author: Per Curiam.

text:
    Alfred James SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4089
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Alfred James Scott appeals the trial court's order modifying his probation. Because the State failed to prove that Scott willfully violated a substantial condition of his probation, we reverse.

Scott entered an open plea of guilty to one count of selling marijuana. Since he had no prior record, the trial court withheld adjudication of guilt and imposed twenty-one months' probation and a ninety-day jail sentence, which the court suspended based on Scott's assurances that he had secured a job at Home Depot. A few months later, the State filed an affidavit alleging Scott violated probation by failing to obtain employment with Home Depot. It was undisputed that Scott had obtained employment-in fact, he had two jobs totaling sixty hours per week-but he did not get the job at Home Depot. As a result, the court concluded that Scott willfully and substantially violated his probation, and it modified his probation to impose the jail time.

Scott argues the trial court erred in finding a willful and substantial violation of probation based on a condition not imposed by the trial court. We agree. The transcript of the original sentencing hearing reflects a discussion regarding employment at Home Depot, but the actual condition of probation imposed by the court was that Scott obtain a full-time job or show good faith efforts to do so. Specifically, the court explained,

And if he doesn't get a job [at Home Depot], in addition to the 90 days - well, the condition of probation is he gets a job, full-time job, or show at least five applications per week until he gets a job.

The written probation order is consistent with the court's oral pronouncement. Indeed, the State concedes that the court did not impose employment at Home Depot as a condition of probation, instead arguing it was a "separate agreement" that governed Scott's suspended sentence. However, the "language used in a condition of probation is determinative of a probationer's duties and responsibilities while on probation." Odom v. State , 15 So.3d 672, 677 (Fla. 1st DCA 2009) (quoting Stanley v. State , 922 So.2d 411, 414 (Fla. 5th DCA 2006) ). Because the State's evidence did not show that Scott failed to obtain a full-time job, the court erred in finding a willful and substantial violation of probation.

REVERSED and REMANDED .

Rowe and Ray, JJ., concur; Makar, J., concurring in result with opinion.

Thirty-two-year-old Alfred James Scott, who had no prior criminal record, pled guilty to one count of selling marijuana. At the sentencing hearing, the trial judge imposed a ninety-day suspended sentence with twenty-one months of probation thereafter. The suspended sentence was conditioned on Scott getting a job at Home Depot, which Scott said he had lined up. In his oral pronouncement, however, the trial judge was unclear as to whether this condition applied to the suspended sentence or, more generally, was a condition of probation, saying "well, the condition of probation is he gets a job, full-time job, or show at least five applications per week until he gets a job." Confusion resulted in an "Order on Probation," signed by the trial judge, stating verbatim what he had required as to full-time work and job applications without mention of the Home Depot job.

Two months later, the Department filed a violation report, stating as grounds that Scott did not get the job at Home Depot. At the revocation hearing, Scott's probation officer testified that "[h]e's been complying with everything I asked him to do." She confirmed that he obtained full-time employment, but that "[h]e did not get the Home Depot job." She explained that she "got a letter stating why he didn't get it, I'm assuming because of his background he didn't get the job. He was offered the job but as his background came they didn't-they rescinded the offer." Scott testified, confirming that he'd received an offer of employment, but that it was revoked when Home Depot learned he was on probation. He then sought other employment and was hired full-time at Michael's (40+ hours weekly) and part-time at McDonald's (20 hours weekly). He reapplied to Home Depot as well.

On this record, Scott's counsel argued that no willful violation occurred: Scott had received an offer from Home Depot, which was withdrawn due to his probationary status, a matter over which Scott had no control, and Scott mitigated the setback by getting two jobs totaling more than full-time employment. The trial judge, however, concluded that Scott engaged in a willful and substantial violation because "he had guaranteed me he had [the Home Depot job] ... which turned out to be not true." The trial judge expressed confusion as to why there was a need for a probation revocation hearing because the "suspended sentence [was] based on getting the job at Home Depot" and was not a condition of probation. The hearing concluded with the trial judge saying, "[t]hat will teach me a lesson. Just do what I should have done in the first place," i.e., to incarcerate Scott without the employment-at-Home Depot condition.

On appeal, Scott asserts that the trial court erred in concluding that his failure to secure the Home Depot job was a substantial and willful violation of the conditions placed upon him. He also argues that the condition that he work full-time is fundamental error, citing caselaw finding such a condition invalid. See White v. State , 619 So.2d 429, 431 (Fla. 1st DCA 1993) (holding that "a probationer cannot be ordered to maintain full-time employment and that imposition of such a requirement is sufficiently egregious to constitute fundamental error."); see also Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) (holding that "it is improper to require a probationer, without exception, to maintain full-time employment as a condition of probation because factors out of the probationer's control could prevent completion of this requirement.... A probationer can be ordered to either maintain full-time employment or provide proof of job searches") (citations omitted).

Taking the latter issue first, Scott assured the trial judge that he had the Home Depot job and willingly accepted the employment condition to avoid incarceration. He did not object to the condition and, instead, embraced it, thereby waiving his ability to assert fundamental error on appeal as to the condition's validity. Universal Ins. Co. of N. Am. v. Warfel , 82 So.3d 47, 65 (Fla. 2012). That he's waived the right to seek invalidation of the Home Depot condition in its entirety , however, does not mean he waived all other errors, including the basic requirement that a willful and substantial violation of the condition must be proven. Because he acceded to the condition of Home Depot employment, appellate review is limited to whether the trial court's finding that Scott violated that condition meets applicable standards.

Turning to this second issue, the appellate standard of review of the trial court's order is for an abuse of discretion. Aviles , 165 So.3d at 842 ; see also Brill v. State , 159 Fla. 682, 32 So.2d 607, 609 (1947) (revocation of a suspended sentence subject to whether trial court abused its discretion). Stated differently, an "appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the probationer's] violation was both willful and substantial." Friddle v. State , 989 So.2d 1254, 1255 (Fla. 1st DCA 2008) (citing State v. Carter , 835 So.2d 259, 262 (Fla. 2002) ).

Here, the panel concludes that Home Depot employment was not a condition of probation, but the trial court unequivocally said that it was a condition of the suspended sentence, making it unclear whether the oral or written pronouncement controls, a point upon which this district is somewhat indeterminate. Compare Odom v. State , 15 So.3d 672, 677 (Fla. 1st DCA 2009) (stating that " 'the language used in a condition of probation is determinative of a probationer's duties and responsibilities while on probation.' ") (quoting Stanley v. State , 922 So.2d 411, 414 (Fla. 5th DCA 2006) ), with Rowland v. State , 548 So.2d 812, 814 (Fla. 1st DCA 1989) ("A trial court's oral pronouncement controls over its written order."). The trial court was adamant that the condition at issue was placed on Scott's suspended sentence and not a condition of probation, saying: "Technically I guess I'll find that it is a willful violation, substantial violation of his probation, despite the fact we shouldn't even be here because it was a suspended sentence based on getting the job at Home Depot."

Regardless of whether the Home Depot condition was placed on Scott's suspended sentence (as the trial judge believed) or was a condition of probation (though not mentioned in the probation order), the same standard of appellate review applies: whether the trial court's decision was an abuse of discretion. Brill , 32 So.2d at 609 ; Aviles , 165 So.3d at 842. Either way, that standard is met in this case: it was an abuse of discretion on this record to find Scott's failure to get the Home Depot job as both willful and substantial.

First, it wasn't willful because "[r]easonable efforts to comply with a condition of probation cannot be deemed a willful violation." Aviles , 165 So.3d at 842. Scott did all he could to secure the Home Depot job, and when it fell through, he sensibly undertook efforts in applying for and obtaining full-time employment at Michael's and part-time employment at McDonald's, exceeding the workweek the Home Depot job offered. Such efforts are commendable and show initiative; they are the converse of willful avoidance of an employment condition. And jailing Scott short-circuited his two jobs, as well as his future employment prospects.

In addition, Scott was forthright with the trial judge about the Home Depot position, making clear at sentencing that he had the job in hand subject to the employer's receipt of papers showing the disposition of his case:

THE COURT: What is the status of this Home Depot?
THE DEFENDANT: They are waiting - they are waiting on my disposition papers . I'm going to fax it to them and once that clears, that I will be hired.
THE COURT: So you think if I don't put you in jail, you will get that job?
THE DEFENDANT: I know it for a fact, sir.

