author: HARRISON, J. (Ad Hoc). SEXTON, J. (Ad Hoc),

text:
    Oscar J. TOLMAS, Plaintiff-Appellee v. PARISH OF JEFFERSON, et al., Defendant-Appellant.
    No. 47,555-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2013.

      E. Ross Buckley, Jr., Melissa S. Quigley, Johanna E. Lambert, for Appellant, Parish of Jefferson.
    Stone, Pigman, Walther, Wittmann, LLC, New Orleans, LA, by Phillip A. Witt-mann, Samantha P. Griffin, for Appellee, Morning Park, LLC, as Successor in Interest to Oscar J. Tolmas.
    LeBlanc Butler, LLC, Metairie, LA, by Patricia S. LeBlanc, Carl A. Butler, Grant & Barlow, Gretna, LA, by Patrick J. Fanning, Michael G. Fanning, for Amici Curiae, Jefferson Chamber of Commerce, Select Properties, Ltd., Rault Resources, Inc. & Greg Clayton.
    Sher, Garner, Cahill, Richter, Klein & Hilbert, New Orleans, LA, by Leopold Z. Sher, James M. Garner, Dorothy S. Watkins, for Amici Curiae, Whitney-Cecile Homeowners & Improvements Assn., Inc.
    Before CARAWAY, MOORE, LOLLEY, SEXTON (Ad Hoc) & HARRISON (Ad Hoc), JJ.
   HARRISON, J. (Ad Hoc).

_JjThe defendant, the Parish of Jefferson (“Parish”), appeals from a trial court judgment enforcing a permanent injunction against it. The plaintiff is Morning Park, LLC (“Morning Park”), the successor in title to the original plaintiff, Oscar J. Tol-mas. For the following reasons, we reverse the trial court judgment.

FACTS

In June 1957, Mr. Tolmas purchased a piece of property in Jefferson Parish. The majority of the property was to be developed as a residential neighborhood. On the subdivision plan, the land at issue here, Square 1, was labeled as commercial. Jefferson Parish approved the plan for the subdivision on July 1, 1957. In 1958, the Parish adopted a Comprehensive Zoning Ordinance (“CZO”) and Square 1 was zoned as residential, R-l. In October 1958, the Parish issued Mr. Tolmas a permit to build an office building on the site for his construction business. Thus, despite the residential zoning designation and the CZO, the Parish allowed the use of the property for commercial use in keeping with its prior approval of the subdivision plan.

In 1962, Mr. Tolmas had shells placed on the parking lot of Square 1 up to Veterans Memorial Highway (“Veterans”) to allow ingress and egress to his office. On May 11, 1962, the Parish sent a letter to Mr. Tolmas telling him that the shells were on public property and interfered with a ^street beautification program by the Parish. Mr. Tolmas was told to restore the public property to its former condition, or he would be prosecuted for destroying and defacing public property.

On May 16, 1962, Mr. Tolmas filed a petition for a permanent injunction against the Parish, stating that he owned an office building on Square 1 along with a sign advertising a subdivision called “Cecile Park.” He acknowledged that he put shells from the front of his office building to the shoulder of Veterans- to provide ingress and egress from the street to the parking area in front of his office. He claimed that similar ingress and egress were present on other properties and businesses fronting on Veterans. He asserted that the letter from the Parish violated the due process and equal protection clauses of the Louisiana and United States Constitutions. He argued that no other property owners received letters from the Parish and he alleged that the Parish’s actions were discriminatory and unconstitutional. Notably, Mr. Tolmas’ petition did not assert that the Parish’s threatened actions concerned his property’s use for commercial purposes based upon any assertions by the Parish of the zoning limitation for Square 1 as residential property under the CZO.

He sought a temporary restraining order against the Parish, and in due course, preliminary and permanent injunctions prohibiting the Parish from doing any act which would interfere with his peaceful possession of his |sproperty, including his right to frontage ingress and egress between Veterans and his property.

The trial court granted a temporary restraining order in favor of Mr. Tolmas. A preliminary injunction was issued on October 18, 1962. On February 7, 1963, a consent judgment was entered, ordering that the preliminary injunction be made permanent. The Parish was prohibited from committing any act toward disturbing Mr. Tolmas’ peaceable possession of the disputed property, including his right to frontage, entrance and exit from Veterans and his office, as the said rights were enjoyed on May 14, 1962, or from any interference whatsoever to the peaceful use and enjoyment of Mr. Tolmas’ property-

The office building was demolished in early 2004. On April 28, 2004, Morning Park purchased the property from Mr. Tolmas. In 2010, Morning Park sought to obtain a building permit for an office building and parking garage to be built on the site, but learned that the property was zoned as residential. The Parish denied Morning Park a letter of clearance to use the property for an office building.

Morning Park filed a motion to enforce the permanent injunction, alleging that all rights to the property held by Mr. Tolmas, including the right to use the property for offices, flowed to Morning Park. Morning Park argued that the injunction should be enforced, restraining the Parish from interfering with Morning Park’s use and development of the property for an office building.

14A hearing was held on the motion on February 24, 2011. The Parish argued that, because the property was used for a commercial purpose before the Code of Ordinances zoning it as residential, the property could be used for commercial use until such use stopped. The Parish contended that when the building was demolished in 2004, the commercial use stopped and the property reverted to its zoning as residential. The trial court found in favor of Morning Park, enforcing the permanent injunction against the Parish, prohibiting it from interfering with the peaceful possession of Morning Park and its use of the property for offices. The trial court stated:

All right. It appears what the Plaintiffs are requesting is the use of the property for offices. It’s very specific in here.
So according to what’s filed in the Record and the requests of the parties, the Court is going to enforce the permanent injunction against the Parish of Jefferson barring the Parish of Jefferson from interfering with the peaceful possession of Morning Park, LLC and its use of the property for offices.
That is what was requested. That is what the Court is ordering.

The Parish appealed, arguing that the 1963 permanent injunction in favor of Mr. Tolmas did not transfer to Morning Park the right to use the property for offices and that a valid nonconforming use of the property ended when the nonconforming building was demolished in 2004.

DISCUSSION

La. C.C.P. art. 8601 provides in pertinent part:

A. An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; ....
C. During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
IfiD. Except as otherwise provided by law, an application for injunctive relief shall be by petition.

A permanent injunction is a final judgment which extends the life of a proceeding in which it was granted until it is either modified or revoked by the district court which issued it. South Central Bell Telephone Company v. Dempster, 303 So.2d 278 (La.App. 1st Cir.1973).

At the time of the 1963 judgment, the principle regarding res judicata was reflected in former La. C.C. art. 2286 which stated, “the authority of the thing adjudged takes place only with respect to what was the object of the judgment.” The demand of the former suit was required to be founded upon the same “cause.” Citing Planiol, the Louisiana Supreme Court in Mitchell v. Bertolla, 340 So.2d 287 (La.1976), stated: “The Cause is said to be the juridical or material fact which is the basis of the right claimed, or the defense pleaded.”

We find that the 1963 consent judgment making the injunction permanent as to Mr. Tolmas and the Parish did not involve the zoning issues for the use of the property which are now in dispute. The consent judgment resolved a dispute between Mr. Tolmas and the Parish concerning Mr. Tolmas’ right to ingress and egress from the property to Veterans. The dispute arose after Mr. Tolmas placed shells on the property to aid in accessing the property from Veterans. The preliminary injunction entered on October 18, 1962, prohibited’ Jefferson Parish from committing any act toward disturbing Mr. Tolmas’ peaceable possession of the property including his right to frontage exit and entrance between Veterans and his office. The 1963 consent judgment making the injunction permanent | largely tracked the language of the preliminary injunction and prohibited Jefferson Parish from committing any act toward disturbing Mr. Tolmas’ peaceable possession of the property, including his right to frontage, entrance and exit between Veterans and his office, as said rights were enjoyed on May 14, 1962, or from any interference whatsoever to the peaceful use and enjoyment of Mr. Tolmas’ property. The injunction never addressed zoning issues or Mr. Tolmas’ right to have an office building on the property when it was zoned residential. Although the injunction uses broad language prohibiting the Parish from committing any act disturbing Mr. Tolmas’ peaceable possession of Square 1, the injunction, in the context in which it was issued, did not give Mr. Tolmas or his successors the unlimited right in perpetuity to use the property for whatever purpose they might choose. Therefore, the 1963 judgment was not founded on the same cause as the present suit and that judgment is not res judicata as to the issues involved in the present case.

The Parish argues that the valid nonconforming use of the property ended when Mr. Tolmas’ office building was demolished in 2004. La. Const. Art. 6, § 17, gives local governments broad powers to adopt regulations for land use, zoning, and historic preservation. Jenkins v. St. Tammany Parish Police Jury, 98-2627 (La.7/2/99), 736 So.2d 1287. The purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. Redfearn v. Creppel, 455 So.2d 1356 (La.1984).

A person who purchases land with knowledge, actual or constructive, of zoning restrictions which are in effect at the time of such purchase, is |7said to have created for himself whatever hardship such restrictions entail. Sanchez v. Board of Zoning Adjustments of City of New Orleans, 488 So.2d 1277 (La.App. 4th Cir.1986), writ denied, 491 So.2d 24 (La.1986), cert. denied, 479 U.S. 963, 107 S.Ct. 461, 93 L.Ed.2d 406 (1986).

