author: SAUNDERS, Judge.

text:
    Stephan JONES v. CITY OF PINEVILLE.
    No. 09-1227.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Rehearing Denied May 12, 2010.

      Daniel Elmo Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiff/Appellant, Stephan Jones.
    Mark Felipe Vilar, Vilar & Elliott, Alexandria, LA, for Defendant/Appellee, City of Pineville.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

| (This is a civil service case where a firefighter was terminated for insubordination by a municipality. The insubordinate act was that the firefighter failed to give a valid urine sample at the designated facility for a drag screen after having been ordered by his superior to do so. The drug screen was required by the city’s standard operating procedure, as the firefighter was involved in a minor vehicle accident while on duty.

The firefighter appealed his termination to the civil service board. The board upheld his termination. The firefighter then appealed the board’s decision to the appropriate district court. The district court affirmed the board’s decision. The firefighter has now appealed to this court, alleging several assignments of error.

We reverse the district court’s affirmation of the board’s decision. We find that the firefighter’s termination was not in good faith and was unreasonable, as the municipality failed to prove that it performed its affirmative duty to give the firefighter written notice of his termination and the reasons for that termination as required by La. R.S. 33:2500(D). We order that the firefighter be reinstated to his former position and that the firefighter be paid back pay from the time of his illegal termination.

FACTS AND PROCEDURAL HISTORY:

On July 23, 2003, Stephan Jones (Jones) was employed by the Pineville Fire Department. On that date he was on duty and driving a fire truck owned by the City of Pineville (Pineville). Jones had been employed by Pineville for approximately three years holding the rank of Firefighter First Class with no prior disciplinary action taken against him. While driving the fire truck back to the fire station, Jones was involved in a minor accident with a United Stated Postal Service truck, wherein he, 12while attempting to pass the postal truck, struck the truck’s side mirror. Jones was driving without a valid driver’s license in his possession when the accident occurred.

Before leaving the accident scene, pursuant to Pineville’s substance abuse policy, Jones was ordered by Chief Doug Nugent to report to the Rapides Regional Medical Center’s Industrial Medicine Clinic to provide a urine sample for a drug screen. Captain Eddie Laborde was instructed to transport Jones to the facility.

Upon leaving the accident scene, Jones requested that Captain Laborde bring him to the fire station so that he could retrieve his driver’s license. While at the station, Jones collected items from the saddlebag of his motorcycle, had a glass of water, and used the restroom. Captain Laborde then took Jones to the facility to provide the urine sample.

At the facility, Jones was given a urine cup and was instructed to go into the restroom by the attending nurse, Dianne McClellan. When Jones returned with the sample, Nurse McClellan tested it to determine whether the sample was within the temperature range necessary to be susceptible to a valid drug screen. According to McClellan, the temperature strip indicated that the sample’s temperature was too high to be tested, and she informed Jones that he would need to submit another sample. At this point, Jones apparently became irate with Nurse McClellan and refused to submit another sample. Jones then left the facility to await Captain Laborde’s return. Meanwhile, Nurse McClellan called Diane Ray, Pineville’s Human Resource Director, and informed Ray of Jones’ failure to submit a valid urine sample.

Chief Nugent instructed Captain La-borde to return to the facility and retrieve Jones. When Captain Laborde arrived, Jones got into the vehicle and informed Captain Laborde that the urine sample was determined to be invalid. Captain | -¡Laborde then told Jones that failure to submit a valid sample could cost him his job. Captain Laborde then returned Jones to the facility to see if Jones could submit a second sample.

Once inside, Captain Laborde called Chief Gary Morrow. Chief Morrow told Captain Laborde to transport Jones back to administration. After Captain Laborde and Jones returned to the fire department, a meeting took place between Chief Nu-gent, Chief Morrow, and Captain Laborde while Jones waited outside. Chief Morrow then informed Jones that he had the option of resigning or being placed on suspension without pay. Jones refused to resign and was sent home- on immediate suspension.

On July 24, 2003, Chief Morrow sent a letter to Jones informing him that an internal affairs investigation was being conducted and that Jones needed to report to Lieutenant Dan Rachal of the Pineville Police Department. Jones gave a recorded statement before Lieutenant Rachal and Acting Chief Barry Tull. On July 31, 2003, Chief Morrow delivered a letter to Jones entitled “Predisciplinary Hearing-Notice of Charges.” This letter notified Jones that a pre-disciplinary hearing would take place on August 4, 2003.

Following the August 4, 2003, pre-disci-plinary hearing, Jones was terminated. Jones appealed his termination to the Pineville Civil Service Board (the Board). A hearing was held in front of the Board on October 15, 2003, and was continued on February 9, 2003, March 17, 2005, and April 13, 2005. The Board rendered its decision on April 13, 2005, to unanimously uphold Jones’ termination. Jones then properly appealed the Board’s decision to the Ninth Judicial District Court raising several issues that he alleged made his termination improper. One of the issues Jones praised to the district 'court was that he had never received proper written notification of his termination or the reasons for that termination from the appropriate appointing authority, the mayor of Pine-ville, Mayor Clarence Fields. This was the first time that Jones raised this issue. The district court affirmed the Board’s decision to uphold Pineville’s termination of Jones, finding that the termination was in good faith ■ and' was reasonable. Jones then timely perfected this appeal, alleging the following assignments of error:

ASSIGNMENTS OF ERROR:

1. Jones’ termination was not proper, as no written notification of such or reasons for that termination was given to him by the appointing authority, the Mayor of Pineville, in compliance with La. R.S. 33:2500(D).

2. The Board violated Jones’ constitutional rights to procedural due process and to a fair notice and meaningful opportunity to be heard, in specific, by limiting the presentation of evidence on behalf of Jones at the partially conducted hearing and failing to address any issues to Jones’s deficient notice.

3. At the first hearing, the only witness (who was allowed to testify again over objection) acknowledged the failure of the city to follow rules on drug testing, thereby calling for the granting of Jones’ motion to have that issue dismissed from appeal (which motion was denied and is appealed herein), and yet the Board decided to still consider those issues although the City failed to comply with drug testing policies, which rises to the level of state constitutional issues regarding unlawful searches and seizures, thereby divesting the Civil Service Board of jurisdiction of such issues and violating the equal protection laws of Jones and likewise the Standard Operation Procedure regarding Jones’ action to a nurse at the time of the test is constitutionally protected speech and further the SOP is unconstitutionally vague and over broad, and thus the Board has no jurisdiction to determine that matter.

4. Relatedly, the issues related to drug testing involve the lack of proper involvement of a MRO as required by law and other violations regarding the collection and charting of events related to this case, including the incompetency and impeachment of the nurse collection site person who was on duty at Rapides General Hospital.

5. At the hearing, the Board attempted to limit the cross-examination of witnesses called by the City of Pineville in a most egregious, clear and unfair manner and constituting gross departure from proper conduction of hearings even where formal rules of evidence need not be followed.

|s6. The untimely investigation and improper pre-diseiplinary hearing falls outside of statutory law and has prejudiced Jones over the significant amount of time between the initial hearing and conduction of the hearing now.

7. The Board improperly considered objected to evidence and also imper-missibly expanded the punishment to include items never noticed by Loud-ermill requirements.

8. The Board did not consider that the only positive testimony on the issue of failure to follow a direct order resulting in clear testimony of same did not occur.

9. The Board’s punishment was too severe and the City failed to prove that any action of Jones impaired the efficient operation of the City based on other’s similar situations for which no punishment was meted out and considering the unconstitutionality and protected behavior with which Jones acted in disagreeing with Nurse McClellan.

ASSIGNMENT OF ERROR NUMBER ONE:

Jones contends in his first of many assignments of error that the district court erred in affirming the Board’s decision, as the Board did not consider that Pineville failed to comply with La. R.S. 33:2500(D) when it terminated his employment. We find that Jones’ contention has merit.

Pineville first argues that Jones’ failure to raise this issue before the Board is a waiver of this assignment of error. We do not agree.

Our supreme court, in Shields v. City of Shreveport, 579 So.2d 961 (La.1991), addressed an issue raised for the first time in memorandum to the district court dealing with the federal Rehabilitation Act. Our supreme court acknowledged that the issue in Shields was outside the proper scope of review, as La. R.S. 33:2501(E)(3) limits the scope of review of an appeal from a civil service board’s decision as to whether the decision was in good faith and reasonable. Nonetheless, prior to addressing the issue, our supreme court stated the following:

The issue raised by plaintiffs’ contention that the Rehabilitation Act operates to prevent their termination would ordinarily not be | ^considered by us because, as explained above, it was never properly before any reviewing court and plaintiffs failed to allege and prove a threshold requirement of the statute. However, the issue has been briefed and argued by counsel and, in the interest of judicial economy, we deem it important to address the question.

