text:
    Timothy Scott NEATHERY, Sr., Plaintiff-Appellee v. Tiffany Freeman NEATHERY, Defendant-Appellant
    No. 51,388-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 17, 2017
    EDWARD DION YOUNG, Counsel for Appellant
    LAYNE M. ADAMS, Counsel for Inter-venor Appellee
    Before BROWN, DREW, and STONE, JJ.
   STONE, J.

h Tiffany F. Neathery (“Tiffany”), appeals a trial court judgment awarding her and Brian and Martha Aucoin (“the Au-coins”) joint custody of Tiffany’s minor daughter, B.N., and designating the Au-coins domiciliary parents. For the reasons stated herein, we affirm.

FACTS

Timothy Neathery, Sr., (“Timothy”) and Tiffany are the legal parents of 12-year-old B.N. A child custody judgment was rendered on April 18, 2006, awarding Tiffany sole custody of B.N., and further denying Timothy any visitation rights. Despite the child custody judgment, B.N. resided with the Aucoins from her birth on November 25, 2004, until she was approximately 9 years old. The record indicates the Aucoins assumed the role of B.N.’s parents and were her primary caretakers.

Between the summer and fall of 2014, Martha informed B.N, that when she turned 12 years old, B.N. could decide if she wanted to live with Tiffany or the Aucoins. B.N. subsequently repeated this statement to Tiffany. Apparently, miffed with Martha’s statement, Tiffany insisted B.N. live with her exclusively, and eventually terminated all contact between B.N. and the Aucoins.

On February 2, 2015, the Aucoins filed a rule for custody requesting sole custody of B.N. To assist the trial court in a visitation determination, the trial court ordered the parties undergo a custody evaluation with licensed | ¡^professional counselor, Donna George (“George”) at the Wellspring Counseling & Family Development Center. The custody evaluation required Tiffany and the Aucoins to submit to psychological evaluations with Dr. Bobby Stephenson (“Dr. Stephenson”).

Upon consideration of George’s custody evaluation, a hearing officer recommended the Aucoins be granted sole custody of B.N. with Tiffany exercising physical eus-tody of B.N. on alternate weekends from 6:00pm Friday until 6:00pm Sunday and at any other times agreed upon by the parties. The trial court signed an interim order adopting the recommendation of the hearing officer.

The trial court issued a final judgment on the matter on August 26, 2016. The trial court granted the Aucoins and Tiffany joint custody of B.N. and designated the Aucoins domiciliary parents. Tiffany was given unsupervised visitation with B.N. every other weekend from the end of school on Friday until the start of school on Monday. Tiffany now appeals.

DISCUSSION

Tiffany alleges the trial court erred in finding substantial harm would result from her having sole custody of B.N. Tiffany argues the trial court did not properly apply La. C.C. art. 138 in determining B.N. should be removed from her and placed in the custody of nonparents.

Louisiana law requires that “the best interest of the child [be] the guiding principle in all child custody litigation.” Street v. May, 35,589 (La.App. 2d Cir. 12/05/01), 803 So.2d 312; Mills v. Wilkerson, 34,694 (La. App. 2d Cir. 03/26/01), 786 So.2d 69, 73; La. C.C. art. 131. Determining the best interest of a child is a fact-intensive inquiry requiring a court to balance the factors supporting or opposing an award of custody to the ^litigating parties based on the evidence presented. May, supra; Warlick v. Warlick, 27,389 (La.App. 2d Cir. 09/29/95), 661 So.2d 706. A court must consider all relevant factors in determining the best interest of the child and is provided with guiding factors to assist in its consideration; however, the list is not exhaustive. La. C.C. art. 134. Turner v. Turner, 84-0557 (La. 1984), 455 So.2d 1374. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Pender v. Pender, 38,649 (La.App. 2d Cir. 05/12/04), 890 So.2d 1.

Where an award of joint or sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment or otherwise to any other person who is able to provide an adequate and stable environment for the child. La. C.C. art. 133.

Substantial harm under art. 133 includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include “any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.” Mills v. Wilkerson, supra; Hughes v. McKenzie, 20,322 (La. App. 2d Cir. 02/22/89), 539 So.2d 965.

In custody disputes between a parent and a nonparent, the parent enjoys the paramount right to custody and may be deprived of this right only for compelling reasons. Street v. May, supra; Mills v. Wilkerson, supra. At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an Laward of custody to the nonparent. La. C.C. art. 133, Comment (b); Martin v. Dupont, supra; Bracy v. Bracy, 32,841 (La.App. 2d Cir. 10/27/99), 743 So.2d 930; Tennessee v. Campbell, 28,823 (La.App. 2d Cir. 10/30/96), 682 So.2d 1274.

The trial court is in the best position to determine the best interest of the child, and findings of fact in custody disputes will not be set aside on appeal unless they are manifestly erroneous or clearly wrong. Street v. May, supra.

Testimony at trial revealed Tiffany is the mother of eight children, including B.N. Two of the children, a 4-year-old set of twins, reside with Tiffany part-time in a poorly conditioned mobile home and part-time with Tiffany’s mother. Tiffany’s 18-year-old daughter resides with her boyfriend part-time and with Tiffany part-time. The 18-year-old is a senior in high school but has previously had to repeat two grades. Tiffany’s four older children were primarily raised by someone other than Tiffany, and three have dropped out of school without receiving a diploma or GED. Those three children also have criminal arrest records.

When she was approximately 3 to 6 months old, B.N. began staying with the Aucoins from Tuesday to Saturday while Tiffany worked overnight. Tiffany did not provide the Aucoins with any assistance. The Aucoins provided B.N. with all her needs including food and clothing. The Au-coins also provided B.N. with her own room and maintained all her medical and dental appointments. Once B.N. started school, Tiffany gave the Aucoins authority to interact directly with the school on any matters concerning B.N.

The testimony further revealed B.N. suffers from a receptive learning disorder that affects her ability to read and comprehend. To aid with B.N.’s ^learning disorder, the Aucoins paid for B.N. to attend Sylvan Learning Center as well as speech and language therapy at the University of Louisiana in Monroe (“ULM”). The Au-coins also involved B.N. in extracurricular activities, including travel softball. The Au-coins transported B.N. to all her practices and games.

B.N.’s school transcripts admitted into evidence revealed she was primarily an A and B student when she predominantly lived with the Aucoins and attended ULM. However, after Tiffany severed all ties between the Aucoins and B.N. B.N.’s grades severely declined to Ds and Fs. Tiffany admitted that B.N.’s grades have substantially dropped since she has been in Tiffany’s custody, but claims she will take steps in the future to ensure B.N. gets tutoring and goes to college. She conceded that ULM was beneficial to B.N. and helped with her learning disorder, but that she discontinued B.N.’s therapy at ULM because B.N. hated it and did not want to return.

Tiffany testified she currently works overnight and B.N. and her 4 year old twins stay with her mother from Tuesday through Saturday while she is working. According to Tiffany, her oldest daughter who is 28 years old, also lives with her mother. Neither the oldest daughter nor the grandmother have a driver’s license and would be legally prohibited from driving the children anywhere if necessitous circumstances arise. Tiffany also informed the trial court that she wanted to cut the Aucoins completely out of B.N.’s life.

B.N. testified that she was mad at the Aucoins for trying to take her from Tiffany. However, B.N. confessed that Tiffany told her to testify that she wanted to live with Tiffany. According to B.N., Tiffany told her that if |fishe went to live with the Aucoins, she would never see Tiffany or B.N.’s brothers and sisters again.

