author: PARRO, J.

text:
    In re Succession of Charles Robert SESSIONS. Judith Len Caldwell Sessions v. Succession of Charles Robert Sessions.
    Nos. 2008 CA 1683, 2008 CA 1684.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2009.
    Wayne A. Collier, Slidell, LA, for Appel-lee, Evelyn Marie Rosier, executrix for the Succession of Charles Robert Sessions.
    Raymond C. Burkart, Jr., Katherine Og-burn Burkart, Covington, LA, for Appellant, Judith Len Caldwell Sessions McKil-lop.
    Before: PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

]2The plaintiff in a suit for partition of former community property, which was consolidated with her ex-husband’s succession proceeding, appeals a judgment relating to the partition in favor of the succession and the person serving as its executrix. On appeal, the plaintiff has also filed an exception raising the objection of prescription with respect to a claim for reimbursement filed by the succession. For the reasons that follow, the judgment is vacated, and the exception and this matter are remanded.

Factual and Procedural Background

Judith Len Caldwell Sessions McKillop (McKillop) and Charles Robert Sessions (Sessions) were divorced by judgment dated February 9, 1987. During their marriage, McKillop and Sessions purchased a home, subject to a mortgage executed on May 24, 1979, securing a debt evidenced by a promissory note payable to bearer in the amount of $46,500 with an interest rate of 10 percent, which note was payable in monthly installments of $408.27 for a term of 30 years. Following their divorce, no steps were taken by McKillop or Sessions to partition the patrimony that belonged to their former community of acquets and gains, including the home in which Sessions continued to reside. At some point, Evelyn Marie Rosier (Rosier) moved into the home with him.

On January 2, 1994, Sessions died in an automobile accident. In his handwritten testament dated January 29, 1990, he left all of his “real and personal property to Evelyn Marie Rosier the woman I love,” with whom he had been living. On April 22, 1994, Rosier filed a petition for probate of Sessions’ olographic testament, praying for the probate of Sessions’ testament, the confirmation of her as the testamentary |gexecutrix, and the issuance of letters testamentary to her. In the detailed descriptive list that was filed with the petition for probate, Rosier identified a one-half interest in the home in question as Sessions’ separate property, with a related indebtedness as a separate debt.

On April 25, 1994, McKillop and members of Sessions’ family filed a petition to appoint an administrator of Sessions’ succession and to appoint a notary to search for a testament and life insurance policies. Sessions’ mother sought to be appointed as the administratrix. Following the denial of their motion for the appointment of an administrator, McKillop and the others (claiming to be creditors of the succession) filed a motion on August 22, 1995, to compel the payment of their claims against the succession and for an accounting of the assets and liabilities of Sessions’ succession. In that motion, McKillop alleged that their community property had not been partitioned and that the home listed by Rosier in the detailed descriptive list belonged to McKillop and Sessions’ former community. Thus, by that motion, McKil-lop sought to partition the community property and to recover from Rosier one-half of the fair rental value of the home from the date of Sessions’ death through the present. Pursuant to this motion, Rosier was ordered on August 24,1995, to file within 30 days a tableau of distribution and an accounting of the succession’s assets and liabilities.

Rosier then filed an exception styled as an objection of unauthorized use of a summary proceeding and/or improper cu-mulation of actions in connection with McKillop’s request for a partition in the succession proceeding. On September 29, 1995, pursuant to LSA-R.S. 9:2801, McKillop filed a separate action against Sessions’ succession to partition the community property and for an accounting by the executrix |4of Sessions’ succession. In her petition, McKillop sought to have Rosier, as the executrix of Sessions’ succession, file a sworn detailed descriptive list of assets and liabilities belonging to the former community. McKillop prayed for a judgment partitioning the former community property. On October 6, 1995, Rosier was ordered to file a detailed descriptive list within 60 days of the service of McKillop’s petition. In connection with a subsequent ex parte motion, Rosier was ordered on December 20, 1995, to file a sworn detailed descriptive list within 90 days.

In a supplemental and amending petition in the partition proceeding, McKillop, among other things, sought reimbursement for the fair rental value of the community home from the date of the divorce until a full and final partition of the community and, in the alternative, sought sequestration of Rosier from the community property pending the partition due to a conflict of interest.

In the succession proceeding, Rosier was again ordered on January 28, 1996, to file within 60 days a tableau of distribution and an accounting of her administration. At the end of January 1996, Rosier’s counsel withdrew as counsel of record in both proceedings. New counsel did not enroll on Rosier’s behalf until August 23, 2001, after which Rosier, pursuant to LSA-R.S. 9:2801(A)(1)(a), sought an order requiring McKillop, as the petitioner in the partition proceeding, to file a sworn detailed descriptive list within 45 days. In the absence of McKillop’s compliance with the resulting September 19, 2001 court order, Rosier by rule to show cause filed on December 19, 2002, sought to have the court accept her sworn detailed descriptive list, filed that same day, as a judicial determination of the community and to have the court partition the property between the parties, ie., McKillop and Sessions’ succession. In the memorandum in support of her rule to show cause, Rosier proposed the following partition:

|5(a) that the only available asset, namely the house, be partitioned to the Succession with the Succession assuming the current mortgage[,] (b) the Succession and [McKillop] each to keep the [movables] in their possession^] and (c) to equalize payments, there be judgment in favor of the Succession and against [McKillop] for payment, plus each party to pay their own costs.

Rosier’s list identified the home as community property valued at $75,000 and set forth a claim by the succession for reimbursement from McKillop for one-half of the payments on the mortgage note from February 9, 1987, through December 1, 2002, in the amount of $38,581.52. Rosier’s list also set forth a principal balance of $22,550 remaining on the mortgage note (a community obligation) as of December 1, 2002.

In response to Rosier’s motion for the acceptance of her list, McKillop argued that LSA-R.S. 9:2801 was not applicable in this case since the property was also involved in a succession proceeding, citing Succession of Brown, 468 So.2d 794 (La.App. 1st Cir.1985). McKillop instead urged the applicability of former LSA-C.C. art. 1328, pertaining to judicial partitions by co-owners. McKillop’s subsequently filed sworn detailed descriptive list disclosed a present value of $100,000 for the home and included a reimbursement claim for one-half of the rental value of the home from the date of Sessions’ death to February 21, 2003, in the amount of $30,136.42.

On January 22, 2003, McKillop and members of Sessions’ family filed a motion to have Rosier removed from the position of executrix and to have Sessions’ mother appointed as the administratrix of the succession. That motion was grounded on allegations that Rosier failed to make any effort to wind up the affairs of the succession, failed to pay their claims as creditors, effectively converted the former community property to her own use, failed to partition the former community property, and breached her fiduciary duty. Alternatively, they requested that Rosier be compelled to provide security. Rosier opposed the motion, contending that the resolution of | fjMcKillop’s suit for partition was critical to the conclusion of the succession proceeding in that the solvency of Sessions’ succession was dependent on the partition of the former community property and the resolution of the reimbursement claims. Rosier averred that McKillop’s actions in the partition proceeding thwarted her efforts in the succession proceeding, thus the motion to have her removed from the position of executrix should be denied.

At the hearing on the motion to remove, the trial court refused to remove Rosier as the executrix and requested that the parties submit post-trial memoranda regarding the succession’s claim for reimbursement in connection with mortgage payments and McKillop’s claim for the rental value of the home. Pending the trial court’s ruling on that matter, McKil-lop and members of Sessions’ family filed a motion for summary judgment with respect to the amount of rent owed by Rosier, the amount of the indebtedness owed to each, and the partition of the community property. This motion was opposed by Rosier on procedural grounds. A hearing by the trial court followed.

After considering the merits of the two pending motions and in adjudicating McKillop’s petition for the partition of the community property, the trial court, among other things, found that McKillop owed the succession $54,065.40 for one-half of the mortgage payments made by Sessions and/or Rosier from the date of the divorce (February 9, 1987) through July 2007. The value of McKillop’s one-half interest in the home was declared to be $42,500. The trial court dismissed McKil-lop’s claims for rental value based on the lack of evidence that McKillop was denied the right to use the co-owned property or that there was an agreement between the spouses or a court order as required by LSA-R.S. 9:374(C). However, in light of Sessions and Rosier’s use and enjoyment of the property, the trial court denied Rosier’s claim for reimbursement for the costs of repairs and improvements. See LSA-C.C. art. 806. Based on those findings, the trial court determined that partition by notation was not practical since the value of McKillop’s one-half interest in the home was considerably less than the amount that she owed in reimbursement to Sessions’ succession.

17With respect to McKillop’s petition for partition of the community property, the trial court judgment, in pertinent part, provides:

IT IS ORDERED, ADJUDGED AND DECREED that partition by Imitation will not benefit any of the parties therefore Judith Caldwell Sessions is hereby ordered to execute documents to sell her ½ interest in the St. Paul Home to Evelyn Rosier solely in consideration of the reimbursements due Evelyn Rosier from Judith Caldwell Sessions and the Partition of the Community Property is final. The parties [are] to pay their own costs. Costs of sale [are] to be shared equally between the parties.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that as to claims against the Succession of Charles Robert-Sessions, that the Succession of Charles Robert Sessions owes only Lorna Jean Sessions Watkins the sum of $2,000 and Marguerite Sessions the sum of $7,986.70. Payment to be made upon the conveyance of the St. Paul Home to Evelyn Rosier. The Motion to Remove Evelyn Rosier as Executrix is denied. The Motion for Summary Judgment is denied. No party is entitled to any reimbursement of late fees, costs, penalties, interest or any consequential damages or attorney fees.

