author: PICKETT, Judge.

text:
    Doyle OLIVER, et ux. v. TOKIO MARINE AND NICHIDO FIRE INS. CO., LTD, et al.
    No. 12-1414.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Eric J. Waltner, Allen & Gooch, A Law Corporation, Lafayette, LA, for Interve-nors/Appellants, LOCA Insurance Fund, Quality Transport, Inc.
    Edwin Dunahoe, Dunahoe Law Firm, Natchitoches, LA, for Plaintiffs/Appellees, Doyle Oliver, Faye Oliver.
    Steven D. Crews, Corkern, Crews & Guillet, L.L.C., Natchitoches, LA, for Defendants/Appellees, Tokio Marine and Ni-chido Fire Insurance Co., Ltd., Abrasive Products and Equipment, LP, Brody Breaux.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

|, Intervening employer appeals the trial court’s holding that its intervention recovery was subject to Moody fees, although the employer did not consent to the settlement of the plaintiffs claims. For the following reasons, we affirm.

FACTS

Dwayne Oliver filed a tort suit against Tokio Marine & Nichido Fire Insurance Co., Ltd., Abrasive Products & Equipment, LP, and Brody Breaux (jointly hereinafter referenced as “Tokio”) to recover damages for personal injuries and other losses he sustained in an automobile accident which occurred while he was in the course and scope of his employment with Quality Transport, Inc. (Quality). Quality and its workers’ compensation insurer, LOCA Insurance Fund (LOCA), intervened into this lawsuit to recover all workers’ compensation benefits paid to Mr. Oliver. The intervention sought to recover the $102,607.95 in workers’ compensation benefits paid to Mr. Oliver plus legal interest and court costs.

Shortly before trial, Mr. Oliver and Tok-io entered into settlement negotiations. Mr. Oliver asked Quality and LOCA to consent to the settlement; they refused. Thereafter, Mr. Oliver settled his lawsuit for $850,000.00 without Quality and LOCA’s consent. Upon receipt of the settlement funds, he deposited $110,948.66, representing the workers’ compensation benefits LOCA paid and legal interest thereon from the date the Intervention was filed, into the registry of the court.

| ¡¿Disputing that Mr. Oliver could settle his claims without their consent, Quality and LOCA filed a Motion for Reimbursement and Other Appropriate Relief, seeking reimbursement of 100% of the workers’ compensation benefits paid to him with legal interest thereon and a judgment holding that (1) Mr. Oliver forfeited his potential entitlement to future benefits, subject to a buy back as provided in La. R.S. 23:1102 and (2) they are entitled to a credit if Mr. Oliver exercises his buy-back option.

Tokio filed a Rule to Show Cause to set a hearing on the Motion for Reimbursement. After considering the parties’ arguments, the trial court determined that Quality and LOCA were entitled to recover $102,607.95, together with legal interest from the date of intervention, which was fixed at $5,390.78, for a total of $107,998.73. The trial court awarded Mr. Oliver’s attorney $35,999.57, or 1/3 of the total principal and interest on the Intervention, in attorney fees and ordered that Quality and LOCA pay their proportionate share of expenses, which it established was $8,081.24. The trial court further ordered that $70,972.39 of the funds in the registry of the court be paid to Quality and LOCA and awarded a credit in favor of Quality and LOCA of $495,694.61, together with 6% interest thereon from the date of the judgment, against any future workers’ compensation benefits Mr. Oliver might seek.

Quality and LOCA filed a writ application and perfected a devolutive appeal. The writ was denied because the trial court’s judgment was a final, appealable judgment; therefore, Quality and LOCA have an adequate remedy on appeal. Oliver v. Tokio Marine, an unpublished writ bearing docket number 12-572 (La.App. 3 Cir. 6/22/12).

1 ¡¡DISCUSSION

Quality and LOCA present one issue for our consideration: Is a workers’ compensation insurer obligated to pay a Moody fee, when the case was settled without its consent? Quality and LOCA urge that Mr. Oliver and Tokio’s failure to obtain their consent to the settlement requires that Tokio reimburse them the full amount of the benefits they paid to Mr. Oliver without a reduction for attorney fees and costs of the litigation, as provided in La. R.S. 23:1102(B).

Louisiana Revised Statutes 23:1102 provides the procedures to be followed when an employee or his employer files suit against a third party to recover damages for injuries suffered by the employee. Subsections (B) and (C) detail the reimbursement owed to the employer or its insurer when the employee settles his claims with the third party without proceeding to trial. These subsections provide:

B. If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise.... If the employee ... fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee ... shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s ... right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise .... Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.
|4C. (1) When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.

(Emphasis added). Quality and LOCA admit that although they did not consent to the settlement, Mr. Oliver protected his rights against them for futuré benefits and his right to reduce their reimbursement by attorney fees and costs by depositing the full amount of the benefits they paid him into the registry of the court, as provided in La.R.S. 23:1102(B). They contend, however, that the result is not the same for Tokio under Subsection (C) because it did not obtain their written consent to the settlement.

Quality and LOCA’s argument ignores the plain wording of Subsections (B) and (C). Pursuant to Subsection (C), a third-party defendant is obligated to reimburse an employer and/or its insurer if it failed to obtain their consent and the employee did not reimburse the employer and/or insurer the total compensation benefits and medical expenses they paid. The third-party defendant must reimburse the employer and/or insurer: “the total amount of compensation benefits and medical benefits previously paid ... to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B.” La.R.S. 2B:1102(C). Hence, a third party is only | ¡¡required to reimburse an employer and/or insurer amounts the employee did not pay “pursuant to the provisions of Subsection B.” Id.

Subsection (B), and Subsection (C) by reference thereto, specifically contemplates the payment of attorney fees and costs by the employer or insurer when they are reimbursed by the employee as provided therein. Mr. Oliver satisfied the requirements of Subsection B; therefore, the trial court did not err in making Quality and LOCA pay Moody fees as provided therein.

The court in Eakin v. United Technology Corp., 998 F.Supp. 1422 (S.D.Fla.1998), reached the same result, though not for the same reasons. In doing so, the court considered -the history of the decision in Moody v. Arabie, 498 So.2d 1081, and the relationship between Moody and La.R.S. 23:1102-03 and aptly observed:

[T]here are two distinct policies at play here: (1) protecting an intervening workers’ compensation carrier under Louisiana’s workers’ compensation laws, and (2) reimbursing an injured worker a share of his attorney’s fees under Moody.... [Tjhese two policies are not incompatible; there is a “false conflict” at best. In fact ... Louisiana’s workers’ compensation scheme works in such a way as to make it practically impossible for these two policies to undermine one another.

Eakin, 998 F.Supp. at 1425. The court explained in Eakin that Subsections 1102(B) and (C) work together to insure “that an employer or insurer will not be prejudiced by the unilateral acts of an employee.” Id. at 1425-26. If an employee and tortfeasor fail to obtain an employer or insurer’s approval of their settlement, the employer’s and insurer’s liability is limited in two ways: (1) they are not obligated to pay future benefits and (2) their claim for reimbursement of benefits paid to the employee is preserved against the employee “and the settling tortfeasor.” Id. at 1426.

Importantly, the court pointed out that the intent and purpose of Moody and applicable workers’ compensation laws would be thwarted if employers or insurers, like Quality and LOCA, were allowed to reap the benefits of the risks taken by the employee to obtain a full recovery for them without having to pay their proportionate share of the attorney fees and costs. Such a free ride is not contemplated by Louisiana law and jurisprudence. See Myers v. Burger King Corp., 92-400, 93-1626 (La.App. 4 Cir. 5/26/94), 638 So.2d 369, where the court observed that the third-party defendant’s escrow of the full amount of the intervention protected the employer and its insurer; therefore, the trial court’s reduction of the intervention award by the proportionate amount of attorney fees and costs was not error.