A use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated, is commonly referred to as “nonconforming use.” The permitted continuation of a nonconforming use is designed to avoid the hardship, injustice and doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area. Redfearn v. Creppel, supra.

In 1958, the Jefferson Parish Council passed the Jefferson Parish Zoning Ordinance, Ordinance 3813, which later became Ordinance 5687. See Kuhn v. Sciortino, 483 So.2d 666 (La.App. 5th Cir.1986). The CZO was later embodied in Jefferson Parish CZO, Art. XXXVII, Sec. 40. The purpose of nonconforming use regulations is to allow nonconforming uses while upholding the integrity of the district regulations described in this ordinance by carefully guiding nonconforming uses to have as little negative impact on conforming uses as possible. Jefferson Parish CZO, Sec. 40-696.

Any lawful structure, building permit issue, or use existing on or prior to the date of adoption of Ordinance 5687; or whenever a district shall be changed by amendment to this ordinance; may be continued even though Rsuch building, structure, or use does not conform to the regulations of the district in which it is located. Jefferson Parish CZO, Sec. 40-697.

Once a nonconforming use is changed to a conforming use, the nonconforming use shall not be reestablished. Jefferson Parish CZO, Sec. 40-699(d).

The discontinuance or suspension of a nonconforming use or associated activity for any reason shall constitute vacancy of a nonconforming structure, regardless of the intent of the owner or lessee of the premises to continue such nonconforming use or associated activity. Vacancy of a nonconforming for a period of one year shall terminate the nonconforming use. Jefferson Parish CZO, Sec. 40-702.

We find that Mr. Tolmas’ office building was a nonconforming use of the property which was allowed by the Parish in 1958 when it issued him a building permit, even though at that time the property had been zoned for residential use. The office building was demolished in 2004. The property appears to have been vacant since that time. Because the nonconforming use has ceased for more than one year, it has terminated. Morning Park is not entitled to make commercial use of Square 1 under the facts presently before this court. We make no decision as to Morning Park’s entitlement to a zoning variance and we do not address the merits of any zoning issue that may be raised under normal zoning procedures. Morning Park’s remedy is to seek a zoning variance through the appropriate procedures.

| «CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and dismiss Morning Park’s motion to enforce the injunction against the Parish of Jefferson. We assess all appellate and trial court costs to Morning Park, LLC.

REVERSED AND RENDERED.

SEXTON, J. (Ad Hoc) dissents with reasons.

SEXTON, J. (Ad Hoc),

dissenting.

liThe majority opinion gives bare credence to the compromise entered into in this case between the parties in 1963, and posits the case as basically one of loss of a nonconforming use. I disagree, believing a larger issue is at hand.

While perhaps redundant, a review of the time line herein may be helpful.

• July 1957 — this subdivision, containing the subject property, is zoned commercial by parish ordinance.
• August 1958 — a comprehensive zoning ordinance is adopted by Jefferson Parish zoning the property as residential.
• October 1958 — a building permit is issued by the parish for construction of an office building on the property.
• May 1962 — official objection by letter through the parish attorney objecting to Tolmas’ changes and manner of access to subject property from Veterans Highway.
• May 1962 — petition for injunctive relief filed by Tolmas.
• February 1963 — consent judgment granting permanent injunction rendered.

Obviously, there was significant tension during this period between Mr. Tolmas and the parish over the instant property. Even then, most of the property along Veterans was commercial and the adjacent properties were enjoying access to Veterans Highway. However, by letter the parish attorney advised Mr. Tolmas that his action had destroyed improvements made to the property by the parish and that if he did not repair those he |2would be prosecuted, the property would be restored and he would be sued for reimbursement. I observe that the five days he was given to begin to restore seems a bit short.

The date of that letter is May 11, 1962, and Mr. Tolmas sued on May 16, 1962, within the five days. The hearing on the preliminary injunction, originally set on May 24, was continued to June 18 and then to June 26, at which time it was apparently heard. The parish filed an answer on that date, June 26. In the answer, the parish asserted that the plaintiff was not denied access to Veterans Highway, as plaintiffs property fronted on North La-barre Road and Thomas Drive, both of which intersected Veterans. The parish further pled that plaintiffs property was zoned as residential and his authorized access (not using Veterans) was “more than adequate to serve said property.”

Amidst this contentious background, after the hearing, the trial judge issued a preliminary injunction, essentially as prayed for, on October 18,1962.

Thereafter, almost exactly three months later in an agreement dated January 17, 1963, and identified in the record as PD-1, a letter of compromise was signed by Mr. Tolmas and the president of the Jefferson Parish Council, three councilmen at-large, four district councilmen, the parish attorney, the director of roads and bridges, and the director of the department of safety. Therein these parish authorities and members of the | ¡.parish governing council, on behalf of the parish, and in their individual capacities, all agreed to the permanent injunction as prayed for. They also agreed that there would be no appeal taken from the judgment to be entered as a result of the agreement. Also therein, Mr. Tolmas released any claims against Mr. Dan Hogan, president of the Jefferson Parish Council. Parenthetically I observe that Mr. Tolmas was the major beneficiary of this compromise. All that Mr. Tolmas released in the compromise was to relinquish any claims from “utterances allegedly made by Mr. Hogan immediately prior to the filing of the suit....” Considering the commercial nature of Veterans Highway, then and now, aspects of equal protection seem clearly implicated in the compromise.

On February 7, 1963, “with the consent of all parties hereto, as evidenced by the document identified as PD-1,” the preliminary writ of injunction granted on October 18,1962, “is hereby made permanent.”

Significantly, this permanent injunction was a compromise, to which it appears that every parish authority agreed. Since Morning Park is a legal successor to Mr. Tolmas, it enjoys the benefits of such compromise. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965), Succession of Cahn, 545 So.2d 1158 (La.App. 4th Cir.1989), citing Ditch v. Finkelstein, 399 So.2d 1216 (La.App. 1st Cir.1981).

A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised. La. C.C. art. 3080. A valid compromise can form basis of plea of res judicata. Boyette v. Riverwood Intern., 27,980, 27,981 (La.App.2d Cir.3/1/96), 669 So.2d 730, on rehearing, 27,980, 27,981 (La.App.2d Cir.5/8/96), 674 So.2d 1102, writ granted in part and remanded, 96-1418 (La.10/4/96), 679 So.2d 1366.

The law of res judicata in effect at the time of the prior judgment in this case, La. R.S. 13:4231, provided as follows:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

In the case sub judice, the object or thing demanded in the first suit and the cause of action for injunction are the same as in the current motion to enforce the permanent injunction judgment; that is, the right of the owner of the property to peaceably possess and use the property as Mr. Tolmas was using it at that time, as offices. This use included, but was not expressly limited to, ingress and egress from Veterans Highway.

Indeed, in her ruling herein, the trial judge noted “it appears what the plaintiffs are requesting is the use of property for offices. It’s very specific in here.”

Having heard expert testimony on the issue, the trial court concluded, “the court is going to enforce the permanent injunction against the parish of Jefferson barring the parish of Jefferson from interfering with the peaceful possession of Morning Park, LLC and its use of the property for offices.”

UThis testimony was by David Halpern, a local attorney and real estate investor, who was accepted as an expert by the parish in the field of real estate development, land use and financial transactions with respect thereto. He reviewed the circumstances of the permanent injunction as compared to the situation in Jefferson Parish at the time and was of the view that Mr. Tolmas was concerned that his property was being treated differently from other properties on Veterans.

I suggest that the majority fails to give credence to the trial court’s determination that this injunction was very specific with respect to an office building. In my view, this ruling is not subject to de novo review which seems to have been the approach of the majority. It must be shown to be clearly wrong, which I contend the majority has failed to accomplish.

I conclude this case is not merely about shells and a simple loss of a nonconforming use in a zoning case, but is a larger matter involving the right of the usage of private property where the parish governing authority, after its complaints about the usage of the property at issue, in the face of judicial attack, consented to a permanent injunction which trumped their zoning ordinance.

As the Supreme Court pointed out in the per curiam granting the writ, reversing the fifth circuit’s earlier ruling herein and transferring the case to this court:

The underlying issue presented in this case is whether property along a major thoroughfare in Metairie, Louisiana, currently zoned residential, may be occupied commercially because of a permanent injunction secured by the current landowner’s ancestor in title preventing |Bthe defendant Parish of Jefferson from enforcing the zoning regulations.

Thus, I conclude that the injunctive compromise is superior to and supersedes the zoning ordinance, and respectfully dissent.

      . The fifth circuit originally decided this matter in Tolmas v. Parish of Jefferson, 2011-492 (La.App. 5th Cir.12/29/11), 80 So.3d 1260. On rehearing, the fifth circuit denied a motion to recuse a member of the appellate court panel. The Louisiana Supreme Court reversed the ruling on the motion to recuse, vacated the decision of the fifth circuit, and transferred the case to this court to be heard anew. See Tolmas v. Parish of Jefferson, 2012-0555 (La.4/27/12), 87 So.3d 855.

      . The Parish's answer stated: "That plaintiff's property is residential property and the means provided for ingress and egress are more than adequate to serve the said property." However, there was no reconventional claim to enjoin the use of the property for the existing commercial activity.

