it was recommended that the Parish Council grant Industrial Pipe’s application. However, at its September 22, 2011 meeting, by a vote of eight to one, the Parish Council denied Industrial Pipe’s CUP application.

Industrial Pipe filed suit against the Parish alleging that the denial of the CUP application was unreasonable; arbitrary; and capricious, not consistent with the goals, policies and provisions of state law; and violated Plaquemines Parish’s local ordinances. Thereafter, Oakville Community Action Group, Louisiana Environmental Action Network and Gloria Mayfield intervened in the suit.

The trial court proceeded with a trial de novo. In a trial de novo, the trial court is the court of original jurisdiction. Following trial, the trial court rendered judgment granting Industrial Pipe a CUP. The Parish and the intervenors (collectively the appellants) appealed. The following assignments of error have been raised on appeal:

1. The trial court erred in holding that allowing Industrial Pipe’s expansion into areas zoned Flood Plain, did not violate applicable Plaquemines Parish zoning ordinances;
2. The trial court erred in holding that the running of prescription under LSA-R.S. 9:5625 négated zoning ordinances;
ls3. The trial court erred in holding that the evidence at trial demonstrated Industrial Pipes’s satisfaction of applicable coastal use statutes and regulations, and the Louisiana Administrative Code;
4. The trial court erred when it determined that Industrial Pipe’s CUP application satisfied the criteria under LAC 43:I.701(H) without conducting the requisite analytical process required to demonstrate compliance with that section; and
5. The trial court erred when it failed to determine that Industrial Pipe’s CUP application violated La. R.S.49:214.30(C)(3).

In addition to the common assignments of error asserted by the appellants, the inter-venors assert that the trial court erred in admitting certain documentary evidence offered by Industrial Pipe.

On appeal, this Court reviews questions of fact under a manifest error standard. In applying the manifest error rule to the trial court’s interpretation, a court of appeal may not simply substitute its own view of the evidence for the trial court’s view, nor may it disturb the trial court’s finding of fact so long as it is reasonable. The appellate court reviews questions of law de novo to determine whether the trial court was legally correct.

The 8.3 acres of land that the CUP pertains to is located in the Flood Plain Zoning District. In the first and second assignments of error, the appellants contend that the zoning ordinance in Plaque-mines Parish mandates that “[t]he use of property ... in the FP-Flood Plain District shall be limited” to one of fourteen | ¿listed uses, and landfill is not one of the permitted uses. Thus, using the 8.3 acres as landfill is a non-conforming use that violates the Parish’s zoning ordinances.

The evidence presented at trial established that there was a 1982 resolution by the Parish approving the use of Industrial Pipe’s Flood Plain property for landfill operations. Although the resolution was originally issued for Industrial Pipe’s predecessor, Oakville Landfill, it encompassed a portion of the same geographical location currently at issue. Furthermore, in 1990, when Industrial Pipe was operating the landfill, the Parish council again recognized that the landfill was being operated in a Flood Plain and issued a permit for Industrial Pipe to conduct landfill activities within that area. The trial court found the evidence supported the Parish’s approval of the landfill operations in the Flood Plain.

In addition to the trial court’s finding that Industrial Pipe proved the Parish had previously authorized the landfill operations to be conducted in the Flood Plain, it found that a non-conforming use had been obtained through prescription. La. R.S. 9:5625(A)(3) provides that:

With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.

Considering the 1982 and 1990 resolutions together with the previously granted |5CUP application in 2003, the trial court determined that the necessary agencies for the Parish had been on notice of the landfill activities in the Flood Plain for more than five years. Thus, the time period to raise any zoning violations had prescribed. We find the documentation in the record adequately supports that conclusion and therefore find no error with the trial court’s determination.

Appellants’ assignments of error three, four, and five challenge the sufficiency of evidence presented by Industrial Pipe to establish that it met the guidelines and requirements set forth by applicable coastal use programs, the Louisiana Administrative Code and the Parish’s Costal Zoning Management Program. The appellants argue that the trial court erred in its analysis of applicable statutes, mainly, Louisiana Administrative Code 43.1.701(F) and 715(C)-(D).

The guidelines and requirements that Industrial Pipe needed to meet in order to be granted a CUP are found in La. Admin. Code 43:1.701 et seq. The statutes are constructed to give the issuing authority direction and oversight in the permitting process. Ideally, waste disposal should be avoided in wetlands. However, it may be allowed, if the permitting authority finds, among other things, that “there are no feasible and practical alternative locations, methods, or practices for the use that are in compliance with the modified standard.” Ultimately, the permitting authority must balance the benefits against any adverse impact when determining whether the CUP should be issued.

^Louisiana Administrative Code 43.1.701 provides the guidelines for applicable coastal uses. Subsection (F) requires the applicant to provide information regarding nineteen enumerated factors. The permitting authority is mandated to use the information when evaluating whether the proposed use is in compliance with the guidelines.

After a comprehensive review of Industrial Pipe’s CUP application, Albertine Kimble, Local Coastal Program Manager for Plaquemines Parish, drafted the “Statement of Justification for Recommendation of a Coastal Use Permit”. That recommendation concluded that Industrial Pipe had sufficiently demonstrated that it complied with and satisfied all applicable coastal use guidelines. Ms. Kimble reached that conclusion by detailing the facts supporting each requirement |7set forth in subsection (F). At trial, she testified consistent with her previously drafted recommendation.

Likewise, the trial court carefully analyzed the testimony and documentary evidence and applied it to the relevant factors set forth in subsection (F). In so doing, the appellants argue that the trial court erroneously found that Industrial Pipe had satisfied its burden regarding no available and feasible alternative sites.

Although there is no clear directive on the precise quantity or quality of the evidence necessary to satisfy the lack of feasible alternative sites condition, two cases where the issue has been addressed are Matter of Browning-Ferris Industries Petit Bois Landfill and Pardue v. Stephens. In Matter of Browning-Ferris Industries Petit Bois Landfill, Browning-Ferris sought to establish a 150 acre solid waste landfill. The First Circuit determined that the DEQ had acted arbitrarily and capriciously in granting a solid waste permit to Browning-Ferris. That finding was based on the insufficient evidence presented in the application regarding alternative sites. The trial court found the boundaries of the search too narrow given the area that the landfill would serve.

The second case is Pardue v. Stephens. Pardue was a restaurant owner that sought a CUP for filling and dredging wetlands. Pardue’s CUP application was denied by the Department of Natural Resources. Then, like in this case, the trial court held a trial de novo and found that the CUP application guidelines had been ^sufficiently met and granted the permit. The First Circuit determined the trial court’s analysis was incomplete and independently reviewed the evidence. Subsequently, the granting of the CUP for the filling of wetlands for the parking lot expansion was affirmed. However, the court reversed on permitting the dredging of the wetlands for a slip to permanently dock the barge that was already serving as a floating restaurant. The court cited to the lack of proof regarding no feasible and practical alternative locations, methods and practices, while stating that there was no necessity for the barge to be moved from its current position.