George testified that B.N. believes Tiffany’s willingness to give love and affection is conditional, is seemingly based on whether B.N. is acting in a way that makes Tiffany happy, and that B.N. feels loved as long as she is doing what Tiffany wants her to do. George believes B.N. loves Tiffany very much and is reluctant to do or say anything about Tiffany that would be viewed in a negative light or that would be upsetting to Tiffany. George further testified that during her one on one session with B.N., the child stated that Tiffany said she would have to go live with Timothy if she loses custody of her. B.N. also stated she would like to come and live with the Aucoins if Tiffany did not get mad.

George also testified that when she questioned Tiffany about her other children not finishing school, Tiffany dismissed any responsibility by stating it was not her fault because the kids moved out and dropped out of school. George also indicated that Tiffany did not believe her children’s decisions to get in trouble was her fault nor was it a reflection of her parenting.

Based on her sessions and interactions with the parties, George testified it was in B.N.’s best interest to grant the Aucoins and Tiffany joint custody and designating the Aucoins as domiciliary parents subject to Tiffany’s unsupervised visitation.

After considering the testimony of parties and witnesses, the trial court determined the Aucoins presented sufficient evidence to establish substantial harm would result by granting Tiffany sole custody of B.N. The trial court stated Tiffany’s act of terminating B.N.’s relationship with the Aucoins, the most stable and long-term relationship B.N. had in her life, was ^substantially harmful to B.N. Furthermore, the trial court found that Tiffany’s attempt to scare and intimidate B.N. with threats of never seeing her family again or having to go and live with Timothy inflicted emotional abuse on B.N. According to the trial court, Tiffany’s demonstrated habit of placing her own interests, desires, and feelings ahead of B.N.’s were contrary to B.N.’s best interest.

Additionally, the trial court found that based on Tiffany’s employment and financial situation, it may be difficult for her to spend adequate time with B.N. or provide her with certain things she needs. The trial court also found that Tiffany places little or no, emphasis on furthering B.N.’s education and addressing her special needs with respect to succeeding in school. Specifically, the trial court stated Tiffany “has little or no regard or concern as to whether [B.N.] succeeds in school or not, graduates from high school or not, and certainly little or no interest in where the child attends or receives a college education.” The trial court went on to further state:

The lack of emphasis with respect to educational needs, development, and success is obvious and long-term with respect to how Tiffany Freeman Neath-ery parents her children. Also, she’s advocated her parental responsibility along the way with respect to the other children as evidenced by their living arrangements and who assumed primary responsibility and care for them along the way. There is nothing in the record presented to suggest to the court that the outcome with respect to [B.N.], if left solely in Tiffany’s care and without the involvement of other persons such as the Aucoins, would be any different.”

In weighing the best interest factors enumerated in La. C.C. art. 134, the trial court determined both parties love B.N. and she loves them all however, B.N. seems to have stronger and healthier emotional ties with the Aucoins, and she views the Aucoins as parental figures; the Au-coins have shown the ability and willingness to ensure that B.N. receives the education | Sshe needs and succeeds in school; the Aucoins earn a sufficient income and are able to provide everything for B.N. as they have been doing for years, including clothes, school supplies, healthcare, extracurricular activities, and tutoring; and, the Aucoins are able to provide a more stable, adequate, and permanent living environment and family unit for B.N. Although the trial court did not find Tiffany to be morally unfit as a parent, it did find Tiffany subjected B.N. to emotional abuse. Particularly, the trial court found Tiffany’s conduct of stoking fear and making threats that B.N would be alienated from the family, as well as completely terminating B.N.’s relationship with the Aucoins, to be very disturbing. The trial court found it “deplorable” that Tiffany would wholly dissolve all communication between the Au-coins and B.N. despite the significant role they have played in the first ten years of her life.

After thoroughly reviewing the record, we find the trial court’s decision to grant the Aucoins and Tiffany joint custody is in the best interest of B.N. The Aucoins earn a sufficient income and are able to provide everything for B.N. as they have been doing for years. The Aucoins have borne most of the responsibility for care and rearing of B.N. thus far and are in a better position to make major decisions that affect B.N. Additionally, the Aucoins have shown the ability and willingness to ensure that B.N. receives the education she needs and have the resources to ensure she succeeds in school. Tiffany was clear that she did not want the Aucoins to have any part of B.N.’s life. However, removing B.N. from the relationship that she has grown to love and enjoy with the Aucoins would not be in her best interest. As a result, we find no manifest error in the trial court’s conclusion.

^CONCLUSION

For the aforementioned reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant, Tiffany F, Neathery. ■

AFFIRMED.

      .Tiffany testified that Kelvin Bailey is B.N.'s biological father; however, Kelvin has never taken any action to formally acknowledge or establish his paternity of B.N. Since B.N. is now over the age of 10 years old, any action to establish paternity is preempted pursuant to La. C.C. art. 198.

      . Martha Aucoin ("Martha”) is Tiffany's first cousin and B.N.’s second cousin.

      . Timothy was served with the rule for custody. He appeared at the first hearing and announced he did not desire to be a party to the action.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Hurshel KENDRICK, Plaintiff-Appellant v. HERCULES CONCRETE PUMPING SERVICE, INC., DefendantAppellee
    No. 51,202-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 17, 2017.
    LAW OFFICES OF STREET & STREET By: Curtis Daniel Street, Counsel for Appellant

      JUGE, NAPOLITANO, GUILBEAU, RULI, FRIEMAN, & WHITELEY By: Bradley P. Naccari, Counsel for Appellee
    Before BROWN, WILLIAMS, and PITMAN, JJ.
   BROWN, C.J.

hThis is a workers’ compensation ease. Claimant, Hurchel Kendrick, started receiving indemnity benefits and necessary medical treatment after he injured his back and right knee on the job. Thereafter, the physician treating claimant for his back-related complaints requested authorization for a CT myelogram with 3-D reconstruction. The request was denied by Amerisure Insurance Company, the workers’ compensation provider for claimant’s employer, Hercules Concrete Pumping Service, Inc., and thereafter by the Workers’ Compensation Administration’s medical director. Claimant appealed to the WCJ, which, after a hearing, affirmed the decision of the Medical Director. We reverse and remand.

FACTS

On January 28, 2015, Hurchel Kendrick was working for Hercules Concrete when he fell from his work truck. Kendrick alleged injuries to his back and right knee, and his claim was accepted as compensable by defendant, Hercules Concrete, and its workers’ compensation carrier, Amerisure Insurance Company. Thereafter, Kendrick began receiving indemnity benefits and necessary medical treatment.

On May 4, 2015, a lumbar MRI was performed due to claimant’s complaint of lower back pain. On May 29, 2015, Dr. Douglas Brown performed a total knee replacement surgery on Kendrick’s right knee. ^Subsequently, Kendrick began treating with Dr. Bernie McHugh for his low back pain.

On September 25, 2015, Dr. McHugh sent a Form 1010 to Amerisure requesting authorization for a CT myelogram with 3-D reconstruction. On October 12, 2015, UniMed Direct, on behalf of Amerisure, determined that the recommended testing was not “medically necessary” under the Medical Treatment Guidelines (hereafter referred to as the “MTG”), and the request for authorization was denied. On October 22, 2015, Kendrick appealed this denial to the medical director.

On February 16, 2016, the Medical Director issued his decision. The Medical Director applied “Chapter 20, Spine Medical Treatment Guidelines, Subchapter B, Low Back Pain, subsection C” of the MTG and concluded the following:

The MTG states that the myelogram should only be used when CT and MRI is not available. In this instance an MRI has already been performed. Therefore the MTG does not support the CT mye-logram with 3d reconstruction. Although the Medical Treatment Guidelines recognize that clinical situations sometimes require a variance from guidelines, no information was provided to support a variance. (Emphasis added).

