text:
    STATE of Louisiana v. Marvin SMITH.
    No. 12-KA-580.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

1 ^Defendant, Marvin Smith, appeals his habitual offender sentence of 30 years imprisonment at hard labor from the 24th Judicial District Court, Division “I”. For the following reasons, we affirm the sentence.

FACTS AND PROCEDURAL HISTORY

Around 2:00 A.M. on July 17,1995, Mrs. Merlin Hotard awoke when she heard the sound of a light switch being turned on and then the sound of her dog growling. Mrs. Hotard immediately called 911 and requested that the police come out to check her home. Mrs. Hotard testified that she stayed in her bedroom until the police arrived and advised her that it was safe for her to come out.

Officer Joseph Piglia of the Gretna Police Department testified that he received a call on the morning of July 17, 1995, to investigate a possible house burglary at the home of Mrs. Merlin Hotard. Upon approaching the home, Officer Piglia noticed that the rear door of the home was open. Along with two other officers, Officer Piglia entered the home and observed someone standing in the |3kitchen. Officer Piglia testified that after ordering the intruder to the ground, he noticed a fillet knife with a wooden handle and a plastic bag on the floor next to the intruder’s right hand. He testified that the bag contained silverware and other assorted objects. Officer Piglia identified Defendant in open court as the man he saw standing in Mrs. Hotard’s kitchen whom he later arrested for aggravated burglary.

Officer Eric Stahl also testified and corroborated Officer Piglia’s testimony. Officer Stahl also identified Defendant as the man that was arrested in Mrs. Hotard’s kitchen. He read Defendant his rights after placing him under arrest. After arriving at the police station and again being read his rights, Defendant was given a “Rights Form” on which he could choose whether to waive his rights or to speak to an attorney. Defendant marked the space indicating that he was waiving his rights and wished to make a statement. Defendant thereafter admitted that he had broken into Mrs. Hotard’s residence to take her property. Officer Stahl testified Defendant was not coerced, intimidated or forced, nor was he offered anything of value for his statement.

On March 25, 1996, Defendant was convicted by a Jefferson Parish jury of aggravated burglary, a violation of LSA-R.S. 14:60. A habitual offender hearing was held on October 25, 1996, after which the trial court found Defendant to be a third felony offender. The trial court sentenced Defendant to life imprisonment.

Defendant filed an Anders brief and his conviction and sentence were affirmed by this Court on December 30, 1996. On January 28, 2011, Defendant filed a Motion to Correct Illegal Sentence pursuant to LSA-C.Cr.P. arts. 882(A)(B) and 872(1)-(3), alleging that his habitual offender sentence was illegal because he |4was sentenced under the incorrect version of LSA-R.S. 15:529.1. The trial court denied Defendant’s motion on February 4, 2011, after finding that Defendant cited the incorrect law.

On March 29, 2011, this Court granted Defendant’s application for supervisory writs in Smith v. State, 11-KH-213 (La.App. 5 Cir. 3/29/11) (unpublished writ). This Court granted the writ and remanded Defendant’s case to the trial court “to consider relator’s motion to correct illegal sentence under the version of LSA-R.S. 15:529.1 as it existed at the time of the commission of the underlying offense sought to be enhanced as enumerated in the multiple bill of information.” On April 11, 2011, the trial court, on remand, again denied Defendant’s Motion to Correct Illegal Sentence, finding Defendant’s sentence adhered to the habitual offender law in effect at the time of the commission of the underlying offense sought to be enhanced.

Defendant filed a second application for supervisory writs in Smith v. State, 11-KH-518 (La.App. 5 Cir. 5/14/11)(unpublished writ), which this Court granted. In its disposition, this Court was unable to determine whether Defendant had received an illegal third felony offender sentence under the correct version of LSA-R.S. 15:529.1 because he failed to submit a copy of the habitual offender bill of information containing his predicate offenses; however, this Court again remanded the case to the trial court for consideration of Defendant’s Motion to Correct Illegal Sentence “under the proper version of LSA-R.S. 15:529.1 as it existed at the time of the commission of the underlying offense on July 17,1995, before subsequent amendments took effect on August 15, 1995.”

Pursuant to this Court’s order, on August 29, 2011, a hearing was held on Defendant’s Motion to Correct Illegal Sentence. The trial court vacated Defendant’s life sentence and re-sentenced him to 40 years imprisonment at hard Ijabor. On September 15, 2011, Defendant filed a motion to reconsider his 40-year sentence. The trial court denied Defendant’s motion on September 26, 2011. On October 24, 2011, Defendant filed a second Motion to Reconsider Sentence. A hearing on Defendant’s motion was held on December 9, 2011, at which time the trial court vacated Defendant’s 40-year sentence and sentenced him to 30 years imprisonment at hard labor.

On January 4, 2012, Defendant filed another Motion to Reconsider Sentence and a Motion for Appeal. The trial court granted Defendant’s Motion for Appeal on January 25, 2012 but failed to rule on his Motion to Reconsider Sentence. Thus, on September 6, 2012, this Court ordered the trial court to rule on Defendant’s motion within 14 days, and upon ruling, supplement the appellate record. The trial court denied Defendant’s Motion to Reconsider Sentence on September 10, 2012. The instant appeal followed.

ASSIGNMENT OF ERROR

On appeal, Defendant’s sole assignment of error is that his 30-year sentence is unconstitutionally excessive.

LAW AND ANALYSIS

Defendant argues that he has spent 17 years fighting to have his illegal life sentence, which he asserts was imposed under an inapplicable version of the habitual offender statute, corrected. Defendant contends the trial court eventually reduced his life sentence to 80 years under the correct provision of the habitual offender law in effect at the time of the commission of the underlying offense, but his 30-year sentence is still illegal because it is unconstitutionally excessive. Defendant claims that he is no longer a threat to society as evidenced by his conduct while incarcerated, which includes the earning of his GED and two college degrees from the New Orleans Baptist Theological Seminary, the participation and | ficompletion of various self-help programs, and a promotion to trustee status at Angola prison. Defendant also asserts that the trial court failed to state its reasons for imposing the 30-year sentence in contravention of LSA-C.Cr.P. arts. 894.1 and LSA-R.S.15:529.1. Thus, Defendant maintains that fundamental fairness and due process mandate that his sentence be vacated and his case be remanded to the trial court for reconsideration.

The State responds that Defendant’s 30-year sentence is not excessive. The State notes that under the habitual offender law in effect at the time of the commission of the underlying offense, the law provided for a possible sentencing range of 20 to 60 years. Thus, the State maintains that Defendant’s 30-year sentence is within the limits set by the legislature, is in proportion to the severity of the crime, and is supported by the record.

The trial judge did not give oral reasons prior to sentencing Defendant to 30 years imprisonment as a third felony offender. On January 4, 2012, Defendant filed a motion to reconsider his enhanced 30-year sentence, arguing that his sentence is excessive given the mitigating factors in his case. Specifically, in his motion Defendant asserted that since his incarceration, he has become a “Class ‘A’ Trustee” and has obtained various degrees and awards, such as two degrees from the New Orleans Baptist Theological Seminary and a Louisiana Medal for Military Service. Defendant concluded that his 30-year sentence should be reconsidered, and that a 25-year sentence with “good time” should be imposed. The trial court denied Defendant’s motion on September 10, 2012, finding that “[Djefendant’s sentence is within the statutory parameters provided.” Because Defendant filed a timely Motion to Reconsider Sentence stating the specific grounds upon which it was based, this issue is properly before this Court on appeal. See LSA-C.Cr.P. art. 881.1.

|7First, Defendant argues that the trial court erred in failing to state its reasons for imposing the 30-year sentence in contravention of LSA-C.Cr.P. arts. 894.1 and LSA-R.S. 15:529.1. Defendant’s argument is misplaced. The trial court was not required to comply with sentencing guidelines or consider mitigating circumstances when sentencing Defendant as a habitual offender. Compliance with sentencing guidelines pursuant to LSA-C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Johnson, 01-0842 (La.App. 5 Cir. 2/13/02); 812 So.2d 106, 118, writ denied, 02-1037 (La.3/21/03); 840 So.2d 532; State v. Jenkins, 07-586 (La.App. 5 Cir. 1/22/08); 977 So.2d 142.