McKillop appealed, contending that the trial court erred in denying the motion to remove Rosier from the position of executrix, in failing to award a reasonable rental value for the use of the home, in declaring that Sessions’ succession was entitled to reimbursement for one-half of the mortgage payments, in ordering the transfer to Rosier of the title, ownership, and possession of the home, and in failing to award post-judgment interest in connection with awards made to other creditors of the estate, which were made contingent on the subsequent transfer of the property.

On appeal, McKillop filed an exception raising the objection of prescription with respect to the claim by Sessions’ succession for reimbursement for one-half of the mortgage payments, which she asserted is governed by the ten-year liberative prescriptive period applicable to personal actions.

Discussion

In partitioning the former community property, the trial court ordered that McKillop execute documents to sell her one-half interest in the home to Rosier solely in consideration for the reimbursement owed by McKillop to Rosier. McKil-lop submitted |8that the trial court erred in ordering the transfer of the title, ownership, and possession of the home to Rosier.

Louisiana Revised Statute 9:2801 details the procedure for the valuation and allocation of community assets and liabilities, seeking to make community property partitions as fair as possible. It affords the judge discretion to consider all of the facts and circumstances and to fashion a workable and equitable partition. Succession of Brown, 468 So.2d at 796. In Succession of Brown, this court considered the issue of whether LSA-R.S. 9:2801 applies to the partition of former community property that was owned in indivisión by a former spouse and the heirs of the deceased. At the time of the decision in Succession of Brown, section 2801 provided, in pertinent part:

“When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising from the matrimonial regime, either spouse, upon termination of the matrimonial regime, or as an incident of the action which would result in a termination of the matrimonial regime, may-institute a proceeding, which shall be conducted in accordance with the following rules:” ... [Emphasis added.]

The court in Succession of Brown recognized that, by its own terms, section 2801 applies to a controversy between the spouses and held that section 2801 could not be extended by analogy to all partitions involving community property, particularly a partition between the deceased’s ex-wife and his heirs. See Succession of Brown, 468 So.2d at 796. A partition controversy between ordinary co-owners, such as an ex-wife and the five heirs, was found to be governed by the general rules of judicial partition, former LSA-C.C. arts. 1323 et seq., and not by section 2801. See Succession of Brown, 468 So.2d at 796.

The introductory paragraph of section 2801 was amended by the legislature in 1995, effective January 1, 1996, to provide:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which |9shall be conducted in accordance with the following rules: [Emphasis added.]

The addition of the phrase “from the co-ownership of former community property” did not change the fact that section 2801 applies to a controversy between the “spouses.” Since the controversy in question is between Sessions’ ex-wife and his succession representative, we find that McKillop was correct in her assertion that section 2801 is not applicable. Until the succession is complete, and the legatee is sent into possession of Sessions’ one-half interest in the former community property and McKillop is recognized in the judgment of possession as the owner of the other one-half interest in the former community property, McKillop’s efforts to partition the community property are premature.

We therefore vacate the trial court’s judgment and remand the exception raising the objection of prescription and this entire matter for further proceedings in the succession proceeding consistent with the views expressed in this opinion. On remand, the parties are to be given an opportunity to properly assert their claims in the succession proceedings, being mindful of the laws on seizing, co-ownership, termination of the community, solidarity, and subrogation. Costs of this appeal are assessed against the Succession of Charles Robert Sessions.

VACATED AND REMANDED.

      . McKillop is also referred to in the record as Judy Len Caldwell Sessions.

      .Although the judgment of divorce indicates that it was signed by the trial court on February 9, 1986, a filing date of February 9, 1987, is reflected on the document. Furthermore, the parties referenced the date of divorce and termination of the community as February 9, 1987. Therefore, we will assume for purposes of this opinion that the correct judgment date is February 9, 1987.

      . Rosier was confirmed as the testamentary executrix by order dated April 29, 1994, and letters testamentary were issued.

      . His mother, two sisters, and brother were the other interested parties.

      . Although no judgment or order was ever issued transferring the partition proceeding to the judge handling the succession proceeding, subsequent to August 6, 2003, all further actions took place in the succession proceeding. For completeness of the record, a formal order of transfer was signed by the judge of each division of court on May 19, 2008.

      .Notably, the record in the partition proceeding did not contain a sworn detailed descriptive list that should have been filed by McKil-lop.

      . Rosier arrived at this sum by determining that 189 monthly payments of $408.27 had been made for total payments of $77,163.03. This amount was then divided by two in calculating McKillop’s share to be $38,581.52 for the stated period of time.

      . A payoff statement quote dated August 2, 2007, disclosed a total payoff balance due of $8,684.02 as of September 1, 2007.

      . Former LSA-C.C. art. 1323 was repealed by 1991 La. Acts, No. 689, § 1. See LSA-C.C. art. 809.

      10. We assume the trial court meant that the reimbursements were due Rosier in her capacity as executrix and not as an individual.

      . See 1995 La. Acts, No. 433, § 2.

      . Sessions’ succession is testate. Sessions died without descendents or a surviving spouse. In his testament, Sessions bequeathed everything to Rosier. The validity of Session’s testament has not been challenged by those who would have otherwise stood to inherit from Sessions under the laws of intestacy. Thus, at the conclusion of the succession proceeding, Rosier stands to inherit Sessions’ one-half interest in the home in question.

      .In light of this conclusion, we pretermit discussion of the other issues raised on appeal, as well as the objection of prescription that was raised by McKillop in an exception filed with this court.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Dr. Louie T. BALLIS, Plaintiff-Appellee, v. Christopher C. BARNETTE, Defendant-Appellant.
    No. 44,751-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.
    Downer, Hammond & Wilhite, LLC by Philip E. Downer, III, Shreveport, for Appellant.
    The Clayton Law Firm by Joshua O. Clayton, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

| iChristopher C. Barnette appeals a default judgment rendered against him on a promissory note. We reverse and remand.

Barnette signed a promissory note on May 1, 2000, promising to pay Dr. Louie Ballis, a Bossier City chiropractor, $60,000 plus interest of 15% per annum. According to Dr. Ballis’s brief, Dr. Ballis had loaned Barnette $45,000 to start an LLC called FSBO Ark-La-Tex, for the purpose of building rental properties. The method of payment was stated as follows:

Mr. Ballis will received [sic ] 15% of the net profits from FSBO arklatex each month starting 8-15-00 thru 12-15-01 [.] If fsbo does not forfill [sic; read as fulfill ] this agreement Mr. Barnette will personally repay the sum above, by borrowing against personal home.

The note also provided that in the event of default and collection, “then the undersigned agree to pay all reasonable attorney fees and costs of collection.”

Dr. Ballis filed this suit on December 12, 2008, alleging that he was the holder of a note for $60,000, “entered into as consideration for a loan from petitioner to defendant in the amount of $45,000”; that Bar-nette had made partial payments, but still owed principal of $46,000; Barnette had “failed and refused to pay any further sums” since 2007 despite amicable demand; and that principal and interest now totaled $135,271.56. Dr. Ballis prayed for that amount plus reasonable attorney fees.

Barnette did not answer; Dr. Ballis took a preliminary default on January 12, 2009, and confirmed it without a hearing on January 15. In support, Dr. Ballis filed an “affidavit of correctness of indebtedness” confirming that he was “familiar with the open account of Christopher C. | pBarnette,” and “the balance now due on such account is” $135,271.56, with legal interest and “attorney’s fees of 33f% of principal and interest due” (emphasis added). The district court rendered judgment to that effect on the date of the hearing. On March 9, Dr. Ballis filed a petition for judgment debtor examination.

Barnette took this devolutive appeal, urging that the court erred in granting a default judgment. He specifically claims that Dr. Ballis failed to prove any suspension or interruption of prescription on a negotiable instrument that was facially prescribed under La. C.C. art. 3498, but he generally argues that the affidavit was insufficient to establish a prima facie case as required by La. C.C.P. art. 1702 B. He also contends that the court erred in awarding attorney fees of 33½%, when the promissory note did not state this amount and there was no evidence as to whether it was reasonable.

Dr. Ballis responds that Barnette filed no exception of prescription and the court cannot supply it. La. C.C.P. art. 927 B. Going beyond the record, he argues that Barnette made a final payment was in 2007, thus interrupting prescription. Lima v. Schmidt, 91-1848 (La.3/2/92), 595 So.2d 624. Again going beyond the record, he contends that his contract with counsel calls for the attorney to receive 33½% in the event of settlement before suit is filed, 40% in the event of settlement after suit is filed, and 50% in the event of judgment and appeal; hence the award of 33 ½% is reasonable.

Confirmation of a default judgment requires “proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702 A; Power Marketing Direct Inc. v. Foster, 2005-2023 (La.9/6/06), 938 So.2d 662. A prima facie case is established when the plaintiff proves the essential allegations of the petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Sessions & Fishman v. Liquid Air Corp., 92-2773 (La.4/12/93), 616 So.2d 1254. When the sum due is on an open account or a promissory note or other negotiable instrument, “an affidavit of the correctness thereof shall be prima facie proof.” La. C.C.P. art. 1702 B(3). Nevertheless, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Power Marketing Direct v. Foster, supra.

In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment under the manifest error standard. Arias v. Stolthaven New Orleans LLC, 2008-1111 (La.5/5/09), 9 So.3d 815.

