author: CARTER, C.J.

text:
    Darrin SMITH v. LAFARGE NORTH AMERICA, L.L.C.
    No. 2012 CA 0337.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Mark D. Plaisance, Thibodaux, LA, Denise A. Vinet, Baton Rouge, LA, for Plaintiff/Appellant, Darrin Smith.
    Joseph M. Guillot, New Orleans, LA, for Defendant/Appellee, Lafarge North America, L.L.C.
    Before CARTER, C.J., GUIDRY and GAIDRY, JJ.
   CARTER, C.J.

^Claimant, Darrin Smith, appeals a determination of the Office of Workers’ Compensation (OWC) that lumbar surgery was not reasonable or medically necessary. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Darrin Smith was involved in a motor vehicle accident on Highway 25 in Folsom, Louisiana, on April 24, 2007, while in the course and scope of his employment with Lafarge North America, L.L.C. (Lafarge). Smith was driving a ready-mix cement truck, which flipped several times after Smith attempted to avoid colliding with a vehicle merging into his lane of travel. Smith was extracted from the cement truck, which came to rest upside down in a ditch, and air-lifted to St. Tammany Hospital for treatment. Following the accident, Smith’s employer, Lafarge, paid and continues to pay medical and indemnity benefits to Smith.

Despite medical treatment following the April 24, 2007 accident, Smith continued to complain of constant pain in his neck, shoulder, and back. Smith’s treating physician, neurosurgeon Dr. Bradley Bartholomew, recommended Smith undergo lumber surgery, specifically, a percutaneous discectomy. Lafarge requested a second medical opinion (SMO) from neurosurgeon Dr. Najeeb Thomas, who opined that Smith was not a candidate for lumbar surgery. The OWC appointed neurosurgeon Dr. James Tran to perform an independent medical examination (IME) due to the conflicting opinions concerning the reasonableness | sand necessity of the lumbar surgery. After the IME, Dr. Tran did not recommend Smith undergo lumbar surgery, but instead suggested that Smith receive radiofrequency ablation treatments in his lumbar spine.

As a result, Smith filed a Disputed Claim for Compensation on May 12, 2010, seeking authorization for the percutaneous discectomy, as recommended by Dr. Bartholomew, his treating physician, as well as costs, penalties, and attorney’s fees. La-farge filed an answer to Smith’s claim, denying the necessity of the surgery based on the recommendations of Dr. Thomas and Dr. Tran.

The dispute proceeded to trial and was heard before the OWC on October 17, 2011. The parties stipulated that the only issue before the OWC was whether Smith was entitled to undergo the lumbar surgery as recommended by Dr. Bartholomew. Following the submission of the parties’ post-trial briefs, the OWC took the case under advisement. On November 18, 2011, the court signed a written judgment, ruling that Smith carried his burden of proof that he suffered back injury as a result of the April 24, 2007 accident; however, Smith did not carry his burden of proving that the lumbar surgery recommended by Dr. Bartholomew was reasonable and medically necessary.

Smith now appeals.

| ¿DISCUSSION

The issue in this case is whether the workers’ compensation judge (WCJ) erred in giving more weight to the testimony of the evaluating physicians versus the treating physician for the purpose of recommending lumbar surgery for Smith.

In workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the manifest error-elearly wrong standard. Dawson v. Terrebonne General Medical Center, 2010-2130 (La.App. 1 Cir. 5/19/11), 69 So.3d 622, 626. For an appellate court to reverse a WCJ’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the WCJ and that the record establishes that the finding is clearly wrong. Dawson, 69 So.3d at 626.

In workers’ compensation cases, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Dawson, 69 So.3d at 627. Even though an appellate court may feel its own evaluation and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Dawson, 69 So.3d at 627. Furthermore, where two permissible views of the evidence exist in a workers’ compensation case, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Dawson, 69 So.3d at 627.

When faced with the question of whether to accept the opinion of a non-treating physician specialist over the opinion of a treating physician specialist, this circuit has previously held that the trial court ultimately retains the discretion to weigh and consider such competing testimony, despite any applicable | ¿presumptions. Ponthier v. Vulcan Foundry, Inc., 95-1343 (La.App. 1 Cir. 2/23/96), 668 So.2d 1315, 1317-18.

Following the April 24, 2007 accident, Smith sought medical attention from his primary care physician, Dr. Charles Du-combs. Smith complained of head, shoulder, and lower back pain. Dr. Ducombs ordered a CT scan of Smith’s head and a lumbar MRI, which was performed on May 29, 2007. Due to the nature of Smith’s back injuries, Dr. Ducombs referred Smith to Dr. Brett Chiasson, an orthopedic surgeon.

In June 2007, Smith saw Dr. Chiasson, who prescribed pain medication and physical therapy. Smith had additional followup appointments with Dr. Chiasson from July through November 2007. Dr. Chias-son consistently opined that Smith was not a candidate for lower lumber spine surgery. In November 2007, Dr. Chiasson recommended Smith make an appointment with neurosurgeon Dr. John Nyboer; however, on the recommendation of his attorney at the time, Smith first saw neurosurgeon Dr. Bradley Bartholomew on May 15, 2008. Based on Smith’s physical exam and a review of the MRI scans, Dr. Bartholomew recommended Smith receive cervical facet blocks to his spine.

Smith continued to complain of constant pain in his head, shoulders, and lower back. Dr. Bartholomew then recommended Smith undergo a lumbar disco-gram. After the results of the discogram revealed positive results in certain portions of Smith’s spine, at an appointment in March 2009, Dr. Bartholomew | (¡offered Smith several lumbar surgical options, including a percutaneous discectomy.

On July 17, 2009, Smith was involved in a non-work related motor vehicle accident. Following the accident, Smith again visited Dr. Bartholomew. Smith averred the preexisting pain in his neck and back was intensified by the recent car accident. Dr. Bartholomew ordered Smith to undergo a second lumbar MRI, which was performed on August 18, 2009. Dr. Bartholomew reviewed the films and noted no evidence of disc herniations, no spinal stenosis, and no narrowing of the spinal canal. Dr. Bartholomew continued to offer to perform a percutaneous discectomy on Smith’s lumbar spine.

At Lafarge’s request for a SMO, Smith was examined by neurosurgeon Dr. Thomas on September 22, 2009. Dr. Thomas reviewed Smith’s 2007 and 2009 MRI films, noting that Smith’s films were fairly normal and that he suffered from degenerative disc disease in his cervical and lumber spine. Dr. Thomas indicated that Smith suffered cervical and lumbar strains from his injuries, but at the time of his examination, Smith was at maximum medical improvement. Dr. Thomas opined Smith was not a surgical candidate.

Because of conflicting medical opinions regarding the reasonableness and necessity of Smith’s lumbar surgery, the OWC appointed Dr. Tran to perform the IME. On April 12, 2010, Dr. Tran examined Smith. He opined that Smith was a candidate for radiofrequency treatment in his lumbar spine; however, Dr. Tran did not recommend Smith undergo the lumbar surgery as offered to Smith by his treating physician, Dr. Bartholomew.

|7On April 21, 2010, Smith tripped and fell over a hose as he was clocking in for work at Lafarge. Following this accident, Smith attended numerous physical therapy appointments and continued to complain of constant lower back, shoulder, and neck pain, and problems walking, standing, sitting, climbing, and dressing. A third lumbar MRI was performed on April 29, 2010. The MRI showed no disc herniations or spinal canal stenosis.

While the physicians did not testify at the October 17, 2011 trial, their respective medical records pertaining to Smith were introduced. Based on their physical examinations of Smith and a review of Smith’s medical history and records, Dr.' Thomas and Dr. Tran opined that surgical intervention was not warranted for Smith, specifically, the percutaneous discectomy recommended by Dr. Bartholomew. Although the physicians were qualified to give an opinion as to the nature and treatment of Smith’s injury, the WCJ had the discretion to evaluate all of the testimony and to determine which physician’s opinion was most credible. This determination cannot be disturbed unless found to be manifestly erroneous. Dawson, 69 So.3d at-627-628.