Id., at 965.

As in the Shields case, the issue before us was not raised by Jones until his memorandum to the district court. However, unlike Shields, this issue is squarely within our scope of review, as this issue deals with whether Pineville, through Mayor Fields, successfully carried its burden to prove to the Board that Jones’ dismissal was in good faith and was reasonable. Further, identically to Shields, this issue has been briefed and argued by counsel at the district court and appellate court levels, and addressing it would be in the interest of judicial economy. Finally, like our supreme court in Shields, we feel that this issue is one of importance. Jones is a civil service employee, and, as such, has certain statutory rights granted to him via La. R.S. 33:2500 that he contends were not honored. Accordingly, we will address this assignment of error.

Louisiana Revised Statutes 33:2500, in pertinent part, states:

C. Although it is incumbent upon the appointing authority to initiate corrective or disciplinary action, the board may, and shall upon the written request of any qualified elector of the state which sets out the reasons therefor, make an investigation of the conduct and performance of any employee in the classified service and, thereupon may render such judgment and order action to be taken by the appointing authority. Such action shall be forthwith taken by the appointing authority.
D. In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor.

Louisiana Revised Statutes 33:2501, in pertinent part, states:

A. Any regular employee in the classified service who feels that he has 17been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.
C. (1) After the investigation ... the board may, if the evidence is conclusive, affirm the action of the appointing authority. If the board finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period, a reduction in pay to the rate prevailing for the next lower class, a reduction or demotion to a position of any lower class and to the rate of pay prevailing thereof, or such other lesser punitive action that may be appropriate under the circumstances.
E. (1) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.
(3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

This court, in Tweedel v. Fire Protection District No. 1 Civil Service Board, 546 So.2d 654, 655 (La.App. 3 Cir.1989), stated:

“In good faith” has been interpreted to mean the opposite of arbitrary or capricious action or action that stems from prejudice or political expediency on the part of the appointing authority. “Cause” means legal |xcause and the evidence must show that the dismissal was necessary for the discipline and efficiency of the service or that it was needed to avoid some detriment to that department or to the city.

Additionally, this court, in Smith v. Mun. Fire & Police Civil Serv. Bd. of Eunice, 94-625, p. 3 (La.App. 3 Cir. 11/2/94), 649 So.2d 566, 568 (citations omitted), stated the following:

The appropriate standard of appellate review in appeals from civil service disciplinary actions is to determine whether the conclusion reached by the Board was arbitrary, capricious, or characterized by an abuse of discretion. The decision of the Board will not be disturbed if made in good faith and for legal cause. Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of public service. The appointing authority ... must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficient and orderly operation of the public service.

In the case before us, the record indicates that the district court erred in affirming the decision of the Board. Neither party disputes that Jones, as a firefighter in Pineville’s Fire Department, was a civil service employee. Further, neither party contests that the Mayor of Pineville, in this case Mayor Clarence Fields, was the appointing authority referenced in La. R.S. 33:2500(D). Finally, it is clear that the record contains no evidence of a written statement from Mayor Fields to Jones notifying him of his termination or the complete reasons for that termination.

In brief, Pineville requests this court to remand the case back to the Board if we address this assignment raised by Jones so that both parties would be able to submit evidence on the issue. We deny this request.

Pineville argues that this request is reasonable given that denial of the request would require it to predict and anticipate all arguments that might be raised by disciplined employees or to be ambushed on appeal via issues that were never raised |flwith the Board. This argument is misguided.

It is Pineville, through its Mayor, that has the burden to prove to the Board that it has complied with its affirmative statutory mandate in La. R.S. 33:2500(D). While Pineville may or may not have actually provided Jones with a written statement notifying him of his termination and reasons for such, the time for submission of such evidence has passed. The clear language of La. R.S. 33:2500(D) was readily available to Pineville, and to allow it to get a second chance to comply with the statute would be an injustice to Jones.

Louisiana’s revised statutes provide an extensive, detailed procedure to be followed in the discipline of civil service employees. Louisiana Revised Statutes 33:2500(C) is clear that, “it is incumbent upon the appointing authority to initiate corrective or disciplinary action.” This action, as indicated in La. R.S. 33:2500(D), is initialized by furnishing notice to the board and the employee a statement in writing of contemplated action and reasons therefor. The language in this section is clearly mandatory, i.e., “the appointing authority shall furnish the employee ... a statement in writing of the action and the complete reasons therefor.” La. R.S. 33:2500(D) (emphasis added.)

Louisiana Revised Statutes 33:2501(A) provides that within fifteen days of receipt of the aforesaid mitten statement the employee may request a hearing before the board. Clearly, the written notice of La. R.S. 33:2500(D) is a prerequisite to the La. R.S. 33:2501(A) request.

Thereafter, La. R.S. 33:2501(0(1) limits the hearing before the board to determine whether the action was taken in good faith for a reasonable cause. The “action taken” must have been referred to in the written statement necessitated by LpLa. R.S. 33:2500(D). Louisiana Revised Statutes 33:2501(0(1) further provides that the board may or may not “affirm the action of the appointing authority.” Again, the action to be investigated and either upheld or reversed by the board is that described in the La. R.S. 33:2500(D) mandatory written statement.

The written statement of La. R.S. 33:2500(D) is both fundamental and sacrosanct. The written statement contains the actual disciplinary action taken by the appointing authority (in this case the employee’s termination), gives notice to the employee of the action and his right to initiate further proceedings, and gives the board and employee the reasons for the action so that both can prepare for further proceedings. These reasons, and these alone, may then be considered by the board in its subsequent investigation. The employee is required to respond to the allegations, and only those allegations, included in the written statement. A review of the statutory provisions makes it clear that the entire process emanates from the parameters set in the La. R.S. 33:2500(D) written statement in much the same manner as a civil lawsuit is begun by a petition. Until this written statement is given, the employee has not been disciplined (terminated), the board has no authority to investigate, and there is nothing for the district court to review.

Accordingly, we find that the district court was clearly wrong in affirming the decision of the Board. The Board’s record contains no evidence that Pineville, through Mayor Fields, complied with its affirmative duty as delineated in La. R.S. 33:2500(D). As such, Pineville, through Mayor Fields, was in legal bad faith when Jones did not receive a written statement of his termination and reasons therefor, and the Board’s affirmation of Jones’ termination without the required written statement was unreasonable, as their decision had no basis. Accordingly, pursuant to La. R.S. |, ,33:2501(0(1), we order the immediate reinstatement of Jones to his former position and award him back pay from the time of his termination to present. We find this determination just, as the record clearly establishes that Jones was never properly terminated.

ASSIGNMENTS OF ERROR NUMBERS TWO THROUGH NINE:

We found that the district court erred by affirming the Board’s decision to uphold Jones’ termination by Pineville in Assignment of Error Number One. This finding pretermits the remainder of Jones’ appeal.

DECREE:

We found credence in Jones’ first assignment of error, that Pineville, through Mayor Fields, failed to perform its affirmative statutory duty under La. R.S. 33:2500(D) to provide Jones with written notice of his termination and reasons for that termination. Accordingly, we order that Jones be immediately reinstated with an award of his regular pay retroactive to the time of his legally deficient termination. All costs of this appeal are assessed to Pineville.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Daniel James BROUSSARD.
    No. 09-1225.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Michael Harson, District Attorney, J.N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Daniel James Broussard.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

| ,The defendant was convicted of the unauthorized use of a motor vehicle. He was sentenced to serve seven years imprisonment at hard labor. The defendant now appeals, challenging the sufficiency of the evidence for his conviction. He also argues that the sentence imposed is excessive. For the following reasons, we affirm the defendant’s conviction and sentence.

Factual and Procedural Background

On June 19, 2007, Corporal Randall Leger of the Lafayette Police Department, took a report from Matt Braden concerning a stolen vehicle that was owned by Mr. Braden’s friend, James Gillaspie. Corporal Leger communicated the information about the reportedly stolen vehicle to the police department, and the police dispatch communications department contacted the owner of the stolen vehicle to confirm that he owned the vehicle and wanted to file a stolen vehicle report. Corporal Leger entered information about that vehicle into the National Crime Information Center so that, if an officer anywhere in the United States ran the vehicle’s license plate, the system would show that the vehicle was stolen.

