author: ROLAND L. BELSOME, Judge.

text:
    TASCH, INC. v. HORIZON GROUP, Orleans Parish School Board and The Orleans Parish School Board Members, Ellenese Brooks-Sims, Una Anderson, Cheryl E. Mills, Gail Moore Glapion, Jimmy Fahrenholtz, Carolyn Green Ford, Elliot C. Willard.
    No. 2008-CA-0635.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2009.
    Rehearing Denied Feb. 12, 2009.

      Scott G. Wolfe, Jr., Wolfe Law Group, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Clare Jupiter, Bryan & Jupiter, APLC, New Orleans, LA, for Defendant/Appellee, Orleans Parish School Board.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_[^This appeal is taken from the trial court’s dismissal of the matter on the grounds of abandonment. For the following reasons we affirm.

On August 9, 2002, Tasch, Inc. (“Tasch”) filed a petition against Horizon Group (“Horizon”), Orleans Parish School Board (“Board”) and its Members. The petition alleged that the Board had contracted with Horizon for the renovation of Murray Henderson Elementary School. Thereafter, Horizon accepted a bid proposal from Tasch to perform $280,000.00 of the work. Tasch further contends that after the work was completed, Horizon made a partial payment of $85,000.00 but failed to pay the balance owed of $195,000.00.

Exceptions and an answer were filed on behalf of the Board on November 21, 2002. Then on March 3, 2003, there was a motion filed to enroll additional counsel of record for the Board. In that same year a motion and order to substitute counsel was filed on October 24, also by the Board. Nothing further was filed into the court record until October 23, 2007. At that time, a motion to enroll as counsel of record was filed on behalf of Tasch. Subsequently, a motion and order to dismiss for abandonment was filed on behalf of the Board. The trial court granted the motion, ruling the case abandoned and this appeal followed.

| ¿On appeal Tasch asserts four assignments of error: 1) the trial court erred in disregarding actions taken by the parties on the record which constituted “steps” sufficient to prevent this matter from becoming abandoned; 2) the order granting the motion for abandonment was based on a mere technicality, and compromises the spirit of Louisiana Civil Code of Procedure article 561; 3) alternatively, if the granting of the motion for abandonment is deemed proper, the dismissal should have been granted without prejudice; and 4) the trial court erred in granting a motion for an attorney who has never enrolled with the court in the matter.

Tasch argues that the trial court failed to consider “steps” that appeared in the record prior to the February 13, 2008 order to dismiss.

In Louisiana, an action is deemed abandoned when the parties fail to take any step in its prosecution or defense for a period of three years. La. C.C.P. Art. 561. This provision is operative without a formal order. Id. However, if any party files an ex parte motion which provides that no step has been taken for a period of three years in the prosecution or defense of the matter, the trial court shall enter a formal order of dismissal as of the date of its abandonment. Id. In order to avoid abandonment, article 561 imposes three requirements on plaintiffs; they are:

First plaintiffs must take some step towards prosecution of their lawsuit ... Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Olavarrieta v. St. Pierre, 2004-1566, p. 4 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 569.

Louisiana jurisprudence has further held that “extrajudicial efforts,” such as correspondence between the parties and informal settlement negotiations, are ^insufficient to constitute steps in the prosecution of the case. Madison v. Tauro Infirmary, et. al., 2002-0799 (La.App. 4 Cir. 8/14/02), 826 So.2d 568; Alexander v. Liberty Terrace Subdivision, Inc., 99-2171 (La.App. 4 Cir. 4/12/2000), 761 So.2d 62; Mariast & Lemmon, Louisiana Civil Law Treatise, Civil Procedure, § 10.4. The settlement negotiations referenced by Tasch are viewed as nothing more than informal correspondence and insufficient to constitute a step in the prosecution of the case.

Plaintiffs’ counsel also contends that the unexpected delays caused by Hurricane Katrina prevented the case from moving any faster because of the disruption to his office and to the courts. It is uncontested that Hurricane Katrina caused a severe disruption in the legal system of this State. For that reason the Legislature provided for a limited suspension and/or extension of the abandonment period in Executive Orders KBB 2005-32, 48, and 67 as confirmed, approved, and ratified subject to Louisiana Revised Statutes 9:5821

The record in this case is void of any evidence that the plaintiff requested a limited suspension or extension of the prescriptive period by June 1, 2006, as required by La. R.S. 9:5824(B)(1). Nor does the record support that the failure to take steps in the prosecution of this matter was due to Hurricanes Katrina and/or Rita. Thus, we find that the trial court correctly applied Louisiana law when it 14dismissed the case against the Board for abandonment. However, dismissals under La. C.C.P. art. 561 are to be without prejudice. DeSalvo v. Waguespack, 187 So.2d 489 (La.App. 4 Cir.1966). Therefore, the trial court’s judgment of dismissal is hereby amended to read without prejudice.

Finally, we find no merit in Tasch’s assertion that the motion to dismiss should not have been granted because the counsel that filed the motion was not a counsel of record. The firm of Bryan & Jupiter made an appearance in the record for the Board through the filing of the answer and exceptions. As for following the district rules, Louisiana District Court Rule 9.12 provides that “... attorneys in good standing may enroll as counsel of record ...” The rule further provides for the procedure by which an attorney can formally enroll in a case, but does not provide for any penalty for failure to do so. The trial court did not err in accepting the filing of the motion to dismiss by Attorney, Clare Jupiter.

Accordingly, the trial court’s order of dismissal is amended to read “without prejudice” and affirmed.

AFFIRMED AS AMENDED.

      . La. R.S. 9:5821 provides in relevant part as follows:
      All prescriptions, including liberative, acquisitive, and the prescription of nonuse, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Fillis FRIEDMAN v. LOUISIANA STATE BOARD OF DENTISTRY.
    No. 2008-CA-0882.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2009.
    Rehearing Denied Feb. 4, 2009.

      David W. Nance, D.W. Nance, LLC, New Orleans, LA, for Fillis Friedman.
    Darrell J. Saltamachia, Special Assistant Attorney General, Law Offices of Darrell J. Saltamachia, Baton Rouge, LA, Brian M. Bégué, New Orleans, LA, for Louisiana State Board of Dentistry.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

|! Fillis Friedman seeks judicial review of the Louisiana State Board of Dentistry’s investigation into her allegations against her dentist and a declaratory judgment. The trial court determined that the record was void of a subject to review or warranting the grant of a declaratory judgment. We find that the trial court did not err and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Fillis Friedman (“Ms. Friedman”) had a protracted affair with her dentist, Dr. William Karam (“Dr. Karam”). After the affair ended, Ms. Friedman wrote a letter to the Louisiana State Board of Dentistry (“Board”) detailing Dr. Karam’s “unprofes-sionalism,” which included, but not limited to, allegations that Dr. Karam molested her, convinced her that she loved him more than her husband, and sent her lewd photographs. Ms. Friedman also alleged that Dr. Karam acted inappropriately with her daughter.

The Board responded, stating that the “investigation could prove none of the accusations.” Further, the Board informed Ms. Friedman that any recourse would Income from a private or civil matter and that the Disciplinary Oversight Committee found there was no violation of La. R.S. 87:751, et seq.

Ms. Friedman filed a petition for review of declaratory judgment against the Board. The Board filed a peremptory exception of no cause of action, which the trial court maintained and dismissed Ms. Friedman’s petition. Later, the trial court designated the ruling on the exception as a final judgment, subject to appeal.

NO CAUSE OF ACTION

The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). A trial court’s granting of a peremptory exception of no cause of action is a legal question. La. C.C.P. art. 927. Legal questions are reviewed by appellate courts utilizing the de novo standard of review. Williams v. Fahreuholtz, 08-0961, p. 3 (La.App. 4 Cir. 7/25/08), 990 So.2d 99,102.

“[T]he allegations of the petition must be viewed in a light most favorable to the plaintiff.” Crutcher-Tufts Res., Inc. v. Tufts, 07-1556, p. 2 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1093. However, “the mere conclusions of the plaintiff unsupported by facts do not set forth a cause of action.” Id. “[T]he facts that are pled must be sufficiently specific for a court to find that those facts, if proven, demonstrate that a legal duty is owed by one party to another.” Johnson v. Orleans Parish Sch. Bd., 05-0796, p. 5 (La.App. 4 Cir. 3/22/06), 929 So.2d 761, 764.

