author: GREMILLION, Judge.

text:
    Pamela Raffield WATKINS v. Sandia SCHEXNIDER.
    No. CA 09-744.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.
    Rehearing Denied March 24, 2010.

      Kevin Joseph Koenig, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Plaintiff/Appellant, Pamela Raffield Watkins.
    Jonathan Hadley Fontenot, Attorney at Law, Lake Charles, LA, for Defendant/Ap-pellee, Sandra Schexnider.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|/The plaintiff, Pamela Raffield Watkins, appeals the judgment in favor of the defendant, Sandra Schexnider, denying her claim for specific performance of delivery of immovable property located in Cameron Parish. For the following reasons, we affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2007, Watkins filed a petition for specific performance urging that Schexni-der transfer title to her for a certain piece of property located in Cameron Parish. Watkins claimed that the conditions of the purchase agreement had been fulfilled and she was entitled to demand specific performance of the agreement.

Schexnider answered the petition, in proper person. In the answer she stated multiple times that the sale was of the house only and not the land on which it was located. Thereafter, she filed a motion a for summary judgment. Watkins filed a first supplemental and amending petition claiming that the “discussion, negotiations and representations” between she and Schexnider were such that the purchase included the land and that in light of her answer, Schexnider was guilty of fraud and misrepresentations in her negotiations for the sale of the property.

Following a November 2008 trial, the trial court denied Watkins’ claim for specific performance but awarded Watkins $4,200 for overpayments under the “Home Purchase Agreement.” Watkins now appeals.

ISSUES

Watkins assigns as error:

1. The trial court’s failure to consider parol evidence to determine the true object of the buy sell agreement and to enforce the agreement.
|g2. Alternatively, the trial court erred in failing to find Schexnider liable for fraud and misrepresentation which vitiated consent and supports rescission of the entire contract.
3. The trial court erred in failing to award her reasonable damages and attorney fees.

DISCUSSION

The contract entered into between Watkins, as the buyer, and Schexnider, as the seller, states:

Home Purchase Agreement
I Sandra Schednider [sic] agree to let Pam Raffield live in my house at 141 Welch Drive, Hackberry, Louisiana. Pam Raffield agrees to pay the following $350.00 per month to Beneficial Finance . until note is paid in full. Then the house will be hers. She also agrees to maintain the Farm Bureau Homeowners Insurance that presently insures the property. Pam Raffield agrees to handle any normal homeowner expenses.
If Pam fails to pay note she will be asked to vacate the house within 30 days at no cost to Sandra. If anything happens to Sandra Schexnider, Pam will continue to pay Sharon Vilardi, Sandra’s sister, with the same agreement.

The agreement was signed by the parties and notarized June 27, 2000. Watkins regularly paid the note and insurance. The home was destroyed following Hurricane Rita.

The trial court, in its written reasons for judgment, found no evidence of fraud or deceit. It further found that the agreement, a private act executed by both parties, could not be controverted by parol evidence to vary, add to, or contradict the terms of the contract. The trial court found that the clear wording of the contract indicated that Watkins was purchasing the house only. The trial court further found that, pursuant to the contract, once the mortgage was satisfied by the insurance proceeds, Watkins was no longer under any obligation to continue paying the monthly |s$350 note. Thus, it refunded her $4,200.

PAROL EVIDENCE

Louisiana Civil Code Article 1848 states:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

Although the general rule is that parol evidence will not be allowed in interpreting a contract, it has been allowed in many instances in order to discern the intention of the parties in contracts to sell immovable property. A panel of this court recently summarized the pertinent law regarding contract interpretation in CLK Co., L.L.C. v. CXY Energy, Inc., 07-834, pp. 8-10 (La.App. 3 Cir. 12/19/07), 972 So.2d 1280, 1286-87, writs denied, 08-0140, 08-0207 (La.3/14/05), 977 So.2d 932, 937(citations omitted):

Whether a contract is ambiguous is a question of law. Appellate review of a question of law simply requires the appellate court to determine whether the trial court’s conclusion was correct.
The goal of contract interpretation is to determine “the common intent of the parties.” La.Civ.Code art. 2045. The intent of the parties to a contract must be determined in accordance with “the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety.” When the words of a contract are clear, explicit, and lead to no absurd consequences, the contract must be interpreted within its four corners and cannot be explained or contradicted by parol evidence. However, when a word in a contract is not clear, testimony or other evidence may be considered to determine the parties’ intent and interpret the contract .... [This] rule applies to contacts involving immovable property.
“The words of a contract must be given their generally prevailing meaning,” and “[w]ords of art and technical terms must be given their technical meaning when the contract involves a technical matter.” La.Civ.Code art. 2047. Additionally, “[w]ords susceptible of different meanings must be interpreted as having the meaning that conforms tojjthe object of the contract.” La.Civ. Code art. 2048. Pursuant to La.Civ. Code art. 2049, a “provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.”

Generally parol evidence will not be allowed to “wholly identify the immovable.” City Bank and Trust of Shreveport v. Scott, 575 So.2d 872, 873 (La.App. 2 Cir.1991). See also Young v. Tolintino, 44,631 (La.App. 2 Cir. 12/2/09), 26 So.3d 835. Parol evidence will be allowed only when the document sufficiently renders the title discernible from the writing and not essentially from parol evidence. Id. The description should sufficiently distinguish the property in question “from other properties so as to allow the conclusion that the mutual or common intent of the parties to the writing was to deal with the particular property and not another property of the same kind or quantity.” Id.

There is no doubt that the particular property in question is located at the municipal address of 141 Welch Drive in Hackberry, Louisiana. However, the “Home Purchase Agreement” is ambiguous as to the parties’ intent regarding the underlying land on which the home sits.

A contract is considered ambiguous on the issue of intent token it lacks a provision bearing on that issue or when the language used in the contract is uncertain or is fairly susceptible to more than one interpretation. These rules are applicable even to contracts involving rights in immovable property!)]

Blanchard v. Pan-OK Prod. Co., Inc., 32,-764, pp. 7-8 (La.App. 2 Cir. 4/5/00), 755 So.2d 376, 381, unit denied, 00-1297 (La.6/23/00), 765 So.2d 1043 (emphasis added) (citations omitted).

Admittedly, the contract itself refers to the “home” and “house” multiple times. However, it references “the property” in terms of maintaining an insurance Impolicy. The agreement was drafted by a lay person. Both parties to the contract have only high school educations. The very informal nature of the agreement lends to the average person’s understanding that the inclusion of a municipal address (“141 Welch, Drive, Hackberry, Louisiana”) implies the sale of the house and land on which it sits. The fact that Schexnider, the person who wrote the contract, is claiming that the agreement only conveyed the house, yet failed to put any such provision in the contract, can only be interpreted as ambiguous. It seems clear that if a party intends to sell only a house and not the land on which it sits, she would so note and provide for the details of the manner in which the underlying land is to be used. Otherwise, the home buyer is left in a quandary of having no idea what the terms of the land rental agreement is, such as when it begins, the cost, the limitations on the land, and various other matters pertaining to use of another person’s land. This situation surely leads to absurd consequences as it leaves a buyer susceptible to the landowner’s whim and further leads to instability of transactions involving im-movables.

Accordingly, we find that parol evidence should have been allowed to determine the true intent of the parties regarding the underlying land. We now consider the evidence adduced at trial.

Watkins testified that, as of the time of trial, she had resided in the home for eight years. Watkins testified that Schexnider always indicated that the sale included the house, its contents, and the land. The house itself was very modest and in need of repair. Watkins testified that she spent several weeks clearing out the house and making it suitable for living. She stated that Schexnider walked her around the property indicating the boundary lines. Watkins stated that Schexnider always indicated that the sale included the land and that she would have never purchased a | fihome that sat on someone else’s land.

Watkins stated that the agreement entailed monthly payments of $350 that totaled approximately $25,000 and payment of insurance premiums which were approximately $400 per year. Watkins testified that she paid Schexnider directly $350 per month, although Beneficial Finance Company was the holder of the note. Watkins testified that she paid $350 every month from June 2000 through August 2007. She said that the house was completely destroyed following Hurricane Rita’s landfall in September 2005, but that she and her husband returned to the property the following February and lived in a FEMA trailer. She testified that she and her husband began repairing the property. She estimates that they spent approximately $15,000 repairing the property, but could only provide $9,000 worth of receipts. Pictures of the remodeled barn that Watkins converted into a living area were admitted into evidence.

Schexnider testified that she offered Watkins a rent-to-own arrangement. She admitted that the showed her the boundaries of the property line. She further admitted that she did not think that she ever conveyed to Watkins that the land did not go with the house. She admitted that she never told Watkins that she would be able to charge her rent for the land once Watkins owned the house. She admitted to drafting the rent-to-own contract. Schexnider testified that she did not mean to fool Watkins but admitted to not disclosing that the land was not included. Schexnider testified that she mortgaged the property to pay off some debt incurred during her divorce and that she just wanted to get out from underneath the note.

Schexnider testified that Watkins never missed a monthly payment and had paid $2,100 for insurance premiums up until the time the house was destroyed. |7Schexnider said that following the storm, insurance paid her $17,394 which Beneficial Finance accepted as full payment of the mortgage. Schexnider admitted that she refused to disclose this information to Watkins and that the agreement she entered into with Watkins indicated that when the note was paid in full, the house would belong to Watkins. Schexnider testified that she continued accepting Watkins’ monthly payments even though the mortgage was satisfied and the house had been destroyed nine months prior. She stated that the checks she cashed often noted “rent to own house and property.”