Second, based on the facts of this case, we find that Defendant’s 30-year sentence is not excessive. The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5th Cir.1991), writ denied, 577 So.2d 1009 (La.1991). The trial judge has wide discretion in imposing sentences within the statutory limits, and sentences will not be set aside absent manifest abuse of that broad discretion. State v. Lanclos, 419 So.2d 475, 478 (La.1982); State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98); 722 So.2d 1097, 1106, writ denied, 98-3219 (La.5/7/99); 741 So.2d 28.

Three factors should be considered in reviewing a judge’s sentencing discretion: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. State v. Le, 98-1274 (La.App. 5 Cir. 6/30/99); 738 So.2d 168, 171, writ denied, 00-2174 (La.4/12/01); 789 So.2d 587; State v. Medious, 98-419 (La.App. 5 Cir. 11/25/98); 722 So.2d 1086, 1092, writ denied, 98-3201 (La.4/23/99); 742 So.2d 876. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00); 754 So.2d 392, writ denied, 00-1467 (La.2/2/01); 783 So.2d 385.

Under the statute used at re-sentencing, Defendant was exposed to a sentencing range of 20 to 60 years. LSA-R.S. 15:529.1(A)(l)(b)(ii). The trial court sentenced Defendant to 30 years, which is at the lower end of the sentencing range. Additionally, when Defendant was first re-sentenced to 40 years, the trial court was presented with Defendant’s achievements obtained while incarcerated and agreed to take them into consideration during sentencing. Later, the trial court vacated Defendant’s 40-year sentence and imposed a 30-year sentence. Moreover, two of Defendant’s three convictions (purse snatching and aggravated burglary) constituted crimes of violence under LSA-R.S. 14:2(B). Accordingly, it appears that the trial court considered defendant’s criminal history, as well as the mitigating factors in this case prior to sentencing.

Therefore, after reviewing the record in this case, including the certified copies of Defendant’s two predicate convictions, we find that the 30-year sentence for a third felony offense is not unconstitutionally excessive.

J¿ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). We find the following errors patent must be corrected.

First, a review of the habitual offender bill commitment in this case reflects Defendant was sentenced under LSA-R.S. 15:529.1, but it does not reflect Defendant’s specific status as a third felony offender. This Court has recognized a similar matter to be an error patent. In State v. Defrene, 07-823 (La.App. 5 Cir. 2/19/08); 980 So.2d 31, 34, the transcript reflected that the defendant pleaded guilty to being a second felony offender, while the commitment reflected that the Defendant was “sentenced under the Multiple Bill statute.” This Court remanded the matter to the trial court for the limited purpose of correcting the commitment to state defendant was sentenced as a second felony offender. Id. (See also, State v. McKenzie, 09-893 (La.App. 5 Cir. 2/15/11); 61 So.3d 54; State v. Scott, 08-703 (La.App. 5 Cir. 1/27/09); 8 So.3d 658, writ denied, 09-0650 (La.12/11/09); 23 So.3d 910, where this Court remanded the matter to the trial court for the limited purpose of correcting the commitment to state defendant was sentenced as a second felony offender.)

Accordingly, we remand this matter for correction of the commitment to reflect that Defendant was sentenced as a third felony offender and direct the Clerk of Court to transmit the original of the minute entry to the officer in charge of the institution to which the Defendant has been sentenced.

| inSecond, the transcript indicates that the trial court provided Defendant with an incomplete advisal of the time period for seeking post-conviction relief as required by LSA-C.Cr.P. art. 930.8. Specifically, the trial court advised Defendant that he had two years from “the day your judgment of conviction becomes final to seek post conviction relief.” It is well-settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to LSA-C.Cr.P. art. 930.8, the court may correct said error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767, 768, writ denied, 06-1566 (La.1/8/07); 948 So.2d 120; State v. Thomas, 10-221 (La.App. 5 Cir. 11/9/10); 54 So.3d 688, writs denied, 10-2758 (La.4/25/11); 62 So.3d 89 and 10-2752 (La.5/20/11); 63 So.3d 974; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11); 67 So.3d 535, writ denied, 11-1753 (La.2/10/12); 80 So.3d 468; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08); 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09); 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08); 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09); 19 So.3d 473.

Thus, by means of its opinion, we correct this error and inform Defendant that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

DECREE

Based upon the foregoing reasons, we affirm Defendant’s sentence. Additionally, we remand the matter to the trial court for correction of the commitment.

AFFIRMED

      . In its written reasons for judgment, the trial court found that the State proved Defendant had been convicted of purse snatching, a violation of LSA-R.S. 14:65.1, case number 302-209 in Criminal District Court for the Parish of Orleans, and simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2, case number 82-2237 in the 24th Judicial District Court for the Parish of Jefferson.

      . The longest possible sentence for aggravated burglary at the time of the offense was 30 years imprisonment at hard labor. LSA-R.S. 14:60. Both the pre-amended and amended statutes provide that "[i]f the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then: the person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.”

      . It is noted that this is Defendant's second appeal. Defendant received an error patent review upon his original appeal and this Court found no errors. Defendant is not entitled to a second error patent review of his underlying conviction and sentence; however, the record on appeal regarding Defendant’s habitual offender resentencing was reviewed. See State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01); 802 So.2d 779, 783-84, writ denied, 01-3326 (La.1/10/03); 834 So.2d 426; and State v. Alberto, 95-540 (La.App. 5 Cir. 11/28/95); 665 So.2d 614, 625, writs denied, 95-1677 (La.3/22/96); 669 So.2d 1222, 96-0041 (La.3/29/96), 670 So.2d 1237.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Tyrone ROBINSON v. DEPARTMENT OF POLICE.
    No. 2012-CA-1039.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.
    Rehearing Denied Feb. 6, 2013.
    Raymond C. Burkart, III, Amanda A. Trosclair, Burkart & Associates, L.L.C., Covington, LA, for Plaintifi/Appellant.
    Richard F. Cortizas, City Attorney, City of New Orleans, Sharonda R. Williams, Chief of Litigation, Elizabeth Robins, Shawn Lindsay, Assistant City Attorneys, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| Sergeant Tyrone Robinson (“Robinson”) seeks review of the decision of the New Orleans Civil Service Commission (“CSC”), denying his appeal of the discipline imposed upon him by the appointing authority, the New Orleans Police Department (“the NOPD)”. For the following reasons, we reverse the judgment and dismiss the discipline imposed.

I.

On 1 September 2009, the NOPD issued a disciplinary letter to Robinson, stating therein that it had determined that Robinson violated the rules (a) relative to moral conduct by committing a battery and (b) performance of duty by failing to timely contact his precinct after he arrived at a paid detail. For the first violation, Robinson received a thirty-day suspension. For the second violation, Robinson received a letter of reprimand.

Robinson appealed the suspension to the CSC which appointed a hearing officer to receive testimony.

12At the hearing, Captain John Thomas of the Public Integrity Bureau (“the PIB”) testified for the NOPD. The PIB received a formal and written complaint regarding Robinson on 4 March 2008. Captain Thomas identified the DI-1 issued in this case, the document utilized by the NOPD to initiate a formal disciplinary investigation. The PIB received the DI-1 on 7 March 2008.

According to the DI-1, the investigation was changed from an administrative to a criminal investigation on 13 March 2008 and the criminal investigation concluded on 22 October 2008 when the NOPD received notice that the City Attorney dismissed the municipal charge against Robinson. He stated that the administrative investigation began on 22 October 2008; an extension was requested to complete the investigation, and a sixty-day extension was granted by the CSC. Thus, the NOPD had until approximately 22 February 2009 to complete its administrative investigation of Robinson. On 16 February 2009 Robinson received notice that the NOPD had completed its administrative investigation.