Quality and LOCA argue this court’s decisions in Ferrell Lavergne Eagle Pacific Insurance Co. v. Quality Fabricators of Eunice, Inc., 02-548 (La.App. 3 Cir. 12/11/02), 832 So.2d 1176, writ denied, 03-127 (La.3/21/03), 840 So.2d 540, and Lavergne v. Quality Fabricators of Eunice, Inc., 04-125 (La.App. 3 Cir. 12/8/04), 888 So.2d 1147, writ denied, 05-46 (La.3/18/05), 896 So.2d 1007, support their claims. In the Lavergne cases, the employee and third-party defendant reached a high-low settlement while the jury was deliberating. The jury determined the defendant was not at fault, and pursuant to the high-low agreement, the defendant paid the plaintiff $25,000.00. The trial court dismissed the claims of the plaintiff and the intervenor. The intervenor, who was not present at the trial and was not consulted before the settlement was reached, successfully appealed the dismissal of its claims. Lavergne, 832 So.2d 1176. The intervenor then sought to recover its lien from the third-party defendant because it did not consent to the settlement. The third-party defendant was held liable to the interve-nor for 17$124,905.90, the full amount of the workers’ compensation benefits and medical expenses it paid to the employee. Lavergne, 888 So.2d 1147.

The facts in the Lavergne cases are so different from the facts before us that its result has no application here. The inter-venor in Lavergne was neither notified of the settlement discussions, nor was it asked to consent to the settlement agreement. Most importantly, its interests were not protected as were the interve-nors’ interests here and in Eakin and Myers. Moreover, to accept Quality and LOCA’s arguments would allow employers and their workers’ compensation insurers to circumvent the law and avoid paying Moody fees by simply refusing to consent to a favorable settlement offer which could easily lead to employers and insurers never consenting to an employee’s legitimate settlement of his claims. For these reasons, we find no error with the trial court’s reduction of Quality and LOCA’s intervention by their proportionate share of attorney fees and costs.

DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to Quality Transport, Inc. and LOCA Insurance Fund.

AFFIRMED.

      . Pursuant to La.R.S. 23:1102-1103, employers and workers’ compensation insurers are responsible for a proportionate share of an employee’s reasonable legal fees and costs incurred to recover damages they suffered from a third party. These fees are commonly known as “Moody” fees. See Moody v. Arabie, 498 So.2d 1081 (La.1986).

      . Mr. Oliver and his wife filed suit. The parties, however, reference only Mr. Oliver herein, presumably because he is the workers’ compensation claimant; we do likewise.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Carolyn DAVIS v. TRI-PARISH REHABILITATION.
    No. 12-1292.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendant/Appellant, Tri-Parish Rehabilitation.
    R. Scott lies, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Carolyn Davis.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liThe defendant, Tri-Parish Rehabilitation, appeals the judgment of the workers compensation judge (WCJ) in favor of the plaintiff-employee, Carolyn Davis. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Davis, a certified nursing assistant, injured her back while transferring a patient from a bed to a wheelchair in June 2003. She filed a disputed claim for compensation with the Office of Worker’s Compensation (OWC) on December 8, 2010, claiming that the employer failed to authorize a shower chair, a memory foam mattress, and an MRI of her left knee. Davis sought penalties and attorney fees. In an amended answer filed on March 1, 2012, Tri-Parish claimed Davis forfeited her benefits pursuant to La.R.S. 23:1208. Following a trial on March 7, 2012, and May 8, 2012, the WCJ found in favor of Davis. It ordered Tri-Parish to provide a memory foam mattress and approve an MRI of Davis’ knee. It assessed Tri-Parish with a penalty of $6,000 and awarded attorney fees of $11,750. It further denied the defenses asserted by Tri-Parish under La. R.S. 23:1208. Tri-Parish now appeals. Davis answered the appeal seeking an increase in attorney fees associated with defending the appeal.

ISSUES

Tri-Parish assigns as error:

1. The Office of Workers’ Compensation was manifestly erroneous in ordering the defendant to authorize an MRI that is no longer necessary and assessing penalties and attorney fees for its failure to do so.
|a2. The Office of Workers’ Compensation was manifestly erroneous in ordering the employer to authorize the memory foam mattress and assessing the employer penalties and attorney fees for its failure to do so.
3. The Office of Workers’ Compensation was manifestly erroneous in assessing the employer penalties and attorney fees for failing to timely authorize the shower chair.
4. The OWC was manifestly erroneous in finding that Ms. Davis did not violate La.R.S. 23:1208 resulting in a forfeiture of her right to all benefits.

OPINION

The “manifest error-clearly wrong” standard is the well-settled standard of review applicable in workers’ compensation cases. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Accordingly, the finding of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698 (La.1/14/94),], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

Id.

Davis testified on the first day of trial, March 7, 2012. She said that she was prescribed the mattress on August 31, 2009 as evidenced by the prescription submitted into evidence. Davis said that the mattress had yet to be approved as of the date of trial. The shower chair was prescribed on October 25, 2010. Davis could not remember exactly when she received it, but she said that it was more than two months (60 days) after she requested it.

|sThe MRI prescription is dated July 5, 2010. Davis testified that she has ongoing and worsening back and left knee pain. She walks with a cane due to the pain and because she sometimes loses balance. She said her left knee had been bothering her since the day of her injury. She testified that she uses the cane all of the time. She said that she cannot stand or sit for too long.

Gary Williams, an adjuster with Risk Management Services, the third-party administrator for Louisiana Commerce and Trade Association, (LCTA), worker’s compensation fund, for sixteen years, testified that he began working on Davis’ claim in May 2010. He essentially testified that Davis’ claim for a shower chair was unwarranted as she could be seen on video standing for long periods of time. He further testified that he reviewed Dr. Gun-derson’s medical records and that a left knee injury was never documented as having resulted from the work-related accident. Williams stated that Davis only uses her cane when picking up her disability check at the social security administration office and for the FCE, but does not otherwise regularly use it. He described viewing the surveillance of Davis engaged in “quite vigorous activity” the day before her FCE.

Williams eventually approved the shower chair months after the prescription was written and after the dispute was filed. He said that he approved it based on his attorney’s recommendation, but that there was no medical reason to approve it.

Gene Sittig, a field investigator for Quality Investigative Group for the past seven years, testified that he conducted the video surveillance of Davis. He said that he recorded any movement whether it appeared to be helpful or hurtful. Sittig only videotaped Davis for two days in January or February of 2012.

14The April 12, 2012 deposition of David Regan, a licensed physical therapist, was submitted into evidence. Regan conducted the FCE of Davis on February 24, 2012. He described all of the detailed physical activities that Davis was required to perform and deemed the results “conditionally valid” finding that the “client has not intentionally manipulated the results but has demonstrated an early termination point.” Regan noted that Davis arrived and left using a cane, but did not use it during the assessment. As to her level of activities, Regan assigned her a sedentary level of capability based on what she demonstrated as her safe level of capabilities according to the assessments and the activities that she participated in. Davis stated that “she was capable of performing something a little bit greater than what she demonstrated.”

Dr. Clark Gunderson’s April 80, 2012 deposition was submitted into evidence. Dr. Gunderson, Davis’ treating orthopedic surgeon, stated that he performed a dis-cectomy on April 26, 2004, and a repeat discectomy and fusion on July 25, 2005. In January 2006, he referred Davis to Dr. Lopez, a pain management specialist. Dr. Gunderson’s January 2012 notes indicate that she complained of pain in left knee, “which she said was related to this injury.” Regarding whether the left knee pain was related to the work accident, Dr. Gunder-son stated, “when I first saw her, I had said she had pain going down her left leg to the knee and then I asked her about it later, more recently. And she said, Well, that’s when it all started.’ I don’t have anything in my file dating back to then.” Dr. Gunderson said that he could not really offer an opinion one way or the other.

| ^Regarding the video surveillance, Dr. Gunderson concentrated on the day before and after the FCE and stated:

A. Yes. They were basically of her standing outside, her bent forward posture. She did very little bending or stooping. She moved very slow. She stood bent forward, like I mentioned. At one time, she was standing outside, I don’t know where. Another time she was standing on the porch of her trailer house.
Q. Yes.
A. You know, there really wasn’t very much in the video that would affect my impression.
Later Dr. Gunderson was asked
Q. ... If she complained of pain to her knee as early as your first visit with her and has never had leg and knee pain abate since her injury, is there a reasonable medical probability that the symptoms in her knee are related to her accident that she reported to you?
A. Probably.

On cross-examination, Dr. Gunderson was asked again whether the knee complaints were related to the accident and he said that he could only say that “the patient told me that she’s had knee problems ever since this accident.”