On February 26, 2016, Kendrick filed a Form 1008 and a motion to appeal the medical director’s decision. The WCJ heard the matter on April 26, 2016. Claimant testified and introduced his medical records into evidence. Claimant stated the following:

My back, primarily I have low back pain. I have pain stimulating down my left leg, through my hip. My right leg bothers me some, but it’s mostly down my left leg. I have muscle cramps, what feels like shin splints sometimes and I|3 have a tingling sensation. It feels like insects crawling around my ankles. I have fairly ongoing pain in my testicles because of the injury.

Claimant’s medical records included a document produced by Dr. McHugh, which contained the following information:

An MRI of the lumbar spine demonstrates diffuse degenerative disc change. There is a grade-1 spondylolisthesis at L4/L5 with stenosis. There is also a right paracentral disc herniation with stenosis at L5/S1.
1. A 55-year-old male with low back pain, lower extremity pain, numbness, and tingling, left greater than right.
2. Neurogenic claudication-type symptoms.
3. Lower extremity symptoms beginning following a work-related injury in January 2015.
4. Right knee pain status post a right knee surgery on 05-29-15
I [Dr. McHugh] reviewed the MRI with Mr. Kendrick. Because his symptoms have not responded to conservative treatment, we will send him for a CT myelogram of the lumbar spine with 3D reconstructions and have him return to discuss recommendations for surgery. We recommend that the patient continue off work at this time.

At the conclusion of the trial, the WCJ affirmed the decision of the medical director. The WCJ determined that, based on the evidence, Kendrick failed to satisfy the requirements for the recommended testing to be considered medically necessary.

Claimant has appealed from this judgment.

DISCUSSION

The issue before us is whether the WCJ correctly affirmed the decision of the medical director denying Kendrick’s request for a CT myelogram with 3-D reconstruction.

A workers’ compensation claimant may recover medical treatment that is reasonably necessary for the treatment of a medical condition caused |4by a work injury. La. R.S. 23:1203(A); Church Mutual Insurance Co. v. Dardar, 13-2351 (La. 05/07/14), 145 So.3d 271. Medical necessity includes services that are in accordance with the MTG and are clinically appropriate and effective for the patient’s illness, injury or disease. LAC 40:1.2717; Gilliam v. Brooks Heating & Air Conditioning, 49,161 (La.App. 2 Cir. 07/16/14), 146 So.3d 734. To be medically necessary, a service must be consistent with the diagnosis and treatment of a condition or complaint, in accordance with the MTG, not solely for the convenience of the patient, family, hospital or physician and furnished in the most appropriate and least intensive type of medical care setting required by the patient’s condition. Gilliam, supra.

An initial request for authorization of care by a health care provider on Form 1010 is presented to the carrier/self-insured employer or a utilization review company, acting on behalf of the employer, to determine if the request for care is in accordance with the MTG. LAC 40:I.2715(B)(3)(d). In responding to this request, the health care provider is required to review the MTG for each area of the body to obtain specific services or diagnostic testing that is included in the request. LAC 40:I.2715(C)(2). Based upon the medical information provided, the carrier/self-insured employer determines if the request is in accordance with the MTG. LAC 40:I.2715(B)(3)(d).

Disputes are then filed by any aggrieved party for review by the medical director on Forml009. LAC 40:I.2715(B)(3)(e). FormlOlO and all of the information previously submitted to the carrier/self-insured employer are required to be submitted with the application. LAC 40:I.2715(J)(2)(b) and (c). The carrier/self-insured employer also provides the medical director [ ¿with any evidence it thinks pertinent to the decision. LAC 40:I.2715(J)(5)(a). The medical director renders a decision as to whether the request for authorization is medically necessary and in accordance with the MTG. LAC 40:I.2715(J)(5)(b).

Any party aggrieved by the decision of the Medical Director shall seek judicial review by filing Form 1008 in a workers’ compensation district office. LAC 40:I.2715(K)(1). The decision of the medical director may only be overturned when it is shown, by clear and convincing evidence that the decision was not in accordance with the provisions of R.S. 23:1203.1. Id.

The “clear and convincing” standard in a workers’ compensation case is an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Hatcherson v. Diebold, Inc., 00-3263 (La. 05/15/01), 784 So.2d 1284; Gilliam, supra. To prove a matter by “clear and convincing” evidence means to demonstrate that the existence of the disputed fact is highly probable or much more probable than its nonexistence. Gilliam, supra.

A “CT myelogram” is not a clearly defined term in the MTG. Instead, it is referenced in several provisions of the MTG. A review of these pertinent provisions provides a definition and its applicability.

The first sentence of Chapter 20 Sub-chapter (B), Subsection (C) states that “Magnetic resonance imaging (MRI), mye-lography, or computed axial tomography (CT) scanning following myelography, and other imaging procedures and testing may provide useful information for many spinal | (¡disorders.” Chapter 20, Subchapter (B), Subsection (C)(1)(b) defines “CT” as follows:

Computed Axial Tomography (CT) provides excellent visualization of bone and is used to further evaluate bony masses and suspected fractures not clearly identified on radiographic evaluation. It may sometimes be done as a complement to MRI scanning to better delineate bony osteophyte formation in the neural fora-men. Instrument-scatter reduction software provides better resolution when metallic artifact is of concern.

Chapter 20, Subchapter (B), Subsection (C)(1)(c), the provision relied upon by the Medical Director, defines “myelography” as follows:

Myelography is the injection of radio-paque material into the spinal subarach-noid space, with x-rays then taken to define anatomy. It may be used as a diagnostic procedure to obtain accurate information of characteristics, location, and spatial relationships among soft tissue and bony structures. Myelography is an invasive procedure with complications including nausea, vomiting, headache, convulsion, arachnoiditis, cerebral-spinal fluid (CSF) leakage, allergic reactions, bleeding, and infection. Therefore, mye-lography should only be considered when CT and MRI are unavailable, for morbidly obese patients or those who have undergone multiple operations, and when other tests prove non-diagnostic. The use of small needles and a less toxic, water-soluble, noniónic contrast is recommended.

Chapter 20, Subehapter(B), Subsection (C)(1)(d) of the MTG, states that “CT My-elogram provides more detailed information about relationships between neural elements and surrounding anatomy and is appropriate in patients with multiple prior operations or tumorous conditions.”

These provisions provide that a CT My-elogram is merely a CT scan with a myelo-gram. Moreover, these provisions provide that a myelogram should only be used when CT and MRI are not available, for morbidly obese patients, for those who have undergone multiple operations, or when other tests prove to be non-diagnostic. In this case, Kendrick testified that an MRI of his lower back had already been done, that he had not undergone prior [^surgery on his back, and that he is not morbidly obese. Thus, he does not satisfy any of these requirements. Furthermore, claimant did not produce any evidence showing that he was suffering from a tumorous condition. This finding notwithstanding, based on our review, we find that a variance from the MTG may be appropriate.

Medical care, services and treatment that varies from the promulgated MTG shall also be due by the employer when it is. demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the MTG is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances. La. R.S. 23:1203.1(1). In the case of a variance request, the claimant shall state the reason for review by the medical director is that a variance from the MTG is warranted and the health care provider or claimant shall provide any other evidence supporting the position of the health care provider, including scientific medical evidence demonstrating that a variance is reasonably required. LAC 40:I.2715(J)(2). One of the situations in which a variance exists , is when the requested care, services, or treatment is not recommended by the MTG although the diagnosis is covered. LAC 40:I.2715(L)(2)(a).