The WCJ balanced Dr. Bartholomew’s opinion, as Smith’s treating physician, against the opinions of the evaluating physicians, Dr. Thomas and Dr. Tran. Based on the evidence presented in this case, we find the WCJ did not abuse her discretion in refusing to give Dr. Bartholomew’s opinion greater weight than the opinions of the other physicians who examined Smith. Consequently, we conclude that the WCJ did not err in denying Smith’s request for lumbar surgery.

[ ¡¡CONCLUSION

For the foregoing reasons, the judgment of the OWC in favor of Lafarge North America, L.L.C. is affirmed. All costs of this appeal are assessed against the claimant, Darrin Smith.

AFFIRMED.

      . Additionally, there is a tort suit regarding Smith's April 24.2007 accident pending in the Twenty-Second Judicial District Court in St. Tammany Parish, Louisiana.

      . A percutaneous discectomy, also spelled “diskectomy,” refers to the medical procedure whereby an intervertebral disc, or "disk,” is removed, in whole or in part. "Percutaneous” indicates that the procedure is performed through the skin. The procedure is generally performed to unpinch, or decompress, a nerve and/or the spinal cord. See Ida G. Dox, Gilbert M. Eisner, June L. Melloni & B. John Melloni, Attorney’s Illustrated Medical Dictionary D38, P20 (West 1997).

      . Radiofrequency ablation treatment refers to the removal or eradication of nerve tissue using the frequency of electromagnetic radiation, in the range between audio frequencies and infrared frequencies. When directed at the lumbar spine, the radiofrequency treatment can minimize pain and irritation in the facet joints. See Dox, Attorney’s Illustrated Medical Dictionaty at A2, R2.

      .Smith filed an Amended Disputed Claim for Compensation on July 29, 2011, requesting (1) a change in orthopedic physician because at that time, Smith believed his orthopedic surgeon, Dr. Brett Chiasson, no longer took workers' compensation patients; and (2) a change in pain management doctor from Dr. Mohamed Elkersh to Dr. Sandra Weitz. Smith filed a Second Amended Disputed Claim for Compensation on September 20, 2011, amending Section 15(c) to add the following issues; (1) failure to pay bills timely; and (2) penalties and attorney's fees.

      . The results of the MRI, performed at Premier MRI 4 U, indicated that Smith’s lumbar spine had normal alignment, vertebral body height, and marrow signal. Smith suffered from an L2-3 mild circumferential bulge with mild right neural foraminal narrowing, an L3-4 mild circumferential bulge with mild left neural foraminal narrowing, a circumferential disc bulge at L4-5 with mild bilateral neural foraminal narrowing and anterior the-cal sac deformity with no evidence of spinal canal stenosis, and a circumferential disc bulge of L5-S1 with mild right neural forami-nal narrowing.

      .The results of the MRI indicated that Smith's lumbar spine had mild degenerative changes. There was mild foraminal narrowing at L3-4 and L4-5 secondary to disc bulging and facet disease; no spinal stenosis; no evidence for disc herniations.

      . Dr. Thomas saw Smith again on July 6, 2010. Dr. Thomas reiterated his assessment that Smith was not a surgical candidate.

      . Smith attended physical therapy at Anato-mix Physical Therapy on April 30, 2010, May 4.2010, May 5, 2010, May 7, 2010, May 12, 2010, and June 21, 2010.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    STATE of Louisiana v. Kelly B. COCKERHAM.
    No. 2012 KA 0465.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 14, 2012.
    Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, LA, for Appellee State of Louisiana.
    Mary E. Roper, Baton Rouge, LA, for Appellant Defendant, Kelly B. Cockerham.
    Before PARRO, HUGHES, and WELCH, JJ.
   WELCH, J.

1 ¡¡The defendant, Kelly B. Cockerham, was charged by bill of information with one count of attempted simple burglary, in violation of La. R.S. 14:62 and 14:27. He pled not guilty and, following a jury trial, was found guilty as charged. He timely moved for a new trial; however, the record does not reflect that the trial court ruled on that motion. The trial court sentenced the defendant to six years imprisonment at hard labor, and the State then filed a multiple offender bill. After a hearing on the multiple offender bill, the trial court adjudicated the defendant a fourth-felony habitual offender, vacated the previous sentence, and resentenced him to twenty years at hard labor without benefit of parole, probation, or suspension of sentence, to be served concurrently with any other sentence being served.

The defendant now appeals, arguing five assignments of error, as follows:

1. The evidence presented was insufficient to prove that the defendant was the perpetrator of the crime for which he was convicted.
2. The trial court erred in failing to rule on the defendant’s motion for new trial before sentencing him.
3. The trial court abused its discretion in giving the defendant an excessive sentence.
4. The trial court erred in finding the defendant to be a fourth-felony offender when the multiple offender bill only prayed that he be found to be a third-felony offender.
5. The trial court erred in denying parole eligibility to the defendant when La. R.S. 15:529.1 provides only that the sentence is to be served without probation or suspension of sentence.

For the following reasons, the enhanced sentence imposed is vacated and this matter is remanded to the trial court.

FAILURE TO RULE ON MOTION FOR NEW TRIAL

The defendant assigns as error the trial court’s failure to rule on his motion for new trial. Immediately following the conclusion of the jury trial, the defendant | sorally moved for a new trial and advised the court that he would submit a written motion that would include the specific reasons. The defendant subsequently filed a written motion that set forth several grounds for a new trial and he alleged that the verdict was contrary to the law and evidence. The trial court set the issue for a hearing on June 1, 2011. However, at the June 1 hearing, the trial court failed to rule on the motion for new trial, and sentenced the defendant to six years imprisonment at hard labor. At the same hearing, the State filed a multiple offender bill. A hearing on the multiple offender bill was held on October 5, 2011, at which time the trial court vacated the original sentence and resentenced the defendant to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The record reflects that at no time did the trial court render a ruling on the defendant’s motion for new trial. Furthermore, in response to a request from this Court, the record contains a written reply from the West Baton Rouge Parish Deputy Clerk of Court that confirms there was no ruling on the defendant’s motion for new trial.

Louisiana Code of Criminal Procedure Article 858 provides that a motion for new trial must be filed and disposed of before sentence. The failure of the trial court to rule on this motion is an error to be considered under La.Code Crim. P. art. 920(2) and requires that the sentence be vacated. See State v. Camou, 633 So.2d 357, 358 (La.App. 1st Cir.1993); State v. Stevenson, 525 So.2d 281, 282 (La.App. 1st Cir.1988); State v. Magee, 496 So.2d 562, 563 (La.App. 1st Cir.1986). The defendant has alleged no specific prejudice arising out of the apparent failure of the trial court to rule on the motion. Nevertheless, it is preferred, and the |4statutory provisions require, that the trial judge rule on the merits of a motion for a new trial before imposing sentence on the defendant. See State v. Randolph, 409 So.2d 554 (La.1981) (per curiam); Magee, 496 So.2d at 563. Accordingly, we vacate the sentence imposed on the defendant and remand this case to the trial court for a hearing and ruling on his motion for new trial. We pretermit discussion of all remaining assignments of error raised by the defendant in his appeal.

For the foregoing reasons, the defendant’s habitual offender sentence is vacated, and this matter is remanded to the trial court for a hearing and ruling on the defendant’s motion for new trial. In the event of an unfavorable ruling on the motion, and resentencing, we reserve the defendant his right to appeal his conviction and sentence once, more to this court.

HABITUAL OFFENDER SENTENCE VACATED; REMANDED TO TRIAL COURT FOR HEARING AND RULING ON MOTION FOR NEW TRIAL AND FURTHER PROCEEDINGS AS NECESSARY.

      . The defendant cited the following grounds for a new trial: he was made to speak in court over the objection of counsel, thus improperly implicating his Fifth Amendment rights; improper evidence of other crimes was placed before the jury; the prosecution made remarks to the jury that were neither relevant nor germane to the question of guilt or innocence, but were designed to inflame the passions of the jury and/or to appeal to the jury’s sympathy; and, during voir dire, there were challenges for cause made by the defendant that should have been granted by the trial court, and the defendant exhausted all of his peremptory challenges.


author: PARRO, J.

text:
    STATE of Louisiana v. Marco Antonio THOMAS a/k/a Jesus De Leon.
    No. 2012 KA 0470.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 14, 2012.