(Emphasis added). The trial judge was told that the Home Depot job was conditioned on the disposition papers, making it clear that Scott's exuberance was likewise conditioned on this contingency. To conclude that Scott had "guaranteed" employment at Home Depot, when the employer's final decision hinged on the disposition papers, was unjustified, particularly given the recognized principle that probation cannot be revoked based on matters over which the probationer has no control. Aviles , 165 So.3d at 843 ; see also Winfield v. State , 406 So.2d 50, 52 (Fla. 1st DCA 1981) ("State must show that failure to maintain or acquire employment was willful and not caused by circumstances beyond the probationer's control."). The probation officer confirmed what happened, that Scott did everything required of him, but that Home Depot reneged upon receipt of the papers showing Scott's status, a decision beyond Scott's control. To the extent the trial judge felt that Scott hadn't told the truth about the status of the Home Depot job, the transcript contradicts such a conclusion.

Second, it wasn't a substantial violation of the Home Depot employment condition. Had Scott gotten a full-time job at Lowe's, rather than Home Depot, it would not be a substantial violation-let alone a material one, under the circumstances. See, e.g. , § 948.06(1)(a), Fla. Stat. (2018) (requiring "reasonable grounds to believe that a probationer ... has violated his probation ... in a material respect"); Smith v. State , 68 So.3d 968, 969 (Fla. 1st DCA 2011) ("[S]light delay in appearing at the jail on the day he was to begin serving that term of incarceration was not shown to be a willful and substantial violation ...."). That Scott gained employment at two jobs (one full-time with a national arts and crafts chain and one part-time with an international fast-food chain) is equally immaterial. Nothing in the record suggests that full-time employment with a home improvement supply company matters, particularly where the general probationary requirement was simply having a full-time job, which Scott exceeded. As such, it was an abuse of discretion to incarcerate Scott, who had no criminal record and had far surpassed what was required of him as to securing full-time employment.

For these reasons, reversal in this case is appropriate whether employment at Home Depot was a condition of Scott's suspended sentence or was (or was not) a condition of probation.


source: Caselaw Access Project

license: Public Domain

text:
    Justin CURINTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4211
    District Court of Appeal of Florida, First District.
    August 15, 2018 Rehearing Denied September 26, 2018
    Justin Curinton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


author: B.L. Thomas, C.J.

text:
    Scott AMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2084
    District Court of Appeal of Florida, First District.
    August 16, 2018
    Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was charged as a principal for trafficking in methamphetamine under sections 777.011 and 893.135, Florida Statutes. To sustain his conviction as a principal, the State was required to establish that Appellant "intend[ed] that the crime be committed and do some act to assist the other person in actually committing the crime." Staten v. State, 519 So.2d 622, 624 (Fla. 1988) (emphasis added); Evans v. State, 643 So.2d 1204, 1205-06 (Fla. 1st DCA 1994) ("To secure a conviction on an aider and abettor theory, the state must establish (1) that the defendant helped the person who actually committed the crime by doing or saying something that caused, encouraged, incited or otherwise assisted that person to commit the crime ; and (2) that the defendant intended to participate in the crime.") (emphasis added) ). We review the evidence in a light most favorable to the State, including construing all inferences in favor of the State. Lynch v. State, 293 So.2d 44 (Fla. 1974).

There was legally sufficient evidence to submit to the jury that Appellant "intended to participate in the crime," Evans , 643 So.2d at 1206, including Appellant's post-arrest admission that he and the other suspects should not have completed the drug transaction. But there was not sufficient evidence that Appellant did some act to assist in the commission of the crime. Theophile v. State , 78 So.3d 574, 577 (Fla. 4th DCA 2011). Thus, under our de novo review of the trial court's ruling denying Appellant's motion for judgment of acquittal, Jones v. State, 790 So.2d 1194, 1196 (Fla. 2001) (en banc), we reverse Appellant's conviction as a principal under section 777.011, Florida Statutes. Based on our decision, we need not address the other issues raised by Appellant.

REVERSED and REMANDED with directions to discharge Appellant.

Lewis and Makar, JJ., concur.


author: PER CURIAM

text:
    Dax O. STRATTMAN v. STATE of Louisiana; John Bel Edwards, Governor; Jeffery M. Landry, Attorney General; Paul D. Connick, District Attorney; et al.
    No. 2017-OK-2039
    Supreme Court of Louisiana.
    September 28, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM

Writ granted. The court of appeal's ruling is reversed, and the district court's ruling is reinstated. Defendant's pleading captioned as a "Motion to Declare La. R.S.14:2(B)(25) Unconstitutional" is an action that contests the computation of his "good time" date (albeit one based on constitutional claims), and therefore venue is in the parish of East Baton Rouge. See R.S. 15:571.15 ("Venue in any action in which an individual committed to the Department of Public Safety and Corrections contests the computation of his sentence or sentences, discharge, good time dates, or any action concerning parole shall be in the parish of East Baton Rouge.") (emphasis added).

Guidry, J., recused.


author: PER CURIAM:

text:
    STATE EX REL. Bryan Clayton ROBERTS v. STATE of Louisiana
    No. 2017-KH-0880
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Crichton, J., recused.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-439670
    NO. 2018-BA-1551
    Supreme Court of Louisiana.
    September 28, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on September 7, 2018.

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    IN RE: Robert B. EVANS III
    NO. 2018-B-1433
    Supreme Court of Louisiana.
    September 28, 2018
    ORDER
   Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, the response thereto filed by respondent, and the "Supplemental and Amended Joint Consent Petition for Interim Suspension Pursuant to Louisiana Supreme Court Rule XIX, § 19.2,"

IT IS ORDERED that respondent, Robert B. Evans III, Louisiana Bar Roll number 23473, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent's clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.


author: Weimer, J., would deny.

text:
    IN RE: Christopher G. YOUNG
    NO. 2018-B-0798
    Supreme Court of Louisiana.
    September 28, 2018
    ORDER
   Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, the report and recommendation of the hearing committee, and the responses filed by the parties thereto,

IT IS ORDERED that Christopher G. Young, Louisiana Bar Roll number 22189, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

Weimer, J., would deny.

Hughes, J., would deny.


text:
    Phillip TERRELL, in his Capacity as District Attorney of Rapides Parish, et al. v. TOWN OF LECOMPTE, et al.
    No. 2018-CC-1087
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT FOR THE PARISH OF RAPIDES
   PER CURIAM

Writ granted. This matter came before us in the nature of a partial summary judgment, which is not appealable under La. Code Civ. Pro. art. 1915(B), as it would require designation as a final judgment pursuant to La. Code Civ. Pro. art. 1915(A) in order to be appealable. In the interest of judicial economy, we remand this case to the trial court for a determination of whether or not this partial summary judgment is a final judgment. If it is certified as a final judgment, then it can be appealed, provided appellate requirements are met. If this partial summary judgment is not designated as a final judgment, then there is an adequate remedy on appeal.

REVERSED AND REMANDED.


text:
    STATE EX REL. Jon DICKERSON v. STATE of Louisiana
    No. 2017-KH-0997
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Michael HAMPTON v. STATE of Louisiana
    No. 2017-KH-0989
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Calvin HORTON v. STATE of Louisiana
    No. 2017-KH-0977
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated at least four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Crichton, J., recused.


text:
    STATE EX REL. Courtney WILLIAMS v. STATE of Louisiana
    No. 2017-KH-0934
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Michael CAMERON v. STATE of Louisiana
    No. 2017-KH-0884
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Christopher ODIS v. STATE of Louisiana
    No. 2017-KH-0851
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE SEVENTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFOURCHE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His remaining claim is repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

      Weimer, J., recused


text:
    STATE EX REL. Darrell TILLERY v. STATE of Louisiana
    No. 2017-KH-0226
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, they are repetitive and/or unsupported. See La.C.Cr.P. arts. 930.4 and 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Guidry, J., recused.


text:
    IN RE: Sherry Alane KING
    NO. 2018-B-1354
    Supreme Court of Louisiana.
    September 28, 2018
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent prepared a falsified document and filed it into the court record in support of a motion to continue. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Sherry Alane King, Louisiana Bar Roll number 22471, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a one-year period of unsupervised probation. During the probationary period, respondent shall attend the Louisiana State Bar Association's Ethics School. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

CLARK, J., would reject joint petition for consent discipline.

