author: JUDGE SANDRA CABRINA JENKINS

text:
    Dan FREEMAN v. PHILLIPS 66 COMPANY, et al
    NO. 2016-CA-0247
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 21, 2016

      Timothy J. Young, Tammy D. Harris, Megan C. Misko, Daniel J. Poolson, Jr., THE YOUNG FIRM, 400 Poydras Street, Suite 2090, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    McGready L. Richeson, Ernest G. Forni-das, Michael H. Abraham, Francis X. de-Blanc, III, Perrey S. Lee, KUCHLER POLK SCHELL WEINER & RICHE-SON, LLC, 1615 Poydras Street, Suite 1300, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

liDan Freeman appeals the trial court’s November 24, 2015 judgment, rendered after a jury verdict in favor of defendants/appellees Union Carbide Corporation (“Union Carbide”) and Montello, Inc. (“Montello”), dismissing all claims against appellees, with prejudice.

For the reasons that follow, we convert the appeal to an application for supervisory writs, grant the writ application, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Between 1974 and 1982, Mr. Freeman worked in the oil field industry. On July 26, 2011, Mr. Freeman filed a “Seaman’s Petition for Damages” against 14 defendants asserting various causes of action arising under state law, general maritime law, and the Jones Act. Mr. Freeman alleged that while he was working on drilling rigs, he was exposed to asbestos drilling mud products that were manufactured and supplied by Union Carbide, and marketed to the oil and gas industry through Mon-tello, Union Carbide’s agent. Mr. Freeman claimed that he had developed “asbestos maladies” as a result of his exposure to the defendants’ asbestos products. On January 31, 2014, Mr. Freeman filed a First Supplemental and Amending Petition for Damages naming 10 additional defendants.

|2By the time of trial in 2015, only two defendants remained, Union Carbide and Montello. A jury trial was held on August 10 through August 20, 2015. At the close of evidence, the jury returned the following verdict:

1. Do you find by a preponderance of the evidence that Dan Freeman has asbestosis:
Yes_No_X_

On November 24, 2015, the trial court signed a “Final Judgment” dismissing all claims against Union Carbide and Montel-lo, with prejudice. Mr. Freeman timely appealed.

DISCUSSION

Jurisdiction

As a threshold matter, we note that we cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Tsegaye v. City of New Orleans, 15-0676, p. 3 (La.App. 4 Cir. 12/18/15), 183 So.3d 705, 710. A valid final judgment must contain “decretal language.” Id. “Decretal language is defined as the portion of a court’s judgment or order that officially states (‘decrees’) what the court is ordering and generally starts with the formula ‘It is hereby ordered, adjudged, and decreed that Jones v. Stewart, 16-0329, p. 5 (La.App. 4 Cir. 10/5/16), 203 So.3d 384, 387, 2016 WL 5819246, at *5 (internal quotations omitted). Without the requisite de-cretal language, a judgment is not appeal-able. Tsegaye, 15-0676, p. 3 183 So.3d at 710. Importantly, the decretal language “ ‘must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.’” Id. (quoting Bd. of Supervisors of La. State Univ. v. Mid City Holdings, L.L.C., 14-0506, p. 3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910).

Here, the decree in the judgment states as follows:

LIT IS ORDERED, ADJUDGED, AND DECREED that all claims asserted against Union Carbide Corporation and Montello, Inc. are dismissed with prejudice.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the dismissal of all claims against Union Carbide Corporation and Montello, Inc. with full prejudice constitutes a final judgment as contemplated by Louisiana Code of Civil Procedure article 1916, there being no just reason for delay.

Although the judgment names “the partfies] in favor of whom the ruling is ordered” — Union Carbide and Montello— it does not name “the party against whom the ruling is ordered.” And although the decree states that it is a “final judgment,” this language is insufficient to render this particular judgment appealable in the absence of the necessary decretal language. See Tsegaye, 15-0676, pp. 5-6, 183 So.3d at 711.

Accordingly, we find that we do not have appellate jurisdiction to review this judgment.

In certain cases, however, when confronted with the lack of appellate jurisdiction, we have converted the party’s appeal to an application for supervisory writs. This court has converted appeals of non-appealable judgments to applications for supervisory writs in cases in which the appeals were filed within the 30-day period allowed for the filing of applications for supervisory review. See, e.g., In re Medical Review Panel of Dischelle Williams, Tutrix for Dan’esia Williams v. EMSA La., Inc., 15-1178 (La.App. 4 Cir. 10/21/16), 203 So.3d 419, 2016 WL 6135367. This is such a case. Accordingly, we convert this appeal to an application for supervisory writs and grant the writ application.

|4We now address the merits of this appeal. Mr. Freeman lists four assignments of error, all of which relate to evi-dentiary rulings by the district court during the jury trial.

Standard of Review

A trial court is granted broad discretion in its rulings on evidentiary issues which will not be disturbed on appeal absent a clear abuse of that discretion. Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., 15-0487, 15-0702 (La. App. 4 Cir. 7/21/16), 197 So.3d 797, 806. Mr. Freeman contends that errors in the trial court’s evidentiary rulings were legal error which tainted the jury’s verdict, and which would require us to employ a de novo standard of review. “When a legal error is made, the appellate court will set aside the jury’s verdict and make an independent determination of the facts from the record without according any weight whatsoever to the factual findings of the tainted jury.” Roger v. Dufrene, 97-1946, pp. 3-4 (La.App. 4 Cir. 9/9/98), 718 So.2d 592, 595.

Assignment of Error No. 1: The Trial Court Erred in Admitting Into Evidence a Newspaper Advertisement by Mr. Freeman’s Attorneys.

At trial, the court allowed defense counsel to admit into evidence a color newspaper advertisement by Mr. Freeman’s counsel, The Young Firm. The advertisement was directed at “Oil Rig and Oil Field Workers from 1965-1985,” and urged them to contact The Young Firm to obtain a “free medical screening” for cancer caused by exposure to asbestos in drilling mud from oil and gas fields.

Mr. Freeman argues that this lawyer advertisement is irrelevant and extremely prejudicial. According to Mr. Freeman, the circumstances under which a plaintiff employs his attorneys are neither relevant nor probative. Mr. Freeman [Balso contends that defense counsel should not have been allowed to “intimate that Plaintiffs lawsuit was generated or caused by Plaintiff counsel.”

Under Louisiana Code of Evidence Article 103, error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected. Roger, 97-1946, p. 6, 718 So.2d at 596. “The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a ‘substantial effect’ on the outcome of the case.” Id. The party alleging prejudice from the trial court’s evidentiary ruling bears the burden of proof. Thomas v. A.P. Green Indus., Inc., 05-1064, p. 32 (La.App. 4 Cir. 5/31/06), 933 So.2d 843, 865.

Based on our review of the record, we find that the admission into evidence of the lawyer’s advertisement did not have a substantial effect on the outcome of this case because the jury ultimately decided that Mr. Freeman did not, in fact, have asbestosis. The circumstances under which Mr. Freeman might have retained his attorneys are irrelevant as to the reason why the jury found no liability. This assignment of error has no merit.

Assignment of Error No. 2: The Trial Court Erred in Admitting Into Evidence Correspondence Between Mr. Freeman and His Attorneys.

At trial, the court allowed defense counsel to introduce into evidence a letter dated August 16, 2010 to Mr. Freeman from “Porter & Malouf, P.A.,” “Richard B. Schwartz & Associates, P.A.,” and “Timothy J. Young, of The Young Firm.” The text of the letter is as follows:

RE: Test Results
Dear Mr. Freeman:
| fjPlease find enclosed a copy of the radiology report from the x-ray and testing done to determine whether or not you suffer from an asbestos/silica related lung disease. I regret to inform you that the results are positive and that you have been diagnosed with an asbestos related lung disease.
The doctor reading the x-ray suggests that you see your treating physician. Please take this report to your treating physician and have him review it. After you have seen your treating doctor, please give me a call. The purpose of this letter is not to alarm you, but to inform you of the findings.
If you have any questions about the diagnosis or the claims process, do not hesitate to contact our office.
Again, we thank you for calling the Asbestos Help Center.

Mr. Freeman contends that the trial court erred in allowing the introduction of this letter into evidence because it is protected from disclosure by the attorney-client privilege.

Under the Louisiana Code of Evidence, “A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client.” La. Code Evid. art. 506(B). The attorney-client privilege, however, can be waived. State v. Schmitt, 354 So.2d 1339, 1342 (La. 1978).

The August 16, 2010 letter to Mr. Freeman states, “Please take this report to your treating physician and have him review it.” The record shows that this letter and the attached radiology report were sent to two physicians, and that Mr. Freeman introduced this letter into evidence at trial as part of the medical records of those physicians. We find that Mr. Freeman’s introduction of this letter into evidence constitutes waiver of any attorney-client privilege. Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1147 (La. 1987) (client who chooses to use communications with attorney at trial waives the attorney-client privilege with respect to those communications); Robinson v. Abraham, 582 So.2d 1341, 1344 (La. App. 4th Cir. 1991). This assignment of error lacks merit.

Assignment of Error No. 3: The Trial Court Erred in Allowing Defense Counsel to Refer to “Drive-By Screenings” and Publish to the Jury a Color Photograph of the Warshaw Chiropractic Clinic That Was Not Admitted Into Evidence.

At trial, Mr. Freeman was asked by his attorney how he came to be concerned about possible asbestos exposure. Mr. Freeman testified that after he saw the lawyer advertisement in the newspaper he called The Young Firm and was sent to the Warshaw Chiropractic Clinic (“War-shaw Clinic”) in Vidalia, Louisiana for a chest x-ray, which was taken on July 1, 2010. After the screening at the Warshaw Clinic, Mr. Freeman received the August 16, 2010 letter from The Young Firm informing him that he had been “diagnosed with an asbestos related lung disease.”