      Richard J, Ward, Jr., District Attorney, Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, LA, for Appellant State of Louisiana.
    Jason L. Chatagnier, Smith & Chatagnier, LLC, Baton Rouge, LA, for Defendant-Appellee Marco Antonio Thomas a/k/a Jesus De Leon.
    Before PARRO, HUGHES, and WELCH, JJ.
   PARRO, J.

12Pefendant, Marco Antonio Thomas a/k/a Jesus De Leon, and two codefen-dants were charged by bill of information with one count of unauthorized entry of a critical infrastructure, a violation of LSA-R.S. 14:61. Defendant pled not guilty and filed a motion to quash and a motion for preliminary examination. After a hearing on these motions, the trial court sustained defendant’s motion to quash the bill of information and found no probable cause to charge him with the offense. The state now appeals, assigning as error the trial court’s sustaining of defendant’s motion to quash and its finding of no probable cause at the preliminary examination. For the following reasons, we affirm the trial court’s sustaining of defendant’s motion to quash and pretermit discussion of its finding of no probable cause.

FACTS

At the hearing on the preliminary examination, the state elicited testimony alleging that defendant and his two codefen-dants are Mexican citizens who illegally entered the United States and purchased false identification documents in order to secure work. They are alleged to have used these false identities on February 14, 2011, to gain employment with a scaffolding company doing business at Shintech Louisiana, LLC, a plant that manufactures polyvinyl chloride products in Plaquemine, Louisiana.

MOTION TO QUASH

With respect to the defendant’s motion to quash, the state argues that the trial court erred in quashing the bill of information on the basis that it failed to cite sufficient facts as to whether a crime had been charged.

The motion to quash is essentially a mechanism by which to raise pretrial pleas or defenses, i e., those matters which do not go to the merits of the charge. State v. Beauchamp, 510 So.2d 22, 25 (La.App. 1st Cir.), unit denied, 512 So.2d 1176 (La.1987);s see LSA-C.Cr.P. arts. 531-34. It is treated much like an exception of no cause of action in a civil suit. Beauchamp, 510 So.2d at 25. In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bill of particulars and determine, as a matter of law and from the face of the pleadings, whether or not a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. Id.

In general, an appellate court reviews a trial court’s rulings under a deferential standard with regard to factual and other trial determinations, but the legal findings of a trial court are subject to a de novo standard of review. See State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 751. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id. As discussed below, the trial court quashed the bill of information in this case based strictly upon a legal finding. Therefore, we review this ruling under a de novo standard.

An accused shall be informed of the nature and cause of the accusation against him. LSA-Const. art. I, § 13. That requirement is implemented by LSA-C.Cr.P. art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of thé essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the . citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

The place of the commission of the offense need not be alleged in the indictment unless the place of commission is essential to the offense. LSA-C.Cr.P. art. 469.

In the instant case, defendant’s bill of information charged him with committing the offense of unauthorized entry of a critical infrastructure,

by the intentional entry, without authorization into any structure or onto any premises, belonging to another, that constitutes in whole or in part a 14critical infrastructure that is completely enclosed by any type of [sic] chemical manufacturing facilities; refineries; electrical power generating facilities; water intake structures and water treatment facilities, natural gas transmission compressor stations; LNG terminals and storage facilities; and transportation facilities, such as ports, railroad switching yards, and trucking terminals.

This language tracks closely, but not exactly, with the language of the unauthorized entry of a critical infrastructure statute. See LSA-R.S. 14:61(A).

Defendant raised purely factual issues as grounds for his motion to quash, alleging that he had no criminal motive in making entry into the Shintech plant and that his entry into the plant was not actually “without authorization.” Thus, technically, defendant’s memorandum in support of his motion to quash had arguments that are inappropriate for consideration in a motion to quash, because they speak to defendant’s factual guilt or innocence. However, the trial court granted defendant’s motion to quash on legal grounds, independently of the arguments set forth in this memorandum, stating:

Secondly, I read the Bill of Information, okay, and if you. read it, it says these three guys committed the offense of, and then it cites the statute. It cites no facts whatsoever, which it should cite, okay. And, therefore, the Bill of Information does not cite facts sufficient enough to charge the crime.

The state now argues that defendant’s bill of information was not deficient and, if it was deficient, the trial court should have allowed the state to amend the bill of information instead of quashing it outright.

In reviewing the bill of information filed against defendant, we find that it is defective in at least two respects. First, the bill of information fails to allege that the structure allegedly entered by defendant was completely enclosed by any type of physical barrier. See LSA-R.S. 14:61(A). However, this omission appears to be the result of a simple miswriting of the statutory elements, and it does not rise to the level of a defect sufficient to render the bill of information invalid or insufficient. See LSA-C.Cr.P. art. 487(A).

Secondly, and more importantly, the bill of information fails to allege with any | .^degree of specificity the place where the alleged offense occurred. Instead, the bill of information simply cites the boilerplate language of LSA-R.S. 14:61 and fails to clarify what type of critical infrastructure defendant allegedly entered without authorization.

There is decidedly little jurisprudence addressing the issue of when the place of the commission of the offense is essential to the offense. In State v. Yanes, 09-929 (La.App. 5th Cir.4/27/10), 40 So.3d 245, 250, the Fifth Circuit noted that a defendant’s bill of information properly charged him with unauthorized entry of a place of business, a violation of LSA-R.S. 14:62.4, when it alleged that he made unauthorized entry into “Samuel Brown Pediatrics.” That court did not further discuss whether such a specific designation was necessary, but it noted that the bill also “plainly, concisely, and definitely state[d] the essential facts constituting the offense charged.... ” Id. The Second Circuit has stated that “[t]he place of the crime is necessary to charge an offense such as burglary where the element of unauthorized entry into a structure or similar thing must be proved,” but “[t]he place of the crime is not an element of such crimes as murder, rape, robbery.” State v. Lee, 465 So.2d 806, 809 (La.App. 2nd Cir.), writ denied, 468 So.2d 572 (La.1985).

In the instant case, we find that the place of commission of defendant’s alleged offense of unauthorized entry of a critical infrastructure was an essential fact that should have been included in the bill of information. Without including in the bill of information the fact that defendant allegedly entered Shintech, a chemical manufacturing facility, the state would theoretically have the unfair ability at trial to prove that defendant entered any of the other enumerated types of critical infrastructures in order to prove his guilt. This lack of specificity would impair defendant’s ability to prepare a defense. Thus, we conclude that the trial court did not err in granting defendant’s motion to quash.

However, in its brief, the state further argues that even if the location of the alleged unauthorized entry should be included in the bill of information, it should be allowed to amend the bill of information to include this element. When an indictment |fifails to conform to the requirements of Chapters 1 and 2 of Title XIII of the Code of Criminal Procedure, which includes Article 469’s reference to the place of commission of an alleged offense, “the court may permit the district attorney to amend the indictment to correct the defect.” See LSA-C.Cr.P. art. 532(2) (emphasis added). Similarly, “[b]e-fore the trial begins the court may order an indictment amended with respect to a defect of substance.” See LSA-C.Cr.P. art. 487(A) (emphasis added). The permissive “may” in these respective articles indicates that the trial court is under no obligation to allow amendment of a defective bill of information before ruling on the motion to quash. This conclusion is underscored by the final provision of LSA-C.Cr.P. art. 538, which allows a trial court to order that a defendant be held in custody or that his bail be continued for a specified time, pending the filing of a new indictment. Therefore, we disagree with the state’s argument that the trial court should be compelled to allow the state to amend its defective bill of information under the circumstances of this case.

In sum, we find that the trial court did not err in granting defendant’s motion to quash. The bill of information failed to state with particularity the place of commission of the alleged offense. Further, the trial court was not required to allow the state to amend the bill of information before ruling on the motion to quash. However, we note that because jeopardy has not attached in this case, the state is free to file a new bill of information setting forth all of the elements of the alleged offense, provided it does so within the applicable time limits for institution of prosecution. See LSA-C.Cr.P. arts. 538, 572, 576, and 592.

This assignment of error is without merit.