On review we are constrained to find that Dr. Ballis’s “affidavit of correctness of indebtedness” is insufficient to make a prima facie showing. Although he averred that he was authorized to make the affidavit and familiar with the matter, he referred to Barnette’s debt as an open account, when the document is plainly a promissory note, and he recited attorney fees of 33)é%, a figure simply not present in the note. These glaring inconsistencies undermine the probative value of the affidavit.

Moreover, aside from conclusory recitals, the affidavit does not provide a prima facie explanation of how the total of $135,271.56 was reached, given the allegation that the loan was for $45,000 and the comment |4in brief that Barnette made some payments. Razorback Oil Tools Int'l v. Taylor Oil Tools Co., 92-1708 (La.App. 1 Cir. 10/15/93), 626 So.2d 28.

Finally, Dr. Ballis and his attorney were free to negotiate terms for collection services, but this record makes no case whatsoever, let alone a prima facie showing, that Barnette was a party to their agreement or agreed to a 33½% attorney fee. In any event, this court would closely scrutinize, under the principles of Smith v. State, 2004-1317 (La. 3/11/05), 899 So.2d 516, an attorney fee in excess of $45,000 for merely confirming a default. Woodall v. Weaver, 43,050 (La.App. 2 Cir. 2/13/08), 975 So.2d 750; Jim McCary Inc. v. Price, 391 So.2d 921 (La.App. 2 Cir.1980).

The judgment is reversed and the case remanded for further proceedings in accordance with law. All costs to date are to be paid by the appellee, Dr. Louie Ballis.

REVERSED AND REMANDED.

      . We question whether the $15,000 difference between the loan and the note constitutes additional interest on the note. Notably, if Dr. Ballis advanced the entire face value of the note, $60,000, and simple interest of 15% accrued for 8 years and 8½ months, and Barnette made no payments whatsoever, the interest would be(í = f x r x i) $79,290, for a total of $139,290 — a figure so close to the amount stated in the affidavit that we strongly suspect the affidavit was based on assumptions unsupported by this thin record.


author: SUSAN M. CHEHARDY, Judge.

text:
    DAVID DRIVE ENTERPRISES, L.L.C. v. SUBWAY REAL ESTATE CORP., R.J.P. Enterprises, Inc., and State Farm Fire and Casualty Company.
    No. 09-CA-634.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.

      Michael S. Futrell, Metairie, LA, for Appellant.
    Richard L. Traína, Seale & Ross, P.L.C., Hammond, LA, for Appellee, David Drive Enterprises, L.L.C.
    Kevin C. O’Bryon, New Orleans, LA, Counsel for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

12This matter comes before this Court on plaintifi/appellee’s Motion to Dismiss Appeal. For the following reasons, we dismiss this appeal but reserve the parties’ right to appeal as allowed by law.

According to appellee’s motions before this Court, the trial court decided the issues between the parties upon cross-motions for summary judgment, which were heard and taken under advisement on April 15, 2009. On May 5, 2009, the court granted summary judgment in favor of the' plaintiff, and against defendants in solido, and awarded damages and attorneys’ fees.

On May 21, 2009, defendant-Subway Real Estate Corp. filed a motion for new trial on the award of attorneys’ fees. On May 26, 2009, defendants-R.J.P. Enterprises, Jay Hardgrave, and Patricia Hard-grave filed a Motion for Appeal, which the trial court granted. On July 22, 2009, the trial court granted defendant-Subway’s motion for new trial and rendered an “amended” judgment, reducing the attorneys’ fee award. In essence, the trial judge granted a new trial and amended the original judgment while an appeal of that judgment was pending.

|sThe granting of a new trial sets aside the original judgment, which cannot thereafter afford the basis of an appeal. In re Transit Management of Southeast La., Inc., 2004-0632 (La.App. 4 Cir. 10/20/06), 942 So.2d 595. The judgment from the new trial becomes the final judgment from which an appeal may be taken. Therefore, a judgment that is set aside by a later judgment granting a new trial cannot form the basis for a later appeal because the original judgment is superseded by the later judgment. Accordingly, a court of appeal has no jurisdiction to entertain an appeal from a judgment that has been recast by the trial court because of post-trial motion practice. Telerecovery of Louisiana, Inc. v. Gaulon, 96-626 (La.App. 5 Cir. 11/26/96), 685 So.2d 341, 342.

Accordingly, we dismiss the present appeal. Ail parties’ right to appeal both judgments is reserved.

APPEAL DISMISSED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Edward BATISTE v. INTERSTATE HOTELS & RESORTS.
    No. 2009-CA-0599.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 2009.

      Jesse R. Elliott, Law Office of Jesse R. Elliott, LLC, New Orleans, LA, for Appellant, Edward Batiste.
    John J. Rabalais, Janice B. Unland Heather W. Blackburn, Rabalais, Unland & Lorio, Covington, LA, for Appellees, Interstate Hotels And Zurich North America.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| Edward Batiste, plaintiff herein, appeals a judgment of the Office of Workers’ Compensation, District 08. The judgment denied his claim, ruling that he had not proved by a preponderance of the evidence that he suffered a cervical injury due to a work-related accident within the course and scope of his employment with the defendant, Interstate Hotels and Resorts (hereinafter Interstate). For the reasons that follow, we affirm the judgment.

On August 24, 2007, Mr. Batiste filed a Disputed Claim for Compensation claiming that he was injured on October 5, 2006, in the course and scope of his employment with Interstate, when a pipe connected to an overhead door fell and struck him on his left shoulder and neck. Mr. Batiste claimed that no wage benefits have been paid, and that his disability status was to be determined. He sought attorney’s fees, penalties, costs and interest for all claims.

The matter proceeded to trial on June 17, 2008. The parties stipulated that Mr. Batiste was injured on October 5, 2006, while in the course and scope of his employment; that Zurich was Interstate’s workers’ compensation insurance carrier |2at all pertinent times; and that Mr. Batiste earned $12.00 per hour as a full-time Interstate employee, with an average weekly wage of $480. They also stipulated to the admissibility and authenticity of Mr. Batiste’s exhibits 1-A and 2 through 10; and to defense exhibits 1 through 8.

There appears to be no dispute that Interstate operates the Riverwalk Hotel on Convention Center Boulevard, where Mr. Batiste worked as a painter and laborer. On October 5, 2006, he stood beneath a commercial garage door and was knocked unconscious. When he regained consciousness, a deliveryman was standing over him, and told him that the door had broken and a large metal gear wheel, weighing more than twenty-five pounds and over eight inches in diameter, had fallen from the top of the twelve-foot garage door and hit Mr. Batiste. Mr. Batiste testified at the trial that the object struck him between his neck and his shoulder on his left side. He took the object and went to the front desk and reported the accident to “Chris”, the night foreman or manager, who was the only Interstate representative on duty at the time. Mr. Batiste testified in his deposition that he told Chris that while standing underneath the door, the door broke, and he brought the piece of iron that hit him. He said it hit between his neck and his shoulder. Chris did not fill out any paperwork. When the rest of the staff came in between seven and eight o’clock, Mr. Batiste spoke with Roxann Smith, of Human Resources, who gave him a voucher for a cab to take him to be seen at Concentra Medical Centers for evaluation by Dr. Francisco Silva.

IsThat same day, Ms. Smith and Mr. Batiste completed an Incident Report, indicating that a personal injury occurred on the loading dock when “a roller iron fell on Mr. Batiste [sic] shoulder, (see attached report).” The attached Zurich online claim report noted the description of the accident: “A roll iron fell on Mr. .Batiste [sic] shoulder.” The following Claimant Injury Details were reported: “Injury description: A roll iron fell on Mr. Batiste [sic] shoulder. Injured shoulder is causing disconfort [sic], A roll iron medal fell from a door on the property. Nature of Injury: Fracture. Body part: Shoulders). Initial treatment: EMERGENCY EVALUATION, DIAGNOSTIC TESTING, MEDICAL PROCEDURES. First treatment date: 10/5/2006.” However, Mr. Batiste testified at his deposition that he told Ms. Smith that his left shoulder was hurting and he had a little pain in his neck, but not what he referred to as “really sufficient pain.”

Leo Nelson then took Mr. Batiste to Concentra Medical Centers of Louisiana (Concentra), where he was seen by Dr. Francisco Silva. Dr. Silva’s report of the initial visit noted that Mr. Batiste stated that a roll iron fell on his left shoulder earlier that day. Dr. Silva noted that the injury had occurred about three hours before his examination, and that Mr. Batiste was getting worse, with stiffness, tightness and numbness down his left arm to his hand. He complained of difficulty with arm movements due to pain, which radiated from his left shoulder to his left arm. According to the notes, Mr. Batiste denied neck or chest pain. Gross examination of the cervical spine revealed no swelling, deformity, abnormal curvature, or other abnormalities. His cervical range of motion was normal in all Lplanes; however the doctor noted decreased range of motion of the left shoulder in all planes with pain. The preliminary x-ray readings of Mr. Batiste’s shoulder and left clavicle were negative. Dr. Silva concluded Mr. Batiste had suffered a shoulder contusion and strain, and prescribed Naproxen and Skelaxin and physical therapy three times a week for two weeks, with modified activity. He recommended no lifting of objects over five pounds in weight; no pushing or pulling over fifteen pounds of force; no reaching above the shoulders; and limited use of the left arm.