GENOVESE, J., would reject joint petition for consent discipline.

Genovese, J., would reject joint petition for content discipline.


text:
    Cynthia GAYLE v. DIXIE ELECTRIC MEMBERSHIP CORPORATION
    No. 2018-CC-0754
    Supreme Court of Louisiana.
    September 28, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF LIVINGSTON
   PER CURIAM

Writ granted. Plaintiff, Cynthia Gayle, filed suit against Dixie Electric Membership Corporation ("Dixie") seeking personal injury damages allegedly caused when a utility pole installed by Dixie fell during a weather event and crushed a vehicle operated by plaintiff. Dixie filed a motion for summary judgment on the issue of liability, arguing it had no knowledge of any defective condition in the utility pole. After a hearing, the district court denied Dixie's motion for summary judgment without assigning reasons. A five-judge panel of the Court of Appeal, First Circuit, granted Dixie's writ in a 3-2 decision, thereby granting Dixie's motion for summary judgment and dismissing plaintiffs's claims with prejudice.

Because there are material issues of fact still in dispute concerning the alleged defective condition of the utility pole and Dixie's constructive knowledge of its condition, as well as questions concerning the weather event, we find the court of appeal erred in granting Dixie's motion for summary judgment and dismissing plaintiff's claims. Therefore, we reverse the ruling of the court of appeal, and remand this matter to the district court for further proceedings.

Weimer, J., Guidry, J., and Crichton, J., would deny.


author: CRICHTON, J., recused.

text:
    STATE EX REL. Victor DURDEN v. STATE of Louisiana
    NO. 2017-KH-0858
    Supreme Court of Louisiana.
    September 28, 2018
    Denied. Relator has previously exhausted his right to state collateral review. State ex rel. Durden v. State, 15-1615 (La. 9/16/16), 201 So.3d 241.
   CRICHTON, J., recused.


author: HUGHES, J., would grant.

text:
    Mary E. ROPER v. John Chandler LOUPE and the Consolidated Governing Body of the City of Baton Rouge and the Parish of East Baton Rouge
    NO. 2018-C-1004
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.
   HUGHES, J., would grant.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Teddy CHESTER
    NO. 2018-KK-1562
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.
   GUIDRY, J., recused.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Teddy CHESTER
    NO. 2018-KK-1563
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.
   GUIDRY, J., recused.

HUGHES, J., would grant.

CRICHTON, J., recused.


text:
    NU-LITE ELECTRICAL WHOLESALERS, LLC v. AXIS CONSTRUCTION GROUP, LLC d/b/a RSB Electric, Brunt Construction, Inc. and Mid-Continent Casualty Company
    NO. 2018-C-0914
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    Annique JOHNSON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    Wanda Theriot, et al. v. State Farm Mutual Automobile Insurance Company, et al.
    NO. 2018-C-0916
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    Priscilla MCCRIGHT, et al. v. SMITH & NEPHEW, INC. et al.
    NO. 2018-CC-0946
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Steven Anthony WALCOTT, Jr.
    NO. 2018-KH-0752
    Supreme Court of Louisiana.
    September 28, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Anthony BAUMAN
    NO. 2018-KH-0332
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    STATE EX REL. Richard LAY v. STATE of Louisiana
    NO. 2017-KH-1156
    Supreme Court of Louisiana.
    September 28, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Lay v. State, 14-2549 (La. 11/6/15), 181 So.3d 693.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Ashley COGAR
    NO. 2017-K-1740
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    Edna R. HORRELL v. Gerardo R. BARRIOS and Lisa Matthews c/w Edna R. Horrell v. Gaye H. Coffer, Michael J. Horrell, Edward Horrell, Jr., and Marie Elise Lecour
    NO. 2018-C-0931
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    STATE EX REL. Richard LAY v. STATE of Louisiana
    NO. 2017-KH-0549
    Supreme Court of Louisiana.
    September 28, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Lay v. State, 14-2549 (La. 11/6/15), 181 So.3d 693.
   WEIMER, J., recused.


text:
    Quentin HENRY, et al. v. GREATER OUACHITA WATER COMPANY
    NO. 2018-CC-0949
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Kenneth Wayne WHITMORE v. STATE of Louisiana
    NO. 2017-KP-1767
    Supreme Court of Louisiana.
    September 28, 2018
    Denied; not timely filed. See La.S.Ct. Rule X, § 5(a).


text:
    STATE of Louisiana IN the INTEREST OF R.W.
    NO. 2017-CK-1996
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.
    GENOVESE, J., would grant and docket.


text:
    Lana and Britt THERIOT v. ARCHER CONSTRUCTION, L.L.C. and State Farm Mutual Automobile Insurance Company
    NO. 2018-C-0843
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    STATE EX REL. Alvin WELCH v. STATE of Louisiana
    NO. 2017-KH-0111
    Supreme Court of Louisiana.
    September 28, 2018
    NOT CONSIDERED. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Jessie BELL, Jr.
    NO. 2018-KH-1324
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Beerrien Chadwick BROWN, Jr.
    NO. 2018-KH-1352
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Corneilous WHEELER v. STATE of Louisiana
    NO. 2015-KH-1424
    Supreme Court of Louisiana.
    September 28, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018-C-1124
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Edmond D. SPENCER
    NO. 2018-KH-1230
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Ricky Andrew THOMPSON
    NO. 2018-KH-1344
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Max ROBIN
    NO. 2018-KK-1448
    Supreme Court of Louisiana.
    September 28, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Johnathan P. SIMS
    NO. 2018-KH-1173
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Robert L. JENKINS
    NO. 2018-KH-1177
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    Carlos OGLIVIE v. Louisiana DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, et al.
    NO. 2018-CI-1186
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Rory DIMES
    NO. 2018-KH-1404
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Javone MARTIN
    NO. 2018-KH-1362
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


author: GENOVESE, J., recused.

text:
    STATE of Louisiana v. Jamarcus DORSEY
    NO. 2018-KH-1157
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   GENOVESE, J., recused.


text:
    Daylan BRADSTREET v. Darrel VANNOY, Warden
    NO. 2018-KH-1161
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Christopher WILLIAMS
    NO. 2018-KH-1191
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Richard LAY v. STATE of Louisiana
    NO. 2017-KH-0314
    Supreme Court of Louisiana.
    September 28, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Lay v. State, 14-2549 (La. 11/6/15), 181 So.3d 693.
   WEIMER, J., recused.


text:
    De Vaughan SMITH v. STATE of Louisiana
    NO. 2018-KH-1340
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Sammee ROBINSON v. STATE of Louisiana
    NO. 2017-KH-0061
    Supreme Court of Louisiana.
    September 28, 2018
    NOT CONSIDERED. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Richard Nathaniel MILLER
    NO. 2018-CI-1345
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Patrick Napolean HIGH
    NO. 2018-OK-1131
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Troy TAYLOR
    NO. 2018-KH-1317
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Jeffrey Michael REYNOLDS
    NO. 2018-KO-1246
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Son NGUYEN
    NO. 2018-KK-1454
    Supreme Court of Louisiana.
    September 28, 2018
    Stay denied. Writ denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Evert FRANKLIN
    NO. 2018-KK-1198
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    STATE EX REL. Richard LAY v. STATE of Louisiana
    NO. 2017-KH-0316
    Supreme Court of Louisiana.
    September 28, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Lay v. State, 14-2549 (La. 11/6/15), 181 So.3d 693.
   WEIMER, J., recused.


text:
    Betty REEDER v. HARDTNER MEDICAL CENTER
    NO. 2018-C-0917
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    Demetris HAYNIE and Curtis Young, Sr. v. TWIN OAKS NURSING HOME, INC. and Annie Alford
    NO. 2018-CC-0919
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    STATE EX REL. Pharaoh BRAZELL v. STATE of Louisiana
    NO. 2017-KH-0831
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


text:
    BOASSO AMERICA CORPORATION v. MARSH USA, INC.
    NO. 2018-CC-0942
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.


author: CRICHTON, J., would grant.

text:
    Oliver BARNETT, et al. v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY d/b/a LAMMICO
    NO. 2018-C-0944
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.
   CRICHTON, J., would grant.