      . We say apparently, as it appears from a plaintiff's brief in the record that testimony was taken at that time. (We have not been favored with minutes.) There is no transcript of that hearing, although there is a transcript of a later motion to tax costs.

      . Former La. C.C. art. 2286 was redesignated as La. R.S. 13:4231 by Acts 1984, No. 331, § 7, effective January 1, 1985.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    In re Medical Review Panel of Mae D. BROWN. Patricia Wilson on Behalf of Mae D. Brown, Decedent v. Touro Infirmary.
    Nos. 2011-CA-1824, 2011-CA-1825.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Joseph M. Bruno, Jr., Bruno & Bruno, LLP, New Orleans, LA, for Plaintiff/Appellant.

      Franklin D. Beahm, A. Rebecca Wil-more, Beahm & Green, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

| jThis appeal is taken from a judgment rendered in favor of Touro Infirmary dismissing the plaintiffs claims for medical malpractice with prejudice.

Facts

On November 19, 2004, Mae Brown, a 220 lb. female paraplegic, was admitted to Touro for rehabilitation reconditioning following a T-6 resection procedure. While a patient in Touro’s rehabilitation unit, Ms. Brown suffered a transverse fracture to her right tibia. The plaintiff contends that the incident which caused the injury occurred on December 14, 2004.

There are two versions of the December 14, 2004 incident, in which Ms. Brown was found on the floor. According to Gail Thomas, CNA, she was passing Ms. Brown’s room and witnessed her falling from her wheelchair. She immediately went to assist and gently lowered her to the floor on her buttocks with her legs extended in front of her. Ms. Thomas then called for assistance and Ms. Brown was transferred to her bed. Ms. Thomas claimed that she reported the |2incident to the charge nurse Patricia Pickens, who recorded it in Ms. Brown’s chart.

The notation in Ms. Brown’s medical chart suggests a different scenario and reads:

Reported by staff that patient had to be lowered to floor while attempting to transfer from wheelchair to bed. Reported that legs were extended in front of patient while lowered to the floor on buttocks. Reported that patient was assisted back to wheelchair and into bed with additional help from staff. Did not initially complain of pain but now voices complaint of pain to the area just below right knee with palpation. No complaints of pain with range of motion.

Sometime thereafter Ms. Brown complained of severe leg pain and was initially treated with an ice pack and placed in an immobilizer. Later, an x-ray revealed that Ms. Brown had suffered a fractured tibia. In late December 2004, Ms. Brown had surgery to repair the fracture.

Procedural History

Ms. Brown filed a complaint with the medical review panel on July 18, 2005, claiming that she suffered a traumatic fracture while being transferred without sufficient assistance from her wheelchair to her bed. A medical review panel convened on August 27, 2007, and unanimously found that Touro had not breached the standard of care in conducting the transfer. Subsequently, a petition for damages was filed in Civil District Court for the Parish of Orleans. The trial court conducted a one day bench trial on May 23, 2011 and rendered judgment in favor of Touro on July 5, 2011, finding that the plaintiff failed to establish that Touro had breached the applicable standard of care. This appeal followed.

On appeal the plaintiff asserts three assignments of error: 1) the trial court committed manifest error in finding that Touro complied with its own standard of care; 2) the trial court committed legal error in failing to apply the standard of care |¡¡as defined by Touro’s nursing staff, Gail Thomas; and 3) the trial court committed legal error by not qualifying Elizabeth Lambeth, RN as an expert.

Standard of Review

In Louisiana it is well established that a plaintiff asserting a medical malpractice claim must establish, by a preponderance of the evidence, the applicable standard of care, the breach of that standard of care, and a causal connection between the breach of care and the patient’s injury. Pfiffner v. Correa, 94-0924, 34-0963, 94-0992 (La.10/17/94), 643 So.2d 1228, 1233. According to the trial court’s judgment and reasons for judgment it determined that Ms. Brown was injured during a transfer from her wheelchair to her bed. The trial court further found that Touro’s experts and the Medical Review Panel established the standard of care and that the plaintiff failed to prove a breach of that standard. This Court reviews the trial court’s findings of fact under a manifestly erroneous/clearly wrong standard. Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 5 (La.5/5/09), 9 So.3d 815, 818.

Discussion

At trial, four witnesses were qualified as experts to testify as to the standard of care for patient transfers in a rehabilitation unit. Dr. William Knight, the one expert that was not employed by Touro but was a member of the medical review panel, explained that the rehabilitation staff generally works as a team in assessing a patient’s abilities and determining their course of treatment. He referenced Ms. Brown’s medical chart which indicated that on the day of the incident Ms. Brown had an FIM of 3 or 4 and the transfer orders called for one person with a slide board. Nonetheless he reiterated the opinion of the medical review panel stating |4that a one person transfer without a slide board would be appropriate for a patient with a T6-7 spinal cord injury.

Nurse Pickens, the charge nurse that documented Ms. Brown’s chart after the incident, was also qualified as an expert. During Nurse Pickens’ testimony she admitted that she did not have any independent recollection of the incident, but interpreted the note she had drafted into Ms. Brown’s chart to mean that Gail Thomas had unsuccessfully attempted a transfer of Ms. Brown from the wheelchair to the bed. She further testified that prior to making an entry into the chart she would consult with the staff member and patient involved in the incident.

She stated that the standard of care regarding the transfer of a 220 pound paraplegic that functioned at Ms. Brown’s level from a wheelchair to a bed is by. a one person transfer with a sliding board. When asked if that was the procedure followed by Ms. Thomas on the day of the incident, she simply replied that she would have to rely on her note. The note made no mention of a slide board.

Touro presented two additional experts, Dr. Farokh Contractor, Ms. Brown’s treating physician at Touro, and Nurse Susan Greco. All but Dr. Knight testified that the standard of care for a rehabilitation patient with a FIM of 3 or 4 is a one person transfer with a sliding board. That testimony was consistent with the orders for transfer documented in Ms. Brown’s medical records.

After the one day trial, the trial court adopted the medical review panel’s standard of care and further found that the plaintiff had failed to establish that Touro deviated from that standard of care. In its reasons for judgment the trial court specifically stated, “The Medical Review panel unanimously found ... the attempt to transfer the patient from the wheelchair to the bed with the assistance of one person and without the use of a sliding board is appropriate with regard to a T6-7 paraplegic.” On the record before this Court, we cannot find a reasonable Rbasis for such a conclusion. Ms. Brown’s medical chart clearly indicated that a slide board be used when transferring her to and from the bed or the wheelchair. Three of the experts that testified worked for Touro and cared for Ms. Brown during her rehabilitation stay. They all established the standard of care for Ms. Brown given her weight and disability rating. Thus, we find the trial court was manifestly erroneous in adopting the standard of care set forth by Dr. Knight and the medical review panel.

We find that the plaintiff established the standard of care, the breach of that standard and the causal connection of the breach to the injury by a preponderance of the evidence. A review of the record establishes that there was a failed transfer by Ms. Thomas that was conducted without the use a slide board, which by the testimony of experts, Nurse Pickens, Dr. Contractor, and Nurse Greco was a breach of the standard of care employed by Tou-ro. We further find that the Ms. Brown’s fall to the floor was the only traumatic event that occurred prior to her complaining of severe pain in her leg. Accordingly, the trial court’s judgment is reversed.

Damages

Upon determining that the trier of fact is clearly wrong, the appellate court is authorized to render any judgment which is just, legal and proper. LSA-C.C.P. Art. 2164. “Courts of appeal may award damages when the trial court initially rejects plaintiffs demands and where the record contains sufficient proof of damages.” Broussard v. Med. Protective Co. 06-331, p. 4 (La.App. 3 Cir. 2/21/07), 952 So.2d 813, 818. When the initial award of damages is made at the appellate level, the award should reflect an amount which is just compensation for the damages revealed by the record. Id.

RMS. Brown’s daughter, Patricia Wilson, testified at trial regarding her mother’s injury. Mrs. Wilson was her mother’s caregiver and stated that in late December 2004, when she was bathing her mother she removed the immobilizer from her leg and noticed extreme swelling, and her mother complained of severe pain. Her mother’s condition caused Mrs. Wilson to bring her to the hospital. At the hospital she met the orthopedic surgeon Dr. Linda Thompson. After examining Ms. Brown, Dr. Thompson admitted her to the hospital, and Ms. Brown was scheduled for surgery. Mrs. Wilson claimed that even though the surgery was successful, her mother complained of pain in her leg for several months during- her recovery and occasionally complained of discomfort through 2007.

Dr. Thompson, Ms. Brown’s orthopedic surgeon, testified that Ms. Brown came to her with x-rays that indicated she had a fractured right tibia. She further stated that Ms. Brown complained of terrible pain in her right leg. Ms. Brown was admitted into the hospital and underwent surgery the following day. The surgery to correct the fracture called for a large metal plate and screws to hold the bone in place. Dr. Thompson saw Ms. Brown in her office approximately two weeks following the surgery to remove the stitches. At that visit the doctor noted that Ms. Brown had no pain and was doing well.

In accordance with the evidence presented in the record, we find just compensation for Ms. Brown’s injury and subsequent pain and suffering to be $65,000.00 in general damages and $24,183.00 in special damages.