Corporal Jason Herpin, an officer with the Lafayette Police Department’s Action Unit, testified that on June 26, 2007, he was on patrol when he observed a tan Dodge Intrepid at a stop sign and recognized it as the make and model of the reportedly stolen vehicle. He stated that, as the vehicle turned at the stop sign, he observed “a black male wearing a black muscle shirt” driving the vehicle. Corporal Herpin then retrieved the license plate number off the vehicle, contacted another officer with that information, and learned that the vehicle was stolen. He radioed to other officers in the area with information about the direction the vehicle was traveling.

12Corporal Tom Mercier testified that he received the call from Corporal Herpin and began to search for the vehicle. Within five to seven minutes of receiving that call, Corporal Mercier found the vehicle in the rear parking lot of a church. He further testified that when he pulled into the church parking lot and exited his police car, the defendant “quickly walked into the rear of a residence that butts up against the — where the church is located at.” When asked whether he observed the defendant go inside the residence, Corporal Mercier replied “Negative. In my opinion, it — it appeared he walked to the back door. It appeared he — like he was making it look like he was attempting to knock.” He further testified that he made contact with the defendant, detained him, and escorted him to the area where the vehicle was located. By this time, Corporal Herpin arrived on the scene and identified the defendant as the driver he had seen in the stolen vehicle. The defendant told the officers he was driving a blue Dodge Intrepid, also parked in the lot, which was registered to him. Corporal Herpin testified that he grabbed the muffler of the blue vehicle, and it was cold. He stated that when he tried to grab the muffler of the tan vehicle, it was too hot for him to touch.

The defendant was arrested and later charged by bill of information with unauthorized use of a vehicle, a violation of La. R.S. 14:68.4. On June 23, 2009, a unanimous jury found the defendant guilty as charged. On September 22, 2009, the trial court sentenced the defendant to serve seven years imprisonment at hard labor.

The defendant now appeals, asserting that there is insufficient evidence to support his conviction because the owner of the vehicle never testified or swore under oath that the car was taken without his authority. He also argues that his sentence is excessive.

|sDiscussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

Sufficiency of the Evidence

The defendant argues the evidence was insufficient to prove his guilt beyond a reasonable doubt because the owner never testified or swore under oath that the vehicle was taken without his authority. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). “The essential elements of the crime of unauthorized use of a motor vehicle, La. R.S. 14:68.4 are: (1) the intentional taking or use (2) of a motor vehicle (3) which belongs to another (4) without the other’s consent or by fraud.” State v. Rios, 44,132, p. 4 (La.App. 2 Cir. 4/8/09), 7 So.3d 832, 834. After a review of the record, we find that the evidence presented at trial was sufficient to support the jury’s guilty verdict.

Corporal Leger received the stolen vehicle report from Matt Braden on June 20, 2007, almost a week prior to the defendant’s arrest. He testified that James Gil-laspie, the owner of the vehicle and friend of Mr. Braden, was contacted to confirm Mr. Braden’s facts given in the report. Dispatch communications verified |4the vehicle belonged to Mr. Gillaspie, and verified that Mr. Gillaspie wanted to file a stolen vehicle report. The defendant did not object to this testimony or controvert it in any manner. Hearsay evidence admitted without objection becomes substantive evidence. State v. Allen, 03-2418 (La.6/29/05), 913 So.2d 788. Here, while Mr. Gillaspie himself did not testify, the undisputed testimony showed the unauthorized taking of his vehicle and, thus, provided evidence for the jury to consider.

The jury could also have relied on other evidence to reasonably find that the defendant was guilty beyond a reasonable doubt. According to Corporal Herpin’s testimony, the defendant was dressed the same way as the man he saw in the stolen vehicle. While the defendant said he had been driving the blue Intrepid, Corporal Herpin testified that its muffler was cool. He explained that, on the other hand, the stolen vehicle’s muffler was too hot to touch, which he concluded indicated “that the blue car hadn’t been moved in a while and the tan had been — was being driven by someone.” Also, Corporal Herpin testified that after arresting the defendant and placing him in the back of his police car, the defendant asked him to turn off his cell phone. When he went to turn off the phone, Corporal Herpin observed the nickname “Double D” on the phone’s screen. According to him, this nickname on the defendant’s cell phone was the same nickname as that of a man reported to police to be driving the stolen vehicle the previous day.

Accordingly, we find that the evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt, and therefore, his conviction is affirmed.

This assignment lacks merit.

\fiExcessiveness of Sentence

The defendant also argues that his sentence of seven years imprisonment at hard labor is excessive. Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant to make or file a motion to reconsider his sentence within thirty days of imposition of the sentence. A defendant who fails to make or file such a motion is precluded from raising any objection to the sentence on appeal. See La.Code Crim.P. art. 881.2; State v. Cornwell, 08-44 (La.App. 3 Cir. 4/30/08), 982 So.2d 287. The defendant here did not make or file a motion to reconsider his sentence in the trial court. Nevertheless, we will review the defendant’s argument as a bare claim of excessiveness. State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.

This court has set out a standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192[p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

|fiTo decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

At sentencing, the trial court indicated that it reviewed the factors of La. Code Crim.P. art. 894.1 and the pre-sentence investigation report. The record indicates that the trial court specifically reviewed the defendant’s criminal history. The trial court noted the defendant had several pri- or felony convictions, including: distribution of counterfeit drugs, possession with intent to distribute cocaine, and driving while intoxicated. Further, the trial court noted that the defendant also had at least eleven misdemeanor convictions, had previously been placed on probation, and had that probation revoked. Also, on the day the defendant was sentenced in this case, he was additionally sentenced to six months in the parish jail for violation of a protective order and six months in the parish jail for resisting an officer. These sentences are to run concurrently with each other, but consecutively to the defendant’s sentence in this case. He was also sentenced that same day to imprisonment at hard labor for three years, for the offense of simple escape, to run consecutively to all other sentences.

|7The defendant could have received a sentence of imprisonment with or without hard labor for up to ten years and/or a five thousand dollar fine. La. R.S. 14:68.4. The trial court sentenced the defendant to seven years imprisonment at hard labor which is in the mid to upper range of his possible sentence. While the defendant was not charged as a habitual offender, as a third felony offender, the defendant could have been subjected to imprisonment for as long as twenty years for this offense. See La. R.S. 14:68.4 and La. R.S. 15:529.1.

In light of these factors, we conclude that the defendant’s sentence is not excessive. Accordingly, the defendant’s sentence is affirmed.

This assignment lacks merit.

DECREE

For the forgoing reasons, the defendant’s conviction and sentence for the unauthorized use of a vehicle is affirmed.

AFFIRMED.


author: PETERS, J.

text:
    Robert J. LeJEUNE v. BELL TOWER CORPORATION and Dallas National Insurance Company.
    No. 09-1222.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Gregory P. Marceaux, Attorney at Law, Lake Charles, LA, for Appellee/Plaintiff, Robert J. LeJeune.
    Anthony P. Palermo, James R. Raines, Attorneys at Law, Baton Rouge, LA, for Defendants/Appellants, Bell Tower Corporation and Dallas National Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS and J. DAVID PAINTER, Judges.
   PETERS, J.

l iThe defendants, Bell Tower Corporation and Dallas National Insurance Company (collectively referred to as Bell Tower), appeal the judgment of the workers’ compensation judge (WCJ) in favor of the plaintiff, Robert J. LeJeune, finding that Mr. LeJeune suffered a work-related injury to his hand while employed by Bell Tower. The WCJ awarded Mr. LeJeune indemnity benefits, ordered that he be allowed treatment by the physician of his choice, and awarded him penalties and attorney fees. For the following reasons, we affirm the judgment as amended.

DISCUSSION OF THE RECORD

Bell Tower, an Oklahoma corporation, designs, manufactures, ships, and constructs broadcast towers. In July 2007, it was hired to construct a 1,700 foot broadcast tower in Wiggins, Mississippi. Richard Bell, the sole owner of Bell Tower, contacted David Traxler about assembling a crew to build the Mississippi tower. In turn, Mr. Traxler called Mr. LeJeune with a job offer. Mr. LeJeune was hired, but the parties dispute when this occurred. Mr. LeJeune claims that he was hired while he still in Louisiana. Mr. Bell claims that Mr. LeJeune was not hired until after he arrived in Mississippi.