The instant case can be distinguished from both cases relied on by the appellants. First, in Browning-Ferris, the plaintiff sought a DEQ license to open and run a 150 acre solid waste landfill. Industrial Pipe is fully licensed by the DEQ to run a Type III C & D landfill on the whole of its 65.7 acre footprint. Because Industrial Pipe seeks to use adjacent land that is already licensed by the DEQ, we find the parameters set forth by Browning-Ferris regarding the feasibility of an alternative location are not suitable for this case.

On the other hand, the Pardue case involves the application for a CUP and is more analogous to this case. However, in Pardue, the testimony established that there was not a necessity for the proposed relocation of the barge and in fact there was a feasible alternative to moving the structure. To the contrary, the evidence in this case supports the expansion into the wetland area. There is a necessity for the landfill in Plaquemines Parish as established by the testimony of Parish President William Nungesser and Coastal Zone Management Program Manager IflAlbertine Kimble. Those witnesses also testified that they were unaware of any suitable alternative sites. As stated in Pardue, the decision maker must consider what alternatives would be available to a reasonable person in a normal situation. Here, the collective testimony of the witnesses indicates that it is far more reasonable to expand operations on the existing landfill site than open a new landfill. The appellants also aver that the trial court failed to give the requisite analytical analysis set forth in LAC 43:I.701(H). We disagree. As directed by the statutes, the trial court thoroughly analyzed the evidence and methodically applied it to the relevant factors.

If it is determined that wetlands are to be utilized, the facility must be designed and constructed to withstand adverse conditions without releasing pollutants and to prevent leaching, control leachate production, and prevent the movement of leach-ate away from the facility. LAC 43:I.715(C)-(D). At trial, | ^Industrial Pipe introduced the testimony of an expert in the field of soil science, Dr. Yong Soon Goh, as well as, the testimony of the administrator of waste permits for the DEQ, Scott Guilliam. Both witnesses confirmed that leachate collection systems and liners were not needed in a Type III C & D facility like Industrial Pipe. Additionally, Dr. Goh stated that he studied the geology of the 8.3 acres and found it was of low permeability with no need for a liner. Dr. Goh also indicated that the facility was above sea level and surrounded by an earthen berm with a run off system for storm water.

Lastly, the appellant intervenors argue that the trial court erroneously allowed numerous inadmissible documents to be entered into evidence. It is well settled that this Court will not disturb a trial court’s evidentiary ruling unless there is a clear showing that it abused its discretion. This record does not clearly evidence an abuse of discretion on the part of the trial court.

Viewing the record in its entirety, we find no errors on the part of the trial court in granting a CUP for the expanded operations of an existing licensed landfill. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

      . Oakville Comm. Action Group v. Plaquemines Parish Council, 08-1286 (La.App. 4 Cir. 2/18/09), 7 So.3d 25.

      . See Pardue v. Stephens, 558 So.2d 1149 (La.App. 1st Cir.1989).

      . Id.

      . The defendants and the intervenors have asserted essentially the same assignments of error.

      . Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173.

      . Id.

      . Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 388.

      . The resolution included language specifically granting a permit for the operation of a sanitary landfill and consenting to the operation of the landfill in the Flood Plain.

      . Although the land mass may not be precisely the same, the land was clearly in the Flood Plain.

      . This Court revoked that CUP in 2009. See Oakville Comm. Action Group v. Plaquemines Parish Council, supra.

      . La. Admin. Code 43:1.715(A).

      . La. Admin. Code 43:I.701(H).

      . La. Admin. Code 43:1.701(F) provides: Information regarding the following general factors shall be utilized by the permitting authority in evaluating whether the proposed use is in compliance with the guidelines:
      1. type, nature, and location of use;
      2. elevation, soil, and water conditions and flood and storm hazard characteristics of site;
      3. techniques and materials used in construction, operation, and maintenance of use;
      4. existing drainage patterns and water regimes of surrounding area including flow, circulation, quality, quantity, and salinity; and impacts on them;
      5. availability of feasible alternative sites or methods of implementing the use;
      6. designation of the area for certain uses as part of a local program;
      7. economic need for use and extent of impacts of use on economy of locality;
      8. extent of resulting public and private benefits;
      9. extent of coastal water dependency of the use;
      10. existence of necessary infrastructure to support the use and public costs resulting from use;
      il.extent of impacts on existing and traditional uses of the area and on future uses for which the area is suited;
      12. proximity to and extent of impacts on important natural features such as beaches, barrier islands, tidal passes, wildlife and aquatic habitats, and forest lands;
      13. the extent to which regional, state, and national interests are served including the national interest in resources and the siting of facilities in the coastal zone as identified in the coastal resources program;
      14. proximity to, and extent of impacts on, special areas, particular areas, or other areas of particular concern of the state program or local programs;
      15. likelihood of, and extent of impacts of, resulting secondary impacts and cumulative impacts;
      16. proximity to and extent of impacts on public lands or works, or historic, recreational, or cultural resources;
      17. extent of impacts on navigation, fishing, public access, and recreational opportunities;
      18. extent of compatibility with natural and cultural setting;
      19. extent of long term benefits or adverse impacts.

      . La.Admin Code 43:1.701(F)(5).

      . 93-2050 (La.App. 1 Cir. 6/23/95), 657 So.2d 633.

      . 558 So.2d 1149 (La.App. 1st Cir.1989).

        .Matter of Am. Waste & Pollution Control Co., 633 So.2d 188 (La.App. 1st Cir.1993), was also cited by the appellants for the same premise.

      . The Pardue court referenced the report of a representative from the Department of Wildlife and Fisheries which stated: "I see no reason why the barge should be moved from its present location. Mooring by cluster pilings or barge spudding should provide adequate stabilization.” ’ Pardue, 558 So.2d at 1168.

      . LAC 43:1.701(H) provides in pertinent part:
      In those guidelines in which the modifier "maximum extent practicable” is used, the proposed use is in compliance with the guideline if the standard modified by the term is complied with. If the modified standard is not complied with, the use will be in compliance with the guideline if the permitting authority finds, after a systematic consideration of all pertinent information regarding the use, the site and the impacts of the use as set forth in Subsection F above, and a balancing of their relative significance, that the benefits resulting from the proposed use would clearly outweigh the adverse impacts resulting from noncompliance with the modified standard and there are no feasible and practical alternative locations, methods, and practices for the use that are in compliance with the modified standard and:
      a. significant public benefits will result from the use; or
      b. the use would serve important regional, state, or national interests, including the national interest in resources and the siting of facilities in the coastal zone identified in the coastal resources program, or;
      c. the use is coastal water dependent.

      .LAC 43:1.715 provides in pertinent part:
      C. Waste facilities located in wetlands shall be designed and built to withstand all expectable adverse conditions without releasing pollutants.
      D. Waste facilities shall be designed and constructed using best practical techniques to prevent leaching, control leachate production, and prevent the movement of leachate away from the facility.