Conclusion

For the reasons discussed, we reverse the trial court’s judgment dismissing the plaintiffs claims and render judgement in favor of Patricia Wilson on behalf of Mae D. Brown and against Touro Infirmary in the amount of $65,000.00 in general damages and $24,188.00 in special damages with interest from date of |7the filing of the complaint with the medical review board until paid. Additionally, each party is to bear their own costs.

REVERSED AND RENDERED

LOVE, J., concurs in the results.

      . Ms. Thomas was a certified nurse assistant at the time of the incident.

      . Ms. Brown predeceased the filing of this lawsuit. Patricia Wilson filed the suit on behalf of her deceased mother.

      . FIM is the abbreviation for Functional Independence Measure and is a scale used to assess a patient's physical and cognitive disability.

      . At the time of the incident, Nurse Greco was the director of rehabilitation nursing for Touro.

      . The plaintiff introduced and entered into evidence documented medical expenses in the amount of $24,183.00.


author: PAINTER, Judge.

text:
    Michael David THOMPSON v. Yetta Emma Fernandez CONCINA.
    No. 12-1334.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      Lucretia P. Pecantte, New Iberia, LA, for Defendant-Appellant, Yetta Emma Fernandez Concina.
    Jack L. Simms, Jr., Leesville, LA, for Plaintiff-Appellee, Michael David Thompson.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

| ,Yetta Emma Fernandez Concina (Ms. Concina) appeals a judgment granting a modification of custody designating her ex-husband, Michael David Thompson (Mr. Thompson), as the domiciliary custodial parent of their minor daughter and granting Mr. Thompson the right to relocate with the child to Kansas. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Concina and Mr. Thompson are both soldiers on active duty in the United States Army. They were married and divorced in Hawaii. Of the marriage, one child, Mina Mercedes Thompson (Mina), was born. Mina was one and a half years old at the time the parties divorced on July 23, 2004. The Hawaiian court awarded joint custody of Mina and designated Ms. Concina as physical custodian while both parties were still stationed in Hawaii. On July 17, 2004, Ms. Concina was stationed at Fort Meade, Maryland, and Mina relocated with her. At some point in 2010, both Ms. Concina and Mr. Thompson were stationed at Fort Polk in Vernon Parish, Louisiana. Mina, however, lived in New Jersey with her maternal grandparents and was not brought to Louisiana.

Mr. Thompson filed a petition for recognition and modification of the Hawaiian custody judgment in the Thirtieth Judicial District Court in Vernon Parish. A hearing was held on January 3, 2011; however, Ms. Concina was not present as she was deployed to Afghanistan, but she was represented by an attorney. The trial court recognized and made executory the Hawaiian judgment but modified it by granting Mr. Thompson primary custody of Mina until December 31, 2011, and suspending the child support payments to be made by Mr. Thompson from January 3 to December 31, 2011. The trial court further granted Ms. Concina visitation rights during periods of her military leave. The judgment |2of the trial court specifically stated that the modification was due solely to the deployment of Ms. Concina. After the signing of this judgment, Mr. Thompson went to New Jersey to pick up Mina; however, she was not with her maternal grandparents who were supposed to be caring for her. Mina was with Ms. Conci-na’s sister who refused to give the child to Mr. Thompson. Ms. Concina apparently-returned from Afghanistan at some point during this time. The intervention of police in New Jersey and Vernon Parish was required in order for Mr. Thompson to gain physical custody of Mina.

Mina resided in Vernon Parish with her father, stepmother, and two half-sisters beginning on January 15, 2011. Mr. Thompson filed a second rule for modification of custody, but a hearing on the rule was delayed because both Ms. Concina and Mr. Thompson were deployed overseas. While Mr. Thompson was deployed, Mina stayed with her stepmother at Fort Polk. Mr. Thompson returned to Fort Polk in October of 2011, and Mina remained with him at Fort Polk until January of 2012, when Mr. Thompson relocated with his family, including Mina, in accordance with his new duty station at Fort Leavenworth, Kansas. Ms. Concina is presently stationed in Colorado.

A trial on the custody matter was held June 8, 2012. At that time, the trial court awarded joint custody of Mina to the parties and named Mr. Thompson as the domiciliary custodial parent subject to visitation by Ms. Concina. Mina was to continue to live with Mr. Thompson in Kansas subject to weekend visitation by Ms. Concina as long as a one-week notice was given. Ms. Concina was also given physical custody of Mina for six weeks in the summer. Holiday visitation was to be on a rotating schedule. The relocation to Kansas was allowed. No ruling was made as to child support since there was no evidence presented with respect thereto. Ms. Concina now appeals seeking to have the judgment of the trial court |sreversed and to have Mr. Thompson found in contempt of court. For the reasons that follow, we affirm the trial court’s judgment in its entirety.

DISCUSSION

In this case, the trial court applied the standard set forth by Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986) concerning changes in a considered custody decree, as follows:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Moreover, we note that the trial court is in the best position to evaluate the best interest of the child from its observations of the parties and witnesses such that we must give the trial court’s determination great weight on appeal, and the trial court’s determination as to custody will not be disturbed unless there is a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Ms. Concina asserts that the trial court erred in finding that Mr. Thompson proved by the Bergeron standard that joint custody with Mr. Thompson being designated as the "domiciliary parent would be in the best interest of Mina. We do not agree. The trial court noted the change in circumstances brought about by the numerous deployments and relocations necessitated by the parties’ statuses as active duty military personnel. The trial court further considered Ms. Concina’s actions in attempting to keep Mina from Mr. Thompson. After Mina moved in with her father and stepmother, she was in a stable environment and doing well in school. We find no abuse of discretion in the trial court’s decision to award joint |4custody to both parties and name Mr. Thompson as the domiciliary custodial parent.

Ms. Concina also argues that the trial court erred in granting Mr. Thompson the right to relocate to Kansas with Mina. “If a custodial parent gives the appropriate relocation notice, the proposed relocation “shall not constitute a change of circumstances warranting a change of custody.” La.R.S. 9:355.11 (emphasis added).” Hillman v. Davis, 02-0685 (La.App. 3 Cir. 12/11/02), 834 So.2d 594. But even where the required relocation notice is not given, a modification of custody is not mandatory. Id. At the time of the hearing at issue herein, Mr. Thompson and Mina had already moved to Kansas. Ms. Concina offered no evidence that the move was not in Mina’s best interest.

We further find no error in the trial court’s refusal to find Mr. Thompson in contempt of court.

DECREE

We affirm the trial court’s judgment in its entirety. Costs of this appeal are assessed to Defendant-Appellant, Yetta Emma Fernandez Concina.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Charles D. ISGITT v. STATE FARM INS. CO., et al.
    No. 13-204.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 16, 2013.

      Steven D. Crews, Corkern, Crews & Guillet, L.L.C., Natchitoches, LA, for Defendants/Appellees-State Farm Ins. Co. and Leroy D. Cooley.
    S. Christie Smith, IV, SmithBush, LLP, Leesville, LA, for Plaintiff/Appellant-Charles D. Isgitt.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| t Charles Isgitt, an employee of Lewing Construction, suffered a severe leg injury when he fell from a platform at a construction site on Leroy Cooley’s property. Mr. Isgitt alleges that the trial court erred in granting summary judgment to the defendants, Leroy Cooley and his insurer, State Farm Mutual and Casualty Company.

Specifically, Mr. Isgitt asserts that the trial court erred by ruling that: (1) Mr. Cooley could not be held liable for the contractor’s, Keith Lewing’s, negligence, because Mr. Lewing was an independent contractor; and (2) Mr. Cooley did not act negligently.

I.

ISSUE

We must decide whether the trial court erred in granting summary judgment in favor of Mr. Cooley.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Cooley and his wife entered into a construction contract with Keith Lewing, d/b/a Lewing Construction, to build a new home. Mr. Cooley testified that he knew Mr. Lewing to be an experienced, reputable builder.

Mr. Cooley gave Mr. Lewing permission to use a John Deere tractor which he owned. Mr. Cooley testified that, given Mr. Lewing’s vast experience operating tractors, backhoes, bulldozers, and other types of construction equipment, he did not feel it was necessary to provide Mr. Lewing with [¡.instructions regarding the use of the tractor. In the weeks leading up to the accident, Mr. Lewing and his crew used the tractor on numerous occasions.

On the date of the accident, Mr. Lewing was working on the soffits of the home. Feeling that he did not have sufficient scaffolding to reach the necessary height, Mr. Lewing and two other employees, including Mr. Isgitt, decided tp place a ladder on the tractor platform as a make-shift scaffold to reach the highest point of the house. Once the scaffolding was constructed, Mr. Isgitt climbed onto the platform. Mr. Lewing, who was operating the tractor, lifted the front-end loader to a height sufficient for Mr. Isgitt to reach the soffits. While Mr. Isgitt was on the ladder, Mr. Lewing attempted to leave the tractor’s cab to assist in gathering additional supplies for Mr. Isgitt. As he exited the tractor, Mr. Lewing’s tool belt hit the tractor’s lever, and the loader tilted. Mr. Isgitt fell to the ground and suffered severe injuries to his leg, which ultimately resulted in its partial amputation.