Marla Raffield, Watkins’ daughter-in-law, testified that she was present the day that Schexnider pointed out the whole property line. Raffield said that Schexni-der indicated a survey would be done once the land was paid for so that Watkins could “verify her land with the court.” Raffield said that Schexnider never indicated that she was only selling the house.

Having reviewed all of the evidence, we are certain that, at the time Watkins and Schexnider confected the “Home Purchase Agreement” the land was included as part of the sale. Schexnider’s own testimony that the she never informed Watkins that the sale did not include the land is, by far, the most telling. It seems Schexnider regretted conveying the property to Watkins once the “note was paid in full” as she did not expect extinguishment of the mortgage due to the destruction caused by Hurricane Rita. However, she confected the agreement and Watkins is now the rightful owner of the land and the buildings that sit upon it.

Pursuant to Louisiana Code of Civil Procedure Articles 1919 and 2089 judgments and decrees pertaining to immovable property are required to describe the property with particularity. The only legal description of the property in the record |Ris a 1997 donation executed by Schexnider’s sister to Schexnider of her one-half interest in the property. That description reads as follows:

Lot Three (3) of Prairie View Subdivision, a subdivision of the West 5 acres of the West 40 acres of Section Forty-two (42), Township Twelve (12) South, Range Ten (10) West, Parish of Cameron, State of Louisiana.

FRAUD/ ATTORNEYS FEES/DAMAGES

These assignments of error are rendered moot insofar as we have found that the original agreement included the land. We decline to award Watkins’ claims for attorneys fees and damages.

CONCLUSION

We render judgment in favor of the Plaintiff-Appellant, Pamela Raffield Watkins and order specific performance in that title to the aforementioned property, including the land and buildings thereon, be conveyed to Watkins. We affirm that portion of the trial court’s judgment awarding Watkins $4,200 for overpayments. All costs of this appeal are assessed against the Defendant-Appellant, Sandra Schexni-der.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . We note that the house/home in question is not a mobile home.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    APASRA PROPERTIES, LLC and O’Reilly Properties, LLC v. CITY OF NEW ORLEANS and Vieux Carre Commission.
    No. 2009-CA-0709.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2010.
    Rehearing Denied March 3, 2010.

      William F. Wessel, Wessel & Associates, Victoria L. Bartels, New Orleans, LA, for Appellants, Apasra Properties, LLC, et al.
    Penya Moses-Fields, City Attorney, Dawn E. Segura, Chief Deputy City Attorney, Thomas A. Robichaux, Deputy City Attorney, Bobbie F. Mason, Assistant City Attorney, New Orleans, LA, for Appellees, City of New Orleans, et al.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| ,The plaintiffs/appellants, Apasra Properties, LLC (“Apasra”) and O’Reilly Properties, LLC (“O’Reilly”), filed this action against the City of New Orleans (“the City”) and the Vieux Carre Commission (“VCC”), seeking to enjoin the administrative proceedings brought against them by the City and the VCC. Proceedings were and are pending before the City’s Administrative Adjudication Bureau for Public Health, Housing and Environmental Violations, Department of Health (“AAB”) against Apasra and O’Reilly. They contend that the City’s ordinances, M.C.S. 6-31, et seq., creating the AAB to adjudicate alleged violations of ordinances of the City and VCC, are unconstitutional and the enforcement of city code violations rest exclusively with the City’s Municipal Court. The trial court denied the plaintiffs/appellants’ request for a writ of preliminary injunction finding that, pursuant to M.C.S. 6-31, et seq., the AAB, whose established authority is consistent with the City’s Home Rule Charter, shares concurrent jurisdiction with the City’s Municipal Court to adjudicate the plaintiffs/appellants’ alleged municipal ordinance violations. For the reasons that follow, we affirm the | gtrial court judgment that denied the writ of preliminary injunction. M.C.S. 6-31, et seq. is not unconstitutional and the AAB and the City’s Municipal Court do have concurrent jurisdiction over some issues; however, we hold that the AAB and Municipal Court do not have concurrent jurisdiction over the claims now pending against Apasra and O’Reilly. We remand this matter to the trial court for further proceedings, including allowing the plaintiffs/appellants to amend their pleadings to state a cause of action in conformity with the reasons set forth herein.

FACTUAL BACKGROUND AND COURSE OF PROCEEDINGS BELOW

Apasra and O’Reilly are owners of immovable property located on Decatur Street in New Orleans, all of which are situated within the boundaries of the Vieux Carre, as defined by Chapter 166 of the Municipal Code of the City (“the Code”). The City, through the VCC, inspected and cited four buildings owned by the plaintiffs/appellants, respectively, for alleged violations of historic district ordinances found in the Code at Article IV, Sections 166-21, 166-83, 166-93, 166-35, 166-89, and 166-91 of Chapter 166. According to the record, all four properties were cited by the VCC multiple times and Notice of Violations letters forwarded by certified mail to the plaintiffs/appellants informing them that their ^violations were set to be heard before the City, through the AAB. Some of the alleged violations have been adjudicated and others remain pending.

The plaintiffs/appellants jointly filed a Petition for Temporary Restraining Order, Preliminary Injunction and Declaratory Judgment seeking to enjoin the administrative proceedings brought against them by the defendant, asserting the unconstitutionality of M.C.S. 6-31 et seq. Specifically, the prayer of Apasra’s and O’Reilly’s petition reads as follows:

WHEREFORE, plaintiffs, Apasra Properties, LLC and O’Reilly Properties, LLC, pray that the defendants, City of New Orleans and Vieux Carre Commission, be cited to appear and answer and after due proceedings had there be judgment herein enjoining the enforcement of the ordinance contained in Code Section 6-31 through 6-41 against the plaintiffs for Vieux Carre violation on Chapter 166 of the code, or declaring same to be unconstitutional; and that a preliminary injunction be issued after a hearing herein enjoining the enforcements of the ordinance of the City of New Orleans contained in Code Section 6-31 through 6-41 against the plaintiffs during the pendency of these proceedings; and that a temporary restraining order issue herein without a hearing until the hearing on the preliminary injunction; and for all general and equitable relief and all costs of these proceedings!] [Reproduced verbatim.]

|40n the date of the filing of the petition, the trial judge granted a temporary restraining order without bond, ordering the City and the VCC to refrain and desist from any attempted enforcement of City Code Sections 6-31 through 6-45 pending the hearing on the preliminary injunction.

At the hearing on the preliminary injunction, all evidence was introduced via the verified pleadings and affidavits per La. C.C.P. art. 3609 and the matter was taken under advisement. On 6 March 2009, the trial court, without assigning oral or written reasons, issued a judgment denying the plaintiffs/appellants’ request for a writ of preliminary injunction. The court effectively held that the Code, ie., M.C.S. 6-31, et seq., authorizing the creation of the AAB and establishing the procedure by which the AAB operates, “... create[s] a court with jurisdiction concurrent with that of the Municipal Court.” The court ruled that the provisions of M.C.S. 6-31, et seq. are consistent with the provisions of the City’s Home Rule Charter, and that the violations alleged against the plaintiffs/appellants fall within the jurisdiction of the AAB as set forth in M.C.S. 6-31, et seq.

Apasra and O’Reilly timely appealed the judgment asserting the trial court erred in denying their request for injunctive relief prohibiting the adjudication of proceedings currently pending before the AAB on four grounds: (1) adjudication of the charges against them by the AAB violates the 1974 La. Const, art. I §§ 1 and 2 and art. V, §§ 1, 15, and 32, particularly in light of the court’s finding that “M.C.S. 6-31[sic] et seq., attempts to create a court with jurisdiction concurrent with that of the Municipal Court;” (2) the creation of the AAB violates City Home Rule Charter § 4-103, which states that “no department nor board shall be created | sexcept as provided in this Chapter;” (3) the plaintiffs/appellants’ alleged violations are not “health, housing or environmental” violations as defined in M.C.S. 6-31, et seq.; and (4) La. R.S. 13:2575 does not confer authority to maintain an administrative adjudication bureau for the City since the City’s current population does not meet the applicable minimum of 450,000 individuals. We find no merit to the plaintiffs/appellants’ assignments of error numbers (1), (2), and (4), and specifically recognize that 1921 La. Const, art. XIV, § 22(A) provides the requisite authority for the City to create the AAB to adjudicate violations of the City’s and VCC’s ordinances respecting the Vieux Carre, and that 1974 La. Const, art. VI, § 17 retained this authority for the VCC. However, we agree with the plaintiffs/appellants that, as currently written, M.C.S. 6-31, et seq. does not vest in the AAB jurisdiction to adjudicate historical violations such as those at issue in the instant case. Accordingly, we find the appellant’s third assignment of error has merit; however, for reasons set forth infra and in view of the prayer in the petition, we cannot grant the plaintiffs/appellants the relief that they request.

LAW AND ANALYSIS

Adjudication by the AAB of the charges against the plaintiffs/appellants for violations of the VCC does not violate the Louisiana Constitution of 1974.