      . Bell v. Treasure Chest Casino, L.L.C., 2006-1538, pp. 3-4 (La.2/22/07), 950 So.2d 654, 656.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge. JOHNSON, J.,

license: Public Domain

text:
    Monica Haab, Wife of/and Garret HAAB, Individually and on behalf of his Minor Children, Aiden Haab, Amelia Haab, and Sophie Haab v. EAST BANK CONSOLIDATED SPECIAL SERVICE FIRE PROTECTION DISTRICT OF JEFFERSON PARISH, Louisiana, Parish of Jefferson, Jefferson Parish Department of Homeland Security, Jefferson Parish Department of Emergency Management, David Saunders, Deano Bonano, Kenneth L. Padgett, Sr., M. Joseph, and ABC Insurance Company.
    No. 13-CA-954.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.
    Rehearing Denied June 24, 2014.

      John A. Venezia, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Stephen M. Pizzo, Craig R. Watson, Kelly A. Dugas, Attorneys at Law, Metairie, Louisiana, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

12Monica and Garret Haab (the “Haabs”) appeal from a summary judgment dismissing with prejudice their suit against Jefferson Parish and several of its departments and employees. The Haabs allege in their suit that they suffered the loss of their personal property when, during Hurricane Gustav, the defendants did not promptly respond to a fire at the house where the Haabs were residing. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

The underlying facts are not disputed. At the time that Hurricane Gustav struck southeast Louisiana on September 1, 2008, the Haabs were renting a house in Jefferson Parish. On August 27, 2008, in response to the approach of Hurricane Gustav, the State of Louisiana declared a state of emergency. Jefferson Parish likewise declared a state of emergency on August 30, 2008. The following day, a mandatory evacuation order was issued for residents of the east bank of Jefferson |sParish, and a 24-hour curfew was announced. Residents who failed to evacuate were informed not to expect government, law enforcement, fire or emergency medical services during that time.

During the morning hours of September 1, 2008, a falling tree branch struck the electrical service entering the Haabs’ residence and started a fire. The Haabs had evacuated as ordered, and thus were not at home at the time of the fire. Neighbors, including Sheriff Newell Normand and Constable Dan Civello, attempted to fight the fire with garden hoses. The fire was reported at about 8:50 a.m., but because the Parish’s Fire Service Disaster Response Plan (the “Plan”) was in effect, no fire units responded. The provision in the Plan pertinent here is that fire units would not respond when sustained wind speeds reached 50 mph, which they reportedly had done earlier that morning. Both Sheriff Normand and Constable Civello made additional calls to fire personnel urging them to respond.

At about 9:25 a.m., Deano Bonano, the Director of Jefferson Parish Homeland Security, and David Saunders, Director of the Jefferson Parish East Bank Consolidated Fire Department, arrived at the scene to assess the situation. Mr. Bonano believed that the winds had subsided to a point where they would not be a great threat, and ordered a fire unit to respond. The unit arrived at 9:43 a.m. and began fighting the fire, but the firefighters were ordered not to enter the house because high winds created a danger of structural collapse. The fire was extinguished by noon, but the house was nonetheless a total loss.

The Haabs sued the Parish of Jefferson and several of its departments, as well as a number of individual Jefferson Parish employees responsible for public safety, alleging that their personal property in the rental house was lost due to the factions of the defendants. The Haabs seek to hold the various defendants liable for their conduct during two distinct time periods: first, for the conduct of the Parish officials from 2006 to 2008, in their actual formulation, adoption and review of the Plan, and second, for the conduct of the Parish employees in their activation of the Plan, and response to the fire during the actual emergency event of Hurricane Gustav. All of the defendants urged a motion for summary judgment, contending that, pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act (the “HSA”), the Parish and its departments are entitled to absolute immunity and the individual employee defendants are entitled to qualified immunity, for acts taken during “emergency preparedness activities.” Additionally, the defendants claim that they are entitled to discretionary immunity, for events that took place before and during the actual event, pursuant to La. R.S. 9:2798.1, the discretionary immunity statute (the “DIS”). The trial court granted the defendants’ motion for summary judgment, and the Haabs now appeal that judgment.

LAW AND DISCUSSION

Summary judgments are reviewed de novo on appeal, that is, the appellate courts use the same criteria as the district courts in considering such motions. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. Our inquiry is whether there is any dispute as to material facts, and, if not, is the moving party entitled to judgment as a matter of law. Id.; La. C.C.P. art. 966(B)(2).

The HSA requires that all parishes prepare and maintain an all hazards emergency operations plan and keep it current. La. R.S. 29:729(B). The Act further provides that:

|fiNeither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents’ employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

La. R.S. 29:735(A)(1).

“Emergency preparedness” is defined as “the mitigation of, preparation for, response to, and the recovery from emergencies or disasters.” La. R.S. 29:723(4). Inasmuch as the HSA provides absolute immunity to the political subdivision and its agencies during emergency preparedness activities, we find that the trial court was correct to grant summary judgment in favor of the Parish and its various departments regarding their conduct in activating the Plan, and in their response to the fire during the actual emergency event. The Parish, however, contends that the HSA also provides the Parish, and its various departments, absolute immunity in connection with the formulation, adoption and review of the Plan itself. We disagree.

In Banks v. Parish of Jefferson, 08-27 (La.App. 5 Cir. 6/19/08), 990 So.2d 26, writ denied, 08-1625 (La.10/24/08), 992 So.2d 1043, this Court, interpreting the HSA, found that absolute immunity in emergency preparedness applies only when the activities complained of are undertaken to address a discreet or specific condition or event. Banks, at 34. In Banks, this Court declined to extend absolute immunity as defined in the HSA to general levee construction activities not performed in preparation for a specific emergency event. We agree that there is a temporal element implicit to the grant of absolute immunity in the HSA, and that it therefore applies only to the complained of conduct during the actual occurrence of the emergency event, not to the formulation, adoption and review of a Plan [ (¡enacted some two years prior to the emergency event. Therefore, the Parish and its departments’ entitlement to immunity regarding the formulation, adoption and review of the Plan must be analyzed pursuant to the DIS.

Unlike the absolute immunity provided to the Parish and its departments by the HSA, the HSA provides only qualified immunity to individual Parish employees during a specific emergency event, as no immunity is afforded for acts that may constitute “willful misconduct.” Similarly, the DIS, La. R.S. 9:2798.1(0(2) which is applicable at all times, provides only qualified immunity to public entities and their officials and employees for policymaking and discretionary acts. No immunity is afforded under the DIS for “acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”

Therefore, the question before the trial court on defendants’ motion for summary judgment, and now before us, is whether the acts or omissions of the Parish officials or employees, either in the formulation, adoption, review or execution of the Plan itself, constituted “willful misconduct” under the HSA or “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct” under the DIS. In order for the Haabs to defeat the defendants’ claims of discretionary immunity, it was incumbent upon them to put forth evidence showing that the conduct of the defendants rose to the level of misconduct required by the HSA or the DIS. For the following reasons, we find that none of the conduct of the Parish officials or employees constituted either 17“willful misconduct” or “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct.”