PRELIMINARY EXAMINATION

The state also argues on appeal that the trial court erred in finding no probable cause after defendant’s preliminary examination hearing and in ordering that defendant |7be released from his bond obligation. Because we have concluded that the trial court did not err in granting defendant’s motion to quash, we pretermit discussion of this assignment of error as it relates to the trial court’s finding of no probable cause at defendant’s preliminary examination hearing. We note that the Second Circuit has acted similarly under comparable circumstances in State v. Walker, 37,493 (La.App. 2nd Cir.8/20/03), 853 So.2d 746, 751, writ granted, 03-2871 (La.3/12/04), 869 So.2d 802, order recalled, 03-2871 (La.7/2/04), 877 So.2d 99.

However, to the extent that this assignment of error is sufficient to raise a claim that the trial court should have ordered defendant to be held in custody or to have his bail continued until the filing of a new bill of information, we would reject any such argument under LSA-C.Cr.P. art. 538. Under this article, the propriety of such an order is within the discretion of the trial court. We note that the evidence presented at defendant’s preliminary examination indicated that defendant would still be subject to federal supervision, pending deportation proceedings, because of an immigration hold that would apply even in the event of his release from state custody. Therefore, we cannot conclude that the trial court abused its discretion in releasing defendant from his bond obligation, even if the state elects to file a new bill of information. However, we reiterate that we make no determination with respect to the trial court’s determination of no probable cause.

SUSTAINING OF MOTION TO QUASH AFFIRMED.

      . The two codefendants are subjects of separate appeals also decided this date. State v. Saul Gomez-Lopez a/k/a Enrique Urbano, 12-0661 (La.App. 1st Cir. 11/2/12) (unpublished opinion), and State v. Jose Alejandro Hernandez-Juarez a/k/a Robert Torres, 12-0473 (La. App. 1st Cir. 11/2/12) (unpublished opinion).

      . The trial court also found no probable cause to detain defendant for reasons similar to those raised in his memorandum supporting his motion to quash.

      . The final provision of Article 538 applies when the trial court has quashed the previous indictment for a reason other than those enumerated in that article. In contrast, the trial court shall order the defendant discharged from custody or bail, as to that charge, when it sustains a motion to quash based on the ground that: 1) the offense is not punishable under a valid statute; 2) trial for the offense charged would constitute double jeopardy; 3) the time limitation for the institution of prosecution or for the commencement of trial has expired; or 4) the court has no jurisdiction of the offense charged. See LSA-C.Cr.P. art. 538.


author: McDonald, j.

text:
    Melvin SPEARS, Jr. v. GRAMBLING STATE UNIVERSITY.
    No. 2012 CA 0398.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 17, 2012.
    Rehearing Denied Jan. 23, 2013.

      E. Wade Shows, Jeffrey K. Cody, Baton Rouge, LA, for Plaintiff/Appellee Melvin Spears, Jr.
    Charles E. Tabor, John M. Madison, Jr., Marjorie F. Amerine, Shreveport, LA, for Defendant/Appellant Board of Supervisors for the University of Louisiana System by and through Grambling State University.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

| gThis is an appeal of a judgment in favor of Melvin Spears, Jr., former head football coach at Grambling State University (Grambling). Mr. Spears was hired by Grambling to be its head coach on January 1, 2005. Mr. Spears had a five-year contract of employment with Gram-bling, with a starting yearly salary of $150,000.00 and incremental increases based on the football team’s performance. During Mr. Spears’ tenure as head football coach multiple incidents occurred that culminated in Mr. Spears being given a letter of termination from Dr. Horace Judson, President of Grambling, on December 18, 2006, stating that Mr. Spears was an at-will employee and that his employment would end on December 31, 2006.

Thereafter, Mr. Spears filed suit against the Louisiana Board of Supervisors for the University of Louisiana System (the Board) on February 8, 2007. Mr. Spears asserted that, despite his successful performance, he was terminated from his position as head coach at Grambling without cause. Mr. Spears asserted that the Board made false statements about him that damaged his reputation, and that the Board’s actions were done for the purpose of harming Mr. Spears, his reputation, and his coaching career, in violation of the abuse of rights doctrine. Mr. Spears asserted he was not given the 60-day advance notice of termination required by his contract, and that at the time of termination he had three years remaining in his employment contract. Mr. Spears prayed for damages in the amount of $13,000.00 per month for the remaining 36 months of his contract. Further, Mr. Spears asserted that Grambling had refused to pay him the wages due, despite his demand, and thus, he asked for 90 days penalty wages, as well as attorney fees.

The Board answered the petition, asserting that it had terminated Mr. Spears with cause. The Board asserted that Mr. Spears had wrongfully administered drug Istests to student football players at Gram-bling; that Mr. Spears had sent letters to some parents informing them that their sons had failed the drug test, although some of those football players had not been drug-tested, and some of them had gotten inconclusive test results; that Mr. Spears had renamed the Grambling training room for persons formerly affiliated with Grambling without following Gram-bling and University of Louisiana System rules, then denied his actions when questioned by Grambling Athletic Director Troy Mathieu; that Mr. Spears caused investigation of the Grambling football program by the NCAA after he allowed a football player to use his vehicle and allowed one or more ineligible football team members to play Alabama A & M in Alabama, causing Grambling to be fined by the NCAA; that Mr. Spears directed Grambling’s football team to continue to score in an unsportsmanlike manner against the Prairie View A&M University football team in a game although Gram-bling was already far ahead in the game; that Mr. Spears made insensitive public comments about Alcorn State University in Mississippi after Alcorn wanted to reschedule its game with Grambling in the wake of Hurricane Katrina in 2005; that Mr. Spears failed to conduct the football program, or himself, in the manner expected of a head coach at a large state university; and other actions and omissions that subjected Grambling to investigations by the NCAA, criticism by national and local media, complaints from parents, complaints from Grambling staff members, and a demoralized football team.

A four-day jury trial was held in this matter in May of 2011. At the close of Mr. Spears’ case, the trial court granted a directed verdict dismissing his abuse of rights doctrine claim. After trial, the jury-returned a verdict rejecting Mr. Spears’ defamation claim, finding that the Board breached its contract with Mr. Spears, and awarding Mr. Spears $449,500.00 for the remainder of his salary under the contract, $11,000.00 in penalty wages, and $139,000.00 in attorney fees. Mr. Spears filed a motion for judgment notwithstanding the verdict, or alternatively, a |4new trial or additur, and the trial court judge granted the motion for additur, increasing the penalty wages award to $54,000.00. The Board is appealing the judgment, and makes the following assignments of error.

1. The trial court committed legal error by sequestering Grambling’s former president, Dr. Horace Judson.
2. The trial court committed legal error by excluding from evidence local newspaper articles showing the bad publicity Melvin Spears actions had generated.
3. The jury committed manifest error by failing to find that Grambling had just cause to terminate Mr. Spears’s employment, despite clear evidence to the contrary.
4. The jury committed manifest error by awarding penalty wages to Mr. Spears.
5. The jury improperly awarded excessive attorneys’ fees to Melvin Spears.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the Board asserts that the trial court abused its discretion in excluding two newspaper articles from evidence. Further, the Board asserts that this ruling tainted the jury verdict, such that the appellate court should conduct a de novo review of the case. The employment contract provided that Gram-bling could fire Mr. Spears for violations of Grambling policies and regulations, which were included in the definition of just cause. The Grambling Unclassified Personnel Handbook provides that “[ajcts which are detrimental to the University are a violation of University policy.” Thus, the Board asserts, if Mr. Spears took any action that was detrimental to Grambling, the university had just cause to fire him. The newspaper articles were evidence that Mr. Spears’ actions were detrimental to Grambling, the Board asserts, because his actions garnered media attention that painted Grambling in a bad light, and they were direct evidence that Mr. Spears’ actions had been detrimental to Grambling.

|fiThe trial court excluded the articles on the basis of lack of foundation and hearsay. However, newspaper articles are self-authenticating documents. Pursuant to La. C.E. art. 902(6), “[ejxtrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to ... [pjrinted materials purporting to be newspapers or periodicals.” Thus, as the newspaper articles were self-authenticating, there was no need for Grambling to lay a foundation to introduce the newspaper articles into evidence. As to the hearsay exception, La. C.E. art. 801(C) provides that hearsay is a statement, other than one made by the declar-ant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. The newspapers were not offered into evidence to prove the truth of the matter, but rather, to show evidence of the adverse impact of Mr. Spears’ actions on Grambling’s reputation. The lack of foundation and hearsay objections should have been overruled by the trial court.