JUDICIAL REVIEW

Ms. Friedman contends that the trial court erroneously granted the Board’s | .¡exception of no cause of action because judicial review of administrative actions and decisions is available, pursuant to La. R.S. 37:786. The Board imposes discipline upon dental professionals if its investigation finds a violation of La. R.S. 37:776(A). The violations include, in part:

(5) Habitual indulgence in the use of drugs, narcotics, or intoxicating liquors.
(6) Prescribing, dispensing, or administering habit-forming or other legally controlled substances in other than a legal or legitimate manner.
(7) Professional or dental incompetency.
(8) Dental practice which fails to satisfy the prevailing acceptable standards of dental practice in this state.
(12) Making any misrepresentations or false promises, directly or indirectly, to influence, persuade, or induce dental patronage.
(15) Unprofessional conduct as defined in R.S. 37:775.
(16) Any conduct intended to deceive or defraud the public.
(22) Immoral conduct in exercising the privileges provided for by license or permit issued under this Chapter.
(27) Failing to cooperate with the board in investigating any matter before the board except for an openly expressed claim of a constitutional privilege; or knowingly failing to respond to a lawful demand from the board for information from any professional licensing or disciplinary authority.

La. R.S. 37:776(A). The Board “[s]hall investigate complaints of illegal practice or a violation of this Chapter when evidence is presented to the board.” La. R.S. 37:760(A)(7). An administrative complaint may be issued if the Board determines that a citizen’s allegations can be substantiated. La. R.S. 37:779(B). (Emphasis Ladded). The Board is vested with discretion as to the institution of disciplinary proceedings following an investigation. See La. R.S. 37:779(B). Additionally, the statutes are inapplicable, as the case sub judice does not involve a disciplinary proceeding.

Ms. Friedman desires this Court to order the Board to conduct a new investigation. However, the statute only provides for review if the Board or a disciplinary committee of the Board “renders a decision in an administrative adjudication.” La. R.S. 37:786(A). After conducting a mandatory investigation of Ms. Friedman’s claims, the Board determined that the claims could not be substantiated. In the case sub judice, the Board did not undertake any adjudication proceedings subject to review and the record lacks evidence of impropriety in regards to the investigation.

DECLARATORY JUDGMENT

Ms. Friedman also asserts that she is entitled to declaratory relief. La. C.C.P. art. 1871 provides:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

The statute provides that this Court “may declare rights, status, and other legal relations” as to the availability of further relief. However, none are available. Ms. Friedman seeks an additional investigation by the Board. The record does not |Breveal any impropriety in the first and only mandatory investigation. Furthermore, Ms. Friedman’s brief fails to cite to the statutes regarding declaratory judgments and also fails to cite an authority in support of her contention. Therefore, we find that Ms. Friedman is not entitled to the relief she seeks.

DECREE

For the above mentioned reasons, we find that the trial court did not err in granting the Board’s peremptory exception of no cause of action and affirm.

AFFIRMED.

      . Ms. Friedman averred that the Board's investigators were biased.

      . In addition to Ms. Friedman's other private and civil remedies mentioned by the Board, Ms. Friedman could have forwarded her allegations to the appropriate district attorney.

      . La. R.S. 37:786(A) provides, in pertinent part:
      A. (1) Where the board, whether through a disciplinary committee or the entire board, renders a decision in an administrative adjudication, the party aggrieved by it may resort to the civil district court for the parish of Orleans for judicial review. Any such appeals shall be filed in the court in the same manner as original suits are instituted therein. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.


author: MICHAEL E. KIRBY, Judge.

text:
    YOUR HOME SOLUTION LOUISIANA, L.L.C. and Gulf Coast Rehabbing Group, L.L.C. v. Thomas BRAND and Thomas Brand Siding Company, Inc.
    No. 2008-CA-0499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2009.

      Charles L. Rice, Jr., Christy Harowski, Jonathan R. Bourg, Barrasso Usdin Kup-perman Freeman & Sarver, L.L.C., New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MICHAEL E. KIRBY, Judge.

11 Defendants, Thomas Brand and Thomas Brand Siding Company, Inc., (hereinafter collectively referred to as “Brand”) appeal a judgment signed by the trial court on November 27, 2007 and date stamped and filed into the record on November 28, 2007. That judgment determined Brand’s entitlement to lien privileges for outstanding balances allegedly owed by plaintiffs, Your Home Solution Louisiana, L.L.C. and Gulf Coast Rehabbing Group, L.L.C. These outstanding balances allegedly represent certain services and materials provided in the rehabilitation of 39 homes in St. Bernard Parish that were damaged by Hurricane Katrina.

The record designated on appeal does not include any pleadings or judgments in this lawsuit dated before September 5, 2007. Attached to Brand’s brief is a trial court judgment dated August 22, 2007, but that judgment is not in the record before us.

According to the trial court’s November 28, 2007 judgment and incorporated reasons for judgment, Brand was the general contractor for various owners of | ¿.hurricane damaged properties by virtue of a contractual arrangement with plaintiffs. Brand asserted entitlement to lien privileges for outstanding balances for labor and materials provided for rehabilitation of the damaged properties. The trial court, citing the case of Burdette v. Drushell, 2001-2494 (La.App. 1 Cir. 12/20/02), 837 So.2d 54, found that Brand was entitled to lien privileges for its services and materials provided as a contractor. The trial court then set forth a property by property analysis of the items claimed and a determination as to the amounts for which a lien is allowable.

The court stated that it excluded claims for a lien where the cost or expense was listed as a miscellaneous expense, without further explanation as to the type of work performed. The court also excluded items that represented costs for conversion, landscaping or demolition without further recitation of the type of work done. The only person who testified as to specific amounts claimed by Brand was its office manager, Ms. Janelle Anthony. The trial court noted that her testimony was based on business records, and that Ms. Anthony had not visited the job sites. The trial court judgment included a detailed list of the property addresses, the owner’s name, if known, the amount of the lien claimed, and the amount of the lien allowable. Regarding the properties for which a lien amount was allowed, the judgment ordered that the amount of the recorded lien was to be reduced to the amount allowed by the court. Liens recorded for properties for which no amount was found allowable were ordered cancelled in their entirety.

IsBrand filed this devolutive appeal, arguing that the trial court erred in finding that certain work performed by Brand did not qualify for a lien under the Louisiana Private Works Act, and that the trial court’s calculation of certain lien rights was based on a flawed interpretation of Louisiana law. Brand states in its brief that “[tjhis appeal presents the issue of the rights of workers to establish a lien under the Louisiana Private Works Act [La. R.S. 9:4801, et seq.].” The trial court acknowledged in its judgment that Brand is entitled to lien privileges under the Louisiana Private Works Act, and allowed Brand lien privileges on many of the items claimed. The issue in this appeal is whether the trial court erred in its determination that lien privileges should be disallowed for certain other items.

At trial, Ms. Janelle Anthony, the Brand office manager, testified as to the amounts for which Brand was not paid by plaintiffs for property rehabilitation services. After listing the amounts still owed on each of the properties, Ms. Anthony stated that the services performed by Brand included painting, flooring, landscaping, fencing, roofing, carpentry, demolition, conversion to living and miscellaneous. The record also includes copies of invoices submitted by Brand for work performed pursuant to its contract with plaintiffs.

Brand had the burden of itemizing the costs associated with the labor and materials provided for which they claim to have not been paid. See Burdette v. Drushell, 2001-2494 (La.App. 1 Cir. 12/20/02), 837 So.2d 54. The trial court found that Brand did not offer sufficient explanations for certain types of work performed for which it asserted lien privileges. These items included conversion, ^landscaping, demolition and miscellaneous. Included in the exhibits offered into evidence by Brand are expense reports for each of the properties. For work listed under the category of “miscellaneous,” the reports gave a brief general description of the work performed but only a sum total for these expenses instead of an itemization of the same. The trial court noted at the conclusion of trial that the evidence lacked specificity on the issues of whether all of the work invoiced was completed, and whether any of the amounts invoiced represented work performed by subcontractors rather than by Brand.

We do not interpret the trial court’s judgment and reasons for judgment to mean that expenses incurred for conversion, landscaping, demolition and miscellaneous work can never be eligible for lien privileges under the Louisiana Private Works Act. Rather, the trial court found that as for the disallowed items, Brand offered evidence that was too general in nature, and did not offer adequate explanations for these claimed expenses so as to carry its burden of proving entitlement to lien privileges for the same. Based on our review of the record, we cannot say the trial court erred in its determination as to the items for which Brand is entitled to lien privileges. For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . Plaintiffs did not file an appeal brief.


author: MARION F. EDWARDS, Judge.

text:
    Mr. and Mrs. Edward T. URSIN, et al. v. The NEW ORLEANS AVIATION BOARD, et al.
    No. 08-CA-614.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Rehearing Denied Feb. 17, 2009.
    See also 902 So.2d 508.