At trial, Mr. Freeman’s medical expert, Dr. Steven Haber, testified that 40% of his work comes from Mr. Freeman’s lawyers, who send him large batches of x-rays, as many as 70 at a time. Dr. Haber testified about a report that he had written in 2007 in which he criticized asbestos screenings, which he described as “so-called ‘drive-by’ screenings, conducted by, or on behalf of attorneys for litigation, [which] have given medical screenings a bad name.” Dr. Haber also criticized “drive-by screenings” for their “lack of safety controls” and “financial incentives toward bias.” Dr. Haber admitted that Mr. Freeman’s history — being referred by his lawyers for a chest x-ray taken at the Warshaw Clinic — followed by a letter from his lawyers stating that he had been diagnosed with asbestos-related disease — would “possibly” be a “drive-by screening.”

| ^Following the close of evidence, the parties presented their closing arguments to the jury. During defense counsel’s closing argument, counsel used the term taken from Dr. Haber’s trial testimony, referring to Mr. Freeman’s x-ray screening at the Warshaw Clinic as a “drive-by screening.” As a demonstrative aid in a PowerPoint presentation, defense counsel showed the jury a photograph of the Warshaw Clinic where Mr. Freeman was screened. The image of the Warshaw Clinic was not introduced into evidence.

Given that Mr. Freeman’s own expert testified at length about “drive-by screenings,” we find that Mr. Freeman has failed to satisfy his burden of proving that, compared with the record as a whole, any alleged error in allowing defense counsel to refer “drive-by screenings” had a substantial effect on the outcome of his case. See Thomas, 05-1064, p. 33, 933 So.2d at 865. Moreover, we note that the trial court instructed the jury that “the arguments that the lawyers will make to you in opening and closing statements aren’t evidence. Your decision on the facts must be based on the testimony and the evidence you hear and see.” We find that the trial court’s admonitions to the jury were sufficient to overcome any prejudicial effect that may have resulted from defense counsel’s statements. Roger, 97-1946, p. 6, 718 So.2d at 596. We also find that Mr. Freeman waived any objection to the alleged impropriety of defense counsel’s remarks by failing to object. Griffin v. Tenneco Oil Co., 625 So.2d 1090, 1095 (La. App. 4th Cir. 1993).

As for the photograph of the Warshaw Clinic, in addition to our finding that Mr. Freeman waived any objection to this photo, we agree with the reasoning of the First Circuit that “[i]t is within the discretion of the trial court to permit counsel to illustrate his or her remarks to the jury with reasonable demonstrative aids ... as long as such aids are relevant, and are not unduly inflammatory, misleading or |9prejudicial.” Schwamb v. Delta Air Lines, Inc., 516 So.2d 452, 464 (La. App. 1st Cir. 1987). See also Alfonso v. Piccadilly Cafeteria, Inc., 95-279, p. 3 (La.App. 5 Cir. 11/28/95), 665 So.2d 589, 593 (trial court did not err in publishing to the jury, without introduction into evidence, a bag of coins and currency as a demonstrative aid where plaintiffs did not show it prejudiced their case). We find that the photograph of the Warshaw Clinic, where Mr, Freeman had a chest x-ray which led to his initial diagnosis of asbestos-related lung disease, was relevant and not prejudicial.

This assignment of error is without merit.

Assignment of Error No. 4: The Trial Court Erred in Allowing Defense Counsel to Publish to the Jury a Copy of the “Seaman’s Petition for Damages” That Was Not Admitted Into Evidence.

Mr. Freeman argues that an image of his Seaman’s Petition for Damages should not have been shown to the jury during closing arguments because the Petition was not admitted into evidence, and was prejudicial. We note, again, that Mr. Freeman failed to object, which constitutes waiver. See Griffin, 625 So.2d at 1095. We also find that the jury’s brief observation of an image of Mr. Freeman’s own Petition for Damages was not prejudicial to the outcome of his case.

This final assignment of error has no merit.

CONCLUSION

Although the trial court’s November 24, 2015 judgment lacks the necessary decre-tal language to confer appellate jurisdiction, we convert the appeal to an application for supervisory writs, and grant the writ. Based on our review of the record, we find that Mr. Freeman has not satisfied his burden of proving that the |intrial court’s evidentiary rulings substantially affected the outcome of his case to such an extent that we would be required to conduct a de novo review of the appellate record, and vacate the jury’s verdict in favor of appellees. Accordingly, we affirm the trial court’s November 24, 2015 judgment.

APPEAL CONVERTED TO WRIT, WRIT GRANTED, AFFIRMED

BONIN, J., CONCURS IN THE RESULTS ONLY


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano BONIN, J., JENKINS, J.,

license: Public Domain

text:
    Sterling DOUCETTE and Doucette & Associated Contractors, Inc. v. Angele Jackson GUIENT and Borjius Guient
    NO. 2015-CA-1346
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 29, 2016
    Rehearing Denied January 20, 2017

      Danatus Norman King, 2475 Canal Street, Suite 308, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPEL-LEE
    Brad P. Scott, Brian E. Sevin, Sr., OFF-NER & SCOTT, 3850 N. Causeway Blvd., Suite 1130, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Joy Cossich Lobrano

_J_iThis breach-of-contract action arises from a long-standing dispute relating to a 1996 construction contract entered into by appellees, Sterling Doucette and Doucette & Associated Contractors, Inc. (collectively “Doucette”), and appellants, Angele Jackson Guient and Borjius Guient (collectively the “Guients”), to build the Guients’ residence in New Orleans, Louisiana. For the reasons that follow, we affirm in part and reverse in part the district court’s award of damages to Doucette. We affirm the district court’s judgment awarding no damages to the Guients on their reconven-tional demand. Lastly, we reverse the district court’s award of attorney’s fees to Doucette.

In April of 1996, Doucette and the Guients entered into a contract for the construction of the Guients’ new home. The Guients provided Doucette with plans and specifications prepared by their architect. The original contract price was $177,000.00. The Guients paid Doucette a total of $159,300.00 for the work, withholding the final $17,700.00 payment due to alleged deficiencies in the work, delays in construction, and Doucette’s failure to complete the home.

In September of 2003, seven years after executing the contract, Doucette sued the Guients to recover the cost of change orders and the unpaid balance due on the contract. Doucette sought $48,219.65 in damages for breach of contract and | ¡.requested attorney’s fees. Doucette asserted that he was entitled to the unpaid balance due under the original contract, as well as $30,519.65 for oral and written change orders allegedly agreed to by the Guients.

In response, the Guients filed a Recon-ventional Demand to recover amounts they allegedly expended to complete the construction of the home. They also sought damages for the devaluation of the property allegedly caused by Doucette’s delay and poor workmanship. They alleged that Doucette failed to construct the home in accordance with the plans and specifications. The Guients sought $60,786.66 in damages, which included the cost of labor and materials to complete the construction, the devaluation of the home because of Doucette’s failure' to follow the plans and specifications, and costs.

The record shows that nothing was filed for another three years, until March 8, 2007, when the Guients filed an Ex Parte Motion to Dismiss Action Based Upon Abandonment pursuant to La. C.C.P. art. 561. The Guients argued that, because the last action taken in the prosecution or defense of the action was the Guients’ service of answers to interrogatories on Doucette on February 14, 2004, the three-year abandonment period had elapsed. This motion was granted.

Thereafter, Doucette filed a Motion to Set Aside Dismissal. In this motion, Dou-cette argued that, pursuant to several Executive Orders issued by the Governor of Louisiana in the wake of Hurricanes Katrina and Rita, the three-year abandonment period was suspended from September 6, 2005 through November 25, 2005. According to Doucette, because these days were not counted in | ^computing the abandonment period, Doucette’s claims would not have been abandoned until May 5, 2007. On June 1, 2007, the district court signed a judgment granting Doucette’s Motion to Set Aside Dismissal, and reinstated the matter to the court’s docket.

On June 12, 2007, the Guients filed a Motion for New Trial, urging reconsideration of the Motion to Set Aside Dismissal, arguing that under La. R.S. 9:5822 (which codified the Governor’s Executive Orders regarding prescription, with certain exceptions), the abandonment period was not suspended. In Doucette’s opposition to the Guients’ Motion for New Trial, Doucette argued for the first time that the five-year abandonment period set forth in La. C.C.P. art. 561(A)(2) applied because Dou-cette was unable to prosecute the action due to the Hurricane Katrina evacuation. On October 26, 2007, the district court signed a judgment denying the Guients’ Motion for New Trial. The Guients did not seek supervisory writs from the district court’s decision granting Doucette’s Motion to Set Aside Dismissal. This case lingered for another eight years.

A one-day bench trial was finally held in April 2015. On July 31, 2015, the district court rendered a judgment in favor of Doucette and against the Guients, awarding Doucette the sum of $48,219.65, 40% of that amount in attorney’s fees, plus costs and filing fees. The district court did not award the Guients damages on their Re-conventional Demand. The Guients now appeal the July 31, 2015 judgment, along with the interlocutory judgment granting Doucette’s Motion to Set Aside Dismissal.

LThis appeal timely followed.

Interlocutory Judgment Setting Aside Dismissal

First, the Guients appeal the interlocutory judgment granting Doucette’s Motion to Set Aside Dismissal. As a threshold matter, Doucette contests this assertion by stating that this Court has no jurisdiction to review interlocutory judgments. “It is well-settled that although an interlocutory judgment may not itself be immediately appealable, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case which is appealable.” Favrot v. Favrot, 2010-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102, n. 1. The proper procedure to seek review of an interlocutory judgment under the appeal of a final judgment is to include it in the assignments' of error. See Lawson v. Straus, 98-2096, p. 4 (La.App. 4 Cir. 12/8/99), 750 So.2d 234, 238. Accordingly, we will address the interlocutory judgment.