Following the accident, Mr. Isgitt filed a workers’ compensation claim against Mr. Lewing. Subsequently, Mr. Isgitt filed the present action, alleging that the comparative negligence of Mr. Lewing and Mr. Cooley led to Mr. Isgitt’s injuries. Mr. Cooley and State Farm filed exceptions of no right/no cause of action and motions for summary judgment asserting that Mr. Cooley owed no duty to Mr. Isgitt to prevent Mr. Isgitt’s employer, Mr. Lewing, from using the tractor in the manner that ultimately resulted in Mr. Isgitt’s injuries. The trial court entered judgment in favor of the defendants, and Mr. Isgitt now appeals.

Jain.

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 a genuine issue of material fact exists 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 present evidence showing 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 issue of material fact. Id. If the non-mover fails to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id.

Liability of Mr. Cooley as a Property Owner

Under Louisiana law, a principal is generally not liable for the offenses committed by an independent contractor while performing its contractual duties. Loftus v. Kuyper, 46,961 (La.App. 2 Cir. 3/14/12), 87 So.3d 963. Liability of the principal to an employee of the independent contractor for injuries sustained by the employee while performing the contract is limited by the application of this principle. This rule is subject to two exceptions. First, the principal may not avoid | ¿liability for injuries resulting from an ultra-hazardous activity by hiring out the work to an independent contractor. The second exception arises when the principal reserves the right to supervise or control the work of the independent contractor or gives express or implied authorization to an unsafe practice. Ewell v. Petro Processors of La., Inc., 364 So.2d 604 (La.App. 1 Cir.1978), writ denied, 366 So.2d 575 (La.1979).

An activity is considered ultra-hazardous if three conditions are present: the activity is related to land or some other immovable; the activity causes the injury and the defendant is directly engaged in the injury causing activity; and the activity can cause the injury even when conducted with great prudence and care. Davis v. Ins. Co. of North America, 94-698 (La.App. 1 Cir. 3/3/95), 652 So.2d 531, writ denied, 95-840 (La.5/5/95), 654 So.2d 334. The parties do not contend that no safe method existed through which the job could have been performed. Thus, the ultra-hazardous exception to non-liability of the principal does not apply in this case.

The first part of the second exception arises when the principal reserves the right to supervise or control the work of the independent contractor. Here, Mr. Cooley contracted with Mr. Lewing to build his new home. Mr. Cooley had no contractual relationship with Mr. Isgitt, and he did not supervise or exercise any control over Mr. Isgitt or his employer. Indeed; Mr. Cooley was not present at the job site on the day of the accident. We conclude that Mr. Cooley does not fall into this part of the second exception.

The second part of the second exception arises when the principal gives express or implied authorization to an unsafe practice. Mr. Isgitt alleges that Mr. Cooley was aware of, and consented to, the loader being used as a work |5pIatform as it was on the day of the accident. The evidence does not support his claim. Indeed, Mr. Isgitt testified that the date of the accident was the first day that the tractor had been used in such a manner, and Mr. Cooley was not present at the site on the day of the accident. Moreover, Mr. Isgitt testified that, to his knowledge, Mr. Cooley did not assent to using the tractor as a platform for a ladder. Thus, the evidence supports Mr. Cooley’s claim that the day of the accident was the first time that the tractor had been used in such an unsafe manner. We find that Mr. Cooley is not liable for the actions of his independent contractor.

Independent Negligence

As an alternative theory of recovery, Mr. Isgitt alleges that Mr. Cooley acted negligently by: (1) failing to provide the tractor’s owner’s manual to Mr. Lewing and (2) consenting to the tractor’s unsafe use. We find no merit in Mr. Isgitt’s allegations.

(1) The Owner’s Manual

Mr. Isgitt alleges that Mr. Cooley was negligent in not providing the owner’s manual to Mr. Lewing. Mr. Isgitt’s argument is akin to the failure to warn arguments that often arise in product liability law. We find, however, that it has no place here. The evidence overwhelmingly suggests that even if Mr. Cooley had personally handed the owner’s manual to Mr. Lewing, Mr. Lewing would have disregarded it. Mr. Lewing identified himself as a sophisticated user of tractors, and he owned a similar tractor to the one at issue in this case. Indeed, Mr. Lewing testified that, “There’s nothing [Mr. Cooley] could have told me that I didn’t already know [about the tractor].” Moreover, Mr. Lew-ing testified that he knew the safety features of a John Deere tractor, and he knew that the owner’s manual | Jikely stated that an operator should not lift persons in the loader. Despite this knowledge, and without Mr. Cooley’s direction, Mr. Lew-ing used the tractor’s loader as a work platform.

In product liability cases where the sufficiency of warning is an issue, the supreme court has held that no duty exists to warn of an inherent danger that should be well-known to a sophisticated user of the product. Hines v. Remington Arms. Co., Inc., 94-455 (La.12/8/94), 648 So.2d 331. In owners’ manual cases, where the manufacturer fails to give an adequate warning, a presumption arises that the user would have read and heeded such warnings. Gauthier v. McDonough Power Equip., Inc., 608 So.2d 1086 (La.App. 3 Cir.1992). That presumption is rebutted, however, if the manufacturer produces evidence to show that the warning or instruction would have been futile. Id. “An essential element of a cause of action based on failure to adequately warn of a product’s danger is that there must be a reasonable relationship between the omission of the manufacturer and the injury.” Id. at 1089. In Gauthier, the owner of a riding lawn mower that injured the child operating it, testified that he would not have observed any warning placed on the mower itself or altered his course of action. A panel of this court agreed with the jury’s finding that the manufacturer did not breach its duty to warn of the danger of a child’s operation of the mower.

We find that Gauthier is instructive. It is clear from the testimony that no amount of warning from Mr. Cooley, or anyone else, would have prevented Mr. Lewing from using the tractor as he did. Mr. Cooley was nowhere near the site of the accident when it happened, and we find that he was not negligent in failing to warn Mr. Lewing of the potential danger that ultimately resulted.

| n(2) Express or Implied Consent

As discussed previously, nothing in the record suggests that Mr. Cooley consented to the tractor being used as a work platform with a ladder leaning against the house. Mr. Cooley was not present at the scene on the day of the accident, and Mr. Isgitt testified that Mr. Cooley was not involved in the decision to put the ladder on the loader platform or to use the tractor as a work platform. Thus, we find that Mr. Cooley did not negligently give consent to use the tractor in such an unsafe manner.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court. Costs of this appeal are assessed against Charles Isgitt.

AFFIRMED.


text:
    Leon ROY v. SCHILLING DISTRIBUTING COMPANY, INC., et al.
    No. 13-242.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 16, 2013.

      Janice Hebert Barber, Jennifer B. Valois, Barber Law Firm, Lafayette, LA, for Plaintiff/Appellant Leon Roy.
    Renee C. Willis, Johnson, Rahman & Thomas, Baton Rouge, LA, for Defendants/Appellees Louisiana Workers’ Compensation Corporation and Schilling Distributing Company, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|, Leon Roy appeals from a judgment of the Office of Workers’ Compensation (OWC), finding that the termination of indemnity benefits was proper by the defendants-appellees, employer Schilling Distributing, Inc. and its insurer, Louisiana Workers’ Compensation Company (LWCC). For the following reasons, we affirm in part and reverse in part the judgment of the OWC.

I.

ISSUES

We must decide:

(1) whether the OWC was clearly wrong in failing to address the conversion of benefits;
(2) whether the OWC manifestly erred in finding that supplemental earnings benefits were properly terminated; and
(3) whether the OWC abused its discretion in denying penalties and attorney fees to the claimant for arbitrary and capricious termination of benefits.

II.

FACTS AND PROCEDURAL HISTORY

In June 2010, fifty-three-year-old Leon Roy, a warehouseman who repackaged damaged cases for the defendant beer distributor, sustained a back and neck injury when a rack containing the product fell on him. LWCC began paying temporary total disability benefits (TTDs) immediately. Mr. Roy went to his employer’s occupational clinic, then saw orthopedist Dr. John Schutte, who ordered an MRI which revealed a disc bulge at L2-3 and a disc protrusion at L5JS1.2 After a steroid injection failed and Mr. Roy developed radicu-lopathy, Dr. Schutte sent him to neurologist Dr. Ricardo Leoni for evaluation.

In November 2010, Dr. Leoni recommended a microdiscectomy at L5-S1, indicating that Dr. Schutte would be available if a fusion was required.

LWCC approved the surgery, and Dr. Leoni sent Mr. Roy to Med South Cardiovascular Institute of the South for cardiac clearance. Mr. Roy’s echocardiogram and nuclear stress test were abnormal. The cardiologist, Dr. Michael McElderry, wanted an angiogram in order to complete his assessment. Dr. McElderr/s request to LWCC for an angiogram was denied, and the surgery was cancelled in January 2011.

At the end of March 2011, the nurse/ case manager for LWCC, Kimberly Sanders, scheduled a conference with Dr. Leoni without notifying Mr. Roy, who was unrepresented at the time. Via telephone conference, she asked Dr. Leoni what his medical plan would be if Mr. Roy did not have the surgery, whether Mr. Roy was at maximum medical improvement (MMI) and what restrictions there would be without the surgery. Dr. Leoni replied that there was no medical plan if Mr. Roy did not have the needed surgery, that he would be at MMI, and that sedentary duty would be his permanent restriction without the surgery.