Quintín Cole, a Concentra physical therapist, noted his assessment that same day of Mr. Batiste’s condition as left shoulder contusion and bursitis. His report notes the following patient statement: “Patient states: ‘A roll iron fell on my left shoulder.’ ” Mr. Cole noted that cold packs should be applied to the involved area to promote soft tissue relaxation and reduction of symptoms following planned exercises. He noted that he educated Mr. Batiste on his current injury, expectations of skilled physical therapy services, the regular course of his injury’s progression, contraindicated activities, and proper positioning and techniques. Mr. Batiste verbalized clear understanding of the therapist’s instructions. Mr. Cole prescribed scapula retraction exercise with a black theraband, chest wall stretching in a door frame at various shoulder heights, and blue theraband exercise of the involved shoulder in all pain free ranges.

Is At trial, Mr. Batiste denied having told Dr. Silva or physical therapist Cole that the iron fell on his left shoulder. He persisted in this denial on cross-examination, when shown the reports prepared by Dr. Silva and Mr. Cole.

Mr. Cole’s records indicate that he saw Mr. Batiste again on October 6, 2006, and that Mr. Batiste reported pain in his left shoulder. Mr. Cole’s assessment shows that Mr. Batiste tolerated the treatment well, was progressing well with the therapy, and demonstrating compliance. Mr. Cole’s report of Mr. Batiste’s third visit, on October 9, 2006, notes that Mr. Batiste reported increased pain to his left shoulder and left cervical paraspinals with difficulty sleeping. At the fourth and fifth visits, on October 10 and 12, 2006, Mr. Batiste reported decreased pain and demonstrated increased tolerance for therapeutic exercise.

On October 16, 2006, Mr. Batiste visited Dr. Silva, who again noted Mr. Batiste’s statement, “A roll iron fell on my left shoulder.” The cervical examination was negative, and Mr. Batiste had full range of motion without pain. He demonstrated normal neurological, circulatory and motor function, and there was no pain on palpation and no tissue texture change. Mr. Batiste’s neck showed full range of motion, with no palpable bony or muscular tenderness. The neck examination was negative for spurling and axial load, and the neurological examination was also normal. The left shoulder showed normal range of motion in all planes, and no tenderness on palpation. Dr. Silva noted normal sensory function for Mr. Batiste’s upper extremities. Dr. Silva released Mr. Batiste from care, and advised him to return if his symptoms recurred, worsened, new | fisymptoms developed, pain increased or if he noted any signs of infection. He instructed Mr. Batiste to return to the clinic as needed, and discussed his medications and home exercise program. At trial, Mr. Batiste disagreed with the conclusion contained in Dr. Silva’s report noting that he was then free from pain.

Mr. Batiste testified that following his treatment at Concentra, he returned to work full-time and full-duty. He testified that in November of 2006 he began to have problems he identified as a numbness or tingling in his right arm and in the fingers of his right hand. At trial, Mr. Batiste testified that he told Roxann Smith that he was going to see his family doctor, Dr. Jerry Carl Poche. However, he testified at his deposition that he had not told anyone at his place of employment that he was going to see Dr. Poche. He admitted at trial that he did not ask anyone at work, including Ms. Smith, to pay for his office visit to Dr. Poche, and used his own health insurance. He also admitted on cross-examination at trial that he did not tell Ms. Smith that he wanted to continue seeing Dr. Poche, and that Dr. Poche was a doctor of his own choice, not referred by his employer.

At the end of March, 2007, over five months after the workplace accident, Mr. Batiste saw Dr. Poche, complaining of right wrist numbness. The doctor gave him a wrist splint. In June of 2007, Mr. Batiste again saw Dr. Poche, complaining of pain and weakness in the right hand and arm. He reported to Dr. Poche that the mechanical door had fallen on his left shoulder. At no time did he complain to Dr. Poche of pain in his right shoulder. Portions of Dr. Poche’s supporting medical records were admitted into evidence.

|7Mr. Batiste stopped seeing Dr. Poche when Interstate referred him to Dr. Eric George, a hand specialist. Mr. Batiste denied on cross-examination that when he saw Dr. George in April of 2007, he told the doctor that the door had fallen on his left shoulder. When presented with the doctor’s note that “Mr. Batiste is a 49-year-old right-handed painter, who on October 6th, was standing under a garage door which had been broken. And it came down on to his left shoulder”, Mr. Batiste admitted that he had given Dr. George that information. After having read Dr. Poche’s reports, Dr. George gave Mr. Batiste a shot that would help him if he had carpal tunnel syndrome. The shot did not help, whereupon Dr. George scheduled an MRI. Dr. George reviewed the results of the MRI and told Mr. Batiste that he had a serious problem, and he should go back to Human Resources. Interstate then referred him to Dr. Anthony Ioppolo, a doctor of the employer’s choice.

Mr. Batiste admitted that on June 6, 2007 and on June 18, 2007, Dr. George gave him full duty work releases. Following a full work-up on June 18, 2007, Dr. George concluded that Mr. Batiste had degenerative disc and joint disease of the cervical spine, noting that the MRI showed spinal stenosis and joint space narrowing at C3-C4, C4-C5 and C5-C6, and his hand had achieved maximum recovery. He suggested that Mr. Batiste consult a neurosurgeon to address the cervical spine issues revealed by the MRI.

Mr. Batiste admitted at trial that he then chose to see Dr. John Logan, an orthopedist of his own choice, not referred by his employer. Dr. Logan noted that Isthere was a problem at C3-4 including cord change, and, on August 23, 2007, sought Zurich’s authorization to perform an anterior fusion and a posterior lamina-plasty. Believing that the cervical problems were degenerative in nature, and not caused by the accident, Zurich denied authorization.

On August 30, 2007, Dr. Ioppolo examined Mr. Batiste. He originally having noted that, from the history given to him by Mr. Batiste, it appeared that the latter’s pre-existing stenosis of the cervical spine was made symptomatic by the accident. However, at his deposition, and having reviewed the entire medical record, Dr. Ioppolo noted that if the right arm radicu-lopathy had not appeared until March of 2007, when Mr. Batiste elected to see his family doctor, then the symptoms were not caused by the October, 2006, workplace accident.

Mr. Batiste then saw neurosurgeon Dr. Bradley Bartholomew, a doctor of his own choice, not referred by his employer. Dr. Bartholomew found three cervical disc her-niations and pre-existing stenosis, and related Mr. Batiste’s symptoms to the workplace accident.

Mr. Batiste testified at his December 20, 2007 deposition that the pain in his right shoulder began approximately three months earlier, approximately in late September of 2007. He also testified that the pain between his right shoulder and neck did not begin until November of 2007, and confirmed that deposition testimony at trial. On re-direct examination, he testified that the problems on the right side of his body began three weeks after the accident, or in late October or |flearly November of 2006, approximately a year before the dates mentioned in his deposition and previous trial testimony.

Mr. Batiste’s wife, Sandra Batiste, a licensed practical nurse, testified at trial that in the second week of November, while she and her husband were preparing for Thanksgiving dinner, she noticed he dropped a small roasting pan. When she asked her husband if he were having a problem, he told her that he was having problems with his right hand.

Mr. Batiste testified that June 2, 2007 was the last day he worked for Interstate.

Mr. Batiste claims the trial court erred in finding that he did not prove his cervical disability was caused by the workplace accident, and in finding that he was not entitled to surgery to correct that claimed disability. Generally, rulings of the Office of Workers’ Compensation are reviewed under the manifest error rule, and may not be set aside unless clearly wrong in light of the record when considered in its entirety. Ledford v. New Orleans Saints, 08-1307, p. 3 (La.App. 4 Cir. 4/29/09), 10 So.3d 866, 869. When the fact finder’s conclusion is based upon its reasonable evaluation of the credibility of the witnesses, or its reasonable choice between two opposing versions of the facts, that conclusion cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

Mr. Batiste also contends that the trial court committed legal error when it did not apply the rebuttable presumption that an accident is the cause of a disability 110when the claimant was in good health prior to the accident, but, commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Ins. Co. of North America, 342 So.2d 591, 596 (La.1977). Where the trial court’s decision is based on an erroneous application of law, the reviewing court reviews that decision de novo.

In light of the credible evidence that Mr. Batiste denied cervical or neck pain during the two weeks he was treated immediately following the accident, and his inconsistent testimony, outlined above, concerning the onset of his cervical symptoms, it is clear that he did not prove entitlement to the presumption of causal connection between the accident and his cervical problems. Therefore, we find no legal error in the trial court’s decision not to apply the presumption.

Absent the applicability of the presumption, we review the trial court’s finding that Mr. Batiste did not prove a causal connection between the workplace accident and his cervical complaints under the manifest error standard. Mr. Batiste complained initially of left shoulder pain, and the physicians’ and therapists’ notes indicate that he did not complain to his physician or therapist of right arm pain for five months, and of neck pain for nine months. He did not complain of cervical symptoms until after he had been released by both Dr. Silva and the therapist. Dr. Ioppolo and Dr. Bartholomew opined that had Mr. Batiste suffered a herniated disc at the time of a workplace accident in which he had been struck in the neck, they jnwould expect his symptoms would have become evident immediately. Dr. Ioppolo noted that cases of multiple herniations, such as Mr. Batiste’s herniations at three levels, with no immediate neck complaint were unlikely to have been caused by the accident. He related such herniations to degenerative processes that become symptomatic slowly without any particular type of trauma.

Given the totality of the record, we cannot find that the trier of fact was unreasonable in having accepted Dr. Ioppolo’s testimony that the cervical symptoms were not caused by or related to the workplace accident. Therefore, Mr. Batiste is not entitled to curative surgery in this compensation claim.