Regarding whether the pain was radicu-lar in nature, he was questioned;

Q. ... Was she reporting a knee injury at that time or was this just radi-cular pain coming down from the back?
A. Well, it appears that most of it was coming down from the back to the leg; that was radicular pain.
Q. Any indication in your early records of a separate knee injury?
A. Well, her accident was a lifting a patient from a bed to a wheelchair—
Q. Sure.
A. —so that would point toward a back problem as opposed to a knee problem, although she did have pain radiating into the knee.
IkQ. Would you agree with me that pain radiating to the knee would have originated most likely in the lumbar spine, not in the knee itself?
A. Yes
Q. But if you resolve the back pain with a good bit of success with surgery but she still has pain into the knee and she still walks with a limp, that does feel like there could be a secondary injury that would justify an M.R.I. of the knee; right?
A. Yes.
Dr. Gunderson was also deposed on August 9, 2011. He agreed with defense counsel that Davis’s knee problem, was related to her lumbar spine.
Q. Now, there are mentioned in all of your reports of left leg pain, maybe even left knee pain. All of those referred to radicular components; correct?
A. Yes.
Q. And that’s emanating from the disc injury that she had in the low back?
A. Yes.

However, on cross-examination, Dr. Gunderson was questioned by Davis’ counsel:

Q. Now, if a patient has an injury where the mechanics are she is a nurse’s aide and a patient’s fallen and she has to bend and twist and go to the floor to keep nursing home patient from falling and the patient develops back pain that goes to the knee, and included in this hypothetical question of a back surgery she still has some residual knee problem, it is a reasonable medical probability that if the knee pain hasn’t resolved that she could have an overlap of both a knee injury—
A. Yes.
Q. —as well as a low back injury?
A. Yes.

|7He concluded that an MRI of the knee was a reasonable test for the patient, but that over the four years he treated her beginning in 2003 he would have expected to discover the knee injury independent from the radiculopathy.

Dr. Lopez was deposed on August 16, 2011. He began-treating Davis in November 2006.

Q. Okay. Now then, there was an issue that arose about a left knee M.R.I.
A. That came about from Carolyn’s complaints of knee pain and I initiated the request for an M.R.I. and later I continued to pay more attention to the back, and the need for the M.R.I. of the knee sort of dissipated.
Q. So that’s no longer an issue?
A. That’s no longer an issue either.

Dr. Lopez discussed the shower chair and memory foam mattress recommendation. He said “it sounded like a good idea with the complaints that she has of poor sleep and the way that I see her maneuvering here in the office.” He was questioned:

Q. ... The M.R.I. of the left knee, you wrote a prescription for it on July 5, 2010. Is it still reasonable and necessary now in 2011? And if not, what has changed, if you don’t mind?
A. Her complaints at that time was of knee pain, in that left knee. The complaints have localized more as a neu-rologic type of pain from the back to the leg. This joint pain has not been a concern in the last at least six months.”

Dr. Lopez said he would defer to Dr. Gunderson as to whether the work accident caused any knee injury.

[sHowever, Dr. Lopez’s progress notes taken on the patient dated June 21, 2003, October 25, 2010, December 20, 2010, January 17, 2011, February 14, 2011, March 14, 2011, and June 16, 2011, all indicate left leg pain.

The trial court provided extensive oral reasons for its judgment, stating, in pertinent part:

[T]he sum, total and extent of this 2010 controversy involves a shower stool, a mattress, and an M.R.I. of the worker’s knee, all of which was prescribed by the worker’s treating physician months and months ago.
And after all these months and months of deliberation, the employer finally provided a shower stool for Ms. Davis. I cannot imagine what was so challenging about deciding to authorize a $50 shower stool that a physician said was necessary for personal hygiene.
And, I’m no less puzzled by the mattress issue. The rationale offered by the insurer for its reluctant, indeed refusal, to authorize the type mattress recommended by the treating physician goes like this: we could all benefit by having an expensive mattress; this woman doesn’t need one any more than the rest of us, and the only reason her physician prescribed one is that she asked him to do so. And it does look like that’s what happened, but I am unaware of any Third Circuit reported cases which suggest that an insurer can with impunity ignore a doctor’s prescription for a claimant if it can be shown that the claimant specifically requested that prescription, be it either medicinal or palliative.
And, utterly and conspicuously absent from the defense rationale is any support from any physician, of any specialty from anywhere who agrees with the insurer that the mattress is not necessary.
As related to. the knee M.R.I., the medical evidence is decidedly devoid void of any suggestion that the original (and really the only treating orthopedic surgeon) thinks that the knee M.R.I. is not required any more. The defense does not really argue that point, preferring to rely on what it considers the pain management physician’s view of the subject.
But, I read carefully the deposition of Dr. Lopez and I understand him to have said that as treatment proceeded, he began to pay more attention to Ms. Davis’ back problems and, as he put it, “the M.R.I. of the knee sort of dissipated.” The treating orthopedic surgeon, Dr. Gunderson, never, as far as I can see, indicated that he changed his mind on the necessity of a knee M.R.I. And, I will point out, that |3the defense had ample occasions to find out precisely what Dr. Gunderson thought, having deposed him twice.
But all of that aside, the over-arching rationale by the defense for its handling of this claim is its insistence that Ms. Davis is a malingering cheat who has consistently either manufactured or exaggerated her symptoms for no other reason than to defraud her employer and its insurer.
To support this argument, the defense relied on video surveillance, along with Ms. Davis’s performance during a functional capacity evaluation.
I grant that some legitimate questions might be raised by the insurer based on Ms. Davis’s F.C.E. But there’s a lapse of logic which sees an F.C.E. conducted in February of 2012 as a basis for denying a prescription mattress written by a pain management physician in 2009, or an M.R.I. requested in 2010.
The efficacy of the denial of prescriptions is measured, by what the denier knew when the request was refused, not how farsighted and correct the insurer might be years from the request date.
But the surveillance videos standing on their own are in no way and in no fashion strong enough to be considered proof positive that this woman is not disabled. This opinion seems to be shared by her treating orthopedic surgeon, Dr. Gunderson, who performed two separate lumbar surgeries on her and who has firsthand knowledge of her situation.

La.R.S. 23:1203(A)

An employer has a duty to provide all reasonable and necessary medical care and equipment to a claimant for her work-related injury. La.R.S. 23:1203(A); Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.

Although Tri-Parish eventually provided the shower chair shortly before the trial began, the trial court did not err in finding that it unnecessarily delayed in doing so.

110Regarding the memory-foam mattress and the M.R.I., Tri-Parish claims it already had the surveillance video when these requests were made; thus, their refusals to authorize was reasonable. We disagree. Dr. Frank Lopez prescribed the memory foam mattress on March 31, 2009. A prescription for an MRI of the left knee was written by Dr. Lopez on July 5, 2010. Tri-Parish submitted five CDs of video surveillance into evidence. The surveillance videos submitted into evidence were dated September 20, 2010, October 1, 2010, November 10-11 and 23-24, 2010, March 11, 2011, March 19, 2011, and February 23-25, 2012. A functional capacity evaluation (FCE) was conducted on February 24, 2012.

We reviewed all of the video surveillance and agree with the trial court. The surveillance submitted into evidence was conducted months after the prescribed mattress pad and M.R.I. The video surveillance, particularly the surveillance conducted between September 2010 and March 2011, is remarkably uneventful. The surveillance does not present significant credibility issues as testified to by Dr. Gunderson. Nor was there any real challenge of the necessity for the M.R.I. of the knee. While there is some conflicting medical testimony about the origin of the knee injury (i.e. radicular in nature or a separate injury), it is not sufficient to counter the evidence in favor of Davis and the trial court cannot be said to have manifestly erred in its finding. Additionally, as pointed out by the trial court, the employer cannot endlessly delay approval of a procedure in the hopes that it will no longer be required.

| ltPenalties and Attorney Fees

An employer is subjected to penalties and attorney fees if it fails to pay medical benefits timely unless the claim is reasonably controverted. La.R.S. 23:1201(F). “In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Guillory v. Bofinger’s Tree Service, 06-86, p. 14 (La.App. 1 Cir. 11/3/06), 950 So.2d 682, 692. A WCJ’s finding regarding penalties and attorney fees is a question of fact that will not be reversed absent manifest ei’ror. Maddox v. Texas Gas Transmission Corp., 07-906 (La.App. 3 Cir. 12/05/07), 971 So.2d 541, writ denied, 08-64 (La.3/7/08), 977 So.2d 911.

Based on our review above, the trial court did not err in assessing penalties of $6,000 and attorney fees of $11,750.