As we have already concluded, Kendrick does not fit squarely into the guidelines of the MTG. However, the latter provisions acknowledge that in some cases, a variance from the MTG is necessary. Here, based on the testimony of Kendrick, with supporting medical records, there is no disputing that he suffers from serious low back pain as a result of his work injury. Dr. McHugh requested the CT myelogram with 3-D reconstruction in advance of surgery. Plainly, Dr. McHugh requested the CT myelogram |sbecause he thought it was best for his patient, Kendrick. The latter, combined with scientific medical evidence showing a variance is necessary, may have convinced the medical director and the WCJ to approve claimant’s request. The difficulty before us on appeal, as expressed by the medical director, is that claimant did not submit a request for a variance from the MTG, together with supporting scientific medical evidence, from the medical director or the WCJ, which is required by the MTG. Even on appeal, claimant has not argued for a variance from the MTG. However, La. C.C.P. Art. 2164 provides that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. See also Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/30/94), 646 So.2d 859. We find this principle to be applicable to the matter before us.

Accordingly, we remand the case to the WCJ to give claimant the opportunity to present scientific medical evidence as to why a variance from the MTG is necessary.

CONCLUSION

The ruling of the WCJ is REVERSED AND REMANDED for further proceedings consistent with this opinion. Costs of this appeal are assessed against defendant, Hercules Concrete Pumping Service, Inc.

      . Although the record was lodged with claimant's first name spelled as "Hurshel" and it is spelled in the record in several other places as "Hurschel,” we will use "Hurchel” throughout this opinion as this is the correct spelling of claimant's first name.

      . Kendrick also filed a civil action against Hercules Concrete alleging wrongful discharge, which is also on appeal with this Court. See No. 51,190-CA. These cases have not been consolidated.

      .Under La. R.S. 23:1203.1, the medical director is a physician who is licensed to practice medicine in the State of Louisiana and has been chosen by the director of the Office of Workers’ Compensation Administration for settling disputes.


author: DREW, J.

text:
    Hurshel KENDRICK, Plaintiff-Appellant v. HERCULES CONCRETE PUMPING SERVICE OF MISSISSIPPI, INC., Defendant-Appellant
    No. 51,190-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 17, 2017
    STREET & STREET, By: C. Daniel Street, D. Randolph Street, Counsel for Appellant
    NELSON, ZENTNER, SARTOR & SNELLINGS, By: George M. Snellings, IV, Counsel for Appellee
    Before BROWN, DREW and STONE, JJ.
   DREW, J.

liHurchel Kendrick appeals from a summary judgment dismissing his claim for wrongful termination. For the following reasons, we reverse and remand this case to the trial court for further proceedings, rejecting the demand of the appellee, Hercules Concrete Pumping Services of Mississippi, Inc. (“Hercules”), for damages for frivolous appeal.

FACTS

Mr. Kendrick was employed with Hercules for many years as a concrete pump truck operator. On March 18,2013, he was washing out the hopper of the pump truck when a gust of wind jerked the wooden board he was holding out of his hand. That incident injured Kendrick’s left shoulder and required medical treatment, including surgery. Hercules paid Kendrick over $30,000 in medical benefits and over $6,000 in workers’ compensation indemnity benefits. Since the operation was successful, Kendrick returned to work at his old job.

In December 2014, Hercules’ workers’ compensation insurance adjuster began negotiating a final settlement of this claim with the unrepresented Kendrick. The insurer offered Kendrick $8,500 for a release, and Kendrick accepted the offer. At his deposition, Kendrick explained that during the negotiation, the insurer put no other conditions on the settlement. Specifically, Kendrick said that the parties did not discuss his resignation from work at Hercules as a condition of the settlement. Because the | .¿lump-sum settlement had to be approved by the Office of Workers’ Compensation, the parties set the matter for a hearing on January 29, 2015.

In the meantime, on January 28, 2015, while working on a Hercules pump truck, Kendrick fell off the back of the truck. Kendrick’s foot got caught on the truck’s ladder, and he claimed that the fall caused him to injure his leg and back. At his deposition, Kendrick explained the following events:

I called Paul [Shelley, the president and CEO of Hercules] and told him that I had fallen off the truck, that I was just trying to let him be aware of the incident, because when I had hurt my left shoulder I didn’t report it immediately. I tried to not—was thinking I wasn’t hurt. And I was just basically letting him be aware of the incident, that I had—that I had fallen and I wanted to make the report.
Paul went into—actually, he kind of went to raising sand with me about safety and that we had to, you know, be careful, and this and that and the other, and more or less going over his safety issues, and that he had—he had a bunch of people already getting hurt on the job, had workmen’s comp injuries, and he couldn’t afford any more claims, and that if I was hurt he was going to have to cut me loose.
Well, I told Paul, I said, “I’m on my way home. I’m not trying to be hurt. I understand that, you know, we don’t need any more claims, and I was just letting you be aware of the—not the injury, but the fall, that I didn’t know how—how bad I was hurt or not, but I wanted to let you be aware that I had fallen.

Kendrick clarified what Shelley told him:

Paul told me, bottom line what you’re asking was that he had ... too many workmen’s comp claims against his company already, that he couldn’t afford any more workmen’s comp, that if I was hurt, he was going to have to cut me loose. He could not afford to have anybody else on his workmen’s comp.

Kendrick said that after he got home, Shelly called and told him to go to the doctor for X-rays and an examination. Shelly instructed Kendrick to send the results to him before returning to work. Kendrick went to the Inhospital, where he met a Hercules representative who paid Kendrick’s personal health insurance deductible. He was seen by a doctor but not treated, and the doctor would not provide him a work release because Kendrick required no treatment.

Kendrick took the next day off to con-fect the settlement of his 2013 workers’ compensation claim. He went to the office of the law firm representing Hercules where he signed several documents pertinent to the settlement. Kendrick admitted, “I didn’t read these documents. I briefed over them.”

One of the documents, titled “RELEASE,” contained the following paragraph:

In further consideration and as part and parcel of this settlement, the undersigned does hereby voluntarily resign from his employment with HERCULES CONCRETE PUMPING SERVICES OF MS, INC. and does further hereby release HERCULES CONCRETE PUMPING SERVICES OF MS, INC. from any and all liability, of any nature or kind whatsoever, arising out of his employment with HERCULES CONCRETE PUMPING SERVICES OF MS, INC. including, without limitation, any and all claims HURSCHEL KENDRICK may have under federal and state labor or employment laws and under federal and state tort laws.

This document is in authentic form, notarized in the presence of two witnesses. That same day, Kendrick and the Hercules attorneys went before Judge Brenza Irving Jones, who approved the settlement. The Hercules attorney gave Kendrick a check for $8,500. Later that day, Shelley called Kendrick and instructed him to have the X-rays sent to the company, where Shelley could look at them. Kendrick said that Shelley told him not to return to work until Shelley had the X-rays.

The next day, Kendrick went to the company’s Louisiana office and faxed the doctor’s report to the Mississippi office. Kendrick said:

|4When I got back later that afternoon when [Shelley] got the papers in his hand, he called me back and told me that he would no longer be able to use me, that he was going to lay me off because we were slow at work, which was a complete lie. We were not slow at work. We had plenty of work.

Kendrick said that there was no discussion of his voluntary resignation, and that his supervisor, Mark Knopp, told him that the company very much needed his services and could not believe that Kendrick had been fired.

In July 2015, Kendrick filed a tort action against Hercules in district court. Kendrick alleged that he was fired from Hercules because he was exercising his right to workers’ compensation. Kendrick asserted that this action was illegal under La. R.S. 23:1361, et seq., and demanded a year’s salary along with his attorney fees.

