author: WHIPPLE, J.

text:
    BELLE COMPANY, LLC v. STATE of Louisiana, through the DEPARTMENT OF ENVIRONMENTAL QUALITY, Assumption Parish, Mike McDaniel and Chuck Carr Brown.
    No. 2008 CA 2382.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 2009.
    Writ Denied Oct. 9, 2009.

      Ross A. Brupbacher, Robert R. Brous-sard, Lafayette, LA, for Plaintiff/Appellant, Belle Company, LLC.
    James P. Doré, Alan J. Berteau, Baton Rouge, LA, for Defendant/Appellee, Assumption Parish Police Jury.
    Stephen J. Oats, Patrick B. Mclntire, Gordon Square, Lafayette, LA, Elliott Vega, Roger K. Ward Baton, Rouge, LA, for Defendants/Appellees, State of Louisiana, through the Department of Environmental Quality, Mike McDaniel, and Chuck Carr Brown.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   WHIPPLE, J.

[2This matter involves a suit by Belle Company, LLC, (Belle) against the Louisiana Department of Environmental Quality (DEQ), seeking declaratory judgment and damages for inverse condemnation pursuant to LSA-Const. art. I, sec. IV, based on the DEQ’s alleged wrongful refusal to grant Belle’s solid waste permit application through which Belle sought to operate a solid waste landfill on its property in Assumption Parish. The DEQ filed exceptions of lis pendens, lack of subject matter jurisdiction, no cause of action, and prescription. From the trial court’s judgment granting the exception of lis pendens with regard to the actions for declaratory judgment, granting the exception of no cause of action with regard to the action for damages, and alternatively granting the exception of prescription with regard to the action for damages, Belle appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In October 1994, Belle filed an application with the DEQ for a permit to construct and operate a Type I and Type II non-hazardous solid waste landfill in Assumption Parish. On August 15,1997, the DEQ granted Belle’s permit application. Assumption Parish People’s Environmental Action League (APPEAL) filed a petition for review with the district court, naming the DEQ as a defendant and raising various assignments of error. The district court concluded that the DEQ had satisfied its duties as the public trustee in issuing Belle’s permit, but determined that the DEQ had herred in granting a permit to Belle without ensuring prior compliance with LSA-R.S. 30:2157. Accordingly, by judgment dated September 14, 1998, the district court reversed the DEQ’s decision to issue the permit and remanded the matter to the DEQ for further proceedings on the issue of compliance with LSA-R.S. 30:2157.

On appeal to this court by APPEAL, this court concluded that the DEQ’s decision was supported by its factual findings and its articulation of a rational connection between the facts found and the permit issued. Thus, this court concluded that the DEQ had performed its duty as protector of the environment, and APPEAL’S assignments of error were found to lack merit. In re Belle Company, 2000-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225, 239 & 242. However, Belle filed an answer to the appeal, challenging the district court’s finding regarding failure to comply with LSA-R.S. 30:2157. In response to the answer to the appeal, this court found no error in the district court’s reversal of the DEQ’s decision to grant the permit, for failure to require compliance with LSA-R.S. 30:2157 prior to issuance of the permit, and remanded this matter for further proceedings on the issue of compliance with the emergency response statute, LSA-R.S. 30:2157. In re Belle Company, 809 So.2d at 245.

After the matter was remanded to the DEQ, Belle submitted an update to the revised emergency response plan that had been submitted to the DEQ |4during the pendency of the appeal, and public hearings were conducted on the revised contingency plan for hazardous materials emergencies. However, the DEQ also requested that Belle update and supplement some of the data contained in its application that was unrelated to the emergency response issue.

On June 29, 2005, a notice of deficiency was issued, which contained a request that Belle provide a wetlands determination pursuant to LAC 33:VH.521(A)(l)(e)(ii), a wetlands demonstration pursuant to LAC 33:VIL521 (A)(1)(f), if applicable, and documentation that the proposed landfill did not violate existing land-use requirements pursuant to LAC 33:VII.519(N), the applicable Louisiana Administrative Code provisions at that time. Thereafter, by letter dated September 20, 2005, the DEQ informed Belle that the Water and Waste Permits Division had discontinued review of its permit application pending receipt by the DEQ of the wetlands determination, the wetlands demonstration, if applicable, and proper documentation from the local governing body that the proposed use did not violate existing land-use requirements.

In response, Belle filed a petition for writ of mandamus on September 22, 2005, contending that, in making additional requests not related to the emergency response issue, the DEQ had acted beyond the scope of the remand and had reopened the entire permit process. Belle contended that since it had fulfilled its emergency response requirements under LSA-R.S. 30:2157, it was entitled to a writ of mandamus, directing the DEQ’s secretary and assistant secretary to immediately grant Belle’s request for a solid waste disposal permit or show cause to the contrary.

While the district court concluded that a writ of mandamus was inappropriate because of the discretion afforded the DEQ, this court, on | ¿appeal, concluded that because the secretary of the DEQ had failed to render a final decision within the deadline set forth in LSA-R.S. 30:2022(B), Belle was entitled to the issuance of a writ of mandamus, pursuant to LSA-R.S. 30:2050.29, directing the secretary or authorized assistant secretary to act within a specified period of time. In re Belle Company, LLC, 2006-1077 (La.App. 1st Cir.12/28/07), 978 So.2d 977, 985, write denied, 2008-0220, 2008-0229 (La.3/24/08), 977 So.2d 957, 958. Moreover, this court further noted that the prior order of remand by the district court to the DEQ did not authorize reconsideration of Belle’s entire permit application, but, rather, was limited to the issue of Belle’s compliance with the emergency response statute. In re Belle Company, LLC, 978 So.2d at 985-986. Thus, this court reversed the district court’s denial of Belle’s petition for writ of mandamus and remanded the matter to the district court with instructions to issue the writ of mandamus, directing the DEQ to render a final decision on Belle’s application within 30 days of the finality of the court’s opinion. In re Belle Company, LLC, 978 So.2d at 986.

Meanwhile, on September 7, 2007, Belle filed the instant suit against the DEQ for declaratory relief and damages in regard to the DEQ’s alleged wrongful refusal to issue the Type I and Type II sanitary landfill permit to Belle. In its original and amended petitions, Belle sought judgment declaring, in pertinent part, that:

|s(l) The judgments rendered by the district court and this court in In re Belle Company, LLC, 2000-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225, are law of the case between the parties;

(2) Belle has complied with LSA-R.S. 30:2157 by its emergency response submit-tals to the DEQ;

(3) the DEQ and its secretary are bound by the constraints of LSA-R.S. 30:2022 and LAC 33:1.1505 and have no discretion with regard to the application of same;

(4) Belle’s compliance with the mandates of the district court and the appellate court entitles it ipso facto, without any additional consideration, to a Type I and Type II sanitary landfill permit, effective May 27, 2002;

(5) the DEQ, by its inaction with regard to the mandatory time constraints set forth in LSA-R.S. 30:2022 and the applicable Louisiana Administrative Code provisions, illegally expanded the scope of its review of Belle’s permit application;

(6) the DEQ illegally expanded the scope of its review of Belle’s permit application by adding additional conditions as referenced in the DEQ’s September 20, 2005 letter;

(7) the wetlands determination requirement set forth in the DEQ’s September 20, 2005 letter is inapplicable to Belle’s permit application;

(8) the wetlands demonstration requirement set forth in the DEQ’s September 20, 2005 letter is inapplicable to Belle’s permit application; and

(9)the requirement of providing documentation that the proposed use does not violate existing land use requirements is inapplicable to Belle’s permit application.

In addition to its request for declaratory judgment, Belle also contended that the DEQ’s actions in failing to issue Belle’s permit by May 1727, 2002, illegally expanding the scope of its review of the permit application upon remand, and adding additional requirements or conditions to Belle’s permit application upon remand violated Belle’s constitutional right to control, use, and enjoy its land, as guaranteed by LSA-Const. art. I, sec. IV. Thus, Belle contended that the DEQ’s actions were tantamount to an inverse condemnation of Belle’s property, without due process or just compensation. Accordingly, Belle sought judgment against the DEQ, awarding Belle damages for inverse condemnation.

The DEQ responded to the petitions by filing exceptions raising the objections of lis pendens, lack of subject matter jurisdiction, no cause of action, and prescription. With regard to the exception of lis pen-dens, the DEQ averred that the gist of Belle’s lawsuit herein was that the DEQ had damaged Belle by not issuing to Belle the requested landfill permit. The DEQ contended that the allegations and claims in the instant suit were virtually identical to the allegations set forth in the mandamus proceedings, which, at that time, were pending on appeal. Thus, the DEQ sought dismissal without prejudice of the instant suit.

With regard to the exception of lack of subject matter jurisdiction, the DEQ contended that, by means of this declaratory judgment action, Belle was requesting that the district court, in effect, issue the landfill permit, an action over which the district court did not have subject matter jurisdiction. In support of its exception of no cause of action, the DEQ asserted that, under these circumstances, the law did not provide Belle with a cause of action for damages. Alternatively, the DEQ contended that any claim for damages was prescribed on the face of the petition.

| ^Following a hearing on the exceptions, the district court rendered judgment: maintaining the exception of lis pendens with régard to the actions for declaratory judgment, thereby dismissing those actions; maintaining the exception of no cause of action with regard to the action for damages (ie., the inverse condemnation claim), thereby dismissing that action; and, alternatively, maintaining the exception of prescription with regard to the damages claim. Thus, Belle’s claims against the DEQ were dismissed in their entirety.