text:
    STATE of Louisiana v. Anthony Lemarcus LARKINS
    NO. 2017-KO-1900
    Supreme Court of Louisiana.
    September 28, 2018
    Denied.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Richard LAY
    NO. 2018-KH-0559
    Supreme Court of Louisiana.
    September 28, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Lay v. State, 14-2549 (La. 11/6/15), 181 So.3d 693.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Gerald JOHNSON
    NO. 2018-KK-1629
    Supreme Court of Louisiana.
    October 4, 2018
    Denied.


text:
    STATE EX REL. Renil ESCOBAR-RIVERANO. v. STATE of Louisiana
    2017-KH-0107
    Supreme Court of Louisiana.
    September 28, 2018
    NOT CONSIDERED. See La.S.Ct.R. IX, § 6.
   GUIDRY, J., recused.


text:
    STATE EX REL. Clyde Milton JONES v. STATE of Louisiana
    No. 2015-KH-2190
    Supreme Court of Louisiana.
    September 28, 2018
    NOT CONSIDERED. See La.S.Ct.R. IX, § 6.


author: HIGGINBOTHAM, J.

text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018 CA 0001
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018
    Arthur N. Bagwell, White Castle, LA, Attorney for Appellee/Third-Party Defendant, Averille Browning Dawson
    Kevin M. McGlone, Leopold Z. Sher, James M. Gamer, Peter L. Hilbert, Jr., Neal J. Kling, Jeffrey D. Kessler, New Orleans, LA, Travis J. Turner, Gonzales, LA, Robert Ryland Percy, III, Gonzales, LA, Eric J. Mayer, Houston, TX, Attorneys for Appellant/Defendant/Third-Party Plaintiff, Texas Brine Company, LLC
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

This dispute is one of many arising out of the August 2012 sinkhole that appeared near Bayou Corne in Assumption Parish. The appeal relates to a challenge to the trial court's dismissal of a third-party demand against a Texas resident, in her personal capacity and as trustee of a Texas trust, based on a lack of personal jurisdiction. The same issue was recently decided by this court in a related appeal that originated out of a different trial court number (Twenty-Third Judicial District Court No. 34,202), but was rendered by the same trial court judge on the same date, concerning the same third-party defendant and third-party plaintiff. See Crosstex Energy Services, et al v. Texas Brine Company, LLC, et al , 2017-1405 (La. App. 1st Cir. 4/25/18), 2018 WL 1960024, 253 So.3d 806.

In Crosstex , we affirmed the trial court's grant of Averille Browning Dawson's declinatory exception raising the objection of lack of in personam jurisdiction, and the dismissal of Texas Brine Company, LLC's claims against Dawson, individually and as trustee of the Browning Children's Trust, without prejudice. The exact same background, issues, and assignments of error raised by Texas Brine in this case have already been thoroughly discussed in this court's recent Crosstex opinion, which we are bound to follow under the "law of the circuit doctrine" that requires us to follow our prior decisions. See Graves v. Businelle Towing Corp. , 95-1999 (La. App. 1st Cir. 4/30/96), 673 So.2d 311, 315. Furthermore, we agree with the reasoning and the result reached in the related Crosstex opinion, and we therefore adopt the reasoning as our own in this case.

We issue this summary disposition in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.2(A)(2), (4), and (6), and affirm the trial court's July 6, 2017 judgment granting the exception and dismissing Texas Brine's claims against Dawson, individually and as trustee in this case. All costs of this appeal are assessed to Appellant/Defendant/Third-Party Plaintiff, Texas Brine Company, LLC.

AFFIRMED .

      The main difference between the related Crosstex appeal and this appeal is there are different plaintiffs in the underlying litigation, which in this case are Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System, the owners and operators of storage facilities and natural gas pipelines in the vicinity of the sinkhole. This appeal does not concern the plaintiffs.


author: CHUTZ, J.

text:
    Lance SHELTON v. SMITTY'S SUPPLY, INC.
    2017 CA 1419
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: JUNE 12, 2018
    Craig B. Mitchell, Kiana M. Mitchell, Michael S. Rodriguez, David M. Williams, New Orleans, Louisiana, Counsel for Claimant-Appellee, Lance Shelton
    Frank R. Whiteley, Robert J. May, Megan M. Richardson, New Orleans, Louisiana, Counsel for Defendant-Appellant Smitty's Supply, Inc.
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   CHUTZ, J.

In this workers' compensation case, defendant-appellant, Smitty's Supply, Inc. (Smitty's), appeals a judgment awarding claimant-appellee, Lance Shelton, total temporary disability (TTD) benefits, medical expenses, penalties, and attorney fees. For the following reasons, we reverse in part, amend in part, and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Shelton began working at Smitty's, a packaging facility for automotive products and oils, on a prison work-release program in 2009. Following his release from incarceration, he continued working at Smitty's and was promoted to "line leader." In that position, he was responsible for maintaining proper production and quality on his production line. The production line overseen by Mr. Shelton consisted of a conveyer belt carrying empty bottles forward to be filled with oil products. The filled bottles were then carried under a hopper through which bottle caps were automatically fed and mechanically placed on the bottles by a "cap machine." A metal ladder with hand rails was located next to the hopper. In order to periodically refill the hopper, an employee was required to climb the ladder with a large box of bottle caps and dump them into the top of the hopper. Mr. Shelton testified the ladder was also used to check on the caps, which occasionally became "jammed" and had to be pushed down in order to flow freely.

On February 17, 2016, Mr. Shelton was descending the ladder when he missed a step and fell to the floor. The accident was recorded by a surveillance camera. Mr. Shelton testified at trial he had climbed the ladder either to dump caps into the hopper or to check whether it needed to be refilled or had any obstructions. Shortly after the accident, he reported the fall to his supervisor and completed a written accident report. In the report, Mr. Shelton described the accident as follows: "Come Down from Stairs dumping caps in capper foot slipped and i [sic] fell on my knees and side." Mr. Shelton completed his shift, but sat down for the remainder of the day while supervising the production line.

Two days later, on February 19, Mr. Shelton spoke to his supervisor about obtaining medical treatment and was directed by Smitty's personnel to the Amite Rural Health Clinic (ARHC). Mr. Shelton complained of pain in both knees and was diagnosed with sprains in both knees. He was placed on light duty for the next three days. When he returned to ARHC on February 24, he was given a Medrol dose pack and continued on light duty.

On February 25, Smitty's terminated Mr. Shelton's employment for reasons ostensibly unrelated to the accident. The stated reason was that Mr. Shelton falsified company records on the date of the accident by indicating he made weight checks on the products for the entire shift, which was contradicted by the surveillance video. At trial, Mr. Shelton explained that, although he did sit down for most of the remainder of the shift following his accident, he had tried to keep the production line moving and had one of his subordinates perform the weight checks.

On March 4, 2016, Mr. Shelton filed a disputed claim for compensation seeking indemnity benefits. He later amended the claim to also request physical therapy and surgery expenses, as well as penalties and attorney fees due to the denial of his claims for indemnity and medical benefits. As his choice of physician, Mr. Shelton designated Dr. Brett Chiasson, an orthopedic surgeon he had seen on two prior visits, approximately seven months earlier, concerning longtime pain (two years) in his left knee. In August 2015, an MRI was performed on Mr. Shelton's knee on Dr. Chiasson's orders. After Dr. Chiasson gave Mr. Shelton an injection in his left knee on August 28, 2015, he did not seek further treatment from Dr. Chiasson until after his February 2016 accident.

Following the accident, Mr. Shelton was examined by a nurse practitioner in Dr. Chiasson's office on March 11, 2016. Although he complained of bilateral knee pain, he was experiencing more significant pain and mechanical symptoms in his left knee, including difficulty bearing weight, inability to climb stairs, and giving way of his knee. An MRI of Mr. Shelton's left knee taken on March 16 indicated a "possible contusion and degeneration of the ACL with a ganglion cyst and edema noted." On a return visit on March 18, Mr. Shelton reported significant pain "with ambulation" to his left knee. He was given an injection in the left knee and a referral for physical therapy. His right knee continued to improve. Following both office visits, Mr. Shelton's work status was classified as "presently unable to work."

The request for physical therapy was denied on March 23 by Jim Nowak, an adjuster with Veritas Claims, who was assigned to handle Mr. Shelton's workers' compensation claim. The stated reason for the denial was that "[t]he request, or a portion thereof, is not related to the on-the-job injury."