The trial court abused its discretion in excluding the newspaper articles from evidence. However, these newspaper articles were proffered into evidence by the Board and thus, are available to us in our review of the evidence.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, the Board asserts that the jury committed manifest error in failing to find that Gram-bling had just cause to terminate Mr. Spears’ employment, despite clear evidence to the contrary. The employment contract provides in pertinent part:

1.2 Head coach shall be responsible, and shall report, directly to the University’s Director of Athletics (the “Director”), and shall confer with Director or the Director’s designee on all administrative and technical matters. COACH shall also be under the general supervision of the University’s President.
⅜ ⅜ ⅜ ⅝ ⅝
1.4 COACH agrees to represent the University positively in public and private forums and shall not engage in conduct that reflects adversely on the University or its athletic program.
* * * *
9.1 COACH shall abide by the rules and regulations of the NCAA, SWAC and University rules. If found in violation of NCAA regulations, COACH shall be subject to disciplinary or corrective action as set forth in the NCAA enforcement procedures (NCAA Constitution 11.2.1). COACH may be suspended for a period of time, without pay, or the employment of COACH may be terminated if COACH is found to be involved in deliberate and serious violations of NCAA, SWAC and University regulations (NCAA Constitution 11.2.1).
9.2 COACH shall abide by the State of Louisiana Code of Government Ethics, University Policy and Regulations, and the policies and regulations of the University of Louisiana System. In public appearances he shall, at all times, conduct himself in a manner that befits a University official and shall always attempt to create goodwill and a good image for the University as determined by the President.
10.0 Termination
10.1 Either party may terminate this agreement with just cause prior to the expiration of its terms by giving sixty (60) days written notice to the other party. Should the University terminate this agreement without just cause, it shall be liable to COACH for liquidated damages in the amount of the remaining year(s) base salary and incentives at the time of termination under the terms of the agreement. Liquidated damages shall be computed as the number of months or year(s) remaining under the terms of the agreement as specified in Section 2, times the amount of the monthly installments specified in Section 3. The University shall not be liable for any payment of contingent benefits or car allowance past the effective date of termination. The University shall make payments for liquidated damages monthly.
The University may, at its sole option, elect to obtain its release from the obligation to pay COACH any money under this agreement by paying to COACH a lump sum equal to the monthly amount due as specified in Section 3, times the number of months remaining under the terms of the agreement as specified in Section 2; lump sum amount shall be discounted at six percent (6%). The University reserves the right to exercise its option of a lump sum payment at any time during the terms of this agreement. Should COACH’S appointment as Head Football Coach at GSU be terminated during the terms of this agreement, he shall make reasonable efforts to obtain suitable full time gainful employment in the Division 1 coaching profession.
Should COACH secure full time employment of any type, the liquidated damages described in this agreement shall be reduced |7by the amount of income received by him from said employment, as described above shall be cause for the release of the University from any obligation to make further payments.
Should COACH’S employment be terminated for just cause, the University shall not be liable for any payments or benefits specified in this agreement past the effective date of termination. Just cause for termination shall include, but not be limited to, a final conviction of violation of Federal, State, or local laws, sanctions for violations of NCAA or Conference regulations, or violations of University policies and regulations. Just cause shall not include misdemeanor traffic tickets. (Emphasis added.)

The Grambling Unclassified Personnel Handbook, Chapter III, Section E, Professional Conduct and Relations with Clients, provides in pertinent part:

The University is a community of professionals. As such, the University has the obligation to maintain an environment conducive to the sharing and learning of information. Unclassified staff are to conduct themselves in a professional and collegiate manner consistent with being a citizen of the larger University community. Acts which are detrimental to the University environment are a violation of University policy.

The termination letter to Mr. Spears, dated December 18, 2006, provides in pertinent part:

This is to advise you that based on the recommendation of the Athletic Director, your unclassified at-will employment at Grambling State University will officially end at the close of business on December 31, 2006.
Until that time, pursuant to the University of Louisiana Board of Supervisors Policy and Procedures Memorandum FS-II1.XX.-1.VH.C, you are hereby placed on mandatory compensatory leave through December 31, 2006, effective immediately. You must vacate your office today, December 18, 2006.

A thorough review of the record reveals that Mr. Spears was insubordinate to Dr. Judson, in his position as President of Grambling, made public comments that impugned the reputation of Grambling and generated unfavorable publicity, and caused the University to be investigated by the NCAA.

In particular, after Alcorn State University sustained damage from Hurricane Katrina and expressed interest in postponing its scheduled football game against IsGrambling, Mr. Spears publicly made derogatory comments about Alcorn State University for wanting to postpone the game. These negative comments by Mr. Spears created bad publicity and negative attention for Grambling. When Mr. Spears was involved with drug testing the Grambling football team, he sent letters to the parents of team members, which caused concern by the Grambling administration for the privacy rights of the students. When Dr. Judson questioned Mr. Spears about the drug testing, Mr. Spears was defiant about his actions. After Mr. Spears tried to rename the Grambling training facility on his own, without authorization from either the Athletic Director, Troy Mathieu, or Dr. Judson, he was questioned about his actions and was uncooperative with the administration. Thus, we find that the Board clearly had just cause to terminate Mr. Spears from his position as head football coach at Grambling.

However, the Board failed to follow the terms of the contract of employment by failing to give Mr. Spears the required 60 days notice of his termination. Thus, Mr. Spears was owed 60 days wages from the notice of his termination. However, Grambling’s violation of the 60 days notice provision did not give Mr. Spears the right to payment for the remainder of the term of the contract. The jury committed manifest error in awarding Mr. Spears the remainder of his salary for the full term of the employment contract. Thus, we must reduce the award of $449,500.00 in salary for the remainder of Mr. Spears’ contract down to the 60 days wages owed under the contract.

The contract provided for a base salary of $150,000.00 on January 1, 2005. In consideration of certain performance benchmarks, the salary increased. For attaining at least seven wins per season, Mr. Spears’ annual salary increased by $6,000.00 per year at the end of each football season. Further, Mr. Spears was entitled to nonrecurring salary increases (essentially bonuses) for meeting other benchmarks, such as coaching in the Bayou Classic, the State Fair Classic, the | {¡Procter and Gamble Classic, and Division 1A Games, and for winning the SWAC (Southwestern Athletic Conference) Championship.

In Mr. Spears’ motion for judgment notwithstanding the verdict or, alternatively, a new trial or additur, he asserted that he was entitled to 90 days penalty wages at $600.00 per day, or $54,000.00, based on the evidence at trial. However, our review of the evidence shows that this daily rate of pay is too high. Mr. Spears testified at trial that as of January 1, 2007, he would have made a base salary of $156,000.00 and that he would have earned incentives based on the football team’s performance. However, he was terminated from his job effective December 81, 2006; thus, he was not entitled to 2007 earnings for his daily rate of pay calculations.

Mr. Spears did not testify as to his pay in 2006, nor did he enter pay stubs or other evidence into the record to show his rate of pay in 2006. However, in his petition, he asserted that he was paid $13,000.00 per month, which amounts to $156,000.00 per year. A salary of $156,000.00 per year, divided by 365 days per year, amounts to $427.40 per day. Mr. Spears was given notice on December 18, 2006 that his employment would end effective December 31, 2006, and he was paid for the days from December 19 to December 31, 2006, thus he was paid for a total of 13 days after notice of termination. He is owed the remaining 47 days of pay.