      Patricia S. LeBlanc, Michael L. Fantaci, LeBlanc Butler LLC, Metairie, LA, for PlaintiffiAppellant.
    Randall A. Smith, Michael W. Hill, Smith & Fawer, L.L.C., New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, GREG G. GUIDRY, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

_JjThis appeal arises from the denial by the trial court of a Motion to Enforce Settlement Agreement and Judgment. The underlying facts were summarized in a previous opinion by this Court as follows:

Certain owners of property near the New Orleans International Airport filed a class action alleging the constructive taking of their property because the noise and general inconvenience of operating the airport had rendered their property useless and essentially “taken” by the airport. On January 11, 1989, a Settlement Agreement was entered into. According to the Settlement Agreement, the City of New Orleans and the New Orleans Aviation Board agreed to purchase the properties, which were identified in a study and designated as Subclass “A” and “B”, with federal grant money as the funds became available. The amount of the attorneys’ fees was to be decided by the Court, however, the Settlement Agreement did provide that the fees would be due upon receipt of the individual benefits by the class members.
On May 31, 1989, a judgment was issued by the trial court approving the Settlement Agreement, including an Addendum to the agreement, and adopting the agreement as the judgment of the court. On October 27, 1989, the trial court rendered another judgment entitled Ruling on Motion to Set Attorney’s Fees. In that | .judgment, the trial court stated that the class members, whose property is purchased by The New Orleans Aviation Board, shall pay six percent (6%) of the individual benefits received, to the Class Counsel for attorneys’ fees. The judgment further stated that the 6% of the purchase price shall constitute a lien on the property purchased. The agreement, along with the judgments rendered by the court, were filed in the mortgage records on October 27, 1992.

The Settlement Agreement applied to those members of the class who did not opt-out of the proceeding, and further provided that:

This Settlement Agreement also binds the Aviation Board and future owners of designated property subject to this Settlement Agreement who obtain ownership of said property for the Present Class Members or their successors or assigns (hereinafter ‘Future Class Members’).
Notice of this Class Action for Settlement Purposes Only shall be provided to Future Class members by recordation of this “Settlement Agreement” with the Clerk of Court and the ex officio Registrar of Conveyances and Recorder of Mortgages for the [Pjarishes of Jefferson and St. Chariest,] respectively, or in some other form and manner sufficient to provide proper notice to Future Class Members of the Settlement Agreement.

The Addendum to the Settlement Agreement added the following to the above paragraph: “Additionally, Future Class Members will be given an opportunity to opt-out, and all other necessary due process rights in accordance with procedures to be established by the Court.”

Paragraph 6 of the Agreement provided that notice would be directed by the Court to the potential Present Class Members by mailing to “all members who can be identified through reasonable efforts” informing them of several factors, including information about the terms of the Settlement Agreement and that the Settlement would be binding on all Present Class Members. Potential Present Class Members would be included “if he/she does not request to opt out by a | ¿specified date, and in accordance with the provisions of this Settlement Agreement. The Court will specify the terms and provisions for opting out....”

With regard the procedure for opting-out, the Agreement stated:

Potential Present Class Members of Subclasses A and B shall be given the opportunity to disclaim their interest in this Settlement Class and shall be disassociated therefrom upon providing formal written notice, opting out of the Class in a written “opt-out” notice.... The period for opting out shall begin on the date written notice is first mailed and shall continue for a period of thirty (30) days thereafter ... an official recipient designated by the Court must receive the Notice of Opting Out from said potential Present Class Member.

At the time the Settlement Agreement was confected, the property at issue herein was owned by T.L. James & Co. (“James”). In 1998, James sold the property to Angelo Iafrate Construction (“Iaf-rate”), who then merged with and became James Construction Group (“James Construction”). RMGC Properties, L.L.C. (“RMGC”) was organized by Robert Merrick and Gregory Clayton on April 23, 2004 and purchased the James property from James on May 7, 2004. All parties agree that RMGC is a Future Class Member as defined in the Agreement. In December of 2005, RMGC entered into a Property Exchange Agreement with the City of New Orleans. The Act of Exchange was executed in June 2006. It is on this Exchange that Class Counsel seeks to enforce the six percent (6%) attorney’s fee.

The Agreement classified the airport properties as subclass “A” and Subclass “B,” according to the aircraft noise impact. The James property was, in accordance with the Agreement, classified as a subclass “B” property. There is no dispute that James did not opt-out of the class with regard to the Kenner property, although it did so on property it owned in St. Charles Parish. Class Counsel’s position is that because neither James, Iafrate, nor RMGC opted out of the class, |fithe terms of the Settlement Agreement are enforceable against RMGC. RMGC argues that Notices of the Settlement and of the OpMJut Agreement were not sufficient with regard to Future Class Members. Following a hearing, the trial court found in favor of RMGC.

Class Counsel argues that it complied with all the notice requirements of the Agreement. Henry Klein (“Klein”), testifying at the trial on behalf of Class Counsel, stated that, at the time the Agreement was finalized, a large notice of the Agreement was published in the newspapers and notices were posted in various public facilities. An opt-out card was sent to Present Class Members, and the newspaper notice also contained an opt-out form. In addition, people were told they could opt out simply by writing a letter to the opt-out clerk at the Clerk of Court’s Office. Class Counsel also recorded the Agreement in the conveyance and mortgage records of Jefferson and St. Charles Parishes. Klein further stated that it was the duty of the New Orleans Aviation Board (“NOAB”) to inform everyone that there would be a fee due if the property was transferred from any Future Class Member. According to Klein, in order for a Future Class Member, such as RMGC to opt-out, all they had to do is write a letter and send it to the opt-out clerk at the Clerk of Court’s Office. Klein testified there were no opt-out cards prepared for Future Class Members as there had been for Present Class. There were no newspaper publications after 1989, and no notices were sent out to Future Class Members. Class Counsel then apparently relied on the recordation of the Agreement and on notice from the NOAB to a seller at the time of any transfer.

RMGC received notice of the existence of the Agreement in May 2005, after its acquisition of the James property, but pri- or to the Exchange Agreement. Michael Schneider (“Schneider”), the attorney who represented RMGC in the Exchange Agreement, testified that David Halpern (“Halpern”), who represented | fithe NOAB, first informed him about the Settlement in May of 2005. Schneider requested that Halpern forward any materials in connection with the matter, and, on May 23, 2005, Schneider received a copy of the judgment adopting the Settlement.

The December 2005 Exchange Agreement contains a paragraph devoted to the Class Counsel Fee Dispute Therein it is stated that RMGC received a letter, dated June 10, 2005, from Klein pertaining to the award of attorney’s fees in the Settlement. The paragraph further states in that letter that Klein alleged that payment to class counsel would be due from RMGC if the exchange of the Exchange Properties occurs. “RMGC LLC has not determined whether any fees are due, whether there is any basis to challenge the fees, and, if any fees are due, the amount of the fees. RMGC reserves the right to dispute the payment of any fees to the class counsel in the Ursin litigation.... ” RMGC agreed to indemnify the NOAB against the amount of any fee and established an escrow account for 110 percent of the fee claimed.

In July 2006, after the Exchange was completed, Schneider communicated via email with Klein, stating that he noticed the opt-out procedure for Current Class Members and inquired as to whether T.L. James, Iafrate’s and James Construction’s predecessor in title, had opted out. He also noted that, according to the Agreement, Future Class Members would be given the opportunity to opt-out. Schneider requested that Klein inform him of the procedures that were adopted by the court for Future Members. Klein replied on July 11, answering that he was unaware that James was the predecessor in title to Iafrate. As to Future Class Members, the issue had never arisen, and that the matter would be researched. Schneider testified that he did not hear from Klein again. Thus, it appears that, at 17least as late as July 11, 2006, a definitive opt-out procedure for Future Class Members was still unresolved.

A lien affidavit, dated October 12, 1992 sworn by Klein on behalf of Class Counsel, and Patricia C. Malone, representing NOAB, was submitted into evidence. The affidavit referred to the Settlement Agreement and attorney’s fees and listed, according to the public records, “those persons in Class “A” affected hereby....” The James property was not listed as it was designated Class “B.” Klein testified that Noise Contour maps of the Class B properties were not recorded in the mortgage and conveyance office.