On September 15, 2007, Mr. LeJeune suffered a work-related injury to his left hand while operating a winch on site. He reported the accident to Mr. Traxler, who relayed the information to Mr. Bell. Mr. LeJeune sought no medical treatment until he returned to Louisiana approximately four days after the incident. He was treated at the W.O. Moss Regional Medical Center in Lake Charles and then by Dr. Dale Bernauer, a Lake Charles orthopedic surgeon. However, he received no further treatment due to his inability to pay for the medical services and Bell Tower’s refusal to pay.

|2Mr. LeJeune filed a disputed claim for compensation against Bell Tower seeking indemnity benefits, medical treatment, and penalties and attorney fees. In response, Bell Tower filed declinatory exceptions of lack of subject matter and personal jurisdiction and improper venue and a peremptory exception of no cause of action. Bell Tower asserted that Mr. LeJeune’s claim was governed by Mississippi law because he was hired in and suffered injury while working in Mississippi. Mr. LeJeune later amended his disputed claim to add Bell Tower’s insurer, Dallas Insurance Company, as a defendant.

Following a trial on the merits, the WCJ rendered judgment in favor of Mr. Le-Jeune and denied Bell Tower’s exception of lack of subject matter jurisdiction. The WCJ held that Mr. LeJeune suffered a work-related injury while an employee of Bell Tower and that he was temporarily and totally disabled as a result. The WCJ awarded Mr. LeJeune $522.00 in weekly indemnity benefits from the date of injury and medical treatment by a physician of his choice, Dr. Bernauer. The WCJ further held that the previous medical treatment provided to Mr. LeJeune by W.O. Moss Regional Medical Center was reasonable and necessary and cast Bell Tower with payment of the $268.92 bill. The WCJ awarded Mr. LeJeune penalties: $2,000.00 for Bell Tower’s failure to pay indemnity benefits; $2,000.00 for its failure to provide medical care; and $2,000.00 for its failure to pay W.O. Moss Regional Medical Center. Mr. LeJeune was awarded an additional $13,500.00 in attorney fees.

Bell Tower appeals alleging three assignments of error committed by the WCJ:

1. Whether the trial court erred in holding it had subject matter jurisdiction over LeJeune’s claims based upon its finding that a Louisiana contract for hire existed between the parties despite the fact that the Co-dal requirements for a contract did not exist.
|32. Whether the trial court erred in finding claimant’s alleged injuries resulted from the purported workplace accident despite clear evidence of a prior injury to the same body part.
3. Whether the trial court erred in awarding penalties and attorney fees against defendant despite its presentation of a clearly defensible legal position.

Mr. LeJeune answered Bell Tower’s appeal and seeks additional attorney fees for work performed on appeal.

OPINION

It is well settled that the standard of review applied in workers’ compensation eases is the “manifest error-clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698 (La.1/14/94) ], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Id.

Louisiana Revised Statutes 23:1035.1(1) allows an employee injured outside of Louisiana the benefits of its workers’ compensation laws if his employment was principally situated here or if he was employed under a contract of hire originating here. Of paramount importance in determining the location of an employee’s contract |4of hire is the parties’ intent. Baldwin v. N. Am. Energy Servs., 07-667 (La.App. 3 Cir. 10/31/07), 970 So.2d 101, writ denied, 07-2310 (La.2/1/08), 976 So.2d 717. Furthermore, the WCJ’s finding on this issue is factual in nature.

Mr. LeJeune, who lives in Sulphur, Louisiana, testified that in July of 2007, he was contacted by Mr. Traxler about the job in Mississippi. He stated that he went to Mr. Traxler’s home, also in Sulphur, and while there, spoke to Mr. Bell by telephone. Mr. LeJeune testified that Mr. Bell offered him employment at $20.00 per hour and $75.00 per diem, and he accepted that offer.

Soon thereafter, Mr. LeJeune and Mr. Traxler traveled from Sulphur to Wiggins, Mississippi, and were immediately reimbursed their travel expenses. However, it was not until a few days later that Mr. LeJeune completed the employment paperwork. That paperwork was channeled through Harbor America Texas, Inc. (Harbor America), a company which handled the payroll for all of Mr. Bell’s employees and pays workers’ compensation insurance. The accident giving rise to this litigation occurred on September 15, 2007.

Mr. Traxler’s testimony supported Mr. LeJeune’s version of the circumstances surrounding the hiring process. He testified that he builds radio and television towers for a living and was working in Austin, Texas, when Mr. Bell first contacted him about constructing' the Wiggins’ tower. According to Mr. Traxler, after he returned home to Sulphur in July of 2007, Mr. Bell again contacted him about the Wiggins job and talked to him about assembling a crew for the job. According to Mr. Traxler, both he and Mr. LeJeune were in Sulphur when they reached employment terms with Mr. Bell. Specifically with regard to Mr. LeJeune, Mr. Traxler testified that after determining Mr. Le-Jeune’s interest in the job, he had him telephone Mr. Bell. As a |Bresult of that telephone conversation, Mr. Bell hired Mr. Lejeune as a winch operator and his pay rate was agreed on. Mr. Traxler also confirmed Mr. LeJeune’s testimony that the two men traveled together to Wiggins, Mississippi; that both were reimbursed for their travel; and that the employment papers were issued through Harbor America.

Mr. Bell testified that Bell Tower is headquartered in Chelsea, Oklahoma, and the company is engaged in the design and construction of broadcast towers. He confirmed the Wiggins tower contract and testified that Bell Tower constructed the tower and then installed it in September 2007. He acknowledged first contacting Mr. Traxler about the job while Mr. Trax-ler was working in Texas. Although he could not recall the particulars of the conversation with Mr. Traxler, he acknowledged that he hired Mr. Traxler before the Wiggins job began. Although he denied giving Mr. Traxler the authority to hire Mr. LeJeune for the job, when questioned about whether he asked Mr. Traxler to put together a crew, Mr. Bell stated, “Somewhat.” He said that Bell Tower has a work crew, but explained that it experiences a large turnover of employees. Pri- or to the Wiggins’ job, Mr. Bell testified that Mr. Traxler suggested a couple of men for the crew. As he was familiar with these men, he said that he gave Mr. Trax-ler the authority to hire them. He stated that the men, who he thought were in Texas, called him, and they reached an agreement as to their pay and per diem. Mr. Bell specifically denied the telephone conversation with Mr. LeJeune whereby Mr. LeJeune suggested he had been hired by Mr. Bell.

Mr. Bell testified that Mr. LeJeune was not hired until he arrived in Wiggins. In fact, he stated that the first time he either met or spoke to Mr. LeJeune was at a café in Wiggins on July 19, 2007. Mr. Bell stated that he hired Mr. LeJeune at approximately 10:00 a.m. and agreed to pay him $20.00 per hour and $75.00 per lr,diem. He admitted that he reimbursed Mr. Le-Jeune’s travel from Sulphur to Wiggins, in part because the amount was insignificant, but also because Mr. Traxler informed him that they needed Mr. LeJeune because he could operate any piece of equipment at the site and because their current operator was unreliable.

In finding that Mr. LeJeune was hired in Louisiana, the WCJ stated in his oral reasons:

All of the evidence, and not just the live testimony, forces the conclusion that Mr. LeJune [sic] certainly behaved as if he had a reasonable and legitimate expectation that he was hired in Louisiana before he, in the company of his supervisor, embarked to Mississippi, as did his employer. There was not a word of testimony even suggesting that Mr. Le-June [sic] felt that his employment hinged on the face-to-face meeting with the owner of the company in the café. Rather, he relied, and reasonably so, on the company’s designated representative that he was hired.
The juris prudence stands four square for the position that Louisiana has subject matter jurisprudence if a claimant has a reasonable expectation that he has been hired in Louisiana before he sets off to a job site outside the state. In the Harvey case, the Court was apparently impressed by the fact that the claimant would not have left his home in Louisiana to go to Virginia had he not been certain the job was there.
That situation seems to be replicated in the instant matter. The employer was very clear that he paid the wages for Mr. LeJune’s [sic] travel from his home in Sulphur to Mississippi. I’m really hard pressed to see how much more the employer could have done to convince Mr. LeJune [sic] that he was hired by the company’s representative in Sulphur. The recollection and reflection of the employer that he really meant to hire Mr. LeJune [sic] in Mississippi especially after the occurrence of an accident does seem convenient and transparently so. Every Third Circuit case I am familiar with supports the claimant’s argument that this Court has subject matter jurisdiction under the provisions of 23:1035.1.

After reviewing the record, we can find no error in the WCJ’s factual finding that Mr. LeJeune was hired by Bell Tower while he was in Louisiana. As pointed out by the WCJ, the facts at issue mirror those found in Harvey v. B E & K Construction, 30,825 (La.App. 2 Cir. 8/19/98), 716 So.2d 514. In Harvey, the injured employee learned of a job in Virginia while working for the employer at a job in Alabama. After returning home to Louisiana, the employee accepted the Virginia job from the employer via telephone. The employee later suffered an injury while working in Virginia. The court in that matter affirmed the WCJ’s finding that Louisiana had subject matter jurisdiction despite the fact that the employee’s paperwork, drug test, and physical were not completed until his arrival in Virginia. The court held that the employee’s verbal agreement with the employer while still in Louisiana, determined the location of his contract of hire. In reaching this holding, the court relied on Ohlhausen v. Sternberg Dredging Co., 218 La. 677, 50 So.2d 803 (1951), in which the supreme court held, under similar facts, that the determinative factor was the existence of a definitive agreement between the parties prior to the employee’s departure from Louisiana for employment in Florida.