Mr. Spears’ daily rate of pay, $427.40, multiplied by 47 days, equals $20,087.80. Thus, we reduce the award of $449,500.00 in salary for the remainder of Mr. Spears’ contract, to the remaining 47 days wages owed under the contract, which totals $20,087.80.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the Board asserts that the trial court committed legal error by sequestering Grambling’s former president, Dr. Horace Judson, who 110was Grambling’s designated representative at the trial, and that the trial court’s sequestration of Dr. Judson is subject to an abuse of discretion standard of review. However, we find that the record clearly shows that the jury committed manifest error in failing to find that Mr. Spears was terminated for just cause, despite the fact that Dr. Judson was sequestered at the trial, thus we find that this assignment of error is moot.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, the Board asserts that the jury committed manifest error by awarding penalty wages to Mr. Spears. The Board relies upon the case of Winkle v. Advance Products & Systems, Inc., 98-694 (La.App. 3 Cir. 10/28/98), 721 So.2d 983, in its argument. In that case the plaintiff, Ms. Winkle, was fired by Advance Products & Systems, Inc., (APS) which timely issued her final paycheck but refused to pay her accrued vacation time. APS withheld the vacation pay on several grounds, including purported offsets and credits. Ms. Winkle asserted she was entitled to carry over certain vacation hours to following years, and as a result, she was entitled to payment for that accrued vacation time upon termination. The trial court found APS owed Ms. Winkle for her earned, but unused vacation time, as this was found to constitute an amount due under the terms of employment, and awarded Ms. Winkle penalty wages under La. R.S. 23:632. Winkle, 721 So.2d at 985.

APS appealed the trial court judgment, and the appellate court reversed the award of penalty wages. The appellate court noted that the penalty wage statute must be strictly construed and may yield to equitable defenses and, as a bona fide dispute existed as to whether Ms. Winkle was entitled to carry over unused vacation, an award of penalty wages was improper. Winkle, 721 So.2d at 990-91.

The Board asserts that in this case, as in Winkle, there was a good faith dispute as to whether Grambling owed Mr. Spears any post-termination pay, thus Lithe jury ■ committed manifest error in awarding Mr. Spears penalty wages. However, this case differs from the Winkle case due to the contract provision that provided that Mr. Spears was entitled to an award of 60 days wages for early termination of the contract. The issue of whether there was just cause to terminate Mr. Spears has no bearing on the entitlement to 60 days wages for early termination of the contract.

Louisiana Revised Statute 23:631A(l)(a) provides for payment of a discharged employee as follows:

Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

Louisiana Revised Statute 23:632 provides for the liability of an employer for failure to pay wages:

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

Based upon La. R.S. 23:632, Mr. Spears was entitled to 90 days penalty wages. Using the daily wage rate of $427.40, multiplied by 90 days, the penalty wage award amounts to $38,466.00. We find that the trial court committed manifest error in awarding 90 days penalty wages of $56,000.00. The penalty wage award of $54,000.00 is reduced to $38,466.00.

| ^ASSIGNMENT OF ERROR NO. 5

In this assignment of error, the Board asserts that the jury awarded excessive attorney fees to Melvin Spears. The jury awarded Mr. Spears $139,000.00 in attorney fees. However, Mr. Spears presented no evidence regarding the amount of attorney fees he incurred in this case. In Blanton v. Malkem Intern. Corp., 628 So.2d 178, 181 (La.App. 2 Cir. 1993), the trial court awarded a former employee attorney fees of $15,465.75 due to an employer’s failure to timely pay wages owed at termination. On appeal, the appellate court reduced the attorney fees award to $10,000.00 after finding no evidence in the record to support the award and finding the legal principles in the case were not unduly complex and the documentation of fees owed was not great. Blanton, 628 So.2d at 184.

In this case, there was no documentation of the attorney fees owed by Mr. Spears, and the legal issues involved in this case were not unduly complex. Thus, an attorney fees award of $139,000.00 is excessive in this case. However, this case did include a four day trial, along with many depositions and motions. Even though no time sheets or evidence were produced as to the time the attorney spent on the case, we can set the attorney fees by examining the record. See Cochran v. American Advantage Mortg. Co. Inc., 93-1480 (La.App. 1 Cir. 6/24/94), 638 So.2d 1235, 1240.

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Rivet v. State, Dept. of Trans, and Dev., 96-0145 (La.9/5/96), 680 So.2d 1154, 1161. These factors are derived from Rule 1.5(a) of 11sthe Rules of Professional Conduct, which require that a lawyer’s fees be reasonable. Rivet, 680 So.2d at 1161.

After a review of the record, and keeping in mind the factors outlined in Rivet and the requirement that the attorney fees be reasonable, we reduce the attorney fees award from $139,000.00 to $34,500.00.

CONCLUSION

For the forgoing reasons, the jury verdict finding that Mr. Spears was terminated without just cause as head coach of Grambling State University is reversed. The award of three years wages for the time remaining on Mr. Spears’ contract, $449,500.00, is reduced to the 47 remaining days of wages due for termination for just cause under the contract, $20,087.80. The penalty wage award of $54,000.00 is reduced to $38,466.00. The attorney fees award of $139,000.00 is reduced to $34,500.00. Costs of this appeal are assessed against Mr. Spears.

REVERSED IN PART, AMENDED IN PART, AND RENDERED.

KUHN, J., concurs.

PETTIGREW, J., concurs.


author: GAIDRY, J.

text:
    Matilda Christina ROBICHEAUX v. Darryle TATE, Deron Carey and State Farm Mutual Insurance Company.
    No. 2012 CA 0241.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      James R. Coxe, III, Baton Rouge, LA, for Plaintiff/Appellant Matilda Christina Robieheaux.
    Brent E. Kinchen, Benjamin H. Dampf, Baton Rouge, LA, for Defendant/Appellee Subcontracting Concepts, Inc.
    Wade A. Johnson, Metairie, LA, for Defendant/Appellee Hackbarth Delivery Service, Inc.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|2In this suit involving injuries resulting from an automobile accident, the plaintiff appeals a summary judgment dismissing her claims against two defendants. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from a December 10, 2007 automobile accident which occurred when a van owned by Deron Carey and operated by Darryle Tate rear-ended a vehicle driven by Tina Williams, causing Williams’ vehicle to collide with the driver’s side of a vehicle driven by Matilda Robieheaux. At the time of the collision, Tate was returning to Hackbarth Delivery Services, Inc. (“Hackbarth”) from his delivery route. Neither Carey, who owned the van, nor Tate, who operated the van, had a policy of automobile liability insurance.

Robieheaux filed a petition for damages naming Tate, Carey, and her insurer, State Farm Mutual Automobile Insurance Company, as defendants. She later amended her petition to add Hackbarth and Subcontracting Concepts, Inc. (“SCI”) as defendants, alleging that Carey and Tate were employees of Hackbarth and SCI, and therefore Hackbarth and SCI were vicariously liable for Ms. Robicheaux’s injuries.

Hackbarth and SCI each filed a motion for summary judgment asserting that since Carey and Tate were not their employees, but rather independent contractors, Hackbarth and SCI were not vicariously liable for Robicheaux’s injuries. Finding that Carey and Tate were independent contractors, the trial court granted both motions for summary judgment, dismissing Robicheaux’s claims against SCI and Hackbarth. Robieheaux filed a motion for new trial, which was denied, and this appeal followed.

IsDISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1084, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 06-1233, p. 5 (La.App. 1 Cir. 6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez v. Hebert, 06-1558 at 8, 961 So.2d at 408. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at p. 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable |4to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

Louisiana Civil Code article 2320 provides that employers are answerable for the damage occasioned by their employees, in the exercise of the functions in which they are employed. For an employer to be held liable under article 2320, the plaintiff must show that a master-servant relationship existed between the tortfeasor and the employer, and the tortious act of the tortfeasor was committed during the course and scope of his employment with the employer. Hughes v. Goodreau, 01-2107, pp. 5-6 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, 656, unit denied, 03-0232 (La.4/21/03), 841 So.2d 793.

The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 01-2875, p. 6 (La.9/4/02), 825 So.2d 1125, 1129. To determine whether a worker is an independent contractor or an employee, the court must examine the control exercised by the employer over the worker. Hughes, 01-2107 at p. 6, 836 So.2d at 656. The term “independent contractor” connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants. The relationship presupposes a contract between the parties, the independent nature of the contractor’s business, and the nonexclusive means the contractor may employ in accomplishing the work. Moreover, it should appear that the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of his employer in the performance of the service, except as to the result of the services to be rendered. It must also | ¡¡appear that a specific price for the overall undertaking is agreed upon and that its duration is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Hughes, 01-2107 at p. 6, 836 So.2d at 656, quoting Hickman v. Southern Pacific Transport Co., 262 La. 102, 117, 262 So.2d 385, 391 (1972). It is not the supervision or control which is actually exercised which is significant, but whether, from the nature of the relationship, the right to do so exists. Hughes, 01-2107 at p. 7, 836 So.2d at 656. See also Tower Credit, Inc. v. Carpenter, 01-2875 (La.9/4/02), 825 So.2d 1125.