After discovery, including Kendrick’s deposition, which is partially quoted above, Hercules filed a motion for summary judgment. Hercules urged that Kendrick had no claim for wrongful discharge because he had voluntarily resigned from his employment as a part of the settlement of his March 2013 compensation claim. In support, Hercules offered Kendrick’s deposition, the settlement documents including the release containing Kendrick’s resignation, and the affidavit of Paul Shelley. Shelley’s affidavit stated, in part:

[A]s part of the consideration for agreeing to the lump sum settlement, Kendrick voluntarily terminated his employment with Hercules; that on January 29, 2015, Kendrick executed documents agreeing to voluntarily terminate his employment with Hercules; [and] that neither I nor anyone else associated with Hercules retaliated against Kendrick due to his assertion of his workers’ compensation claims[.]

Kendrick, now represented by counsel, filed an opposition to Herculés’ motion and a cross-motion for summary judgment in Kendrick’s favor, relying upon his own deposition, the settlement documents, and an affidavit he recently executed. The plaintiffs affidavit states, in part:

| fi[W]hen [Kendrick] negotiated with the workers’ compensation adjuster in approximately December of 2014, which negotiations concerned possible settlement of his workers’ compensation claim arising from the March 18, 2013, accident, there was no discussion whatsoever of any requirement that he resign from his employment^]
[T]hat after the judge approved the settlement, he signed the paperwork submitted to him by Defendant’s attorneys, and no mention was made of any requirement that he resign from employment; that in his conversations with Paul Shelley ... after his work-related accident of January 28, 2015, Mr. Shelley made no mention whatsoever of any resignation from employment having been executed by him; rather, Mr. Shelley told him approximately one and a half hours after the accident that, if he was hurt, he would have to “cut him loose” because he could not stand another workers’ compensation claim; that, when he talked to Mr. Shelley on the afternoon of January 30, 2015, Mr, Shelley told him he was having to let him go because of lack of work; that he talked to his supervisor, Mark Knopp, who indicated to him that there was plenty of work and that he needed Plaintiff to return to work as soon as possible.

The trial court heard arguments on the motions in April of 2016. With thoughtful reasons for judgment, the court concluded that Mr. Kendrick’s unforced, uncoerced decision to sign the release form—which Kendrick admitted that he did not read'— bound Kendrick to the terms included therein, including the voluntary termination of his employment. Because Kendrick was bound by the terms of this agreement, the court reasoned, Kendrick could not make a prima facie case of wrongful termination under La. R.S. 23:1361. Thereafter, the court signed a judgment dismissing Kendrick’s action with prejudice, and Kendrick now appeals. Hercules has answered Kendrick’s appeal, seeking damages for frivolous appeal.

DISCUSSION

Mr. Kendrick’s assignments of error on appeal are:

1. The Workers’ Compensation Judge erred in granting Defendant-Appel-lee’s Motion for Summary Judgment and thereby dismissing Appellant’s retaliatory discharge claim.
|n2. The Honorable Trial Judge erred in failing to grant Appellant’s Cross-Motion for Summary Judgment, thereby failing to award the penalty of one year’s wages plus attorney fees and court costs and legal interest.

La. R.S. 23:1361 defines the cause of action for wrongful discharge relating to a workers’ compensation claim, and provides in part:

B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United- States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with reasonable attorney’s fees and court costs.

In Hansford v. St. Francis Med. Center, Inc., 43,984 (La.App. 2 Cir. 1/14/09), 999 So.2d 1238, this Court explained:

The purpose of this statute is to prevent unjust dismissals and to allow employees to exercise their right to workers’ compensation benefits without fear of retaliatory action by their employers.
In order to be entitled to recover for retaliatory discharge under La. R.S. 23:1361, the employee must establish by a preponderance of the evidence that she was discharged because she asserted a workers’ compensation claim, either by presenting direct evidence that the assertion of a workers’ compensation claim was the reason for the discharge or by presenting circumstantial evidence sufficient to establish more probably than not that- the reason for the discharge was the assertion of the workers’ compensation claim.
If the employer gives an alternative nondiscriminatory reason for the discharge, and presents sufficient evidence to prove more probably than not that the real reason for the employee’s discharge was something other than the assertion of the workers’ compensation claim, the plaintiff is precluded from recovery. If the employer offers another reason for firing the workers’ | ^compensation claimant, the trial court must ascertain the employer’s true reason or motive based on the facts presented. If the trial court finds that it is more probable than not that the employer’s nondiscriminatory explanation for the discharge is just a guise for retaliatory discharge, the employee is entitled to recovery. Timing of the dismissal alone is insufficient to carry the employee’s burden of proof. Employee fault may be a sufficient independent basis for termination coincident with the employee’s filing of a compensation claim.

Hansford, supra, at pp. 1241-1242. Citations omitted.

Because this case was decided on summary judgment rather than after a trial, the manifest error standard of review does not apply in this case; instead, we review the granting of summary judgment de novo. Peironnet v. Matador Res. Co., 2012-2292 (La. 6/28/13), 144 So.3d 791; Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La. 1991).

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002; Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C. Cr. P. Art. 966 B(2).

In this case, the trial court relied upon Kendrick’s written resignation from employment, submitted as part of the release relating to the 2013 compensation claim, as conclusive proof that Kendrick could not carry his burden of proving retaliatory discharge. Although the trial court’s reasons for judgment were thoughtful, we cannot agree that this case should be decided on summary judgment.

IsBoth below and on appeal, Hercules asserts that Kendrick was dismissed because of the document he signed wherein he resigned from his employment as part of the settlement agreement for the 2013 workers’ comp claim. Standing alone, that document certainly would explain why Kendrick is no longer employed by Hercules, and Kendrick’s failure to read this document before signing it does him no favors. See, e.g., the Supreme Court’s scholarly discussion of unilateral error in Peironnet v. Matador Res. Co., supra.

However, the document does not stand alone. Kendrick asserts that Hercules never relied on this document when Paul Shelley told him that he was fired; instead, Shelley told Kendrick that “he was having to let him go because of lack of work,” a claim that Kendrick’s supervisor immediately repudiated. Further, and more tellingly, Kendrick asserts that he had previously been told by Shelley that Hercules would have to fire Kendrick if he had another workers’ compensation claim, and Kendrick’s termination was coincident in time with a second accident in which Kendrick allegedly suffered an injury.

Although Kendrick’s careless execution of the release wherein he resigned from Hercules is one plausible explanation for the termination of his employment, it is—under these peculiar facts—only one plausible explanation. Kendrick has offered another explanation that is similarly plausible, depending upon a fact-finder’s determination of credibility. To quote Hansford, supra, again:

If the employer offers another reason for firing the workers’ compensation claimant, the trial court must ascertain the employer’s true reason or motive based on the facts presented.... If the trial court finds that it is more probable than not that the employer’s nondiscriminatory explanation for the discharge |9is just a guise for retaliatory discharge, the employee is entitled to recovery.
Hansford, supra at p. 1242. (Citations omitted.)

Here, there remains a genuine dispute of fact whether the employer’s explanation for the discharge—Kendrick’s unwitting resignation—is the real reason for his termination or whether that is a guise for retaliatory discharge. Based upon this record, the question cannot be answered on summary judgment in favor of either party.

CONCLUSION

For the same reasons, Hercules is not entitled to damages for frivolous appeal under La. C.C.P. Art. 2164. Accordingly, the judgment of the trial court is reversed at appellee’s cost, and appellee’s demand for damages for frivolous appeal is denied.

REVERSED AND REMANDED.

      . Although the record was lodged with claimant’s first name spelled as "Hurshel” and it is spelled in the record in several other places as "Hurschel,” we will use ''Hurchel” throughout this opinion as this is the correct spelling of claimant’s first name.