Captain Thomas discussed criminal investigations and administrative investigations, the difference being the burden of proof required. He explained that during a criminal investigation, all of an officer’s constitutional rights are intact. In an administrative investigation, an officer can be compelled to give a statement. Specifically, he stated:

In an administrative investigation we can compare [sic] an administrative statement, which cannot be used against him criminally, so we let the criminal investigation run its course before compelling the person to give an administrative statement.

He opined that an administrative investigation is suspended during the pendency of a criminal investigation. Once the criminal case results in an adjudication or dismissal, the administrative investigation commences.

IsCaptain Thomas conceded that the applicable statute, La. R.S. 40:2531, referred to as the “Police Officer’s Bill of Rights,” does not mention a suspension of an administrative investigation until a criminal investigation is concluded. In fact, he agreed, the statute does not refer to the investigation of any alleged criminal activity.

Captain Thomas admitted that the NOPD did not have a policy suspending the sixty-day period to complete an administrative investigation during the pendency of a criminal investigation or a written policy that states that the criminal investigation ends at the final adjudication in court.

Robinson testified that he has been employed by the NOPD for seventeen years. He stated that he worked a paid detail at Walter L. Cohen High School (“Cohen”). He stated that a student arrived late on 4 March 2008, and that according to school policy, students arriving after 9:00 a.m. must be accompanied by a parent. Thus, Robinson explained that the student was not allowed in the school. The student became belligerent and swung at another police officer present at the school, Officer Jamaane Roy. Officer Roy escorted the student outside of the building to await a social worker. Robinson stated that the student cursed him. A social worker talked with the student outside and then escorted the student into the building. Robinson testified that as the student passed, the student put her middle finger in his face and said, “F— you, mother f- — .” Robinson stated that he pushed the student back and told her, “Little girl, you’re not going to play me |4like that.” He asserted that the student came at him again, aggressively, putting her middle finger in his face, whereupon he grabbed the student’s shirt and pushed her back to create distance between them, then let go of her. Robinson stated that as he pushed the student backwards, she may have appeared to be bent over a table. Robinson acknowledged that he received a summons to appear in New Orleans Municipal Court relating to the incident. However, he noted that the City Attorney dropped the charges.

Additionally, Robinson admitted that he did not call his precinct within an hour of arriving at the detail at Cohen on 4 March 2008.

Sergeant Omar Diaz stated that he is assigned to the PIB and that he participated in the investigation of Robinson. He noted that the PIB received a call from a student at Cohen, wherein the student alleged that Robinson choked and beat her. In addition to speaking to the student and Officer Roy, Sergeant Diaz spoke with Ann Beck, the social worker. Sergeant Diaz believed Ms. Beck to be credible because she did not know either the student or Robinson.

Sergeant Diaz noted that the criminal and administrative investigations were separate and that they focused on separate things. The criminal investigation deals with criminal law violations and the administrative investigation deals with administrative violations. He stated that after the criminal investigation was completed, the administrative investigation began on 22 October 2008. Due to the time provided an officer to obtain legal counsel, Sergeant Diaz requested an extension to complete the administrative investigation. The request was granted, providing the NOPD an additional sixty days to complete the administrative investigation. After conducting interviews and obtaining statements, Sergeant Diaz recommended that the violation of the rule relative to moral conduct and the |firule relative to performance of duty be sustained. He testified that Robinson’s conduct, violating the municipal ordinance relative to battery, brought discredit to the NOPD and that bringing discredit to the NOPD affects the efficiency of the operation of the NOPD. Sergeant Diaz stated that the student informed him that she did not have any faith in the NOPD or the system, so she was not going forward with pressing the charges.

Ann Beck testified via telephone. Ms. Beck stated that on 4 March 2008, she was employed as a social worker at Cohen. She testified that she was called to the entrance of the school to talk with an upset student. When she arrived, the student was outside the building. The student informed her that she had had a confrontation with Robinson. After talking, Ms. Beck started to escort the student to the school office to telephone a parent. She testified that as the student passed Robinson, the student “gave him” the middle finger. In response, Robinson hit the student with an open hand. Ms. Beck stated the student became angrier and “gave” Robinson the middle finger again and cursed him. At that point, Ms. Beck explained that Robinson grabbed the student and pushed her onto a desk, with his hands around her neck. She stated that Robinson told the student that she needed to be more respectful. She noted that someone pulled Robinson off the student. Ms. Beck stated that she reported the incident to her supervisor and to the principal. She also contacted the PIB, but was informed that the student was required to make the incident report. Ms. Beck prepared a report within a few hours of the incident.

Lastly, Officer Roy testified that he also worked a detail on 4 March 2008 at Cohen. He indicated that a student arrived late for school. Because late students were not allowed to enter after a certain time without a parent, he explained that | (¡they did not allow the student to enter the school. He testified that they contacted the school administration. While waiting, the student became irate and swung at him. Officer Roy noted that he had to grab her and bring her outside. He stated that when the student reentered the school with the social worker, the student put her middle finger in Robinson’s face. At that point, Robinson grabbed her and informed her that she should respect the police. Officer Roy testified that he did not see Robinson push her and that he did not see Robinson bend her over a table.

Robinson and the NOPD prepared post-hearing memoranda, following which the hearing officer submitted a report to the CSC. The CSC issued a decision finding that an administrative investigation may be converted into a criminal investigation, thus tolling the sixty-day time period pending completion of the criminal investigation. Further, the CSC found that the NOPD established, by a preponderance of the evidence, that the NOPD disciplined Robinson for cause. The CSC concluded that the testimony supported the allegations contained in the disciplinary letter.

From that decision, Robinson filed a notice of appeal, averring that the judgment of the CSC was contrary to the law and evidence.

II.

The CSC has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. Art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is "within its discretion to discipline an employee for sufficient cause. The CSC is not charged with such discipline. The authority to |7reduce a penalty can only be exercised if there is insufficient cause for .imposing the greater penalty. Pope, pp. 5-6, 903 So.2d at 4.

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

The decision of the CSC is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. Art. X, § 12; Cure, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the CSC is “arbitrary and capricious” if there is no rational basis for the action taken by the CSC. Id. at p. 2, 964 So.2d at 1095.

III.

Before addressing the merits of Robinson’s appeal, we first address the NOPD’s argument that the appeal should be dismissed for a procedural defect. The NOPD argues that Robinson failed to timely assert assignments of error of the |sCSC’s decision in his application (i.e., notice) for appeal to this court; that is, the NOPD avers that the application for appeal failed to separately and particularly set forth specific assignments of error.

Uniform Rules — Courts of Appeal, Rule 3-1.1, states in pertinent part:

Every application for appeal from a final decision of any administrative body shall be filed with the appropriate administrative body in writing as required by law and shall include an assignment of errors, which shall set out separately and particularly each error asserted and a designation of the portions of the record desired to be incorporated into the transcript. Within 5 days after the filing of an application for appeal, any other party to the appeal may file a designation of additional portions of the record to be included for a proper review of the questions comprised within the assignment of errors. The administrative body shall transmit to a Court of Appeal, as a transcript of the record, only the portions of the record so designated. Costs for the inclusion of any unnecessary part of the record in any transcript may be assessed against the party requiring such inclusion. If by written stipulation filed with the administrative body, all parties agree on the portions of the record to be included in the transcript, only such portions shall be included. In all cases the application for appeal, the assignment of errors and the designation of the record shall be copied into the transcript. The administrative body shall certify the correctness of the transcript of the record.

In his brief, but not in his application for appeal, to this court, Robinson formally assigns errors: that the CSC committed legal error by misapplying La. R.S. 40:2531 and that its decision was arbitrary and capricious for no legal cause existed for the discipline imposed.

First, we note that Robinson failed to separately and particularly set out each assignment of error in his application of appeal to the CSC, an administrative body. We note that the standard appeal form that the CSC provides to public employees to appeal a decision of the appointing authority to the CSC contains no space for |9the employee to assign errors committed by the appointing authority. We conclude therefrom that the CSC does not require a public employee to specifically assign and state an error committed by the appointing authority.