La.R.S. 23:1208

An employee forfeits her right to compensation benefits when she willfully makes false statements or misrepresentations in order to obtain benefits or payments. La.R.S. 23:1208; Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7. Whether an employee has forfeited her rights under La.R.S. 23:1208 is a question of fact that will not be reversed on appeal absent manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829 writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

Clearly Tri-parish and the WCJ had vastly different interpretations of the surveillance video. Where conflict in the testimony exists, a factfinder’s choice cannot be manifestly erroneous. Dean, 879 So.2d 112. As discussed above, we watched all of the surveillance video, and none of the actions on the surveillance tapes triggers a forfeiture of benefits. The WCJ considered the medical and 1 ^surveillance evidence and found that Davis did not intentionally misrepresent her condition. We find no error in the trial court’s finding that that Davis’s benefits were not subject to forfeiture under La.R.S. 23:1208.

Attorney Fees on Appeal

Davis answered Tri-Parish’s appeal and requests an additional $5,000 for work performed pertaining to the appeal. We award Davis $4,000 for work performed on appeal.

CONCLUSION

The judgment of the WCJ in favor of the plaintiff, Carolyn Davis, is affirmed. All costs of this appeal are assessed against the defendant, Tri-Parish Rehabilitation.

AFFIRMED.

      . The shower chair had been given to Davis by the time of trial.

      . Tri-Parish incorrectly filed a Motion for New Trial, which it later dismissed.

      . Dr. Gunderson was deposed a second time by Tri-Parish between the first and second day of trial.

      . The surveillance video taken on March 3, 2011 and March 19, 2011 (Exhibit D 7-C) was not included in the record.


author: THIBODEAUX, Chief Judge. AMY, J.,

text:
    Jerry RAMOS v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 12-1389.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.
    See 977 So.2d 1066 and 992 So.2d 986.

      Robert Lawrence Beck, Jr., Law Offices of Robert L. Beck, Jr., L.L.C., Alexandria, LA, for Plaintiff/Appellant, Jerry Ramos.
    Ronald J. Fiorenza, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, Laurel Irene White, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee, State of Louisiana, Through the Department of Transportation and Development.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff, Jerry Ramos, filed this suit against the State of Louisiana, through the Department of Transportation and Development (DOTD) after he fell from a rope swing into a creek located on a right-of-way owned by the DOTD, and was rendered a quadriplegic. He sued the DOTD under theories of negligence and strict liability. The DOTD filed a Motion for Summary Judgment on the basis of a lack of duty which the trial court granted. Mr. Ramos appeals that judgment. For the following reasons, we affirm.

I.

ISSUES

We will consider whether the trial court erred in granting summary judgment to the DOTD.

II.

FACTS AND PROCEDURAL HISTORY

In 1986, Mr. Ramos and a friend, Janice Box, accessed Big Creek in an area known as Second Bridge near Pollock, Louisiana. Second Bridge is located on a right-of-way owned by the DOTD. Mr. Ramos and Ms. Box swam in the creek for several minutes and observed that the creek had shallow, ankle-deep water near the edges and deeper, chest-deep water in the center. They then noticed a rope swing attached to a tree nearby and decided to swing from the rope into the water. They each swung several times, always landing safely in the chest-deep water. On Mr. Ramos’s final swing, the rope slipped from his grasp before he intended and he landed headfirst into the shallowest part of the creek. Mr. Ramos ^became a quadriplegic after sustaining a spinal cord injury as a result of his fall. He sued the DOTD and others for negligence and strict liability. Since this case has been active for over twenty years, it has an extensive procedural history. This court explained that history in a prior opinion in this case, Ramos v. State, ex rel. Dep’t of Transp. and Dev., 07-851 (La.App. 3 Cir. 2/6/08), 977 So.2d 1066, writ denied, 08-1074 (La.9/26/08), 992 So.2d 986, and we will not recount it here. The subject of this appeal is the DOTD’s most recent Motion for Summary Judgment. The trial court granted the motion and dismissed Mr. Ramos’s action. Mr. Ramos appeals that judgment.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. If the mover will not bear the burden of proof at trial on the matter, then he must only point out a lack of factual support for one or more elements essential to the non-mover’s case. La.Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine l-jissue of material fact. Id. If the non-mover fails to present sufficient factual evidence that he might be able to meet his burden of proof, the motion should be granted. Id.

Discussion

Mr. Ramos alleges that the DOTD had a duty to maintain its right-of-way in a reasonably safe manner and that it breached that duty by allowing the public to use the creek and rope swing, which presented an unreasonable risk of harm. The DOTD, on the other hand, argues that it had no duty to protect Mr. Ramos from consequences resulting from his own failure to maintain a sufficient grasp of the rope. Alternatively, the DOTD argues that the scope of its duty does not extend to these circumstances.

In a tort against the DOTD, the plaintiff has the burden of proving four elements: (1) the property on which the accident occurred was in the DOTD’s custody or control; (2) the property was defective because it had a condition that created an unreasonable risk of harm; (3) the DOTD had actual or constructive notice of this defect; and (4) the defect was the cause-in-fact of the injury. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. Further, the DOTD has a “duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence.” Id. at 799.

On appeal, the DOTD does not dispute that it had custody or control of Second Bridge, or that it had actual or constructive notice of the rope swing. Further, Mr. Ramos’s injury resulted from using the rope swing. The only issues presented are whether the DOTD owed a duty to Mr. Ramos, and whether the ^property had a condition that created an unreasonable risk of harm. The unreasonable risk of harm analysis in a DOTD case is similar to the duty-risk analysis, or scope of the duty analysis, in a typical negligence case. See Oster v. State ex rel., Dep’t of Transp. and Dev., 582 So.2d 1285 (La.1991). It is a question of fact that depends on the particular circumstances of the case. Brooks v. State ex rel. Dep’t of Transp. and Dev., 10-1908 (La.7/1/11), 74 So.3d 187. We find that the property did not have such a condition, and that the DOTD did not owe a duty to Mr. Ramos.

Unreasonable Risk of Harm

Mr. Ramos argues that the presence of the rope swing above the shallow creek created an unreasonable risk of harm that the DOTD had a duty to remedy, warn against, or block from public use. We disagree. Our courts employ a risk-utility balancing test to determine whether a condition creates an unreasonable risk of harm. Pryor v. Iberia Parish Sch. Bd., 10-1683 (La.3/15/11), 60 So.3d 594. The factors are (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness or appar-entness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activity, or whether the activity was inherently dangerous. Id.; Pitre v. La. Tech Univ., 95-1466 (La.5/10/96), 673 So.2d 585. All of these factors favor granting summary judgment to the DOTD.

We examine the social utility of Second Bridge and Big Creek as a whole, not the utility of the rope swing specifically. Pryor, 60 So.3d 594. Outdoor areas open to the public provide an important social function; recreational activities are vital to many communities. In our warm climate, public swimming areas are | .^especially appreciated. The public derives a great benefit from public lakes, creeks, and rivers. Consequently, the social utility of Second Bridge is considerable.

The likelihood that harm will occur at Second Bridge is slight. Mr. Ramos and Ms. Box, along with many others, previously used the creek several times without incident. The magnitude of harm, however, was substantial, as Mr. Ramos was rendered a quadriplegic. Further, Mr. Ramos argues that we should consider another accident that occurred at Second Bridge in 1977 as evidence of the likelihood of harm in that area. That accident, however, did not involve a rope swing; rather, that individual was injured after diving off the bank into shallow water. That incident is not analogous to Mr. Ramos’s situation.

Apparentness and obviousness of the condition are two other factors to consider when determining the likelihood of harm. Pryor, 60 So.3d 594. In his deposition, Mr. Ramos testified that he knew the creek was chest-deep at its deepest and ankle-deep at its shallowest. He knew, therefore, that there was a chance he could land in the shallow end of the creek; the condition of the creek was apparent. “[T]he risk was obvious and easily avoidable[,]” and Mr. Ramos “did not act with reasonable care for [his] own safety.” Bennett v. City of Lafayette, 93-1113 (La.App. 3 Cir. 4/6/94), 635 So.2d 515, 517, writ denied, 94-1201 (La.7/1/94), 639 So.2d 1167.