112M1*. Batiste claims the trial court erred in finding he was not entitled to supplemental earnings benefits (SEB) and temporary total disability benefits (TTDB) as a result of his workplace injury, and in finding that Interstate and Zurich reasonably controverted his claim and were not arbitrary and capricious in their denial of that claim. In light of our affirmance of the trial court’s finding that Mr. Batiste’s cervical disability was not related to his workplace accident, these assignments of error are moot. In order to recover SEB or TTDB, Mr. Batiste must prove by a preponderance of the evidence that his work-related injury rendered him unable to earn ninety percent of his pre-injury wages. The evidence shows that he was released to full duty prior to the onset of the unrelated cervical symptoms. Therefore, he is entitled neither to SEB nor to TTDB as a result of the workplace injury. Likewise, in light of our affirmance, Mr. Batiste is not entitled to penalties or attorneys’ fees in connection with the denial of his cervical claim.

Mr. Batiste claims the trial court erred in failing to award his costs, including the cost of Dr. Bartholomew’s deposition. He recognizes in his brief that these costs are recoverable only in the event that this Court would reverse the trial court’s judgment in favor of his employer and the employer’s insurer. Because we affirm the trial court’s judgment, Mr. Batiste is not entitled to recover Dr. Bartholomew’s fee or cost for the transcription of his deposition testimony.

Mr. Batiste claims that the trial court erred in failing to order reimbursement of the co-pay expenses connected to Dr. Poche’s treatment. We note that these expenses were connected to the claim of cervical injury. Since Mr. Batiste’s cervical symptoms were not related to the workplace injury, the expenses incurred in their diagnosis and treatment are not compensable pursuant to La. R.S. 23:1203.

For the foregoing reasons, having considered the record on appeal in its entirety, we find that the trial court did not commit legal error in failing to apply a presumption that Mr. Batiste’s cervical symptoms were caused by the workplace accident, and that its factual conclusions were not manifestly erroneous or clearly wrong. Therefore, we affirm the judgment.

AFFIRMED.

      . It does not appear from the record that Mrs. Batiste identified the year in which this event occurred; however, both the appellant and the appellees identify the year as 2006.


author: LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of L.L.
    No. 2009-CA-0595.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for L.L.
    Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD.
   LOMBARD, Judge.

|,The State of Louisiana appeals the March 30, 2009, judgment rendered by the Juvenile Court for the Parish of Orleans, dismissing a petition pursuant to Article 876 of the Louisiana Children’s Code. After review of the record in light of the applicable law and arguments of the parties, we reverse and remand.

Relevant Facts and Procedural History

On February 6, 2008, L.L. was charged by petition in the trial court with allegations of delinquency, charged with one count of possession of marijuana in violation of La. Rev.Stat. 40:966, under case number 2008-037-05-DQ-C. On February 26, 2008, L.L. failed to appear for a pretrial conference and a warrant was issued for his arrest. At the pretrial conference held on December 11, 2008, the warrant for L.L.’s arrest was recalled, L.L. entered a denial of the charged offense, and the trial was set for February 2, 2009.

On February 2, 2009, L.L. appeared for trial but the State orally moved for continuance. In response to the trial court’s denial of its motion, the State dismissed the petition by entering a nolle prosequi. On February 20, 2009, the |2State re-instituted the charge against L.L. under case number 2008-051-06-DQ-C. On March 30, 2009, the matter again came for trial. However, because the state had previously dismissed the case in response to the trial court’s denial of its motion for a continuance, the trial court dismissed the petition against L.L., stating as follows:

The Court is going to dismiss this matter as it has previously been Nolle Prosequi by the State of Louisiana. The Court did not grant a continuation of the Trial and the re-filing of the petition simply represents the D.A.’s Office giving themselves a continuance in the absence of the Court granting a continuance. Therefore, this matter is dismissed.

The State appeals this decision, arguing that the dismissal of the petition was an abuse of discretion.

Discussion.

Article 876 of the Louisiana Children’s Code provides, in pertinent part, that that “[f]or good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner.” What constitutes “good cause,” i.e., a legally sufficient reason, for dismissal of a juvenile delinquency matter must be determined on a case-by-case basis and must be fully supported by the record. State ex rel. S.R., 2008-0785 p. 4 (La.App. 4 Cir. 10/8/08), 995 So.2d 63, 66. The clear language of Article 876 gives the trial court great discretion in dismissing matters for good cause. State ex rel T.N., 2000-1593, p. 2 (La.App. 4 Cir. 5/23/01), 789 So.2d 73, 74. The only constraint that article 876 imposes is that the trial court “shall dismiss a petition on the motion of the district attorney.” In this case, the trial court dismissed the petition on its own motion.

lain the present case, the dismissal was premised on the State’s decision to reinsti-tute the petition against L.L. after the State entered a nolle prosequi following the denial of the State’s request for a continuance. The State argues that the trial court’s disapproval of its ability to reinstitute prosecution of L.L. is not a legally sufficient reason for dismissal. We agree.

Both this Court and the Louisiana Supreme Court have recognized the State’s authority to enter a nolle prosequi and reinstitute a charge, but have also recognized that it may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. See State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198; State v. Millet, 2006-2908 (La.App. 4 Cir. 11/8/06), 946 So.2d 196. Moreover, a defendant challenging the State’s nolle prosequi and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Scott, 2004-1142, p. 12 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, 851.

The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. State v. Batiste, 2005-1571, p. 7 (La.10/17/06), 939 So.2d 1245, 1250. The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. Santiago, 2003-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671.

|4In State v. Batiste, 2005-1571, p. 5, 939 So.2d at 1249, the Louisiana Supreme Court stated:

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id.

The delay in the present case was just over twelve months. As the State correctly points out, the State had at least thirty-seven days following the trial setting to bring L.L. to trial pursuant to La. Ch. Code Art. 877(B). The record reflects that the State requested only a single continuance on the day of trial; the State’s request for a continuance was based on the police officers’ failure to appear. In Barker, 407 U.S. at 530, 92 S.Ct. at 2192, the Court comments that “a valid reason, such as a missing witness, should serve to justify appropriate delay.” It is also apparent from the record that the delay in this matter is partially attributable to L.L.’s failure to appear. Moreover, L.L., who was not incarcerated during the delay, has not alleged, nor does the record support, a finding of prejudice caused by the delay.

Finally, no intentional delay on the State’s part to gain a tactical advantage has been shown. There is no indication that the State dismissed and reinstituted the charges for the purpose of avoiding the statutory time limitations or depriving L.L. of his right to a speedy trial. Thus, viewing the record as a whole, we find that the decision to dismiss the petition was an abuse of discretion warranting reversal.

| ¡¡Conclusion

For the foregoing reasons, we reverse and remand for further proceedings.

REVERSED AND REMANDED.

      . Judgment was rendered from the bench. The record does not include a written judgment of the dismissal.

      . La. Ch.Code. art. 877(B) states: "If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.”


author: Judge MICHAEL E. KIRBY.

text:
    Ashley TERRY v. DEPARTMENT OF POLICE.
    No. 2008-CA-1436.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 2009.

      Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff/Appellant.
    Russell B. Ramsey, Jr., New Orleans, LA, for Defendant/Appellee.
    Court Composed Of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE.
   Judge MICHAEL E. KIRBY.

_JjNew Orleans Police Officer Ashley Terry requests a review of the September 22, 2008 decision of the Civil Service Commission which summarily dismissed her appeal on the ground that she had no legal right to appeal the ruling of the Appointing Authority, the City of New Orleans Department of Police, as she had not completed the requisite one-year probationary period. We affirm.

Officer Terry was employed by the City of New Orleans Department of Public Works as a parking control officer from April 29, 2007 through June 16, 2007. During that time, she was accepted by the city as a “police recruit” and began training at the Police Academy to become a police officer. After completing the training, Officer Terry was promoted to Police Officer I status on April 2, 2008. Three months later, on July 15, 2008, Officer Terry improperly displayed her firearm in public while off duty. Following an investigation and disciplinary hearing, the N.O.P.D. notified Officer Terry by letter dated July 24, 2008, that she was terminated.

12Officer Terry timely appealed her termination to the Civil Service Commission. The Appointing Authority filed a motion for summary disposition, arguing that Officer Terry was a probationary employee and, therefore, had no right to appeal her termination. In support of its motion, the Appointing Authority submitted Officer Terry’s civil service employment record indicating her employment status as probationary for a period beginning April 2, 2008 and ending April 1, 2009. The Civil Service Commission granted the Appointing Authority’s motion and dismissed the appeal.

On appeal, Officer Terry argues that the Civil Service Commission erred in determining she had no right to appeal her termination. She contends that her time of service as a police recruit and a parking control officer should be cumulated and credited toward tenured status. Officer Terry maintains that she became a regular employee with permanent status in the civil service upon her promotion to Police Officer I in April 2008.

Except in cases of alleged discrimination, the burden of proof on appeal, as to the facts, shall be on the Appointing Authority under Civil Service Rule II, § 4.4 and § 4.8. In a civil service case, the appellate court’s review of the findings of fact is governed by the manifest error or clearly erroneous standard. Goins v. Department of Police, 570 So.2d 93 (La.App. 4 Cir. 10/30/90). “Where the [Civil Service] Commission’s decisions involve jurisdiction, procedure, and interpretation of laws and regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard.” Walton v. French Market Corporation, 94-2457 (La.App. 4 Cir. 4/26/95), 654 So.2d 885, 887. On legal issues, the appellate court gives no special weight to the findings of the Civil Service Commission, but exercises its constitutional duty to review questions of law and renders judgment on the record. Christoffer v. New Orleans Fire Dept. 99-2658 (La.App. 4 Cir. 3/29/00), 757 So.2d 863, writ denied 2000-1413 (La.6/30/00), 766 So.2d 543. A mixed question of fact and law should be accorded great deference by the reviewing court under the manifest error standard of review. Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-821.