At a May 16 office visit with Dr. Chiasson, Mr. Shelton complained of an inability to walk on stairs without difficulty and a buckling sensation in his left knee. Dr. Chiasson's physical examination revealed "palpable tenderness along the medial and lateral jointline" and "decreased range of motion, secondary to pain." Because Mr. Shelton had not improved with conservative treatment, Dr. Chiasson recommended proceeding with an arthroscopic evaluation of his left knee, as well as an ACL reconstruction, if indicated.

On May 18, Mr. Nowak denied approval for the arthroscopic procedure on the same grounds that he denied the request for physical therapy. In his deposition, Mr. Nowak did not deny that an accident had occurred. However, he indicated he believed Mr. Shelton's condition was degenerative in nature and unrelated to his work accident. On this basis, as well as the fact that Mr. Shelton had been released to light duty by ARHC, Mr. Nowak also denied Mr. Shelton's claim for indemnity benefits.

Mr. Shelton filed a motion for partial summary judgment on the issue of his entitlement to temporary total disability (TTD) benefits. At a hearing on the motion held on August 24, 2016, defense counsel argued Mr. Shelton "staged" the accident. The workers' compensation judge (WCJ) denied the motion for summary judgment, finding that the "existence of an accident" as well as whether Mr. Shelton's disability "was related to a 'work accident' or if it was a 'staged' event" presented genuine issues of material fact. On December 15, 2016, Smitty's filed an amended answer in which it alleged fraud by Mr. Shelton, asserting he "made willful misrepresentations for the purpose of obtaining compensation."

Following a trial held on January 30 and April 5, 2017, the WCJ rendered a written judgment rejecting Smitty's contention that Mr. Shelton had committed fraud in order to obtain workers' compensation benefits. The WCJ concluded Mr. Shelton was injured in a work accident that aggravated the pre-existing condition in his left knee and awarded him TTD benefits in the amount of $673.23 per week from March 11, 2016, until the judgment was modified. The WCJ also awarded Mr. Shelton all medical bills and expenses at issue, including the costs of the physical therapy and arthroscopic surgery recommended by Dr. Chiasson. Additionally, the WCJ imposed costs, penalties of twelve percent of the unpaid compensation, and two awards for attorney fees in the amount of $20,000.00 each on Smitty's due to its failure to timely pay and/or approve indemnity benefits and medical expenses. Smitty's appealed, raising five assignments of error. Mr. Shelton answered the appeal and requested additional attorney fees for the work necessitated by the appeal.

ASSIGNMENTS OF ERROR

1. The WCJ legally erred in finding Mr. Shelton did not violate La. R.S. 23:1208 by making willful misrepresentations for the purpose of obtaining workers' compensation benefits.

2. The WCJ legally erred in awarding Mr. Shelton TTD benefits as a result of finding he suffered a work accident that injured his left knee.

3. The WCJ legally erred in awarding penalties and attorney fees based on her finding that Smitty's did not reasonably controvert Mr. Shelton's entitlement to workers' compensation benefits.

4. The WCJ legally erred in making two awards for attorney fees ($20,000.00 each) in violation of La. R.S. 23:1201(J).

5. The WCJ legally erred in awarding Mr. Shelton weekly indemnity benefits in an amount greater than the maximum weekly indemnity amount allowed by La. R.S. 23:1202.

STANDARD OF REVIEW

Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Angelo Iafrate Construction Co. v. Herring , 05-1461 (La. App. 1st Cir. 9/1/06), 943 So.2d 487, 489-90, writ denied, 06-2365 (La. 12/8/06), 943 So.2d 1097. An appellate court cannot set aside the factual findings of the WCJ unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Angelo Iafrate Construction Co. , 943 So.2d at 489-90. If the WCJ's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier-of-fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the factfinder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Angelo Iafrate Construction Co. , 943 So.2d at 490.

ASSIGNMENT OF ERROR NUMBER ONE

Smitty's contends the WCJ erred in failing to find Mr. Shelton violated La. R.S. 23:1208 by willfully making false statements and misrepresentations for the purpose of obtaining workers' compensation benefits. Smitty's argues the evidence proved not only that Mr. Shelton lied about how the accident occurred, but also about the nature and extent of his pre-existing medical condition.

Louisiana Revised Statutes 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.

Louisiana Revised Statutes 23:1208 applies in all circumstances where: (1) there is a false statement or representation; (2) the statement or representation is willfully made ; and (3) the statement or representation is made for the purpose of obtaining workers' compensation benefits. Resweber v. Haroil Construction Company , 94-2708 (La. 9/5/95), 660 So.2d 7, 14. Because forfeiture of benefits is a harsh remedy, however, statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any element is fatal to the employer's avoidance of liability. Varnado v. Sanderson Farms, Inc. , 14-1305 (La. App. 1st Cir. 3/6/15), 166 So.3d 340, 343.

Smitty's alleges Mr. Shelton made willful misrepresentations: (1) in stating in the accident report that he was coming down the ladder after dumping caps in the hopper, when the surveillance video unmistakably shows him climbing and descending the ladder empty-handed; (2) in testifying Dr. Chiasson told him in August 2015 that his left knee was "fine" and in denying Dr. Chiasson discussed the possibility of surgery on his knee at that time; and (3) in failing to disclose to the medical staff at ARHC his pre-existing knee condition and the fact that he had had an MRI on his left knee in August 2015.

Discrepancy Between Accident Report and Surveillance Video :

At trial, Mr. Shelton testified he believed he was either dumping caps or checking the caps in the hopper when he fell. He indicated those would have been the only two reasons for him to have climbed the ladder. Although Mr. Shelton indicated in his accident report that he was descending the ladder after dumping caps in the hopper when he fell, the surveillance video reveals he neither carried a box of caps up the ladder nor dumped any caps into the hopper. Smitty's contends the discrepancy between the accident report and the surveillance video proves Mr. Shelton lied about how the accident occurred.

We agree the surveillance video establishes Mr. Shelton's statement that he was descending the ladder after dumping caps was false. Nevertheless, making a false statement does not necessarily equate to making a willful misrepresentation. Louisiana Revised Statutes 23:1208 requires a showing that a misrepresentation was willfully made for the purpose of obtaining benefits. Clark v. Godfrey Knight Farms, Inc. , 08-1723 (La. App. 1st Cir. 2/13/09), 6 So.3d 284, 290, writ denied, 09-0562 (La. 5/29/09), 9 So.3d 163. Once it has been determined that a false statement or representation has been made, the WCJ must make a factual determination as to whether, based on the record, the statement or representation was willfully made for the purpose of fraudulently obtaining workers' compensation benefits. Fontenot v. State, Department of Health & Hospitals , 12-1265 (La. App. 1st Cir. 4/2/13), 116 So.3d 695, 698.

In this case, the surveillance video shows that upon reaching the top of the ladder, Mr. Shelton looked into the hopper as though checking it and then reached inside it and appeared to push downward. Mr. Shelton indicated it was sometimes necessary to push the caps down in the hopper to make them flow freely. Additionally, Mr. Shelton testified that between checking on the hopper and keeping it filled with caps, it was necessary for someone to climb the ladder sometimes as many as 40 to 50 times a shift. Considering the necessity for frequently climbing the ladder, together with Mr. Shelton appearing to check on the hopper in the video, it is possible he may merely have been confused when he completed the accident report as to whether he had been dumping caps or checking on the hopper prior to his fall. Under such circumstances, the misstatement in his accident report could have been an inadvertent error, which is apparently what the WCJ concluded.

Alleged Misrepresentations of Discussion with Dr. Chiasson:

Smitty's asserts Mr. Shelton willfully misrepresented, both in his deposition and at trial, what he was told concerning the condition of his left knee when he was treated by Dr. Chiasson and had an MRI performed in August 2015. At trial, Mr. Shelton testified Dr. Chiasson told him at that time that he could find nothing wrong with his knee and, after giving him an injection in his left knee, Dr. Chiasson told him to come back if he had any further problems. He denied Dr. Chiasson either told him the August 2015 MRI revealed a possible ACL tear or discussed the possibility of arthroscopic surgery with him. On cross-examination, Mr. Shelton was reminded that he had indicated during his deposition that Dr. Chiasson specifically told him "everything was fine" with his knee. He was then asked whether he had meant what he testified to in his deposition. He responded that while he did not recall verbatim what Dr. Chiasson had said in August 2015, what he took away from the discussion was that his knee was fine.