Neither the AAB nor the VCC is a court. Sections 1, 15, 20, and 32 of article V of the 1974 Louisiana Constitution state what courts are allowed in Louisiana. The VCC is a historic preservation authority charged with regulating those properties located .within the physical boundaries delineated by 1921 La. Const. art. XIV, § 22(A). The original VCC was established by City ordinance in | fil925 to preserve those Vieux Carre structures of special historic interest whose old, quaint, and unusual architectural construction made them objects of special interest. However, this VCC lacked any statutory authority to effectuate preservation of these structures. Recognizing this impediment and the historical and architectural importance of the Vieux Carre, 1921 La. Const. art. XIV, § 22(A) was amended, authorizing the New Orleans City Council to create the current VCC. See City of New Orleans v. Bd. of Dir. of the Louisiana State Museum, 98-1170, p. 2 (La.3/2/99), 739 So.2d 748, 750.

La. Const, art. XIV, § 22(A), as amended, was divided into six sections entitled: creation and membership, purpose, definition of boundaries, tax exemption for certain buildings, acquisition of buildings, and duties of the commission. The amendment provided in pertinent part:

Section 22(A). Creation; membership. The Commission Council of the City of New Orleans is hereby authorized to create and organize a Commission to be known as the Vieux Carre Commission, to be appointed by the Mayor of said City with the advice and consent of the its Commission Council....
Purpose. The said Commission shall have for its purpose the preservation of such buildings in the Vieux Carre section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value, and which buildings should be preserved for the benefit of the people of the City of New Orleans and the State of Louisiana, and to that end the Commission shall be given such powers and duties as the Commission Council of the City of New Orleans shall deem fit and necessary.
Vieux Carre Section defined. The Vieux Carre Section of the City of New Orleans is hereby defined to comprise all that area within the City Limits of the City 17of New Orleans contained within the following boundaries: The River, Uptown side of Esplanade Avenue, the River side of Rampart Street, and the lower side of Iberville Street.
Buildings; tax exemption; preservation. ...
Buildings; acquisition. ...
Duties of commission. Hereafter and for the public welfare and in order that the quaint and distinctive character of the Vieux Carre section of the City of New Orleans may not be injuriously affected, and in order that the value to the community of those buildings having architectural and historical worth may not be impaired, and in order that a reasonable degree of control may be exercised over the architecture of private and semi-public buildings erected on or abutting the public streets of said Vieux Carre section, whenever any application is made for a permit for the erection of any new building or whenever any application is made for a permit for alterations or additions to any existing building, any portion of which is to front on any public street in the Vieux Carre section, the plans therefor, so far as they relate to the appearance, color, texture of materials and architectural design of the exterior thereof shall be submitted, by the owner, to the Vieux Carre Commission and the said Commission shall report promptly to the Commission Council its recommendations, including such changes, if any, as in its judgment are necessary, and the said Commission Council shall take such action as shall, in its judgment, effect reasonable compliance with such recommendations, or to prevent any violation thereof.
The Commission Council of the City of New Orleans may, by ordinance or otherwise, camj the above and forgoing provisions into effect.

La. Const. art. XIV, § 22(A)(1921) (Emphasis added by underlining). See also City of New Orleans, supra at pp. 2-3, 739 So.2d at 750-751.

Acting pursuant to this enabling amendment, on 3 March 1937 the City created the VCC by Ordinance No. 14,538. See NEW ORLEANS, LA., COMMISSION COUNCIL SERIES No. 14,538 (1937). The City of New Orleans |shas amended the ordinance’s provisions several times; however, it has consistently retained its substance. See City of New Orleans, supra at pp. 2-4, 739 So.2d at 750-752. Accordingly, we find the VCC is constitutionally authorized and exercises state police power to regulate the use of property within the Vieux Carre for the purpose of historic preservation. The 1974 Louisiana Constitution retained the authority for the VCC in article VI, § 17. Accordingly, the specific provisions of 1921 La. Const, art. XIV, § 22(A) are retained as law coequal with other constitutional language. Moreover, 1921 La. Const, art. XIV, § 22(A), whose authority was retained by 1974 La. Const, art. VI, § 17, specifically provided the City with authority “by ordinance or otherwise,” to carry into effect the provisions set forth therein. Thus, we find the City and/or the VCC are constitutionally empowered to enforce the historic preservation laws and regulations through several procedural mechanisms, including the levying of civil penalties through administrative adjudication or criminal prosecution through the City’s Municipal Court. Further, the City’s AAB is constitutionally (and statutorily per La. R.S. 13:2575, discussed infra) empowered to enforce historic preservation laws and ordinances if and only if the City enacts an ordinance specifically granting it the authority to do so.

Creation of the AAB does not violate the City’s Home Rule Charter

In their second assignment of error, Apasra and O’Reilly contend that the creation of the AAB violates the City’s Home Rule Charter because § 4-103 | ciforbids the creation of any board or department, except as specifically authorized within the provisions of the Charter itself. They aver that § 9-101 of the Charter defines a “board” to include “... board, commissions, authorities and other public bodies except the Council,” and because the AAB is a “public body,” it could not be created in the absence of an amendment to the Home Rule Charter. We disagree. Article VI, § 4 of the Louisiana Constitution of 1974, which grants the City the power to initiate and enforce zoning ordinances within the city boundaries, provides:

§ 4. Existing Home Rule Charters and Plans of Government
Section 4. Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local government subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.

Three primary, interrelated sources of the City’s power to initiate legislation and regulation exist: 1974 La. Const, art. VI, § 4; the preexisting city home rule charter; and any amendments to the charter, subsequent to the adoption of the constitution, made pursuant to methods provided by the charter. City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 93-0690, p. 8 (La.7/5/94), 640 So.2d 237, 244. Article VI, § 4 constitutionally maintains the preexisting City charter in effect, including the powers, functions, and duties provided for by that charter, except as inconsistent with the 1974 Constitution. Id. Section 4 further |inprovides that subsequent to the adoption of the 1974 Constitution, the City’s charter may be amended, modified, or repealed pursuant to the methods set forth in the charter. In effect, Section 4 constitutionalizes the City’s charter, as amended by the local electorate according to methods provided by the charter, which are not inconsistent with provisions of the 1974 Constitution.

As previously noted, the VCC was created prior to the City being granted Home Rule Charter authority. Specifically, section 22(A) was adopted fourteen years before the constitutional amendment authorizing Home Rule Charter status for the City of New Orleans. Cf, 1921 La. Const, art. XIV, § 22, as amended by 1950 La. Acts No. 551. This distinction is noteworthy because 1974 La. Const, art. VI, § 17 retained 1921 La. Const, art. XIV, § 22(A), and accordingly, the City’s Home Rule Charter may not conflict with the provisions of section 22(A). 1974 La. Const, art. VI, § 4; see City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., supra at pp. 7-9, 640 So.2d at 243-44 (holding that preexisting home rule municipalities and parishes may exercise within them boundaries any legislative powers not in conflict with the Constitution). Because 1921 La. Const, art. XIV, § 22(A) already granted the City the authority to take whatever action it deemed necessary to ensure compliance with preserving the architectural and historical value of the property designated as the Vieux Carre, which we find includes the right to create the AAB, no need existed for an amendment to thejij City’s Charter for purposes of creating the AAB. Consequently, we find that the creation of the AAB does not violate the City’s Home Rule Charter.

La. R.S.13:2575 confers upon the City the authority to maintain an administrative adjudication bureau.

In addition to the constitutional grant of the authority to the City, La. R.S. 13:2575 explicitly authorizes the VCC to prosecute historic violations through the administrative adjudication process. Paragraph A of La. R.S. 13:2575 provides:

Any municipality or parish having a population of four hundred twenty-five thousand or more may prescribe civil fines for violation of public health, housing, fire code, environmental, and historic district ordinances in the municipality or parish by owners of immovable property, their agents, tenants, or representatives pursuant to the procedures for administrative adjudication provided in this Chapter. For the purposes of this Chapter, “housing violations” shall encompass only those conditions in privately owned structures which are determined to constitute a threat or danger to the public 112health, safety or welfare and/or to the environment, or a historic district. (Emphasis added.)

The VCC was the only historic preservation commission in the state authorized by the Louisiana Constitution of 1974 at the time it was adopted. Thereafter, the Administrative Procedure Act (1978 La. Acts No. 252) redefined and expanded the definition of “agency,” evidencing the Legislature’s intent to expand the applicability of the Act. Specifically, 1974 La. Const, art. VI, § 17 provides:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement these regulations; (3) review decisions of any commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained. (Emphasis added).

Thus, we find the Louisiana Constitution of 1974, which retained the authority for the VCC, and La. R.S. 13:2575 specifically empower the City to enact ordinances and to exercise state police power in order to regulate the use of property situated within the Vieux Carre for the purpose of historic preservation, including the properties owned by the plaintiffs/appellants that are the subject of the instant litigation. This authority may be exercised by the AAB if a city ordinance specifically grants it the authority to do so.