In this case, the evidence of record indicates that Mr. Bonano was appointed Homeland Security Chief of Jefferson Parish in 2006. In that capacity, and as authorized by the HSA, he helped to develop, with input from the various Parish firefighting services, a Plan for how those services were to respond in the event of an emergency. Under the Plan, once sustained wind speeds in a hurricane reached 50 mph, firefighters were to remain in place and not respond because it had been determined that the dangers to firefighters in such conditions were greater than the good they could do in fighting fires. The evidence further showed that the Parish had in operation a Supervisory Control and Data Acquisition System (SCADA), consisting of a number of sensors located all over the Parish. Several of these sensors measured wind speeds, and their measurements were transmitted to the Emergency Operation Center (EOC), which in turn was to notify all appropriate units, including firefighters, when the 50 mph threshold had been met. At the time of Hurricane Gustav, Kenneth Padgett was the Emergency Management Director for the Parish, and as such oversaw the EOC. On September 1, 2008, Jason Phillips was collecting the wind speed information from the SCADA, and, at about 5:30 a.m., he detected wind speeds of over 50 mph. Mr. Padgett therefore notified all agencies to implement their emergency plans for this contingency. For firefighters, the Plan called for them to shelter in place and not respond to fires, and this is what Mr. Saunders ordered.

The evidence also indicated that Mr. Bonano had the authority to override the plan, and that he eventually did so. Upon receiving information about the fire, he drove to the scene, and after conferring with Mr. Saunders about the safety issues, he decided that a fire unit should be dispatched to the scene. However, [ ^because of the strong winds, firefighters were restricted to fighting the fire from the outside of the house due to the threat of collapse.

One of the documents introduced by the Haabs in an attempt to establish that a genuine issue of material fact exists as to whether the defendants engaged in “willful misconduct” or “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct” is the affidavit of Constable Civello. Constable Civello’s affidavit is based not only upon his personal observations on the day of the fire, but also upon his expertise in fire safety, having formerly been a fire department chief himself. Constable Civello, in addition to finding a number of deficiencies in the Plan itself, and in the activation of the Plan and actual response to the fire, opined that 1) the “decision to use this plan was criminal, willful, outrageous, reckless, and flagrant misconduct,” and 2) the failure of Mr. Saunders and Mr. Bona-no to order a fire unit to respond to the fire when they knew it was safe to do so was “willful misconduct.”

The Haabs argue that the question of whether this Plan rose to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, and flagrant misconduct” is a question of fact. They complain that the only way that the trial court could have granted summary judgment in consideration of Constable Civello’s affidavit was for the trial court to disregard his conclusions entirely. They cite Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, for the proposition that automatically excluding expert opinion evidence at the summary judgment stage is not allowed.

In Independent Fire, the court was faced with competing expert affidavits regarding which of two propane tanks was the source of a grill fíre. The Supreme Court found that although the evidence submitted on behalf of one of the parties by way of expert opinion was circumstantial and conflicted with the eyewitness | testimony, the Court could not conclude that “... ‘the scintilla of evidence presented supporting [this expert’s] position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true,’ such that a trial court should grant summary judgment.” Id. at 236-37. (Citation omitted). The Court therefore held that “[i]f a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial.” Id. at 236. (Emphasis added). Clearly, the issue in dispute in Independent Fire, (i.e., the source of the fire), was a factual question. Because we disagree with the Haabs’ assertion that the question of “[w]hether the foolishness of this Plan rose to the level of criminal, willful, outrageous, reckless, and flagrant misconduct” is a question of fact, we do not find the decision in Independent Fire pertinent to our analysis in the case before us.

Whether a given set of conduct rises to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” is a standard created by law to determine whether liability will result from that conduct; as such, the question of whether a given set of conduct rises to the level of “willful, misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” is purely a question of law, and is within the province of the trial court to determine at the summary judgment stage. The fact that Constable Civello, in addition to expressing his opinion regarding the underlying facts and conduct in this matter, also expresses his opinion on the purely legal question of whether that conduct rises to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” does not create a question of material fact that precludes l10the grant of summary judgment in this matter. Therefore, while Constable Civello’s opinion regarding the underlying facts and conduct is relevant to determine whether a genuine issue of material fact exists, his opinion regarding the legal question of the characterization of that conduct is not.

In Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907, 916 (La.App. 3rd Cir.1975), aff'd, 328 So.2d 367 (La.1976), the Third Circuit stated:

The terms ‘willful’, ‘wanton’, and ‘reckless’ have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to do (sic) the terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. (Citations omitted).

We conclude that only the most egregious conduct by parish agents, employees or representatives that exhibits an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct, will rise to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” resulting in a forfeiture of all the immunity protections afforded by the HSA and the DIS.

After a thorough review of the evidence of record on the summary judgment motion, and accepting as true, deficiencies in the Plan itself and in the response to the actual fire as opined by Constable Civello, we do not find any facts that are even remotely suggestive of the extreme conduct required by the statutes on the part of any of the Parish officials or employees in the formulation, adoption or review of the Plan, or in the activation of the Plan and response to the fire during Hurricane Gustav. The evidence shows that the Parish was complying with the J^HSA in adopting the Plan. It also shows that the Parish had a rational basis for including provisions in the Plan that balanced the needs of the public for fire protection during an emergency event with the need for the safety of its employees during that event. Furthermore, the evidence shows that the employee defendants, who were required to make instantaneous decisions during a crisis situation, were doing their best to comply with the mandates of the Plan, and still be responsive to the needs of the public. Although in hindsight there may have been deficiencies in the Plan itself, and in the response to the fire, as opined by Constable Civello, we conclude that these deficiencies, at most, might constitute ordinary negligence for which the Parish and its employees are immune under both the HSA and the DIS on the facts as presented in this case. As such, we find that the Parish and its departments, officials and employees are entitled to absolute and qualified immunity pursuant to the HAS, and qualified immunity pursuant to the DIS. Finding there are no genuine issues of material fact, and that the defendants are entitled to judgment as a matter of law, we conclude that the summary judgment as to all defendants was properly granted. La. C.C.P. art. 966(C).

DECREE

For the foregoing reasons, the summary judgment granted in favor of the defendants and dismissing the Haabs’ lawsuit with prejudice is hereby affirmed.

AFFIRMED.

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

|TI, respectfully, dissent from the majority opinion on the analysis of the discretionary immunity statute, La. R.S. 9:2798.1. The opinion rejects the Haabs’ assertion that the question of “ ‘[w]hether the foolishness of this Plan rose to the level of criminal, willful, outrageous, reckless, and flagrant misconduct is a question of fact’ ” and finds “the question of whether a given set of conduct rises to the level of ‘criminal, willful, outrageous, reckless, or flagrant misconduct’ is purely a question of law, and is within the province of the trial court to determine at the summary judgment stage.” However, the opinion provides no jurisprudential support for the assertion that the question is purely a question of law. When considering the issue of whether the misconduct of a political subdivision is criminal, willful, outrageous, reckless, or flagrant, there is jurisprudence that squarely opposes the point of law set forth in the opinion.