Dr. Chiasson testified in his deposition that Mr. Shelton's left knee was not "fine" when he saw him in August 2015. At an August 3 visit, Mr. Shelton reported pain in his left knee with mechanical symptoms, and a subsequent MRI revealed a "possible ACL tear." At an August 28 visit, Dr. Chiasson injected Mr. Shelton's left knee with Depo-Medrol and gave him a prescription for an anti-inflammatory medication. Dr. Chiasson's office notes indicate that if Mr. Shelton continued to complain of mechanical symptoms after undergoing a series of injections, "he would be a candidate for diagnostic arthroscopy to assess his ACL." Dr. Chiasson indicated he discussed the possibility of a diagnostic arthroscopy with Mr. Shelton.

Again, while discrepancies exist between the respective testimony of Mr. Shelton and of Dr. Chiasson, the mere existence of the discrepancies is not conclusive proof of willful misrepresentation. At trial, Mr. Shelton testified what he understood from his discussion with Dr. Shelton was that "if I didn't have [any more] discomfort in my knee after the [injection], I took that to be everything was fine because I didn't have [any more] discomfort." During their discussion, Dr. Chiasson did not tell Mr. Shelton he had a tom ACL or that he definitely would require arthroscopic surgery. He indicated there was a possible ACL tear and that Mr. Shelton might require arthroscopic surgeryif he continued to exhibit symptoms. Given that these were mere possibilities, Mr. Shelton could have failed to fully comprehend the specifics of what Dr. Chiasson told him, particularly since he experienced no more problems with his left knee until after his February 2016 accident. Further, the WCJ could have concluded the discrepancies at issue could be "dismissed as errors common to an imperfect memory." See Hubbard v. Allied Building Stores, Inc. , 41,534 (La. App. 2d Cir. 11/1/06), 942 So.2d 639, 643.

Failure to Disclose Medical Information to ARHC :

Lastly, Smitty's contends Mr. Shelton willfully misrepresented his injury and medical history to ARHC medical staff by failing to disclose his pre-existing left knee condition and his August 2015 MRI. Smitty's asserts Mr. Shelton misled the medical staff "because he wanted to blame his pre-existing left knee problems on his 'staged accident' in order to obtain workers' compensation." However, the suggestion that Mr. Shelton made misrepresentations in order to hide the pre-existing condition of his left knee is entirely inconsistent with his designation of Dr. Chiasson, who had previously treated him for that condition, as his treating physician.

The WCJ heard all of the evidence presented concerning the alleged misrepresentations made by Mr. Shelton. The WCJ also heard evidence presented by Smitty's attacking Mr. Shelton's credibility, including the fact that he had been fired from two prior jobs and had several felony convictions. In rendering judgment that Smitty's failed to carry its burden of proving fraud, the WCJ concluded, "[Mr. Shelton] has not violated La. R.S. 23:1208 (by willfully making a false statement or representation for the purpose of obtaining workers' compensation benefits.)." The WCJ specifically stated it had considered the credibility of the witnesses in reaching its judgment.

Where, as here, the factual determinations of the WCJ are based on credibility determinations, the manifest error standard of review demands great deference to the trier-of-fact's findings, for only the factfinder can be aware of the variations in demeanor and tone that bear so heavily on the listener's understanding and belief in what is said. Varnado , 166 So.3d at 344. When factual findings are based on a credibility determination, a factfinder's decision to credit the testimony of a witness can virtually never be manifestly erroneous. See Clark , 6 So.3d at 290.

After a thorough review of the record and according due deference to the WCJ's credibility determinations, we find no manifest error in the WCJ's ruling that Mr. Shelton did not violate La. R.S. 23:1208 by making willful false statements or misrepresentations. Proof of intent, which is a state of mind, need not be established as a fact by direct evidence, but may be inferred from the facts regarding an individual's actions and other circumstances. Schmidt v. Blue Cross & Blue Shield of Louisiana, Inc. , 33,910 (La. App. 2d Cir. 9/27/00), 769 So.2d 179, 183, writ denied, 00-3011 (La. 12/15/00), 777 So.2d 1234 ; Ledet v. Burgess , 93-600 (La. App. 5th Cir. 2/9/94), 632 So.2d 1185, 1186. The WCJ's finding concerning Mr. Shelton's intent is reasonably supported by the record since the circumstances provide a basis for concluding any misrepresentations he made were either inadvertent or attributable to factors other than willful prevarication.

ASSIGNMENT OF ERROR NUMBER TWO

Smitty's argues the WCJ erred in awarding TTD benefits to Mr. Shelton based on manifestly erroneous findings that: (1) a work-related accident occurred; (2) Mr. Shelton's left knee was injured in the accident; and (3) Mr. Shelton was disabled as a result of the work-related injury.

Work-related Accident:

In order to recover workers' compensation benefits, a claimant must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. Crawford v. Pontchartrain Materials , 06-1780 (La. App. 1st Cir. 3/28/07), 960 So.2d 946, 950. Based on the discrepancy between the surveillance video and the accident report prepared by Mr. Shelton, Smitty's contends "[a] reasonable trier of fact cannot reconcile [Mr. Shelton's] 'Accident Statement' and the video." Thus, Smitty's argues the evidence, particularly the surveillance video, casts serious doubt on Mr. Shelton's version of the accident and proves the accident was "staged."

We disagree with Smitty's central premise that the existence of a discrepancy between the surveillance video and the accident report leads to the inevitable conclusion that Mr. Shelton's accident was "staged." As discussed above, there are other possible explanations for the discrepancy. Smitty's contends the surveillance video shows Mr. Shelton on the ladder "looking around suspiciously ... and letting go with both hands and lunging onto the ground." Our review reveals that interpretation is not the only possible interpretation of the surveillance video. It can also be viewed as showing Mr. Shelton descending the ladder normally, miscalculating which step he is on, stepping downward, and stumbling to the floor upon losing his balance.

The surveillance video clearly shows Mr. Shelton falling from the ladder to the floor. A conclusion as to whether the fall was "staged" or was accidental was largely dependent on the WCJ's evaluation of the surveillance video and Mr. Shelton's testimony in light of her credibility determinations. Based on our review of the record, with due deference to the WCJ's credibility determinations, we cannot say her finding that a work-related accident occurred was manifestly erroneous or clearly wrong.

Causation and Disability :

Smitty's also contends the WCJ committed manifest error both in finding Mr. Shelton sustained an injury to his left knee in the alleged accident and in finding he was temporarily, totally disabled as a result of that injury.

In arguing there was no injury, Smitty's points out that Mr. Shelton had longstanding problems with his left knee and had actually been treated for those same problems only six months earlier. According to Dr. Chiasson's deposition testimony, his findings and the treatments he recommended at the time of Mr. Shelton's August 2015 visits were basically the same as they were following the February 2016 accident. Moreover, the findings of the two MRIs taken in August 2015 and March 2016 were very similar.

It is undisputed Mr. Shelton experienced pain and mechanical symptoms in his left knee intermittently for over two years prior to his initial visit to Dr. Chiasson in August 2015. Dr. Chiasson injected Mr. Shelton's left knee with Depo-Medrol and advised him to return in four weeks. Dr. Chiasson noted that if Mr. Shelton continued to complain of mechanical symptoms after undergoing a series of injections, "he would be a candidate for diagnostic arthroscopy to assess his ACL." Dr. Chiasson did not place any work restrictions on Mr. Shelton at that time.

Following the August 2015 injection, Mr. Shelton did not return to see Dr. Chiasson because he experienced no further problems with his knee at that time. Moreover, he did not miss any work, leave work early, or have any problems with his knee affecting his job performance until after his accident in February 2016

Additionally, the March 2016 MRI indicated a contusion to Mr. Shelton's left knee that was not present on the August 2015 MRI. Following the accident, Mr. Shelton also, for the first time, had a positive McMurray's test, which is an indication of a possible meniscus tear, displayed new symptoms of pain upon active and passive range of motion, resulting in a decreased range of motion, and had tenderness along the medial and lateral joint line. Another new symptom was an inability to climb stairs without difficulty. Based on his treatment of Mr. Shelton before and after the accident, Dr. Chiasson opined it was possible the accident aggravated the condition of Mr. Shelton's left knee.