“Except when there is an allegation of discrimination under Civil Service Rule II, § 4.6, there is no provision for appeal by a probationary employee.” Walton, 94-2457, 654 So.2d at 887. In the present case, Officer Terry did not allege any form of discrimination in her challenge to her termination. Unless Officer Terry is considered a permanent employee, she has no right to appeal her dismissal. See id. “The question whether an employee has the right to appeal is analogous to the question whether a plaintiff has a cause of action.” Id.

Officer Terry contends that she obtained regular employee status because she had completed more than one year in the service of the city given her time as a police recruit and parking control officer. She maintains that her one-year working test period began to run when she became a police recruit in April 2007.

In Banks v. New Orleans Police Department, 2001-0859, 2001-1302, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513 this Court en banc considered the issue of whether Banks, who was classified as a Police Officer I, had the right to appeal disciplinary action considering he had completed one year of training as a [4police recruit at the Police Academy. The Court emphasized that “[t]he right of appeal is determined by [the officer’s] employment status.” Id.

A “regular” employee is distinguished from a “probational” employee based on whether the working test period is completed. Mariani v. Police Dept., 96-0871 (La.App. 4 Cir. 12/27/96), 686 So.2d 1012, 1014, writ denied, 97-0276 (La.3/14/97), 689 So.2d 1389. In that case, in finding that several police recruits had no right to appeal their terminations, this Court discussed the probationary period of a police recruit but did not reach a discussion about the probationary or working test period of an employee who had completed police recruit training and was promoted to Police Officer I status.

Under “Definitions” in Civil Service Rule I, § 1(61) provides:

“Regular Employee”: an employee who has been appointed to a position in the classified service in accordance with the Law and these Rules and who has completed the working test period. [Emphasis added.]

Civil Service Rule I, § 1(77) provides:

“Working Test Period Employee”: an employee who has been appointed to a position from an employment list, but who has not completed the working test period. The terms “probation period” and “probational employee” shall be considered identical with “working test period” and “working test employee”.

La. R.S. 33:2393 also provides definitions. La. R.S. 33:2393(27) provides:

27. “Regular employee” means an employee who has been appointed to a position in the classified service in accordance with this Part after completing his working test period. [Emphasis added.]

La. R.S. 33:2417 provides, in pertinent part:

§ 2417. Working tests
Every person appointed to a position in the classified service ... shall be tested by a working test while | .^occupying the position. The period of the working test shall commence immediately upon appointment and shall continue for the time, not less than six months nor more than one year, established by the director subject to the rules. At the times during the working test period and in the manner which the director requires, the appointing authority shall report to the director his observation of the employee’s work, and his judgment as to the employee’s willingness and ability to perform his duties satisfactorily, and as to his habits and dependability. At any time during his working test period, after the first two months thereof, the appointing authority may remove an employee if, in the opinion of the appointing authority, the working test indicates that (1) the employee is unable or unwilling to perform his duties satisfactorily or (2) his habits and dependability do not merit his continuance in the service. Upon the removal, the appointing authority shall forthwith report to the director and to the employee removed his action [sic] and the reason therefor.... The appointing authority may remove an employee within the first two months of his working test period only with the approval of the director. The director may remove an employee during his working test period if he finds, after giving him notice and an opportunity to be heard, that the employee was appointed as a result of fraud or error. [Emphasis added.]
Ten days prior to the expiration of an employee’s working test period, the appointing authority shall notify the director in writing whether the services of the employee have been satisfactory and whether he will continue the employee in his position. A copy of the notice shall be given to the employee ten days prior to the expiration of his working test period. Upon approval by the director of a favorable report, the appointment of the employee shall be complete at the expiration of the working test period. Failure by an appointing authority to give the ten days’ notice to the director and a copy thereof to the employee shall have the same force and effect as a satisfactory report.
⅜ ⅜ ‡

See also Civil Service Rule VII, § 1.1.

La. R.S. 33:2424 provides, in pertinent part:

Any regular employee in the classified service, subject to the provisions of this Part, or the rules made pursuant thereto, who deems that he has been removed, dismissed, | ^retired, reduced in pay, demoted, subjected to a second suspension of sixty days or less without pay, or subjected to any other disciplinary action set out in R.S. 33:2423, without just cause, may, within sixty days of the action demand a hearing to determine the reasonableness of the action ....
The foregoing provisions of this Section shall not apply to temporary appointments as defined in R.S. 33:2419, and employees during their working test period as provided for in R.S. 33:2417. [Emphasis added.]

Only regular employees in the classified service have the right to appeal disciplinary actions to the Commission. Civil Service Rule II, § 4.1. Article X, § 8 of the Louisiana Constitution provides, in part:

No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part.

Article X, § 8 only refers to employees who have obtained permanent classified status. The employee, who has not gained permanent status, is not entitled to review of the Appointing Authority’s disciplinary action.

The one-year working test period for the classification of Police Officer I is the period when the Appointing Authority can observe a police officer’s on-the-job performance of his duties or work in the field. Banks, 2001-0859, 2001-1302, p. 6, 829 So.2d at 516. “The working test period does not take place until the police officer is working on the job rather than when he is a recruit at the Police Academy.” Id.

In this case, Officer Terry’s working test period or probationary period commenced upon her promotion to the class of Police Officer I on April 2, 2008. 17Officer Terry would have become a regular employee with permanent status only upon her completion of the one-year working test period, which would have been on April 1, 2009, had she not been discharged.

Officer Terry maintains that the city civil service record designated her as both “permanent” and “probationary” upon her appointment to “police recruit” status, implying that she would become a regular employee when she completed her training period. Also, unlike in Banks, she contends, the Appointing Authority’s civil service announcement, which she received as a newly appointed police recruit, never notified her that a working test period begins only upon the recruit’s promotion to the class of Police Officer I. Because the Appointing Authority failed to notify her of the working test period, Officer Terry argues that she should have been classified as regular employee upon her promotion to Police Officer I. Alternatively, Officer Terry cites Civil Service Rule VII, § 1(1.2) , arguing that the working test period for a police recruit was six (6) months, which she had completed before being promoted to the class of Police Officer I.

We find no merit to the foregoing claims. A police recruit, by definition, is not a working police officer but rather a probationary employee in training. See Mariani, 96-0871, 686 So.2d 1012, 1014. That the city designated Officer Terry, while a police recruit, as “permanent” as opposed to “temporary” for payroll purposes (which is the case here) is of no consequence. She remained a probationary employee. Also, the civil service announcement for the position of [ ^police recruit clearly states that “[ujpon completion of all phases of police recruit training, candidates will be promoted to the class of Police Officer I and will serve a one (1) year probationary period in that class.” That the announcement gives no “working test period” for a police recruit per se, is irrelevant, because a police recruit is not a classified employee working on the job but rather a probationary employee in training. See Banks, 2001-0859, 2001-1302, p. 6, 829 So.2d at 516.

Finally, we find no merit to Officer Terry’s argument that her service as a parking control officer should be credited toward her “working test period” for the purpose of determining whether she achieved “regular employee” status as a Police Officer I. The civil service announcement for parking control officer states that “[tjhis position requires a one (1) year probationary period.” Officer Terry did not complete the one-year probationary period as a parking control officer; she worked only 49 days in that capacity. Furthermore, the civil service job descriptions for Police Officer I and Parking Control Officer are distinct positions requiring different duties.

The record in this case demonstrates that Officer Terry never completed the one-year working test period required of a Police Officer I to gain permanent regular employee status in the civil service. Therefore, she was not entitled to appeal her termination by the Appointing Authority to the Civil Service Commission. See Civil Service Rule II, § 4.1.

| (Accordingly, for the reasons stated herein, the ruling of the Civil Service Commission dismissing Officer Terry’s appeal is affirmed.

AFFIRMED.

      .Civil Sen/ice Rule VII, § 1(1.2) provides: “If the duration of the working test period is not stated at the time of the announcement of the test for a class of positions, the working test period shall be six (6) months in duration.”

      . Appellant Exhibit A in the record.

      . Appellant Exhibit F in the record.


author: BELSOME, Judge.

text:
    William BIEHL v. B & K PRECISION CORPORATION.
    No. 2009-CA-0573.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 2009.

      Jeanne L. O’Boyle, Jeanne L. O’Boyle, Attorney at Law, Marrero, LA, Kevin K. Gipson, Kevin K. Gipson, Ltd., APLC, New Orleans, LA, for PlaintiffyAppellant, William Biehl.
    Michael L. Stewart, Law Office of Michael L. Stewart, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   BELSOME, Judge.

| Appellant, William Biehl, appeals the trial court’s granting of an exception of prescription, dismissing his lawsuit against B & K Precision Corporation.

Mr. Biehl, an employee of Deltone Electric, was injured while testing a circuit breaker at a plant owned by Baroid Drilling Fluids, Inc. On or about February 5, 2004, Mr. Biehl was dispatched to Baroid number Two Yard, in Lafourche Parish. As Mr. Biehl was testing the electrical system, the breaker in the system exploded, causing him to be injured.