From this judgment, Belle appeals, contending that: (1) the district court committed legal error in maintaining the DEQ’s exception of no cause of action regarding Belle’s inverse condemnation action against the DEQ, despite the fact that LSA-Const. art. I, sec. 4 and the interpreting jurisprudence require that Belle be compensated to the full extent of its loss as a result of the DEQ’s actions (and delays) which constituted a taking of Belle’s property; and (2) the district court committed legal error in maintaining the DEQ’s exception of prescription regarding Belle’s inverse condemnation action against the DEQ, despite the fact that the DEQ’s taking of Belle’s property did not occur, at the earliest, until September 20, 2005, and despite the fact that the applicable prescriptive period is three years from the date of discovery of the taking.

| ^DISCUSSION

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores, Inc., 2008-0780 (La.App. 1st Cir.11/14/08), 998 So.2d 295, 298, writ denied, 2008-2885 (La.2/6/09), 999 So.2d 785. A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Bayou Liberty Association, Inc. v. St. Tammany Parish Council, 2005-1228 (La.App. 1st Cir.6/9/06), 938 So.2d 724, 728.

Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. LSA-C.C.P. art. 931; Bayou Liberty Association, Inc., 938 So.2d at 728. In addition, all facts pled in the petition must be accepted as true. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ourso, 998 So.2d at 298. Because the exception raises a question of law, appellate courts review a judgment maintaining a peremptory exception raising the objection of no cause of action de novo. Bayou Liberty Association, Inc., 938 So.2d at 728.

Article I, section 4(B) of the Louisiana Constitution provides authority for the bringing of an inverse condemnation claim: “Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into the court for his benefit.” Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37, 60. One aim of article I, sec. 4 was 110to assure that the State and its subdivisions compensate owners for any taking or damaging of their rights with respect to things as well as for any taking or damaging of the objects of those rights. State, Department of Transportation and Development v. Chambers Investment Company, Inc., 595 So.2d 598, 602 (La.1992).

Moreover, our constitution requires compensation even though the State or its subdivision has not initiated expropriation proceedings in accordance with the statutory scheme set up for that purpose. Although the legislature has not provided a procedure whereby an owner can seek damages for an uncompensated taking or damaging, an action for inverse condemnation arises out of the self-executing nature of the constitutional command to pay just compensation. Chambers Investment Company, Inc., 595 So.2d at 602. The action for inverse condemnation provides a procedural remedy to a property owner seeking compensation for land already taken or damaged against a governmental or private entity having the powers of eminent domain where no expropriation has commenced. Chambers Investment Company, Inc., 595 So.2d at 602.

To establish inverse condemnation, a party must show that: (1) a recognized species of property right has been affected; (2) the property has been taken or damaged in a constitutional sense; and (3) the taking or damaging was for a public purpose under LSA-Const. art. I, sec. 4. Suire, 907 So.2d at 60.

In the instant case, Belle alleged in its amended petition that its “rights to the landfill [pjermit” and its “rights ‘to ... control, use, enjoy, and protect ...’ its land” were adversely affected by the DEQ’s actions in “not issuing Belle’s [pjer-mit by May 27, 2002,” “illegally expanding the scope of its review of the [pjermit [ajpplication,” and “adding conditions to Belle’s | t ¶ [pjermit,” actions which Belle contended were “tantamount to an inverse condemnation of Belle’s property.” Accordingly, in determining whether Belle has stated a cause of action for inverse condemnation, we must address whether these rights that Belle contends were affected constitute property or a recognized species of property right within the purview of an inverse condemnation claim and, if they do constitute recognized property rights, whether these rights have been taken or damaged in a constitutional sense. Suite, 907 So.2d at 60; Chambers Investment Company, Inc., 595 So.2d at 603.

In support of its contention that the rights asserted do not constitute a recognized species of property right that would support an inverse condemnation claim, the DEQ contends that the right to use and own private property “is subject to reasonable statutory restrictions and the reasonable exercise of the police power,” LSA-Const. art. I, § 4, and that the State has lawfully exercised its police power in the environmental arena. The DEQ argues that takings cases do not expand the notion of “property” to allow the permit itself to be considered the property which has been taken; thus, it argues, Belle’s “property” at issue is the real estate, not Belle’s expectation of a permit from the DEQ. The DEQ further points out that, because of the public health and safety issues involved, no property owner has a constitutionally protected right to build a landfill on his property, unless a permit is granted by the DEQ. See LSA-R.S. 30:2155. Quoting Mitchell Arms, Inc. v. United States, 7 F.3d 212, 217 (Fed.Cir.1993), cert. denied, 511 U.S. 1106, 114 S.Ct. 2100, 128 L.Ed.2d 662 (1994) the DEQ contends that “as against reasonable state regulation, no one has a legally protected right to use property in a manner that is injurious to the safety of the general public.”

Ii20n the other hand, Belle argues that its “right to use its property for lawful purposes” is a recognized species of right that has been affected. Citing Annison v. Hoover, 517 So.2d 420 (La.App. 1st Cir. 1987), writ denied, 519 So.2d 148 (La.1988), and Rivet v. State of Louisiana, Department of Transportation and Development, 93-369 (La.App. 5th Cir.3/16/94), 635 So.2d 295, 298, writ denied, 94-1606 (La.11/29/94), 646 So.2d 397, Belle further asserts that a governmental taking may occur in the form of zoning or rezoning or in the form of the denial of a requested permit.

In Rivet, the permit at issue was not a solid waste disposal permit, but, rather, was a driveway permit, and the property right affected was access to a state highway. Rivet, 635 So.2d at 298. Thus, because the denial of ingress and egress to the state highway substantially impaired the landowner’s ability to use and develop his property, the court concluded that the landowner had established a taking. Rivet, 635 So.2d at 298.

This court, in Annison, addressed the distinction between “physical takings” and “regulatory takings” and concluded that regulatory programs that affect property values may or may not constitute takings. Annison, 517 So.2d at 423. In Annison, the plaintiffs were receiving lot rental payments for three mobile homes located on their property when the Board of Aider-men for the city of Denham Springs adopted ordinances annexing the property into the city of Denham Springs, zoning the property “B-I” | ^residential, and restricting the use of mobile homes within the city limits. Annison, 517 So.2d at 421.

On review of the district court’s rejection of the plaintiffs’ claims against city officials, this court noted that the United States Supreme Court in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), held that a governmental taking may occur in the form of zoning or rezoning. Annison, 517 So.2d at 422-423. This court then held that a regulatory program, such as the zoning ordinances at issue therein, that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value. Annison, 517 So.2d at 423.

Thus, in Annison, this court recognized the possibility that a plaintiff may state a cause of action for inverse condemnation as the result of a “regulatory taking” in certain limited circumstances. However, we conclude that the facts alleged herein, which we must take as true for purposes of consideration of this exception, are readily distinguishable and simply cannot support a claim for inverse condemnation.

Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under conditions established by law. LSA-Const. art. I, § 4; LSA-C.C. art. 477; Chambers Investment Company, Inc., 595 So.2d at 603. However, the rights of a land owner are always “subject to reasonable statutory restrictions and the reasonable exercise of the police power.” LSA-Const. art. I, § 4.

Article IX, section 1 of the Louisiana Constitution provides:

| ]4The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.

As part of the State’s exercise of its police power, the DEQ was created and given jurisdiction over matters affecting the regulation of the environment within the state, including the regulation of solid waste disposal. LSA-R.S. 30:2011. The legislature gave the DEQ the primary responsibility for protecting the environment, and the DEQ has specifically been given the directive “to control and regulate pollution of the environment caused by solid waste disposal practices.” LSA-R.S. 30:2154(A)(3); In re American Waste and Pollution Control Company, 93-3163 (La.9/15/94), 642 So.2d 1258, 1262. To carry out this duty, the DEQ has been empowered to grant or deny environmental permits. In re American Waste and Pollution Control Company, 642 So.2d at 1262. As such, a land owner does not have a recognized right to build and operate a landfill on his property without prior approval by the DEQ. See LSA-R.S. 30:2155.

In Allied-General Nuclear Services v. United States, 839 F.2d 1572 (Fed.Cir.), cert denied, 488 U.S. 819, 109 S.Ct. 61, 102 L.Ed.2d 39 (1988), the United States Court of Appeals addressed the issue of whether the Nuclear Regulatory Commission’s refusal to recommence consideration of a corporation’s application for a permit to operate a plutonium reprocessing plant constituted the “taking” of a property right for which | ^compensation was due. In concluding that the corporation had no legally protected property right to operate the plutonium reprocessing plant, the court relied upon the basic premise that, as against reasonable state regulation, no one has a legally protected right to use property in a manner that is injurious to the safety of the general public. Allied-General Nuclear Services, 839 F.2d at 1576.