Although our Uniform Rule indicates that an application (i.e., notice) of appeal of a decision to this court requires that the applicant assign errors, this rule is at odds and contrary to both statute and Louisiana Supreme Court jurisprudence.

In Rodrigue v. Rodrigue, 591 So.2d 1171 (La.1992), the Court stated:

Plaintiffs writ application is granted. The judgment of the court of appeal holding that Local Rule 22 of the Rules of the Thirty-Second Judicial District Court is not in conflict with the provisions of Louisiana Code of Civil Procedure article 1312 is hereby reversed.... The requirements of delivery or mailing of all pleadings under Local Rule 22 constitutes service under Code of Civil Procedure article 1313. Article 1312 specifically exempts any pleading not required by law to be. in writing from service. Code of Civil Procedure article 1701 provides that preliminary defaults may be obtained by oral motion in open court or by written motion. Since local rules of court cannot conflict with legislation, see Trahan v. Petroleum Cas. Co., 250 La. 949, 200 So.2d 6 (1967), Local Rule 22 of the Thirty-Second Judicial District Court is hereby declared null and void to the extent it conflicts with Code of Civil Procedure article 1312. The judgment of default entered by the trial court is hereby reinstated. [Emphasis supplied.]

We note that La. C.C.P. art. 2129 does not require an appellant in this court to assign errors in his brief, while the Uniform Rules, Courts of Appeal, Rule 2-12.4 provide otherwise. In light of Rodrigue, we cannot enforce it.

In Rocque v. Department of Health and Human Resources, Office of Secretary, 505 So.2d 726, 728 (La.1987), the Supreme Court held that summary dismissal of an appeal where the notice of appeal does not contain assignments of error “acts as a trap for the unwary appellant who does not learn of the insufficiency of his appeal ... until the time for remedying any deficiencies has already elapsed,” and is thus unreasonable and unduly burdensome on appellants. See La. Const. Art. X, § 8. Accordingly, we hold that an appellant in a civil service matter need not in his motion, application, or notice of appeal assign specific error(s) committed by the CSC.

IV.

In his first assignment of error, Robinson argues that the CSC committed legal error and misapplied La. R.S. 40:2531. That statute provides in pertinent part:

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

La. R.S. 40:2531 B(7). [Emphasis supplied.]

Further, any discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity. La. R.S. 40:2531 C.

Robinson avers that the investigation began on 7 March 2008, with the NOPD’s completion of its DI-1 form. The DI-1 provided a control number of 2008-0156-C. He notes that another document bearing control number 2008-0156-C contains a notation that the investigation was changed from administrative to criminal on 13 March 2008. The NOPD notified Robinson of a pre-disciplinary hearing on 16 February 2009, more than sixty days (actually almost a year) after 7 March 2008. Robinson concludes that the NOPD failed to comply with La. R.S. 40:2531’s sixty-day limitation, rendering the discipline imposed an absolute nullity.

The NOPD argues that the criminal investigation suspended the sixty-day period to complete the administrative investigation. In support, it cites Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 2006-0081 (La.App. 5 Cir. 7/25/06), 935 So.2d 849, and Franklin v. Dept. of Police, 10-1581, unpub. (La.App. 4 Cir. 4/6/11), 2011 WL 9165414, writ denied, 11-1074 (La.9/23/11), 69 So.3d 1157.

In Wyatt, a police officer (Wyatt) reported that his police vehicle had been vandalized. Later, the appointing authority learned that the officer had been involved in a “fender-bender” traffic accident. Wyatt, pp. 2-3, 935 So.2d at 851. The investigation of the report of vandalism to the vehicle resulted in a referral to the district attorney for possible prosecution. Id. at p. 7, 935 So.2d at 853. Thereafter, an administrative investigation was completed. The court determined that the investigation was clearly an inquiry into a criminal activity and not subject to the sixty-day rule. Id. The court found that the subsequent administrative investigation was completed timely.

In Franklin, the PIB received an anonymous tip on 25 September 2007, regarding an officer (Franklin) working a paid detail at the same time he was on duty. Franklin, 10-1581, p. 1. The NOPD requested an extension of the sixty-day time limitation on 22 October 2007. The investigating officer completed the NOPD incident report on 20 February 2008. Due to the possibility of payroll fraud, the investigating officer forwarded information to the District Attorney’s office. Id. The District Attorney notified the NOPD that Officer Franklin had been accepted into the diversionary program. On 9 April 2009, the investigating officer received notice that the officer completed the diversionary program. This court determined that the start of the administration investigation did not commence until after the completion of the criminal investigation. Id. at p. 2. We found that the administrative investigation commenced on 9 April 2009 when | isreceipt of the notice of the end of the criminal investigation was received, and ended on 16 April 2009, when a request for a disciplinary hearing was submitted. Thus, we concluded that the administrative investigation met the sixty-day requirement provided in La. R.S. 40:2531. Id.

Robinson argues that nothing in La. R.S. 40:2531 allows for the suspension of the timé provided for the administrative investigation to be completed once it begins to run. We agree. In support of his argument that La. R.S. 40:2531 must be applied as written, Robinson cites numerous code articles regarding statutory construction. Further, Robinson cites Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119, wherein, the Court noted that “[jjudicial decisions ... are not intended to be an authoritative source of law.” Id. at p. 13, 774 So.2d at 128.

La. R.S. 40:2531 B(7) sets forth certain time limitations for the beginning and end of an administrative investigation against a police officer. Only in the last sentence does the statute state: “nothing in this Paragraph shall limit any investigation of alleged criminal activity.” A common sense reading of the statute means simply that the time limitations do not apply to criminal investigations. In other words, criminal investigations may take as long as necessary. To read the statute as the NOPD argues would completely eviscerate it; that is, to adhere to the NOPD’s argument would disembowel the Police Officer’s Bill of Rights. This we decline to do.

Captain Thomas admitted that the PIB could compel administrative statements from officers under investigation while a criminal investigation or court proceeding is pending. The NOPD simply chooses not to, by adding something to 114the statute that does not exist, thereby excusing its failure to comply with La. R.S. 40:2531 B(7).

Therefore, we find that the NOPD had sixty, or possibly 120 days, from 7 March 2008 in which to complete its administrative investigation. This it did not do. Consequently, the discipline imposed against Robinson is an absolute nullity.

y.

Accordingly, for the foregoing reasons, the decision of the CSC is reversed and the discipline imposed against Robinson is dismissed.

REVERSED.

      . In O’Hern v. Department of Police, 12-0600 (La.App. 4 Cir. 12/19/12), - So.3d -, we held that the administrative investigation was suspended during the pendency of the criminal investigation. We disagree with that panel. See Tobias, J., dissenting. In any event, there, the NOPD claimed that the criminal investigation ended once the case was handed over to the District Attorney, not upon the conclusion of the criminal matter. It appears that the NOPD takes a different and contradictory view: that a criminal investigation ends upon the say-so of the investigative officer, not upon any kind of objective standard or policy.

      . In pertinent part, Rule 2-12.4 states:
      The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought. [Emphasis supplied.]

        See also Uniform Rules-Courts of Appeal, Rule 3-1.5.


author: JAMES F. McKAY III, Judge. LOVE, J., LEDET, J.,

text:
    Cheniere THOMAS v. CAESARS ENTERTAINMENT OPERATING CO., INC., formerly known as Harrah’s Operating Co., Inc. d//b/a/ Harrah’s New Orleans Casino.
    No. 2012-CA-1202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2013.
    Rehearing Denied Feb. 6, 2013.

      William E. Mura, Jr., Warren A. For-stall, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Margaret A. LeBlanc, New Orleans, LA, for Defendant/Appellee, Jazz Casino Company, L.L.C.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

|Jn this personal injury trip and fall case, the plaintiff, Cheniere Thomas, appeals the trial court’s granting of summary judgment in favor of the defendant, Jazz Casino Company, L.L.C., d/b/a Harrah’s New Orleans Casino. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 9, 2010, Cheniere Thomas was a patron at Harrah’s New Orleans Casino. Ms. Thomas alleged that something on the floor of the casino caused her to fall and injure herself.