Whether an action has been abandoned is a question of law. Olavanieta v. St. Pierre, 2004-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568. It is undisputed that no formal action took place in this case for more than three years between February 14, 2004 (the date the Guients responded to Doucette’s interrogatories) and March 8, 2007 (the date the Guients filed a Motion to Dismiss on the grounds of abandonment). La. R.S. 9:5822, which was enacted by the legislature in response to Hurricanes Katrina and Rita, temporarily suspended all prescriptive periods in proceedings in the state, with certain exceptions, stating:

IfiA. All prescriptions, including libera-tive, acquisitive, and the prescription of non-use, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January S, 2006.... (emphasis added)

Although La. R.S. 9:5822 provides that all prescriptive periods shall be suspended or extended during the time period between August 26, 2005 through January 3, 2006, this 89-day suspension or extension applies only if the prescriptive period would have otherwise lapsed during this time period. In the case sub judice, it is undisputed that the three-year abandonment period lapsed on February 14, 2007, which was not during the period between August 26, 2005 and January 3, 2006. La. R.S. 9:5822, therefore, does not apply. See Harris v. Stogner, 2007-1451, p. 3 (La. 11/9/07), 967 So.2d 1151, 1152 (finding that plaintiff abandoned his claims by not taking action in the suit until June 13, 2006, after the period set forth in La. R.S. 9:5822). Thus, the district court erred in setting aside the dismissal of the ease.

However, unlike a plaintiffs actions, which cannot undo abandonment, “[cjertain actions taken by a defendant after the accrual of the abandonment period can constitute a waiver of the right to have a case dismissed for abandonment.” True Gospel of Jesus Christ Church Ministry v. Doucette, 2008-0634, p. 6 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, 798. This takes place when a defendant has “taken steps that facilitated the judicial resolution of the dispute on the merits and | fiwere an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute.” Id.

“In determining whether a waiver of the right to assert abandonment occurred, the jurisprudence has recognized the appropriateness of considering the qualitative effect of the defendant’s conduct.” Slaughter v. ARCO Chem. Co., 2005-0657, p. 14 (La.App. 4 Cir. 4/26/06), 931 So.2d 387, 396 (internal citations omitted). Importantly, the Guients never sought supervisory writs from the district court’s decision granting Doucette’s Motion to Set Aside Dismissal. Later, the Guients signed the scheduling order, signed the order setting the case for trial, acknowledged receipt of the pre-trial notice, filed a witness list, filed a joint pretrial outline, and participated in a bench trial. The record shows that the Guients facilitated bringing this case to trial. See Clark v. State Farm Mutual Auto Ins. C., 2000-3010 p. 14, n. 15 (La. 5/15/01), 785 So.2d 779, 789 (stating that “examples of conduct by defendants that have been held sufficient to waive abandonment include agreeing to a trial setting, submitting the case for decision, seeking security for costs, or provoking or responding to discovery.”) (internal citations omitted).

“Moreover, the threat of abandonment serves to hasten all suits to judgment.” Slaughter, 2005-0657 at p. 19, 931 So.2d at 399. “Once a case is | submitted, its disposition is out of the hands of the parties, and nothing is gained by penalizing them for what they have failed to do before that point.” Id. “Nothing is served by allowing the defendant to have a case submitted for judgment declared abandoned.” Id. Despite the district court’s error in granting Doucette’s Motion to Set Aside Dismissal, the Guients waived their right to assert abandonment. As a result, we reach the merits of their claims.

Damages Awarded to Doucette

The Guients argue that the district court erred in failing to find that Doucette performed his contract in an un-workmanlike manner; awarding Doucette damages, including attorney’s fees, for that unworkmanlike performance; and finding that the Guients authorized oral change orders resulting in an additional award of damages. The standard of review for a damage award for breach of contract is whether the district court abused its discretion. Stallings Const. Co. v. Klein Steel, Inc., 2012-1482, pp. 3-4 (La.App. 4 Cir. 3/27/13), 112 So.3d 389, 392.

The Guients assert that because Doucette performed his work in an un-workmanlike fashion, he was not entitled to the outstanding balance on the contract price awarded by the district court, $17,000.00. Substantial performance of a contract entitles the performer to the balance due under the contract, less the amount necessary to complete the work. Ducote v. Arnold, 416 So.2d 180, 182 (La. App. 4th Cir. 1982). Substantial performance, which is a question of fact, exists when the construction may be used for the purpose intended regardless of defects or omissions. Id.

|sThe district court’s finding of substantial performance is manifestly erroneous. The record indicates that the Guients had to complete substantial work on the home prior to being able to move into it and that the home failed to pass inspections when the Guients took possession of it from Doucette. Further, although Doucette sued for nonpayment the district court stated in its reasons for judgment that “the Guients did not prove sufficient deficiencies in construction to merit non-payment of the balance of the written contract. . ,.” This improper burden shifting renders the damage award based upon it an abuse of discretion. See LCR-M Ltd. P’ship v. Jim Hotard Properties, L.L.C., 2013-0488, p. 9 (La.App. 4 Cir. 10/9/13), 126 So.3d 668, 676 (stating “a court necessarily abuses its discretion if its ruling is based on an erroneous view of the law.”). As a result, we reverse the portion of the judgment awarding “$17,000.00 to Dou-cette as the unpaid balance due on the original written construction contract.”

As to the change orders, Sterling Doucette, Sr., testified as to the existence of a myriad of written and verbal change orders allegedly approved by Ms. Guient. One written change order was presented to the district court, for a closet extension and the removal of columns from the family room entryway. For this change order, the district court awarded Doucette $14,519.65. Given that this award was supported by testimony and documentation, we affirm this portion of the judgment.

However, the district court also awarded damages for three verbal change orders: $4,106.52 for installation of additional windows, $2,639.00 for relocation [9of the stairs, and $9,254.48 for “designing installation and installing gas lines, installing crown molding, installing ceramic floors instead of vinyl floors, mirrors, and bathroom accessories.” Whether or not a verbal agreement is valid is a question of fact; and further, written contracts may be modified by oral agreement, even when the written contract forbids such modification. Pelican Elec. Contractors v. Neumeyer, 419 So.2d 1, 5 (La. App. 4 Cir. 1982) (internal citations omitted). A review of the transcript indicates that Ms. Guient testified specifically that she never approved these change orders and that she continued to argue with Doucette about them throughout the construction of the home. Further, these orders were contrary to the plans; resulted in delays in construction; and were, according to Doucette’s own un-controverted testimony, contrary to the contract Doucette provided. In fact, Dou-cette’s contract provided that even emergency change orders should be reduced to writing. Nothing in the record provides an explanation as to why Doucette failed to follow their own procedure.

Given the lack of any verification of these expenses, the contradictory testimony, and the question as to why Doucette did not follow its own procedure, the district court’s factual finding that these verbal change orders were valid is manifestly erroneous. Thus, we reverse the portion of the July 31, 2015 judgment awarding Dou-cette $4,106.52 for installation of additional windows, $2,639.00 for relocation of the stairs, and a total of $9,254.48 for “designing installation and installing gas lines, installing crown molding, installing ceramic floors instead of vinyl floors, mirrors, and bathroom accessories.”

Reconventional Demands

The Guients next contend that the district court erred in finding that they are not entitled to damages for their reconven-tional demand. They argue that the |1flevidence presented at trial established that Doucette’s failure to complete the house in a timely and workmanlike manner in accordance with the plans and specifications caused them damages in the form of: (1) payments to other subcontractors to complete Doucette’s work; (2) devaluation of the home; and (3) penalties and interest on the Guients’ construction loan.

“The standard of review for a factual finding is the manifestly erroneous or clearly wrong standard.” Klein Steel, 2012-1482 at p. 3, 112 So.3d at 392 (internal citations omitted). Where there is conflicting testimony, reasonable evaluations of credibility and inferences of fact are subject to the strictest deference. Id.

La. C.C. art. 2769, which governs building and construction contracts, provides in pertinent part:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

First, addressing the Guients’ claim for damages relating to paying other subcontractors to complete Doucette’s unfinished work, Ms. Guient testified that the Guients withheld $17,700.00 of the purchase price from Doucette, yet had to pay other subcontractors a total of $20,786.66. Doucette also admitted to terminating an air conditioning subcontractor and not completing the work, resulting in a lawsuit being filed against the Guients. Ms. Guient testified that the Guients paid that subcontractor “over 5,000 dollars.” The Guients, however, did Innot introduce any receipts, invoices, or other evidence of these alleged payments to other subcontractors at trial.

Although a plaintiff can establish damages through evidence consisting only of his or her testimony, such testimony is subject to the trier of fact’s evaluation of credibility. Buddy’s Tastee # 1, Inc. v. Tastee Donuts, Inc., 483 So.2d 1321, 1323 (La. App. 4th Cir. 1986). Although the record shows that the Guients did have to complete significant work on the home, the district court evidently did not find that Ms. Guient’s testimony on the amount of money spent to complete the home credibly established a specific amount of damages. We find no manifest error.

Further, the Guients asserted in them Reconventional Demand a claim for $40,000.00 in damages for the devaluation of the property caused by Doucette’s alleged failure to comply with the plans and specifications. Ms. Guient admitted at trial that the original contract price was $177,000.00 and that the Guients paid Dou-cette only $159,300.00 to build the house. Ms. Guient also testified that she and her husband sold the flooded house in a gutted condition following Hurricane Katrina in 2006 for $310,000.00. Although Ms. Guient testified that they “lost money” on the sale of the house because they had installed a custom-built pool, a hot tub, a boat dock, and state-of-the art landscaping and fencing, the Guients produced no evidence showing the value of these alleged improvements. The h..district court concluded that the Guients “failed to prove that the home was devalued due to Dou-cette’s failure to conform to plans.” We find no manifest error.

At trial, Ms. Guient testified that' the Guients had to pay their lender “almost three times what [their] mortgage would have been” in penalties and interest on their construction loan due to Doucette’s failure to timely complete the project. Specifically, Ms. Guient testified that the Guients had to pay $5,400.00 per month for an additional six months. Again, other than Ms. Guient’s testimony, the Guients submitted no documentary evidence showing the amount of the alleged penalties and interest that they had to pay their lender, such as bank statements or canceled checks. In the absence of such substantiating evidence, we find that Ms. Guient’s testimony alone regarding payments of penalties and interest was insufficient to establish with legal certainty the amount of these alleged payments. Cf. Harbor Constr. Co. v. Bd. of Supervisors of Louisiana State Univ. and Agricultural and Mechanical College, 2010-1663, pp. 18-19 (La.App. 4 Cir. 5/12/11), 69 So.3d 498, 507-08 (sufficient evidence supported amount of damages claimed by contractor where contractor provided itemized list of expenses, copies of invoices, cancelled cheeks, and statements of specific expenses incurred).