The cost of preventing this accident is difficult to quantify. Mr. Ramos argues that the DOTD should have removed the rope swing, warned against jumping or diving into the creek, or denied access to that area altogether. If the DOTD had removed the rope swing, someone else could have easily installed another one. It is unreasonable to expect the DOTD to bear the cost to continually |6monitor the area. Further, a warning sign would not have prevented this accident as Mr. Ramos was fully aware of the creek’s depth when he decided to swing from the rope. Denying access to Second Bridge altogether is too drastic, and the benefit to the public outweighs the risk. Further, it would have cost Mr. Ramos nothing to avoid the rope swing entirely. See Netecke v. State ex rel. Dep’t of Transp. and Dev., 98-1182 (La.10/19/99), 747 So.2d 489. The DOTD is not responsible for ensuring against every possible risk at its rights-of-way. See Brooks, 74 So.3d 187.

The fourth and final factor is the inherent nature and social utility of Mr. Ramos’s activity. Mr. Ramos’s use of the rope swing was inherently dangerous. Mr. Ramos knew the depth of the water, and he testified that when he successfully used the rope swing, he curled his knees to his chest when he let go to avoid hitting the bottom of the creek. He knew the risks implicit in swinging off a rope swing over shallow water, and took steps to minimize those dangers. Unfortunately, he was unable to maintain his grasp on the rope of his final swing, and this accident resulted.

The totality of the circumstances and facts of this case indicate there was no unreasonable risk of harm at Second Bridge. Mr. Ramos exercised poor judgment; he knew the depth of the water, and the dangers of swinging off of the rope above shallow water. Further, the benefit Second Bridge provides to the community outweighs the likelihood of harm.

Duty

The DOTD owes a duty to maintain the public highways, shoulders, and surrounding area in a condition that is safe for persons exercising ordinary care 17and reasonable prudence. Brooks, 74 So.3d 187. Although this duty technically applies to the motoring public, our jurisprudence has found that it extends to pedestrians as well. Oster, 582 So.2d 1285. In this case, because we find there was no unreasonably dangerous condition, we consequently find the DOTD owed no duty to Mr. Ramos. The absence “of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant.” Id. at 1288. The DOTD is not required to ensure the safety of someone who acts without good judgment and contrary to ordinary prudence, when no reasonable risk of harm exists.

There is no genuine issue as to any material fact in this case, and the DOTD is entitled to judgment as a matter of law.

IV.

CONCLUSION

For the reasons above, we affirm the trial court’s grant of summary judgment to the DOTD. Costs of this appeal are assessed against Jerry Ramos.

AFFIRMED.

AMY, J., concurs in the result and assigns reasons.

AMY, J.,

concurring in the result.

hi agree that an affirmation is appropriate in this case. However, I write separately in light of my differing analysis.

First, I note that the plaintiff filed suit for an accident occurring in 1986 and did so under both negligence and strict liability. In light of the time frame of the underlying event, La.R.S. 9:2800 is inapplicable to Mr. Ramos’s strict liability cause of action. See Ramos v. State, ex rel. DOTD, 07-851 (La.App. 3 Cir. 2/6/08), 977 So.2d 1066, n. 6 (citing Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14), writ denied, 08-1074 (La.9/26/08), 992 So.2d 986. Thus, the traditional elements of strict liability are applicable in this case. Under that theory, the plaintiff did not have to prove that the defendant knew or should have known of the risk involved as he was required to do under the negligence claim. I raise this point only for sake of completeness as neither knowledge nor notice seem to have been placed at issue here and this distinction does not influence the outcome of this case.

Additionally, in my opinion, the supreme court’s discussion in Brooks v. State, ex rel. DOTD, 10-1908 (La.7/1/11), 74 So.3d 187, offers definitive guidance in this case. In Brooks, the supreme court concluded that the condition of a public highway shoulder did not present an unreasonable risk of harm to an operator of a backhoe. Rather, the supreme court observed that the legislature did not include |2backhoes in the type of vehicles it specifically authorized to use the state’s highways and shoulders. Id. In its concluding language, the supreme court determined that:

DOTD is not the guarantor of the safety of all the motoring public under every circumstance. DOTD is only liable for conditions that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. After reviewing all the circumstances surrounding this accident, we find the jury was manifestly erroneous in finding the condition of the shoulder presented an unreasonable risk of harm. DOTD is simply not required to maintain the roadway in such a condition that the driver of an unstable backhoe, unauthorized for highway or shoulder driving, traveling too fast to negotiate a sharp turn in that vehicle, will be able to negotiate the turn without injury. There was no evidence in the record that the condition of this shoulder could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances, in fact all the evidence was to the contrary. Therefore, the condition of the shoulder did not present an unreasonable risk of harm and DOTD’s duty did not encompass this risk. To hold otherwise would place an unreasonable burden on the State and DOTD to ensure a pavement surface on a heavily traveled shoulder so smooth that construction vehicles not authorized for highway use can be imprudently operated upon it.

Id. at 193-194.

Given the discussion in Brooks, I find that the present case offers a stark example of a risk to which DOTD’s duty does not extend. DOTD merely held a right-of-way to the subject property. The supreme court has specifically stated that, in the context of a right-of-way, “DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.” Oster v. Dep’t of Transp. & Dev., 582 So.2d 1285, 1291 (La.1991). Certainly, the plaintiffs use of the property was not within such a context. Rather, any duty attendant to the limited purposes of a right-of-way did not extend to the type of impermissible and obviously hazardous recreational use engaged in by the plaintiff.

laFor these reasons, I concur with the majority that the trial court correctly entered summary judgment in favor of DOTD.

      . The other defendants who were originally named in this lawsuit have been dismissed.

      . Mr. Ramos brought this suit under theories of both negligence and strict liability; however, the analysis under either theory is the same. Id.


author: PAINTER, Judge.

text:
    Marie BENNIEFIEL v. STINE, L.L.C. and Zurich American Insurance Co.
    No. 12-1403.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.
    Roger M. Burgess, Erin M. Alley, Lake Charles, LA, for Plaintiff-Appellant, Marie Benniefiel.
    James R. Morris, Lake Charles, LA, for Defendants-Appellee, Stine, L.L.C. and Zurieh-American Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|,Plaintiff, Marie Benniefiel, appeals a jury verdict finding that Defendant, Stine, L.L.C. (Stine), was not at fault with regard to her fall at a Stine location.

FACTS AND PROCEDURAL HISTORY

Plaintiff alleges that she was injured on December 17, 2002, while she was a customer at Stine Lumber Company in Sul-phur, Calcasieu Parish, Louisiana. According to her testimony, she and her mother bought a Christmas tree at Stine, and while her mother was supervising the loading of the tree, Plaintiff opened the door to their vehicle and a paper flew off the dashboard and across the temporary fence which partitioned the Christmas tree lot from the parking lot. She approached the fence, which was constructed of piers made of 8 x 16 inch cinder blocks placed vertically, narrow end down and stacked two high with landscape timbers lodged in the holes to form a barrier, put her hand on the stacked cinder blocks, and leaned over to reach for the paper. The fence fell, and she fell to the ground with it, incurring injuries to her knees and arms.

This case was previously before this court on an appeal from a summary judgment as Benniefiel v. Zurich American Ins. Co., 08-1416, pp. 1-2 (La.App. 3 Cir. 5/6/09), 10 So.3d 381, 382-84 (footnotes omitted) (alterations in original), wherein this court summarized the procedural history to that point, as follows:

The Defendants filed a Motion for Summary Judgment, seeking to dismiss Ms. Benniefiel’s claims, on August 5, 2004. The trial court heard and denied the Defendants’ motion on November 12, 2004.
The matter proceeded to trial by jury from November 6 to 9, 2006. At the conclusion of the four-day trial, the jury, in an eleven-to-one vote, found in favor of the Defendants. A judgment memorializing the jury verdict was signed by the trial court on December 6, 2006.
On December 19, 2006, Ms. Benniefiel filed a Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for New Trial. A hearing on Ms. Benniefiel’s motions was held on May 1, 2007. The trial court denied Ms. Benniefiel’s Motion for | ¡Judgment Notwithstanding the Verdict but granted her Motion for New Trial. The trial court signed a judgment to this effect on June 11, 2007.
On July 14, 2008, Ms. Benniefiel filed a Motion for Partial Summary Judgment on the issue of liability along with a Statement of Uncontested Facts. Ms. Benniefiel offered the following exhibits as evidence in support of her Motion for Partial Summary Judgment: the deposition of Ms. Benniefiel; the trial testimony of Joseph Buckley; the trial testimony of Michael Frenzel; the trial testimony of Jack Madeley; the deposition of Brian Vassar.; the trial testimony of Brian Vassar.; the deposition of Jack Madeley; the affidavit of Michael Frenzel, dated July 10, 2008; and, the affidavit of Ms. Benniefiel dated July 11, 2008.
On August 8, 2008, the Defendants responded by filing a Motion to Quash the Motion for Partial Summary Judgment wherein the Defendants urged:
No new evidence has been adduced since the trial, other than the deposition of Jack Madeley, wherein he testified his opinions in this trial will be identical to the first trial. Given this lack of new evidence, consideration of Plaintiffs Motion for Summary Judgment is improper. A potential grant of Plaintiffs motion would be tantamount to the [ejourt granting Plaintiffs [Motion for Judgment Notwithstanding the Verdict], which the [c]ourt correctly ruled it could not do based on lack of grounds.
At the hearing held on August 12, 2008, the entirety of the suit record was introduced and accepted as a joint offering into the record of the summary judgment proceedings. After taking the matter under advisement, the trial court issued Written Reasons on August 19, 2008, granting Ms. Benniefiel’s Motion for Partial Summary Judgment on the issue of liability.