LWCC converted Mr. Roy’s benefits from TTDs to supplemental earnings benefits (SEBs) on April 2, 2011, paying him monthly instead of weekly.

Buster Fontenot, a vocational rehabilitation counselor, met with Mr. Roy in May. Mr. Roy had obtained counsel, and the meeting took place in his attorney’s office.

In July 2011, LWCC again denied authorization for the angiogram, indicating in writing that it was a non-related medical expense. Mr. Roy’s attorney | responded with attached case law regarding coverage of the medical testing and explained that Mr. Roy did not have a cardiac condition or cardiac history.

Pursuant to LWCC advice in its correspondence, Mr. Roy went to the charity hospital facility on two occasions and was put on the hospital’s list for a non-emergency angiogram. He was never called.

In September 2011, Buster Fontenot submitted ten (10) jobs to Dr. Leoni for his approval. Dr. Leoni answered a verification form, indicating that Mr. Roy had reached MMI, that he would require further diagnostic testing or medical treatment, that he was released, and that he could return to some type of employment. In October, 2011, Dr. Leoni approved nine (9) of the ten (10) jobs submitted to him by the vocational counselor. Dr. Leoni had not seen Mr. Roy for eleven months since recommending the surgery in November 2010.

The vocational counselor sent Dr. Leo-ni’s job reviews to Mr. Roy’s attorney in late October, 2011.

LWCC terminated Mr. Roy’s SEBs as of October 18, 2011, stating that all of the jobs approved by Dr. Leoni paid at least 90% of Mr. Roy’s pre-injury wages of $7.55 an hour.

In May of 2012, due to Dr. Leoni’s retirement from surgery, Dr. Patrick Juneau, who had provided a second medical opinion (SMO), became Mr. Roy’s choice of neurosurgeon. Dr. Juneau agreed with Dr. Leoni’s diagnosis and sought surgical clearance by the cardiologist for the micro-discectomy at L5-S1.

In June 2012, LWCC agreed to pay for the diagnostic portion of the angiogram. In August, Dr. Juneau recommended an L5 bilateral decompressive laminectomy with bilateral foraminotomies and a left L5-S1 microdiscectomy, followed by an instrumented fusion at the L5-S1 level.

| ¿The parties entered into a partial consent judgment in September, wherein LWCC authorized the angiogram and agreed to reinstate Mr. Roy’s benefits when he was cleared for surgery. The consent judgment contained a waiver of penalties and attorney fees on the issue of the angiogram.

The issue of termination of benefits, along with any attendant penalties and attorney fees, went to trial in October 2012. The OWC found that one (1) of the ten (10) jobs located by the vocational rehabilitation counselor was suitable and available under the criteria enunciated in Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. It found that Mr. Roy’s benefits were properly terminated by LWCC and that no penalties and attorney fees were due.

On appeal, Mr. Roy asserts that the OWC judgment should be reversed. He asserts that he was due TTD benefits from the date of the accident forward; that his benefits were wrongfully converted to SEBs in April 2011; that all benefits were wrongfully terminated in October 2011; and that he is due penalties and attorney fees for the wrongful acts. In the alternative, he asserts that the vocational rehabilitation efforts did not meet the minimum criteria and that SEBs should have continued from the time of termination in October 2011 through the time that benefits were reinstated in December 2012.

JiH.

STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. Banks, 696 So.2d 551. In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Id.

IV.

LAW AND DISCUSSION

April 2011 Conversion of Benefits

Mr. Roy contends that his benefits were wrongfully converted from TTDs to SEBs in April 2011, before the termination of all benefits six months later in October 2011. He asserts that the release by Dr. Leoni was conditional under Stelly v. Health South Rehabilitation, 03-171 (La.App. 3 Cir. 7/2/03), 854 So.2d 960, that he was not released at all by his orthopedist, Dr. Sehutte, and that the trial court erred in failing to consider that the benefits at issue were TTDs, not SEBs. |sThe defendants argue that wrongful conversion of benefits was not asserted before trial and, therefore, not properly before the OWC or this court.

The record reveals that the conversion of benefits and the release by Dr. Leoni were not asserted in Mr. Roy’s 1008, his amended 1008, or his pre-trial statement; nor was the issue asserted at trial. More specifically, there were thirteen stipulations prior to trial. Stipulation number six stated that without surgery, Dr. Leoni placed Mr. Roy at MMI with sedentary restrictions, though the statement did not include the term “release” as argued by the defendants. However, after the stipulations were read, the OWC next specifically clarified with the parties that the “sole issue” for trial was the termination of benefits after October 18, 2011, and penalties and attorney fees in connection with it. This was in accord with the pretrial statement. Pursuant to the hearing rules promulgated in accordance with La.R.S. 23:1310.1, La.Admin.Code, Title 40, Chapter 62, Subchapter A, § 6201 states that: “Only those issues listed in the pretrial statements shall be litigated at trial. No new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties.”

Mr. Roy’s attorney raised the issue of conversion of benefits in her post-trial brief, but it was not addressed by the OWC orally or in the judgment. While we have many concerns with Dr. Leoni’s release and the manner and time-line in which it was obtained, we cannot find that the OWC was clearly wrong for 17failing to consider an issue that was not raised and argued at trial after he specifically askéd what the issues were in advance, just “to make clear” for the record and for his decision-making process. Had the workers’ compensation judge decided to address the issue based upon the post-trial brief and the evidence presented during trial, he, or we, could have invoked La.R.S. 28:1317, which provides in part that the workers’ compensation judge “shall not be bound by technical rules of evidence or procedure” when the evidence is competent and objective. La.R.S. 23:1817(A). See Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858 So.2d 830. Under the present facts, however, we find no manifest error on the part of the workers’ compensation judge in not addressing the issue of the April 2011 conversion of benefits.

Termination of All Benefits as of October 18, 2011

Mr. Roy contends that the OWC manifestly erred in finding that his benefits were properly terminated as of October 18, 2011, based upon the vocational rehabilitation results of counselor Buster Fontenot. We agree. Fontenot located ten jobs which he sent to Dr. Leoni for approval. Dr. Leoni signed off on nine of the jobs, which included customer service representative for a tractor supply company, cashier at Murphy USA, custodian at McDonalds, which Fontenot withdrew at trial, airport car transporter for Hertz Rent A Car, Pop-A-Lock technician, U-Haul customer service representative, service writer at an | ^automobile repair department, hospital courier, and customer service/lawn and garden position at Lowe’s in Crowley. The only job not approved by Dr. Leoni was go-cart technician at Gatti Town Family Fun Center.

Of these nine positions, the trial court eliminated eight, finding that three were filled when submitted to Mr. Roy, one was pulled by Fontenot at trial, two did not satisfy Banks, 696 So.2d 551, because they required lifting fifty pounds, one was not suitable because it required a high school diploma or the equivalent, and one failed because of insufficient evidence of availability. The only job found appropriate by the OWC was the Lowe’s job in Crowley. The workers’ compensation judge opined that the Lowe’s job met the defendants’ burden of proof under the Banks criteria where it paid a minimum of $7.50 an hour; it was located in Crowley, while Mr. Roy lived in Carenero; the doctor’s approval of the job was evidence that Mr. Roy was physically capable of performing it; it fell within Mr. Roy’s age, experience, and education; and Mr. Fontenot testified that it was still available on October 25, 2011, when he sent notification to Mr. Roy’s attorney.

|flWe find that the record does not reflect a reasonable basis for the OWC’s finding in favor of the defendant on the criteria of physical capability and availability. More specifically, the OWC relied on Dr. Leoni’s approval of the Lowe’s job as proof of Mr. Roy’s physical ability. However, Dr. Leoni also approved two jobs that the OWC ruled out because they required lifting of fifty pounds. The Lowe’s job description, prepared by Fontenot, who admittedly creates all percentages in his descriptors, stated that the job required the employee to frequently (meaning 34-66% of the time) stand, walk, reach, push, pull, “handle,” and to lift and carry up to twenty pounds. The job duties included assisting customers in “carrying and loading purchases,” pushing carts, cleaning outside, organizing, watering, and arranging plants for display. The “Physical Demand Level” of the Lowe’s job was “Light,” as was the duty level of all ten jobs located by Fontenot; however, “Light” was also the description of Mr. Roy’s job at Schilling, the one he was disabled from resuming.

Dr. Leoni clearly gave Mr. Roy “sedentary” restrictions. He opined in 2010 that Mr. Roy had a ten percent disability rating with or without surgery, before his condition worsened bilaterally and a fusion was required. In September of 2010, Dr. Leo-ni reported that Mr. Fontenot had pain all across his lower back, down the right leg and into the top of the foot. He could not walk without pain. Sitting and standing also increased the pain. Neither physical therapy nor injections had helped. Dr. McElderry reported that he could not put Mr. Roy on a treadmill because he could not walk. Fontenot admitted at trial that he did not even look for sedentary positions for Mr. Roy.