Michael Mancuso (“Maneuso”), an attorney qualified as an expert in title examinations, testified that, although the lien was recorded, the recordation did not attach to the property in question. Mancuso explained his method of title research, and concluded that there was no indication of the lien on the indexes, under the names of any owners of the James property.

Thomas Donelon (“Donelon”), a title expert called by Class Counsel, testified that a reasonable title examiner should have discovered the lien. He stated that in purchasing the James property with an eye toward an exchange for the NOAB property, RMGC should have checked NOAB’s title. Donelon would have found the affidavit, which listed the NOAB property.

In granting judgment in favor of RMGC, the trial court reasoned that the Agreement provided for notice to Future Class Members through recordation or “in some other form and manner.”

Class Counsel did not establish “some other” provision for notification of Future Class Members, and[,] therefore[,] relied solely on recordation. Recordation was not accomplished in a manner which would provide notice of the class settlement to those individuals contemplating a transaction involving the James Property. By invoking “recordation” as the standard for ^notification to members of the Future Class, Class Counsel obligated itself to record the Settlement Agreement in such a manner as would make it able to be found by a customary title examination....
The Addendum to the Settlement Agreement contemplates the creation of additional procedures by which Future Class members could have opted out of the class. No such mechanism was ever created or implemented. The record establishes that RMGC’s counsel specifically requested information regarding the opt out of Future Class Members, but that no information was provided by Class Counsel. “[D]ue process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court.”

At the time the Settlement Agreement was confected, notice of a proposed dismissal or compromise in a class action should be given to all members of the class “in such manner as the court directs.” In the present case, the Agreement provided for notice to Future Class Members by recordation of the Agreement in the mortgage and conveyance offices of the respective parishes or “in some other form and manner sufficient to provide proper notice.” The Addendum provided that opt-out opportunities and all due-process rights would be provided to Future Members “in accordance with procedures to be established by the Court.”

The final judgment issued in connection with the Agreement determined that “Notice to the Class, as to form, substance and method of distribution, meets the requirements of Due Process ...” and that notice was approved and homologated. Inasmuch as the Agreement contemplated the establishment of procedures yet to be determined for Future Class members, that portion of the judgment could only apply to those notice methods already specified in the Agreement.

Class Counsel avers that the procedure for opting-out as outlined in the Agreement is applicable to and sufficient for Future Class Members, as it was for | nthen-Current Members. According to Mr. Klein, all RMGC had to do to exercise its option was to write a letter to the opt-out clerk. The document requires a Class Member to submit a formal written “opt-out” notice within thirty days of the mailing of the written Notice of the Settlement. That Notice of Settlement was to contain certain information, including the composition of the subclasses, information about the terms of the Settlement, including the advantages and disadvantages, and the details regarding the payment of attorney’s fees. There is nothing to establish that the requisite Notice of Settlement was provided to RMGC in the present case. No opt-out card was provided to RMGC at any stage of these transactions. On examination, the only provision in the original Agreement for notice to Future Members is through recordation or “some other form and manner.”

Although the Agreement was duly recorded, the record establishes that the lien was never recorded as an encumbrance on the tract of land at issue. The affidavit relative to the lien admitted into evidence was limited to “Class A” properties. There is nothing to show that the Settlement was similarly recorded as to the “Class B” properties. The LDN noise exposure map was not recorded against Class B properties. The trial court accepted the expert opinion that the Agreement was not recorded in such a manner as would identify it with the James’ property chain of title and would not have been located by a title examiner through ordinary custom and practice. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. The effect and weight to be given expert testimony is within the broad discretion of the trial judge, and we see no |10abuse of discretion in this case. At least as to the James property, recordation so as to afford notice was not accomplished.

Because the only specific directive from the court regarding notice in this case required recordation, we are, thus, left to interpret the nebulous instruction of “proper notice in some other form or manner” regarding RMGC.

Klein testified that, during negotiations for the exchange in May of 2005, RMGC obtained actual knowledge of the existence of the settlement from counsel for the NOAB. Counsel then sent Schneider a copy of the final judgment adopting the Settlement. The fee dispute was acknowledged in the Act of Exchange.

The mailing of the Judgment and of the Settlement documents arguably constitutes informal or unofficial notice. Even so, the simple fact is that, for whatever reason, the procedures for Future Members to opt-out as envisioned by the Settlement Agreement were never established. In June 2005, Schneider requested information on the opt-out procedure. No response beyond Klein’s admission that the situation was unprecedented and his promise to research the issue was ever forthcoming. As the trial court implicitly found, RMGC was not provided with a vehicle to exercise its option and an opportunity to remove itself from the class by executing an “opt-out” or request for exclusion form to the court.

For the foregoing reasons, the Judgment denying the Motion to Enforce Settlement is affirmed. We remand the matter to the trial court with instructions to determine proper opt-out procedures as per the Addendum and to provide RMGC a reasonable opportunity to comply with such.

|nRMGC answered the appeal with a request for damages for a frivolous appeal. Because of the findings herein, the answer is denied.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Ursin v. New Orleans Aviation Bd., 04-885 (La.App. 5 Cir.2005), 902 So.2d 508, 509, writ denied, 2005-1349 (La.12/9/05) 916 So.2d 1065.

      . Citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985).

      . Former LSA-C.C.P. art. 594. See also, present article LSA-C.C.P. art. 594(A)(2).

      . Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838.

      . Lanosa v. Harrison, 2002-0026 (La.App. 4 Cir. in/02), 828 So.2d 602, writ denied, 2002-2512 (La. 11/27/02) 831 So.2d 286.

      . See, e.g.. Speaks v. New York Life Ins. Co., 96-2483 (La.App. 4 Cir. 4/30/97), 693 So.2d 340, writ denied, 97-1516 (La.9/26/97), 701 So.2d 987.

      . See, Phillips Petroleum Co., supra.


author: CLARENCE E. McMANUS, Judge.

text:
    Teresa MURA v. Kara E. FUOCO, Shawn Walsh, Leann Walsh, Frederick J. Fuoco, & State Farm Mutual Automobile Insurance Company, et al.
    No. 08-CA-393.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Rehearing Denied Feb. 23, 2009.

      Craig J. Robichaux, Talley Anthony, Hughes & Knight, Attorney at Law, Mandeville, LA, for Plaintiff/Appellant.
    William Ryan Acomb, Michele L. Trow-bridge, Porteous, Hainkel & Johnson, Attorneys at Law, New Orleans, LA, Thomas G. Buck, John C. Henry, Brett W. Twee-del, David B. Parnell, Jr., Blue Williams, Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

|»On August 12, 2004, plaintiff, Teresa Mura (“Mura”) and Kara Fuoco (“Kara”) were involved in an automobile accident. At the time of the accident, Kara was driving a 2002 Mazda owned by her stepfather, Shawn Walsh. Kara’s mother, Leann Walsh, and her father, Frederick Fuoco (“Fuoco”), were divorced. Her parents had joint custody with her mother as domiciliary parent and visitation for her father.

The Mazda vehicle and Shawn Walsh, as owner, was insured by State Farm Mutual Automobile Insurance Company. On May 12, 2005, Mura filed suit against Kara, Shawn and Leann Walsh, Frederick Fuo-co, and State Farm, as the Walsh’ insurer for the Mazda. Mura then filed a First Supplemental and Amended Petition to add State Farm Mutual Automobile Insurance Company, as the insurer of Frederick Fuoco for a 2001 Lincoln LS, which was not involved in this accident.

State Farm filed a Motion for Summary Judgment arguing the policy issued to Fuoco did not provide coverage for Kara driving the 2002 Mazda since it was not a newly' acquired, temporary substitute, or non-owned vehicle. Mura filed a cross motion for summary judgment. Both motions were heard on December 6, 2006. The trial court granted State Farm’s motion in part holding that Kara was not an insured under Fuoco’s policy and denied the motion in part, without prejudice, regarding the issue of whether there was coverage for Fuoco’s vicarious liability. Mura did not appeal that judgment.

_JjMura then filed a Second Supplemental and Amended Petition for Damages adding State Farm Fire and Casualty Company, as Fuoco’s homeowner’s insurer. Thereafter, Mura settled her claim against Leann and Shawn Walsh and State Farm under the Walsh policy for policy limits. Mura dismissed her claims against the Walshes and State Farm under this policy, but reserved her rights to proceed against State Farm under the Fuoco policies.