It is undisputed that Tate was on his delivery route at the time of the collision; therefore the issue before the court is whether Tate was performing this work as an employee or an independent contractor. The following evidence of the relationship between Tate, Carey, Hackbarth, and SCI was before the court of the motion for summary judgment:

SCI is a corporation which brokers courier and messenger delivery services for its customers. Hackbarth operates a delivery service specializing in appliance deliveries, pharmaceutical deliveries, banking deliveries, and other routed work. Hackbarth obtains the services of delivery drivers from SCI. Tate and Carey each executed a contract with SCI entitled “Independent Contractor Owner/Operator Agreement.” The contracts provided that Tate/Carey (“the independent contractor”), as the operator of a delivery service for entities engaged in the dispatching of delivery services, would make deliveries for SCI’s customers using vehicles owned or leased and maintained by the independent contractor. In lieu of rendering services directly, the independent contractor was entitled to employ, furnish, and supervise qualified licensed drivers and other personnel for the performance of the delivery assignments accepted by him. Furthermore, SCI and the ^independent contractor agreed that no employer/employee relationship would be created under the contract, and the independent contractor would be solely responsible for any Federal, State, and local income taxes, social security taxes, withholding taxes, payroll taxes, unemployment taxes, and any other taxes imposed in connection with the delivery services. The independent contractor would also be responsible for securing and maintaining his own worker’s compensation or occupational accident insurance, disability insurance, and automobile and general liability insurance, as well as paying all expenses which are normal costs of doing business (tolls, fuel, oil, tires, repairs, garaging, parking, maintenance of the vehicles, employee salaries, etc.). The contracts contained a provision stating that SCI and its customers were “concerned only with the result, rather than the method by which the result is achieved,” and the independent contractor would be free to select his own routes and order of deliveries, taking into account the customer’s requests, needs, and deadlines. The independent contractor was to be paid per completed delivery, according to an agreed-upon schedule of negotiated rates, within thirty days following SCI’s receipt of the independent contractor’s invoice. The independent contractor also had the right under the contract to accept or reject assignments from SCI, its customers, or any other carrier. The contracts were for a term of ninety days, subject to automatic ninety-day renewals, unless either party desired to terminate the agreement; the contract provides for a $500 penalty for termination without ten days notice.

Tate began working as a delivery driver for SCI and Hackbarth after his brother-in-law, Carey, who was already an independent contractor for SCI making deliveries for Hackbarth, selected him to become one of his delivery drivers. Tate made deliveries for Hackbarth’s customers using |7Carey’s vehicles. Tate testified that he did not punch a time clock and he did not have a work schedule; he simply worked when Carey told him to and was paid for the deliveries made.

Carey testified that he was free to choose which routes to take and which to reject, and he had rejected routes in the past when he was not making enough money off of them. Carey would get paid by SCI for the deliveries made after submitting the appropriate documentation, and would pick up the check from Hackbarth’s office. Carey testified that he would pay Tate a flat fee per delivery made for him.

Patrick Kannapel, Hackbarth’s Chief Financial Officer, testified that Hackbarth’s customers would provide them with times for their deliveries to be made and would provide the product to be delivered, and Hackbarth would convey that to the delivery drivers. The independent contractors supplied to Hackbarth by SCI did have to be approved by Hackbarth, and when a contractor chose to hire other drivers to make his deliveries, such as Carey did with Tate, Hackbarth also had to approve of those drivers. Mr. Kannapel testified that when required by Hackbarth’s customers, the delivery drivers would have to wear a uniform. However, he testified that there was not a specific uniform required; the customer requirement was just that the driver wore some sort of uniform. Every driver could choose his own uniform. The drivers had time requirements within which to make deliveries, but there was no requirement for the driver to check in with Hackbarth or to have a phone with him so that Hackbarth could contact him. Hack-barth would ascertain that the time requirements were fulfilled when the driver’s paperwork was returned to Hackbarth after making the deliveries. After receiving the driver’s contractor invoice summary, Hackbarth would forward it to SCI. SCI would then invoice Hackbarth for | sthe services rendered, and after Hackbarth paid SCI, SCI would forward the driver’s payment.

Considering the evidence before the court on the motion for summary judgment, including the contract between the parties and the testimony regarding their relationship, it is clear that Tate and Carey were independent contractors. The control actually exercised by SCI/Hack-barth over Tate and Carey was minimal, and clearly indicative of an independent contractor relationship, rather than an employer-employee relationship. Summary judgment dismissing the claims against Hackbarth and SCI was appropriate.

CONCLUSION

The judgment appealed from is affirmed. Costs of this appeal are assessed to plaintiff, Matilda Christina Robicheaux.

AFFIRMED.


author: McCLENDON, J.

text:
    SILWAD TWO, L.L.C. v. I ZENITH, INC.
    No. 2012 CA 0282.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Michael J. Samanie, Stephen S. Stipelco-vich, Houma, LA, for Defendant/Appellant I Zenith, Inc.
    D.V. Alex Wells, New Orleans, LA, for Plaintiff/Appellee Silwad Two, L.L.C.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

|?In this contract matter, the defendant appeals a default judgment that ordered it to install gas pumps on its leased property. The defendant also appeals the trial court’s alternative award of lost profits and attorney fees in favor of the plaintiff. For the reasons that follow, we reverse in part, amend in part, and, as amended, affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 20, 2010, I Zenith, Inc. (I Zenith), lessor, and Silwad Two, LLC (Sil-wad Two), lessee, entered into a commercial lease of a convenience store located at 6931 Alma Street in Houma, Louisiana. On October 7, 2010, Silwad Two filed a Petition to Enforce Specific Performance or for Damages Resulting from Breach of Contract, seeking to enforce renovation provisions in the contract or, alternatively, for damages for failure to perform. In its petition, Silwad Two asserted that, in accordance with the lease, I Zenith was required to renovate an existing bathroom, install an additional bathroom, install a canopy, provide credit card readers, and complete “pump remediation/replacement,” all of which it had failed to do. Thereafter, Silwad Two obtained a preliminary default judgment, and on April 6, 2011, judgment was rendered against I Zenith, following a hearing to confirm the default. In the judgment, the trial court ordered that I Zenith fulfill the terms of the lease “by completing installation of gas pumps, completing installation of a canopy and completing installation of gas pump card readers” by May 31, 2011. The judgment further ordered the completion of the installation of the additional bathroom within 120 days of the signing of the judgment, reasonable attorney fees in the amount of $8,500.00, and costs. Lastly, the judgment provided that if the conditions were not met by the date required, Silwad Two was entitled to an alternative judgment for damages incurred from breach of contract due to lost profits from the date of judicial demand through the end of the lease, at the rate of $.17 per gallon on ^average sales of 1,400 gallons per day for 1,546 days, for a total of $367,948.00.

I Zenith has appealed and assigned the following as error:

1. The trial court erred in finding that the commercial lease required [I Zenith] to install gas pumps.
2. The trial court erred in awarding future lost profits.
3. The trial court erred in awarding an excessive amount of attorney fees.

DISCUSSION

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702 A. In order for a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 06-0766 (La.App. 1 Cir. 2/9/07), 959 So.2d 914, 917-18.

A plaintiff seeking to confirm a default judgment must prove both the existence and the validity of his claim. Arias v. Stolthaven New Orleans, LLC, 08-1111 (La.5/5/09), 9 So.3d 815, 820. In order to confirm a default judgment when a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. However, the court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. LSA-C.C.P. art. 1702 B(l).

| furthermore, a default judgment cannot be different in kind from what is demanded in the petition, and the amount of damages must be proven to be properly due. LSA-C.C.P. art. 1703; Arias, 9 So.3d at 820. Although courts recognize a presumption that a default judgment is supported by sufficient evidence, that presumption does not attach when the record upon which the judgment is rendered indicates otherwise. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993). When reviewing default judgments, an appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias, 9 So.3d at 818.