In the case now before us, the WCJ was presented with two differing views of the evidence on the origin of Mr. LeJeune’s contract of hire and chose to credit the testimony of Mr. LeJeune and Mr. Traxler over that of Mr. Bell. This factual determination is supported by the testimony of Mr. Bell, who admitted to hiring at least three other employees over the phone, in the same fashion as alleged by Mr. Le-Jeune, i.e., Mr. Traxler and the two crew members recommended by him. As this is a finding of fact, the WCJ’s finding that Mr. LeJeune’s contract of hire originated in Louisiana will not be reversed absent manifest error. We find no such error present. Accordingly, the judgment of the WCJ, finding that Louisiana had subject matter jurisdiction over Mr. LeJeune’s claim, is affirmed.

Next, Bell Tower argues that the WCJ erred in finding that Mr. LeJeune’s injuries were caused by his work-related accident rather than by a previous incident | ^involving the same arm. Bell Tower relies on the October 16, 2007 medical records of the W.O. Moss Regional Medical Center in which Mr. LeJeune presented with the request to see a specialist for his left hand/arm. The record reveals that Mr. LeJeune suffered a laceration to his left arm six months prior to that date. Bell Tower argues that it was this incident which caused his complained of condition.

In order to receive workers’ compensation benefits, an injured employee must establish a causal connection between their work-related accident and the resulting complained of disability. Davis v. State ex rel. Dept. of Transp. and Dev., Office of Risk Management, 09-288 (La.App. 3 Cir. 11/10/09), 27 So.3d 969. The burden of proof is by a preponderance of the evidence. That being the case, if the probability of causation is equally balanced based on the evidence presented, then the employee has not carried his burden of proof. Guilbeaux v. Office of District Attorney, 07-89 (La.App. 3 Cir. 5/30/07), 957 So.2d 959.

Mr. LeJeune testified that he injured his left hand while respooling wire onto the winch. He stated that the wire had gone off the spool and that he grabbed it with his left hand to guide it back onto the spool. According to Mr. LeJeune, while he was guiding the wire back onto the spool, a finger on his left hand became stuck in the winch. Mr. LeJeune immediately reported the accident to Mr. Traxler, who alerted Mr. Bell about the incident. Mr. LeJeune testified that Mr. Bell’s response to Mr. Traxler was that if Mr. LeJeune’s finger was not cut off, he should continue working as they were in a hurry. Mr. LeJeune stated that he remained on the job for another four to five days.

Eventually, Mr. LeJeune returned to Sulphur and sought treatment from the W.O. Moss Regional Medical Center in Lake Charles. He stated that the facility was | jenable to help him and recommended that he see a specialist at the LSU. Medical Center, but he could not obtain treatment there due to a lack of funds. He was eventually able to see Dr. Bernauer, who ordered an EMG of his left hand. This test was never performed, and Mr. Le-Jeune said that he sought no further treatment from Dr. Bernauer because Bell Tower refused authorization. Mr. Le-Jeune testified that the nerves are damaged in his left hand and that he now suffers numbness and weakness in that hand. He stated that his hand is now much smaller as a result of this injury.

The October 16, 2007 records from the W.O. Moss Regional Medical Center reflect that Mr. LeJeune suffered a laceration to his left arm six months previously, and he complained of numbness in his left hand/forearm, along with a loss of sensation and atrophy of the muscles in the lateral aspect of his hand/arm. The emergency room doctor diagnosed Mr. LeJeune as suffering from traumatic neuropathy in his left hand and recommended that he go to LSU Shreveport for further treatment of this condition.

During cross examination, Mr. LeJeune denied that the laceration listed in the October 16, 2007 medical records was the cause of his left hand problems. Mr. Le-Jeune explained that the laceration resulted from a cut he suffered on March 10, 2007. On that day, Mr. LeJeune reported to the emergency room of the West Calca-sieu Cameron Hospital after being cut with a box cutter. The cut was described as an approximated five-inch-long-flap laceration down to the muscle and was located on the back of his upper left arm, between his shoulder and his elbow. Mr. LeJeune testified that he experienced no problem with his arm after this incident. He Instated that his current problems are a result of the smashing injury he suffered on September 15, 2007.

Mr. Traxler testified that when Mr. Le-Jeune suffered his injury, he was operating a large friction winch, which weighed approximately 4,000 to 7,000 pounds. According to Mr. Traxler, the winch was older equipment and did not contain a leveler to ensure that the cable being wound onto the spool remained level. Mr. LeJeune was attempting to compensate for this lack of leveler when he caught his hand in the winch. Mr. Traxler stated that he learned about Mr. LeJeune’s accident over the radio. When he reached him, Mr. LeJeune was holding his hand and appeared to be in pain. Mr. Traxler reported the injury to Mr. Bell, who asked if Mr. LeJeune had suffered any real damage, to which Mr. Traxler stated, “nothing that I could see.” On questioning, however, he stated that the winch did trap Mr. LeJeune’s hand; that it was smashed. Mr. Traxler testified that Mr. LeJeune received no medical attention after the incident. He explained that Mr. LeJeune thought that he could shake the injury off, but he left the job several days later to return home to Louisiana and seek medical treatment. According to Mr. Traxler, Mr. LeJeune’s job performance in the days after the accident was clearly affected by his injury, and prior to his injury, Mr. LeJeune was one of his best workers.

Mr. Bell testified that Mr. LeJune’s accident was communicated to him in Oklahoma three to four days after it occurred. According to Mr. Bell, Mr. Traxler informed him that Mr. LeJeune had mashed his finger in the winch. He inquired of Mr. Traxler concerning the need for medical treatment and was told that the injury was not that serious. Mr. Bell stated that he never spoke to Mr. LeJeune about his injury.

|T1Pr. Bernauer examined Mr. LeJeune once on June 30, 2008. In the report to Mr. LeJeune’s attorney, he noted numbness in the ring and little fingers of Mr. LeJeune’s left hand, atrophy of the adductor, and that his little finger was contracted and would not extend. Dr. Bernauer stated that x-rays were negative for fracture. He said that he had ordered an EMG of Mr. LeJeune’s left hand and that he had restricted him from working.

In finding that Mr. LeJeune satisfactorily proved his work-related injury, the WCJ held that there was no evidence countering Mr. LeJeune’s version of events and that the medical evidence presented supported this finding. We find no error in the WCJ’s finding. Although the medical records are sparse, as pointed out by the WCJ, it was reasonable for the WCJ to conclude that the recent crushing injury to Mr. LeJeune’s left hand was the cause of the traumatic neuropathy of his left hand rather than the earlier cut to his upper arm. Considering the size of the winch Mr. LeJeune was operating at the time he was injured, it is more likely that the crushing injury suffered by him, which was confirmed by Mr. Traxler, caused his complained of condition rather than the five-inch knife cut to the upper arm.

In its final assignment of error, Bell Tower argues that the WCJ erred in awarding Mr. LeJeune penalties and attorney fees despite its presentation of a clearly defensible position. Bell Tower bases its “defensible” position on Mr. Traxler’s observation to Mr. Bell that Mr. LeJeune had not suffered major damage to his hand and that he appeared to be all right. It also relies on the fact that Mr. LeJeune continued working after the accident and that he told Mr. Traxler that he thought he could shake off the injury.

112Mr. Bell testified that he learned of the accident after his return to Oklahoma. When told about the injury by Mr. Trax-ler, he stated that he asked if Mr. LeJeune required medical attention. He said that Mr. Traxler replied in the negative, stating that Mr. LeJeune’s injury was not really that bad. Mr. Bell testified that Mr. Le-Jeune’s wife called him approximately one week after the accident about Mr. Le-Jeune’s per diem payment. At the end of the conversation, he stated that she asked, “well, what about his hand.” Mr. Bell testified that he told Mrs. LeJeune that it was too late to file a claim on Mr. Le-Jeune’s hand. He said that she then responded that they would go to a free clinic to seek medical care. When questioned about this, Mr. Bell stated that it was his understanding that a claim had to be reported immediately so that the injured party could receive medical attention. Mr. Bell admitted that he did nothing further to investigate Mr. LeJeune’s injury. Instead, he relied only on the initial accounts by Mr. Traxler and Mr. LeJeune that Mr. LeJeune’s injury was not serious. With regard to Mr. LeJeune’s demand letter of July 2, 2008, in which he sought authorization for medical treatment by Dr. Ber-nauer and the payment of indemnity benefits, Mr. Bell stated that he did not recall whether he received the letter. However, he testified that had he received it, he would have forwarded the letter to Harbor America, who managed the workers’ compensation matters for Bell Tower. Other than that, he stated that he performed no investigation into this matter.