The plaintiffs/appellants erroneously contend in their fourth assignment of error that the provisions of La. R.S. 13:2575 A do not apply to the City because the current population, as set forth in the U.S. Census Bureau (The New Orleans Index, August 2009) Population Division, is below the minimum established by La. R.S. 13:2575 for exercise of the powers authorized by the section. However, | ^pursuant to La. R.S. 1:11, “[ejxcept as otherwise provided, the number of inhabitants of a political subdivision is that shown by the latest regular or special census.” The last census conducted in the United States was in 2000, at which time the population of New Orleans totaled 484,674, and this figure will continue to apply for purposes of a statutorily required population until the new regular United States decennial census results are released for 2010.

The City’s Municipal Code does not provide authority for the AAB to adjudicate the plaintiffs!appellants’ alleyed violations as they are not “health, housing or environmental” violations as defined in M.C.S. 6-31, et seq.

We now turn to the ordinances enacted by the City to determine whether it has exercised its constitutional and statutory authority to regulate and adjudicate historic preservation violations. A review of the ordinances actually adopted by the City reveals that, while it has enacted provisions adopting the administrative adjudication procedure to handle violations of “public health, housing, and environmental ordinance(s),” it has not enacted provisions adopting the administrative adjudication procedure in connection with historic preservation violations.

Section 6-32 of the City’s Municipal Code provides:

Any agency of the city having a responsibility for the enforcement of any public health, housing or environmental ordinance may impose civil fines, penalties, costs, and fees for violations of such ordinances by the owners of immovable property or their agents, tenants or representatives, pursuant to the procedures for administrative adjudication in this article.

M.C.S. 6-31 defines “housing violations” as follows:

Housing violations means only those conditions in privately owned structures which are determined to constitute a threat or danger to the public health, safety and welfare and/or to the environment; provided, however, that nothing in this article shall be construed to | ^affect activities which occur on the premises of manufacturing facilities and which are regulated by title 30 of the Louisiana Revised Statutes. (Emphasis added by underlining.)

Unlike La. R.S. 13:2575, which was amended in 1992 to include authority to provide for adjudication of public health, housing, fire code, environmental and historic district violations, the City did not opt to correspondingly amend the provisions of M.C.S. 6-31 to include within the definition of “housing violations” historic district violations. Additionally, while M.C.S. 6-34 authorizes hearing officers who have been appointed and sworn in accordance with section 6-33 “to hear and decide public health, housing and environmental violations,” including such matters as they pertain to the Vieux Carre in Chapter 166 of the Code, we find that neither the hearing officer nor AAB is authorized under the Code as currently written to adjudicate violations pertaining to the architectural or historical value of a structure, which would include the violations allegedly committed by Apasra and O’Reilly.

We find “housing violations” as defined by the Code and as found in M.C.S. 166-121 can be adjudicated by a hearing officer or the AAB, since they potentially pose a “threat or danger to the public health, safety, and welfare;” they would include, but not be limited to, situations where a property owner or legal custodian fails to repair a building containing any of the following defects:

| i5(l) those which have parts thereof which are so attached that they may fall and injure members of the public or property;
(2) deteriorated or inadequate foundation;
(3) members of exterior walls, partitions or other vertical supports that split, lean, list or buckle due to defective material or deterioration;
(4) members of exterior walls, partitions, or other vertical supports that are of insufficient size to carry imposed loads with safety;
(5) members of exterior ceilings, roofs, ceiling and roof supports, balconies, galleries, porches or steps (stairs, stairways) or other exterior horizontal members which sag, split or buckle due to defective material or deterioration;
(6) members of exterior ceilings, roofs, ceiling and roof supports, balconies, galleries, porches or steps (stairs, stairways) or other exterior horizontal members that are insufficient in size to carry imposed loads with safety;
(7) exterior fireplaces or chimneys which list, bulge or settle due to defective material or deterioration;
(8) exterior fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety;
(9) deteriorated, crumbling or loose plaster on the exterior;
(10) deteriorated or ineffective waterproofing or exterior walls, roofs, foundations or floors, including broken windows or doors;
1 ifi(ll) defective or lack of weather protection for exterior wall coverings, including lack of paint, or weathering due to lack of paint or other protective covering;
(12) any fault or defect in the building which renders the same structurally unsafe or not properly watertight; and
(13) defective or deteriorated exterior or floor supports; or exterior flooring or floor supports of insufficient size to carry imposed loads with safety.

See M.C.S. 166-121.

In the instant case, Apasra and O’Reilly have been charged with violations limited to signage, failure to submit plans for exterior changes, failure to preserve the architectural and historical value, and working without a permit. We find that these alleged violations do not fall within the purview of “housing violations” as defined by the M.C.S. 6-31 since they do not “constitute a threat to the public health, safety, and welfare and/or to the environment.” Accordingly, we find that the AAB does not presently have authority pursuant to M.C.S. 6-31, et seq. to adjudicate the violations presently alleged against Apasra and O’Reilly. Rather, jurisdiction for prosecuting these alleged violations exists only in the City’s Municipal Court.

The failure of Apasra and O’Reilly to pray for a permanent injunction in their petition tiled in the trial court.

Our review of the plaintiffs/appellants’ original petition discloses that whereas Apasra and O’Reilly sought a temporary restraining order (“TRO”) and writ of preliminary injunction, they failed to pray for or seek a permanent 1 |7injunction. We discuss the issue because La. C.C.P. arts. 927 B, 2164, and 2129 requires us to do so. A trial court should not entertain or grant a request for a TRO and should not consider issuing a preliminary injunction in the absence of a prayer for a permanent injunction contained within the plaintiffs petition. Municipality No. 1 v. Municipality No. 2, 12 La. 49, 67, 1838 WL 722 (1838). That is, except in those specific circumstances allowed by law, the granting of a TRO and preliminary injunction requires the posting of a bond to protect against the wrongful issuance of the TRO and/or preliminary injunction. La. C.C.P. art. 3610. A permanent injunction requires no bond. Further, a preliminary injunction may be tried on verified pleadings and affidavits pursuant to La. C.C.P. art. 3609, but a permanent injunction requires proof as in ordinary cases. Gaumnitz v. Williamson, 36,177, p. 9 (La.App. 2 Cir. 8/14/02), 824 So.2d 531, 536. A preliminary injunction issues to maintain the status quo upon a prima facie showing that the party seeking it is highly likely to prevail at the trial of the permanent injunction and that he will suffer irreparable injury if the injunction does not issue. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346, 348 (La.1979); ANR Pipeline Co. v. Louisiana Tax Com’n, 07-2282, p. 7 (La.App. 1 Cir. 10/17/08), 997 So.2d 105, 110; Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672, p. 10 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, 558-559; HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1693, 96-1753, pp. 10-11 (La.App. 4 Cir. 4/23/97), 693 So.2d 835, 841-842. In the case at bar, the plaintiffs/appellants did not pray for or seek a permanent injunction; thus their petition fails to state a [iscause of action for any form of injunctive relief. See Municipality No. 1 v. Municipality No. 2, supra; La. C.C.P. art. 3601, et seq. Thus, the trial court did not err in dissolving the temporary restraining order and denying the preliminary injunction.

Nevertheless, Apasra and O’Reilly did pray for and seek a declaratory judgment pursuant to La. C.C.P. art. 1871, et seq. Our discussion hereinabove therefore is relegated to whether the trial court should have granted declarative relief to the plaintiffs/appellants prohibiting the AAB from adjudicating the claims against them. A claim for declaratory relief is not a summary proceeding; it requires a trial on the merits where each party has an opportunity to present evidence in a form other than verified pleadings and affidavits. La. C.C.P. arts. 1879 and 2592. Therefore, a merits trial as to whether the plaintiffs/appellants are required to the relief they seek is required.

We have noted that Apasra’s and O’Reilly’s petition is deficient in certain respects for the relief they seek. For example, we have concluded that the AAB is constitutionally authorized to hear claims such as those at issue in this case if an ordinance of the City grants them the authority to do so; the AAB does not presently have that authority for the violations alleged by virtue of a City ordinance. In the interests of justice, we remand this matter to the trial court, and the plaintiffs/appellants, in their discretion, may amend their petition to seek appropriate relief.

^CONCLUSION

Article XIV, § 22(A) of the 1921 Louisiana Constitution provides the requisite authority for the City, by ordinance, to create the AAB to adjudicate violations of ordinances respecting the Vieux Carre. The VCC also has jurisdiction to hear such matters. Article VI, § 17 of the Louisiana Constitution of 1974 retained this authority for the City. As written, however, M.C.S. 6-31, et seq. does not vest in the AAB jurisdiction to adjudicate historical preservation violations such as those at issue in the instant case. Jurisdiction for these violations currently rests in the City’s Municipal Court, or such other courts of competent jurisdiction as may be proper. We remand this matter to the trial court for further proceedings and upon remand, the plaintiffs/appellants are granted leave to amend their petition. The City’s Municipal Court and the AAB at present have some concurrent jurisdiction, but that concurrent jurisdiction does not extend to those matters which the plaintiffs/appellants seek to prevent the City and its boards from enforcing against them. The decision of the trial court denying the writ of preliminary injunction is affirmed.

AFFIRMED AND REMANDED.

      . Apasra owns immovable properties located at 613 and 1101 Decatur Street. O’Reilly owns immovable properties' located at 200 and 214 Decatur Street.

      . M.C.S., Section 166-2 identifies the Vieux Carre as that section of the city “defined to compromise all that area within the city limits within the following boundaries: the river, uptown side of Esplanade Avenue, the riverside of Rampart Street and the lower side of Iberville Street.”