Fontenot’s universal and somewhat cavalier response to questions about the categories and job descriptions, including information in his licensing |inmanual, was that he did not trust them, that most jobs these days were light duty because equipment and other employees were available to assist every other employee. At the same time, he admitted that a nurse at one hospital will work extremely hard, while one at another hospital will have an easy job. He also stated that he himself got fat working on an off-shore oil rig. His reasoning was inconsistent, and his answers were non-specific, often evasive, and non-responsive to the questions asked. He testified that his “job developers” sent him many of the jobs and that he had provided Mr. Roy’s attorney with his entire file, omitting nothing. Yet he had no documentation from the job developers, no knowledge of who they talked to in getting their information, no dates on any of the job descriptions, and no time sheets, which he later said were in the possession of his wife, who did his billing.

Fontenot did not know whether Mr. Roy had a good driving record or a GED. He did not know where Mr. Roy lived, though he had been there for forty years; or whether he could operate a forklift, run a cash register, which was required by Lowe’s and most of the jobs, or operate a computer. Fontenot testified that anyone can learn a cash register in five or ten minutes, and anyone who can use a smart phone can operate a computer; but he admitted to not knowing whether Mr. Roy had a computer or a smart phone. Mr. Roy did not have a computer. Prior to working for the defendant, Mr. Roy had basically washed cars, run errands, and performed lawn maintenance at Hub City Ford for eighteen years.

With regard to the availability of the Lowe’s job, Fontenot testified that his wife had dragged him to Lowe’s the night before he sent the jobs to Dr. Leoni on September 15, 2011, and that he personally saw the job on the bulletin board and looked it up on the store’s computer. Later, when specifically asked l^about followup, he responded that it was “policy” to follow up within two days of sending the jobs to the doctor and again when receiving the doctor’s response. He admitted, however, that he had no documentation on availability or follow-up. The defendant’s own attorney then asked him if he had any recollection or information to indicate whether any of the jobs were still available on October 25, 2011, after Dr. Leoni signed off on them and they were sent to Mr. Roy’s attorney.

Fontenot responded: “Okay. The Lowe’s, I know was available because, again, I checked on the — the bulletin board and the computer.” He did not mention whether his wife had fortuitously dragged him to Lowe’s again on October 24 to do his follow-up on the bulletin board in the exact way he had discovered the job over a month earlier in September. The record does not reflect a reasonable basis for finding that Fontenot’s testimony on availability qualified as competent evidence.

Additionally, the $7.50 per hour wage at Lowe’s was described by Fontenot as “DOE,” an acronym which means “depending on experience,” which is speculative under Banks. Accordingly, we reverse the OWC judgment in favor of the defendants’ termination of benefits on October 18, 2011, and order that they be re-instated as of that date.

Penalties and Attorney Fees

Mr. Roy contends that he is entitled to penalties and attorney fees for the below-minimum vocational rehabilitation services resulting in the arbitrary and capricious reduction and then termination of Mr. Roy’s benefits.

The applicable statute in this case is La.R.S. 23:1201(1), which governs the discontinuation of benefits on October 18, 2011, and which provides |12for attorney fees and penalties if the termination is found to be arbitrary, capricious, or without probable cause. “Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown v. Texas-LA Cartage, 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890 (citing Black’s Law Dictionary 104, 211 (6th ed.1990)).

Here the termination of benefits was based upon the vocational rehabilitation efforts and results of counselor Fontenot, who met with Mr. Roy on one occasion, did no skills testing, and apparently never called to follow up.

Fontenot did, however, give Mr. Roy an occupational preference questionnaire and work application log to complete, in order to gauge what kind of work Mr. Roy leaned toward, and he did write a couple of follow-up letters regarding these forms. Mr. Roy, who was still waiting for surgery, and who had never been told that Schilling was not taking him back, just kept waiting. His elderly mother was also in the hospital with cancer; and he did not send in the requested forms. Fontenot, therefore, went through some of the motions and based his results upon Dr. Leoni’s inattentive release and job approvals.

In conclusion, we find that the questionable vocational efforts were far less than laudable under the standards enunciated in Banks, 696 So.2d 551, Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993), Livings v. Langston Companies, Inc. /Continental Bag Div., 96-636 (La.App. 3 Cir. 12/5/96), 685 So.2d 405, and Maxie v. Brown Industries, Inc., 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La.10/6/95), 661 So.2d 469. The communication efforts, attention to medical records and details, testing, and follow-up were minimal, and sometimes missing altogether. We are reluctant, | iShowever, to find that the conduct was arbitrary and capricious under La.R.S. 23:1201(1) and the current set of facts. Accordingly, we affirm the denial of penalties and attorney fees.

V.

CONCLUSION

Based upon the foregoing, we find no manifest error in the OWC’s failure to address the conversion of benefits in April 2011; we reverse the judgment as to termination of benefits and order the defendants to reinstate Mr. Roy’s SEBs as of the date of termination, October 18, 2011; and we affirm the denial of penalties and attorney fees.

All costs are assessed to Schilling Distributing Company, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . After trial and after the angiogram, Mr. Roy was reportedly cleared for surgery, and his wage benefits were reportedly reinstated in December 2012.

      . Temporary total disability benefits are authorized at 66.66% of an employee's weekly wage "[f]or any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages.” La.R.S. 23:1221 (l)(a). If the employee is not working, in order to receive TTDs, he must show "by clear and convincing evidence, unaided by any presumption of disability” that he is physically unable to work. La.R.S. 23:1221(l)(c). An award of TTDs "shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required.” La.R.S. 23:1221(l)(d).

      . Supplemental earnings benefits are authorized at 66.66% of the difference between the employee's average monthly pre-injury wage and his average monthly post-injury wage when he is able to work, but unable to earn "wages equal to ninety percent or more of wages at time of injury.” La.R.S. 23:1221(3)(a)(i). SEBs are payable monthly. Id. "When the employee is entitled to monthly [SEBs] pursuant to this Subsection, but is not receiving any income from employment or self-employment and the employer has not established earning capacity pursuant to R.S. 23:1226, payments of [SEBs] shall be made in the manner provided for in R.S. 23:1201(A)(1).” La.R.S. 23:1221(3)(a)(ii).

      . The defendant’s nurse/case manager scheduled a conference with Dr. Leoni on March 31, 2011, while Mr. Roy was waiting for an angiogram so he could have the surgery recommended in November 2010, over four months prior. The nurse scheduled the conference without notice to Mr. Roy, who did not have an attorney. She asked Dr. Leoni, and she reported, only specific questions such as a "would be” MMI status and "would be” restrictions, without the surgery. Mr. Roy’s TTD benefits were converted two days later on April 2, even before Dr. Leoni’s written confirmation of the phone conversation. A week later, Mr. Roy hired an attorney, who informed the defendant of the requirement for vocational rehabilitation services if SEBs were instituted, but pointed out the road block of Mr. Roy’s having to truthfully answer a 1208 questionnaire, thereby revealing to a potential employer that he was waiting for surgery recommended by two neurosurgeons. The vocational rehabilitation meeting did not occur until May 26, 2011. The term "release” did not appear until September 2011, when Dr. Leoni simultaneously answered "yes” to the necessity for further medical testing or treatment, and “yes” to a release, though he had not seen Mr. Roy since the prior November. Perhaps because Mr. Roy’s SEB payments were the near equivalent of his previous TTD benefits, and perhaps because the termination of all benefits occurred after he filed suit in October 2011, the issue of the conversion was lost to the overriding issue of termination.

      . The Louisiana Supreme Court in Banks, 696 So.2d 551, concluded that an employer could discharge its burden of proving job availability by establishing, at a minimum and by competent evidence:
      (1) the existence of a suitable job within claimant's physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
      (2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
      (3)an actual position available for that particular job at the time that the claimant received notification of the job's existence.

        Banks, 696 So.2d at 557-58. The court explained that "suitable job" meant one that the claimant could physically perform and one that fell within the limits of his age, experience, and education. Id. at 558.


author: PETERS, J.

text:
    PARK WEST CHILDREN’S FUND, INC. v. TRINITY BROADCASTING NETWORK, INC., et al.
    No. 13-444.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 16, 2013.

      Hunter W. Lundy, Daniel A. Kramer, Lundy, Lundy, Soileau & South, Lake Charles, LA, for Plaintiff/Appellant, Park West Children’s Fund, Inc.
    Lance J. Kinchen, Carroll Devillier, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LÁ, for Defendants/Appellees, Trinity Broadcasting Network, Inc., International Christian Broadcasting, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   PETERS, J.

|,The plaintiff in this litigation, Park West Children’s Fund, Inc., appeals from the trial court’s dismissal of their claims against the defendants, Trinity Broadcasting Network, Inc. and International Christian Broadcasting, Inc., based on the lack of personal jurisdiction over the defendants. For the following reasons, we reverse the trial court judgment, render judgment rejecting the exception, and remand the matter for further proceedings.

DISCUSSION OF THE RECORD

On July 5, 2012, Park West Children’s Fund, Inc. (Park West), a California nonprofit corporation, filed suit against Trinity Broadcasting Network, Inc., a California non-profit corporation (TBN), and International Christian Broadcasting, Inc., a Georgia non-profit corporation (ICB), seeking a declaratory judgment establishing the ownership of a Bell JetRanger helicopter titled in Park West’s name. Park West obtained service on both TBN and ICB by use of the Louisiana Long-Arm Statute, La.R.S. 13:3201.