State Farm Fire and Casualty, as Fuo-co’s homeowner’s insurer, then filed another motion for summary judgment, which was heard before the trial court on May 1, 2007. The trial court issued a judgment August 27, 2007 granting summary judgment in favor of State Farm.

Mura then filed a motion for summary judgment. State Farm Mutual Automobile Insurance Company also filed a motion for summary judgment regarding whether or not Frederick Fuoco’s State Farm auto policy for the 2001 Lincoln provided coverage for Fuoco’s vicarious liability for Kara’s use of the Mazda. These motions were heard on December 4, 2007 and on December 17, 2007, the trial court denied Mura’s motion and granted State Farm’s motion, dismissing all Mura’s claims.

Mura now appeals both the judgment granting summary judgment in favor of State Farm Mutual Automobile Insurance Company dated December 17, 2007 and the judgment granting summary judgment in favor of State Farm Fire & Casualty Insurance Company dated August 27, 2007. For the reasons which follow, we affirm both judgments.

DISCUSSION

This appeal involves the granting of two motions for summary judgment.

State Farm Homeowners’ Insurance Policy

5Fuoco had a homeowners’ insurance policy with State Farm at the time of the accident. Mura claims there is coverage for her injuries under this policy because Fuoco is vicariously liable for the negligent acts of his daughter, Kara. State Farm contends there is no coverage for the claims of Mura because the policy does not provide any coverage for injuries which arise out of an automobile accident.

We agree with the trial court and find that there is no coverage for this claim under the Fuoco homeowners’ insurance policy with State Farm. First, the policy contains an automobile use exclusion and provides coverage under the policy does not apply to:

e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:
(2)a motor vehicle owned or operated by or rented or loaned to any insured; or
In this case, Mura’s injuries arose out of the use of an automobile by Kara.

In addition, there is no coverage under this policy for Fuoco’s vicarious liability of any negligent acts by his daughter, Kara. The homeowners’ policy states that there is no coverage for:

f. bodily injury or property damage arising out of:
(3)any liability statutorily imposed on any insured; or
with regard to the ownership, maintenance or use of any ... motor vehicle ... which is not covered under Section II of this policy.

The vicarious liability of Fuoco, that Mura claims, is statutory liability imposed by L.S.A.-C.C. art. 2318. Therefore, a clear reading of the policy indicates there is no coverage for this vicarious liability, which is statutorily imposed.

| (¡Further, at the time of the accident, Kara was still a minor child under the joint custody of her father, Fuoco, and her mother. Under the terms of the policy, Kara herself would be considered an insured. However, even if considered to be an insured under the policy, there is no coverage for Mura’s claims because her injuries arose out of the use of an automobile.

Thus, we find no coverage for Mura’s claims against Kara and Frederick Fuoco under Fuoco’s homeowners’ insurance policy with State Farm and we find the trial court correctly granted summary judgment in favor of State Farm Fire & Casualty Company.

State Farm Automobile Insurance Policy

Mura asserts that there is coverage under Fuoco’s automobile liability policy with State Farm because the act of his daughter driving the Mazda constitutes “use” by Fuoco under the policy and Fuo-co is vicariously liable for the acts of his daughter. The State Farm policy only lists Fuoco as the insured and a 2001 Lincoln LS is the only insured vehicle listed. Neither Fuoco nor the Lincoln were involved in the accident.

The State Farm policy provides that State Faxm will:

1. pay damages which an insured becomes legally liable to pay because of:
a. bodily injury to others, and
b. damage to or destruction of property including loss if its use,
caused by accident resulting from the ownership, maintenance or use of your car; and

In this case, “your car” is referring to the only vehicle listed on the policy, the Lincoln. The policy goes on to provide for coverage for the use of other cars, but liability coverage extends only to the use, by an insured, of a newly acquired car, a temporary substitute car or non-owned car.

17First, Kara is not an insured. Second, she was not using a newly acquired car, temporary substitute or non-owned car. Kara was driving a car owned by her mother and stepfather. Fuoco was the only listed insured on the policy. Therefore, we find there was no coverage for Kara or the Mazda under this policy.

Further, we find there is no coverage under this policy for any alleged vicarious liability of Fuoco for his daughter’s actions. The policy states there is coverage for “damages which an insured becomes legally liable to pay because of bodily injury to others ... caused by [an] accident resulting from the ownership, maintenance or use of your car.” As stated above, “your car” refers to the Lincoln owned by Fuoco. This accident did not result from the ownership, maintenance or use of the Lincoln.

Mura argues there is coverage because Kara’s “use” of the Mazda is the same as Fuoco’s “use” of the Lincoln since he is vicariously liable for his daughter’s actions. This is incorrect. Fuoco is the insured and he was not driving the Mazda, nor was he present or involved in the accident. Therefore, Fuoco, the insured, was not in “use” of the insured vehicle at the time of the accident and there is no coverage under this policy. Further, we find Fuoco’s vicarious liability for the acts of his daughter does not constitute “use” and is not covered under the policy.

Accordingly, we affirm the trial court’s judgments granting summary judgment in favor of both State Farm Fire & Casualty Insurance Company and State Farm Mutual Automobile Insurance Company, dismissing all claims of Mura.

AFFIRMED.

GUIDRY, J., concurs.


author: DREW, J.

text:
    Curtis JOHNSON, Plaintiff-Appellee, v. BOSSIER PARISH SCHOOL BOARD, Defendant-Appellant.
    No. 43,817-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 21, 2009.
    Rehearing Denied Feb. 19, 2009.

      Hammonds & Sills by Linda Kay Ew-bank, Jon Keith Guice, Baton Rouge, for Appellant.

      Davis Law Office, LLC by S.P. Davis, Andrew Lee Randall, Jr., for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

|,In this workers’ compensation matter, the Bossier Parish School Board (“Board”) appeals a judgment ordering the reinstatement of wage benefits, the payment of attorney fees, and the assessment of a penalty.

We affirm.

FACTS

Curtis Johnson was employed as a janitor at Plain Dealing Elementary School. He begin working there in 1984 when he retired from the Army after 26 years of service. On July 13, 1999, Johnson was riding on a lawn tractor mowing the grass at the school when the tractor struck a large hole, causing his abdomen to strike the steering wheel and aggravating a preexisting abdominal hernia. According to the physician who examined Johnson for a utilization review, the trauma caused a hematoma and probably led to the formation of fistulas.

Johnson went home, returned to work the next day, and was told to go back home because of a bad abdominal bruise. After seeking medical treatment, he subsequently underwent several surgeries for the placement of mesh to close the abdominal incision, and to deal with infections associated with the mesh.

Johnson returned to work and was helped by others to do his job. He retired in June of 2001 because he was no longer able to do his job and because of the risks associated with his hernia.

The Board initially disputed that Johnson’s condition had been caused by the accident. However, in November of 2002, the parties reached 12a settlement in which the Board agreed to pay $34,318.17 to Johnson in past compensation benefits, attorney fees, and penalties.

The Board is self-insured. A claim abstract from Hospital Services of Louisiana, Inc. (“HSLI”), the third-party claims administrator for the Board, reflects that Johnson received:

• A temporary total disability (“TTD”) payment of $863.20 for November of 2002.

• Monthly “wage loss” payments of $863.20 from December of 2002 to September of 2003.

• Monthly TTD payments of $863.20 from October of 2003 to March of 2005.

On April 15, 2005, Linda Hollingsworth, an adjuster for HSLI, wrote to Johnson’s counsel that because Johnson returned to work but then retired in 2001, his benefits were to be changed to Supplemental Earnings Benefits (“SEB”). Johnson asserted that this move was arbitrary and capricious and the current litigation ensued. HSLI’s claim abstract shows that Johnson received monthly “wage loss” payments of $863.20 from April 2005 to October 2005 and a monthly “SEB Adjustment” of $863.20 from November 2005 to May 2007.

On April 20, 2007, counsel for the Board wrote to Johnson’s counsel that SEB should have terminated on March 31, 2007, as that totaled 104 weeks of payment. Counsel further wrote that SEB would continue to be paid under protest. Nevertheless, these payments were stopped the next month.

| ^Following a trial on the merits, the WCJ ruled in Johnson’s favor. The WCJ concluded that: Johnson’s decision to retire was entirely for medical reasons; he had been rendered permanently and totally disabled by the July 1999 accident; and the Board acted arbitrarily and capriciously in changing Johnson’s disability from TTD to SEB, and then terminating SEB. The Board was ordered to reinstate wage benefits of $862.00 retroactively beginning with the June 2007 payment but excluding the August 2007 payment. The Board was assessed a penalty of $2,000.00 and ordered to pay attorney fees of $3,500.00.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

14Level of Disability

The Board first argues on appeal that the WCJ erred in finding that Johnson had been permanently and totally disabled by the 1999 accident.