      . He was so employed from 1994 to 2004 and from 2007 to 2015.


author: KYZAR, Judge.

text:
    Patrick SANDEL, et al. v. The VILLAGE OF FLORIEN
    CA 17-248
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 2017

      Paul Boudreaux, Jr., Vilar & Green, LLC, P. 0. Box 12730, Alexandria, LA 71315-2730, (318) 442-9533, COUNSEL FOR PLAINTIFFS APPELLEES: Patrick Sandel, Donovan Wade Lagrange
    Anna Louise Garcie, Attorney at Law, P. O. Box 575, Many, LA 71449, (318) 729-9104, COUNSEL FOR DEFENDANT APPELLANT: The Village of Florien
    Mark Felipe Vilar, Vilar & Green, LLC, P. O. Box 12730, Alexandria, LA 71315-2730, (318) 442-9533, COUNSEL FOR PLAINTIFFS APPELLEES: Patrick Sandel, Donovan Wade Lagrange
    Aaron L. Green, Vilar & Green, LLC, P. 0. Box 12730, Alexandria, LA 71315-2730, (318) 442-9533, COUNSEL FOR PLAINTIFFS APPELLEES: Patrick Sandel, Donovan Wade Lagrange
    Lani B. Durio, Attorney at Law, 8585 Archives Ave., Baton Rouge, LA 70809, (225) 922-1180, COUNSEL FOR OTHER: Tom Schedler, La. Sec. of State
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty and Van H. Kyzar, Judges.
   KYZAR, Judge.

_JjThe defendanVappellant, the Village of Florien (Florien), appeals the judgment of the trial court finding in favor of the plaintiffs/appellees, Patrick Sandel and Donovan Wade Lagrange. The plaintiffs filed suit against the governing authority of Florien to invalidate an election held allegedly in violation of several statutes governing local option elections to permit or prohibit the sale of alcohol. The trial court found the election and resulting ordinances to be null, void, and unenforceable. Florien filed this appeal. Finding no manifest error and no reversible error of law in the trial court’s judgment, we affirm the judgment after amending it to address a legal question pretermitted by the trial court.

I.

ISSUE

We must decide whether the trial court legally erred or manifestly erred in finding the election null and void.

II.

FACTS AND PROCEDURAL HISTORY

The governing authority of Florien, the Board of Aldermen (Board), was presented with a petition to call an election to determine whether the sale of alcoholic beverages would continue to be permitted-in Florien. The results of the election, by a very narrow margin of two to six votes on each of five propositions, were to discontinue the sale of alcohol in Florien. Alleging numerous violations in the petition to call the election and in the election process, the plaintiffs brought suit against Florien to void the election and the resulting resolution and ordinance |2passed to enforce the results. Finding too many irregularities in the election process to satisfy the criteria of substantial compliance with the governing statutes, the trial court invalidated the election, decreeing in its judgment that the election was null, void, and unenforceable. Florien appealed the judgment.

III.

STANDARDS OF REVIEW

Upon review, an appellate court may not set aside a trial court’s finding óf fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Questions of law involving the correct interpretation of legislation are reviewed de novo, without deference to the legal conclusions of the trial court. Durio v, Horace Mann Ins. Co., 11-0084 (La. 10/25/11), 74 So.3d 1159.

IV.

LAW AND DISCUSSION

Florien asserts that the trial court erred in granting the plaintiffs’ petition to void the election. It argues that its own petition to call the local option election was valid under La.R.S. 26:584, and that the election process was in substantial compliance with Title 26.

Applicable Statutes

The election suit on appeal comes under Title 26, Chapter 3, of Louisiana Revised Statutes, which provides the procedure for calling local option elections to either allow or prohibit the sale of liquors and alcoholic beverages in a particular area. The applicable statutes governing the issues on appeal are La.R.S. l326:582-595, and La.R.S. 18:402(F). These statutes provide the following procedures for calling and conducting elections to permit or prohibit the sale of alcohol. They also mandate the post-election procedures for promulgating resolutions and ordinances based upon the election results.

At least twenty-five percent of qualified electors must sign the petition in order for the governing authority to order a referendum election to be held on whether or not the business of selling alcoholic beverages will be conducted and licensed in the ward, district, or municipality. La.R.S. 26:582. The petition is submitted to the registrar of voters who determines the number of qualified voters in the area on the date of the first signature. Id.

The form for the petition to call the election'is set forth in detail in La,R.S. 26:584. Substantial compliance with the statutes is required. The petition must be typed or printed; it must list five specific propositions; it must contain the signature of the voter, the date signed, the signer’s ward or election district and 1¿precinct, and the signer’s residential address, all handwritten by the signer and all typed or printed. The petition must also contain the name of the witness to the signatures and the date witnessed. Id.

The petition must be filed with the registrar of voters within sixty days of the date of the first signature on the petition. La.R.S. 26:585. The registrar of voters must publish the notice of the filing of the petition in the official journal of the parish or municipality within fifteen days of its filing. Id. Pursuant to La.R.S. 26:586(A), the registrar of voters checks the petition and within thirty days files it with the governing authority, attaching his sworn verification showing: (1) the date the petition was filed; (2) a copy of the publication of notice; (3) the date of the first signature; (4) the number of qualified electors on the registration rolls on date of first signature; (5) that he has compared each signature with that on the registration rolls; (6) the total number of genuine signatures; and (7) the number of signatures not signed or written as required in La. R.S. 26:584 above. La.R.S. 26:586(A).

The governing authority attaches a sworn statement to the registrar’s verification showing the date, month, and year, the verification was filed. La.R.S. 26:587(A). If the petition conforms with all of the provisions of Chapter 3, the governing authority “shall” adopt a resolution or ordinance ordeiing the election “at the next meeting held after the verification was filed” by the registrar. La.R.S. 26:587(B). The date of the election “shall” be fixed for “the next date on which an election may be held, as provided for in R.S. 18:402(F), which falls more than forty-five days after the date” that the registrar files its verification with the governing authority. La.R.S. 26:587(C).

| ^Pursuant to La.R.S. 26:588, the five propositions from La.R.S. 26:584(B) must appear on the ballot with a YES and NO box next to each one. La.R.S. 26:588. The voter chooses which box to mark, and the majority vote cast on each proposition separately determines that issue for the subject area. Id. The election must be by secret ballot and “as nearly as possible in accordance with the election laws of the state.” La.R.S, 26:589(A). If machines are used, the propositions stipulated in La.R.S. 26:588 must be shown on the machine. La.R.S. 26:589(B).

If the petition fails to substantially comply with the requirements, or the procedures for calling or conducting the election are not substantially complied with, “the election is illegal and ineffective and may be declared null and void” by a court upon suit by “any elector who was qualified to vote in the election.” La.R.S. 26:590. Suit must be brought “within thirty days of the promulgation of the results of the election.” Id. “The governing authority calling the election shall promulgate the result by resolution or ordinance adopted at its first regular meeting after the election and shall publish it in the official journal of the parish.” La.R.S. 26:594.

When the majority of qualified electors voting in an election held under the provisions of this Chapter determine that any or all of the businesses described shall not be licensed, the governing authority calling the election may provide for the prohibition by ordinance, and may provide penalties for the violation of the ordinances. The penalties shall not, however, exceed a fine of one hundred dollars or imprisonment for not more than thirty days, or both.

La.R.S. 26:595.