Pursuant to La. R.S. 23:1201(F), an employer who fails to commence payment of indemnity benefits or to pay medical benefits timely shall be subject to penalties and attorney fees unless the employer reasonably controverts the employee’s claim. Zavala v. St. Joe Brick Works, 07-2217 (La.App. 1 Cir. 10/31/08), 999 So.2d 13, writ denied, 08-2827 (La.1/30/09), 999 So.2d 762. A claim is reasonably controverted | iaif the employer has sufficient factual and/or medical information to counter the evidence presented by the employee. Id. Furthermore, an employer has a duty to furnish all reasonable and necessary medical care resulting from an employee’s work-related injury. La. R.S. 23:1203(A); Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.

The failure to authorize a medical procedure for an employee otherwise eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits, thereby subjecting the employer to an assessment of attorney fees and penalties, unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201; Sims v. BFI Waste Services, L.L.C., 06-1319, p. 11 (La.App. 1st Cir.5/16/07), 964 So.2d 998, 1005.

Sevin v. Chevrolet, 08-1362, p. 15 (La.App. 1 Cir. 4/30/09), 24 So.3d 879, 889.

The determination of whether an employer should be cast with penalties and attorney fees is a question of fact. Accordingly, the WCJ’s award of penalties and attorney fees will not be reversed absent manifest error. Maddox v. Texas Gas Transmission Corp., 07-906 (La.App. 3 Cir. 12/05/07), 971 So.2d 541, writ denied, 08-64 (La.3/7/08), 977 So.2d 911.

In awarding a total of $6,000.00 in penalties and $13,500.00 in attorney fees, the WCJ stated that Bell Tower “did virtually nothing to investigate this claim. That behavior is as much a violation of the statute as it is of conscience, and that worker here was severely injured.” A review of the record reveals that this finding was reasonable. Mr. Bell admitted that he performed no investigation at all into this matter. Rather, he relied on second-hand accounts that Mr. LeJeune had not suffered a serious injury to his hand. Then, when asked by Mr. LeJeune’s wife directly about his injury, he told her that it was too late for Mr. LeJeune to file a claim regarding his |uinjury. Accordingly, the judgment of the WCJ awarding Mr. LeJeune $6,000.00 in penalties and $13,500.00 in attorney fees is affirmed.

Mr. LeJeune answered Bell Tower’s appeal and seeks additional attorney fees for work performed on appeal. Considering our finding, we amend the judgment to award him an additional $5,000.00 in attorney fees.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed in all respects. We further amend the judgment to award Mr. LeJeune an additional $5,000.00 in attorney fees for work performed by his counsel on appeal. The costs of this appeal are assessed to Bell Tower Corporation and Dallas National Insurance Company.

AFFIRMED AS AMENDED.


text:
    Carol FONTENOT v. David SONNIER d/b/a David’s Mini Mart.
    No. 09-1215.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      A. Gerard Caswell, Attorney at Law, Eunice, LA, for Plaintiff/Appellee, Carol Fontenot.
    Alex A. Lopresto, III, Jeansonne & Re-mondet, LLC, Lafayette, LA, for Defendant/Appellant, David Sonnier d/b/a David’s Mini Mart.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS and J. DAVID PAINTER, Judges.
   PETERS, J.

The defendant, David Sonnier d/b/a David’s Mini Mart (Mr. Sonnier), appeals from a judgment of the workers’ compensation judge (WCJ) awarding the plaintiff, Carol Fontenot, penalties and attorney fees as a result of Mr. Sonnier’s untimely payment of a court-approved .settlement. For the following reasons, we affirm the WCJ’s judgment.

DISCUSSION OF THE RECORD

This matter stems from a work-related accident suffered by Ms. Fontenot while an employee of David’s Mini Mart. Ms. Fontenot filed a disputed claim for compensation with the Office of Workers’ Compensation seeking indemnity benefits, medical expenses, and penalties and attorney fees from Mr. Sonnier. Although he initially denied liability, the parties reached a settlement which was approved by the WCJ via an August 25, 2008 Order of Approval. In the order, the WCJ awarded judgment in favor of Ms. Fonte-not in the amount of $8,000.00 for indemnity benefits and ordered Mr. Sonnier to pay all medical expenses ($11,898.31) associated with her injury. The order listed seven medical providers and the amount each was owed: Dr. Greg Savoy-$473.00; Mam-ou Imaging-$60.00; Wal-Mart Pharmacy-$228.76; Dr. Bobby Deshotel-$35.00; Savoy Medical Center-$9,904.55; Evangeline Emergency Group-$650.00; and Dr. Eric Fontenot-$547.00. The order further provided that Mr. Sonnier was free to negotiate with these providers so long as the negotiated payment satisfied the debt owed in full. Ms. Fontenot’s claims against Mr. Sonnier were then dismissed with prejudice upon the WCJ’s grant of a joint motion for dismissal. On August 21, 2008, Ms. Fontenot’s counsel sent Mr. Son-nier’s counsel a letter reminding him that pursuant to La. R.S. 23:1201(G), the terms of the settlement were to be satisfied within thirty days of the approval of the settlement.

laSubsequent to this judgment, Hurricane Gustav, a category 2 storm, came ashore on the coast of Louisiana on September 1, 2008. As a result of the damage and the lasting effects caused by the storm, Louisiana Governor Bobby Jindal issued, by executive order, an emergency stay which provided for the suspension of all deadlines in “legal, administrative, and regulatory proceedings, including libera-tive prescription and peremptive periods in all courts, administrative agencies, and boards” effective from August 29 through September 12, 2008. This order applied specifically to workers’ compensation matters.

On September 2, 2008, Ms. Fontenot’s counsel sent a second letter reminding Mr. Sonnier about the thirty-day delay for satisfying the settlement. On October 1, 2008, Mr. Sonnier paid Ms. Fontenot the $8,000.00 indemnity portion of the judgment. He then had his store manager, Pat Deville, contact all of the medical providers to commence negotiations.

Because all of the medical expenses had been turned over to collection agencies, the negotiations took longer than thirty days. Ms. Deville eventually negotiated payments with Savoy Medical Center for $2,575.18 on November 21, 2008, and Mamou Imaging for $48.00 on January 7, 2009. Ms. Fontenot had previously paid the amounts owed to Wal-Mart Pharmacy and Dr. Bobby Deshotel, so Ms. Deville paid her $263.76 on December 1, 2008. Ms. Deville obtained a letter from Dr. Greg Savoy indicating that the $473.00 owed for Ms. Fontenot’s treatment was written off. As to the remaining two amounts, Mr. Sonnier could locate neither Dr. Fontenot nor the Evangeline Emergency Group, as Dr. Fontenot had moved out of state and Evangeline Emergency Group was no longer employed by the hospital.

|sOn October 2, 2008, Ms. Fontenot filed a motion for penalties and attorney fees based on Mr. Sonnier’s failure to pay the $19,898.31 settlement within the thirty-day period provided by La. R.S. 23:1201(G). Following a hearing on the motion, the WCJ rendered judgment in favor of Ms. Fontenot, awarding her a $3,000.00 penalty and $1,000.00 in attorney fees for Mr. Son-nier’s failure to timely pay the medical expenses. Mr. Sonnier appeals this judgment raising one assignment of error:

The Trial Judge erroneously determined that R.S. 23:1201(G) and applicable case law gave her no discretion to consider the facts and circumstances of this matter to determine whether penalties and attorney fees are justified under R.S. 23:1201(G).

OPINION

Louisiana Revised Statutes 23:1201 provides for the award of penalties and attorney fees in specified instances under the Workers’ Compensation Act. This statute has been held to be penal in nature and, as such, is to be strictly construed just as all penal statutes are construed. Trahan v. Coca Cola Bottling Co. United, Inc., 04-100 (La.3/2/05), 894 So.2d 1096. “The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding shall not be disturbed absent manifest error.” Hayes v. La. State Penitentiary, 06-553, p. 20 (La.App. 1 Cir. 8/15/07), 970 So.2d 547, 565, writ denied, 07-2258 (La.1/25/08), 973 So.2d 758 (citing Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181).