In sum, based on our review of the record, the Guients’ claim for damages against Doucette is supported solely by Ms. Guient’s testimony. Given the deference due to the district court’s credibility determinations, we conclude that the district court did not manifestly err in concluding that the Guients were not entitled to damages.

Attorney’s Fees

(The record in this case indicates that there is no basis in statute or in contract for an award of attorney’s fees. “As a general rule, attorney’s fees are not | ^assessable as an item of damages except where provided for by statute or by contract.” Paz v. BG Real Estate Servs., Inc., 2005-0115, p. 2 (La.App. 4 Cir. 12/14/05), 921 So.2d 186, 188. Thus, we vacate the portion of the judgment awarding “Dou-cette forty percent of the total judgment in attorney’s fees.”

Decree

In conclusion, we reverse the award of $17,000.00 to Doucette for the balance of the original contract; affirm the award of $14,519.65 to Doucette for the written change order; reverse the awards .of $4,106.52, $2,639.00, and $9,254.48 to Dou-cette for verbal change orders; affirm the district- court’s denial of damages to the Guients for their reconventional demands; and reverse the district court’s award of attorney’s fees to Doucette.

AFFIRMED IN PART; REVERSED IN PART.

BONIN, J., DISSENTS IN PART WITH REASONS; JENKINS, J., DISSENTS AND ASSIGNS REASONS.

BONIN, J.,

DISSENTS IN PART WITH REASONS.

hi respectfully dissent in part. The majority opinion implies that the failure of the defendants to apply for supervisory review of the adverse interlocutory judgment on abandonment constitutes waiver of the issue when they proceeded to defend the suit on the merits. The three-year abandonment period is often harsh, and I acknowledge that the judicially-created notion of a defendant’s waiver is applied to soften that harshness. But I do not see any basis to soften the effect of abandonment when the defendants — as here — first sought, unsuccessfully, a judicial declaration that the suit was abandoned, which declaration was incorrectly denied to them. Now, on appeal of the final judgment, they rightfully demand that we correct the interlocutory judgment and grant them the relief of dismissal without prejudice.

JENKINS, J.,

DISSENTS AND ASSIGNS REASONS

pi concur in the majority’s decision to affirm the trial court’s finding that the Guients are not entitled to damages on their reconventional demand. I respectfully dissent, however, from the majority’s conclusion that the Guients waived their abandonment claim by not filing an application for supervisory writs after the trial court denied their ex parte motion to dismiss Doucette’s claim based on abandonment.

I find that because the Guients formally invoked their right to assert abandonment under La. Code Civ. P. art. 561, they avoided any waiver, and were not required to file an immediate writ application from the trial court’s denial of their motion to dismiss. For this same reason, I also find that the majority erred in concluding that, because the case was submitted for judicial resolution and a judgment was rendered, the Guients waived their right to assert abandonment.

La. Code Civ. P. art. 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without a court order. Clark v. State Farm Mutual Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784. As stated by the Supreme Court in Clark, “To avoid a possible waiver of the right to assert \ ¿abandonment, a defendant is instructed by Article 561 on the proper procedure to utilize to obtain an ex parte order of dismissal.” Id. (emphasis added).

An examination of cases finding a waiver of the right to abandonment confirms the Clark court’s conclusion that the purpose of an Article 561 motion to dismiss is to avoid post-abandonment waiver. In these cases, the courts were careful to emphasize that the waiving party lost its right to plead abandonment because it took steps toward a judicial resolution of the case prior to filing a motion to dismiss.

For example, in State ex rel. Shields, Inc. v. Southport Petroleum Corp., 230 La. 199, 88 So.2d 25 (1956), the Supreme Court found that a defendant who filed a motion to require the plaintiff to post a bond to cover the cost of trial, when he “could have come into court and moved to have the suit dismissed” on the grounds of abandonment, expressed a willingness to proceed with the trial so as to waive the right to plead abandonment.

In Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983), the defendant filed a motion for summary judgment prior to filing his ex parte motion to dismiss based on abandonment. The Supreme Court found that although the defendant had the right to file a motion to have the lawsuit declared abandoned for failure to prosecute, the filing of the motion for summary judgment instead constituted submission of the case for decision, thereby waiving the abandonment claim.

Citing Chevron, the First Circuit in Adams v. Adams, 14-0387 (La.App. 1 Cir. 3/11/15), 166 So.3d 1066, recently held that the defendant’s filing of an exception of no cause of action and a motion for new trial, prior to filing his ex parte motion for dismissal based on abandonment, constituted submission of the case for decision, thereby waiving his claim of abandonment.

This court has likewise acknowledged that when a party “takes an action inconsistent with abandonment prior to having formally moved for dismissal \ «¡based on abandonment,” that party waives its right to have the case dismissed for want of prosecution. Slaughter v. ARCO Chem. Co., 05-0657, p. 20 (La.App. 4 Cir. 4/26/06), 931 So.2d 387, 400 (emphasis added). As stated by this court in Slaughter:

The problem is that while the La. C.C.P. art. 561 rule that a case is abandoned after three years for non-prosecution seems straightforward and self-executing on its face, the jurisprudence has carved out so many exceptions that a party has no way to be sure of the court’s application of that rule to the facts of a particular case. Because the question of abandonment is fraught with so much uncertainty, a party cannot reasonably ignore actions taken by the opposing party that could have material consequences should the court decide against abandonment. Once a party has expressed its intentions clearly by moving for a decree of abandonment, that party should be permitted to protect its interests in the litigation pending the entry of a formal order of dismissal.

Id., 05-0657,p. 20, 931 So.2d at 399-400 (emphasis added).

In addition to Shields, Chevron, Slaughter, and Adams, the Louisiana cases cited in the majority opinion also involve a party whose steps which constituted a waiver of the right to assert abandonment were taken prior to the filing of a motion to dismiss under Article 561. See Clark v. State Farm Mutual Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779 (unconditional tender made on October 14, 1996; ex parte motion to dismiss filed on August 2, 1999); True Gospel of Jesus Christ Church Ministry v. Doucette, 08-0634 (La.App. 4 Cir. 11/19/08), 999 So.2d 795 (responses to interrogatories served in December 2003 and deposition taken in June 2007; ex parte motion to dismiss filed on January 4, 2008); City of Baton Rouge v. Smuggy’s Corp., 14-0134 (La.App. 1 Cir. 10/16/14), 166 So.3d 202 (deposition taken on January 4, 2013; ex parte motion to dismiss filed on October 9, 2013).

The rationale of these cases applies here. The Guients filed their ex parte motion to dismiss prior to taking any steps that might be construed as inconsistent with abandonment. When the Guients filed their Article 561 motion to dismiss, they clearly expressed their1 intention not to waive their claim of abandonment. After the trial court denied their motion, the Guients continued to protect their interests in this litigation pending an appeal of that judgment by defending themselves against Doucette’s claims, and by prosecuting their own reconventional demand. In so doing, the Guients should not be “put in jeopardy of waiving an abandonment already accrued and moved for.” Slaughter, 05-0657, p. 18, 931 So.2d at 398.

According to, the majority, the Guients waived abandonment because .they “never sought supervisory writs on the set aside of the abandonment dismissal.” For the first time, a majority of this court decides that a party whose motion to dismiss has been denied is required to seek immediate supervisory review of that decision, and cannot allow the matter to be submitted for judicial resolution, lest its abandonment claim be waived. The majority cites no legal authority for the position that a party who formally asserts its right to have its opponent’s claims dismissed as abandoned, and loses, has no choice but to file a writ application, or waive its objection to the trial court’s ruling.

A judgment denying a motion to dismiss on the grounds of abandonment is an interlocutory judgment that is not immediately appealable because it determines a preliminary matter and not the merits.of the action. Reed v. Finklestein, 01-1015, p. 2 (La.App. 4 Cir. 1/16/02), 807 So.2d 1032, 1033. As this court has pointed out, a party’s “right to dismissal [based on abandonment] can be adequately reviewed at the time of- an appeal from the final judgment which ultimately |Kdetermines the merits of the case,” Id. (citing Vernor v. Drexel Homes, Inc., 311 So.2d 493 (La.App. 4th Cir. 1975)).

Thus, even though the Guients have an absolute right to appeal the interlocutory judgment denying their motion to dismiss based on abandonment, the majority creates a new rule for abandonment cases akin to the judicially-created rule that the only mechanism by which to challenge an adyerse ruling on an exception of improper venue is by a supervisory writ. See Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36 (“Failure to timely file a writ application on a venue ruling amounts to a waiver of any objection thereto.”). By eliminating the Guients’ right to appeal the adverse ruling on their motion to dismiss, the majority has created an unwarranted judicial exception to a legislatively created rule; State v. Neisler, 94-1384, 94-1540 (La. 1/16/96), 666 So.2d 1064 (Calogero, J., dissenting).

For these reasons, I respectfully dissent.

      . In Executive Order No. KBB 2005-32, Governor Blanco declared that "[a]ll deadlines in legal proceedings, including liberative prescriptive and peremptive periods in all courts, administrative agencies, and boards are hereby suspended until at least September 25, 2005 .... This Order ... shall apply retroactively from Monday, August 29, 2005, through Sunday, September 25, 2005....” Thereafter, in Executive Order No. KBB 2005-48, the Governor amended the previous Order to suspend these deadlines until "at least October 25, 2005,” Finally, in Executive Order No. KBB 2005-67, the Governor extended the suspension of deadlines "until November 25, 2005.” The action of the Governor in issuing Executive Orders KBB 2005-32, 48, and 67 was "approved ratified, and confirmed subject to the provisions of R.S, 9:5822 through 5825.” See La. R.S. 9:5821(B).

      . La, C.C.P. art. 561(A)(2) was terminated by Acts 2007, No. 361, 51 effective August 26, 2010.