At the confirmation hearing, Silwad introduced into evidence a copy of the lease agreement, current photographs of the leased premises, and the affidavit of Saeed Mohamed. The oral testimony of Abdel Faraj, Silwad’s owner, was also offered at the hearing.

Paragraph 7 of the commercial lease is entitled “Repairs and Maintenance” and contains the only language in the contract regarding gas pumps. It provides, in pertinent part:

LESSOR warrants that the leased premises are in good condition. LESSEE agrees to keep the premises in good condition during the term of the lease at LESSEE’S expense and to return them to LESSOR in the same condition at the termination of the lease, normal decay, wear and tear excepted.
LESSOR’S obligation to repair shall be limited to necessary repairs to the building roof.
However, LESSOR shall renovate/repair the existing public bathroom and install an additional public bathroom at its sole expense within a [reasonable] time in compliance with regulations of the Parish of Terrebonne. Further, should the in-ground gasoline storage tanks be declared in need of removal by the appropriate governing authority, LESSOR agrees to excavate, remove and replace these tanks at its expense. However, should the tank removal be caused by the failure of LESSEE to provide routine maintenance the tanks as mandated by the Department of Environmental Quality or other governing authority, then LESSEE shall be obligated to bear the full expense of tank removal. In any case, in the event of tank removal, LESSEE shall repave the area above the tanks, re-install pumps, pump islands and any other item made necessary by the excavation which is located above ground level at no expense to LESSOR.
LESSOR shall also provide a canopy . and card readers at its expense.
^Nonetheless, following bathroom renovation, pump remediation/replacement and canopy installation, lessee shall assume responsibility for all repairs and maintenance. LESSEE agrees to obtain all permits and inspections of the underground tanks and other equipment as required by governmental authority.

Mr. Faraj testified at the hearing that he is the owner of Silwad Two and that he entered into the lease with I Zenith for the property in Houma to be used as a gas station. Mr. Faraj stated that the closest gas station was about two and one-half miles away. He was then asked:

Q. In the lease it states that [I Zenith] was supposed to install gas pumps; correct?
A. Yes, sir.
Q. Have they installed those gas pumps?
A. No.
Q. In the lease it states that [I Zenith] was supposed to remediate or replace the underground storage tanks; correct?
A. Yes, sir.
Q. Have they remediated or replaced those tanks.
A. No, sir.

Mr. Faraj also testified that I Zenith was supposed to install a canopy and credit card readers in accordance with the lease, but did not do so. Mr. Faraj was then shown photographs of the leased property, which he stated showed no gas pumps, canopy, or credit card readers. Mr. Faraj also stated that he has managed gas stations for over fifteen years and that a reasonable profit margin on gasoline was about seventeen to twenty cents a gallon. He testified that when he signed the lease, he anticipated selling 1500 gallons of gasoline per day. Mr. Faraj then reviewed the affidavit of Mr. Mohamed, manager of the Texaco gas station 2.6 miles from the property. In his affidavit, Mr. Mohamed stated that his Texaco station sells 1400 gallons of gas per day. Mr. Faraj testified that it should take about two to three weeks to install gas pumps, if the underground tanks were already present. Lastly, Mr. Faraj testified that he |fiwould not have entered into the lease if he knew that I Zenith was not going to install the gasoline pumps.

Generally, legal agreements have the effect of law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. LSA-C.C. art. 1983; Boh Bros. Const Co., L.L.C. v. State ex rel. Dept. of Transp. and Development, OS-1793 (La.App. 1 Cir. 3/27/09), 9 So.3d 982, 984, writ denied, 09-0856 (La.6/5/09), 9 So.3d 870. The interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. 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. LSA-C.C. art. 2046. The words of a contract must be given their generally prevailing meaning. LSA-C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. art. 2048. 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. LSA-C.C. art. 2050.

A determination of the existence or absence of an ambiguity in a contract entails a question of law. An appellate review that is not founded upon any factual findings made at the trial court level, but rather, is based upon an independent review and analysis of the contract within the four corners of the document, is not subject to the manifest error rule of law. In such cases, appellate review is simply whether the trial court was legally correct. Boh Bros. Const. Co., L.L.C., 9 So.3d at 984; Claitor v. Delahoussaye, 02-1632 (La. App. 1 Cir. 5/28/03), 858 So.2d 469, 478, writ denied, 03-1820 (La.10/17/03), 855 So.2d 764.

I Zenith initially argues that, according to the clear terms of the lease, it was not required to provide gas pumps to Silwad Two. We agree. According to the plain language of the contract of lease, there is no language that requires the lessor to provide gas pumps. The lease is clear as to those things that I |7Zenith agreed to do, including renovation and repair of the existing public bathroom and installation of a canopy and card readers. According to the terms of the contract, if the in-ground storage tanks are declared to be in need of removal, Silwad Two, as the lessee, agreed to repave the area and reinstall the pumps and pump islands. Nonetheless, Silwad Two argued that I Zenith agreed to replace the gasoline pumps and relied on the language “following bathroom renovation, pump remediation/replacement and canopy installation” for its argument. However, looking at Paragraph 7 in toto, we cannot say that the lease requires I Zenith to replace the pumps. The meaning of this provision is clear, that is, following any pump remediation or replacement, Silwad Two is responsible for all repairs and maintenance. See LSA-C.C. art. 2050. There simply is no evidence in the record that I Zenith agreed to install gas pumps, the lease being silent in this regard. Thus, we reverse that portion of the judgment requiring the completion of installation of gas pumps by I Zenith.

The judgment provides for an alternative judgment for damages due to lost profits if the conditions of the lease are not fulfilled by a certain date. The lost profits were calculated based on the lack of gasoline sales. However, because the lease does not require I Zenith to install gas pumps, it was error to award lost profits. Accordingly, we also reverse that portion of the judgment awarding Sil-wad Two future lost profits.

Lastly, we consider whether the amount of attorney fees awarded was reasonable. Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La.1992); Anglin v. Anglin, 09-0844 (La.App. 1 Cir. 12/16/09), 30 So.3d 746, 752. The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Regions Bank v. Automax USA, L.L.C., 02-1755 (La.App. 1 Cir. 6/27/03), 858 So.2d 593, 595, writ denied, 03-2131 (La.11/7/03), 857 So.2d 503.

At the hearing, the only discussion regarding an attorney fee was counsel’s mention of “reasonable attorney fees,” Counsel had a judgment prepared, after which there was discussion off the record. Judgment was signed for $8,500 in reasonable attorney fees. No evidence was produced showing the time spent by Silwad Two’s attorney in this matter. However, this case involved only the filing of a petition, a motion for preliminary default, and a hearing to confirm the default judgment. At the hearing, there was only one witness, who testified briefly, as shown by less than seven pages of transcribed testimony. We find the court abused its discretion in awarding $8,500 in attorney fees, and we will amend the judgment to award $1,500 in attorney fees.

CONCLUSION

For the foregoing reasons, we reverse that portion of the judgment ordering the installation of gasoline pumps. We also reverse that portion of the judgment ordering an alternative judgment for future lost profits in damages. Additionally, we amend the judgment to reduce the award of attorney fees to $1,500. In all other respects, the judgment is affirmed. Costs of this appeal shall be assessed to Silwad Two.

JUDGMENT REVERSED IN PART, AMENDED IN PART, AND, AS AMENDED, AFFIRMED.

      . The 1,546 number represents the number of days from the date of judicial demand through the end of the lease, or October 7, 2010 through December 31, 2014.

      . The lease provides for attorney fees in Paragraph 16, as follows: “If an attorney is employed to protect any right of LESSOR or LESSEE arising under this lease, the party whose fault necessitates such employment shall pay reasonable attorney's fees to the other.”

      . Louisiana courts require that a judgment be precise, definite and certain. See Vanderbrook v. Coachmen Industries, Inc., 01-0809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 913. In this matter, the alternative judgment is not certain, being based on subsequent events.