In Favre v. Boh Bros. Const., L.L.C., 11-451 (La.App. 5 Cir. 3/13/12); 90 So.3d 481, 489, writ denied, 12-1024 (La.6/22/12); 91 So.3d 976, this Court held that the application of La. R.S. 9:2798.1 is a question of fact to be determined through a trial. The Louisiana Third Circuit, in Murphy Cormier General Contractor, Inc. v. State, 12-1000 (La.App. 3 Cir. 5/22/13); 114 So.3d 567, 599, writ denied, 13-1491 (La.11/1/13); 125 So.3d 430, has stated, “The trier of fact determines whether, under the facts of the particular case, the officials are entitled to immunity.” (See also, Chaney v. National Railroad Passenger Corp., 583 So.2d 926 (La.App. 1st Cir.1991)), where the court found:

Whether or not the exercise of discretion by a governmental entity is a policy-making decision as contemplated by La. R.S. 9:2798.1, or an operational decision, is a question of fact. Likewise, whether the exercise of the discretion is protected by the discretionary immunity statute, or whether it is “willful, outrageous, reckless, or flagrant misconduct” is also a factual question. (Citations omitted).

Thus, from the jurisprudence mentioned, the question of whether a given set of conduct rises to the level of “criminal, willful, outrageous, reckless, or flagrant misconduct,” is a factual question, not a purely legal question.

By considering the Haabs’ issue solely as a question of law, the majority opinion determines through summary judgment that the defendants are entitled to the affirmative defenses of discretionary immunity and Louisiana Homeland Security Act immunity, which is contrary to the controlling jurisprudence held in Favre, supra, and other jurisprudence reviewing willful misconduct. Additionally, the opinion does not consider all of the evidence presented. The majority opinion totally dismisses Constable Dan Civello’s affidavit from consideration; yet, it wholly adopts the defendants’ position by holding, “the evidence shows that the employee defendants, who were required to make instantaneous decisions during a crisis situation, were doing their best to comply with the mandates of the Plan, and 13still be responsive to the needs of the public.” In essence, the majority opinion makes factual determinations on affirmative defenses through summary judgment by using the facade that it is determining a question of law. Those factual determinations are to be made by the trier of fact at trial, not on summary judgment.

I am of the opinion that the affidavit of Constable Dan Civello presents a genuine issue of material fact as to whether the conduct of the defendants in response to the house fire rises to the level of “criminal, willful, outrageous, reckless, or flagrant misconduct” sufficient to preclude summary judgment. Therefore, I would reverse the summary judgment and remand the matter to the trial court for further proceedings.

      . The owners of the house are not parties here.

      . La. R.S. 29:721, et seq.

      . This Court, in a writ disposition, reached the same conclusion regarding the applicability of "emergency preparedness immunity” to the formulation of the Jefferson Parish “doomsday plan” adopted seven years prior to the flooding that occurred in Hurricane Katrina. See Chicago Property Interests, L.L.C. v. Broussard, 08-1210 (La.App. 5 Cir. 3/6/09), writ denied, 09-758 (La.5/22/09), 9 So.3d 150(unpublished writ).

      . La. R.S. 9:2798.1(B) provides: “Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.”


author: JUDE G. GRAVOIS, Judge.

text:
    Michael R. HOLMES v. The NOTARY SHOPPE, ET AL INC.
    Nos. 14-CA-22, 14-CA-235.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.
    Rehearing Denied July 1, 2014.

      Amos J. Cormier, III, Attorney at Law, Chasse, Louisiana, Michael R. Holmes, Attorney at Law, Metairie, .Louisiana, for Plaintiff/Appellant.
    Todd R. Slack, Attorney at Law, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

12In this consolidated appeal, plaintiff, Michael R. Holmes, appeals an October 9, 2013 trial court judgment awarding him $462.72 in unpaid wages allegedly due under a contract of employment with defendant, The Notary Shoppe, et al Inc., plus $750.00 in attorney’s fees, and costs and legal interest from date of judicial demand. He also appeals a February 6, 2014 trial court judgment rendered against him granting defendant’s motion to tax costs pursuant to La. C.C.P. art. 970 in the amount of $640.80 in costs and $750.00 in attorney’s fees. For the reasons that follow, we amend the October 9, 2013 judgment in favor of plaintiff to reflect that interest is due on the wages claim of $462.72 from the date the wages were due (March 24, 2007) until paid, and as amended, we affirm said judgment. We further reverse the February 6, 2014 judgment in favor of defendant on its motion to tax costs.

FACTS AND PROCEDURAL HISTORY

Plaintiff became employed by defendant in 2005 to perform notarial services. Defendant had multiple business locations in the metropolitan New Orleans area. In the course of his employment with defendant, plaintiff worked at 1 ^several of defendant’s different locations. However, at all times pertinent hereto, plaintiff worked exclusively at defendant’s location inside the Wal-Mart store on Tchoupitoulas Street in New Orleans.

Plaintiff was paid $10.00 per hour, plus a 10% commission on notarial services performed. On January 20, 2007, plaintiff sent a letter to his boss, Kathleen Bondio, defendant’s registered agent, stating that he was offered another employment position but preferred to remain working for defendant under different terms of employment, which he detailed in an attachment. Mrs. Bondio responded in a letter dated January 23, 2007, in which she rejected plaintiffs proposal and requested that he submit a two weeks’ resignation notice to defendant. It is undisputed that the last day plaintiff worked for defendant was February 2, 2007.

Plaintiff claimed that he never returned to work after February 2, 2007 because he suffered a back injury rendering him unable to work. Correspondence between plaintiff and Mrs. Bondio from January and February of 2007 was introduced into evidence. On February 12, 2007, Mrs. Bondio sent plaintiff a letter expressing her disappointment that he did not work through his two weeks’ resignation period, or call to explain his absence. She requested that he submit a timesheet for his last days of employment, and return his keys to the Tchoupitoulas Street location within three days.

Plaintiff responded to Mrs. Bondio in a letter dated March 9, 2007 in which he attached a timesheet for his last week of employment, and contended that she already had this information from logs he submitted each day. In his timesheet, plaintiff claimed he was owed $543.00 for 30.2 hours of work plus commissions for that week. He also claimed that he was owed commissions of $39.50 from September 15, 2006, supporting this contention with copies of transactions from that date. Further, he denied the assertion made in Mrs. Bondio’s February 12, |42007 letter that he had given her his two weeks’ notice of resignation in their previous telephone conversation. Instead, plaintiff contended that he had notified Mrs. Bondio of his relapsing back condition that prevented him from working. He claimed that he kept her apprised of his condition and work availability by phone and that their telephone conversation on February 9, 2007 indicated his intention to continue working.

Jodi Lanosga, the corporate representative of defendant, testified at trial that she prepared plaintiffs last paycheck after receiving his timesheet in his letter dated March 9, 2007, which she issued for the company’s next customary pay date of March 24, 2007. A certified letter sent by Mrs. Bondio to plaintiff on March 22, 2007 indicated that plaintiff could pick up his paycheck at defendant’s Tchoupitoulas Street location, as well as return the keys still in his possession to that location. Despite several requests, plaintiff never returned the keys and was seen behind the counter at the Tchoupitoulas Street location on March 30, 2007, whereupon Mrs. Bondio had the locks at that location changed. It is undisputed that plaintiff never retrieved his last paycheck or otherwise received it.