      . The record in this case lacks a transcript from the hearing wherein Appellee’s Motion to Set Aside Dismissal was granted, although the judgment appears in the record. Given that it is clear from the record that Appellants waived the abandonment, the transcript is not necessary for this ruling.

      . Abandonment is a form of liberative prescription. Slaughter v. ARCO Chem. Co., 2005-0657, p. 5 (La.App. 4 Cir. 4/26/06), 931 So.2d 387, 391-92.

      .After an amendment that was effective on July 9, 2007, La. C.C.P. art. 561(A)(2) allowed claims "not previously abandoned” an extension of the abandonment period to five years. Because the Guients claim was abandoned on February 14, 2007, prior to the effective date of this amendment, La. C;C.P. art. 561(A)(2) does not apply.

      . There is an argument that by obtaining this interlocutory judgment, the Guients preserved their right to appeal the abandonment decision regardless of their later conduct. See City of Baton Rouge/Par. of E. Baton Rouge v. Smuggy’s Corp., 2014-0134, p. 7 (La.App. 1 Cir. 10/16/14), 156 So.3d 202, 207 (internal citations omitted) (stating “once a party has formally raised the issue of abandonment, actions taken to defend the case pending a final ruling on the claim of abandonment will not serve to revive an abandoned claim). Actions taken to defend the case must be distinguished from actions facilitating and expressing consent to judicial resolution. In Smuggy’s Corp., actions to defend the case included participating in a status conference while appealing the abandonment issue and filing a memorandum in opposition contemporaneously with a motion to dismiss based on abandonment. Id. In the case sub judice, unlike the actions used as examples Smuggy’s Corp., the actions of the Guients moved the case to judicial resolution rather than simply defending the case while awaiting a final determination of abandonment.

      . Questions of fact are subject to the manifest error standard of review. Foley v. Entergy Louisiana, Inc., 2006-0983, p. 9 (La. 11/29/06), 946 So.2d 144, 153.

      . See Arnold, 416 So.2d at 182 (finding that “once substantial performance has been shown the burden of proof then shifts to the owner who must prove the existence and nature of the alleged defects, that they are due to faulty material and/or workmanship, and the cost of repairing the defects.”) (emphasis added) (internal citations omitted).

      . The Appellant brief indicates that this subcontractor was paid $5,775.00. However, the brief does not cite to anything in the record verifying this amount. The trial testimony of Ms, Guient was that the Guients paid this subcontractor "over 5,000 dollars.”

      . We note that in December of 2003, Dou-cette propounded requests for production of documents to the Guients, seeking copies of all documents relating to payments allegedly made by the Guients to other subcontractors. Although the Guients were proceeding pro se, they objected to these requests on the grounds of attorney-client privilege and the attorney work-product doctrine, and never produced any documents to Doucette. Mrs. Guient testified at trial that, although they had these documents in their possession when they received the 2003 discovery requests, the documents were destroyed in Hurricane Katrina.

      . The Guients bought the lot in 2005 for $50,000.00.

      . I fully join the majority opinion with respect to its disposition of the reconventional demand.

      . See, e.g., Bergeron v. B-P Amoco, 13-0760 (La.App. 4 Cir. 2/5/14), 131 So.3d 1128 (Jenkins, J., dissenting).

      . In Slaughter, the court found that the defendant — who filed a memorandum in opposition to the plaintiff's rule to show cause at the same time as it filed its motion to dismiss on the grounds of abandonment, did not waive its right to assert abandonment. As with this case, "such actions by a defendant who has moved for dismissal should not be characterized as expressing an intention inconsistent with that of abandonment.” Id., 05-0657, p. 18, 931 So.2d at 398.


author: Judge Madeleine M. Landrieu

text:
    Charles M. PEULER v. PRATT LANDRY ASSOCIATES
    NO. 2016-CA-0317
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 6, 2017
    Rehearing Denied January 20, 2017

      Clement P. Donelon, ATTORNEY AT LAW, 3900 North Causeway Boulevard, Suite 1470, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Luke P. LaRoeca, Susan F. Clade, SIMON, PERAGINE, SMITH & RED-FEARN, LLP, 1100 Poydras St., 30th Floor, New Orleans, LA 70163-3000, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard, Judge Madeleine M. Landrieu)
   Judge Madeleine M. Landrieu

| iThis appeal involves a dispute between an employee and his former employer. The disputed issues include amounts allegedly owed to the employee for compensation and vacation pay in the last year of his employment, and for attorney’s fees owed for the employer’s failure to pay all amounts owed to the employee.

Plaintiff, Charles Peuler, worked for Pratt Landry Associates, Inc. (“PLA”) from 1983 until his employment was terminated, effective June 30, 2007. PLA’s business included the sale, installation and servicing of fire alarms. Mr. Peuler held various positions during his employment with PLA, but for the period of time relevant to this appeal, July 1, 2006 to June 30, 2007, Mr. Peuler was a sales representative (July 1, 2006 to January 8, 2007) and then a consultant (January 8, 2007 to June 30, 2007.)

PLA restructured its compensation plan in June 2006. The new plan became effective July 1, 2006. Mr. Peuler was provided with a copy of the compensation | splan, and signed the plan' acknowledging his approval of its contents. In accordance with the plan, Mr. Peuler’s compensation was calculated differently than for previous years, beginning with his July 2006 paychecks. After he started receiving his new salary under the plan, Mr. Peuler complained to PLA management that his compensation was not being calculated in accordance with the terms of the plan, and that he was owed more than he was being paid. He met with Amy Bodet, the chief financial officer of PLA, who explained to him how she arrived at the calculation of his wages under the plan. Ms. Bodet also sent Mr. Peuler a memorandum dated July 28,2006, explaining how she calculated his base salary.

Mr. Peuler was working as a salesperson in July 2006, and continued to work in that capacity until January 2007. A meeting was held on January 8, 2007, and was attended by Mr. Peuler, Ms. Bodet, Pratt Landry, the owner of PLA, and Jesse Schmidt, the sales manager at PLA. At this meeting, Mr. Peuler was informed that he would no longer be employed as a salesperson with PLA, but would continue to remain employed as a consultant until June 30, 2007. He was also told that his employment with PLA would terminate completely on June 30, 2007. Ms. Bodet testified that this decision was based on concerns for Mr. Peuler’s safety because he was having mobility problems and had fallen several times.

Mr. Landry testified that PLA did not have consultants on its staff in January 2007, but he created the consultant position for Mr. Peuler so he could have six | minore months of income after his position as a sales representative ended. In addition to remaining on the payroll as a consultant for six months, Mr. Peuler was allowed to continue his coverage under all benefit plans and to keep his cell phone, which was paid for by PLA.

Several days after this meeting, Mr. Peuler sent an email to Mr. Landry expressing his concerns as to how his pay was being calculated. He also stated in the email that he had eleven (11) weeks of unused vacation time, and he asked when he would receive his vacation pay. Mr. Peuler subsequently received a letter from PLA stating that his accrued vacation pay would be included in his paycheck. In July 2007, he returned his cell phone to the PLA office.

It is undisputed that Mr. Peuler did not perform any work for PLA for the almost six-month period that he was being paid as a consultant. He testified that he was told to stay home during that period, and there was no testimony offered by PLA to dispute Mr. Peuler’s testimony on this issue. He stated that he received only two calls from PLA employees during his time as a consultant. He said he thinks he spoke to one of the employees, but did not return the call of the other employee who contacted him. When asked at trial why he did not do so, he stated, “I figured he’d call me again.” Ms. Bodet testified that Mr. Landry, Mr. Schmidt and employees in the engineering department called Mr. Peuler while he was a consultant, and he did not respond to those calls.

LOn December 21, 2007, Mr. Peuler filed a petition for damages against PLA, alleging that PLA was indebted to him for unpaid compensation pursuant to La. R.S. 23:631, et seq., for reasonable attorney’s fees, and for damages for breach of contract. PLA filed a dilatory exception of vagueness in response to Mr. Peuler’s petition. The trial court maintained the exception and ordered Mr. Peuler to amend his petition to specify whether sums he alleges he is owed by PLA are in the nature of wages/salary, commissions, bonuses or another classification. Mr. Peuler filed a first amended petition, adding allegations that the amounts owed to him by PLA include underpayment of his salary for the second half of 2006 and pay for accrued vacation time of 416 hours. Alternatively, he alleged that he is owed his regular salary from March 30, 2007 through June 30, 2007, because he was paid for his accrued vacation time during that period instead of receiving his salary. He also asked to be awarded payment of commissions on certain specified accounts.

In a second supplemental and amended petition, Mr. Peuler alleged that PLA was arbitrary, capricious and in bad faith for allegedly underpaying him for the period when he was a salesperson from July 1, 2006 until January 8, 2007, and for refusing to compensate him for unused vacation time. He alleged that he has made repeated amicable demands on PLA for all past due wages and vacation pay, and that he is entitled to penalty wages pursuant to La. R.S. 23:632, in addition to past due wages, vacation pay and attorney’s fees. In this petition, Mr. Peuler added Mr. Pratt Landry, owner of PLA, as a defendant, alleging that he assumed liability for amounts owed to Mr. Peuler when he sold PLA following Mr. Peuler’s 1 ¿termination. Mr. Peuler also alleged that PLA and Mr. Landry are indebted to him for unpaid compensation resulting from the breach of their contractual obligation to pay Mr. Peuler all amounts owed.

In their answers to Mr. Peuler’s petitions, PLA and Mr. Landry maintained that PLA has paid all sums due to Mr. Peuler under the compensation plan in effect prior to Mr. Peuler’s termination, and that they are discharged from any further obligations to him. They also alleged, and Mr. Peuler does not dispute, that Mr. Peu-ler was always an “at will” employee during his employment with PLA, and that there was never any contract of employment between Mr. Peuler and PLA.