Significantly, Mr. Shelton experienced no symptoms disabling him from working prior to the accident, but beginning shortly thereafter, work restrictions were imposed on him and it was recommended for the first time that he receive physical therapy. Initially, on February 19, 2016, ARHC placed him on light duty for three days, and he was continued on light duty at his February 24 visit. After he was terminated from Smitty's, Mr. Shelton did not return to ARHC. Following his March 11 visit to Dr. Chiasson's office, his work status was changed to unable to work.

Mr. Shelton's final visit with Dr. Chiasson was on May 16, 2016. He has received no treatment for his left knee since that date. He explained that since Smitty's denied him medical benefits, he has had no money to obtain treatment. Mr. Shelton further testified that he remains unable to work due to his inability to stand long without pain and his knee giving out on him.

A pre-existing disease or infirmity of an employee does not disqualify a workers' compensation claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which benefits are claimed. A disabled employee must prove that before the work-related injury he had not manifested disabling symptoms, but that commencing with the work-injury, the disabling symptoms appeared and there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the work-injury and the activation of the disabling condition. Roullier v. Cypress Healthcare Mgmt. Region IV , 12-0222 (La. App. 1st Cir. 11/2/12), 111 So.3d 360, 364 ; Aucoin v. Dow Chemical Company , 98-1912 (La. App. 1st Cir. 9/24/99), 745 So.2d 682, 684 n.1, writ denied, 99-3596 (La. 2/18/00), 754 So.2d 968.

As evidence that Mr. Shelton was not disabled, Smitty's presented the testimony of Sonya Spears, his estranged wife. She testified she and Mr. Shelton are still married, although they physically separated in June 2016. According to Ms. Spears, from the time of the accident until they separated, Mr. Shelton appeared to be "fine," doing everything he normally did without difficulty. He did not limp or seem to her to be injured. Ms. Spears claimed Mr. Shelton did not take pain medications after the accident and failed to take the medications prescribed for him. On cross-examination, Ms. Spears, who has worked for Smitty's since February 2015, admitted she had a conviction for forgery. She also admitted Mr. Shelton obtained a restraining order against her shortly after their separation due to her breaking out windows at his house.

Given the evidence presented, we find no error in the WCJ's findings that the February 2016 accident caused Mr. Shelton to become disabled due to the aggravation of his pre-existing left knee condition. Prior to the accident, Mr. Shelton had no disabling symptoms and did not miss work as a result of his pre-existing knee condition. Although he had intermittent symptoms for an extended period, after receiving the August 2015 injection, he had no problems with his knee for nearly six months prior to the accident. Further, the medical evidence, including the contusion shown on his March 2016 MRI, the new symptoms he experienced after the accident, and his work status being classified for the first time as unable to work support the WCJ's findings that the accident injured Mr. Shelton and aggravated his pre-existing knee condition. Moreover, Mr. Shelton's testimony concerning his physical inability to work, combined with the medical evidence classifying his work status as unable to work, supported the WCJ's finding that he was temporarily, totally disabled. The WCJ obviously rejected the testimony of Mr. Shelton's estranged wife, which was introduced to contradict Mr. Shelton's testimony regarding his inability to work. Considering the circumstances, together with the WCJ's credibility determinations, we cannot say her factual determinations that Mr. Shelton was disabled, and that the disability was caused by the February 2016 accident, were manifestly erroneous or clearly wrong.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, Smitty's argues the WCJ erred in awarding penalties and attorney fees pursuant to La. R.S. 23:1201(F)(2) because it had a reasonable basis to controvert Mr. Shelton's claim for workers' compensation benefits. Specifically, Smitty's contends the discrepancy between the accident report prepared by Mr. Shelton and the surveillance video provided sufficient information to reasonably controvert his claim. Smitty's further contends the medical evidence establishing that Mr. Shelton's "pre-accident findings, treatments, and recommendations regarding [his] left knee were the same as those following the alleged work accident" provided an additional basis to controvert the claim.

Under La. R.S. 23:1201(F), an employer or insurer may be assessed with penalties and attorneys fees for failure to timely pay indemnity or medical benefits where the employer or insurer has failed to reasonably controvert the claim. See La. R.S. 23:1201(F)(2). A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Clark v. Godfrey Knight Farms, Inc. , 08-1723 (La. App. 1st Cir. 2/13/09), 6 So.3d 284, 297, writ denied, 09-0562 (La. 5/29/09), 9 So.3d 163. Statutes providing for penalties and attorney fees are penal in nature and must be strictly construed.

Authement v. Wal-Mart , 02-2434 (La. App. 1st Cir. 9/26/03), 857 So.2d 564, 574. The claimant bears the burden of proving his entitlement to statutory penalties and attorney fees due to the employer's failure to timely pay workers' compensation benefits. Davis v. Farm Fresh Food Supplier , 03-1381 (La. App. 1st Cir. 5/14/04), 879 So.2d 215, 220. The crucial inquiry is whether the employer has an articulated and objective reason for denying payment at the time it took that action. See Lewis v. Temple Inland , 11-0729 (La. App. 1st Cir. 11/9/11), 80 So.3d 52, 58. A determination of whether an employer or insurer has failed to reasonably controvert a claim is a question of fact subject to the manifest error standard of review. Clark , 6 So.3d at 297.

In the instant case, Smitty's contends it reasonably controverted Mr. Shelton's claim based on the inconsistency between the accident report and the surveillance video. In opposition, Mr. Shelton counters that there is "absolutely no indication that the adjuster took this into consideration at the time medical and indemnity benefits were initially denied in March 2016." From our review of the record, we find it does not support Smitty's contention that it denied Mr. Shelton's claim based on the inconsistency between the accident report and the surveillance video.

When Mr. Shelton's requests for physical therapy and arthroscopic surgery were denied by Mr. Nowak in March and May 2016, respectively, the stated reason for the denials was that "[t]he request, or a portion thereof, is not related to the on-the-job injury." During his deposition, Mr. Nowak, who testified it was his decision to deny Mr. Shelton benefits, was repeatedly asked why he denied indemnity and medical benefits. He never indicated the reason was that Mr. Shelton "staged" the work accident. In fact, he indicated he did not dispute that a work accident had occurred. The reasons Mr. Nowak gave for denying benefits were the fact that Mr. Shelton had been released to light duty and his conclusion that Mr. Shelton's left knee condition was degenerative and totally unrelated to his work accident. Mr. Nowak based his conclusion that Mr. Shelton's condition was degenerative on the March 2016 MRI report, which included an impression of "mucinous degeneration of the [ACL]," and the March 18, 2016 report from Dr. Chiasson's office noting that impression.

We find Mr. Nowak's actions were unreasonable for two reasons. First, he relied on the fact that ARHC released Mr. Shelton to light duty on February 19, while ignoring the fact that Dr. Chiasson's office, beginning on March 11, subsequently classified him as unable to work. Where an employer or insurer initially receives a favorable medical report, but later receives information revealing the possibility of a continuing disability, it may not blindly continue to rely on the initial medical report. The employer or insurer has a continuing duty to investigate and make every reasonable effort to assemble factual and medical information to ascertain whether a claim is compensable before denying benefits. Connor v. Family Dollar Store , 09-1537 (La. App. 1st Cir. 3/26/10), 36 So.3d 339, 350, writ denied, 2010-0959 (La. 6/25/10), 38 So.3d 344. Mr. Nowak's continued reliance, without conducting any further investigation, on Mr. Shelton's initial release to light duty was unreasonable once he received subsequent medical information indicating Mr. Shelton was unable to work.

Additionally, Mr. Nowak was also unreasonable in denying benefits to Mr. Shelton based on the MRI report notation of "mucinous degeneration" without further investigation. The fact that Mr. Shelton had a pre-existing condition in his left knee for which he had been treated approximately six months earlier, combined with the notation, certainly raised grounds to question whether his fall caused his disability. However, the record indicates that rather than investigating the issue of causation further, Mr. Nowak, who did not claim to have any medical training, concluded on his own that Mr. Shelton's fall did not cause him any injury. Apparently, he totally ignored the possibility that the fall aggravated Mr. Shelton's pre-existing condition to the point that he became disabled. Considering that Mr. Shelton was able to work without difficulty prior to the accident, it was unreasonable for Mr. Nowak to have disregarded this possibility. He never obtained a medical opinion from Dr. Chiasson on the issue of causation. Nor did he seek an expert opinion from any other physician. Mr. Nowak failed to fulfill his duty to investigate and make every reasonable effort to assemble medical information to determine whether the fall caused Mr. Shelton's injury before denying him benefits. See Connor , 36 So.3d at 350.