Thereafter, Ms. Thomas filed a lawsuit against Caesars Entertainment Operating Company, Inc. Ms. Thomas later amended her petition to name the correct defendant, Jazz Casino Company, L.L.C., d/b/a Har-rah’s New Orleans Casino. Harrah’s filed a motion for summary judgment contending that “based on the evidence plaintiff cannot carry her burden of proof required under La. R.S. 9:2800.6 nor under Civil Code Article 2817.1.” The trial court granted the defendant’s motion, holding “that La.9:2800.6 applies to the plaintiffs cause of faction, that Harrah’s Casino is a merchant under that statute and further finds that plaintiff cannot sustain her burden of proof as it relates to defendant, Jazz Casino Company, L.L.C.” It is from this judgment that Ms. Thomas now appeals.

DISCUSSION

On appeal, the plaintiff contends that the trial court should not have granted summary judgment because there are genuine issues of material fact concerning whether or not the defendant is a merchant pursuant to La. R.S. 9:2800.6 and whether or not the raveled/missing carpet and/or the “shaky, loose” floor plate constituted a ruin, vice or defect in the defendant’s premises pursuant to La. C.C. Art. 2317.1 or La. C.C. Art. 2822.

Appellate- courts review the grant or denial of summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment may be rendered disposi-tive of a particular issue, theory of recovery, cause of action or defense in favor of one or more parties. La. C.C.P. art. 966(E); see also La. C.C.P. art. 1915(B)(1).

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiff’s cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610. Simply put, a material fact “is one that would matter on the trial on the merits.” Id.

Regarding the plaintiff’s contention that the defendant does not qualify as a merchant under La. R.S. 9:2800.6, we disagree. This Court has stated that “jurisprudence has recognized that a casino is a merchant for purposes of this Act.” Smith v. The New Orleans Casino, 2012-0292, p. 11 (La.App. 4 Cir. 10/3/12), 101 So.3d 507, 514. The other Circuits have also recognized that casinos fall under the classification of merchants for the purposes of La. R.S. 9:2800.6. See Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 1 Cir. 9/24/08), 996 So.2d 476; Dubriel v. Horseshoe Entertainment, 34,885 (La.App. 2 Cir. 8/22/01), 793 So.2d 459; Neal v. Players Lake Charles, L.L.C., 2001-0244 (La.App. 3 Cir. 6/6/01), 787 So.2d 1213; Pellegrin v. Louisiana Gaming-1, 2011-1021 (La.App. 5 Cir. 4/24/12), 93 So.3d 645.

Although casinos qualify as merchants under this statute, this does not mean that the plaintiff cannot recover against the defendant. In addition to proving underlying negligence on the part of the defendant, La. R.S. 9:2800.6 places the burden of proof on the plaintiff to prove that a fall occurred on the defendant’s 14premises due to: 1) a condition which presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; 2) that defendant either created the condition or had actual or constructive notice of the condition prior to the occurrence; and 3) that the defendant failed to exercise reasonable care. However, in the instant case, the trial court opined that the plaintiff could not meet her burden of proof under La. R.S. 9:2800.6, but did not actually apply the statute to the facts of this case.

Furthermore, Section D of La. R.S. 9:2800.6 preserves a plaintiffs right to a claim pursuant to Civil Code Article 2317.1. For an article 2317.1 claim, the plaintiff need only prove that 1) there was a ruin, vice or defect in the defendant’s premises; 2) that defendant knew and/or should have known of the ruin, vice or defect and 3) plaintiffs fall could have been prevented with the reasonable care by the defendant. In the instant case, the trial court failed to address the plaintiffs claim under La. C.C. art. 2317.1. In the transcript of the hearing on the motion for summary judgment, the trial court stated: “I’m not going to address that at all.”

In the instant case, Ms. Thomas alleged that damaged carpet around an electrical outlet caused her to fall. Based on the photograph exhibits provided by the plaintiff, the damaged carpet did exist. The defendant also should have known of this condition considering that the area was regularly vacuumed and traversed by its employees. There is a question as to whether the defendant exercised reasonable care. This creates a genuine issue of material fact that should have precluded the granting of summary judgment,

| r,CONCLUSION

For the following reasons, the trial court’s granting of summary judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOVE, J., concurs and assigns reasons.

LEDET, J., dissents with reasons.

LOVE, J.,

concurs and assigns reasons.

hi respectfully concur. I write separately to emphasize that credibility determinations are improper when ruling on a motion for summary judgment. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.2/29/00), 755 So.2d 226, 236.

The appellee’s brief states that the trial court judge’s oral reasons make “it clear that the Judge didn’t accept the plaintiff’s speculation that somehow a minor carpet unraveling was a defect that created an unreasonable risk of harm to the plaintiff.” The plaintiff stated, in her deposition:

As I was walking, I slid to the right. When I landed on the ground, I looked to see what could I have fallen on, and I looked at the floor plate. The floor plate was off the ground. The carpet was raveled. The floor plate could have been—
The carpet could have prevented me from holding my foot in place because of the ravel. It could have prevented me from doing that, making me lose my balance.

Without making a credibility determination regarding the validity of the plaintiffs, a genuine issue of material fact exists as to the defendant’s alleged reasonable care.

LEDET, J.,

dissents with reasons.

_JjAlthough I agree with the majority’s holding that a casino qualifies as a merchant under La. R.S. 9:2800.6, I disagree with the majority’s holding that the trial court erred in granting the defendant’s (Harrah’s) motion for summary judgment. I would find that the plaintiff (Ms. Thomas) failed to establish an unreasonable risk of harm or a defect and thus affirm the trial court’s decision.

In her petition, Ms. Thomas averred that the she “tripped due to an electrical extension cord/vacuum cord,” which an employee of Harrah’s was using. In her deposition, however, Ms. Thomas testified that she did not trip on an extension or vacuum cord. Rather, she testified that she tripped on a gold floor plate, which covered an electrical outlet. She explained that the floor plate was embedded in the carpet and that it was raised off the ground. She estimated the floor plate was raised “[a] couple of millimeters” or “[mjaybe like a fingernail length” or “[mjaybe inches.”

In response to defense counsel’s question regarding how the floor plate caused or contributed to her fall, Ms. Thomas stated: “As I was walking, I slid to the right. When I landed on the ground, I looked to see what could I have fallen on, and I looked at the floor plate. The floor plate was off the ground. The carpet was raveled. The floor plate could have been — ” In response to defense counsel’s | ^questioning of whether she tripped over the carpet, Ms. Thomas testified: “[tjhe carpet could have prevented me from holding my foot in place because of the ravel. It could have prevented me from doing that, Tnaking me lose my balance.” Finally, she testified that what caused her to fall was that she “slipped off the plate” and that she noticed “the plate was a little shaky, loose, so.”

In support of its motion for summary judgment, Harrah’s presented affidavits of its Risk Manager, Michael Parr, and the casino’s Director of Facilities, Patrick Maher. They attested that the casino had no prior complaints about the elevated electrical outlet floor plates located throughout the casino. Mr. Maher attested that the practical purpose of the numerous brass floor plates located throughout the casino floor was to “cover in-floor electrical outlets or phone/data connections.” He further attested that “[tjhe brass plates are not polished; cleaning staff vacuums over them while vacuuming the floor.” He still further attested that he was “unaware of any complaints regarding the elevation of brass floor plates or claims that the plates or ‘slippery.’” Mr. Parr attested as follows:

“I’ve examined the slip/fall or trip/fall complaints in the casino since 2006 to determine if any other patron or employee complained of slippery and/or elevated electrical outlet floor plates located throughout the casino floor. I found no complaints or reports regarding the condition of the floor plates (gold in color).”

Based on these affidavits, Harrah’s established its lack of notice that the floor plate presented an unreasonable risk of harm or a defect.