Following trial, the trial court rendered judgment on December 1, 2015, in favor of Mr. Peuler and against PLA in the amount of $21,156.20 for unpaid wages (vacation time) and $11,250.00 for attorney’s fees plus judicial interest. The parties thereafter filed a joint motion to amend the judgment to correct the name of the defendant cast in judgment to Pratt Landry Associates, Inc. (instead of Pratt Landry <& Associates.) On December 9, 2015, the trial court rendered an amended judgment for the same amounts stated in the December 1, 2015 judgment, but which included the correct name of the defendant. Mr. Peuler appealed both judgments. PLA filed an answer to the appeal regarding attorney’s fees, and Mr. Peuler filed an answer thereto.

In his first two assignments of error, Mr. Peuler alleges error related to the trial court’s interpretation of the compensation plan’s provisions for the calculation of wages. He argues that the plan was ambiguous, and therefore should have been 1 (¡interpreted against PLA because Mr. Schmidt and Mr. Landry drafted the plan. He also argues that he should have been awarded an additional $55,769.24 in wages for the second half of 2006.

The section of the compensation plan entitled “Sales Personnel” states as follows:

The sales representative’s income is based on two components, salary and commission.
Salary is adjusted on July 1 and January 1 each year based on 4.6% of a salesperson’s booked sales volume for the previous 6 months. A job is considered “booked” when: 1) the job quote has been approved by the senior estimator and sales manager; and 2) the job has been placed on PLA’s books through a binding signed customer purchase order.
Example: A sales rep has $950,000 in booked sales vaVume on the last day of the )ialf fiscal year. Starting the first pay period of the following half fiscal year, the sales rep’s annual salary is set at $87,^00 for six months. ($950,000 x 16% = $87,m) or $7,288.33/month. (emphasis in original.)

The section of the plan entitled “Termination of Employment” includes the following portion:

The new compensation changes will not go into effect until the end of the 1st half of the 2006-2007 fiscal year (July 1, 2006). This allows 3 months to ramp up sales. This is being done at an expense to PLA so every effort should be made to maximize the benefits and avoid unnecessary additional costs. Your initial salary on July 1, 2006 when this plan is implemented will be based on the sales you book between October 1, 2005 and June 30, 2006. For jobs booked prior to July 1, 2006 you will be paid commissions of 2.4% 30 days after PLA is paid for said jobs.

At trial, Ms. Bodet testified as to how she calculated Mr. Peuler’s wages for the second half of 2006 pursuant to the “Sales Personnel” section of the compensation plan. She utilized his booked sales from the previous twelve months 17(from July 1, 2005 to June 30, 2006), $2,502,647.86, and multiplied that amount by 4.6% to arrive at his annual base salary of $115,121.80, or $4,427.76 for each of the 26 pay periods in a one-year period. The plan is silent as to how often a sales representative is paid, but Ms. Bodet testified that they áre paid biweekly, for a total of 26 pay periods in a year. While conceding that the mathematical example in the “Sales Personnel” section of the plan is incorrect, Ms. Bodet stated that she used twelve months of sales data to calculate Mr. Peuler’s salary for the last half of 2006 because that section of the plan refers to a sales representative’s “annual” salary. Mr. Peuler was paid $4,427.76 for each of the 13 pay periods for the six-month period from July 1, 2006 to December 31, 2006.

For the first half of 2007, Ms. Bodet calculated Mr. Peuler’s wages by multiplying his booked sales from the last six months of 2006 ($1,149,789.34) by 4.6%, for a total of $52,890.31. She divided that amount by 13, and paid Mr. Peuler $4,068.49 for the 13 pay periods in the first half of 2007. She said that when she calculated Mr. Peuler’s wages for the second half of 2006, she divided the total figure (booked sales x 4.6%) by 26 because she used twelve months of booked sales to arrive at an annual salary amount. Ms. Bodet acknowledged that she incorrectly calculated Mr. Peuler’s salary for the first half of 2007, and should have divided the total amount by 26 instead of 13. However, she testified that the result of her miscalculation for the first half of 2007 was that Mr. Peuler received 1 «twice as much in salary during that period than the amount to which he was entitled.

Mr. Peuler argues that Ms. Bodet incorrectly based his salary calculation for the second half of 2006 on his previous twelve months of sales, and should have instead used the previous nine months of booked sales (as per the above-quoted language in the “Termination of Employment” section of the plan.) He also argues that she should have divided his base salary for 2006 by 13 (as Ms. Bodet did for the first half of 2007) instead of by 26.

“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046. In the interpretation of a written instrument, extrinsic evidence is proper only where the instrument is ambiguous after examination of its four corners. French Quarter Realty v. Gambel, 2005-0933, p. 7 (La.App. 4 Cir. 12/28/05), 921 So.2d 1025, 1030. “If, after examining the four corners of a contract, the contract is ambiguous, the agreement shall be construed according to the intent of the parties, which is to be inferred from all of the surrounding circumstances.” New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 2009-1433, p. 10 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 401.

The determination of whether a contract is clear or ambiguous is a question of law. Landis Const. Co., L.L.C. v. St. Bernard Parish, 2014-0096, p. 5 (La.App. 4 Cir. 10/22/14), 161 So.3d 969, 963. Ambiguities of an agreement are construed against the drafter of the agreement. Robinson v. Robinson, 1999-3097, p. 18 (La. 1/17/01), 778 So.2d 1105, 1122. “Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown.” New Orleans Jazz and Heritage Foundation, Inc, 2009-1433, p. 9, 40 So.3d at 401, quoting Clinkscales v. Columns Rehabilitation and Retirement Center, 2008-1312, p. 3 (La.App. 3 Cir. 4/01/09), 6 So.3d 1033, 1035-1036.

While Mr. Peuler argues that the trial court erred in not finding the plan ambiguous, it is clear from the reasons for judgment that the trial court did find the plan ambiguous, even though the word “ambiguous” is not in the reasons. The trial court also obviously believed that extrinsic evidence was necessary to determine the parties’ intent with regard to the compensation plan. We agree with the trial court’s apparent finding that the compensation plan was ambiguous and required extrinsic evidence to determine the parties’ intent. The trial court relied on the testimony of Ms. Bodet and Mr. Landry to determine how Mr. Peuler’s wages were calculated for the second half of 2006 and whether those calculations were properly made in accordance with the compensation plan.

The trial court found that Mr. Peuler received the proper amount of wages for the second half of 2006, and found no merit to his argument that he is entitled to additional wages for that period. The court noted that while the example in the “Sales Personnel” section of the plan was mathematically incorrect, the meetings held subsequent to the implementation of the plan established that Mr. Peuler understood that his wages for the second half of 2006 were based on an annual |insalary of $115,121.80. The trial court noted that the plan provided for an annual salary adjustment every six months based upon the preceding six months of booked sales. Ms. Bodet testified that she explained to Mr. Peuler how his salary was being calculated under the new plan for the second half of 2006, and he made no further complaints and accepted the salary. Although Mr. Peuler relies on the section of the plan, which stated that nine months of previous sales were to be considered for “your initial salary on July 1, 2006,” there is no further explanation as to calculations in that section. While the example used in the section setting forth the calculation for a sales representative’s salary included a mathematical error, it stated that the calculation was for “the sales rep’s annual salary, and that is why Ms. Bodet used twelve months of sales data to calculate Mr. Peuler’s salary for the last half of 2006. (Emphasis ours.)

During Ms. Bodet’s testimony at trial, she was questioned regarding certain inconsistencies between her deposition testimony and her trial testimony. After hearing the testimony at trial, the trial court found that Ms. Bodet and Mr. Landry were credible witnesses, and that Mr. Peu-ler’s wages for the second half of 2006 were properly calculated. Because the trial court’s credibility determinations were reasonable, we find no error in her factual finding that Mr. Peuler is not entitled to additional wages for the second half of 2006.

Mr. Peuler next argues that the trial court erred in not awarding statutory penalty wages to him in accordance with La. R.S. 23:632. Mr. Peuler’s argument that he is entitled to statutory penalty wages is based on his contention that PLA I ¶ Jailed, without good cause, to pay the amount of wages he is owed for the second half of 2006. As stated above, we find no merit in that argument. However, Mr. Peuler additionally argues that penalty wages are owed to him because PLA failed to compensate him for vacation pay. The trial court found that PLA owes Mr. Peu-ler $21,156.20 in unpaid wages, which amount represents his accrued vacation pay.

This suit for unpaid compensation was filed pursuant to La. R.S. 23:631. Section D of that statute states the following regarding vacation pay:

(1) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of ■ the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually-earned by an employee pursuant to the employer’s policy.

La. R.S. 23:632, the statute addressing penalty wages, states:

A. Except as provided for in Subsection B of this Section, 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.
|1RB. When the court finds that an employer’s dispute over the amount of ■ wages due was in good faith, but the employer is subsequently found by the court to owe the amount in - dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer’s failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.
C. 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.

“In order to recover penalty wages and attorney’s fees under La. R.S. 23:632, the claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer did not pay upon demand.” Becht v. Morgan Bldg. & Spas, Inc., 2002-2047, p. 4 (La. 4/23/03), 843 So.2d 1109, 1112; “When a defendant denies liability after suit is filed, technical deficiencies in a pre-suit demand' are waived by him and will not defeat the imposition of statutory penalties designed to enforce prompt payment,” Carriers v. Pee Wee’s Equipment Co., 364 So.2d 555, 657 (La. 1978.)

“Penalties should not be imposed on the employer when it presents a good faith non-arbitrary defense to its liability for unpaid wages.” Saacks v. Mohawk Carpet Corp., 2003-0386, p. 16 (La.App. 4 Cir. 8/20/03), 856 So.2d 359, 370. “A trial court’s determination of whether an employer is arbitrary or in bad faith for purposes of imposing penalty wages is a question of fact and is, therefore, subject 11sto the manifest error standard of review.” Jeansonne v. Schmolke, 2009-1467, p. 18 (La.App. 4 Cir. 5/19/10), 40 So.3d 347, 361, citing Loup v. Louisiana State School for the Deaf, 1998-0329, p. 6 (La.App. 1 Cir. 2/19/99), 729 So.2d 689, 693.