This court reversed the trial court’s grant of Plaintiffs Motion for Partial Summary Judgment and remanded for further proceedings.

The matter was tried to a jury on January 30 through February 2, 2012. After hearing the evidence, the jury checked “No” in response to the question on the jury verdict sheet: “Was there any fault, under the law applicable, on the part of the defendant, STINE, L.L.C.?”

Judgment was rendered in favor of Defendants, rejecting Plaintiffs demands. Plaintiff filed a motion for judgment not withstanding the verdict, which Rthe trial court denied. Plaintiff appeals asserting that the jury was clearly wrong in finding no fault on the part of Defendant, Stine, and that the trial court erred in denying her motion for JNOV.

DISCUSSION

The burden of proof applicable in claims against merchants is set out in La. R.S. 9:2800.6, as follows:

A.A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to |4those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2822, or 2695.

The second circuit in Crisler v. Paige One, Inc., 42,563, pp. 7-9 (La.App. 2 Cir. 1/9/08), 974 So.2d 125, 131-32, described the burden of proof and standard of review applicable in a merchant liability case, as follows:

A plaintiff must prove each of the three elements set forth in LSA-R.S. 9:2800.6(B). Failure to prove any of these required elements will prove fatal to a plaintiffs claim. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081; Bell v. American General Inv. L.L.C., 40,117 (La.App.2d Cir.9/21/05), 911 So.2d 408.
The determination of whether a defect presents an unreasonable risk of harm involves factual findings which differ in each case. Thus, there is no fixed or mechanical rule for determining whether a defect presents an unreasonable risk of harm. Lawrence v. City of Shreveport, 41,825 (La.App.2d Cir.1/31/07), 948 So.2d 1179, writ denied, 2007-0441 (La.4/20/07), 954 So.2d 166; Buchignani v. Lafayette Ins. Co., 41,384 (La.App.2d Cir.8/23/06), 938 So.2d 1198; Reitzell v. Pecanland Mall Assoc., Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229.
The trier of fact determines whether a defect presents an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Lawrence, supra; Reitzell, supra. The unreasonable risk of harm analysis requires the trier of fact to balance the gravity and risk of harm against individual and societal rights and obligations, the thing’s social value and utility, and the cost and feasibility of repairing the defect. Id. The question for the trier of fact is whether the social value and utility outweigh, and thus justify, the potential harm to others. Reed, supra; Lawrence, supra. The accident history of the defect is also a pertinent consideration. Id.
The trial court’s findings pursuant to LSA-R.S. 9:2800.6 are subject to the manifest error standard of review. A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether | sthe fact-finder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that if the findings of the trial court or jury are reasonable in light of the record reviewed in its entirety, the court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Ambrose, supra; Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).
Because of its superior position to view the demeanor of witnesses, the trial court’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id.; Collins v. City of Shreveport, 35,172 (La.App.2d Cir. 10/31/01), 799 So.2d 630.

In this case, Plaintiff asserts that the fence constituted an unreasonably dangerous condition. Plaintiff’s safety expert, Michael Frenzel, testified that the fence was a display to show goods and that it would not be realistic to think that no one would ever touch it. He stated that it constituted a good visual barrier but that it was reasonably foreseeable that someone would come into contact with the fence, lean on it, reach over it, or bump into it. He opined that the fence would look safe to an ordinary person but that even if the cinderblocks were perfectly aligned, the cinderblocks would have a propensity to fall over. He noted that there were no “Keep Off’ signs and opined that the customer has a right to expect that there would be no hazards to guard against.

Mr. Frenzel opined that the fence was clearly a hazard and that if a child were to have climbed on it, it would have fallen. He testified that a four block, horizontal layout of the blocks would have eliminated the risk of the piers falling. He testified that Stine should have had policies, procedures, and rules published to its employees and should have made sure that the employees understood and followed them. He further stated that Stine should have been conducting timely safety inspections and paired hazard hunts of the premises, facilities, and equipment to identify, evaluate, and control customer hazards. He noted that Stine [ (¡didn’t have a policy regarding how to build the fence, didn’t train its employees to build it properly, and didn’t publish a schematic of the way to build it.

Mr. Frenzel opined that Plaintiffs conduct was reasonable and that a safe fence could have been constructed out of the same materials using four blocks in a horizontal alignment at no greater cost since all the materials came out of Stine’s inventory and were returned to inventory when the need for the fence was over.

On cross-examination, Mr. Frenzel admitted that there were no standards regarding how to build this kind of enclosure. However, he noted that something can be unsafe without a regulation against it.

Brian Vassar testified as the representative of Stine. He was the floor supervisor of the Sulphur store at the time of the accident, and he filled out the accident report. He stated that it was part of his job to recognize potential hazards with the Christmas tree display. He testified that he never recognized that someone could be hurt if they came into contact with the fence. He stated that he was not involved in the planning or construction of the fence or of similar fences constructed over the six years prior to the accident. Mr. Vassar testified that no instructions were given on how to make sure the fence was free of hazards and that he never considered the fence to be a hazard. A meeting was held on where to construct the fence but not on how to construct the fence. No discussion was had as to the stability of the fence, and no one in the meeting suggested that the fence wouldn’t be touched. He stated that there was no reason that Stine could not have used the four block design for the piers, that it was common sense that the four block design would result in a sturdier fence, but that that approach had not been thought of before the accident. He agreed that everybody knew that someone might be on the outside of the fence and reach through to get a price tag and that it was foreseeable that someone might do so. He admitted that the fence was free to build |7whether the two block or the four block design was used because the materials all came from the store’s inventory and went back into inventory when the need for the fence was over and that regular employees constructed the fence as a part of their regular duties. He agreed that the fence needed to be sturdy because so many people would be near it and that this slipped through the cracks.

However, Mr. Vassar stated that Plaintiff leaned on the fence and that she could have easily walked around to the opening in the fence. He testified that the fence was not meant to be leaned on and that it was stable for its intended purpose of delineating the Christmas tree lot. He stated that it was easily seen by shoppers.

Dennis Stine, Stine’s Chief Executive, testified that he is the safety coordinator for the stores. He stated that the employees are responsible for looking for unsafe conditions and that the rule is if you see it, you fix it. He testified that each store holds monthly safety meetings. According to Mr. Stine, the cinderblocks are for protection around the Christmas tree lot, to keep people from walking out into the parking lot in an unsafe way. He testified that Stine obtained the design of the fence from observing the practices at other stores but that the design had not been reviewed since they began using it in the 1970s. Mr. Stine stated that it was not intended that the cinderblocks be leaned on. He admitted that there were no procedures to tell anyone to check the stability of the fence. It was Mr. Stine’s testimony that Stine considered only keeping people from walking out into traffic and not the possibility that the fence might be hit and fall over. He further stated that Stine changed to the four block design after Plaintiffs accident.

Mr. Stine admitted that it would have helped the employees to have some instruction on how to put the fence together and that he didn’t know how employees were instructed to build the fence. He could not say whether the possibility of a child running into the fence and knocking it down had been taken Rinto consideration. He admitted that the four block design would not cost more than the two block design.