Similarly, when faced with the question of whether the suspension and revocation of permits for the importation of assault rifles by the Bureau of Alcohol, Tobacco, and Firearms (ATF) constituted a compen-sable taking under the Fifth Amendment, the federal appellate court concluded that the firearm importer’s expectation of selling assault rifles in the United States was not a property right protected by the Fifth Amendment. Mitchell Arms, Inc. v. United States, 7 F.3d at 217. The court held that enforceable rights sufficient to support a taking claim against the government cannot arise in an area voluntarily entered into and one which, from the start, is subject to pervasive government control. Mitchell Arms, Inc., 7 F.3d at 216. The court noted that the firearms importer voluntarily entered the firearms import business, thereby knowingly placing itself in the governmentally controlled arena of firearms importation. Thus, the court concluded that the firearms importer’s expectation of selling assault rifles in the United States, which expectation flowed from the ATF permits, could not be said to be a property right protected under the Fifth Amendment. Mitchell Arms, Inc., 7 F.3d at 216.

Additionally, the court noted that the interest affected by the ATF’s actions— the right to sell assault weapons in domestic commerce — is not a right inherent in the firearm importer’s ownership of those weapons. Rather, that right comes into being only upon the issuance of an import permit. Consequently, because the firearms importer’s ability to import the rifles and sell them in the United States was at all times entirely subject to the ATF’s regulatory power, any expectation arising from the import permits did not constitute a property right protected by the Fifth Amendment. Mitchell Arms, Inc., 7 F.3d at 217.

Likewise, in seeking a permit from the DEQ to operate a solid waste landfill on its property, Belle voluntarily sought to enter into an arena subject to pervasive government control. As such, the interest affected by the DEQ’s actions — the right to operate a solid waste landfill — is not a right inherent in Belle’s ownership of immovable property in this state. Rather, such a right would come into being only upon the issuance of the permit by the DEQ. Consequently, we conclude that, because Belle’s ability to operate a solid waste landfill was at all times entirely subject to the DEQ’s regulatory power, any expectation arising from Belle’s submission of a solid waste disposal permit application did not constitute a property right protected by art. I, sec. 4 of the Louisiana Constitution. See Mitchell Arms, Inc., 7 F.3d at 217.

117While Belle does have a right to timely consideration by the DEQ of its permit application, see LSA-R.S. 30:2022(B)(2), given the heavily regulated nature of solid waste disposal practices and given the public health and safety issues concerned, we find that such a right is not a property right within the context of an inverse condemnation claim. Moreover, a remedy for a violation of that right is provided in LSA-R.S. 30:2050.29, which authorizes the applicant to seek a writ of mandamus requiring timely consideration of the application. Indeed, Belle sought, and received, just that relief in the mandamus proceeding it filed on September 22, 2005. See In re Belle Company, Inc., 978 So.2d at 985.

Accordingly, considering the foregoing, we find no error in the portion of the district court’s judgment maintaining the DEQ’s exception of no cause of action and dismissing Belle’s claims for inverse condemnation against it. Having found that the maintaining of the exception | iSof no cause of action was legally correct, we pretermit consideration of the trial court’s alternate ruling maintaining the exception of prescription.

CONCLUSION

For the above and foregoing reasons, the June 27, 2008 judgment of the district court dismissing Belle’s claims against the DEQ is affirmed. Costs of this appeal are assessed against Belle Company, Inc.

AFFIRMED.

DOWNING, J., dissents.

CARTER, C.J., Concurs.

      . Belle's permit application has had a protracted procedural history and has been the subject of two reported decisions of this court. See In re Belle Company, LLC, 2006-1077 (La.App. 1st Cir. 12/28/07), 978 So.2d 977, writs denied, 2008-0220, 2008-0229 (La.3/24/08), 977 So.2d 957, 958, and In re Belle Company, LLC, 2000-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225. The background facts and procedural history stated herein are taken in large part from these prior reported decisions.

      . While Belle's permit application was pending before the DEQ, the legislature enacted LSA-R.S. 30:2157, effective June 20, 1997, pertaining to emergency response standards. The statute provides that prior to the issuance of a permit, the applicant for a solid waste disposal facility shall review and consider the ability of the local emergency response agencies and medical care facility to respond to a hazardous material incident at the facility. The applicant is further required to obtain certification from the local fire department, local emergency medical services agency, and the local hospital as to their ability to respond to such an emergency. LSA-R.S. 30:2157(A) &(B).
      Although the effective date of the statute predated the DEQ's permit decision in this case, the DEQ made no reference to these specific requirements in its decision, noting instead that Belle had promised to secure the appropriate emergency response certifications before becoming operational.

      . In its original petition, Belle also named as defendants: Assumption Parish; Mike McDaniel, in his official capacity as Secretary of DEQ; and Chuck Carr Brown, in his official capacity as Assistant Secretary of DEQ. However, in its first amended petition, Belle amended the original petition to list the named defendants as only DEQ and Assumption Parish. Belle's claims against Assumption Parish involved certain ordinances passed by the Assumption Parish Police Jury, which Belle contended interfered with its ability and right to use its property as a solid waste landfill. These claims are the subject of the related appeal of Belle Company, LLC v. State of Louisiana, through the Department of Environmental Quality, 2008 CA 2381, 11 So.3d 1242, also handed down this date.

      . In its memorandum in support of the exception of lis pendens, the DEQ noted that at the time of filing the exception, this court had rendered its decision in the mandamus case, but writ applications were pending before the Louisiana Supreme Court.

      . The judgment's silence as to the exception of lack of subject matter jurisdiction is deemed a denial or rejection of that exception. See Wood v. Brian Harris Autoplex, 2004-1316 (La.App. 1st Cir.8/3/05), 923 So.2d 17, 21 n. 3.

      . Belle has not challenged the district court's maintaining of the exception of lis pendens and resulting dismissal of its declaratory judgment claims herein. Accordingly, the portion of the district court's judgment dismissing Belle’s claims for declaratory judgment is not before us.
      We further note that in an additional assignment of error, Belle challenges the district court’s June 12, 2008 judgment, maintaining the exception of res judicata filed by the Assumption Parish Police Jury. However, that judgment is the subject of the related appeal of Belle Company, LLC v. State of Louisiana, through the Department of Environmental Quality, 2008 CA 2381, and that additional assignment of error is addressed therein.

      . Subsection (B) of article I, section 4 of the Louisiana Constitution was amended by Acts 2006, No. 851. However, the above-quoted provision remained unchanged.

      . Belle concedes in brief to this court that the DEQ in fact issued the requested permit to Belle in June 2008. However, Belle contends that the DEQ’s issuance of the permit does not affect its right to inverse condemnation damages for the DEQ's unilateral and summary act of discontinuing its review of Belle's permit application in September 2005, given that the DEQ's discontinuing of review of Belle's application caused Belle a "temporary loss of use of its property.” Belle notes that the United States Supreme Court in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles. California, 482 U.S. 304, 318, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987), held that a "temporary” regulatory taking may require the payment of just compensation pursuant to a claim of inverse condemnation.

      . We note that Allied-General Nuclear Services involved a taking claim brought pursuant to the Fifth Amendment of the United States Constitution. While Belle, in its petitions, relied primarily upon Louisiana Constitution art. I, sec. 4 in asserting its inverse condemnation claim, it also contended that the DEQ had violated its Louisiana and United States constitutional rights. The language of both the Fifth Amendment of the United States Constitution and of art. I, sec. 4 of the Louisiana Constitution provides that private property shall not be taken for public use without just compensation, Annison, 517 So.2d at 423, and we find the federal cases we discuss herein to be instructive.

      . The court further noted that in revoking the permits, the ATF withdrew its prior authorization for the firearms importer to sell the assault rifles in the United States, but that, otherwise, the firearms importer retained complete control over the rifles and could have done anything it wished with the rifles except import them into the United States. Mitchell Arms, Inc., 7 F.3d at 217. Similarly, while the DEQ’s refusal to continue consideration of Belle's permit application prevented Belle from gaining the necessary permission to operate a solid waste landfill on its property, Belle nonetheless retained complete control over its property and could use the property for any lawful purpose.

      . In so holding we recognize there is no blanket rule that one may never prevail on a takings claim if participating in a heavily regulated industry, Maritrans, Inc. v. United States, 40 Fed.Cl. 790, 795-797 (1998), but that the asserted claim may be considered in the context of reasonableness of the property owner's expectation and the safety issue underlying the regulation. See for example NRG Company v. United States, 24 Cl.Ct. 51, 52-53 (1991), in which the owners of mineral prospecting permits that authorized them to explore for coal on an Indian reservation brought actions claiming that the government’s cancellation of the permits pursuant to the Cancellation Act constituted a taking under the Fifth Amendment. On cross-motions for summary judgment, the court held that the cancellation of the permits constituted a taking of plaintiffs’ property.
      The court found that the appropriate standard for evaluating a taking claim was set forth in Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986), where the Court listed three factors of particular significance to the inquiry: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct "investment-backed expectations”; and (3) the character of the government action. Evaluating these factors, the court determined that a federal taking of private property had occurred therein. Regarding the first factor, the court found that plaintiffs had invested substantial sums and had suffered significant economic hardship. Regarding the second factor, the court determined that the government had modified established rules after pertinent agreements had been entered into, which was not reasonably foreseeable. However, as noted therein (and unlike the instant case), regarding the character of the governmental action, the court noted that there were no issues of safety involved. NRG Company, 24 Cl.Ct. at 60-63.