      . According to the defendants, relative to the property located at 214 Decatur Street, O'Reilly was found guilty of violating the following ordinances and sections of the Code: (1) failure to remove non-conforming sign(s) at a closed business: (2) failure to submit plans for exterior changes; (3) failure to preserve architectural and historical value; (4) excessive signage; (5) working without a permit; and (6) installing signage without a permit. The scheduled adjudication hearing for the violations against O'Reilly's property located at 200 Decatur Street was continued and the case has not yet been decided. With respect to the property located at 1101 Decatur Street, Apasra was found guilty of violating the following ordinances and sections of the Code: (1) failure to preserve architectural and historical value; (2) failure to submit plans for exterior changes; (3) installing signfs) without a permit; and (4) excessive signage. The scheduled adjudication hearing for the violations against Apasra's property located at 613 Decatur Street was continued and the case has not yet been decided. Apas-ra was found guilty of violating 21145 M.C.S., Section 105: working without a permit. In addition, regarding the 613 Decatur Street property, violation charges for "removing several 'Stop Work’ notices and continuing to work without permits" were brought against Lenny Motwani personally by the 8⅛ District of the New Orleans Police Department, through the City of New Orleans Municipal Court. From the record before us it appears that these misdemeanor charges are still pending.

        . The reason for our quote of the full prayer of the plaintiffs/appellants will be addressed infra.

      . We note the variation between the prayer in the petition which only asked that enforcement be restrained for sections 6-31 through 6-41 and the restraining order that issued that restrained enforcement of sections 6-31 through 6-45.

      . Decisions of administrative bodies like the VCC and AAB are reviewable by a constitutionally created court. In the case of the VCC, such decisions are reviewed by die district court. See La. R.S. 49:964.

      . The City's current legislation relative to the VCC can be found at NEW ORLEANS, LA. CIVIL CODE Part I, ch. 7, §§ 5-701 to 5-703 and Part 2, art. I, §§ 166-1 to 166-52.

      . Article VI, § 17 provides, in pertinent part: "Existing constitutional authority for historic preservation commissions is retained.” Significantly, the Constitutional Convention of 1973 specifically considered and rejected an amendment that would have deleted the VCC’s constitutional authority and relegated section 22(A)'s provisions to statutory authority like all other state historic preservation commissions. XIX VERATIM TRANSCRIPTS, Const. Conv. of 1973, at 56-61 (Oct. 2, 1973).

      . In essence, 1974 La. Const. art. VI, § 4 limits a preexisting home rule charter’s grant of the power of initiation of legislation only by providing that the local government may not exercise that power inconsistently with the 1974 Constitution. City of New Orleans v. Bd. of Comm'rs of Orleans Levee Dist, supra at p. 9, 640 So.2d at 244.

      . Article V, Chapter 7 of the Home Rule Charter pertains to (lie VCC, which provides as follows:
      Section 5-701. Composition
      There shall be a Vieux Carre Commission consisting of nine electors, domiciled in the City, appointed by the Mayor with the approval of the Council, for a term of four years, as provided by Article 14, Section 22 A of the Louisiana Constitution of 1921, and retained by Article 6, Section 17 of the Louisiana Constitution of 1974. At least one Mayoral at-large appointment shall be domiciled within the area bounded by the Mississippi River, the downtown side of Iberville Street, the river side of North Rampart Street and the uptown side of Esplanade Avenue. In selecting persons for appointment to at-large positions on the Vieux Carre Commission, the Mayor shall take such steps as are necessary to ensure that persons from all areas of the City are given due consideration for such appointments.
      Section 5-702. Functions.
      The Commission shall:
      (1) Preserve those buildings in the Vieux Carre section of the City as defined by the Constitution, having an historical or architectural value.
      (2) Make such recommendations to the Council as it deems appropriate concerning measures for the preservation of the Vieux Carre.
      Section 5-703. Enforcement.
      The Council shall by ordinance or otherwise carry into effect provisions of the Constitution and this chapter relating to the Vieux Carre section and shall provide for the enforcement of such provisions by appropriate legal proceedings including resort to injunctive process.

      . At the time La. R.S. 13:2575 was originally enacted in 1987, the authority conferred therein upon qualifying local governing authorities was limited to prescribing “civil fines for violation of public health, housing, and environmental ordinances in the municipality” pursuant to the administrative adjudication procedures set forth in the statute. In 1992, La. R.S. 13:2575 was amended to include authority to provide administrative adjudication of "public health, housing, fire code, environmental, and historic violations.” The City, however, did not correspondingly amend the Code to expand the authority it granted to hearing officers to include fire code and historic violations.

      . Our view of La. R.S. 25:746 is that only a person seeking to preserve a historic structure would be entitled to a temporary restraining order or preliminary injunction without the necessity of posting of a bond. A person, such as a plaintiff in this suit, would still be required to post bond under La. C.C.P. art. 3601, et seq., because he is not seeking to preserve the historic structure. See La. R.S. 25:746 D(5) and E(l) and (5).


author: WALTER J. ROTHSCHILD, Judge.

text:
    Jamaal BRANCH v. NEW ORLEANS SAINTS and Louisiana Workers’ Compensation Corporation.
    No. 09-CA-910.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.
    Rehearing Denied March 15, 2010.

      Frank A. Bruno, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee-2nd Appellant.
    M. Jeremy Berthon, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2In this worker’s compensation case, the defendants, the New Orleans Saints (“Saints”) and Louisiana Workers’ Compensation Corporation (“LWCC”), appeal the judgment of the worker’s compensation judge finding that the claimant, Jamaal Branch, is entitled to weekly temporary total disability benefits from December 23, 2007 through March 17, 2008. Mr. Branch answered the appeal claiming that the worker’s compensation judge erred in failing to award attorney fees and penalties for the defendants’ refusal to pay indemnity benefits. For the following reasons, we reverse the award of temporary total disability benefits and affirm the denial of claimant’s request for attorney fees and penalties.

FACTS AND PROCEDURAL HISTORY

On December 23, 2007, while employed as a professional football player for the Saints, Jamaal Branch suffered a right fibula fracture during an NFL football game against the Philadelphia Eagles, which was the second to last game of the season. Mr. Branch was placed on injured reserve and did not play in the final game that year, but he was paid his entire 2007 contract salary by the Saints.

| aAt trial, Mr. Branch testified that he saw Dr. Timothy Finney after the accident and was placed in a walking boot for approximately one month. He received rehabilitation treatment with the Saints’ trainers, and he also attended some physical therapy sessions in Massachusetts before he was cleared by Dr. Finney to return to “full football activity without restrictions” on March 17, 2008. Mr. Branch admitted that he also took a vacation to Mexico after he completed physical therapy.

Mr. Branch testified that after a football season is over, the next year typically begins with off-season workouts in mid to late March. These workouts are not mandatory, but the players are paid for participating in them. Thereafter, there are mandatory mini-camps and then training camp, for which the players are paid, and then pre-season games before the regular football season begins. Mr. Branch stated that after he was released on March 17, 2008 to return to regular football activity, he was able to participate in the optional off-season conditioning workouts when they began on March 17, 2008. He was paid by the Saints for his participation in these workouts and training until he was released from the team in May 2008.

The standard NFL Player Contract signed by Mr. Branch on December 10, 2007 provides that it covers two football seasons and ends on February 28 or 29, 2009, unless extended, terminated, or renewed. At trial, Mr. Branch acknowledged that under his contract with the Saints, he was an employee of the Saints “year round” and not just during the regular playing season. He admitted that from the end of the 2007 regular season until the March 2008 optional workouts began, his contract did not provide that he would be paid for anything during that time. He further admitted that if he had not been injured, he would not have been paid any |,isalary or wages from the Saints from the end of the 2007 season until the March 2008 workouts.

Laura Russette, the Human Resources Coordinator for the Saints, testified that the shortest player contracts are generally for one year. She stated that when a player is signed by the Saints through a contract, he is considered a full-time employee and a team member for the entire year. She indicated that a player’s salary is considered an annual salary and that in addition to playing football, there are other requirements that players must fulfill under their contracts, such as appearances, signing memorabilia, and performing service on the Saints’ internet home page. She testified that these additional activities are not limited to the playing season, though there are certain times when players are not responsible to do anything for the Saints.

Ms. Russette testified that Mr. Branch was paid his entire salary for 2007 and he was paid for the off-season workouts that began in March 2008. She stated that from the end of the 2007 playing season until the beginning of the March workouts, Saints players are not paid any type of compensation. She further indicated that even if Mr. Branch had not been injured on December 23, 2007, his contract did not provide for any payment to him during the period between the end of the 2007 season and the March 2008 workouts, because the player contracts provide for payment of their salary “through the regular season games and then nothing further.”

At the conclusion of trial, the worker’s compensation judge allowed the parties additional time to submit post-trial memoran-da. Thereafter, on March 25, 2009, the worker’s compensation judge rendered a judgment finding that Mr. Branch is entitled to weekly temporary total disability benefits of $522 from | ¿December 23, 2007 through March 17, 2008. She also found that defendants are entitled to a one and a half week credit from December 23, 2007 through December 30, 2007. She also ordered all costs to be paid by defendants.