Jack Madeley testified as safety expert for Defendants. He stated that the fence was designed to separate people from traffic. He opined that the fence did not contribute to the accident because Plaintiff fell into the fence, and the fence fell with her, and the fence did not pull her down. He stated that she leaned on the fence and that it should be obvious to someone in Plaintiffs position that the fence was a temporary structure not meant to be leaned on. Mr. Madeley opined that it was reasonable for Stine to use the design since they had observed it to be the customary design used by other businesses. He agreed that the four block design is less likely to tip over. He opined that inspections would not have revealed anything because the fence was not defective. He stated it as his opinion that the fence was reasonably safe for its intended purpose, had utility, and was consistent with industry custom and practice.

On cross-examination, Mr. Madeley admitted that if someone had done a bump test of the fence, it could have fallen over. He opined that it is not possible to address every possibly foreseeable hazard. He reiterated that the design was reasonably safe for its intended purpose of keeping people from walking into traffic. He indicated that the existence of a safer design did not render the design used unsafe.

After hearing the evidence the jury was instructed as follows:

In this case the defendant is what is referred to under Louisiana law as a “merchant” and therefore owes a statutory duty to its customers to use reasonable care to keep his premises free from hazardous conditions.
Thus, a customer has a protected interest in expecting a merchant’s premises to be free of hazardous conditions that will cause her harm.
|aIf you find the merchant had a hazardous condition on his premises, then he is liable for damages caused by that Hazardous condition if the plaintiff shows:
A) the hazardous condition presented an unreasonable Risk of harm to customers and that risk was foreseeable;
B) the merchant created or knew of the hazardous Condition before the plaintiff was hurt; and
C) the merchant failed to exercise reasonable care to eliminate the hazard.
In determining whether the hazardous condition on the merchant’s premises presented an unreasonable risk of harm, You must balance the likelihood of injury and the severity of those potential injuries against what the merchant must sacrifice to avoid the risk.
A premise hazard is a condition of the premises that results in an unreasonable risk of harm to customers under the circumstances. If you find plaintiff has shown that a Premise hazard existed, the burden shift’s to the merchant to prove that it used reasonable care to avoid this hazard.
In determining whether the hazardous condition on the Merchant’s premises presented an unreasonable risk of harm, you must balance the likelihood of injury and the severity of those potential injuries against, what the merchant must sacrifice to avoid the risk.
Under Louisiana law, a merchant is liable for failing to Take precautions against even remote risks if the costs of precautions would be relatively low.

A reviewing court may not disturb the factual findings of the trier of fact where there is no manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

In Arceneaux, we set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court; and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, |10the fact finder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

Lafayette City-Parish Consol. Gov’t v. Person, 12-307, p. 7 (La.10/16/12), 100 So.3d 293, 297-98.

The conflicting evidence given by the experts in this matter supports the conclusion that there are two permissible views of the evidence. The jury’s findings are reasonable based on the evidence adduced and is not manifestly erroneous. Therefore, we must affirm the jury’s verdict.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff-Appellant, Marie Benniefiel.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    MACRO OIL COMPANY, INC., et al. v. DEEP SOUTH PETROLEUM, INC., et al.
    No. 12-1242.
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2013.
    Steven Gerald Durio, Travis J. Brous-sard, Durio, McGoffin, Stagg & Acker-mann, Lafayette, LA, for Defendants/Appellants, Deep South Petroleum, Inc., Charles A. Fuselier, Jr.
    Charles W. Dupuis, Joel Paul Babi-neaux, Olivia Smith Regard, Babineaux, Poche, Anthony, Lafayette, LA, for Plaintiffs/Appellees, Macro Oil Company, Inc., William H. MeElligott, Richard G. McEUi-gott'.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

| ¶ This is a case where a dispute arose between two oil companies who had formed, and then sold, a separate entity with each comprising one-half of that formed entity. The plaintiff oil company’s group sought a declaratory judgment that all claims against it could no longer be pursued for its alleged violations of a covenant not to compete that was part of newly formed entity’s operating agreement.

The trial court granted the plaintiff oil company group’s motion for summary judgment thereby granting its declaratory judgment. The defendant oil company’s group filed this appeal. We affirm.

FACTS AND PROCEDURAL HISTORY:

In March 2004, appellants, Deep South Petroleum, Inc., Charles W. Dupuis, and Charles A. Fuselier (Deep South) formed a new company with appellees, Macro Oil Company, Inc., Richard G. McElligott, and William H. McElligott (Macro). The new company formed was named United Fuels & Lubricants, L.L.C. (UFL), and it was organized in the State of Louisiana. Deep South and Macro each owned fifty percent of the membership interest in UFL.

In forming UFL, Deep South and Macro transferred their fuel distribution assets to UFL and signed UFL’s operating agreement. Part of UFL’s operating agreement was a covenant not to compete against UFL subscribed to by both Deep South and Macro.

On December 15, 2010, UFL sold its assets to Talen’s Marine and Fuel, L.L.C. (Talen’s). Also on that date, Deep South and Macro signed a release agreement stating that both “agree that neither has any claims against the other arising out of or in any way connected to their membership in UFL” and “to the ^extent that Macro or Deep South has any such claims, the same are hereby waived, released, remitted and otherwise extinguished.”

Thereafter, Deep South made demands against Macro, on behalf of UFL, related to Macro’s alleged violations of the covenant not to compete in UFL’s operating agreement. In order to obtain a declaration of rights and obligations under both the UFL operating agreement and the release agreement, Macro filed a petition for declaratory judgment, preliminary injunction, and permanent injunction on August 3, 2011. Macro then moved for summary judgment.

After completion of discovery, the trial court conducted a hearing resulting in a final judgment issued on July 27, 2012, granting Macro’s motion for summary judgment. Deep South brought this appeal and is alleging four assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that the Agreement released claims of UFL.
2. The trial court improperly considered extrinsic evidence.
3. The trial court erred by applying language of the UFL Operating Agreement.
4. The trial court erred by failing to apply Article 3078 of the Civil Code.

ASSIGNMENT OF ERROR NUMBERS ONE THROUGH FOUR:

In each of its four assignments of error raised, Deep South contends that the trial court erred in some fashion so as its grant of Macro’s motion for summary judgment was improper. Given that the applicable standard of review in this case and that each of the assignments of error is an argument seeking the same result, we will address all issues raised by Deep South under one heading.

Summary judgments are subject to a de novo review. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by [La. Code Civ.P. art.] 969. The ¡¡¡procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for 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 mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B).
It is also important to be aware of the movant’s and not-movant’s burdens of proof. Though the burden of proof on a motion for summary judgment remains on the movant, the movant’s burden changes contingent upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment. Johnson v. State Farm Ins., 08-1250 (La.App. 3 Cir. 4/1/09), 8 So.3d 808.

Davis v. Country Living Mobile Homes, Inc., 11-471, pp. 2-3 (La.App. 3 Cir. 10/19/11), 76 So.3d 1248, 1249-50.

Louisiana Code of Civil Procedure Article 966(C)(2) states, in pertinent part:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

“Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” La.Civ.Code art. 1983. “Interpretation of a contract is the determination of the common intent of the parties.” La.Civ.Code art.2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art.2046. “The words of a contract must be given their generally prevailing meaning.” La.Civ.Code art.2047. “Words susceptible of different meanings must be interpreted as having the meaning that best conforms to |4the object of the contract.” La.Civ.Code art.2048. “A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that render it ineffective.” La.Civ.Code art. 2049. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art.2050.

In the case before us, the trial court granted summary judgment based on its interpretation of two contracts. The first contract is an agreement between the members of UFL, namely Macro and Deep South. The second is UFL’s operating agreement, specifically Article 16.1 of UFL’s operating agreement.

On December 15, 2010, UFL sold its operating assets to Talen’s. On that same date, Macro and Deep South executed an agreement. That agreement states (emphasis added):

Whereas, Macro and Deep South are the sold members of United Fuels and Lubricants, L.L.C. (“UFL”), an Louisiana limited liability company;
Whereas, Pursuant to that certain Bill of Sale and other related documents with Talen’s Marine and Fuel, Inc. dated December 15, 2010, UFL, Macro and Deep South have agreed to sell all or substantially all of the Assets of UFL (the “Sale”);
Whereas, Following the Sale, UFL will not conduct any operations or car ry on any further business, and Macro and Deep South intend to dissolve UFL;

Now, therefore, Macro, Deep South and their respective principals hereby agree to the following:

1. Neither, Macro, Deep South, or any of their shareholders, officers, directors, members, managers, agents, employees or representatives will conduct any operations or engage in any business whatsoever in the name of or on behalf of UFL after the closing of the Sale, other than the collection of receivables and the payment of existing debt to Whitney National Bank and disbursement of net sale proceeds to the principals of UFL, without express written consent of each of Macro and Deep South;
|s2. In consideration of the dissolution contemplated hereby, Macro and Deep South acknowledge and agree that neither has any claims against the other arising out of or in any way connected to their membership in UFL, the operation of UFL and/or the relationship created thereby, and, to the extent that Macro or Deep South has any such claims, the same are hereby waived, released, remitted and otherwise extinguished.