        See also United Nuclear Corporation v. United States, 912 F.2d 1432, 1433 (Fed.Cir.1990), in which a mining company alleged that the failure of the Department of the Interior to approve its mining plan was a taking without just compensation. The company had been awarded uranium leases on reservation land by the Navajo Tribal Council, but the Council later objected to the mining plan. The Secretary of the Interior refused to approve the mining plan without tribal approval, approval which had never before been required.
      In finding that a taking had occurred, the court looked to the Connolly factors listed above. The court also distinguished Allied-General Nuclear Services, Inc. v. United States, (the nuclear fuel reprocessing permit case), noting that Allied-General involved issues of national safety, and, thus, the court had found no legally protected property right. However, because the Secretary’s actions did not involve national safety, and the property interest taken was the plaintiff's leasehold interest in the minerals, not a mere expectation that plaintiff would be permitted to engage in mining, the court found that a "taking” had occurred. United Nuclear Corporation, 912 F.2d at 1437-1438.

        See further Acceptance Insurance Companies, Inc. v. United States, 84 Fed.Cl. 111 (2008), where an insurance holding company brought suit against the U.S., alleging that a regulatory taking had occurred when the government had blocked the proposed sale of certain crop insurance policies to a private third party purchaser. The federal appellate court found that the plaintiff did not have a cognizable property interest in selling its property to a third party purchaser under the terms of a proposed, non-binding agreement. Acceptance Insurance Companies, Inc., 84 Fed.Cl. at 116. See also American Pelagic Fishing Company v. United States, 379 F.3d 1363, 1366-1368 (Fed.Cir.2004), where the owner of the vessel which had been transformed for use as a commercial fishing vessel brought suit alleging that the revocation of permits allowing it to conduct fishing operations for mackerel and herring in the Exclusive Economic Zone (EEZ) of the United States in the Atlantic Ocean constituted a taking. The federal appellate court concluded that the owner did not have a protected property interest in the permits and authorizations or in the right to use its vessel to conduct fishing operations. American Pelagic Fishing Company, 379 F.3d at 1366-1367, 1374.
      In finding no protected property interest, the federal appellate court held that plaintiff did not and could not have a property interest in the fishery permits and that plaintiff likewise did not have a property interest in the use of its vessel to fish in the EEZ. Citing Mitchell Arms, Inc. v. United States, 7 F.3d 212 (Fed.Cir.1993), (the denial of the permit to import weapons case), the court noted that the right to use the vessel to fish in the EEZ was not inherent in the ownership of the vessel. American Pelagic Fishing Company, 379 F.3d at 1381-1383.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge. CHARLES R. JONES, Judge.

license: Public Domain

text:
    Monna MATHIEU v. NEW ORLEANS PUBLIC LIBRARY.
    No. 2008-CA-1503.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 2009.
    Opinion Granting Rehearing Nov. 18, 2009.

      Brett J. Prendergast, New Orleans, LA, for Plaintiff/Appellant.
    Penya Moses-Fields; City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge TERRI F. LOVE).
   CHARLES R. JONES, Judge.

hThe Appellant, Monna Mathieu, appeals the decision of the Civil Service Commission which denied her appeal and upheld the decision of the Appointing Authority to suspend her and terminate her employment. We amend, and affirm as amended.

Ms. Mathieu is a civil service employee with permanent status who is employed by the New Orleans Public Library (“NOPL”). Her employment with the NOPL began when she was hired on August 29, 1983. She was appointed to her last classification, as a Management Services Supervisor, on April 27, 2003. As a Management Services Supervisor, she was the business manager for the NOPL.

The facts surrounding Ms. Mathieu’s employment are slightly contested. The NOPL avers that Ms. Mathieu failed to properly perform required tasks and that said failure eventually led to the suspension and termination of her employment. The NOPL specifically alleges that Ms. Mathieu: untimely processed and paid bills and invoices beginning January 2007; failed to provide financial reports to the Library Committee beginning April 2006; and failed to obtain approval prior to submitting the 2008 budget |2for the NOPL. Her employment was suspended for five (5) days for failing to deposit checks paid to the NOPL from January 2007 to July 2007 and her employment was suspended for three (3) days for violating sick leave policy.

Ms. Mathieu asserts that as the business manager, her direct supervisor was the City Librarian, who is also the Director of the NOPL. Throughout her tenure, the position of the City Librarian was held by several individuals. Ms. Geraldine Harris served as Interim City Librarian/Director until November of 2006, at which time the position of City Librarian was vacant until the Public Library Board appointed Ms. Donna Schremser to the position on September 10, 2007. However, between November 2006 and September 10, 2007, Ms. Mathieu avers that Mr. Lance Query assumed the responsibilities of the City Librarian under the pretense of being a Special Consultant to the President of the Board of Administration of the Library. She further avers that in this position, Mr. Query did not have a contract with the Public Library Board nor did the Board ever pass any motions to confer any supervisory powers on Mr. Query.

After Ms. Schremser assumed the position of the City Librarian, the NOPL notified Ms. Mathieu of the termination and suspension of her employment for alleged infractions through correspondence dated November 15, 2007. Ms. Mathieu had a pristine disciplinary record prior to the incidents giving rise to this appeal.

Ms. ^Mathieu appealed her suspensions and termination to the New Orleans Civil Service Commission (“CSC”), which upheld the decision of the NOPL and denied her |3appeal on October 6, 2008. Ms. Mathieu timely filed the instant appeal from the CSC’s decision.

Ms. Mathieu raises six (6) assignments of error on appeal:

1.) the CSC manifestly erred in concluding that Lance Query was Ms. Math-ieu’s superior or supervisor;
2.) the CSC erred in concluding that the Library Board President, Irvin May-field, had the authority to give Ms. Mathieu instructions;
3.) the CSC erred in failing to recognize the illegality of requiring Ms. Math-ieu to perform work for a private corporation — the Library Committee — as a part of her city employment;
4.) the CSC manifestly erred in concluding that she violated past protocols in submitting the 2008 budget;
5.) the CSC manifestly erred in concluding that Ms. Mathieu failed to take action relative to the backlog of deposits: and
6.) the CSC manifestly erred in finding that Ms. Mathieu violated the sick leave policy and this impacted the efficiency of the service.

“The Library is a governmental institution administered by the City of New Orleans and subject to the pertinent state laws.” Robbins v. New Orleans Public Library, 208 So.2d 25, 31 (La.App. 4.1968). In Robertson v. Department of Police, 07-0795, p. 6 (La.App. 4 Cir. 10/3/07), 968 So.2d 779, 782, we set forth the standard of review in civil sendee disciplinary cases as follows:

|4[T]he appellate court has a multifaceted standard of review. First, as in other civil matters, deference must be given to the factual findings made by the Commission, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion, (citing Bannister v. Department of Streets, 95-404, p. 8 (La.1/16/96), 666 So.2d 641, 647 (citations omitted)).

Legal cause exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). A decision by the Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Civil Service Commission. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647.

While we recognize that Ms. Mathieu raises several assignments of error, the majority of these assignments are not germane to an appellate review of whether her conduct impaired the efficiency of public service for the New Orleans Public Library. Even if we accept her argument that she did not have a City Librarian to report to, it would be unreasonable to assume that her alleged failure to perform the duties of her office cannot go unpunished because she did not have an immediate supervisor. Whether it was appropriate for the NOPL board to allow Mr. Query, as a volunteering consultant, to assume the role of the City Librarian is not the issue before us. The ultimate question before us is whether Ms. Mathieu’s actions and/or inactions impaired the efficiency of the NOPL. Thus, we pretermit discussing assignments of error one (1) through three (3) because they are not relevant to whether her conduct impaired the efficiency of public service for the NOPL.

The fourth assignment of error raised by Ms. Mathieu is that the CSC manifestly erred in concluding that she violated past protocols in submitting the 2008 budget. She | ¡¡avers that despite the CSC’s decision that she was obligated to submit the 2008 budget to the City Librarian and the Library Board prior to its submission to the City Council, there is no evidence to support the CSC’s position that this is a requirement. She further asserts that because there was not a City Librarian at the time, there was no one to submit the budget to for review and signature prior to submitting the budget to the City Council. Ms. Mathieu avers that it was not normal procedure for her to submit the budget to the Library Board prior to submitting the budget to the City Council.

The NOPL contends that Ms. Mathieu submitted the Library’s 2008 budget in direct violation of protocol because she was required to submit the budget to the acting City Librarian for signature — Mr. Query — and to obtain the approval of the Library Board. The NOPL asserts that she had followed said protocol for three years prior to this incident. As a result of her failure to follow protocol, the NOPL’s personnel were unaware that the budget was submitted, and were forced to expend energy and resources to create a new budget only to discover that the work had already been done. The creation of additional and unnecessary work for the NOPL’s staff impaired the efficiency of the library’s operations and decreased the efficiency of the public service according to the NOPL.

Irvin Mayfield is the chairman of the NOPL board. He testified that he is number one in charge of the NOPL. He further testified that he was shocked by Ms. Mathieu’s submission of the 2008 budget directly to the City Council. He testified that the procedure was for her to submit the budget to the NOPL board for approval prior to presenting the budget to the City Council. He further testified that Ms. Mathieu was never authorized by the NOPL board to present the budget to the City Council. He testified that her conduct made it necessary for other staff to prepare a budget and that said preparation took time because there was not a business manager available to give the | ¡¡staff direction on preparing the budget. In essence, Ms. Mathieu’s conduct made the NOPL appear incompetent because, as Mr. Mayfield testified, the NOPL board looked as though it did not know what it was doing.