Plaintiff filed suit against defendant on January 22, 2010, seeking unspecified unpaid regular wages and unpaid overtime wages for unspecified time periods. Defendant filed an answer and an exception of prescription regarding plaintiffs claim for overtime wages, arguing that the two-year prescriptive period of the Fair Labor Standards Act, 29 U.S.C.A. § 255(a), applied. The trial court heard and granted this exception on August 19, 2010, and dismissed plaintiffs claim for overtime wages with prejudice.

The next activity of record in the case occurred on February 26, 2013, when plaintiff filed a motion to set the matter for trial on the merits. Trial was set for April 15, 2013, but was continued at the request of defendant. Plaintiff thereupon | ¿filed a motion for summary judgment, arguing that there was no genuine issue of material fact as to his claim for back wages for his last week of employment and several other weeks prior thereto; thus, he was entitled to judgment as a matter of law on these claims, in addition to penalty wages due under La. R.S. 23:632. Following defendant’s opposition to the motion for summary judgment and a hearing held on September 4, 2013, the trial court found that issues of material fact remained and denied the motion.

In the meantime, defendant filed a second exception of prescription on September 4, 2013, arguing that plaintiffs claim to additional back wages, as asserted in his motion for summary judgment, was prescribed under La. C.C. art. 3494, which sets forth a three-year prescriptive period for actions to recover back wages. The exception was heard in conjunction with the trial on the merits, which was held on September 19, 2013.

At trial, the court granted defendant’s exception of prescription, dismissing plaintiffs claims for back wages prior to January 22, 2007 with prejudice. On the main demand for plaintiffs last paycheck, the court ruled in favor of plaintiff, awarding him $462.72 on his claim for wages, plus attorney’s fees of $750.00, and costs and legal interest from the date of judicial demand. The trial court found that plaintiff was not entitled to penalty wages under La. R.S. 28:632. Plaintiff timely appealed this judgment.

On October 2, 2013, defendant filed a motion to tax costs pursuant to La. C.C.P. art. 970, seeking all costs after May 4, 2010, asserting that defendant made an offer of judgment to plaintiff on that day, and the resulting judgment awarded at trial was 25% less than the offer of judgment. The matter was heard on December 2, 2013. On February 6, 2014, the trial court ruled in favor of defendant, casting | (¡plaintiff in judgment for $1,390.80, representing $640.80 in Clerk of Court costs paid by defendant since making the offer of judgment on May .4, 2010, and $750.00 in costs assessed at trial pursuant to La. R.S. 23:632. Plaintiff also timely appealed this judgment. Upon the lodging of plaintiffs second appeal, the matters were consolidated for appeal.

On appeal, plaintiff argues that the trial court erred in the following respects:

1. In granting defendant’s exception of prescription as to claims for overtime pay prior to two years before the filing of suit;
2. In granting defendant’s exception of prescription as to claims for unpaid or underpaid wages prior to three years before the filing of suit;
3. In awarding an amount of wages for the final week of work inconsistent with the testimony;
4. In failing to award plaintiff penalty wages in accordance with La. R.S. 23:632;
5. In failing to award attorney’s fees consistent with the testimony;
6. In failing to award legal interest from the date the obligation of defendant was due; and
7. In granting defendant’s motion to tax costs pursuant to La. C.C.P. art. 970.

FIRST AND SECOND ASSIGNMENTS OF ERROR — prescription

Plaintiff asserts that the trial court erred in granting the two exceptions of prescription filed by defendant: first, the exception pertaining to claims for overtime wages, and second, the claim pertaining to “regular” back wages.

Overtime wages

On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. |7931; Jensen v. City of New Orleans ex rel. New Orleans Aviation Bd., 10-917 (La.App. 5 Cir. 3/29/11), 64 So.3d 298, 301. When a party introduces evidence at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Id., citing Waguespack v. Judge, 04-0137 (La.App. 5 Cir. 6/29/04), 877 So.2d 1090, 1092 (citation omitted). However, in the absence of evidence, an exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Id. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

This Court previously held in Webster v. Penn Treaty Network Am. Ins. Co., 12-90 (La.App. 5 Cir. 7/31/12), 99 So.3d 708, 711:

Generally, the prescription period for wage disputes is governed by La. C.C. art. 3494, which states, “an action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees ...” is subject to a liberative prescription of three years. Brumberger v. Touro Infirmary, p. 3, 10-1221 (La.App. 4 Cir. 3/30/11), 63 So.3d 293, 295. La. C.C. art. 3495 further provides that “this prescription commences to run from the day payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies, or other services.”

In his petition for damages, plaintiff claimed that defendant failed to pay him for unspecified amounts of overtime wages without mention of a specified time period. Thus, prescription was not evident from the face of the petition. Following evidence produced by defendant during discovery, plaintiff clarified in later pleadings that he sought unpaid overtime wages dating back to 2006. Specifically, plaintiff sought overtime compensation from the weeks of March 19-25, 2006 (4 hours), April 9-15, 2006 (4.3 hours), May 14-20, 2006 (5.3 hours), September 3-9, 2006 (6 hours), September 10-16, 2006 (1.15 hours), September 24-30, 2006 (5 hours), October 29-November 4, 2006 (2 hours), November 12-18, 2006 (4.451 shours), January 7-13, 2007 (2 hours), and January 14-20, 2007 (2 hours), as noted by check stubs attached to pleadings.

Plaintiff filed this suit on January 22, 2010. In its exception of prescription as to plaintiffs claim for overtime wages, defendant argued that the Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. § 255(a), preempted state law to govern plaintiffs claim for overtime wages, and provided only a two-year prescriptive period for unpaid overtime wages, citing Odom v. Respiratory Care, Inc., 98-263 (La.App. 1 Cir. 2/19/99), 754 So.2d 252, 256. However, a recent Third Circuit case disagreed with this First Circuit interpretation, holding that the FLSA overtime provisions preempt Louisiana state law only for employees engaged in interstate commerce; employees engaged in intrastate commerce may still recover unpaid overtime wages under La. R.S. 23:631-32. The court found that the statutory language in La. R.S. 23:631(A)(1)(a) does not distinguish between “regularly earned wages” and “overtime compensation,” as the First Circuit implied in Odom. Rather, the statute mandates through more encompassing language that the employer pay “the amount then due under the terms of employment.” Kidder v. Statewide Transp., Inc., 13-594 (La.App. 3 Cir. 12/18/13), 129 So.3d 875, 880.