[ ¿Trial Court’s Findings

The trial court found that the election itself and the pre-election and post-election procedures resulted in at least five statutory violations. The trial court found a violation of La.R.S. 26:587(B) because the Board did not adopt an ordinance and order the election at their March 7, 2016 meeting as required by that statute, but rather waited 190 days to adopt the ordinance at their September 12, 2016 meeting, and then ordered the election for December 10, 2016. Louisiana Revised Statutes 26:587 (emphasis added) provides as follows:

A.The governing authority with whom the true copy of the verification is filed by the registrar of voters shall attach to it a sworn statement showing the date, month, and year the verification was filed with the governing authority.
B. If the petition conforms to all the provisions of this Chapter, the governing authority shall order the election. The ordinance or resolution of the governing authority ordering the election shall be adopted at the next meeting held after the verification was filed with the governing authority by the registrar of voters.
C. The date fixed for the election shall be the next date on which such an election may be held, as provided for in R.S. 18:402(F), which falls more than forty-five days after the date verification was filed with the governing authority by the registrar of voters.

Here, the registrar filed its verification of the petition on February 25, 2016. The Board’s next meeting was on March 7, 2016. The Board’s failure to adopt the resolution on March 7, 2016 violates La. R.S. 26:587(B). Its failure to order the election for November 2016 violates La. R.S. 26:587(C), because the only 17applicable date under La.R.S. 18:402(F) that was forty-five days after February 25 was one of the November dates in La.R.S. 18:402(F)(2)(a). The March dates in sub-part (F)(3) were not forty-five days after the registrar filed the verification on February 25, 2016, and the remaining subparts address odd-numbered years or are otherwise inapplicable. Accordingly,.we find no manifest error in the trial court’s finding of a violation of the pre-election procedure in La.R.S. 26:587.

The trial court also found a violation of La.R.S. 26:594, which states that the governing authority “shall promulgate” the election results “by resolution or ordinance adopted at its first regular meeting after the election and shall [ publish it in the official journal of the parish.” Here, the first regular meeting of the Board following the election on December 10,2016, was on January 9, 2017. At that meeting, a motion was made to promulgate the election results, but the motion was not seconded, even though the mayor called for a second to the motion three times. Thus, no resolution or ordinance was adopted as mandated by La.R,S. 26:594. The record supports the factual findings of the trial court.

The trial court further found that the resolutions and publications required under the statutes contained numerous errors. We agree. In our review of the record, we found that most of these errors involved dates and that the errors and discrepancies are significant.

The untimely Resolution 2016-6, which ordered the election, was adopted on September 12, 2016, and then published. The Resolution that was published in the Sabine Index stated under “Section 3. Canvass” that the Board “shall” meet “on Monday, January 2, 2017” and “shall then and there in open and public session proceed to examine and canvass the returns and declare the results” of the election. The copy of Resolution 2016-6 that was sent to the Secretary of State on October 20, 2016, stated the same language under “Section 3. Canvass” but the date of the meeting was stated as “Monday, January 9, 2017.” Thus, the public was given an incorrect date for a public meeting that eventually gave rise to Resolution 2017-1 and introduced Ordinance # 182 which contained a violative penalty, as discussed below. The meeting itself did not occur on either of those dates. Rather, the Board held a special meeting on Thursday, January 19, 20Í7. While not noted by the trial court, the record indicates that the mayor “posted” notice of the January 19 meeting on January 11 and that the Sabine Index published the notice on January 18, 2017.

IflAt the January 19, 2017 meeting, the election results were canvassed and Resolution 2017-1 and Ordinance # 182 were adopted. Both stated as follows:

SECTION 4. As required by La.R.S. 18:1292, this Governing Authority met at its regular meeting place, the Town Hall, 237 West Port Arthur, Florien, Louisiana, on Monday, January 9, 2017 at Five O’clock(5:00) P.M., and then and there in open and public session proceeded to examine and canvass the returns and declaimed the results of the said special election approved..

The publications contained the same language, incorrectly representing the date upon which the public meeting accomplished the above. While we do not find that the language used for the five propositions was out of compliance with the language of La.R.S. 26:584(B), we find no manifest error in the trial court’s factual findings that the Board violated La.R,S. 26:587 and 594.

The trial court further found a violation of La.R.S. 26:595 because the penalty imposed by the Board to enforce the prohibition of alcohol sales exceeded the statutory limits. This statute limits the fine to $100 and imprisonment for not more than thirty days. However, Resolution 2017-1 and Ordinance # 182 adopted by the Board on January 19, 2017, both state as follows:

Section 8. Whosoever shall violate the provisions of this resolution shall, upon conviction before any court of competent jurisdiction, be fined a sum not exceeding five hundred dollars ($500.00) and court costs or imprisonment for a period not exceeding sixty (60) days or both.

Accordingly, the trial court correctly found a violation of La.R.S. 26:595 as well. We find no manifest error in the trial court’s factual findings and affirm the trial court’s judgment that the errors in the pre-election and post-election procedures resulted in an election process that was not in substantial compliance with the governing statutes.

| min addition to the above violations, the trial court briefly discussed at least eighty-seven potentially invalid signatures on the petition to call the election but ultimately pretermitted ruling on the issue because the court found a conflict between La.R.S. 26:584(C) and (D). We find no conflict between these two subsections, and we will conduct a de novo review of this significant issue of invalid signatures.

Invalid Signatures under La.R.S. 26:584 and Their Effects

Louisiana Revised Statutes 26:584(C) states as follows:

G. The petition submitted to a registrar of voters for certification shall be typed, machine printed, or hand printed and shall contain the following information:
(1)The signature of the voter who is signing the petition; however, if a person is unable to write, the incapacitated person shall affix his mark to the petition and the person circulating the petition shall affix the name of the incapacitated person, provided he does so in the presence of two witnesses who shall also sign their names as witnesses to the mark.
(2) The date the voter signed the petition.
(3) The signer’s ward or election district and precinct, typed, machine printed, or hand printed.
(4) The residence address of the signer, including municipal number, apartment number, rural route, and box number, typed, machine printed, or hand printed.
(5) The name of the signer, typed, machine printed, or hand printed.
(6) The name of the person who witnessed or obtained the signature.
(7) The date witnessed by the person who witnessed or obtained the signature.

Louisiana Revised Statutes 26:584(D) provides:

D. Where signatures are made on more than one sheet, each sheet of the petition shall reproduce above the | n signatures the same matter as is on the first sheet. Each petitioner shall sign his name in his own handwriting and shall write his address, his ward and precinct, and the date on which he signed; otherwise his signature shall be null and void. Every signature on a petition shall be witnessed at the time of signing, either by the person obtaining the signature or by a registered voter of the state of Louisiana. All information required to be on a petition shall be typed or machine printed or hand printed prior to the time the petition is offered to prospective signees, except for the information in Paragraph C(6) and (7) herein.

Prior to the statute’s 1988 amendment, the second sentence of La.R.S. 26:584(D) stated: “Each petitioner shall sign his name in his own handwriting and shall write his address and the date on which he signed, otherwise his signature shall be null and void.” La.R.S. 26:584— Historical and Statutory Notes. It is clear that in rewriting subsection (D) in 1988, the legislature intended that each person signing the petition must handwrite not only his or her signature, but also his or her address, ward and precinct, and the date upon which he or she signed the petition, or the signature would be null and void. This did not occur. The parties stipulated at trial as follows:

MR. VILAR [for plaintiffs]: And we have one of those persons is Ms. Tonia McNamara Turner, and we have agreed to stipulate that if Ms. Turner was called to the stand, she would state that in 68 occurrences in which she was involved in obtaining signatures on the petition, the petitioner did not write their address in their own—in his or her handwriting, and that in 20 instances, the petitioner did not write the date in which he signed the petition in his or her own handwriting. And we’ve also agreed to stipulate that none of the persons who signed the petition wrote their ward or precinct in their own handwriting. It is—and, Your Honor, the documents will show—the actual certification from the clerk shows that there was 126 signatures on the petition. So, it’s our position that none of the 126 wrote the ward and precinct in their own handwriting and we’ve stipulated to that.
|12THE COURT: Is that correct?
MS. GARCIE [for defendant]: Yes, Your Honor.