On April 6, 2009, Mr. Branch filed a Motion for New Trial on the issue of the court’s failure to award attorney fees and penalties for defendants’ failure to timely pay compensation benefits. A hearing was held on May 22, 2009, and the worker’s compensation judge denied the Motion for New Trial by judgment dated June 30, 2009.

The Saints and LWCC appeal the award of temporary total disability benefits in the March 25, 2009 judgment. Mr. Branch answered the appeal seeking attorney fees and penalties for defendants’ refusal to timely pay benefits, as well as attorney fees and penalties for this appeal.

LAW AND DISCUSSION

On appeal, the Saints and LWCC argue that the worker’s compensation judge erred in determining that Mr. Branch is entitled to temporary total disability benefits from December 23, 2007 through March 17, 2008. They assert that he is not entitled to any worker’s compensation benefits, because even if he was disabled during that time, he did not miss any off-season woi’kouts or other work for the Saints and he did not suffer any wage loss. Further, they contend that Mr. Branch should not have been awarded any benefits for the time period in question, because no Saints players are paid salary under their contracts during that time. They further argue that worker’s compensation benefits are not owed simply because an employee' suffers an injury. Rather, the disabling condition must result |fiin an inability to earn wages the employee would otherwise have been able to earn if he had not suffered the work-related injury.

Mr. Branch responds that the worker’s compensation judge did not err in awarding temporary total disability benefits to him from December 23, 2007 through March 17, 2008, because during that time, he was unable to work and received no pay from the Saints. He further asserts that he was unable to earn 90% of his pre-injury wage because he was unable to perform any of his prior jobs, including professional football, during that time, and no salary from any of his prior jobs came close to his football income.

A worker’s compensation claimant is not entitled to temporary total disability benefits for the time that he is employed. Jones v. El Mesero Restaurant, 97-636, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1133, 1135. A claimant seeking temporary disability benefits must offer clear and convincing evidence that he is unable to engage in any type of employment or self-employment due to his injury. LSA-R.S. 23:1221(1); Jackson v. Wal-Mart Stores, Inc., 03-1054 (La.App. 5 Cir. 2/10/04), 868 So.2d 813, 819; Fassit v. Jefferson Parish Hosp. Serv., 07-695, p. 5 (La.App. 5 Cir. 12/27/07), 974 So.2d 757, 760. The trial court must weigh all of the evidence in order to determine if the claimant has met his burden. Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613, 618. A court of appeal may not overturn a judgment of the worker’s compensation judge absent an error of law or a factual finding which is manifestly erroneous. Hughes v. New Orleans Saints.and LWCC, 05-712, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1086, 1090, writ denied, 06-1008 (La.6/23/06), 930 So.2d 980.

In the present case, the facts are largely undisputed. The issue to be resolved by this Court is whether or not Mr. Branch is entitled to temporary total disability benefits under these facts.

|7The evidence before us reveals that Mr. Branch has not proven that he is entitled to temporary total disability benefits from December 23, 2007 through March 17, 2008. At trial, Mr. Branch acknowledged that he was employed by the Saints “year-round” pursuant to his contract. He admitted that he was paid his entire salary for 2007 and that his contract did not provide that he would receive any payment from the Saints from the end of the 2007 regular season until the March 2008 off-season workouts. Mr. Branch testified that his doctor released him to regular football activity without restrictions on March 17, 2008, and he was able to participate in the optional March workouts, for which he was compensated. He admitted that he would not have received any salary or wages from the Saints during the time in question if he had never been injured.

Ms. Russett testified that Saints players did not receive compensation from the end of the 2007 playing season until the March 2008 workouts, because the player contracts provide for payment of their salary through the regular season, though they are employed by the Saints for the entire term of their contracts.

The NFL Player Contract between Mr. Branch and the Saints, which was signed on December 10, 2007, provides in pertinent part:

.... Player will be paid 100% of his yearly salary under this contract in equal weekly or bi-weekly installments over the course of the applicable regular season period, commencing with the first regular season game played by Club in each season. Unless this contract specifically provides otherwise, if this contract is executed or Player is activated after the beginning of the regular season, the yearly salary payable to Player will be reduced proportionately and Player will be paid the weekly or biweekly portions of his yearly salary becoming due and payable after he is activated.

The testimony and evidence clearly demonstrate that although Mr. Branch sustained a work-related injury, he remained employed by the Saints during the |stime for which he seeks compensation benefits and he was paid the same salary and wages that he would have received if he had not been injured.

Mr. Branch testified regarding his employment history prior to playing professional football. He also stated that he was unable to perform any of his prior jobs, including professional football, while he was injured, and he could not earn 90% of his pre-injury wage. However, there was no evidence to show that he would have returned to any of these prior jobs or obtained other employment during the period between the end of the 2007 season and March 17, 2008. Further, Mr. Branch could not have played professional football during this time anyway, because his contract prohibited him from playing football or engaging in activities related to football, other than for the Saints, and from engaging in any activity other than football which may involve a significant risk of personal injury. Mr. Branch has failed to show that he would have earned additional income if he had not suffered a work-related injury.

The purpose of worker’s compensation benefits is to compensate or indemnify an employee for his inability to earn wages that he would have been able to earn if a work-related injury had not occurred. Under the facts of this case, Mr. Branch is clearly not entitled to worker’s compensation benefits, which would be more compensation than he would have received without any injury and more than other Saints players would have received during the off-season. Accordingly, based on the testimony, evidence, and applicable law, we find that the worker’s compensation judge erred in awarding temporary total disability benefits to the claimant, and we reverse and vacate this award.

| ¡|In his Answer to the appeal filed by the Saints and LWCC, Mr. Branch contends that the worker’s compensation judge erred by failing to award penalties and attorney fees due to the defendants’ failure to timely pay indemnity benefits, in accordance with LSA-R.S. 23:1201(F). The Saints and LWCC respond that no attorney fees or penalties were owed because Mr. Branch’s claims were reasonably controverted.

When an employer has failed to pay worker’s compensation benefits, the proper standard of review for that decision is whether the employer reasonably controverted the claim. Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La.12/1/98), 721 So.2d 885, 889. A claim for worker’s compensation benefits is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Arias v. Certified Coating, Inc., 05-446, p. 6 (La.App. 5 Cir. 2/14/06), 924 So.2d 298, 302. The assessment of penalties and attorney fees by the worker’s compensation judge is a factual question which is not to be disturbed on appeal in the absence of manifest error. Redler v. Giorlando’s Restaurant Corp., 07-658, p. 6 (La.App. 5 Cir. 2/6/08), 979 So.2d 512, 516, writ denied, 08-863 (La.6/6/08), 983 So.2d 925.

Considering our finding that the claimant is not entitled to temporary total disability benefits and based on our review of the evidence, we find that the worker’s compensation judge did not err in denying the claimant’s request for penalties and attorney fees. Thus, this argument is without merit.

DECREE

For the foregoing reasons, we reverse the award of total temporary disability benefits in the March 25, 2009 judgment, and we affirm the denial of claimant’s request for attorney fees and penalties.

REVERSED IN PART; AFFIRMED IN PART.

      . The parties stipulated at trial that Mr. Branch received all reasonable and necessary medical treatment related to his injury and there were no outstanding medical bills.

      . The parties stipulated at trial that if any indemnity benefits were owed, it would be at the rate of $522 per week.

      . The parties agree that defendants are entitled to a one and one-half week credit pursuant to the NFL Collective Bargaining Agreement.

      .Mr. Branch filed a Motion for Appeal in die worker’s compensation court on August 13, 2009, but thereafter, he filed an Answer to defendants' appeal and an "appellee brief.”

      . We specifically note that we are not saying that Mr. Branch would not have been entitled to worker's compensation benefits if he had been unable to participate in off-season conditioning workouts or other training for which compensation is given in additional to the salary that is paid out over the regular season. Rather, we are saying that since he did not miss any work or compensation that he would otherwise have received, he is not entitled to worker’s compensation benefits under the facts presented.


author: COOKS, Judge.

text:
    Corrina Mae BRUNO v. Richard DAVIS, et al.
    No. 09-928.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 24, 2010.
    Steven Diebold, Champagne & Brum-baugh, PLC, Lafayette, LA, for Plaintiff/Appellant, Corrina Mae Bruno.
    Bridget R. Broussard, John Ortego & Associates, Lafayette, LA, for Defendant-Appellee, State Farm Mutual Automobile Insurance Company.
    Jamie M. Bankston, Law Office of John W. Norwood, III, Baton Rouge, LA, for Defendant-Appellee Richard Davis.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

| ,The Plaintiff, Corrina Mae Bruno, appeals the trial court’s grant of summary judgment in favor of State Farm. For the following reasons, we reverse the granting of summary judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 31, 2006, while operating his vehicle, Richard Davis lost control and collided with several cars parked at Plaintiffs residence. One of the vehicles hit by Davis then struck Plaintiffs house. Plaintiff was lying in bed at the time of the accident, and immediately upon hearing the sound of the crash, Plaintiff jumped from her bed and fell to the floor. As a result she suffered injuries to her back and elbow.

Plaintiff filed suit for damages against Davis and his insurer GEICO. Davis and GEICO were dismissed from the lawsuit after paying the policy limits of $10,000.00. Prior to the dismissal of GEICO and Davis, a supplemental petition was filed naming State Farm, Plaintiffs UM carrier, as a defendant.