The only support Ms. Thomas offered in opposition to the Harrah’s motion was her own deposition testimony, summarized above, and color photographs of the floor plate and the raveled carpet. As Harrah’s emphasizes, Ms. Thomas failed to retain an expert to establish the plate, the carpet, or the combination of the two presented a defect.

Concluding that Ms. Thomas established the existence of a genuine issue of material fact, the majority reasons as follows:

|sMs. Thomas alleged that damaged carpet around an electrical outlet caused her to fall. Based on the photograph exhibits provided by the plaintiff, the damaged carpet did exist. The defendant also should have known of this condition considering that the area was regularly vacuumed and traversed by its employees. There is a question as to whether the defendant exercised reasonable care.

The majority’s statement that Ms. Thomas alleged the carpet caused her to fall is belied by her deposition testimony and by the allegations of the petition. In her petition, she averred that she fell on an electrical cord. As the trial court pointed out, despite her contrary deposition testimony, Ms. Thomas failed to amend her petition.

In her deposition, Ms. Thomas did not testify that the carpet caused her to fall; rather, she testified that she “slipped off the plate.” The photographs Ms. Thomas presented give rise, at best, to an inference that the carpet around the plate was damaged. Moreover, Ms. Thomas’s testimony that “[t]he carpet could have prevented [her] ... from holding [her] ... foot in place because of the ravel” is speculative. Her argument in her brief to this court that “[t]his ‘raveled’ or ‘missing1 carpet caused a gap to the side of the plate of about an ‘inch’ due to the missing carpet and padding” is simply an allegation. “Such allegations [that the raveled or missing carpet caused an inch gap], inferences [that the photographs establish “damaged carpet”], and speculations [that the raveled or missing carpet could have prevented her fall] are not sufficient to create a genuine issue of material fact even if contained in an affidavit.” Smith v. Casino New Orleans Casino, 2012-0292, p. 11 (La.App. 4 Cir. 10/3/12), 101 So.3d 507, 514 (citing Sears v. Home Depot, USA, Inc., 06-0201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228 (citing King v. Phelps Dunbar, L.L.P., 01-1735, p. 16 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012, 1022); Adelmann-Chester. v. Kent, 08-0770 (La.App. 4 Cir. 6/5/09), 33 So.3d 187; see also Reed v. Home Depot USA Inc., 37,000 (La.App. 2 Cir. 4/9/03), 843 So.2d 588, 591 (noting that speculation as to|4the cause of an accident does not supply the factual support required to meet the plaintiffs evidentiary burden)).

Quoting the trial court’s statement at the close of the hearing that she was “not going to address that at all,” the majority states that the trial court failed to address Ms. Thomas’ claim under La. C.C. art. 2317.1. I disagree. The quoted statement was made by the trial court during the following colloquy that occurred at the close of the hearing:

MS. LEBLANC [DEFENDANT’S COUNSEL]: So what do you want the judgment to say, that you’re finding based on 9:2800.6?
THE COURT: That there is no question of material fact. The client using that statute as applicable under the facts of this case.
MS. LEBLANC [DEFENDANT’S COUNSEL]: Will you also render a judgment obviously in the same language that even under [La. C.C. art.] 2317[.l] she can’t meet her burden?
MR. MURA [PLAINTIFF’S COUNSEL]: Then you have to say it’s not a defect in the carpet.
THE COURT: No, she doesn’t have to say that because it’s not the carpet that made your lady fall.
MR. MURA [PLAINTIFF’S COUNSEL]: She says that the carpet caused her to lose her balance.
THE COURT: I’m not going to address that at all.

Taken in context, the trial court’s statement appears to be directed to the lack of any claim by Ms. Thomas that the carpet caused her to fall, not to the trial court’s refusal to consider her La. C.C. art. 2B17.1 claim.

Regardless of the legal theory on which Ms. Thomas relies — La. R.S. 9:2800.6 or La. C.C. art. 2317.1 — she was required to provide support for her claim that there was an unreasonable risk of harm or a defect that caused her to fall. Given her failure to provide any evidentiary support for her claim, I would affirm the trial court’s judgment granting Harrah’s motion for summary judgment.


author: HANS J. LILJEBERG, Judge.

text:
    Carl GABRIEL v. DELTA AIR LINES, INC. and Ace American Insurance Company.
    No. 12-CA-428.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Carl Gabriel, In Proper Person, New Orleans, LA, Plaintiff/Appellee.
    Allen & Gooch Law Firm, Eric J. Walt-ner, Attorney at Law, Lafayette, LA, for Defendants/Appellants.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|aIn this worker’s compensation case, defendants, Delta Airlines, Inc. (“Delta”) and Ace American Insurance Company, appeal the October 31, 2011 judgment in favor of claimant, Carl Gabriel, awarding him temporary total disability benefits, medical expenses, and other relief sought. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

In August of 2008, Mr. Gabriel began working for Delta as a “Ready Reserve” employee. On October 19, 2008, while working in the course and scope of his employment with Delta, Mr. Gabriel was injured when a tow bar that he was disconnecting from an airplane fell onto his left foot.

On October 21, 2008, Delta sent Mr. Gabriel to see Dr. Tamimie, who originally diagnosed him with a contusion on his left foot and released him to return to work. Shortly thereafter, it was determined that x-rays showed Mr. Gabriel suffered a fracture of the second metatarsal in his left foot. On November 11, 2008, Dr. Tamimie prescribed pain medication for Mr. Gabriel and recommended light duty or “sit down work” only. On this date, he also discharged Mr. Gabriel and recommended that he see an orthopedic doctor.

|sOn November 12, 2008, Mr. Gabriel saw Dr. Nutik, an orthopedist chosen by the employer. After this first visit, Dr. Nutik recommended that Mr. Gabriel return to sedentary duty work while his fracture continued to heal.

On December 3,2008, Mr. Gabriel began treating with Dr. Faust, his own choice of orthopedist. At this first visit, Dr. Faust opined that Mr. Gabriel should have some continued discomfort, but he should not require any further treatment. He also stated that “light duty” work would be appropriate for him. In January 2009, Dr. Faust saw Mr. Gabriel and recommended that he begin physical therapy and work at “light duty.” On February 18, 2009, Dr. Faust released Mr. Gabriel to return to full duty work. However, on February 25, 2009, after Mr. Gabriel contacted Dr. Faust to inform him that he went to a parade and his foot had swelled, Dr. Faust again recommended physical therapy. On April 14, 2009, Dr. Faust opined that Mr. Gabriel’s fracture of the second metatarsal was healed and that he may continue to have some discomfort, but that the fracture was solid. On this date, he also indicated that Mr. Gabriel was capable of gainful employment and he recommended that he return to his former occupation. Again on May 29, 2009, Dr. Faust opined that Mr. Gabriel did not need to restrict his activities and that he could return to gainful employment.

In June 2009, Dr. Faust informed Mr. Gabriel that after 30 days, he would no longer treat him because Mr. Gabriel had indicated that he did not believe Dr. Faust was truthful about the seriousness of his injury. Thereafter, Mr. Gabriel continued to treat with various doctors. He began complaining of back pain as well, which he asserts was caused by an altered gait due to his foot injury.

In September of 2009, Mr. Gabriel began treating with Dr. Johnston. Several tests were performed and Dr. Johnston recommended physical therapy. In his March 24, 2010 report, Dr. Johnston opined that Mr. Gabriel was capable of 14sedentary duty work. In his June 1, 2011 report, Dr. Johnston stated that Mr. Gabriel’s injury was healed.

Dr. Nutik examined Mr. Gabriel again on May 27, 2010 at the employer’s request. In his report of that date, he opined that Mr. Gabriel’s fracture of the second metatarsal had healed in good alignment. He also noted that Mr. Gabriel had subjective complaints, but no objective findings were noted. He indicated that there were no findings in the clinical exam that would indicate reflex sympathetic dystrophy, other than hypersensitivity. Further, Dr. Nutik did not relate Mr. Gabriel’s back pain to his foot injury, noting that “the onset of the low back pain started after Mr. Gabriel’s gait normalized.”