Additionally, included in the record are internal NOPL e-mails from NOPL staff who were trying to figure out how to prepare the 2008 budget. In an interoffice email to members of the NOPL staff, Ms. Rica Trigs — a NOPL employee — expressed that the NOPL board did not see the budget submitted by Ms. Mathieu and mentioned that the budget is normally reviewed by the library administration and board prior to its submission to the City Council. Ms. Trigs testified to the same at Ms. Mathieu’s Civil Service hearing.

In light of the exhibits and testimony introduced in the case sub judice, it is clear that Ms. Mathieu violated normal budgetary procedure; created extra and unnecessary work for her NOPL co-workers; and made the NOPL appear incompetent before the City Council. Thus, her conduct impaired the efficiency of the public service within the NOPL. This assignment of error is without merit.

The fifth assignment of error raised by Ms. Mathieu is that the CSC manifestly erred in concluding that she failed to take action relative to the backlog of deposits. She avers that Cassandra Smith, her subordinate co-worker, testified that she (Ms. Mathieu) took steps to obtain additional help to address the backlog of checks which needed to be deposited from the business office, but her efforts were rejected by others in the Library. Ms. Mathieu asserts that she should not be disciplined for her office being understaffed when said understaffing was not due to her own fault.

The NOPL contends that it established through testimony and exhibits that Ms. Mathieu was responsible for depositing library funds. The NOPL further avers that Ms. Mathieu acknowledged that checks written to the NOPL were not deposited. It further |7asserts that Ms. Schremser testified that the delay in depositing checks resulted in some accounts being closed and caused other patron’s accounts to become overdrawn.

We note that Ms. Smith testified that money remained uncounted for the business office from February 2007 to approximately August 2007, in a safe and a file cabinet in Ms. Mathieu’s office. She testified that only Ms. Mathieu had the key to the safe. She testified that she would find checks on Ms. Mathieu’s desk that had been written to the NOPL months earlier. She further testified that the NOPL would lose money when checks were deposited after checking accounts had already been closed. Additionally, the CSC observed that even Ms. Mathieu admitted that checks were not deposited, yet she failed to advise her supervisors that her office was too busy and understaffed to be able to get the checks deposited. Ms. Smith testified that Ms. Mathieu told her that she (Ms. Mathieu) had asked Mr. Query to hire someone to count the deposited money. Mr. Query testified that he offered Ms. Mathieu additional staff to assist her, but she did not follow-up on said offer.

Ms. Mathieu testified that pre-Katrina, there were ladies in her office who handled depositing checks and monies for her office, but post-Katrina the employees did not return and were not replaced. She further testified that it was not her responsibility to deposit the monies and. that Ms. Smith was in charge of making deposits when she (Ms. Smith) was not handling her primary responsibility of dealing with accounts payable. Lastly, she testified that she had no idea that there were boxes of checks that had to be deposited because Ms. Smith received the checks and monies to be deposited.

Considering that Ms. Mathieu ran the business office for the NOPL and that Ms. Smith was her subordinate, the responsibility for ensuring that monies paid to the NOPL were deposited remained with Ms. Mathieu. The record reflects that post-Katrina Ms. Mathieu’s responsibilities as Management Services Supervisor were augmented due to the loss of staff in her office; nevertheless, it was still her responsibility to ensure that | ¿monies paid to the NOPL were deposited. Her failure to deposit checks written to the NOPL impaired the efficiency of the public service in two ways: 1) the library was unable to receive payment on checks on closed accounts; and 2) patrons who wrote checks to the library suffered overdrawn accounts as a result of late deposits being made. One longtime patron even wrote the NOPL requesting that her check be found and deposited. Ms. Mathieu’s failure to timely deposit checks caused the library to lose money, and adversely affected patrons of the NOPL system. Thus, we find that this assignment of error is without merit.

The sixth assignment of error raised by Ms. Mathieu is that the CSC manifestly erred in finding that Ms. Math-ieu violated the sick leave policy and that her absence impacted the efficiency of the service. She avers that the CSC erred in determining that Mr. Query was her supervisor and that she should have advised him that she was taking sick leave ahead of her first absence when he was not her superior. Lastly, she avers that no evidence was introduced to prove that her failure to advise Mr. Query of her leave impacted the operations of the library.

The NOPL contends that it established that Ms. Mathieu had knowledge of the proper sick leave procedures and did not follow them; thus, legal cause for her suspension was established.

Civil Service Rule VIII, Section 2.4 states:

An employee who has taken sick leave shall file with his or her appointing authority a letter stating the cause of the absence from work provided that:
a) If the amount of sick leave exceeds six (6) consecutive working days, a registered physician must verify to the nature of the illness or injury and the necessity for absence after the sixth consecutive day.

Upon our review of the record, we note that Ms. Mathieu submitted a note from her doctor to the NOPL’s personnel office. The note simply stated that Ms. Mathieu Jgwould be under her doctor’s care from July 11, 2007 to August 15, 2007. However, aside from her doctor’s note, Ms. Math-ieu herself did not prepare a letter to her Appointing Authority explaining why she would be taking an extended sick leave as required under the above-referenced rule. Her subordinate, Ms. Smith, testified that Ms. Mathieu did not even directly apprise her that she (Ms. Mathieu) was taking sick leave. Given Ms. Mathieu’s failure to recognize Mr. Query as her immediate supervisor, there is still no plausible reason why she did not advise others of her absence, even a member of the NOPL board. Furthermore, her lengthy absence from her office, which she admits was understaffed, clearly impacted the productivity of the overall business management of the library. This assignment of error is without merit.

However, while we find that the CSC did not error in finding that Ms. Mathieu impaired the efficient operation of the NOPL, we also find that the penalty imposed herein, is too harsh, arbitrary and capricious. “In determining whether disciplinary action was based on good cause and whether the punishment was commensurate with the infraction, this court should not modify the Civil Service Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion.” Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094-95. A decision is “arbitrary and capricious” if there is no rational basis for the CSC’s action. Id. at p. 2, 964 So.2d at 1095. In consideration of Ms. Mathieu’s twenty five years of employment with the NOPL and her lack of a disciplinary record — aside from the instant incidents — we find that termination of her employment is excessive. Further, the operation of the NOPL was less than stellar during this period, with short staff and no Director in place. Thus, we lTnvacate the penalty of termination and impose a suspension of ninety (90) days without pay upon Ms. Mathieu, and order reinstatement thereafter.

DECREE

For the foregoing reasons, the decision of the Civil Service Commission is affirmed as amended.

AMENDED AND AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

CHARLES R. JONES, Judge.

h The Application for Rehearing filed by the New Orleans Public Library (“the NOPL”) is granted for the limited purpose of clarifying an issue raised by the NOPL in its Application for Rehearing. The NOPL avers that our Court did not address the termination of Monna Mathieu for her unauthorized submission of the NOPL’s 2008 budget to the City Council of New Orleans. For the reasons set forth herein, we maintain the decree rendered herein.

To insure clarity, this court does find that Ms. Mathieu’s act of submitting the NOPL’s budget to the City Council did impair the efficient operation of the NOPL. However, we find that the termination of Ms. Mathieu for this infraction and the others cited by the NOPL, to be harsh, arbitrary and capricious.

“In determining whether disciplinary action was based on good cause and whether the punishment was commensurate with the infraction, this court should not modify the Civil Service Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion.” Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094-95. A decision is “arbitrary and capricious” if there is no rational basis for the CSC’s action. Id. at p. 2, 964 So.2d at 1095. In consideration of Ms. Mathieu’s twenty five years of employment with 12the NOPL and her lack of a disciplinary record — aside from the instant incidents — we find that termination of Ms. Mathieu’s employment is excessive. Moreover, the overall operation of the NOPL was less than stellar during this post Hurricane Katrina period, with short staff and no Director of the NOPL in place. Thus, we vacate the penalty of termination for these infractions, and maintain our prior imposition of a suspension of ninety (90) days without pay upon Ms. Mathieu, and order reinstatement thereafter.

DECREE

For the foregoing reasons, we grant the application for rehearing of The New Orleans Public Library, and maintain the decree of this Court previously rendered.

APPLICATION FOR REHEARING GRANTED.

      . The CSC found one claim made by the NOPL to be meritless: the claim that Ms. Mathieu untimely paid library vendors.


author: AMY, Judge.

text:
    STATE of Louisiana v. Dewayne Shaun LEWIS.
    No. 09-60.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      William E. Tilley, District Attorney, Mark H. Kramar, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, DeWayne Shaun Lewis.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

[,The defendant entered a guilty plea to one count of armed robbery as part of a plea agreement in which the State agreed to dismiss other charges. The trial court sentenced the defendant to fifteen years at hard labor, without the benefit of probation, parole, or suspension of sentence. On appeal, the defendant’s attorney filed an Anders brief with this court. For the following reasons, we affirm the defendant’s conviction and sentence. We grant the motion to withdraw.

Factual and Procedural Background

The State alleged that, in September 2007, the defendant and an accomplice entered a convenience store in Leesville. Armed with a weapon, the two men allegedly took in excess of one thousand dollars from the cash register and from a customer.