Mr. Sonnier argues that it was error for the WCJ to find that she had no discretion in determining whether to award penalties and attorney fees pursuant to |,,La. R.S. 23:1201(G). He argues that penalties and attorney fees should not be awarded unless the employer’s actions in handling the claim were arbitrary and capricious. Mr. Sonnier further interprets La. R.S. 23:1201(G) to read that penalties and attorney fees are not justified if the employer reasonably controverted the employee’s claim or unless the nonpayment resulted from conditions beyond the employer’s control. He argues that a claim is reasonably controverted if the employer espouses a valid reason for the delay in paying the judgment.

In explaining his delay in paying, Mr. Sonnier points out that the Order of Approval’s terms allowed him to negotiate with the medical providers but set no time limit on those negotiations. Furthermore, although the amounts owed to each provider were listed in the order, it does not specifically order him to pay those amounts. Based on these facts, Mr. Son-nier argues that he should have been allowed a reasonable amount of time to complete his negotiations and that his good faith negotiations and attempts to locate the providers prove that his actions were neither arbitrary nor capricious or that he failed to reasonably controvert this claim. Thus, he claims that the award of penalties and attorney fees was unjustified.

Louisiana Revised Statutes 23:1201(G) provides:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

|,/We disagree with Mr. Sonnier’s interpretation of this statute. First off, the language “shall not apply if the claim is reasonably controverted” does not apply to this subsection, as it does to La. R.S. 23:1201(F). Subsection F applies to the actions of the employer prior to a final judgment/settlement being obtained, whereas Subsection G applies to the actions of the employer subsequent to such a time. See Rodrigue v. Laforuche Parish Sch. Bd., 04-1136 (La.App. 1 Cir. 5/6/05), 909 So.2d 627, writ denied, 05-2366 (La.3/17/06), 925 So.2d 546. Second, a plain reading of Subsection G raises two questions: (1) was the payment timely, and (2) if not, did the delay result from conditions beyond the employer’s control. The first question results in a straight yes or no answer. The second question delves into the reasons behind the employer’s late payment, which is a finding of fact subject to the manifest error standard of review. If the WCJ finds that the employer had no control over the delay, then no penalties and attorney fees are awarded. However, if the delay resulted from the employer’s own actions, then the award is automatic.

During the hearing on the motion, the WCJ noted the difficulty Mr. Sonnier experienced in negotiating these claims. However, the WCJ factually found that this difficulty was not encompassed by the language “results from conditions over which the employer had no control.” La. R.S. 23:1201(G). Reviewing this pursuant to the manifest error standard, we find no error in this finding as it relates to payment of the medical expenses, except for those relating to Dr. Fontenot and the Evangeline Emergency Group, as Mr. Son-nier was unable to locate and pay them. In these two instances, we find that the delay in payment was beyond Mr. Sonnier’s control. Otherwise, we find that the delay as to the remaining medical providers was within his control. With regard to his argument concerning the lack of a deadline in the |f,order and its failure to specify that he pay the amounts listed, we find no merit in those arguments. The inclusion of a deadline was unnecessary as La. R.S. 23:1201(G) provided the thirty-day deadline. Furthermore, the amount paid by Mr. Sonnier depended on his success in negotiating lower payments, so long as all payments were satisfied within the thirty days. A failure to lower the amount within that time period would result in a payment of the full amount listed.

Considering the foregoing, we find no error in WCJ’s judgment awarding Ms. Fontenot a $3,000.00 penalty and $1,000.00 in attorney fees. Although penalties and attorney fees are not justified'in the two instances specified, the amount awarded for the remaining providers’ expenses is the minimum allowable under La. R.S. 23:1201(G).

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge in all respects. We assess all costs of this appeal to David Sonnier d/b/a David’s Mini Mart.

AFFIRMED.

      . The WCJ's judgment relates only to Mr. Sonnier’s failure to pay the medical expenses. In the transcript from the hearing on the motion, the WCJ mentioned that she did not believe that Ms. Fontenot was pursuing her claim with regards to the $8,000.00 indemnity payment, which was paid on October 1, 2008, within the expanded thirty-day period.


text:
    Dr. Rita Rae FONTENOT v. Denise Manuel SAXBY.
    No. 09-1210.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      David F. Dwight, Lake Charles, LA, for Defendant/Appellee, Denise Manuel Sax-by.
    George J. Tate, Abbeville, LA, for Plaintiff/Appellant, Dr. Rita Rae Fontenot.
    Thomas J. Gayle, Gayle Law Firm, Lake Charles, LA, For Defendant/Appellee, Melba Van Winkle.
    Randall E. Hart, Lake Charles, LA, for Defendant/Appellee, Dr. Hugh W. Raetzsch.

      Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

LThe plaintiff, Dr. Rita Rae Fontenot (Fontenot), brought suit against the defendants alleging that she was entitled to relief because she was unaware that a certain piece of immovable property she acquired from the defendants was burdened with cei’tain building restrictions. One of the defendants, Denise Manuel Saxby (Saxby), filed a motion for summary judgment asserting that she was entitled to judgment because the plaintiff had actual knowledge of the building restrictions. Another defendant, Melba Van Winkle (Van Winkle), filed an exception of no cause of action asserting that the plaintiff failed to state a claim on which relief could be granted because there was no privity of contract between her and the plaintiff. The trial court rendered judgment granting Saxby’s motion for summary judgment and sustaining Van Winkle’s exception of no cause of action. Fontenot appeals. For the following reasons, we affirm.

Factual and Procedural Background

In 2002, Van Winkle was trying to sell a residential lot in the Cypress Park Subdivision in Calcasieu Parish. Her neighbors, Saxby and Hugh Raetzsch, offered to each purchase a portion of Van Winkle’s lot. Van Winkle’s lot was split into two tracts and sold with Saxby as the owner of Tract A and Raetzsch as the owner of Tract B. Since 1971, Cypress Park Subdivision was subjected to a set of restrictive covenants, building restrictions, which were recorded in the Calcasieu Parish records. Among the several restrictions, was a restriction which prohibited the construction of residences “on less than one lot as reflected on the subdivision plat.”

In 2008, Saxby entered into an Act of Exchange with Fontenot, who also owned a lot in Cypress Park Subdivision. As a result of this exchange, Fontenot became the owner of Tract A of the lot formerly owned by Van Winkle.

|2The record reveals that approximately three years after the entering into the exchange with Saxby, Fontenot desired to build a residence on Tract A. However, Raetzsch informed her that she was prohibited from building a residence pursuant to the building restriction. One March 14, 2008, Fontenot filed suit against Saxby alleging that she was entitled to have the exchange declared a nullity or in the alternative for a judgment of dissolution and damages. In her petition she alleged, as follows:

The sale is the result of silence on behalf of the seller Ms. Saxby by failing to disclose that this residential lot is not suitable for its intended use, i.e. Ms. Fontenot is barred from constructing a residence thereon. Furthermore, this caused error in the Exchange, and subjecting the Exchange to nullity.

Saxby responded to the petition by filing an Exception of No Cause of Action which alleged that Fontenot was not entitled to bring suit because the building restrictions existed at the time of exchange. Saxby also filed a Peremptory Exception of Prescription which argued that Fontenot’s claims in redhibition has prescribed pursuant to Fontenot’s actual knowledge of the “defect,” which occurred more than one year prior to the suit, and Fontenot’s constructive knowledge of the “defect,” which occurred more than four years prior to the suit.

A hearing was held on October 15, 2008, wherein the trial court denied Saxby’s Exception of No Cause of Action and granted the Peremptory Exception of Prescription. The trial court granted Fontenot an additional fifteen days to supplement and amend her petition.

Fontenot filed a supplemental and amended petition on January 15, 2009, naming Saxby, Raetzsch, and Van Winkle as defendants. This amended petition asserted actions in warranty of peaceable possession, failure to deliver a quality relied Isupon by Fontenot, and general contract breach causes, including mistake. It alleged that Raetzsch disturbed her peaceful possession of Tract A when he informed her that she could not build a residence on that tract.

Saxby responded to the petition by filing a motion for summary judgment. In her motion, Saxby asserted in pertinent part as follows:

Plaintiffs claim is styled as a call in warranty because the property is not fit for its intended purpose. First, this is in effect a claim for rehibitory or hidden defects. All such claims have prescribed. Second, plaintiff waived in the exchange deed all resolutory conditions. Third, plaintiff had actual and constructive notice of the recorded restrictive covenants.

Van Winkle responded by filing an exception for no cause of action and alleging that “[tjhere is no cause of action under Louisiana law for a breach of warranty of fitness for a particular use against a predecessor in title that has no privity of contract with the purchaser.”