State Farm filed a motion for summary judgment arguing Plaintiffs injuries did not arise out of the use of Davis’ vehicle. Thus, it was argued no UM coverage was available for Plaintiff under her State Farm policy. Following a hearing on the motion for summary judgment, the trial court rendered judgment in favor of State Farm dismissing Plaintiffs claims with prejudice. Specifically, the trial court held the “connection between the accident and Ms. Bruno’s subsequent injuries were too remote to have arisen out of the use of the uninsured vehicle. Therefore, the use of the uninsured vehicle cannot be considered the legal cause of the plaintiffs injuries.” This appeal followed.

| {ANALYSIS

Plaintiff argues the trial court erred in the analysis it used in determining whether her injuries arose out of the use of the vehicle. Plaintiff asserts the Louisiana Supreme Court’s decision in Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982), sets forth the test for determining “use” of an automobile. The court in Ursin v. Webb, 06-280, p. 5 (La.App. 5 Cir. 9/26/06), 945 So.2d 734, 736-37, unit denied, 06-2580 (La.1/12/07), 948 So.2d 152, discussed Carter as follows:

In [Carter ], the Supreme Court established the analysis to be used in determining whether an accident arose out of the “use” of an automobile. The court noted the “use” provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. Thus, the courts are required to answer two separate questions:
(1) Was the conduct of the insured of which the plaintiff complains a legal cause of the injury?
(2) Was it a use of the automobile?
In order for the conduct to arise out of the use of the vehicle, the automobile must be essential to the theory of liability. The specific duty breached by the insured must flow from use of the automobile. If the specific duty breached by the insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by use of the automobile. W.S. McKenzie and H.A. Johnson, Louisiana Civil Law Treatise, Volume 15, Insurance Law and Practice, § 65 (1986).

In Carter, a motorist, who was accompanied by a child, ignored placed barricades, and negligently drove into an underpass that had been flooded by rainwater. Both the motorist and the child drowned. The motorist’s automobile liability insurer, which provided coverage only for liability arising from the ownership or use of an automobile, argued that the child was not drowned in the car or its immediate vicinity, but some distance away, and apparently some time after the motorist’s initial negligence of driving into the flooded underpass. The Supreme |3Court held that the child’s drowning was proximately caused by the motorist’s initial negligence of driving into the flooded underpass.

A. Legal Causation.

In deciding the first of the two issues listed above — that is, whether the policy holder’s actions were a legal cause of the plaintiffs damages, the court in Carter considered whether the insured person breached a legal duty imposed to protect against the particular risk involved. Carter, 423 So.2d at 1084. In so doing, the court applied a lengthy and comprehensive duty/risk analysis. After detailing the policy holder’s duty not to circumvent barricades and drive on closed roads, a duty imposed by statutory law, the court found that the risk of the ten-year-old passenger drowning was encompassed by that duty. Id. at 1086. In reaching that conclusion, the court noted that the particular risk might have been unforeseeable, but nevertheless found that it was within the ambit of the duty because it was “easily associated with the rule relied upon and with other risks of the same type that are foreseeable and clearly within the ambit of protection.” Id.

We find the same result is warranted in the present case. Although the exact manner in which Plaintiff came to harm may not have been foreseeable, it was, and is obvious that an elderly person lying quietly in bed might be suddenly confused and disoriented by a vehicle crashing into her house. The particular harm which befell Plaintiff, while unusual, can be reasonably said to be associated with the sudden event caused by the chain of events that resulted from Richard Davis’ negligence in operating his vehicle. It is certainly arguable, but for Davis’ negligence in operating his vehicle, the injuries suffered by Plaintiff would not have occurred. Therefore, at a minimum, genuine issues of material facts exist as to whether Davis’ actions were a legal cause of Plaintiffs injuries.

| Ji. “Use of the Automobile.

The Carter court easily disposed of the second question in the analysis for determining whether the “arising-out-of-use” provision of the policy covered the plaintiffs’ damages in Carter — that is, whether the conduct of which the plaintiff complained was a “use” of the automobile. Because the plaintiffs in Carter complained about the insured person’s driving, the conduct was a use of the automobile, the court held. Carter, 423 So.2d at 1087.

Similarly, in the instant case, Plaintiffs complains of Davis’ actual operation of the vehicle as the cause of her injuries. It was specifically alleged by Plaintiff, that the sudden event of a ear striking her home, which was undisputedly brought about by Davis’ actions in negligently operating his vehicle, caused her to suddenly jump from her bed and fall to the ground. Thus, it is clear a genuine issue of material fact exists that Davis’ conduct of which Plaintiff complained was a use of the automobile.

DECREE

For the foregoing reasons, we reverse the trial court judgment granting the motion for summary judgment in favor of State Farm and dismissing State Farm from the suit. This matter is remanded to the tidal court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: GRIFFIS, J., for the Court.

text:
    Emmitt PAIGE, Sr., individually and on behalf of all wrongful death beneficiaries of Cherryl Paige, Deceased, Appellant, v. MISSISSIPPI BAPTIST MEDICAL CENTER, Appellee.
    No. 2008-CA-00328-COA.
    Court of Appeals of Mississippi.
    Oct. 6, 2009.
    Rehearing Denied March 30, 2010.

      Herbert Lee, Leonard McClellan, Jackson, attorneys for appellant.
    D. Collier Graham, Jackson, attorney for appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Emmitt Paige, Sr., individually and on behalf of the wrongful death beneficiaries of his wife, Cherryl Paige (“Cherryl”), filed a medical negligence and wrongful-death action against Dr. William Harris and Mississippi Baptist Medical Center (“MBMC”) as a result of Cherryl’s death following aortie-valve-replacement (“AVR”) surgery performed by Dr. Harris. The circuit court granted MBMC’s motion for summary judgment as to all claims against MBMC. Paige appeals claiming: (1) the circuit court abused its discretion in limiting Paige’s right to discovery of MBMC’s corporate bylaws, medical-staff bylaws, and organizational charts; (2) the circuit court erred in excluding the testimony of Paige’s expert witnesses; and (3) summary judgment was improperly granted. We find no error and affirm.

FACTS

¶ 2. On February 16, 2004, Cherryl was admitted into MBMC for AVR surgery performed by Dr. Harris. Following surgery, Cherryl was transported to the cardiovascular-surgery-recovery unit. At the time she arrived in recovery, her vital signs were stable. Minutes later, Cher-ryl’s vital signs became unstable, and Dr. Harris was called immediately. He, along with anesthesiologist Dr. Barry Aden, tried to determine the cause of Cherryl’s change in condition. Dr. Harris decided to take Cherryl back to the operating room for exploratory surgery. Cherryl ultimately died during this surgery.

¶ 3. Paige filed suit against Dr. Harris and MBMC on March 4, 2005. He alleged that MBMC owed Cherryl: a duty to provide competent physicians and surgical staff, a duty to have sufficient staff in the cardiovascular-surgery-recovery unit, and a duty to exercise reasonable care in hiring, retaining, supervising, and monitoring the work of Dr. Harris and his surgical staff.

¶ 4. During discovery, Paige requested a copy of MBMC’s corporate bylaws, medical-staff bylaws, and organizational chart. MBMC argued that these documents were not relevant, and MBMC refused to produce these documents. Paige filed a motion to compel. The circuit court reviewed the requested documents in camera and determined that certain portions of the documents were relevant. Those portions determined by the judge to be relevant were produced in discovery.

¶ 5. Paige identified Dr. Calvin Ramsey, an internal medicine primary care physician from Lexington, Mississippi, as an expert expected to testify that Cherryl died as a result of the gross negligence of Dr. Harris and the staff of MBMC. Dr. Harris and MBMC moved to exclude the testimony of Dr. Ramsey based on his lack of qualifications. The circuit court determined that Dr. Ramsey lacked the education, and the experience or training in the speciality of cardiovascular surgery; thus, the circuit court granted the motion to exclude Dr. Ramsey’s testimony.

¶ 6. Paige also designated as an expert Dr. Charles Bridges, a cardiovascular surgeon. However, Dr. Bridges’s report focused solely on Dr. Harris’s negligence. The report gave no opinion on the standard of care for MBMC or its staff. On October 15, 2007, MBMC moved for summary judgment. Paige did not request additional time under Mississippi Rule of Civil Procedure 56(f). Neither did Paige complain that he did not have an adequate opportunity for discovery.

¶ 7. On November 1, 2007, Paige submitted a supplemental report from Dr. Bridges. MBMC moved to exclude this opinion as untimely because this was the first time Paige had made any disclosure that Dr. Bridges might offer an opinion against MBMC. This filing occurred long after the final deadline for expert-witness supplementation and only thirty-two days before trial was set to begin.

¶ 8. The circuit court held that the supplemental report from Dr. Bridges contained new opinions that violated the circuit court’s scheduling order and Rule 4.04 of the Uniform Rules of Circuit and County Court and were unfairly prejudicial to MBMC. The motion to exclude was granted. Because Paige failed to submit expert testimony that MBMC violated the standard of care, there was no genuine issue of material fact presented. The circuit court granted MBMC’s motion for summary judgment thereby disposing of all claims against MBMC. Paige now appeals the circuit court’s ruling.