Ms. Bodet testified that at the beginning of 2007, Mr. Peuler had accrued 416 hours of vacation time, but in 2007, he would have only been entitled to use 300 hours, which is the maximum amount of accrued vacation time an employee was allowed to use in a one-year period. It is undisputed that Mr. Peuler did not use any of his vacation time in 2007, but he testified that he requested to be paid for his unused accrued vacation time. After his position at PLA changed to that of consultant, Mr. Peuler did not accrue any additional vacation time. He received a letter from PLA saying his accrued vacation pay would be included in his paycheck. Mr. Peuler testified that he neither agreed to nor requested this action.

The dispute over Mr. Peuler’s vacation pay arises from the fact that PLA did not pay him for his vacation time in addition to his salary, but instead paid him for his accrued vacation time as part of his salary. As noted above, Mr. Peuler’s employment with PLA was terminated effective June 30, 2007. Ms. Bodet testified that Mr. Peu-ler received payment for all 416 hours of his accrued vacation time as part of his salary in 2007, even though she contends that he was only owed payment for the company’s annual maximum of 300 hours of vacation time. When asked at trial why she paid Mr. Peuler for more vacation time than he was entitled to receive, she answered, “I just wiped out the accrual. It was still his salary.”

I uThe trial court found that Mr. Peuler is not entitled to penalty wages under La. R.S. 23:632 for the failure of PLA to pay him for his accrued vacation time. While finding that PLA should not have included Mr. Peuler’s unused vacation time as part of his salary, the court noted that it was undisputed that Mr. Peuler failed to perform any services for PLA after becoming a consultant in January 2007. The court also stated that her finding that the calculation of wages for the second half of 2006 was proper supports a finding that a genuine dispute existed between the parties as to whether PLA owed Mr. Peuler any amounts other than those already paid. The trial court declined to award penalty wages after finding that the testimony showed that there was a good faith dispute as to the amount of vacation pay owed to Mr. Peuler.

PLA should not have made the unilateral decision to use amounts earned by Mr. Peuler in accrued vacation pay as part of his salary during his time as a consultant. However, the record shows that this mistake was made in good faith, especially given the fact that Mr. Peuler did not perform any work for PLA after his position was changed from salesperson to consultant. We find no error in the trial court’s decision declining to award penalty wages pursuant to La. R.S. 23:632.

In his next assignment of error, Mr. Peuler argues that the trial court abused its discretion in its award of attorney’s fees. The trial court awarded Mr. Peuler attorney’s fees in the amount of $11,250.00. Counsel for Mr. Peuler argues that this award should be increased, noting that he spent over 180 hours litigating this case.

11fi“Even if penalty wages are not due, reasonable attorney’s fees are to be awarded for a well-founded suit for any unpaid wages.” Saacks, 2003-0386, p. 18, 855 So.2d at 371. “Unlike penalty wages, courts do not permit equitable defenses to the award of attorney’s fees in the event that a ‘well-founded suit’ for wages is filed.” Id. “The suit is considered ‘well-founded’ and an award of attorney’s fees is mandatory where the employee brings a successful suit and recovers unpaid wages.” Id. “Factors to be considered in determining the reasonableness of attorney’s fees include the following: (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; (9) the diligence and skill of counsel; and (10) the court’s own knowledge.” Id. (citations omitted.)

In setting the award of attorney’s fees at $11,250.00 instead of $37,000.00 as suggested by counsel for Mr. Peuler, the trial court stated that while counsel’s hourly rate of $375.00 is reasonable given the skill and time expended on this case, an award of $37,000.00 in attorney’s fees would be excessive given the fact that Mr. Peuler was only found to be entitled to an award of $21,156.20 in unpaid wages. The trial court found that an award of $11,250.00 in attorney’s fees is reasonable in this case. We find no error.

In his final assignment of error, Mr. Peuler argues that the trial court erred in failing to find that Mr. Landry is personally hable for Mr. Peuler’s claim for | ifiunpaid compensation. At trial, Mr. Landry testified that he sold PLA to Detection Logic Incorporated after Mr. Peuler’s employment was terminated. When asked if he assumed personal liability for Mr. Peu-ler’s wage claim in that sales agreement, Mr. Landry replied that he did. The sales agreement between PLA and Detection Logic Incorporated is not in the record, so we cannot determine the details of that agreement. Based on the record before us, we cannot say the trial court erred in not finding Mr. Landry personally liable for Mr. Peuler’s wage claim.

PLA answered Mr. Peuler’s appeal, arguing that the trial court erred in finding that Mr. Peuler was entitled to an award for vacation pay, or alternatively, if an award is due, it should be limited to PLA’s maximum amount of 7.5 weeks, or 300 hours, of vacation time. Based on this argument, PLA further argues that Mr. Peuler is not entitled to attorney’s fees pursuant to La. R.S. 23:632. As stated above, we find no error in the trial court’s award of $21,156.20 in vacation pay. PLA was willing to pay Mr. Peuler for all 416 hours of his accrued vacation time when it incorrectly paid him for vacation time instead of salary while he was employed as a consultant. The trial court did not limit Mr. Peuler’s award of vacation pay to 300 hours, and we find no error in that decision. Also, as stated above, we find no error in the trial court’s award of $11,250.00 in attorney’s fees for PLA’s failure to pay Mr. Peuler for his accrued vacation time. Accordingly, we find no merit in PLA’s cross-appeal.

117Finally, Mr. Peuler filed an answer to PLA’s cross-appeal, requesting additional attorney’s fees for defending against the cross-appeal. After this appeal was lodged, this Court granted Mr. Peu-ler’s motion to supplement the record with his counsel’s affidavit and time sheets relating to the litigation of this appeal. Based on counsel’s affidavit and time sheets, Mr. Peuler asks that he be awarded a total of $40,200.00 in attorney’s fees for defending this appeal. PLA opposed Mr. Peuler’s request for additional attorney’s fees for defending this appeal, and alternatively requested that any amount awarded be substantially less than that requested by Mr. Peuler.

“An increase in attorney’s fees should be awarded to a party who has already been awarded attorney’s fees by the trial court and then successfully defends an appeal.” Saacks, 2003-0386, p. 25, 855 So.2d at 375. We find that Mr. Peuler is entitled to additional attorney’s fees for successfully defending PLA’s cross-appeal. However, we do not find the amount requested by Mr. Peuler for this award to be reasonable. Considering the factors to be considered in determining the reasonableness of attorney’s fees, as set forth above in the argument regarding penalty wages, we find that $2,500.00 is a reasonable award for attorney’s fees for the defense of this appeal. We amend the award of attorney’s fees to include an additional $2,500.00 for the defense of this appeal, for a total of $13,750.00 to be awarded to Mr. Peuler in attorney’s fees.

|1sFor the reasons stated above, the trial court judgment is amended to increase the award of attorney’s fees to $13,750.00. In all other respects, the trial court judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED

      . The owner of PLA sold the business subsequent to the termination of Mr. Peuler’s employment.

      . Mr, Peuler's salary for the first six months of 2007 differed from what he was paid for the last six months of 2006, The details as to how his salary was calculated for those two periods are included below in the discussion of Mr. Peuler's first two assignments of error.

      . Ms. Bodet acknowledged that Mr. Peuler's first paycheck in July 2006 was less than he was owed because she used figures calculated by Mr. Schmidt for that check. When she made her own calculations based on more specific sales information, the second check paid to Mr. Peuler in July was for $4,427.76, plus the additional amount he should have been paid in his first check.

      . In earlier portions of this opinion, we have found that Mr. Peuler was not entitled to the other items requested in his answer to PLA’s cross-appeal.


author: Judge Roland L. Belsome McKAY, C.J.,

text:
    James Huey FLETCHER and Janet S. Fletcher v. ANCO INSULATIONS, INC., et al.
    NO. 2016-CA-0424
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 11, 2017
    Rehearing Denied February 10, 2017

      John Venezia, Julie O’Shesky, VENE-ZIA & ASSOCIATES, 757 St. Charles Avenue, Suite 302, New Orleans, LA 70130— AND — Lynn Eric Williams, Jr., WILLIAMS LAW OFFICE, LLC, 433 Metairie Road, Suite 401, Metairie, LA 7000 — AND—John J. Finckbeiner, Jr., Samuel Fuller, 2203 Pakenham Drive, Chalmette, LA 70043, COUNSEL FOR PLAINTIFF/APPELLANT
    Martin A. Stern, Raymond P. Ward, Diana C. Surprenant, ADAMS AND REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, James M. Williams, CHEHARDY, SHERMAN & WILLIAMS, One Galleria Blvd., Suite 1100, Metairie, LA 70001, David M. Bien-venu, Jr., Lexi T. Holinga, BIENVENU, BONNECAZE, FOCO, VIATOR, HOLIN-GA LLC, 4210 Bluebonnet Blvd., Baton Rouge, LA 70809, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome)
   Judge Roland L. Belsome

| jThis appeal is taken from the trial court’s judgment, rendered after trial on the merits, determining that James Huey Fletcher was a statutory employee of Exx-onMobile (hereinafter Exxon). For the reasons that follow, we affirm.

Mr. Fletcher was diagnosed with pleural mesothelioma in 2015. Mr. Fletcher, now in his 70s, worked at Keiser Aluminum in 1963 until 1966. He later worked in a tool trailer at the Exxon refinery in Baton Rouge, Louisiana from 1988 until 1999. After Mr. Fletcher’s diagnosis, he and his wife filed suit against Kaiser, Exxon, and multiple other defendants alleging asbestos exposure. The only defendants that proceeded to judgment in this bench trial were Exxon and Anco Insulations. The trial court found that Exxon was Mr. Fletcher’s statutory employer during his time at the refinery. The trial court further found that Anco Insulations was not a cause of Mr. Fletcher’s exposure to asbestos-containing materials. Subsequently, Mr. Fletcher filed this appeal.

On appeal, Mr. Fletcher maintains that the trial court erred in its finding that he was a statutory employee of Exxon.

[2This Court reviews the lower court’s determination of statutory employment status under a manifest error standard of review.