By bill of information, the State charged the defendant and the alleged accomplice with one count of armed robbery, in violation of La.R.S. 14:64. The State also charged the two men with one count of simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2; one count of theft of a firearm, in violation of La.R.S. 14:67.15; one count of conspiracy to commit simple burglary of an inhabited dwelling, in violation of La.R.S. 14:26 and La. R.S. 14:62.2; one count of conspiracy to commit theft of a firearm, in violation of La.R.S. 14:26 and La.R.S. 14:67.15; and one count of conspiracy to commit armed robbery, in violation of La.R.S. 14:26 and La.R.S. 14:64.

The defendant initially entered a plea of not guilty to the above charges. However, on June 4, 2008, the defendant entered a guilty plea to one count of armed robbery pursuant to a plea agreement wherein the State dismissed the remaining charges. The trial court sentenced the defendant to serve fifteen years at hard labor, |2without the benefit of probation, parole, or suspension of sentence. The trial court subsequently denied the defendant’s motion for reconsideration of sentence.

On appeal, defense counsel filed a brief seeking to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for error patent on the face of the record. Having reviewed the record in this regard, we find no errors patent.

Anders Analysis

The defendant’s counsel alleges that no errors exist that would support reversal of the defendant’s convictions and sentences. Accordingly, he seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit set forth the Anders analysis as follows:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

|sThe Louisiana Supreme Court approved this analysis in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176.

Pursuant to the Anders analysis enunciated in Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the bill of information, and the transcripts. This review indicates that the defendant was properly charged by bill of information, that he was present and represented by counsel at all stages of the proceedings, and that he entered a free and voluntary guilty plea after being advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Furthermore, the sentences imposed were legal.

DECREE

Having found no issues to support an assignment of error on appeal, we affirm the defendant’s conviction and sentence. We grant defense counsel’s motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.


author: MICHAEL E. KIRBY, Judge.

text:
    Raleigh RICHARDS v. ST. BERNARD PARISH GOVERNMENT.
    No. 2009-C-1133.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 2009.

      Guice A. Giambrone, III, William H. Reinhardt, Jr., David B. Parnell, Jr., Blue Williams, L.L.P., Metairie, LA, for Respondent.
    Robert H. Urann, Robein, Urann, Spencer, Picard & Cangemi, APLC, Me-tairie, LA, for Reltor.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY. .
   MICHAEL E. KIRBY, Judge.

I, STATEMENT OF THE CASE

Relator, Elizabeth Richards, seeks review of a judgment of Office of Workers’ Compensation granting the St. Bernard Parish Government’s partial motion for summary judgment. For the reasons that follow we grant the writ and reverse.

FACTS

Relator Elizabeth Richards is the widow of Raleigh Richards, a deceased St. Bernard Parish Firefighter. In February, 2009, Mrs. Richards filed a disputed claim for compensation with the Office of Worker’s Compensation in which she sought death benefits pursuant to La. 23:1231 claiming that her husband’s illness and death were work related.

Reserving the question of whether Raleigh Richards suffered a compensable injury, the St. Bernard Parish Government filed a partial motion for summary judgment alleging that any death benefits could not include indemnity benefits because Raleigh Richards was retired and earning no wages at the time of death. 12Respondent alleged that if compensability is shown, the only benefits owing would be limited to burial expenses.

The Worker’s Compensation Judge granted respondent’s partial motion for summary judgment finding that the Raleigh Richard’s widow is not entitled to any wage related benefits under the act, and that the only benefits to which Mrs. Richards was entitled were reasonable funeral expenses. Relator’s timely application for review follows.

DISCUSSION AND RECOMMENDATION

Worker’s compensation death benefits are provided for under Title 23, Chapter 10 as follows:

§ 1281. Death of employee; payment to dependents; surviving parents
A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
B. (1) If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.
(2) However, if the employee leaves no legal dependents entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to each surviving parent of the|sdeceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.
§ 1251 Persons conclusively presumed dependents
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
(2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution.
§ 1254 Dependency at the time of accident and death
In all cases provided for under this Part the relation or dependency must exist at the time of the accident and at the time of death, and the mere expectation or hope of future contribution to support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.
§ 1255. Widow or widower; living with spouse at time of injury or death
No compensation shall be payable under this Part to a surviving spouse unless he or she was living with the deceased spouse at the time of the injury or death, or was then actually dependent upon the deceased spouse for support.

In its partial motion for summary judgment, respondent cited Arledge v. Dolese Concrete Co., 2000-0363 (La.App. 1 Cir. 6/6/01), 807 So.2d 876 (Fogg, J. dissenting), in support if its argument that because Raleigh Richards was earning no wages at the time of his death then no benefits pursuant to La. R.S. 23:1231 are owed.

In Arledge, the workers’ compensation judge awarded death benefits to the widow of an employee after finding that his social security benefits and union |4pension constituted “wages” that entitled his widow to death benefits upon his death twelve years after he retired. On appeal, the First Circuit Court of Appeal reversed the award, holding that no indemnity death benefits were owed. Initially, the Court outlined the difficulty in equating pension and social security benefits with “wages,” stating:

Death benefits are designed to replace the earnings of an employee killed in a work-related accident. The amount of the benefit payment, as set out in La. R.S. 23:1232, is a statutorily mandated percentage of “wages.” Louisiana Revised Statute 23:1021(10) defines “wages” as “average weekly wage at the time of the accident” and provides a formula to determine the average weekly wage. Social security benefits do not appear in § 1021’s definition of “wages.” Once wages from employment (as opposed to benefits from retirement) are ascertained, then a percentage is paid to the survivors who were dependent on those earnings. See La. R.S. 23:1232.

Arledge, p. 4, 807 So.2d at 879.

Accordingly, the Court concluded that the worker’s compensation judge erred, stating:

Louisiana Revised Statute 23:1021(10) defines wages as “average weekly wage at the time of the accident” as stated above. Further, La. R.S. 23:1021 provides different formulas for determining the average weekly wage of workers who are paid hourly, part-time employees, employees who have successive employers, seasonal employees, and employees who are paid monthly, annually, or based on a unit, piecework, commission, or other basis. Clearly, it does not appear that the Legislature intended to provide workers’ compensation death benefits to the survivors of retired employees based upon the retiree’s social security and pension benefits, which are passive income, but rather, intended to provide workers’ compensation death benefits to the survivors of those currently employed based upon the employee’s wages, which are active income.

Arledge, p. 5, 807 So.2d at 879-880.

| ¿Relator contends that the trial court erred in granting respondent’s partial motion for summary judgment. Relator notes that Arledge is not controlling jurisprudence in this Circuit and argues that Johnson v. City of Lake Charles, 04-455 (La.App. 3 Cir. 9/29/04), 883 So.2d 521, which rejected Arledge in favor of a more liberal approach, is the better reasoned opinion and should be followed.

In Johnson, the Third Circuit ruled that the widow of a deceased firefighter who died from lung cancer was entitled to weekly death benefits, even though her husband had retired and was not receiving any wages at the time of his death. In declining to follow Arledge, the court noted with approval that the dissenting judge “pointed out that nothing in La. R.S. 23:1231 requires that the employee be gainfully employed until the moment of death for the benefit to be due.” Johnson, p. 5, 883 So.2d at 525. “Rather, the statute established entitlement and references the calculation of the death benefit payment, which is based on the injured employee’s wages at the time of the accident. Id. [Arledge, p.5, 807 So.2d] at 880.” Johnson, p. 5, 883 So.2d at 525.

Furthermore, citing Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993) the court noted that the workers’ compensation act is remedial in nature and “is to be liberally construed in favor of the injured employee.” Additionally, the court noted that La. R.S. 23:1031.1(A), grants a dependent of an employee who dies from an occupational disease the same recovery rights “as if [the] employee received personal injury by accident arising out of and in the course of his employment.” Accordingly, the court concluded that “to limit death benefit recovery to only those cases in which an employee is actually killed in a work-related accident would be to ignore the clear language of La. R.S. 23:1031.1(A).” Johnson, p. 5, 883 So.2d at 525.

^Furthermore, the court determined that the case was governed by the Heart and Lung Act, La. R.S. 33:2581, which provides that a firefighter’s survivors “shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity.” (emphasis supplied).

The court concluded that if it applied Arledge it would leave the widows of many employees without a remedy solely on the basis the “fortuity of the timing of the progression of the disease and not its relation to the employment situation.” Johnson, p. 6, 883 So.2d at 525.

The court also rejected the City of Lake Charles’s argument that Mr. Johnson’s retirement precluded recovery of death benefits because he was no longer receiving “wages” stating:

To accept this premise would be to deny the liberal construction in favor of the injured employee. The benefits awarded Mrs. Johnson were based on Mr. Johnson’s average weekly wage at the time of his retirement and not on his retirement pension or social security benefits. As pointed out by the dissent in Arledge, nothing in La. R.S. 23:1231 required that Mr. Johnson be gainfully employed at the moment of his death for the death benefit to be due Mrs. Johnson. Additionally, even under a rigid “wage” construction, technically, Mr. Johnson’s retirement benefits were directly based on his past wages.

Johnson, p. 6, 883 So.2d at 525.

The Third Circuit had cause to revisit the issue in McClure v. City of Pineville, 2006-279 (La.App. 3 Cir. 12/6/06, 944 So.2d 795), which concerned a claim for benefits by the widow of a deceased fireman who died of lung cancer three years after his retirement. As in Johnson, the defendant cited Arledge but also urged the [7court to reject Johnson on the basis that pertinent language in La. R.S. 23:1231 and La. R.S. 23:1251 established the court’s error in that case. The City of Pineville argued that although Section 1251 provides that a surviving spouse with whom the deceased employee is living at the time of accident or death is “conclusively presumed to be wholly and actually dependent upon the deceased employee,” this presumption did not relieve a surviving spouse who was living with the deceased employee at the time of his death of proving that she was “actually and wholly dependent upon his earnings for support.” La. R.S. 23:1231.