Neither party introduced evidence regarding whether the nature of plaintiffs employment duties fell within interstate or intrastate commerce. However, irrespective of whether we apply the two-year prescriptive period under the FLSA or the three-year prescriptive period found in La. C.C. art. 3494, plaintiffs claims for overtime wages are prescribed, with the exception of the two hours of overtime claimed for the week of January 14-20, 2007; all other claims accrued more than three years prior to plaintiffs filing suit.

lnWe further find that plaintiff is not entitled to overtime pay for the week of January 14-20, 2007, because such amount was not due under his terms of employment. Ms. Lanosga, the corporate representative of defendant, testified that defendant prohibited employees from working “overtime,” i.e., hours before or after the regular store hours, unless specifically authorized by the owner. Despite submitting timesheets with “overtime” since 2006, as noted above, defendant never in fact paid plaintiff said overtime. Thus, contrary to plaintiffs assertions, the evidence established that his employer’s policy disallowed compensation for hours logged before or after the store hours of 10:00 a.m. and 5:00 p.m., respectively.

Plaintiff contends that the doctrine of contra non valentem applies to his prescription claim because he remained unaware that defendant had failed to pay his submitted “overtime” wages until discovery was conducted herein. Contra non valentem provides that when a claimant is not aware of the facts giving rise to his cause of action against a defendant, the running of prescription is suspended until the claimant discovers or should have discovered the facts on which the action is based. In re: Succession of Ferguson, 47,941 (La.App. 2 Cir. 5/29/13), 114 So.3d 1260, 1263. For purposes of contra non valentem, a plaintiff will be deemed to know what he could have learned with reasonable diligence. Caro v. Bradford White Corp., 96-120 (La.App. 5 Cir. 7/30/96), 678 So.2d 615, 618.

Plaintiffs arguments on this issue are unavailing. Plaintiff maintained a daily log of his hours and services performed. He submitted this information in a “time-sheet” once a week to defendant, who subsequently paid him based on these figures. The stubs attached to plaintiffs paycheck clearly illustrate his hourly rate and the number of hours for which he was compensated, in addition to ' his commissions. Plaintiff could have reasonably compared his own records to his paycheck in order to confirm the accuracy of these payments, without apparent^difficulty, but apparently failed to do so. Accordingly, contra non valentem did not suspend the running of prescription on plaintiffs claim for overtime wages. Upon review, we find no manifest error in the trial court’s decision to grant defendant’s exception of prescription regarding plaintiffs claim for overtime wages.

Back wages

Defendant also filed an exception of prescription as to plaintiffs claim involving commissions for services performed on September 15, 2006. The trial court also granted this exception of prescription during the trial of the matter. Applying the prescriptive period of La. C.C. art. 3494 to this claim and employing the same reasoning as above, we find that plaintiffs claim has prescribed because suit was not filed thereon until January 22, 2010. Further, the doctrine of contra non valentem also does not apply in this instance. The evidence indicates that plaintiff knowingly submitted his timesheet to defendant for that particular week without the information regarding the amount charged for that service. Plaintiff neglected to obtain and submit these figures in a timely manner so that defendant could pay him for the date in question. Accordingly, upon review, we find that the trial court was not manifestly erroneous in granting the exception of prescription regarding this claim.

THIRD ASSIGNMENT OF ERROR— award for wages due

Plaintiff next argues that the trial court erred in awarding him only $462.72 on his wage claim for his last pay period, rather than the $543.00 he claimed was owed. For the following reasons, we affirm this award by the trial court.

As previously noted, plaintiff submitted a “timesheet” for his last week of employment to defendant via a letter dated March 9, 2007. Therein, he claimed that he worked 30.2 hours during his last week of employment, as well as [ n performed notarial services valued at $2,410.00, entitling him additionally to commissions of $241.00. Plaintiff claimed that he worked Monday, January 29, 2007, from 10:00 a.m. to 5:30 p.m.; Tuesday, January 30, 2007, from 9:00 a.m. until 5:30 p.m.; Wednesday January 31, 2007, from 10:00 a.m. until 4:30 p.m.; and Friday, February 2, 2007, from 10:00 a.m. until 5:50 p.m. Thus, the total wage claim plaintiff submitted for the last week of his employment totaled $543.00, from which plaintiff did not deduct the customary tax withholdings and other deductions.

However, as per its policy communicated by Ms. Lanosga during trial, defendant only paid plaintiff for those hours worked during the store’s business hours, as was previously done with plaintiff since 2006, and as noted in the previous assignments of error. Thus, defendant deducted 30 minutes from Monday, 1 hour and 30 minutes from Tuesday, and 50 minutes from Friday, for a total deduction of 2 hours and 50 minutes worth of unauthorized hours; thus, plaintiffs hours for his last week of employment were lowered to 27.25, which defendant then rounded up to 27.3 hours, according to the paycheck documents defendant entered into evidence. Plaintiffs gross pay was then reduced by the usual deductions for taxes, Medicare, and Social Security.

Upon review, we find no error in the trial court’s award for wages due. The award was appropriately based upon plaintiffs timesheet given to defendant and submitted into evidence in conjunction with defendant’s established policy of only compensating employers for hours worked during business hours. Accordingly, the award of $462.72 for wages due is affirmed.

FOURTH ASSIGNMENT OF ERROR — penalty wages

Plaintiff also argues that the trial court erred in failing to award him penalty wages pursuant to (1) La. R.S. 23:631, which states, in pertinent part:

|12A.(1)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
* * *
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service,

and (2) La. R.S. 23:632, which states:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

La. R.S. 23:631 and 632 are penal in nature and must be strictly construed; their provisions must yield to equitable defenses. McFarland v. Texhoma Contractors, Inc., 449 So.2d 1106, 1109 (La.App. 5 Cir.1984).

The trial court declined to award penalty wages to plaintiff because defendant acted neither arbitrarily or capriciously in delaying plaintiffs payment. For the following reasons, we find no error in this regard.

The evidence indicates that plaintiff kept a daily log of his time and commissions during the usual course of employment. He submitted a weekly | istimesheet based on these logged figures to the owner of the company, whereupon his paycheck would be prepared. Defendant paid plaintiff on a weekly basis. During the relevant time periods, plaintiff worked exclusively at defendant’s Tchoupitoulas Street location, where he received his weekly paychecks.

The evidence indicates that plaintiff did not send his timesheet to defendant for his last week of employment, which ended on February 2, 2007, until he included it in a letter to defendant dated March 9, 2007. Ms. Lanosga testified that upon receiving the timesheet in that letter, she prepared plaintiffs paycheck, as evidenced by the stub prepared by her accounting software. Ms. Lanosga testified she believed that the check was sent to plaintiff by certified mail; however, it may have been returned. On occasion during this time period, plaintiff testified that he ignored certified mail notices because he thought they were du-plicative of letters he had already claimed. Plaintiff testified that he never received a certified letter from defendant dated March 22, 2007 informing him of his available paycheck and a request for the return of the store keys. Ms. Lanosga testified the check was left in the store’s safe once returned unclaimed in the mail, in accordance with their standard pay procedures, but plaintiff never retrieved the check. It was undisputed that plaintiffs last paycheck was never cashed.