STANDARD OF REVIEW

¶ 9. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (¶ 4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists. The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” M.R.C.P. 56(c).

¶ 10. The supreme court has set forth the standard of review in medical-negligence actions as follows:

Absent error so obvious that a layman could easily determine fault, expert testimony is generally required to survive summary judgment and establish the negligence of a physician. A trial judge’s determination as to whether a witness is qualified to testify as an expert is given the widest possible discretion and that decision will only be disturbed when there has been a clear abuse of discretion.

Sheffield v. Goodwin, 740 So.2d 854, 856 (¶ 6) (Miss.1999) (internal citations omitted).

ANALYSIS

1. Whether the circuit court abused its discretion in limiting Paige’s right to discovery of MBMC’s corporate bylaws, medical-staff bylaws, and organizational charts.

¶ 11. Paige argues that he should have been given full access to MBMC’s corporate bylaws, medical-staff bylaws, and organizational charts during the discovery phase of this matter. MBMC responds that the circuit court thoroughly reviewed the documents in camera, and those portions of the documents which were deemed relevant to the case were disclosed to Paige.

¶ 12. Paige requested the documents from MBMC; however, MBMC objected to disclosure on the basis that the documents were not relevant to the claims alleged in Paige’s complaint. Paige filed a motion to compel, and after a hearing on the matter, the circuit court ordered an in-camera review of the documents to determine whether there were “any provisions of those documents that are relevant to the hiring, supervision and review of doctors to whom staffing privileges are granted by the hospital and whether or not there are any provisions that relate to patient care.” After the circuit court’s in-camera review of the documents, the circuit court ordered that several sections of the documents be disclosed to Paige. MBMC timely complied with this order.

¶ 13. Paige claims that it was a gross discovery violation for MBMC to produce these documents almost two years after the discovery requests were propounded. However, Paige waited well over a year to file a motion to compel with the circuit court. It was his obligation to bring this alleged discovery violation to the circuit court’s attention, and his delay substantially contributed to the length of time between the request and the circuit court’s ruling.

¶ 14. Further, Paige claims that the delay prejudiced his case because he did not have sufficient time to obtain an expert in hospital administration between the time that he received the relevant portions of the documents and the circuit court’s grant of the summary judgment for MBMC. However, this claim is inconsistent with the proceedings before the circuit court. On September 24, 2007, the circuit court ordered that the relevant portions of the documents be disclosed to Paige. MBMC filed its motion for summary judgment on October 15, 2007. Paige failed to make any request for an extension of time for discovery before the circuit court’s November 29, 2007, ruling on the motion for summary judgment.

¶ 15. In fact, “[pjursuant to Rule 56(f) of the Mississippi Rules of Civil Procedure, the [circuit] court has discretion to postpone consideration of a motion for summary judgment and to order that discovery be completed.” Frye v. Southern, Farm Bureau Cas. Ins. Co., 915 So.2d 486, 491 (¶ 14) (Miss.Ct.App.2005). However, Paige failed to request further time pursuant to Rule 56(f).

¶ 16. Paige claims that, under the totality of the circumstances, the circuit court abused its discretion as to the discovery matters in this case. However, we find this argument unsubstantiated considering that Paige had all relevant medical records, had the ability to depose all MBMC personnel involved in the treatment of Cherryl, was given multiple extensions of time in order to designate medical experts, failed to file his motion to compel in a timely fashion, and failed to request additional time before the circuit court ruled on the motion for summary judgment. His argument that, after years of discovery in this case, he found himself unprepared to oppose MBMC’s motion for summary judgment is unconvincing.

¶ 17. “The control of discovery is a matter committed to the sound discretion of the trial judge.” Holland v. Mayfield, 826 So.2d 664, 673 (¶ 37) (Miss.1999). We find no abuse of discretion in the circuit court’s discovery rulings. Accordingly, this issue is without merit.

2. Whether the circuit court erred in excluding the testimony of Paige’s expert ■witnesses.

¶ 18. The circuit court held that Paige failed to present expert testimony showing that MBMC violated the standard of care; thus, MBMC’s motion for summary judgment was granted. Paige contends that summary judgment was improper because the testimonies of his expert witnesses— Dr. Ramsey and Dr. Bridges—were erroneously excluded by the circuit court.

A. Dr. Ramsey

¶ 19. Dr. Ramsey is a board-certified internist practicing general medicine in Lexington, Mississippi. Paige stated in his expert disclosure that “Dr. Ramsey is expected to testify that Cherryl Paige died because of gross negligence and recklessness on the part of Dr. William Harris and others, including the medical staff at the Baptist hospital, the nurses, the surgical technicians and the [anesthesiologist.” Dr. Harris, who performed Cherryl’s surgery, is a thoracic surgeon.

¶ 20. MBMC joined Dr. Harris’s motion to exclude the testimony of Dr. Ramsey based on Dr. Ramsey’s lack of qualifications as a surgeon. Dr. Ramsey has no training in surgery of any type, including thoracic surgery. There was no evidence presented that Dr. Ramsey has ever observed or supervised the members of a surgical team such as the team who assisted Dr. Harris. Based on Dr. Ramsey’s lack of qualifications as a thoracic surgeon, the circuit court granted MBMC’s motion to exclude Dr. Ramsey’s testimony.

¶ 21. Paige argues that Dr. Ramsey was a qualified expert under the requirements of Rule 702 of the Mississippi Rules of Evidence, which states that:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

MBMC responds that the circuit court, in its role as gatekeeper, had wide discretion to exclude Dr. Ramsey’s testimony. See Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342 (Miss.1999) stating “the admission of expert testimony is within the sound discretion of the trial judge.”)

¶ 22. To be accepted under Rule 702 as an expert in an medical malpractice case, it is not necessary that the proposed expert be of the same specialty as the physician who is the subject of the testimony. Hubbard v. Wansley, 954 So.2d 951, 957 (¶ 13) (Miss.2007). However, it is required that the expert show “[satisfactory familiarity with the specialty of the defendant doctor.” Id.

¶ 23. The supreme court recently decided this very issue in McDonald v. Memorial Hospital at Gulfport, 8 So.3d 175 (Miss.2009). There, McDonald designated a board-certified pathologist and psychiatrist to testify about the standard of care for a gastroenterologist. The supreme court noted that:

[the expert] has never practiced in the field of gastroenterology, and since medical school has not performed any procedures in this field other than one colonoscopy in 1976. Further, [he] has never admitted a patient to an acute-care facility other than a psychiatric facility, and he has not performed an EGD, the procedure Mr. McDonald was undergoing, since medical school in the 1960s.

Id. at 181 (¶ 16). Thus, the expert was not familiar with the standard of care to which a gastroenterologist is held. Id.

¶ 24. Here, as in McDonald, Dr. Ramsey is not familiar with the standard of care to which a thoracic surgeon performing AYR surgery is held. Dr. Ramsey is not a surgeon, nor has he performed or participated in the type of thoracic surgery like that Dr. Harris performed on Cherryl. Paige claims to have offered Dr. Ramsey not as a surgical expert but as an expert testifying as to the standard of care of the members of the surgical team. However, there is no basis in the record to show that Dr. Ramsey is familiar with the requirements of a surgical team because he is an expert in internal medicine, not surgery.

¶ 25. We find that the circuit court was correct in excluding Dr. Ramsey’s testimony because Dr. Ramsey lacks the required familiarity with Dr. Harris’s specialty in thoracic surgery.

B. Dr. Bridges

¶ 26. Dr. Bridges is a board-certified cardiovascular surgeon who was timely designated as one of Paige’s expert witnesses. However, his proposed testimony was relevant only to the claims against Dr. Harris, and there was no mention of the standard of care or any resultant breach by MBMC or its personnel. The deadline for expert-witness disclosures was extended numerous times by the circuit court during the two years of discovery in this matter. However, there was no indication that Dr. Bridges would offer testimony that MBMC breached its standard of care.

¶ 27. This case was set for trial on December 3, 2007, and the deadline to make final supplemental expert disclosures was extended to September 7, 2007. On October 15, 2007, MBMC moved for summary judgment. On November 1, 2007, just over one month before trial, Paige submitted a supplemental report from Dr. Bridges that, for the first time, included opinion testimony regarding MBMC’s standard of care.

¶ 28. MBMC moved to exclude this testimony as a violation of both the circuit court’s deadline of September 7, 2007, and Rule 4.04A of the Uniform Rules of Circuit and County Court which requires that all expert disclosures must be made at least sixty days before trial absent special circumstances. Paige neither presented any special circumstances, nor did he request additional time.

¶ 29. We find that circuit court was correct in holding that this disclosure was untimely and caused prejudice to MBMC which would not have had adequate time before trial to review the evidence.

¶ 30. As the supreme court held in McDonald: “as a general rule, expert testimony must be used in proving the elements of medical negligence. Absent expert testimony, there is no triable issue of fact with regard to the alleged medical negligence.” McDonald, 8 So.3d at 182 (¶ 19). Because Paige failed to timely provide expert testimony regarding the standard of care of MBMC, there is no issue of fact as to the alleged medical negligence of MBMC. Accordingly, this issue is without merit, and the circuit court’s order granting MBMC’s motion for summary judgment is affirmed.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES AND MAXWELL, JJ., NOT PARTICIPATING.