The Court acknowledged that Section 1251’s presumption appeared to fall short of satisfying the “earnings” requirements of Section 1231; however the court looked to section 1255 and associated jurisprudence and concluded that where dependency is presumed, “contribution to support” i.e. “earnings” need not be proved.

The court then looked to the record and found that Mrs. McClure proved that she lived with Mr. McClure at the time of his death and that the conclusive presumption of La. R.S. 23:1251 applied to her. Accordingly, the court ruled that the worker’s compensation judge did not err in awarding Mrs. McClure death benefits.

CONCLUSION

Admittedly, the Third Circuit’s approach to the proper application of La. R.S. 23:1231 is somewhat strained as it can be argued that the court’s focus on the |sevidentiary presumptions of dependency are simply unnecessary when no “wages” are being earned.

Nevertheless, it is apparent that the legislature failed to properly account for workers who die as a result of long latency occupational diseases. It may appear, as respondent argues, that under the Johnson approach dependents will benefit from double recovery; however, there is nothing in section 1231 that prevents a dependent from receiving a death benefit on the account of an employee who is also retirement eligible at the time of death. We find it significant that the legislature did not prescribe any type of death benefit offset when pension benefits are available or being received as it did with total disability benefits. See La. R.S. 23:1225.

Respondent suggests that Arledge was correctly decided because the legislature enacted La. 23:1231 as a means to replace lost earnings not as a means to supplement retirement benefits. However, although the section certainly acts to provide for lost earnings, the strongly remedial nature of the statute is evidenced by subsection 1231(B)(2) which a provides a lump sum payment to both parents of a deceased employee when the employee leaves no dependents.

While there are difficulties associated with either Circuit’s approach, we conclude that Johnson reflects the better application. Accordingly, we grant the writ and reverse the judgment granting respondent’s partial motion for summary judgment.

WRIT GRANTED; JUDGMENT REVERSED.

      . The court cited Haynes v. Loffland Bros. Co., 215 La. 280, 291, 40 So.2d 243, 247 (1949); where it was observed: "the courts have consistently held that both relationship and con-tribuüon to support at the time of the injury and death must be proved in all cases where dependency is not conclusively presumed.”

      . It should also be noted that La. R.S. 23:1225(C)(1) does not provide for worker's compensation benefits to be offset for tenure-based retirement pension benefits. An offset is only available under disability benefit plans in the proportion funded by the employer.


author: MOORE, J.

text:
    Gene YEE, Mary Yee, Jeffrey Ryan Yee, Scott Perucca and Jennifer Perucca, Plaintiff-Appellants v. IMPERIAL FIRE & CASUALTY INS. CO., Casino Cabs, Inc., Georgiana Jones, Donnie O’Quinn, Imperial Fire & Casualty Ins. Co., Gail Falcon, American International South Ins. Co., State Farm Mutual Automobile Ins. Co., and State of Louisiana DOTD, Defendant-Appellees.
    No. 44,802-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      W. Brett Cain, for Appellants.
    Cook, Yancey, King & Galloway by: Robert Kennedy, Jr., for Appellees Geor-giana Jones, Casino Cabs & Imperial Fire & Casualty Co., in its Capacity as Liability Insurer of Georgiana Jones & Casino Cabs.
    Michael S. Hubley, Zelda W. Tucker, for Appellee State Farm Mutual Automobile Ins. Co.
    Richie, Richie & Oberle, LLP by: Paul D. Oberle, for Appellees Donnie O’Quin & Imperial Fire & Casualty Co., in its Capacity as Liability Insurer of Donnie O’Quin.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

|, Gene Yee, the victim of a rear-end collision, appeals a judgment that awarded him general damages of $12,000 and special damages of only one-half the bill for his hospital visit, and denied his claim for dental work allegedly necessitated by the accident. Imperial Fire & Casualty, Yee’s host driver’s insurer, and State Farm, Yee’s own UM carrier, answer the appeal, asserting that general and special damages were excessive. For the reasons expressed, we amend to award the entire cost of Yee’s hospital visit, but otherwise affirm.

Factual Background

To celebrate Independence Day 2002, three residents of east Texas — Gene Yee, his son Ryan, and their friend Scott Peruc-ca — came to the Shreveport-Bossier area to visit the casinos. Early on the morning of July 4, they boarded a Casino Cab, a 1991 Crown Victoria driven by Georgiana Jones, to ride across the river from Har-rah’s (now known as Sam’s Town) in Shreveport to Horseshoe in Bossier City.

Before they crested the 1-20 bridge, they encountered a 1973 Chevy truck stalled in the right lane. The truck’s driver, O’Quin, was putting gas in the tank (his fuel gauge was broken and he kept a filled two-gallon container on board for these occasions) while his passenger, Baker, was waving traffic around the stationary vehicle. All witnesses described the traffic as light at that hour of the morning. The Casino Cab drove up behind the truck and stopped.

All three occupants of the cab testified that they implored Ms. Jones to drive around the truck, and O’Quin testified that Baker signaled them to |2pass; however, Ms. Jones sat in place, took out her cell phone and called 911 to report the stalled truck. Yee testified that as a retired Dallas police officer, he knew that stopping on the Interstate was very hazardous, and he yelled at her to move, but she would not be dissuaded from her phone call.

At this time a 1996 Isuzu Hombre pickup driven by Gail Falcon also started to crest the bridge. Ms. Falcon did not notice the two vehicles stopped in her lane directly ahead; she rear-ended the Casino Cab, which in turn struck the Chevy truck. She later pled guilty to refusing a breathalyzer test. Photos of the Casino Cab show a substantial impact, with the rear bumper pushed nearly to the front of the rear tire fender.

Shreveport EMS drove Yee to the Christus Schumpert emergency room, where he reported facial contusions (two black eyes) and chest pain. The admission report also noted bigeminy (a kind of irregular heartbeat), diabetes, coronary artery disease, hyperlipidemia (excessive fats and lipids in the blood), and poison ivy rash on his legs. Yee testified that he told them he chipped three teeth in the impact, but the admission report does not mention this. Apparently because of the chest pains and irregular heartbeat, and Yee’s history of coronary artery disease, bypass surgery and other risk factors, doctors kept him at Schumpert overnight. The discharge summary noted facial contusions and back pain without radiculopathy, as well as heart and circulatory conditions. Schumpert’s bill was $10,898.30.

| .¿Procedural History

Yee and the other passengers of the Casino Cab, and their respective spouses, filed suit in June 2003. It began with five plaintiffs and the following defendants: Casino Cabs, the cab driver, Ms. Jones, and their insurer, Imperial; the driver of the Isuzu truck, Ms. Falcon, and her insurer, American International; Yee’s own UM carrier, State Farm; and Louisiana Department of Transportation and Development. State Farm alleged that it already paid Yee $5,000 under his PIP coverage. Ms. Jones filed a cross-claim against O’Quin and Imperial.

Before trial in October 2008, the plaintiffs dismissed DOTD. At the start of trial, the injured parties’ wives dismissed their claims; Imperial, in its capacity as O’Quin’s liability carrier, settled with the plaintiffs for policy limits; and Ms. Jones’s cross-claim was dismissed for her failure to appear.

At trial, Yee testified that when he got to the emergency room, he was more worried about his heart than anything else; he had two prior heart attacks, a bypass operation and diabetes (at first, however, he insisted he was not diagnosed with diabetes until a year after this incident), and stayed at Schumpert overnight because of heart-related issues. He also testified that he chipped three teeth in the accident, and tried to tell the intake personnel that he had “teeth in his mouth,” but they apparently paid him no heed. His dentist proposed to crown the teeth for $3,357.00. Yee also claimed that since the accident, he has had persistent problems with diminished hearing and wax buildup in his left ear, which struck the cab’s headrest in the collision; he disputed his own doctor’s assessment that ^hearing loss resulted from long exposure to noise (particularly gunfire as a policeman) and not the accident. He took physical therapy from July 12 through August 8, but disagreed with the therapist’s discharge report that he had “met all goals.” He also testified that he never had irregular heartbeat until this accident, and did not know what the discharge summary meant when it said the bigeminy was “of unknown etiology.” Finally, Yee testified that because of the accident, he had to dissolve one of the work crews in his landscaping business, resulting in a loss of nearly $14,000 over several months’ time; however, he could not explain his own tax returns (prepared by a CPA), which actually showed a small increase of gross earnings from 2001 to 2002.

Shortly after trial, American International and Ms. Falcon settled with the plaintiffs.

Action of the Trial Court

The district court rendered a ruling on liability and apportionment of fault, finding the three cab passengers free of fault, and assigning fault 30% to O’Quin, 50% to Ms. Falcon and 20% to Ms. Jones.