On September 20, 2010, the worker’s compensation judge appointed an orthopedist, Dr. Cazale, as an independent medical examiner (“IME”) to evaluate Mr. Gabriel’s condition and work status. Dr. Ca-zale saw Mr. Gabriel on February 15, 2011. In his report of that date, he stated that no treatment for Mr. Gabriel’s back pain was recommended. He further found that Mr. Gabriel’s foot injury had healed “uneventfully.” He also noted that there were no objective findings to indicate a reflex sympathetic dystrophy, but he indicated that he would not be opposed to a triple-phase bone scan, as recommended by Dr. Johnston.

Later, in his deposition of June 14, 2011, Dr. Cazale stated that when he saw Mr. Gabriel in February of 2011, he noted that the fracture of the second metatarsal had healed in the appropriate position and alignment. He opined that a person with this kind of injury would typically return to regular activities within three to four months, and he saw no objective reason why Mr. Gabriel would not follow the same course. He also stated that when he saw Mr. Gabriel in February of 2011, there was a question at that time of whether or not he had reflex sympathetic dystrophy, so he would have had some restrictions. However, based on the results |fiof the bone scan that was subsequently performed, Dr. Cazale opined that Mr. Gabriel was able to perform full-duty work at that time. He indicated that if he had had the results of the bone scan at the time that he examined Mr. Gabriel, he would have recommended that Mr. Gabriel return to full-duty work.

After the accident, Delta paid total indemnity benefits to Mr. Gabriel from January 3, 2009 to April 24, 2009 and from May 19, 2009 to June 1, 2009. On November 6, 2009, Mr. Gabriel filed a Disputed Claim for Compensation, asserting that Delta failed to properly pay indemnity benefits and failed to timely pay or authorize medical benefits. On February 23, 2011, Mr. Gabriel filed a First Amended and Supplemental Disputed Claim for Compensation, adding several new assertions to his claim, including that he had developed a back condition as a result of his foot injury, that he had developed “RSD” in his foot, and that he is entitled to the maximum amount of benefits.

Trial of this matter was held on July 28, August 3, and August 4, 2011. At the commencement of trial, the parties stipulated that Mr. Gabriel was an employee of Delta on the date of the accident, October 19, 2008. They also stipulated that the accident occurred in the course and scope of Mr. Gabriel’s employment. At the conclusion of trial, the worker’s compensation judge allowed the parties additional time to submit post-trial memoranda.

On October 31, 2011, the worker’s compensation judge rendered a judgment finding:

1) that Mr. Gabriel was injured by accident during the course and scope of his employment with Delta on October 19, 2008;
2) that Mr. Gabriel is entitled to temporary total disability benefits from January 3, 2009 through the present and continuing;
|fi3) that Mr. Gabriel is entitled to payment of medical expenses, medication expenses, indemnity benefits, and transportation expenses, in accordance with law;
4) that there is a causal connexity between the accident of October 19, 2008 and Mr. Gabriel’s left foot, back, spine, and psychological injuries;
5) that medical treatment by Dr. Kenneth Taylor is reasonable, necessary, and related to the accident of October 19, 2008, and it shall be paid in accordance with the Louisiana Worker’s Compensation Fee Schedule;
6) that Delta Airlines and Ace American Insurance did not reasonably controvert Mr. Gabriel’s entitlement to indemnity benefits, certain medical treatment, diagnostic tests, and transportation expenses;
7) that a penalty of $8,000.00 is assessed for all violations;
8) that Mr. Gabriel’s average weekly wage shall be calculated using an hourly rate of $10.50 for a 40-hour work week, and it shall include his bonus and shared rewards from the employer;
9) that Mr. Gabriel is not entitled to temporary total disability benefits for the two-day time period when he was incarcerated;
10) that defendants are entitled to a credit for any payments already made to Mr. Gabriel by them, in accordance with law;
11) that all costs and interest are assessed against defendants.

Delta and Ace American Insurance Company appeal this judgment.

LAW AND DISCUSSION

Defendants base their appeal on several assignments of error. In their first argument on appeal, defendants assert that the worker’s compensation judge erred in refusing to find that Mr. Gabriel violated LSA-R.S. 28:1208 and thus, that he forfeited his worker’s compensation benefits.

The Workers’ Compensation Act imposes penalties, specifically the forfeiture of benefits, for willfully making a false representation in connection with a compensation claim. LSA-R.S. 28:1208. In order to establish that a claimant has forfeited his right to workers’ compensation benefits under LSA-R.S. 23:1208, the ^employer must show: (1) the claimant made a false statement or representation; (2) it was willfully made; and (3) it was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7, 12; Porter v. Pellerin Construction Company, 06-949, p. 5 (La.App. 5 Cir. 4/11/07), 958 So.2d 7, 10, writs denied, 07-1076, 07-1015 (La.8/31/07), 962 So.2d 438.

Forfeiture of workers’ compensation benefits is a harsh remedy, and because LSA-R.S. 23:1208 is penal in nature, it must be strictly construed. Ocon v. Regency Motors of Metairie, L.L.C., 06-834, p. 5 (La.App. 5 Cir. 4/11/07), 957 So.2d 816, 820, writ denied, 07-1063 (La.9/21/07), 964 So.2d 332. In determining whether a statement was made willfully in an attempt to obtain or defeat benefits, the relationship between the false statement and the pending claim is probative. False statements that are inadvertent or inconsequential will not result in forfeiture. Id.

Although the record contains evidence that Mr. Gabriel made some false statements to his doctors and others, such as his denial of any previous back injury, the record does not establish that such statements were willfully made for the purpose of obtaining worker’s compensation benefits. Therefore, we find no manifest error in the worker’s compensation judge’s failure to find a LSA-R.S. 23:1208 violation.

On appeal, defendants further argue that the worker’s compensation judge erred in awarding temporary total disability benefits to Mr. Gabriel from January 3, 2009 “through the present and continuing.” They assert that temporary total disability benefits should not have been awarded after February 15, 2011, which was the date of the independent medical exam, or alternatively, June 1, 2011, when Dr. Johnston concluded that Mr. Gabriel’s injury was healed.

18Mr. Gabriel responds and asserts that there is “a preponderance of evidence” that proved his disability, and that the testimony of his witnesses established that he remains physically unable to engage in any employment due to the injuries he suffered in his on-the-job accident. He asks this Court to affirm his award of temporary total disability benefits.

In order to receive benefits for temporary total disability in accordance with LSA-R.S. 23:1221(l)(c), a claimant in a worker’s compensation case must prove by clear and convincing evidence that he is physically unable to engage in any employment or self-employment due to his injury. Piquet v. Teco Bulk Terminal 08-793, p. 11 (La. 5 Cir. 4/28/09), 13 So.3d 208, 216. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, or much more probable than not. Magee v. Abek, Inc., 04-2554, p. 6 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287. In the absence of such evidence, the claimant’s demand for temporary total disability benefits fails. Nitcher v. Northshore Regional Medical Center, 11-1761, p. 5 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1007, writ denied, 12-1230 (La.9/21/12), 98 So.3d 342.

The issue of disability is a legal rather than a purely medical determination, with reference to the totality of evidence, including both lay and medical testimony. Nitcher, 11-1761 at 5-6, 92 So.3d at 1007. However, in order to establish by clear and convincing that a claimant is disabled and cannot engage in any employment, the claimant must introduce objective medical evidence of the disabling condition. Delatte v. Pala Group, L.L.C., et al., 09-913, p. 10 (La.App. 1 Cir. 2/10/10), 35 So.3d 291, 299, writ denied, 10-562 (La.5/7/10), 34 So.3d 865. The question is not whether the worker’s compensation claimant could perform the | ¡previous work but, rather, whether the claimant could perform some sort of work. Id. at 10, 35 So.3d at 298.