Statement of the Case

Mr. Fletcher worked for J.E. Merit, a contractor that provided additional workers for Exxon during maintenance activities at the refinery known as turnarounds. Mr. Fletcher worked in a mobile tool trailer and was in charge of dispersing and collecting tools for other J.E. Merit workers. Mr. Fletcher disputes Exxon’s position that he was a statutory employee. He likens the facts of this case to Lewis v. Exxon. In suggesting that this case raised the same issue as in Lewis, Mr. Fletcher maintains that certain activities performed by J.E. Merit, such as concrete work, indicate that J.E. Merit was contracted to perform new construction outside the scope of what Exxon’s direct employees would have the capacity to do.

In Lewis, the plaintiff was the direct employee of a contractor hired by Exxon to convert an inoperative ethanol unit to a unit that produced isopropanol. The plaintiff was injured while performing work related to the scope of the conversion. The evidence indicated that the task that the plaintiff was performing at the time of his injury was something Exxon’s direct employees were capable of accomplishing. The Lewis Court declined to view only that specific task when determining Lewis’ employment status, but rather stated that courts must look at the scope of work being performed by the contractor as a whole. Ultimately, the Court determined that Exxon was not in the business of plant construction or the |sconversion of processing units. Therefore, under those facts, Exxon was not a statutory employer for that contractor’s employees.

In the instant case, it was established by Exxon’s corporate representative that the refinery relied on contractors such as J.E. Merit to bring in additional workers to support its direct employees during maintenance activities on existing processing units known as turnarounds. Turnarounds were considered routine maintenance to keep the processing units in good working condition. Bringing in a contractor to assist in turnarounds helped Exxon accommodate the need for a fluctuating workforce. Exxon’s direct employees during these activities included machinists/millwrights, instrument technicians, and electricians. The workforce also included people that performed civil and structural work, such as excavation. During the turnarounds it was common to replace older equipment that was related to the use of the process unit. It was also necessary at times to replace the foundations that held the equipment. Just like with other turnaround and maintenance activities, when replacing foundations Exxon’s direct employees would work with the contractors to excavate and organize the activity.

Additionally, Kenneth Hebert was a project superintendent for J.E. Merit at the time Mr. Fletcher was working at the Exxon refinery. He testified that J.E. Merit’s work was primarily on turnarounds. When asked about new construction, Mr. Hebert claimed that J.E. Merit would do “projects”. He described the projects as possibly having to “add an exchanger or a pump or a vessel to an existing unit.” Mr. Hebert stated that these things needed to be done while the processing unit was shut down during the turnaround. He also claimed that civil crews were provided to excavate dirt for foundations, set forms, and pour concrete.

]¿Law and Analysis

The exclusive remedy of an employee against his employer for work-related injuries is set forth in the Louisiana Workers’ Compensation statute, La. R.S. La. R.S. 23:1082. That exclusive remedy also extends to statutory employers under La. R.S. 23:1061. Based on the dates that Mr. Fletcher worked at Exxon, the parties agree that the applicable statutory provision for determining his employment status is La. R.S. 23:1061 as amended in 1989. The statute establishes that a statutory employer is a principal who has contracted with others to perform work “which is part of his trade, business, or occupation.” The statute further reads that:

The fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal’s direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal’s trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.

Discussing La. R.S. 23:1061, the Louisiana Supreme Court, in Kirkland v. Riverwood Int’l USA, Inc., held that to determine whether the contract work is part of the alleged principal’s trade, business, or occupation the court must review, on a case-by-case basis, “all pertinent factors under the totality of the circumstances.” Kirkland proceeded to provide the following eight factors to consider in ascertaining whether a statutory employment relationship exists:

(1) The nature of the business of the alleged principal;
(2) Whether the work was specialized or non-specialized;
|fi(3) Whether the contract work was routine, customary, ordinary or usual;
(4) Whether the alleged principal customarily used his own employees to perform the work, or whether he contracted out all or most of such work;
(5) Whether the alleged principal had the equipment and personnel capable of performing the contract work;
(6) Whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work;
(7) Whether the direct employer of the claimant was an independent business enterprise who insured his own workers and included that cost in the contract; and
(8) Whether the principal was engaged in the contract work at the time of the incident.

The Kirkland Court further explained that under the 1989 version of § 1061, “[t]he presence or absence of any one factor is not determinative, and the presence of one factor may compensate for the lack of another.”

At the conclusion of trial, post-trial briefs were filed, and the trial court rendered judgment on February 4, 2016. In that judgment the trial court examined the evidence presented on the threshold issue of Mr. Fletcher’s employment status as it related to Exxon. In so doing, the trial court recognized the Kirkland test, and noted that the factors created guidelines that are not absolute or rigid, but are instead to be applied relatively when determining if the contract work is part of the principal’s trade, business, or occupation.

In applying the factors to the aforementioned testimony elicited at trial, the trial court determined that the work performed by J.E. Merit was routine ordinary regularly scheduled maintenance. J.E. Merit would replace, refurbish, or upgrade equipment due to wear and tear. These activities took place during the turnarounds Rwhile the processing units were shut down. J.E. Merit did not perform any extraordinary construction and/or repairs.

The record further supports that Exxon is in the business of transforming crude oh into multiple other products. This process occurs in processing units. The processing units warrant periodic maintenance which is performed during turnarounds. J.E. Merit was a contractor hired to help facilitate the turnarounds. Exxon’s direct employees oversaw and were involved in the activities. Additionally, Exxon had the tools, equipment, and personnel capable of performing the contract work.

When reviewing a trial court’s judgment under a manifestly erroneous standard, it is this Court’s function to review the record in its entirety to see if the trial court’s factual conclusions were reasonable. If the record supports the factual determinations, this Court will not disturb the trial court’s findings, even if we would have found differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.

Conclusion

Based on this specific record, we cannot find that the trial court was manifestly erroneous in its factual findings. For that reason, the judgment is affirmed.

AFFIRMED

McKAY, C.J.,

DISSENTS WITH REASONS

hi respectfully dissent from the majority opinion and would reverse the trial court’s judgment finding that James Huey Fletcher was a statutory employee of ExxonMo-bil.

The issue of statutory employment status is a mixed question of law and fact. Domino v. Folger Coffee Co., 2009-1278, p. 10 (La.App. 4 Cir. 2/10/10), 32 So.3d 956, 960-61 (citing William E. Crawford, 12 LA. CIVIL LAW TREATISE, TORT LAW § 27:51 (2d ed. 2009); Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 899, 224 S.E.2d 323, 324 (1976) (noting that the issue of whether an independent contractor’s activities constitute a part of an owner’s trade, business, or occupation is a mixed question of law and fact that must be resolved in light of the facts and circumstances of each case).

The Louisiana Supreme Court has held that the manifest error standard of review is the proper standard to be applied to mixed questions of law and fact. Domino v. Folger Coffee Co., 2009-1278, p. 10; Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 364; Kirkland Riverwood International USA, Inc., infra. In Kirkland, the Louisiana Supreme Court held that:

Once the Legislature declared in 1989 that no single factor is determinative, the fact-based nature of the inquiry virtually necessitates a multi-factored, cases-by-case factual inquiry under the totality of the circumstances.

Kirkland v. Riverwood Int’l USA, Inc., 95-1830, p. 15 (La. 9/13/96), 681 So.2d 329, 337; see also Lewis v. Exxon Corp., 441 So.2d 192 (La. 1983) (finding that a trial court’s finding on the question of a statutory employment is a factual one that should not be disturbed on appeal absent manifest error); H. Alston Johnson, 13 LA. CIVIL LAW TREATISE, WORKERS’ COMPENSATION LAW AND PRACTICE § 126 (3rd ed. 1994)(noting that “the question of whether the work performed by the contractor is part of the principal’s business is of course one of fact).

The record in this matter contains evidence demonstrating that from the late 1980’s through the 1990’s, J.E. Merit was engaged by Exxon to provide various skilled and unskilled, union and non-union work forces and tools for various workforces for maintenance of its facility, turn-ai’ounds, and also reconstruction and new construction within Exxon’s facility. Mr. Fletcher testified that there is eye-witness testimony that J.E. Merit’s employees included craftsmen such as pipe fitters, iron workers, boilermakers, millerites, insulators, and demolition teams.

Demolition teams, which excavated dirt, tore down scaffolding; the craftsmen that formed foundations, finished cement, formed crane platforms and then erected scaffolding (the civil-engineering teams), all of which reconstructed Exxon units and/or constructed new Exxon units, are all akin to those of H.E. Weiss, Inc., who was contracted to reconstruct an inoperative Exxon unit into three operating units. See Lewis v. Exxon Corp., 441 So.2d 192, 195 (La. 1983).

While there is testimony that Mr. Fletcher did perform reconstruction and new construction, he was also exposed to asbestos while performing alleged routine work, such as turn-arounds, tool room operations and other maintenance. However, in Lewis, the Louisiana Supreme Court declared that the performance of routine work under a contract for plant conversion/reconstruction, was not dispositive, and the plaintiff in that case, who was injured while performing routine [.qinstallations of orifice runs when his employer was engaged in a construction project, was not a statutory employee of Exxon. Therefore, even if Mr. Fletcher did perform reconstruction and new construction, he is not subject to statutory-employee status because J.E. Merit was engaged by Exxon to provide civil engineering teams for unit reconstruction and new construction of its unit.

      . Mr. Fletcher only appealed as to Exxon. The Anco Insulations ruling has not been appealed.

      . Dominio v. Folger Coffee Co., 09-1278, p. 11 (La.App. 4 Cir. 2/10/10), 32 So.3d 955, 961. (citations omitted).

      . 441 So.2d 192 (La. 1983).

      . Id. at 199.

      . Id.

      .The Legislature later amended the statute in 1997, expressly providing for the provisions of the amendment to be applied prospectively only and that it would not apply to any causes of action arising before the effective date of June 17, 1997.

      . La. R.S. 23:1061.

      . 95-1830 (La. 9/13/96), 681 So.2d 329.

      . Id. pp. 14-15, 681 So.2d at 336-37.

      . Id. p. 14, 681 So.2d at 336.

      . Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8-9 (La. 12/8/15), 193 So.3d 1110, 1115-16 (citations omitted).

      . Id.

      . Id.