In a subsequent ruling on quantum, the court called the impact “significant” and alluded to Yee’s “various maladies,” but found that his “most significant complaints are not medically and legally connected to the accident.” The court considered it “indeed a difficult exercise to determine what portions” of the Schumpert invoice could be ascribed to the accident, so it awarded one-half the total. The court found that special damages (EMS and physical therapy) arising from the accident and soft-tissue injury |swere recoverable, but those for irregular heartbeat, hearing loss and chipped teeth were not. The court awarded general damages of $12,000 and denied the claim for loss of income to Yee’s landscaping business.

Yee’s special and general damages totaled $20,066.98. Reduced to Ms. Jones’s 20% fault, Yee’s award against Imperial was $4,013.40. Because Yee’s total damages did not exceed his underlying liability coverage, the judgment dismissed his claims against State Farm for UM proceeds.

Yee has appealed, raising three assignments of error seeking increased damages. Imperial, as Casino Cabs’ insurer, has answered seeking reduced damages. State Farm, Yee’s UM carrier, has also answered, adopting Imperial’s position in ex-tenso.

Discussion: Emergency Room Expenses

By his first assignment of error, Yee urges the court abused its discretion in refusing to award all medical expenses incurred at Schumpert. Yee concedes he owes the burden of proving causation by a preponderance of the evidence, but urges he is entitled to the presumption of causation under Housley v. Cerise, 579 So.2d 973 (La.1991), as he was in good health before the accident, symptoms began after the accident and continuously manifested themselves afterward, and the medical evidence shows a reasonable possibility of a causal connection. He asserts he was indeed in good health prior to the accident, with no chest, neck or back pain, no facial lacerations, and under no medical care. He therefore concludes | fithat he is entitled to the presumption that all the care he received at Schumpert resulted from the accident.

Imperial responds that Yee was demonstrably not in good health before the accident, with more than one heart attack, coronary artery disease, a bypass operation, diabetes and hyperlipidemia. Imperial submits the court was well within its discretion to reject the Housley presumption. It further contends that Yee failed to prove by a preponderance that even 50% of his hospital bill resulted from the accident; he merely offered a large hospital statement. Citing the discharge report (“Bigeminy as above, new onset, unknown etiology for now”), Imperial urges the evidence shows that the accident did not cause the irregular heartbeat, and Yee failed to show which specific items, if any, of the $10,898.30 total, resulted from the accident. It seeks to reverse the entire award.

A person injured through the fault of another is entitled to full indemnification for the damages caused thereby. La. C.C. art. 2315; Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70. The plaintiff must prove fault, causation and damages. Id.; Hanks v. Entergy Corp., 2006-477 (La.12/18/06), 944 So.2d 564. Nevertheless, a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Wainwright v. Fontenot, supra; Touchard v. SLEMCO Elec. Foundation, 99-3577 (La.10/17/00), 769 So.2d 1200. The tortfeasor is required to indemnify the cost of overtreatment or unnecessary medical treatment unless the overtreatment was incurred in bad faith. Green v. Nunley, 42,343 (La.App. 2 Cir. 78/15/07), 963 So.2d 486; Etheredge v. St. Paul Mercury Ins. Co., 35,832 (La.App. 2 Cir. 4/3/02), 814 So.2d 119; Revel v. Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.2/2/96), 666 So.2d 1084, recon. denied, (La.3/22/96), 669 So.2d 1226.

The record shows that Yee was not in good health prior to the accident and hence not entitled to the Housley presumption that it caused his irregular heartbeat, arterial disease and diabetes. However, the fact that he suffered from these conditions only amplifies the need and reasonableness of his extensive ER and hospital treatment. When a person in Yee’s condition sustains obvious trauma (bruised face, chest and back pain), he will likely need more observation and diagnostics than a young, healthy person who was in the same accident. The Schumpert medical record shows comprehensive monitoring of a fragile patient. It is, in effect, an obvious example of taking the victim as the tortfeasor finds him and indemnifying him for all the natural and probable consequences of the tort.

Moreover, there is no showing whatsoever that Yee incurred unnecessary or excessive treatment in bad faith; in such a case, it is an abuse of discretion not to award the full extent of initial medical treatment. Etheredge v. St. Paul Mercury, supra; Revel v. Snow, supra.

The district court abused its discretion in disallowing part of the hospital treatment. The judgment will be amended to award the entirety of Schumpert’s bill.

| fjlenlal Repairs

By his second assignment, Yee urges the district court abused its discretion in denying a causal link between his chipped teeth and the accident. He cites his own uncontradicted testimony that his teeth were damaged in the accident, and submits there was no valid reason for the court to discount it. He asks this court to enter judgment for the dentist’s visit, $316.00, and the estimate to repair his teeth, $3,357.00.

Imperial responds that the Schumpert admission report said Yee’s head was “atraumatic” and the whole hospital record is silent as to his teeth. Further, Yee’s testimony that he told ER personnel he “had teeth in his mouth” was simply not credible. Imperial contends this portion of the judgment should be affirmed.

Causation is a factual finding which the appellate court will not reverse absent manifest error. Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 557. In order to reverse a trial court’s factual finding, the appellate court must review the entire record and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Coutee v. Global Marine Drilling Co., 2005-0756 (La.2/22/06), 924 So.2d 112. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. When the fact finder’s determination is based on its decision to credit or discredit the testimony of a witness, that finding can virtually never be manifestly erroneous. Adams v. Rhodia Inc., 2007-2110 (La.5/21/08), 983 So.2d 798; Green v. Nunley, supra.

Strikingly, the hospital record from Schumpert never mentions chipped teeth. Yee’s testimony that his “heart was more of an issue at that time” might explain his failure to mention another, minor injury when he first arrived at the ER; however, Yee spent nearly 36 hours at Schumpert, undergoing extensive obsei-vation, but the chart is totally silent as to any dental issues. Moreover, Yee’s claim of lost income as a result of the accident, when his tax returns actually showed increased gross earnings in 2002, may have influenced the district court’s view of his credibility.

On this record, we cannot say the court was plainly wrong in finding that Yee failed to prove, by a preponderance of the evidence, that he chipped his teeth in this accident. The denial of his claim for dental repairs will be affirmed.

General Damages

By his final assignment, Yee urges that the award of $12,000 in general damages is unreasonably low. He concedes that general damages usually fall within the court’s vast discretion, but asserts that when the award is based on an erroneous legal conclusion it is not entitled to the same discretion. Johnson v. State, 95-0003 (La.App. 1 Cir. 10/6/95), 671 So.2d 454, writ denied, 95-2666 (La.1/5/96), 667 So.2d 522. He argues that denying the entirety of the ER visit and the chipped teeth constituted an erroneous legal conclusion. He submits that $5,000 would be reasonable for the chipped teeth alone. Risk v. State, 549 So.2d 1272 (La.App. 3 Cir.1989).

^jjjlmperial responds that Yee sustained bruises and soft-tissue injuries of brief duration; by August 8, after only 11 therapy sessions, he was discharged with “increased range of motion” and with all goals having been met. Imperial submits that the award was actually generous, as $2,500 has been affirmed for more serious injuries, as in Jones v. Thomas, 27,140 (La.App. 2 Cir. 8/23/95), 660 So.2d 86, writ denied, 95-2351 (La.12/8/95), 664 So.2d 426, and Westley v. Allstate Ins. Co., 05-100 (La.App.5/31/05), 905 So.2d 1127. It asks this court to reduce the award, not increase it.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve “mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802, and citations therein. Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Kaiser v. Hardin, supra. This vast discretion is such that the appellate court should rarely disturb an award of general damages. Hae Woo Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Yee was a passenger in a cab that was rear-ended at a fairly high speed and slammed into the rear of a stalled truck. The district court properly described the impact as “significant,” and the experience was compounded by the exasperation of vainly ordering his driver, Ms. Jones, to move the cab before it happened. In the collision, he sustained facial cuts and bruises and immediately noticed chest and back pain. He was taken to | nthe ER where, because of his preexisting condition, he spent the night at the hospital. He attended therapy for under one month and appears to have met all goals. The medical evidence did not show that this accident caused any permanent aggravation of his preexisting heart and vascular disease; it refuted any suggestion that the accident caused his hearing loss. Although he offered some evidence to this effect, he did not convince the district court that he either damaged his teeth in the accident or lost any earning capacity because of his injuries.

Considering the magnitude of the collision, Yee’s prior medical problems, his successful rehabilitation, and the absence of any lingering or permanent consequences, we find no abuse of the district court’s discretion in awarding general damages of $12,000. It is neither inadequate nor excessive. This portion of the judgment will be affirmed.

Conclusion

For the reasons expressed, the judgment is amended to award Gene Yee the entirety of the Christus Schumpert hospital bill, $10,898.30. Yee’s total damages, $22,516.13, are reduced to Ms. Jones’s 20% share of the fault, or $5,103.23. Judgment is therefore rendered in favor of the plaintiff, Gene Yee, and against Georgiana Jones, Casino Cabs and Imperial Fire & Casualty Co., in the amount of five thousand, one hundred, three dollars and 23/100 ($5,103.23). In all other respects, the judgment is affirmed.

Appellate costs are to be paid one-half by Gene Yee and one-half by Imperial Fire & Casualty Co.

AMENDED AND AFFIRMED.

      . The police report, although used at trial to refresh the investigating officer's memory, was not offered in evidence. At oral argument, plaintiff's counsel stated that Ms. Falcon was driving about 55 miles per hour.

      . Jeffrey Yee and Scott Perucca, the other remaining plaintiffs, received smaller awards for which they executed a receipt and satisfaction.