The factual finding of whether a claimant is entitled to temporary total disability benefits is subject to the manifest error or clearly wrong standard of appellate review. Fleming v. Garda Security, 10-1021, p. 8 (La.App. 5 Cir. 5/10/11), 65 So.3d 763, 768; Freeman v. Poulan/Weed Eater, 93-1530, p. 4 (La.1/14/94), 630 So.2d 733, 737. In applying the manifest error or clearly wrong standard, the appellate court must determine not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Hall v. MacPapers, Inc., 11-1548, p. 4 (La.App. 4 Cir. 5/30/12), 95 So.3d 1131, 1134.

In the instant case, Mr. Gabriel presented the testimony of his grandmother, his two sisters, his girlfriend, who was a medical student, and himself in support of his claim that he has been disabled and cannot work at all since the accident. Both the claimant and defendants presented numerous exhibits, including medical records from various doctors. No doctors were called to testify at trial, and their opinions were derived from their records and/or depositions.

The testimony and exhibits admitted at trial reveal that Mr. Gabriel treated with several doctors after the accident. In November of 2008, both Dr. Tamimie and Dr. Nutik recommended light duty or sedentary work for Mr. Gabriel. On February 18, 2009, Dr. Faust released Mr. Gabriel to full-duty work. After his foot swelled during a parade, on February 25, 2009, Dr. Faust recommended physical therapy. However, on April 14, 2009 and again on May 29, 2009, Dr. Faust opined that Mr. Gabriel could return to gainful employment in his former occupation.

Dr. Johnston began treating Mr. Gabriel in September of 2009 and several tests were performed. As of March 24, 2010, Dr. Johnston opined that Mr. Gabriel | ipcould perform sedentary work and, in his June 1, 2011 report, he stated that Mr. Gabriel’s injury was healed.

Mr. Gabriel saw the court-appointed IME, Dr. Cazale, on February 15, 2011. He noted that Mr. Gabriel’s injury had healed “uneventfully” and that there were no objective findings that he continued to suffer effects from the foot injury, such as reflex sympathetic dystrophy. In his deposition, Dr. Cazale later stated that based on the bone scan results, he believes that Mr. Gabriel was able to return to work when he saw him on February 15, 2011.

LSA-R.S. 23:1123 provides that the report of the appointed independent medical examiner “shall be prima facie evidence of the facts therein stated ...” Although the law permits a worker’s compensation hearing officer to appoint a physician to perform an independent medical examination, it does not require the hearing officer to accept his conclusions. Campbell v. Gootee Construction Co., 99-913, p. 8 (La.App. 5 Cir. 1/12/00), 756 So.2d 449, 453. However, the medical conclusions of an independent medical examiner should be given significant weight, because the independent medical examiner is an objective party. Clark v. Godfrey Knight Farms, Inc., 08-1723, p. 16 (La.App. 1 Cir. 2/13/09), 6 So.3d 284, 295, writ denied, 09-562 (La.5/29/09), 9 So.3d 163.

The record before us contains evidence suggesting that Mr. Gabriel was able to return to gainful employment as early as February 2009. However, considering the opinions of all of the doctors and the testimony presented, we find that, at the latest, Mr. Gabriel was able to return to gainful employment when he saw the court-appointed IME, Dr. Cazale, on February 15, 2011. As stated above, it is the claimant’s burden to prove by clear and convincing evidence that he is physically unable to engage in any employment or self-employment due to his injury. We agree with defendants’ argument on appeal that Mr. Gabriel did not meet his In burden of proving that he was unable to engage in any employment after February 15, 2011.

Considering all of the testimony and evidence in this matter, we find that the worker’s compensation judge’s determination that Mr. Gabriel was entitled to temporary total disability benefits after February 15, 2011 was not a reasonable conclusion, and it was clearly wrong. Accordingly, we reverse the worker’s compensation judge’s award of temporary total disability benefits to Mr. Gabriel after February 15, 2011.

Defendants also argue that the worker’s compensation judge erred in calculating the average weekly wage. They assert that Mr. Gabriel was a part-time employee who was not entitled to any benefits from the company. They contend that it was error for the worker’s compensation judge to apply the 40-hour presumption in LSA-R.S. 23:1021(12)(a)(i) to increase the average weekly wage based on Mr. Gabriel’s disagreement with the earnings documentation, and to increase the average weekly wage based upon “shared rewards” or other benefits.

Mr. Gabriel responds that the worker’s compensation judge correctly applied the 40-hour presumption, because the evidence and testimony show that he consistently worked an eight hour shift five days a week prior to the accident.

LSA-R.S. 23:1021(12) provides in pertinent part:

“Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever | ^reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

A “[p]art-time employee” is defined in LSA-R.S. 28:1201(11) as “an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.” (Emphasis added.) See also Sowell v. Process Equipment, 06-1198, p. 7 (La.App. 3 Cir. 2/7/07), 948 So.2d 1214, 1219, writ denied, 07-482 (La.4/20/07), 954 So.2d 169.

In the present case, Mr. Gabriel started working for Delta on August 28, 2008. The accident occurred less than two months later on October 19, 2008. Based on the testimony and the exhibits, including the time sheets and the notice pertaining to ready reserve employees, we cannot say that the worker’s compensation judge erred in applying the 40-hour presumption and in calculating the average weekly wage. Accordingly, we find that defendants’ argument on this issue is without merit.

Defendants further contend that the worker’s compensation judge erred in finding that Mr. Gabriel proved a causal connection between the accident and his back or spine injuries.

A worker’s compensation claimant bears the burden of establishing a causal connection between the work accident and the resulting injury by a preponderance of the evidence. Delatte, 09-913 at 4, 35 So.3d at 295. An employee’s work-related accident is presumed to have caused his disability when the claimant proves that before the accident, he had not manifested his disability symptoms; that commencing with the accident, his disability symptoms appeared; and that there is | i;ieither medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition. Id.; Hayes v. Louisiana State Penitentiary, 06-553, p. 9 (La.App. 1 Cir. 8/15/07), 970 So.2d 547, 556, writ denied, 07-2258 (La.1/25/08), 973 So.2d 758.

Drs. Nutik, Faust, and Cazale found that Mr. Gabriel’s back complaints were not attributable to the accident or an altered gait. Dr. Nutik specifically noted that Mr. Gabriel’s back complaints arose after his gait had normalized. On the other hand, Dr. Johnston found that the back pain was attributable to an altered gait, and Dr. Taylor found that the back pain was “possibly” secondary to an altered gait.

Considering all of the evidence presented, we cannot say that the worker’s compensation judge erred in finding that there was a causal connection between the accident and his back or spine injuries. Accordingly, we affirm this finding of the worker’s compensation judge.

Defendants further assert that the worker’s compensation judge erred in finding a causal connection between the accident and Mr. Gabriel’s psychological injuries. However, there is no evidence in the record before us to establish that Mr. Gabriel has any psychological condition caused by the work-related accident. Accordingly, we reverse this finding of the worker’s compensation judge.

Defendants also assert that the worker’s compensation judge erred in holding that Mr. Gabriel was entitled to medical treatment with Dr. Kenneth Taylor, who practices in Alabama. However, we agree with defendants that the record does not show that Mr. Gabriel is entitled to further medical treatment with Dr. Taylor. Accordingly, we reverse this finding.

Finally, defendants contend that the worker’s compensation judge erred in not admitting some evidence and in allowing testimony that was not admissible. | uHowever, based on a thorough review of the record and considering our findings in this opinion, it is unnecessary to address these arguments.

DECREE

For the foregoing reasons, we affirm the worker’s compensation judge’s finding that there is a causal connection between the accident and Mr. Gabriel’s back injury. We also affirm the calculation of Mr. Gabriel’s average weekly wage. We reverse the judgment of the worker’s compensation judge awarding temporary total disability benefits after February 15, 2011. We further reverse the findings that Mr. Gabriel’s psychological injuries were causally related to the accident and that Mr. Gabriel is entitled to further medical treatment with Dr. Taylor.

AFFIRMED IN PART; REVERSED IN PART

      . Before January 3, 2009, Mr. Gabriel continued working at modified duty for Delta.