Plaintiff argues that defendant could have prepared his check much earlier since it possessed the daily logs upon which plaintiff based his final timesheet. However, the usual and customary practice involved the submission of a timesheet for the entire week, which plaintiff did not do until March 9, 2007. The evidence shows that defendant subsequently either mailed plaintiff his check, as provided by the statute, or stored it at the work location, per customary practice and as also provided by the statute. Plaintiff did not meet his burden of proving that the failure to receive his last paycheck was the fault of defendant. Plaintiff likewise failed to |14show that defendant placed conditions on the receipt of his paycheck. Accordingly, upon review, we find no manifest error in the trial court’s conclusion that defendant did not act arbitrarily or capriciously, and thus find no error in the trial court’s decision not to award plaintiff penalty wages.

FIFTH ASSIGNMENT OF ERROR— attorney’s fees award

Plaintiff next argues that the trial court erred in awarding him only $750.00 in attorney’s fees when he presented some evidence that his attorney’s fees exceeded that amount. Specifically, plaintiff introduced an invoice from his first attorney in the amount of $1,500.00, as well as an “employment contract” with his trial attorney which contained a contingency payment clause.

An employee who brings a well-founded suit for unpaid wages is entitled to mandatory attorney’s fees, irrespective of any defenses which his employer may raise. McFarland v. Texhoma Contractors, Inc., supra; Labadie v. Physician Network Corp. of Louisiana, Inc., 01-1180 (La.App. 5 Cir. 1/29/02), 805 So.2d 1278, 1282.

In evaluating the reasonableness of attorney’s fees awarded in wage cases under La. R.S. 23:632, courts have applied the following factors from Rivet v. State, Dept. of Trans. and Dev., 96-0145 (La.9/5/96), 680 So.2d 1154, 1161, in determining whether the trial court abused its discretion in its award, to-wit: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. See Labadie v. Physician Network Corp. of Louisiana, Inc., supra.

| ^Considering the above factors, we note that the facts of this case were not complex or intricate and the law in this area is relatively well settled. The matter lay dormant for approximately two years after some initial proceedings. Defendant prevailed in its exceptions of prescription; plaintiff did not prevail in his motion for summary judgment. The amount at issue was relatively small. Accordingly, upon review, we find no abuse of the trial court’s discretion in the amount of its award of attorney’s fees to plaintiff.

SIXTH ASSIGNMENT OF ERROR—interest

Plaintiff next argues that the trial court erred in awarding interest from the date of judicial demand, rather than from the date the wages were due, as per La. C.C. art. 2000. This article states, in pertinent part:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500.

We agree with plaintiffs arguments on this issue. The object of plaintiffs performance was a sum of money, his wages. Plaintiff is entitled to interest thereon from the date the wages were due, rather than the date of judicial demand. As noted above, wages were not due until plaintiff furnished defendant with his timesheet, as per defendant’s customary employment procedures. Thus, we find that wages for plaintiffs last pay period were not due until March 24, 2007, which was the next scheduled pay date after defendant received plaintiffs timesheet, as per the testimony of Ms. Lanosga.

SEVENTH ASSIGNMENT OF ERROR — judgment on motion to tax costs

Plaintiffs final argument is that the trial court erred in granting defendant’s motion to tax costs against him pursuant to La. C.C.P. art. 970. He argues that the 11fioffer of judgment on May 4, 2010 failed to comply with the statutory requirements of Article 970(A), namely that “[t]he offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule.”

As this Court recently stated in Carcamo v. Raw Bar, Inc., 12-294 (La.App. 5 Cir. 11/27/12), 105 So.3d 936, 938:

Louisiana Code of Civil Procedure Article 970 provides for the payment of costs when an offer of judgment has been made and rejected. The purpose of Article 970 is to compensate the rejected offeror who was forced to incur greater trial litigation costs than he would have if the offeree had accepted his settlement offer. Hacienda Construction, Inc. v. Newman, 10-18 (La.App. 5 Cir. 6/29/10), 44 So.3d 333, 337. Article 970 is punitive in nature and, therefore, must be strictly construed. Id.

117Plaintiff argues that the offer of judgment failed to comply with La. C.C.P. art. 970(A) because the offer of $750.00 failed to state whether it was “inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule.” Plaintiff notes that defendant was cast in judgment, interest thereon, and attorney’s fees, which were mandatory under La. R.S. 23:632 upon prevailing on a wage claim. Thus, the judgment rendered on October 9, 2013 totaled $2,275.45, which clearly exceeds the unspecified $750.00 offered by defendant.

Upon review, we agree with plaintiffs position that, given the punitive nature of Article 970 and the requirement that it be strictly construed, the failure of defendant’s offer of judgment to state whether it was “inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule” requires that the judgment of February 6, 2014 in favor of defendant and against plaintiff be reversed.

CONCLUSION

For the reasons assigned above, the judgment of October 9, 2013 in favor of plaintiff is affirmed as amended, to reflect that interest is due on the wage claim of $462.72 from the date wages were due (March 24, 2007) until paid. The judgment of February 6, 2014 in favor of defendant on its motion to tax costs is hereby reversed. Costs of this appeal are assessed equally between the parties.

JUDGMENT OF OCTOBER 9, 2013 AFFIRMED AS AMENDED; JUDGMENT OF FEBRUARY 6, 2014 REVERSED.

      . Appeals from judgments of the parish courts are governed by La. C.C.P. art. 5002.

      . In brief, defendant notes that these two judgments were not appealed. We find, however, that the judgments granting the exceptions of prescription were not final judgments as per La. C.C.P. art. 1915(B) because they adjudicated fewer than all of the claims raised by plaintiff in this suit. Nor were the judgments certified as immediately appealable as per Article 1915(B)(1). Accordingly, these judgments are properly on review to this Court following appeal from the final judgment.

      . La. C.C.P. art. 970 provides:
      A. At any time more than twenty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them. The offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Unless accepted, an offer of judgment shall remain confidential between the offeror and offeree. If the adverse party, within ten days after service, serves written notice that the offer is accepted, either party may move for judgment on the offer. The court shall grant such judgment on the motion of either party.
      B. An offer of judgment not accepted shall be deemed withdrawn and evidence of an offer of judgment shall not be admissible except in a proceeding to determine costs pursuant to this Article.
      C. If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror's costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.
      D. The fact that an offer is made but not accepted does not preclude a subsequent offer or a counter offer. When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the damages remains to be determined by future proceedings, either party may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than thirty days before the start of hearings to determine the amount or extent of damages.
      E. For purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained, which judgment shall take into account any additur or remittitur, the final judgment obtained shall not include any amounts attributable to costs, interest, or attorney fees, or to any other amount which may be awarded pursuant to statute or rule, unless such amount was expressly included in the offer.
      F. A judgment granted on a motion for judgment on an offer of judgment is a final judgment when signed by the judge; however, an appeal cannot be taken by a party who has consented to the judgment.

      . Defendant’s “Offer of Judgment” simply stated:
      Pursuant to Civil Code Article 970, Defendants offer $750 for offer of Judgment. Failure to accept this offer will result in payment of all costs incurred after the offer has been made pursuant to Article 970(c).