The relevant provisions regarding permanent total disability are found in La. R.S. 23:1221(2), which states:

(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
* * * * *
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Johnson’s duties as janitor included maintaining the outside of the school and keeping one building clean. He mowed the grass, cut hedges, and trimmed weeds. This yard work, which Johnson described as heavy duty, would be done two to three days a week during the spring and summer. He cleaned the building by emptying the trash cans, mopping and sweeping on a daily basis, and waxing the floors twice a week. His job required him to lift objects, as well as to stoop and bend regularly.

| r,Johnson had no problems doing his job before the accident. Two student workers would help him after school, but he did not need anyone to physically help him perform his job. Johnson also said that his high blood pressure and diabetes did not keep him from doing his job prior to the accident.

Johnson was unable to physically perform his job when he returned to work after the accident. He was limited to light-duty work, but according to Sara Perkins, the head custodian at Plain Dealing Elementary, the school did not have light-duty work for him to do, so accommodations were made. Student workers helped Johnson in the afternoon, and Perkins’ husband was paid out of the school’s benevolent fund to do the heavy work for Johnson.

Johnson was basically allowed to do little more than push a broom. In addition, Johnson was allowed to return home once in the morning and once in the afternoon in order to bathe and to have his bandages changed.

Johnson believed that if he continued working even with the accommodations, he risked a dangerous situation involving his hernia, and this belief was not unfounded.

Dr. Michael Banda first met Johnson in 2000 when he was being treated by Dr. John Austin. Dr. Banda assisted Dr. Austin in a surgery to remove a small intestinal fistula caused by erosion of the small intestine into the mesh.

Dr. Banda began treating Johnson in January of 2001 after Dr. Austin retired. He performed surgery that year on Johnson because an abscess had formed over the prior wound site. Dr. Banda wrote in October of 2001 that | Bthe mesh used in the hernia repair had become infected, and that Johnson had been unable to return to work because of his open wounds and was currently being treated for those wounds. The infections associated with the mesh were a recurring problem.

In September of 2002, Dr. Banda wrote that several surgeries had been performed on Johnson to drain and debride abscesses associated with the mesh. The mesh was completely removed in January of 2002 and was not replaced because of his history of infections associated with the mesh. Johnson was left with a very large anterior abdominal wall hernia, meaning there was only a thin layer of skin and tissue over his abdominal organs. Dr. Banda believed that this condition prevented him from returning to his pre-accident employment as a janitor. Dr. Banda wrote that activities such as stooping, bending, lifting, climbing, and operating machinery would be painful as well as dangerous. Dr. Banda thought that although Johnson’s condition was permanent, Johnson could work in a job limited to sitting and work of a clerical nature. Dr. Banda considered Johnson to be permanently disabled from a functional/physical standpoint. In a December 2005 letter, Dr. Banda again wrote that from a functional/physical standpoint, he considered Johnson to be permanently disabled.

Dr. Banda was deposed in 2007. He explained that when he wrote in 2005 that Johnson was disabled, he was specifically referring to janitorial work. The statement of disability in the 2002 letter was in reference to employment in general. Johnson’s medical condition had not changed between 2002 and 2005.

|7Pr. Banda recognized the precariousness of Johnson’s hernia. He explained that Johnson’s intestines are basically outside the abdominal cavity and are protected by one layer of skin, which presents the risk of devastating consequences from something as minor as a little poke. At the time of his deposition, Dr. Banda thought that Johnson was fully disabled and should not be in the work force.

Dr. Banda recommended that Johnson stoop no longer than necessary to pick up a newspaper, bend no longer than necessary to remove a shoe or grab a chair, and lift no more than a plate of food. He thought Johnson would become uncomfortable after sitting in one position for more than 30 minutes or standing for more than 5-10 minutes.

Johnson was approximately 64 years old at the time he retired. He has never had secretarial or clerical training. No training for any different job was offered to him. He was never subjected to a Functional Capacity Evaluation, and he has never been referred to a vocational counselor.

It appears from the record that Johnson was well liked by his coworkers at Plain Dealing Elementary, and they did all they could to help him maintain his job for as long as possible. They apparently wanted Johnson to feel useful in spite of his serious injury, as he was even told that although there was no light duty work for him to do, he was still needed at the school to keep the students in line because they respected him as a retired veteran.

| ¡¿Based upon this record, we cannot conclude that the WCJ was clearly wrong in finding that Johnson was permanently and totally disabled as a result of the 1999 accident.

Retirement

The Board next argues that the WCJ erred in finding that Johnson retired for medical reasons. The Board asserts that Johnson voluntarily left the work force after he completed the Deferred Retirement Option Program (“DROP”).

Frank Rougeau, Director of Finance for the Board, explained that all the workers’ compensation claims by school employees come through his office. Rougeau also explained that an employee actually retires when he enters DROP even though he continues working.

Johnson entered DROP in August of 1997, and would have completed DROP when he retired in June of 2001. The purpose of entering DROP was not to retire but to divert his retirement withholding into a special DROP account and not to the retirement system for a period of three years. Actual retirement is not required at the end of the three-year DROP period, and continued employment is not uncommon, as Rougeau confirmed that numerous employees continue working past the end of the DROP period. Rougeau was never advised that Johnson was retiring because of his medical condition.

Johnson testified that he did not want to retire, but did so on the advice of his doctor. He was going to retire in February of 2001, as advised by Dr. Banda, but the school’s principal wanted him to wait until the end of Rthe school year. Although Johnson had heart valve surgery shortly after he retired, Dr. Banda did not think his heart disease and diabetes were disabling as they predated the accident.

Dr. Banda testified that he was not really aware that Johnson had retired in 2001. However, Dr. Banda agreed that Johnson left the work force because he was medically unable to perform that job. Dr. Ban-da also stated he had no reason not to believe Johnson’s account that after surgery in 2001 he recommended that Johnson retire.

Johnson was placing himself at risk of infection or even death by continuing to work, even with accommodations. He recognized this risk and retired. There was no manifest error in the WCJ’s finding that Johnson’s retirement was medically necessary.

Judicial Confession

The Board contends that the WCJ erred in finding that the 2002 settlement was a judicial confession that Johnson was temporarily and totally disabled. In the oral reasons for judgment, the WCJ noted “a settlement agreement in which there [was] basically a judicial confession that Mr. Johnson is temporarily and totally disabled .... ” The Board argues that there is no admission, indication, and/or stipulation anywhere in the settlement documents as to the type of wage benefits being settled therein. However, the settlement documents cannot be examined in isolation.

What led to the settlement was a dispute over whether Johnson’s injuries had been caused by the accident. According to the joint petition for | l0approval of settlement, the Board agreed to bring Johnson’s “compensation benefits up to date and to pay such benefits prospectively.” The reason the settlement documents cannot be examined in isolation is that the settlement was treated by the Board as applying to benefits for temporary total disability. The Board’s own exhibit, the HSLI claim abstract, gives the settlement the designation of “TEMP TOT DIS.” This is also the same designation used for the payments made on November 20, 2002, and from October 22, 2003, to March 22, 2005.

We find no error in the WCJ treating the settlement as a judicial confession that Johnson was temporarily and totally disabled.

Penalty and Attorney Fees

In its final assignment of error, the Board contends the WCJ erred in awarding attorney fees and assessing a penalty for changing benefits to SEB and then terminating them.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Young v. Christus Schumpert Medical Center, 39,593 (La.App.2d Cir.5/11/05), 902 So.2d 1180; Lee v. Schumperi, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214. Nevertheless, a WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La. App.2d Cir.6/24/98), 715 So.2d 112.

La. R.S. 23:1201(1) states, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not|nto exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

The phrase “arbitrary and capricious” as used in this context has been defined as follows:

Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.

Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/01/98), 721 So.2d 885, 890 (citations omitted).

Hollingsworth, the adjuster at the time the benefits were switched to SEB and then terminated, did not testify. She had retired in November of 2007. Patrick Blanchard, a litigation specialist and regional operations manager from HSLI, testified, but his personal knowledge of this matter was very limited as he had reviewed the case file only to prepare for testimony about the dates and the amounts of checks sent to Johnson. Blanchard had never spoken with Hollingsworth about the file, or about her basis for changing Johnson’s benefits. Blanchard believed that the basis for Hollingsworth changing the benefits from TTD to SEB was that Johnson had retired on regular retirement status and not on disability retirement status. The April 2005 letter from Hollingsworth to Johnson’s counsel states as much. Blanchard also believed that the reason Hollingsworth terminated SEB was that Johnson had received them in excess of 104 weeks.