Louisiana Revised Statutes 26:582 requires that in order to call a referendum election to determine whether the sale of alcohol could be licensed, or in this case, continue to be licensed, the petition must contain signatures of “not less than twenty-five percent of the qualified electors.” The registrar of voters certified that there were 406 qualified electors on the registration rolls as of the date of the first signature on the petition. Therefore, the petition had to contain 102 valid signatures, which it clearly did not. Accordingly, the petition did not substantially comply with La.R.S. 26:584(D) or La.R.S. 26:582. It was an invalid petition, and the election should never have been called.

The Secretary of State filed an Amicus brief arguing that it was error to void the election without determining that invalid votes changed the outcome of the election—asserting that this was the plaintiffs’ burden of proof—and without ordering a new election pursuant to La.R.S. 18:1432. We disagree for numerous reasons. The outcome of the election is not the issue where the election should never have been called in the first place due to an invalid petition. In his Amicus brief, the Secretary of State admits that “without a valid petition, there is no basis for holding the local option election.” For the same reason, there is no requirement to call a new election. The invalid petition notwithstanding, La.R.S. 18:1432 is permissive, not mandatory, and it does not establish the plaintiff’s burden of proof in this case. Under the current version of La.R.S. 18:1432, the trial judge “may” declare the election void and order a new election “for all of the candidates.” Thus, this statute is not applicable in this case.

| iaFlorien and the Secretary of State mistakenly rely upon Kelly v. Village of Greenwood, 363 So.2d 887 (La.1978) to support their position as to the plaintiffs’ burden of proof. The 1978 supreme court decision in Kelly was based upon the newly enacted Title 18, under which the plaintiff brought his case, and a mandatory version of La.R.S. 18:1432 that did not limit its language to “candidates” as it does now in the permissive version. Further, Kelly, was based upon La.R.S. 18:1401(0), which was and still is permissive, stating then and now that “[a] person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.” La.R.S. 18:1401(0) (emphasis added). Unlike the plaintiff in Kelly, the plaintiffs in this case brought a factually and legally detailed petition under the very specific alcoholic beverage local option laws of Title 26, applying the facts of the subject election to each of the statutes, under which the burden of proof is substantial compliance. The facts in Kelly reveal other significant distinctions.

In Kelly the only irregularity alleged was the date on which the election was held. Kelly brought suit under the new Title 18 election code that became effective on January 1, 1978, the month of the local option election in that case. He alleged that but for the failure to hold the election on January 21, as authorized by La.R.S. 18:402(F), instead of January 3, the date it was held, the outcome would have been different. Finding that the plaintiff did not present evidence of a different outcome, the trial court dismissed the case. The defendants argued that the new election code did not apply, because the election was called prior to its effective date, and that La.R.S. 26:581, et seq., governed, with which there was substantial compliance. The court of appeal reversed the trial court, | ufínding that the new election code repealed only those sections of the local option law where it was in conflict, that the election should have been called for January 21 in compliance with the then current versions of La.R.S. 26:586 and La.R.S. 18:402(F), and that the election was void for this reason. The supreme court reversed the court of appeal and reinstated the trial court. It agreed with the court of appeal that Title 18 only repealed the local option law where it was in conflict, and that the defendants erred in not fixing the date for the election for January 21, as authorized by La.R.S. 18:402(F). However, the court found that the “mere failure” to hold the election on the authorized date was not sufficient to void the election. Kelly, 363 So.2d at 889. It therefore held the plaintiff to his own assertions and to the statutes under which he filed suit.

Conversely, in the present case, there were numerous untenable errors and violations, and the governing statutes of Title 26 have numerous mandatory provisions that did not exist in 1978. One has to but read the language in the statutes to readily comprehend the vast number of distinctions between the Kelly case and this case. Factually as well, there were no delays in Kelly, and the election was held earlier in the same month it should have been held. Here there was an inexplicable 190-day delay in calling the election, and it was called for the wrong date, both in direct violation of the governing statute.

The Secretary of State further argued that the time for challenging the validity of the votes was at the polls on election day pursuant to La.R.S. 18:1434. Again, we disagree. The specific statutes governing this particular kind of option election provide the time for challenging the petition and the election.

More specifically, La.R.S. 26:590, entitled “Violation of standards for petition or election; nullity of election,” provides as follows (emphasis added):

|1BIf the petition fails to substantially comply with the requirements provided in this Chapter or if the other requirements specified in this Chapter for the calling or conduct of the election are not substantially complied with, the election is illegal and ineffective and may be declared null and void by any court of competent jurisdiction at the suit of any elector who was qualified to vote in the election. This suit shall be brought within thirty days of the promulgation of the results of the election.

Here, the results of the election were not promulgated until January 19, 2017, and suit was filed on February 16, 2017, within the thirty-day requirement of La. R.S. 26:590. The statute indicates that the time for challenging the petition and the election are the same, that is, “within thirty days of the promulgation of the results of the election.” Id. Thus the challenge to the petition was timely raised.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment voiding the election, Resolution 2017-1, and Ordinance #182 for failure to substantially comply with the governing statutes. Further, finding that the petition itself did not substantially comply with the governing statutes, we amend the trial court’s judgment to state that the election was illegally called, ineffective, and therefore null and void, for this additional reason, as was Resolution 2016-6 ordering the election. Court costs of $2,852.14 are assessed to the defendant/appellant, the Village of Florien,

AMENDED AND AFFIRMED AS AMENDED.

      . The five statutory propositions are:
      “(1) Shall the sale of beverages of alcoholic content containing not more than six percent alcohol by volume be permitted by package only and not for consumption on the premises?
      “(2) Shall the sale of beverages of alcoholic content containing not more than six percent alcohol by volume for consumption on the premises be permitted?
      "(3) Shall the sale of beverage alcohol containing one-half of one percent alcohol by volume and above for consumption on the premises be permitted?
      "(4) Shall the sale of beverages of alcoholic content containing one-half of one percent alcohol by volume and above be permitted by package only and not for consumption on the premises?
      "(5) Shall the sale of beverages of high and low alcoholic content be permitted only on the premises of restaurant establishments which have been issued an “R” permit as defined by law? ”
      La.R.S. 26:584(B).

      . Bond, tax, or other elections. Every bond, tax, or other election at which a proposition or question is to be submitted to the voters shall be held only on one of the following dates:

      (1) The third to last Saturday in October or the fifth Saturday after the third to last Saturday in October of 1983 and every fourth year thereafter.
      (2)(a) The first Tuesday after the first Monday in November or the fifth Saturday after the first Tuesday after the first Monday in November of even-numbered years.
      (b) Notwithstanding the provisions of Subparagraph (a) of this Paragraph, the fifth Saturday after the first Tuesday after the first Monday in November shall not be applicable in a parish containing a municipality with a population of three hundred thousand or more for an election relative to a parcel fee ....
      (3) The last Saturday in March or the fifth Saturday after the last Saturday in March of any year or on the first Saturday in March or the fifth Saturday after the first Saturday in March during the presidential election year.
      (4) The second Saturday in October or the fifth Saturday after the second Saturday in October of 1985 and every fourth year thereafter.
      (5) Repealed by Acts 2008, No. 134, § 1.
      (6) For a parish containing a municipality with a population of three hundred thousand or more, the second Saturday in October or the fifth Saturday after the second Saturday in October in 2017 and every fourth year thereafter.
      (7). Repealed by Acts 2015, No. 307, § 3, eff. June 29, 2015.
      La.R.S. 18:402(F) (emphasis added).