In February 2005, Mr. Biehl filed suit against Baroid and Seven-0 Electric, Inc., the company that installed the electrical system for Baroid. Mr. Biehl alleged that the pump motors were defective and improperly installed. Baroid and Seven-0 each filed a motion for summary judgment based on their experts’ findings, as stated in their affidavits, that the meter used by Mr. Biehl to test the electrical system was defective. The trial court granted the motions for summary judgment dismissing Mr. Biehl’s action against Baroid and Seven-O.

| gThe meter was turned over to Mr. Biehl for testing on April 10, 2007. On February 22, 2008, he filed a lawsuit against B & K Precision Corporation (B & K), the manufacturer of the meter used at the time of the incident. Subsequently, B & K filed an exception of prescription which was granted on July 2, 2008. This appeal followed.

Mr. Biehl argues that his suit against B & K was timely, because it was within one-year of his discovery that the meter was defective. Therefore, the trial court erred in granting B & K’s exception of prescription. More specifically, Mr. Biehl claims that it was not until he reviewed the affidavits from Baroid’s and Seven-O’s experts that he was aware that B <& K was a potential defendant in his case.

It appears Mr. Biehl would like to rely on the doctrine of contra non valen-tem to support an exception for his claim being prescribed. However, although Mr. Biehl expresses that he could not have known that the meter was defective or that B & K was a potential defendant, he does not assert any particular circumstance that prevented him from discovering this information.

The prescriptive period for delic-tual actions is one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished. Williams v. Lafayette Ins. Co., 98-2855 (La.App. 4 Cir. 5/19/99), 740 So.2d 183, 185. Ordinarily, the party pleading an exception of prescription bears the burden of proof. Niklaus v. Bellina, 96-2411 (La.App. 4 Cir. 5/21/97), 696 So.2d 120, 122. However, where the face of the petition shows the cause of action has prescribed, the burden of proof shifts to the plaintiff to show why prescription has not run. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992); Niklaus, supra. State Farm Fire and Cas. Co., 2002-1811, p. 13 (La.App. 4 Cir. 6/4/03), 849 So.2d 762, 771.

The doctrine of contra non valen-tem suspends prescription where the circumstances of the case fall into one of the following four categories: 1) there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; 3) the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4) some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Rajnowski v. St. Patrick’s Hospital, 564 So.2d 671, 674 (La.1990). The fourth category, where the cause of action was not reasonably knowable to the plaintiff, best describes Mr. Biehl’s assertion.

The record establishes that the meter in question was equipment owned by Mr. Biehl’s employer and used by Mr. Biehl at the time of the incident. The record is void however of any evidence indicating facts and circumstances that would have prevented Mr. Biehl from ascertaining and testing the meter. With a reasonable amount of diligence, B & K could have been discovered as a potential plaintiff, thus contra non valentem does not apply. See Renfroe v. State of Louisiana through the Dept. of Transportation and Development, 01-1646 (La.02/26/02), 809 So.2d 947.

Accordingly, the trial court’s granting of the exception of prescription in favor of B & K Precision Corporation is affirmed.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Rayard BELL.
    No. 2009-KA-0588.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.

      John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

LThe defendant, Rayard Bell, appeals the denial of his motion to reconsider sentence. After review of the record in light of the applicable law and arguments of the parties, the judgment of the trial court is affirmed.

Relevant Facts and Procedural History

The defendant was convicted of being a felon in possession of a firearm in violation of La. Rev.Stat. 14:95.1 and, on March 31, the assigned sentencing date, the trial judge court took testimony from defendant’s mental health case worker and ordered a pre-sentence investigation. On September 12, 2008, the defendant was sentenced to serve fifteen years at hard labor with the Department of Corrections. The defendant’s motion for reconsideration of sentence was denied by the trial court.

Discussion

In his sole assignment of error on appeal, the defendant argues that he was subjected to an unreasonable sentence due to improper content in the presentence report. Specifically, he claims that the contents of the presentence report was unduly prejudicial, result in an unusually harsh sentence, and that he was denied an opportunity to properly confront William Purcell, his probation officer and | ¡>preparer of the presentence report. He further argues that the probation officer supplemented the presentence report with personal testimony assailing the defendant, and refers to the following passage from the report to support this assertion:

This agent supervised Rayard Bell during his parole and probation tenure prior to his arrest. He was honest about his prior firearms arrest, and admitted to me that he had a shotgun in his possession and used cocaine. Mr. Bell was seen at his residence monthly and originally slept in the front living room on an air mattress. During a home visit on April 5, 2007, Mr. Bell informed this agent that he had moved to the back bedroom. He was arrested a little over two weeks later for the instant offense and additional weapons and ammo clips were found in the back bedroom. The subject never stated to this officer that his nephew, Andre Bell, a convicted felon and on active probation at the time, was also living at the residence.

The defendant asserts that the testimony of the probation officer was presented in manner that did not afford him an opportunity to confront the probation officer. The record reflects, however, that contrary to the defendant’s argument, the probation officer was presented by the State as its first -witness in the defendant’s trial. Accordingly, there is no merit to the defendant’s claim that he was denied an opportunity to counter the “personal testimony” of the probation officer.

The Code of Criminal Procedure sets forth the factors which must be considered by the trial court in imposing sentence. La.Code Crim. Proc. art. 894.1, Section C states:

The court shall state for the record the considerations taken into account and the factual basis therefore in imposing sentence.

Articulation of the factual basis for a sentence is the goal of La.Code Crim. Proc. art. 894.1, not rigid or mechanical compliance with its provisions and, | ^accordingly, the trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. See State v. Lanclos, 419 So.2d 475, 478 (La.1982) (where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.Code Crim. Proc. art. 894.1); State v. Davis, 448 So.2d 645, 653 (La.1984) (the trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the guidelines). In this case, the trial judge discussed in great detail the factors he considered and the reasoning by which he arrived at his sentencing decision in a ten-page colloquy. In so doing, the court adequately complied with Article 894.1.

The defendant also argues that his sentence is excessive, citing Article I, Section 20 of the Louisiana Constitution which prohibits excessive punishment:

Even a sentence which is within the statutory limits may violate a defendant’s constitutional right against excessive punishment if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering”

Historically, trial courts have been granted wide discretion in sentencing, absent a definitive showing that the court has abused that discretion. See State v. Louis, 496 So.2d 563, 568 (La.App. 1 Cir.1986) (the trial court has wide discretion in the imposition of sentences and a sentence within statutory limits will not be set aside in the absence of an abuse of discretion). “Generally, the reviewing court must determine whether the trial judge adequately complied with the guidelines set forth in La.Code Crim. Proc. art 894.1 and whether the sentence is warranted in light of the particular circumstances of the case.” State v. Pleasant, 99-2349, p. 13 (La.App. 4 Cir. 11/8/00), 772 So.2d 910, 917. Because a sentence could be ^excessive even though it falls within the statutory limit, the trial court’s statements regarding the factors considered under Article 894.1 of the Code of Criminal Procedure are an important aid in reviewing an alleged excessive sentence. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189 (citation omitted). Once adequate compliance with Article 894.1 is found, the reviewing court must determine “whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762.

In this case, we do not find that the defendant’s fifteen year sentence is excessive. See State v. Taylor, 04-689, p. 6 (La.App. 5 Cir. 12/14/04), 892 So.2d 78 (upholding fifteen-year sentence for defendant who was stopped while driving a stolen vehicle in which a handgun was discovered between the driver’s seat and center console; the defendant’s record revealed numerous felony convictions including drug possession, one possession which occurred while he was in custody, and an arrest for illegal use of a weapon); see also State v. Crawford, 03-1494 (La.App. 5 Cir. 4/27/04), 873 So.2d 768 (defendant’s maximum fifteen-year sentence for felon in possession of a firearm upheld, noting defendant’s previous convictions for violent offenses and recidivism tendencies); State v. Bannister, 38,967, p. 10 (La.App. 2 Cir. 9/22/04), 882 So.2d 693; State v. Bannister, 38,967, p. 10 (La.App. 2 Cir. 9/22/04), 882 So.2d 693 (upholding fifteen-year sentence for a felon in possession of a firearm where the defendant has prior convictions, noting that the defendant’s presentence report revealed he had six prior felony convictions); State v. Willis, 36,759, p. 2 (La.App. 2 Cir. 4/9/03), 843 So.2d 592, 600 (fifteen-year maximum sentence for a felon in possession of a firearm not excessive, noting that defendant had many prior arrests and convictions involving substance abuse, use of dangerous weapons and crimes of violence).

The trial judge in this case noted in mitigation the portion of the presentence report referencing the positive comments by Ms. Janice Bolin, the defendant’s mental health counselor. The probation officer interviewed her as part of his presentence investigation and devoted a paragraph in his report to her statement:

“Ms. Janice Bolin was interviewed on April 4, 2008. She is a mental health counselor with the Mental Health Court, which is currently held in Section “K” of Orleans Parish Criminal District Court. She stated that Mr. Bell was very stable prior to his arrest. She believed that the police officers gave false testimony during the subject’s trial and believes that the Rayard Bell is innocent.”

The trial judge also noted for the record his awareness of a letter, purportedly mailed by the defendant’s younger relative, in which the relative accepts responsibility for and ownership of the weapons found on the night in question. The trial judge held, however, that such an admission alone would not clear the defendant because they could have shared control of the weapons. The trial judge took notice of the number of weapons involved in the incident and the defendant’s prior convictions for simple burglary and aggravated burglary. The trial judge also referred to the presence of a small child in the residence, calling the situation “grossly negligent, gross negligence at a bare minimum.” Further, the trial judge noted that the defendant’s record covered over thirty years:

Thirty years of the New Orleans Police arresting you, bringing you to jail, having you released. Their frustration, I can only begin to imagine it. Thirty years Mr. Bell has been placed in and out of the jails of this city and this state. Thirty years. Thirty years.