112Rougeau discussed with Hollingsworth that Johnson was in DROP and had retired. Hollingsworth would normally make recommendations to the Board about whether or not to pay benefits, and Roug-eau would make the final decision. Roug-eau decided to switch benefits from TTD to SEB, and then to terminate benefits, because Johnson had voluntarily retired.

Johnson retired in 2001. Benefits were switched to SEB four years after Johnson’s retirement. If the retirement was the Board’s motivation, they certainly did not act with much haste. Rougeau could not answer why the TTD benefits were not terminated immediately upon Johnson’s retirement. Rougeau never talked to Johnson, Dr. Austin, Dr. Banda, or Dr. L. Keith Mason, the utilization review physician, before making his decision. In light of this, we cannot conclude the WCJ abused its discretion in assessing a penalty and awarding attorney fees.

CONCLUSION

With the Board to pay appeal costs of $145.50, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . A payment was sent in error in August of 2007.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Gregory CARMEN.
    No. 08-KA-478.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Rehearing Denied March 9, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Juan C. Labadie, Attorney at Law, Gret-na, Louisiana.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|aThe Jefferson Parish District Attorney filed a bill of information charging defendant, Gregory Carmen, with theft of a laptop computer valued at over $500, in violation of LSA-R.S. 14:67. Defendant was arraigned and pled not guilty. The State subsequently amended the bill of information to charge defendant with theft of property valued over $1,000, in violation of LSA-R.S. Defendant was arraigned on the amended bill and pled not guilty. On September 26 and 27, 2007, the case was tried before a six-person jury which found defendant guilty as charged. Defendant filed a motion for new trial, which was denied on October 22, 2007. On November 5, 2007, the trial court sentenced defendant to imprisonment at hard labor for two years, suspended this sentence, and placed him on active probation for three years. Defendant appeals. FACTS

| ;,On May 21, 2004, Susan Dreier approached a security checkpoint at Louis Armstrong International Airport on her way to board a flight. She placed her employer’s laptop computer on the x-ray machine, but forgot to retrieve it after it was scanned. Shortly thereafter, Dreier discovered that the laptop was missing, so she returned to the checkpoint to inquire about it. Dreier became very upset when the laptop could not be located, so David Ricks, a lead screener, called for a screening manager. Agents Francis Ruholl and Billy Booth, both screening managers, responded to the call.

After Dreier informed them of the situation, Agents Ruholl and Booth asked Ricks and defendant, Gregory Carmen, who was another lead screener, if they had seen the laptop. Defendant and Ricks both said they did not remember a laptop being left at the checkpoint. They started looking in bins and around the area, but did not find it. Afterwards, Agent Ruholl went to lost and found, but he was informed that no laptop had been turned in that afternoon. Agents Ruholl and Booth then viewed videotaped surveillance of the area in an attempt to locate the missing laptop.

On the videotapes, Agents Ruholl and Booth observed Dreier passing through the checkpoint and leaving the laptop behind. Defendant moved the laptop down to the end of the table where people normally picked up their belongings, and it sat there. He then put the laptop into a gray bin where it sat for about a minute. He picked up the bin and placed it on an x-ray unit where it sat for approximately three minutes. Defendant picked up the bin again and took it to the back of the checkpoint where he placed it on top of an unused explosive detection machine.

14The bin, which contained the laptop and a watch, stayed on the explosive detection machine for approximately 14 minutes. During that time, Ricks returned the watch to a passenger who was looking for it. Ricks then picked up the bin and took it to lane one where he placed it on top of the x-ray machine, and it sat for several minutes. Afterwards, defendant picked up the bin and took it to the supervisor’s area where he stayed for a very short period of time. He was out of view at that time as there were no cameras inside that area.

When defendant returned into camera view, he went underneath a light carrying the bin. From that camera angle, both Agents Ruholl and Booth stated that they could see a laptop in the bin. Defendant proceeded to walk toward the entrance to the checkpoint with the bin on his shoulder and walked out into the terminal with the bin. The laptop, which was worth $2,038.65, was never brought to lost and found and was never recovered.

As they viewed the videotaped surveillance in order to determine what happened to the laptop, Agents Ruholl and Booth would stop watching the videotape at certain points to go back to the checkpoint and ask defendant about the laptop. Although defendant had initially denied having any knowledge of a laptop left behind, when Agent Ruholl asked defendant what happened to the laptop that he moved to the explosive detection machine, defendant responded that he remembered seeing it. Agent Booth went back to the checkpoint as well and asked defendant about the laptop, and defendant said he may have moved it because they were very busy. After watching the videotapes, Agent Ru-holl called his supervisor and told him what he and Booth had seen on the tapes. Agents Ruholl and Booth were instructed to do nothing more, and their supervisor said that he would handle the matter from there.

| ^Approximately one month later, Detective Michael Miller of the Jefferson Parish Sheriffs Office took defendant into an office to interview him. After he advised defendant of his rights, defendant waived them and said he did not take the laptop. Detective Miller searched defendant’s house in Baton Rouge with his wife’s consent, but the laptop was not there. They also looked inside the windows of defendant’s truck, but did not see a laptop inside. Detective Miller heard that Michelle Glapion, an employee shuttle bus driver, had seen defendant carrying what appeared to be an expensive laptop computer on the employee shuttle on the day of the incident. He tried to interview her, but she did not return his call.

Agent Booth testified that defendant’s actions on the videotapes did not comply with any Transportation Security Administration (TSA) policy. He explained that defendant did not do anything that he was supposed to do that day with respect to the laptop. Agent Ruholl could not offer any logical explanation as to why defendant would move the laptop all over the checkpoint. The agents explained that the policy was, when an employee finds something that is left behind on the checkpoint, he should turn it over to a supervisor, who in turn writes down on a tag when it was found, what lane it was found in, the time it was found, and the characteristics of the item. Afterwards, it is turned into lost and found.

After the State rested its case, defendant took the stand and testified that he did not take the laptop. He claimed that he moved the laptop to different locations to get it out of the way of the mainstream of traffic so it would not be damaged. He also claimed that if a passenger had come back to look for a missing item that day, the passenger would have been more likely to see it on the explosive detection machine where he had put it. He said that Dreier had come through lane two and |fithat she would probably not have looked in lane one for her laptop where Ricks had inexplicably put it.

Defendant explained that he followed TSA policy by bringing the laptop to the supervisor’s office and that the supervisor generally takes the item to lost and found. He indicated that the bin he took out of the checkpoint area and into the terminal, as shown on the video surveillance, did not contain the laptop. Rather, he contended that it was an empty bin that he saw in the supervisor’s area and he took it to the bathroom in the terminal to clean it because it was soiled. Although he carried the bin on his shoulder into the terminal, he stated that it was not heavy. He admitted that if a person had been standing next to him when he had the bin on his shoulder, he or she could not have seen what was inside.

DISCUSSION

In his second assignment of error on appeal, defendant argues that his conviction must be overturned, because when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have concluded beyond a reasonable doubt that the State proved every element of the offense. He also argues that the State failed to exclude every reasonable hypothesis of innocence, as the evidence showed that David Ricks (the other lead screener), Michelle Glapion (the shuttle bus driver), or another person in the supervisor's area could have taken the laptop. He further maintains that none of the State’s witnesses had personal knowledge of the facts of the case. The State responds that the evidence was sufficient to prove the essential elements of the crime beyond a reasonable doubt.

|7In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). In cases involving circumstantial evidence, the trial court must instruct the jury that, “ ‘assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude evei’y reasonable hypothesis of innocence.’ ” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must “determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

In order to support a conviction for theft pursuant to LSA-R.S. 14:67, the State is required to prove that the defendant misappropriated or took, a thing of value, that belonged to another, without the consent of the owner, and that he had the intent to deprive the owner permanently of that which was misappropriated or taken. State v. Hebrard, 94-410, p. 2 (La.App. 5 Cir. 1/31/95), 650 So.2d 352, 353.