Considering these facts, the record supports the WCJ's finding that Smitty's did not reasonably controvert Mr. Shelton's claim. Smitty's, through its adjuster, Mr. Nowak, acted arbitrarily and capriciously in disregarding its duty to properly investigate the claim before it was denied. See Parfait v. Gulf Island Fabrication, Inc. , 97-2104 (La. App. 1st Cir. 1/6/99), 733 So.2d 11, 25. The WCJ did not manifestly err in assessing statutory penalties and attorney fees against Smitty's.

ASSIGNMENT OF ERROR NUMBER FOUR

Smitty's argues the WCJ violated La. R.S. 23:1201(J) in rendering two attorney fees awards in the amount of $20,000.00 each in, favor of Mr. Shelton. The WCJ made one award for Smitty's failure to timely pay indemnity benefits in violation of La. R.S. 23:1201(B) and the second award for its failure to timely authorize and/or pay medical benefits in violation of La. R.S. 23:1201(E).

Louisiana Revised Statutes 23:1201(J) provides, in part:

Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section ...

In this case, the WCJ erred in making two separate awards of attorney fees for Smitty's failure to timely pay indemnity benefits and the failure to pay medical benefits. Under La. R.S. 23:1201(J), only one award of attorney fees can be made in connection with a hearing on the merits, even when multiple violations have occurred. Russell v. Regency Hospital of Covington, LLC , 08-0538 (La. App. 1st Cir. 11/14/08), 998 So.2d 301, 306. Because Mr. Shelton is entitled to only one award of attorney fees, the second award of attorney fees made by the WCJ (for the failure to pay medical benefits) must be reversed.

In his appellate brief, Mr. Shelton concedes the WCJ erred in making two separate awards of attorney fees, but argues essentially that the remaining award of $20,000.00 should be increased to $40,000.00. (Shelton's appellee br., pp. 28-30) The pertinent factors to be considered in the imposition of reasonable attorney fees in workers' compensation cases include the degree of skill and work involved in the case, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Phillips v. Sanderson Farms, Inc. , 13-0285 (La. App. 1st Cir. 11/1/13), 136 So.3d 27, 31 ; Russell , 998 So.2d at 306. Considering these factors in light of our review of the entire record, we find no error or abuse of discretion in the WCJ's award of attorney fees in the amount of $20,000.00. Accordingly, the remaining award for attorney fees in the amount of $20,000.00 will be affirmed.

ASSIGNMENT OF ERROR NUMBER FIVE

In its final assignment of error, Smitty's contends the WCJ committed legal error in awarding Mr. Shelton $673.23 in weekly compensation benefits, which exceeded the maximum compensation amount allowed by La. R.S. 23:1202(A)(2). Smitty's contends the maximum weekly compensation amount permitted at the time of Mr. Shelton's alleged accident was $649.00. In brief, Mr. Shelton agrees that $649.00 was the maximum weekly compensation rate allowed for his accident and the WCJ should have awarded him compensation benefits in that amount. The judgment of the WCJ will be amended accordingly.

ANSWER TO APPEAL

In an answer to this appeal, Mr. Shelton requests an award of additional attorney fees for the work necessitated by the appeal. Additional attorney fees are usually awarded on appeal when a party appeals, but obtains no relief, and the appeal has necessitated additional work on the opposing party's counsel, provided that the opposing party appropriately requests an increase. Atwell v. First General Services , 06-0392 (La. App. 1st Cir. 12/28/06), 951 So.2d 348, 358, writ denied, 07-0126 (La. 3/16/07), 952 So.2d 699. In this case, since Smitty's has obtained partial relief on appeal, we do not believe an award of additional attorney fees is appropriate and decline to make such an award to Mr. Shelton.

CONCLUSION

For the reasons assigned, the portion of the WCJ's judgment in favor of claimant, Lance Shelton, awarding $20,000.00 in attorney fees against defendant, Smitty's Supply, Inc., for violating La. R.S. 23:1201(E) is reversed. Further, the judgment of the WCJ is amended to reduce the amount of TTD benefits awarded to Lance Shelton from $673.23 to $649.00 per week. The judgment of the WCJ is affirmed in all other respects. The parties are to split the costs of this appeal equally.

REVERSED IN PART; AMENDED IN PART; AND AFFIRMED IN PART; ANSWER TO APPEAL DENIED.

McDonald, J., agrees in part and dissents in part with reasons.

I agree with the majority's affirmance of the judgment awarding medical expenses and temporary total disability benefits to Mr. Shelton; but, I disagree with any award of penalties and attorney fees against Smitty's and would reverse the judgment as to both.

I think the WG manifestly erred in finding that Smitty's failed to reasonably controvert Mr. Shelton's entitlement to benefits. An employer should not be liable for penalties and attorney fees for taking a close factual or legal question to court for resolution. Although the Workers' Compensation Act is be liberally construed in regard to benefits, penal statutes are to be strictly construed. Young v. City of Gonzales , 14-1299 (La. App. 1 Cir. 3/12/15), 166 So.3d 1070, 1077 ; Pitre v. Buddy's Seafood , 11-0175 (La. App. 1 Cir. 8/16/12), 102 So.3d 815, 823, writ denied , 12-2058 (La. 11/16/12), 102 So.3d 41. To determine whether an employer has reasonably controverted a claimant's right, a court must ascertain whether the employer possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time the employer refused to pay all of part of the benefits. Brown v. Texas-LA Cartage, Inc. , 98-1063 (La. 12/1/98), 721 So.2d 885, 890.

When Smitty's denied benefits and medical treatment to Mr. Shelton, it had Mr. Shelton's accident report and a conflicting surveillance video, which gave Smitty's reason to question whether Mr. Shelton had staged the accident. Even if the accident was legitimate, as of March 24, 2016, Smitty's also had conflicting medical documentation regarding whether Mr. Shelton's injuries were degenerative or related to the accident. Mr. Nowak, Smitty's adjuster, stated during his deposition that his denial of benefits was because Mr. Shelton had been released to light-duty work. He also stated that the March 16, 2016 MRI report indicated Mr. Shelton's left knee injury was degenerative and this was the reason benefits were denied. Contrary to the majority's finding, Mr. Nowak did ask Dr. Chiasson's medical opinion on causation. Mr. Nowak's March 24, 2016 email to Smitty's personnel states that "despite our requests , [Dr. Chiasson's] notes did not state that the left knee issues were causally related to the work incident ...." (Emphasis added.)

Viewing all factual and medical information, I think Smitty's possessed sufficient information to reasonably counter Mr. Shelton's claim that his injuries were attributable to a work-related accident. I think the WO committed manifest error is concluding otherwise, and I would reverse all awards of penalties and attorney fees against Smitty's.

      Mr. Shelton knew Smitty's had surveillance cameras, but did not know where the cameras were pointed.

      The term "accident" is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. 23:1021(1).

      The McMurray test is used to evaluate individuals for tears in the meniscus of the knee. It is a rotation test for demonstrating tom cartilage of the knee. A positive test is an indicator for a tear of the meniscus. See Moody v. Cummings , 09-1233 (La. App. 4th Cir. 4/14/10), 37 So.3d 1054, 1058 n.4, writ denied, 10-1106 (La. 9/3/10), 44 So.3d 686.

      An email sent by Mr. Nowak to co-workers on April 30, 2016, after benefits had already been denied, indicated "we are questioning the incident in general based on the evidence and surveillance video." Nevertheless, as stated above, when questioned on this point during his deposition, Mr. Nowak indicated he did not dispute the work accident occurred.

      Under La. R.S. 23:1202(A)(2), the maximum compensation allowed at the time of Mr. Shelton's accident was "seventy-five percent of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law." Subsection (B) provides that the average weekly wage "shall be determined by the administrator of the Louisiana Employment Security Law on or before August first of each year as of the quarter ending on the immediately preceding March thirty-first of each year."