Accordingly, the trial judge heard both mitigating and aggravating evidence concerning the defendant and adequately enunciated his reasons for the sentence | (¡imposed. Thus, we find that the trial judge adequately complied with Article 894.1 and that the sentence is not disproportionate.

Conclusion

In accordance with the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: PAUL A. BONIN, Judge.

text:
    Vincent MAGALLANES v. NORFOLK SOUTHERN RAILWAY COMPANY, Alabama Great Southern Railroad Company, Ronald Williams, Michael E. Robin and National Automotive Insurance Company.
    No. 2009-CA-0605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 2009.

      John J. Finckbeiner, Jr., New Orleans, LA, for Vincent Magallanes.
    Benjamin R. Slater III, Thomas Louis Colletta, Jr., Lemle & Kelleher, L.L.P., New Orleans, LA, for the Alabama Great Southern Railroad Company.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| (Vincent Magallanes, a backseat passenger, sued Alabama Great Southern Railroad Company (“AGS”) and its train’s engineer for his injuries and damages arising from a collision between the train operated by AGS and the car in which he was riding. AGS initially moved for summary judgment, which was denied. AGS then filed a motion for new trial and, after a hearing on the motion, the trial court reversed itself and dismissed the lawsuit against AGS and the engineer with prejudice. Mr. Magallanes devolutively appealed the dismissal, contending that (1) the trial court’s action was procedurally impermissible, and (2) genuine issues of material fact remain for a trier of fact to decide. For the reasons which follow, we reverse and remand the matter to the trial court.

Relevant Procedural History

Mr. Magallanes sued AGS under several theories of law: (1) that AGS failed to keep its track servitudes and adjacent area free of obstructions; (2) that 12AGS allowed its locomotive to be operated by an improperly trained or incompetent operator; (3) that AGS operated a train in violation of statutes and ordinances of the State of Louisiana and Parish of St. Bernard relative to operation of a locomotive; and (4) negligence. In 2004, the trial court granted partial summary judgments in favor of AGS on Mr. Magallanes’ claims that AGS failed to train the engineer to operate a locomotive properly, pursuant to 49 U.S.C. § 20101 et seq. of the Federal Railroad Safety Act, and that the train had been operated at an excessive rate of speed. Mr. Magallanes did not take an appeal from those judgments, nor did he assign any error regarding them in this appeal.

On August 2, 2006, AGS filed another motion for summary judgment, seeking dismissal of Mr. Magallanes’ claim that AGS failed to keep its servitude or right of way free of visual obstructions. Mr. Ma-gallanes opposed the motion, contending that material facts in dispute precluded summary judgment. On December 11, 2007, the trial court denied summary dismissal of Mr. Magallanes’ outstanding claims against AGS, which included, but were not limited to, allegations regarding the maintenance of a clear and unobstructed railroad track and its surrounding area. The trial judge’s Reasons for Judgment stated:

Although Plaintiffs case seems weak, at best, there exists [sic] questions of material fact to be determined at trial by a finder of fact. A determination must be made as to whether there existed visual obstructions which prevented an attentive driver from observing the approaching train. Here the photograph used as an exhibit shows a small sparse tree or shrub and an abandoned vehicle in the line of sight of on coming train traffic, either of which could have obstructed the view of the tracks and, perhaps more importantly, the view of the train operator(s). A finder of fact must determine whether a driver’s view andlor the railroad’s personnel view of the scene was obstructed. Comparative \ ¿negligence is another factor which can be resolved only upon a determination of certain disputed facts, (emphasis added).

AGS filed a Motion for New Trial/Rehearing. Mr. Magallanes opposed the request for a new trial. After a hearing on April 18, 2008, the trial court gave Mr. Magallanes ten days to supplement the record with evidence showing that a genuine issue of material fact existed which would bar summary judgment. Mr. Ma-gallanes submitted portions of two deposition transcripts, those of the engineer and the conductor.

On January 15, 2009, after considering the parties’ arguments and briefs, the trial court granted the motion for new trial/rehearing and at the same time granted summary judgment dismissing with prejudice Mr. Magallanes’ remaining claims against AGS and Mr. Williams.

Procedural Error of the Trial Court’s Ruling on Motion for New Trial by AGS

Mr. Magallanes contends that the trial court committed error in considering the motion for a new trial and rendering a summary judgment as a result of its consideration of the motion for new trial. We agree. We have previously held that the motion for new trial pursuant to La. C.C.P. art. 1974 applies only to final judgments. Carter v. Rhea, 01-0234, p. 4 (La.App. 4 Cir. 4/25/01), 785 So.2d 1022, 1025. Article 1974 reads:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

14 La. C.C.P. art. 1913 pertains only to final judgments. A denial of a motion for summary judgment is an interlocutory judgment. Carter, id.; Clark v. Legion Ins. Co., 02-2487, p. 5 (La.App. 4 Cir. 7/23/03), 853 So.2d 684, 687, and cases cited therein; Nalty v. D.H. Holmes Co., Ltd., 99-2826, p. 6 (La.App. 4 Cir. 12/27/00), 775 So.2d 695, 698.

The improper use of the Article 1974 motion for new trial led to the very confusion about which Mr. Magallanes complains. He was surprised that the result of the hearing on the motion for new trial could be the granting of summary judgment. He argues that he did not understand that he was defending against the renewal of the motion for summary judgment, which motion has definite procedural requirements.

The proper procedure for obtaining a reconsideration of the motion for summary judgment which has been denied is to re-urge the motion itself by re-filing it prior to trial. Young v. Dupre Transport Co., 97-0591 (La.App. 4 Cir. 10/1/97), 700 So.2d 1156, 1157. In his concurrence in Carter, supra, Judge Tobias noted:

[A] literal reading of La. C.C.P. art. 1974, authorizing motions for new trial, makes it applicable to final judgments only.... The majority makes our practice conform to the literal language of La. C.C.P. art. 194 and the jurisprudence from two other appellate circuits. ... Now, in order to accomplish the same result as a motion for new trial, one must file a brand new motion (with appropriate attachments) addressing the identical issue as a previous motion that resulted in an allegedly erroneous interlocutory degree.

Carter, 01-0234 at p. 6, 785 So.2d at 1026.

| ¿This court permitted a motion for summary judgment to be re-urged by the defendants after it had been denied twice previously, noting that previous denials had no res judicata effect. Francioni v. Rault, 570 So.2d 36, 37 (La.App. 4 Cir.1990). See also Hargett v. Progressive Ins. Co., 08-0293, pp. 6-7 (La.App. 4 Cir. 10/29/08), 996 So.2d 1199, 1202.

Therefore, we conclude that the trial court erred as a matter of law when it reconsidered its previous denial of summary judgment through the procedural vehicle of a motion for new trial and then rendered a final summary judgment dismissing Mr. Magallanes’ suit with prejudice. Accordingly, we reverse the granting of summary judgment and we remand the matter to the trial court.

Genuine Issues of Material Fact Negating the Propriety of Summary Judgment

Mr. Magallanes also assigned as legal error that genuine issues of material fact precluded the granting of summary judgment. We review a ruling on a motion for summary judgment de novo. Carsice v. Empire Janitorial, 08-0741, p. 2 (La.App. 4 Cir. 12/17/08), 2 So.3d 553, 554 (citing King v. Dialysis Clinic, Inc., 04-2116, p. 5 (La.App. 4 Cir. 1/4/06), 923 So.2d 177, 180). Because we have already decided to reverse and remand on the procedural issue, we do not reach this substantive assignment of error.

CONCLUSION

We reverse the judgment of the trial court summarily dismissing Mr. Magal-lanes’ claims against AGS and Mr. Williams. We remand the case for appropriate proceedings in accordance with this reversal.

REVERSED AND REMANDED

      . Other defendants include the owner of the property where the collision occurred, the State of Louisiana Department of Transportation and Development, the Parish of St. Bernard, the driver of the automobile, and his insurer. The La DODT has been dismissed with prejudice and that judgment is now final and unappealable.

      .On March 18, 2002, Mr. Magallanes filed an amending and supplementing petition in which he substituted this allegation with "Failure to keep its right-of-way or servitude free of visual obstructions which would prevent automobile drivers exiting the Licciardi Trailer Park from seeing the approach of its trained [sic] upon its tracks crossing the exit from the said trailer park.”

      . The conductor, Joan Williams, is the wife of the defendant engineer Ronald Williams.

      . AGS argued that the trial court had insufficiently considered the application of federal pre-emption in determining whether there were genuine issues of material fact. See CSX Transportation v. Easterwood, 507 U.S. 658, 663-71, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

      . La. C.C.P. art. 1914 treats interlocutory judgments.

      . La. C.C.P. art. 966 provides requirements for notice and delays.

      . As the Second Circuit observed in Winston v. Martin, 801 So.2d 389, 2000 WL 1358432 (La.App.2d Cir.9/21/2000), "a motion for new trial is a procedural device applying only to final judgments.” See also Edwards v. Daughterty, 95-702, p. 11 (La.App. 3d Cir. 1/10/96), 670 So.2d 220, 226, wherein a denial of a motion for summary judgment was noted to be interlocutory, not a final judgment, and thus not subject to being appealed.