The trial court read that agreement in conjunction with Article 16.1 of UFL’s operating agreement. Article 16.1 is a covenant not to compete that was allegedly violated some time after Hurricanes Katrina and Rita by Macro. The pertinent language of Article 16.1 states, “this provision shall cease to apply upon the dissolution or cessation of business of the Company reserving to the Members any claims for damages resulting from any violations of this Article 16 occurring prior to and through the date of such dissolution or cessation of business.”

The trial court’s interpretation of the two documents was that when Macro and Deep South agreed that UFL “will not conduct any operations or carry on any further business” in the agreement between the parties, Article 16.1 of UFL’s operation agreement ceased to apply upon “the ... cessation of business” and any damages were now “reserved ... to the Members.” Next, the trial court reasoned that any claim for damages between Macro and Deep South had been “waived, released, remitted and otherwise extinguished” as stated in number two of the release agreement between Macro and Deep South.

Deep South first argues that their agreement with Macro does not compromise the claims of UFL. This is true. The language of the agreement between Deep South and Macro does not compromise UFL’s claims. Rather, the trial court reasoned, and we agree, that the language of UFL’s operating agreement does so when it clearly states that Article 16.1 ceases to apply upon “cessation of business.” Therefore, given that UFL has ceased doing business, any claims it had against Macro are extinguished per its operating agreement.

| (Deep South next takes issue with the trial court considering UFL’s operating agreement as “extrinsic evidence.” This issue before the trial court was not solely to interpret the agreement between Macro and Deep South. It was to determine if there was a genuine issue of material fact as to whether any and all claims against Macro were released for its alleged violation of any covenant not to compete with UFL, and whether Macro was entitled to a judgment as a matter of law declaring same. In its petition, Macro alludes to both the agreement between it and Deep South and UFL’s operating agreement. Thus, the operating agreement is not “extrinsic evidence” and was properly considered by the trial court.

Next, Deep South asserts that the trial court erred in applying the language of UFL’s operating agreement. Deep South argues that the language of Article 16.1 that states, “this provision shall cease to apply upon the dissolution or cessation of business of the Company” should be read to mean that a complete cessation of business, i.e. dissolution, must occur. Thus, according to Deep South, UFL’s right to pursue claims against Macro were never “reserved” because the company did not completely cease conducting business, as it still pays bills, collects receivables, etc. We do not agree.

The agreement between Macro and Deep South specifically states that “UFL will not conduct any operations or carry on any further business, and Macro and Deep South intend to dissolve UFL.” Further, it is clear that UFL has ceased conducting its ordinary and regular business operations that existed prior to the sale. It has done so in order to honor its covenant not to compete with Talen’s, the purchaser of its business. Thus, we find this argument has no merit.

Finally, Deep South contends that the trial court erred by failing to apply La.Civ. Code art. 3078, which states, “[a] compromise does not affect rights 17subsequently acquired by a party, unless those rights are expressly included in the agreement.” We disagree with this contention.

The agreement between Macro and Deep South references UFL’s sale to Ta-len’s. Once UFL is sold and ceases business operations, any claims of UFL under Article 16.1 are “reserved” to Macro and Deep South. Additionally, the agreement between Macro and Deep South states “to the extent that Macro or Deep South has any such claims [arising out of or in any way connected to their membership in UFL], the same are hereby waived, released, remitted and otherwise extinguished.” Thus, we interpret the agreement between Macro and Deep South to have contemplated any and all claims arising out of their membership in UFL. It is evident that UFL’s claims against Macro, which would “reserve” to Deep South per UFL’s operating agreement, arise out of Deep South’s membership in UFL.

CONCLUSION:

Deep South Petroleum, Inc., Charles W. Dupuis, and Charles A. Fuselier, Jr. raised three assignments of error. We find no merit in any of those assignments and uphold the trial court’s grant of Macro Oil Company, Inc., Richard G. McElligott, and William H. McElligott’s motion for summary judgment. Costs of this proceeding are assessed to Deep South Petroleum, Inc., Charles W. Dupuis, and Charles A. Fuselier, Jr.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Barney Noel HOLT III, Appellant.
    No. 47,734-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Edward John Marquet, Lafayette, LA, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, II, District Attorney, Brian H. Barber, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before DREW, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

|, Barney Noel Holt, III, was convicted by the First Judicial District Court, Parish of Caddo, State of Louisiana of possession of a schedule II controlled dangerous substance in violation of La. R.S. 40:967 F(l)(a). Holt was adjudicated a third habitual offender and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. This appeal followed. For the following reasons, we affirm his conviction and sentence.

FACTS

On January 7, 2009, the Shreveport Police Department raided the home of Barney Noel Holt, III, and arrested him for possession of methamphetamine in an amount greater than 28 grams. The raid was conducted pursuant to a search warrant supported by the recent purchase of a large quantity of methamphetamine by a confidential informant shortly before the raid.

Holt was charged by bill of information with possession of over 28 grams of methamphetamine in violation of La. R.S. 40:967 F(l)(a). In June, 2009, Holt’s court-appointed counsel withdrew and was replaced with new counsel. Again, several months later, Holt’s counsel was replaced.

On the day of his jury trial, Holt filed a motion to suppress the evidence gathered during the search of his home, alleging various arguments as to how the search violated his constitutional rights. The trial court denied the motion to suppress as untimely and commenced with trial. At the conclusion of the trial, the jury found Holt guilty as charged. Holt filed a motion for new trial which the trial court denied.

Holt was charged by bill of information as a habitual offender pursuant to La. R.S. 15:529.1 A(3)(b). After a habitual offender hearing, Holt was adjudicated and subsequently resentenced as a third felony offender to life imprisonment without the benefit of probation, parole, or suspension of sentence. Holt filed a motion to reconsider sentence which the trial court denied. This appeal followed.

DISCUSSION

As his only assignment of error, Holt argues that the trial court erroneously denied his motion to suppress as untimely. Holt claims that his motion to suppress was justified by the late provision of full discovery by the State which occurred after the start of jury selection. Holt further argues that he could not have filed the motion sooner because his trial counsel learned only a few days prior to trial which pending criminal matter would be prosecuted. Finally, Holt argues that he promptly filed the motion to suppress before the start of evidence and, therefore, the trial court should have entertained his motion. We disagree.

Pretrial motions must generally be made or filed within 15 days after arraignment. La. C. Cr. P. art. 521. “Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.” Id. Specifically regarding the motion to suppress, La. C. Cr. P. art. 703 C provides:

A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise 1 .¡excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

A lack of communication between defendant and counsel is not grounds to grant an extension of time under art. 703 C. State v. Franklin, 43,173 (La.App.2d Cir.09/17/08), 996 So.2d 387, writ denied, 2008-2371 (La.05/22/09), 9 So.3d 138.

Here, the record reflects that Holt’s original counsel was provided with the relevant evidence as early as May 26, 2009, when the State filed its response to his motion for discovery. The response included a copy of the search warrant and the supporting affidavit which Holt challenged in his motion to suppress. Holt is not permitted to fault the State for his counsel’s failure to request and review relevant discovery information in a timely manner.

Likewise, Holt’s argument that the State’s failure to notify his counsel as to which criminal matter it intended to prosecute led to his counsel’s inability to request the relevant discovery lacks merit. At a hearing on November 16, 2009, the trial court set a trial date of March 10, 2010. Both Holt and his trial counsel attended that hearing. At the very least, Holt and his counsel knew that in four months’ time, a trial would commence on one of the pending criminal matters. This four-month window provided ample opportunity to review each matter and file any pretrial motions in anticipation of trial. Holt has failed to show good cause for his extremely late motion to suppress. The trial court did not abuse its discretion in denying Holt’s motion to suppress, and this assignment of error is without merit.

1 CONCLUSION

For the foregoing reasons, we affirm Barney Noel Holt, Ill’s conviction and sentence.

AFFIRMED.