Neither TBN nor ICB answered the petition. Instead, on August 31, 2012, they responded by filing a declinatory exception of lack of personal jurisdiction together with a memorandum with attachments. Park West filed its own memorandum with attachments on November 12, 2012, and the trial court set the exception for a hearing on December 3, 2012. At that hearing, neither side offered any evidence in support of their respective positions and merely argued the content of the pleadings and attachments to their memoranda. After hearing the argument, the trial court issued oral reasons for judgment in favor of TBN and ICB and dismissed Park West’s suit. The trial court executed a written judgment to this effect on December 17, 2012, and Park West then perfected this appeal. In its appeal, Park West asserts three assignments of error:

|J. The trial court’s findings that the defendants lacked minimum contacts with Louisiana was[sic] manifestly erroneous.
II. The trial court’s findings that it would be “unfair to force defendants to litigate” in Louisiana was[sie] manifestly erroneous.
III. The trial court committed legal error in sustaining defendants’ decli-natory exception of lack of personal jurisdiction.

OPINION

A court’s lack of personal jurisdiction over a defendant may be raised as a decli-natory exception pursuant to La.Code Civ.P. art. 925(A)(5). If the grounds raised by the declinatory exception can be removed by amendment, the trial court “shall order the plaintiff to remove them within the delay allowed by the court[.]” La.Code Civ.P. art. 932(A). However, the remedy if the grounds cannot be removed by amendment is dismissal of the plaintiffs “action, claim, demand, issue, or theory[.]” La.Code Civ.P. art. 932(B).

As noted in SteriFx, Inc. v. Roden, 41,383, pp. 5-6 (La.App. 2 Cir. 8/25/06), 939 So.2d 533, 536-37:

Due process requires that, in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103 (La.1991).
The due process test has evolved into a two-part test, the first part being the “minimum contacts” prong, which is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). The nonresident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. Ruckstuhl v. Owens Corning Fiberglas Corporation, 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999). By requiring that a defendant must have purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, the requirement ensures that he will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person. de Reyes v. Marine Management & Consulting, Ltd., supra; Alonso v. Line, 2002-2644 (La.5/20/03), 846 So.2d 745, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003).
The second part of the due process test centers around the fairness of the assertion of jurisdiction. Hence, once the plaintiff meets his burden of proving minimum contacts, “a presumption of reasonableness of jurisdiction arises” and “the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” de Reyes v. Marine Management and Consulting, Ltd., supra. In determining this fundamental fairness issue, the court must examine (1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Ruckstuhl v. Owens Corning Fiberglas Corporation, supra.
Appellate courts when reviewing a trial court’s legal ruling on a declinato-ry exception of lack of personal jurisdiction apply a de novo standard. Walker v. Super 8 Motels, Inc., 2004-2206 (La.App. 4th Cir. 12/7/05), 921 So.2d 983. However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review. Diamond v. Progressive Security Insurance Company, 2005-0820 (La.App. 1st Cir. 3/24/06), 934 So.2d 739; Peters v. Alpharetta Spa, L.L.C., 2004-0979 (La.App. 1st Cir. 5/6/05), 915 So.2d 908.

These concepts have been legislatively embodied by La.R.S. 13:3201, Louisiana’s long-arm statute, which “[extends] personal jurisdiction of the Louisiana courts over nonresidents to comport with the due process clause of the Fourteenth Amendment of the United States Constitution.” Hunter v. Meyers, 96-1075, p. 3 (La.App. 1 Cir. 3/27/97), 691 So.2d 318, 320. In other words, La.R.S. 12:3201 and the limits set forth in International Shoe and de Reyes are co-extensive.

14Park West utilized the Louisiana Long-Arm Statute to establish jurisdiction of the non-resident defendants TBN and ICB, and the sole inquiry is whether Louisiana’s exercise of jurisdiction comports with constitutional due process. See Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188 (La.1987). With regard to the evidentiary burden of proof, the fifth circuit stated in Phillip v. Home Insurance Co., 95-406, p. 6 (La.App. 5 Cir. 2/27/96), 671 So.2d 943, 947, that:

La.C.C.P. art. 931 provides that, on the trial of the peremptory exception pled at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. Evidence is “any species of proof, or probative matter, legally presented at the trial, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.” Black’s Law Dictionary 498 (5th ed.1979); Ustica Enterprises, Inc. v. Costello, 434 So.2d 137, 139 (La.App. 5th Cir.1983). When no evidence is presented at the hearing on the exception, then the objection must be decided upon the facts alleged in the petition. Younger v. Marshall, 618 So.2d 866, 871 (La.1993). However, when evidence is presented, then the issue must be decided on the evidence submitted.

Additionally, “[e]vidence not properly and officially offered and introduced shall not be considered, even if it is physically placed in the record.” Adams v. Allstate Ins. Co., 01-1244, p. 6 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169, 1173.

Despite the fact that neither party introduced evidence in support or in opposition to the jurisdiction exception, the trial court considered the content of the attachments filed in the record with the memoranda of the parties and rendered judgment based on the content of those attachments. In doing so, the trial court considered the second-prong factors set forth in SteriFx, Inc., 939 So.2d at 536, and | ¿concluded that “it would be unfair to force” TBN and ICB to litigate the matter in Louisiana. We need not consider the trial court’s factual findings on a manifest error basis because we find that it committed legal error in considering the content of the exhibits not filed into evidence. Such a finding of legal error requires a de novo review on appeal. Id. at 535.

Considering only the facts alleged in the pleadings, we find that Park West met its burden of establishing minimum contacts and that TBN and ICB failed to establish that the assertion of jurisdiction is unfair. In its petition for declaratory relief, Park West asserted that it and both defendants are nonresident defendants. Park West further asserted that it performs humanitarian activities all over the world, but that it has its principal business establishment in Calcasieu Parish, Louisiana.

The petition asserted that in 2005, TBN and/or ICB donated $354,000.00 to Park West for the specific purpose of purchasing a helicopter for use in its relief missions. In support of that assertion, Park West attached to its petition a September 23, 2005 announcement, which appeared on TBN’s website wherein TBN documented a trip by Paul Crouch, its founder, to South Louisiana in support of victims of Hurricane Katrina. The announcement detailed TBN’s relationship to Park West; its donation of the helicopter to Park West, which was then being used for relief efforts along the Louisiana Gulf Coast; Crouch’s personal view of the devastated area; and his call to others for contributions to help in the recovery. Not only did the announcement give TBN credit for donating the helicopter and for its presence in Louisiana, but it also stated that TBN had been active in the recovery | (¡process before Crouch’s arrival by previously providing 10,000 Bibles and 85,000 toys for distribution in the affected area.

In its petition, Park West also asserted that the helicopter had been purchased, registered, and maintained in Louisiana, but that it had also been used throughout the United States, Central America, and the Caribbean in humanitarian efforts; and that TBN and/or ICB had worked in conjunction with Park West on some of those efforts. This assertion was supported by a letter from Crouch to Don Tipton, Chief Executive Officer of Park West, dated May 15, 2012, which starts with the statement that “[i]t has been our joy to work with you, Sondra and Friendships through the years. Together we have done important things for the Kingdom of God by bringing emergency relief goods to needy people in different areas of the world.” Another exhibit attached to the original petition, an e-mail from Tipton to TBN’s attorney, dated May 1, 2012, references activity by Park West in delivering supplies for TBN from its Louisiana facility to various locations in the Caribbean, as well as the storage of a “medical container” belonging to TBN at Park West’s Louisiana facility. It also references generators sent by TBN to Park Place’s Louisiana facility, which had been transported to Haiti for relief efforts there.

Considering only the pleadings before us, we conclude, as apparently did the trial court, that Park Place overcame its burden of establishing minimum contacts for jurisdiction purposes and that the burden shifted to TBN and ICB to establish that it would be unfair for Louisiana to assert jurisdiction. Because TBN and ICB submitted no evidence on this point, we find that TBN and ICB failed in their burden of proof.

^DISPOSITION

For the foregoing reasons, we reverse the trial court judgment granting the exception of lack of personal jurisdiction in favor of Trinity Broadcasting Network, Inc. and International Christian Broadcasting, Inc. and dismiss the claims of Park West Children’s Fund, Inc., and we render judgment in favor of Park West Children’s Fund, Inc. dismissing the exception. We tax all costs of this appeal to Trinity Broadcasting Network, Inc. and International Christian Broadcasting, Inc. and remand the matter to the trial court for further proceedings.

REVERSED, RENDERED, AND REMANDED.

      . We note that on appeal that TBN acknowledged that the affidavit of David C. Loe, its acting general counsel, was not totally accurate when he stated that TBN was not "licensed to do business in Louisiana.” In brief to this court, TBN acknowledged that it is a subsidiary of Trinity Christian Center of Santa Ana, Inc., which has been registered with the Louisiana Secretary of State and qualified to do business in this state since April 18, 1988. However, since Mr. Loe’s affidavit was never admitted into evidence, we need not consider this inaccuracy.

      . Because the trial court based its reasons for judgment on the second prong of the due process analysis, we can only conclude that the trial court found that Park West met the minimum contacts prong of the analysis.