In the instant case, the State presented the testimony of three agents who saw defendant, on surveillance videotapes, put the laptop into a bin and move it to different locations at the checkpoint in violation of TSA policies. The agents also |Rtestified that defendant eventually put the bin containing the laptop on his shoulder and carried it away from the checkpoint into the terminal. The laptop was never found. Defendant denied taking the laptop. He contended that he took the bin containing the laptop to the supervisor’s office and left it there. He explained that he subsequently took an empty bin into the terminal to the bathroom to clean it because it was soiled. The jury viewed surveillance tapes of the incident.

After listening to the testimony of the witnesses and viewing the videotaped surveillance, the jury obviously found the State’s witnesses more credible than defendant and rejected defendant’s version of the incident. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Defendant argues that the State failed to exclude every reasonable hypothesis of innocence because Ricks, Glapion, or someone in the supervisor’s area might have taken the laptop. The agents testified that the videotapes showed that Ricks moved the bin containing the laptop, and Detective Miller testified that Ricks was rude and irritable during his interview and refused to answer further questions without his lawyer present. However, the evidence shows that Ricks only moved the bin containing the laptop one time and that defendant handled the bin after Ricks moved it. Additionally, although the agents testified that the videotapes showed that there was a person in the supervisor’s area when defendant went there with the bin containing the laptop, the jury obviously believed that defendant had the laptop in the bin he carried out of the checkpoint area and into the terminal. Also, although Detective Miller heard that Glapion, the shuttle bus driver, might have seen defendant carrying a laptop on the employee shuttle bus on | flthe day in question, none of the agents were able to speak to her and there is no evidence that she was involved in the theft. There was no evidence to reasonably suggest that Ricks, Glapion, or an unnamed person in the supervisor’s area took the laptop. Thus, the alternative hypotheses argued by defendant were not sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

Despite defendant’s claims, there is strong circumstantial evidence that defendant took the laptop. Several witnesses testified that they saw defendant, on the videotapes, walk away from the checkpoint and into the terminal carrying the bin containing the laptop. Further, the jurors viewed the surveillance videotapes and were able to make their own determinations regarding what the video showed. Even if the jurors could not see in the videotapes whether the laptop was in the bin that defendants took into the terminal, the circumstantial evidence suggested that it was. Defendant admitted that when he carried the bin on his shoulder out of the checkpoint area, a person standing next to him could not see what was inside. Further, it was reasonable for the jury to disbelieve defendant’s contention that he saw an empty soiled bin in the supervisor’s area and that he was taking it to a bathroom in the terminal to clean it. In addition, the jury heard testimony from the agents that defendant’s actions regarding the laptop were not in compliance with TSA policy.

Based on our review of the entire record, including the videotaped surveillance, we find that when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of theft of the laptop. Accordingly, because the evidence was sufficient to support defendant’s conviction, this assignment of error is without merit.

|]0In his first assignment of error, defendant argues that the district court committed legal error by allowing a non-expert, state witness to testify while the videotaped surveillance was played, over defendant’s objection that the video speaks for itself. Defendant specifically argues that the jurors should have been able to decide for themselves whether they saw the laptop in the bin that he was carrying when he exited the supervisor’s area and returned to the camera’s view. He notes that the contents of the videotape were essentially the State’s entire case.

The State responds that the trial court acted within its discretion when allowing the agent to testify as to how his investigation proceeded and how his perceptions and inferences drawn from the videotape led to defendant’s arrest. The State further responds that defendant has failed to show how he was prejudiced by the agent’s testimony, as the agent was subject to cross-examination by defense counsel, and the jury was free to accept or reject the agent’s testimony.

At trial, Agent Robert Klipp identified six CDs that were given to him by Richard Ridensky, the assistant federal security director for screening. Klipp testified that the CDs showed the videotaped surveillance at the airport on the day of the incident. While the CDs were playing for the jury, Klipp explained what they showed. He first pointed out the victim walking through the checkpoint and leaving her laptop. He then pointed her out again, noting that the next frame was the same time as the other camera, but a different angle.

As Klipp was explaining what was occurring on the first CD, defense counsel lodged an objection to the testimony, arguing that the video spoke for itself. The trial judge overruled the objection, and the witness continued testifying while the CD was being played. Klipp subsequently fast-forwarded the CD and told the jury that they were seeing defendant placing a laptop into a gray bin. After Klipp continued telling the jury what was being shown on the CD and what they |nwere about to see, defense counsel objected again, arguing that the testimony was a narrative and that the witness was not responding to questions. The trial judge apparently agreed and told the prosecutor to ask the witness questions.

Afterwards, the record reflects that the prosecutor began asking questions of the witness, to which he responded. When Klipp began telling the jury that they were about to see Ricks return a watch to a passenger, defense counsel objected, arguing that the witness should not be allowed to tell the jury what they were about to see. Defense counsel noted that at one point, the witness identified defendant on the CD even though the camera did not show his face. He contended that by the time the CD showed defendant going under the light with the bin, the witness would have conditioned the jurors to accept what he was saying as true. The trial judge responded that defense counsel would get an opportunity to cross-examine the witness to show any mistakes he might have made, and he noted defense counsel’s objection. The prosecutor continued asking Klipp questions regarding the CDs.

During the CD that depicted defendant leaving the checkpoint area, the prosecutor asked Klipp if the gray bin shown was the same bin defendant had been carrying all afternoon. Defense counsel objected based on speculation, arguing that defendant went off camera and returned back onto the camera. The trial judge asked the prosecutor to rephrase the question. Afterwards, the prosecutor asked the witness to move the tape forward and show the jurors how he knew that it was the same bin. The witness did so and then testified, “there is a gray object inside this bin right here.” The prosecutor asked the witness whether that gray object resembled the gray object that was formerly identified as the laptop that had been previously placed into the bin. The witness answered affirmatively. Defense _Jj2C0unsel objected as to speculation, and the trial judge overruled the objection. The witness then concluded his testimony.

The courts have routinely allowed witnesses to comment on the contents of a film or videotape if the testimony helps explain it. State v. Debroiv, 33,592, p. 10 (La.App. 2 Cir. 6/21/00), 763 So.2d 791, 798, writ denied, 00-2221 (La.10/5/01), 798 So.2d 957. If a lay witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. LSA-C.E. art. 701. The reviewing court must ask two pertinent questions to determine whether the trial court properly allowed such testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness’s observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. State v. Casey, 99-23, p. 12 (La.1/26/00), 775 So.2d 1022, 1033, cert denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

In the present case, the surveillance CDs show numerous passengers placing their belongings on x-ray machines, walking through metal detectors, collecting their belongings afterwards, and passing through doors carrying their belongings. The CDs also show airport employees assisting passengers through this process. Without the testimony of Agent Klipp, it would have been very difficult for the jurors to identify the victim and defendant on the CDs. It would have also been nearly impossible for the jurors to know where to look to see the laptop being placed into the bin and moved around the checkpoint, since there was so much activity at the checkpoint at that time. The jurors likely would have been confused without the agent’s testimony, especially since there were many different camera | ^angles on the CDs. Also, it was necessary for Agent Klipp to testify that he saw a gray object on the CD that resembled Dreier’s laptop in the bin that defendant carried out of the terminal, since this testimony explained why the agents arrested defendant for stealing it.

The testimony of Agent Klipp, a non-expert witness, was not speculative opinion evidence. Rather, his testimony was comprised of facts and inferences from facts based upon his observations of the CDs. It was admitted to assist the jurors to understand what was being shown on the CDs and to explain the course of his investigation which culminated in defendant’s arrest. Further, defense counsel cross-examined Agent Klipp regarding the CDs. Also, the jurors saw the CDs and, therefore, were free to accept or reject Agent Klipp’s testimony and draw their own conclusions.

Based on the foregoing, we find no error in the trial court’s decision to allow Agent Klipp to testify regarding what was happening on the CDs while they were playing. Accordingly, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . The amended bill of information charges defendant with theft of property valued over $1000. LSA-R.S. 14:67 B(l) provides the punishment for theft of property valued over $500. There is no separate category for theft of property valued over $1,000, so theft of property valued over $500 applies in this case. State v. Ramsdell, 06-644, p. 2 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 513.

      . The surveillance system had recently been covertly installed due to problems with employee theft.

      . The surveillance videotapes were shown to the jury during the testimony of Agent Robert Klipp, who on the day in question was the Acting Assistant Federal Security Director for Law Enforcement for the Transportation Security Administration (TSA).

      . Defendant was not arrested on the day of the incident because the airport directors did not want to jeopardize the investigation into thefts by the baggage handlers.

      . When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Guillara, 04-899, p. 9 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1070, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233.