After a hearing conducted on June 10, 2009, the trial court rendered judgment granting Saxby’s motion for summary judgment and sustaining Van Winkle’s exception of no cause of action. Fontenot now appeals.

Discussion

Summary Judgment

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Further, La.Code Civ.P. art. 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the Lmotion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On appeal, the court reviews a judgment granting or denying a motion for summary judgment de novo. Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945. “Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.” Id. at 949.

Implied Warranty — Fit For Intended Use

Fontenot alleges that Saxby breached an implied warranty provided in the sale because the property was not fit for its intended use in that the building restrictions prohibited her from building a residence. Saxby asserts that the plaintiff had actual and constructive knowledge of the building restrictions and thus is pre-eluded from alleging any breach of implied warranty.

Louisiana Civil Code Article 2475 provides the obligations of a seller as follows:

The seller is bound to deliver the thing sold and to warrant to the buyer ownership and peaceful possession of, and the absence of hidden defects in, that thing. The seller also warrants that the thing sold is fit for its intended use.

Further, the seller’s warranty “also covers encumbrances on the thing that were not declared at the time of sale, with the exception of apparent servitudes and natural and legal servitudes, which need not be declared.” La.Civ.Code art. 2500. While this warranty is implied in every sale, La. Civ. Code art. 2503, in pertinent part provides:

| r,Nevertheless, the parties may agree to increase or to limit the warranty. They may also agree to an exclusion of the warranty, but even in that case the seller must return the price to the buyer if eviction occurs, unless it is clear that the buyer was aware of the danger of eviction, or the buyer has declared that he was buying at his peril and risk, or the seller’s obligation of returning the price has been expressly excluded.

Louisiana Civil Code Article 775 defines building restrictions as follows:

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.

Further, La.Civ.Code art. 776 provides that:

Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables.
Once established, building restrictions may be amended or terminated as provided in this Title.

Comment (C) of La.Civ.Code art. 776 states, in part:

By analogy to non-apparent servi-tudes, building restrictions must be created by title which, in order to be effective against third persons, must be recorded. In this respect, title means any juridical act: hence, restrictions may validly be established by declarations of intent made in the act of sale to the present owner, to an ancestor or in a separate document. By virtue of the public records doctrine, an acquirer of immovable property burdened with recorded restrictions is presumed to have notice.

Fontenot argues that she “had no idea that she was purchasing a residential lot which did not allow the construction of a residence.” Further she asserts that “[a] review of the warranty exchange shows terms of full warranty, with neither identification of any building restrictions, nor waiver of their application^]” Saxby however alleges that Fontenot’s deposition, title opinion, and the exchange deed itself, defeats Fontenot’s argument.

|fiThe Act of Exchange itself contains two relevant provisions as follows:

This Exchange is given and accepted subject to any and all servitudes, restrictions, mineral leases and reservations on file and of record in Calcasieu Parish, Louisiana.
All agreements and stipulations herein, and all the obligations herein assumed shall inure to the benefit of and be binding upon the heirs, successors, and assigns of the respective parties, and the BUYER, his heirs and assigns shall have and hold the described property in full ownership forever.

In her deposition, Fontenot denied being told of any building restrictions which encumbered Cypress Park Subdivision. However, when asked whether at the closing if the closing attorney ever read any portion of the document before she signed it, Fontenot replied “Well, he — I don’t know. I can’t say for certain. I’m sure-— I’m sure he did something. I am sure he said something.”

The record reflects that Fontenot hired an attorney to draft a title opinion. In that title opinion under the heading “Restrictions”, the following provision is listed:

3.1 Restrictive Covenants were established by act dated October 27, 1971, as recorded in Conveyance Book 1168, page 791, and also attached to a Cash Sale Deed dated March 16, 1989, recorded under Clerk’s file No. 2020478.
REQUIREMENT: None, advisory.

In her affidavit, Fontenot addresses the title opinion stating that “though Affiant contracted for a title opinion to be rendered in connection with the sale, she received no title opinion before the sale, during the closing, or after the sale-only a draft title opinion received during the summer of 2006, over two (2) years after the exchange.” In her deposition she explained why she never received the title opinion stating:

But at the time when he rendered the title opinion, he mailed — -he says he mailed it to us in the month of June, and we never got it |7because nobody was living at the house that he mailed it to. We were living in Cypress Lake, which the address in Cypress Lake was 4000 Feet Street, Lake Charles, Louisiana 70611. So I had never — even though John Everett had done the title opinion and — he probably — I’m sure he had it at the closing, but never discussed any restrictions with us at the closing at all.

The record reveals that the attorney who rendered the title opinion mailed the title opinion to the address for Fontenot provided on the Act of Exchange itself.

Additionally, the record indicates that prior to the exchange with Saxby, Fonte-not purchased a home and lot in the Cypress Park Subdivision. In her deposition, she admitted that when she bought the previous home, she was provided an abstract, however she alleged that she never read that abstract.

As explained above, for Saxby to prevail on the motion for summary judgment it is necessary for her “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La.Code Civ.P. art. 966(C)(2). Here, Sax-by asserts that Fontenot will be unable to prove that she was unaware of the building restrictions. Thus the burden of proof shifts to Fontenot to show otherwise. La. Code Civ.P. art. 966(C)(2). The record supports that Fontenot will unable to prove at trial that she was not aware of the risk. It also reveals that the building-restrictions at issue were properly recorded in the Calcasieu Parish conveyance records. In the Act of Exchange, it states that the exchange of property between Fontenot and Saxby is subject to all recorded restrictions. While Fontenot denies being told of any building restrictions, she admits that in her deposition testimony that she does not recall what was read or said to her at the closing. Fontenot does admit that it is her signature on the Act of Exchange.

A review of the evidence supports the trial court’s granting of Saxbjds motion for summary judgment because Fontenot failed to demonstrate that she will be able hto prove at trial that she was unaware of the building restrictions. According to La.Civ.Code art. 2503, a claim in warranty is defeated if the buyer was aware of the risk or if the parties agree to limit that warranty. The comments to La.Civ.Code art. 776 explain that one who acquires an immovable burdened with properly recorded building restrictions is presumed to have notice. In the present matter, the building restrictions were recorded, in addition to Fontenot signing an Act of Exchange purporting to limit the sale subject to any recorded building restrictions. There is a presumption that one who signs an instrument is aware of the contents of that instrument and bears the burden of proving they were deceived. See e.g., Richard v. Glaude, 08-1497 (La.App. 3 Cir. 5/6/09), 10 So.3d 1248. Fonte-not puts forth no evidence that she was deceived or unaware of the document she signed. The evidence submitted in the motion for summary judgment reveals that Fontenot had every opportunity to discover the building restrictions of which she claims she was unaware. Fontenot has set forth no evidence which would support the view that she will be able to maintain her burden of proof at trial and, therefore, we find that the trial court was correct in granting the motion for summary judgment.

Breach of Contract

Fontenot also argues that the trial court erred in granting Saxby’s motion for summary judgment because she is entitled to relief based upon a breach of contract under La.Civ.Code art. 2524 which provides:

The thing sold must be reasonably fit for its ordinary use.
When the seller has reason to know the particular use the buyer intends for the thing, or the buyer’s particular purpose for buying the thing, and that the buyer is relying on the seller’s skill or judgment in selecting it, the thing sold must be fit for the buyer’s intended use or for his particular purpose.
| gIf the thing is not so fit, the buyer’s rights are governed by the general rules of conventional obligations.

Fontenot does not allege in her petition or brief that she relied on any skill or judgment of Saxby in choosing this particular piece of property and therefore cannot claim that under this article the thing was not fit for its intended use. See Downs v. Hammett Properties, Inc., 39,568 (La.App. 2 Cir. 4/6/05), 899 So.2d 792. Accordingly, the record does not support that Fontenot is entitled to any review of her relief under the general rules of contract. See La. Civ. Code art. 2524.

On review, we find that the trial court properly granted Saxby’s motion for summary judgment.

This assignment of error lacks merit.

No Cause of Action

Fontenot asserts that the trial court erred in granting Van Winkle’s exception of no cause of action.

The function of the exception of no cause of action is to determine whether the law extends a remedy to anyone under the petition’s factual allegations. Fink v. Bryant, 01-987 (La.11/28/01), 801 So.2d 346. The exception is triable on the face of the petition alone. Id. A petition’s well-pleaded facts must be accepted as true. Id. On review, an appellate court considers the trial court’s judgment as to the no cause of action de novo. Id.

Although it is unclear from her petition what causes of action Fontenot asserts specifically against Van Winkle, Fon-tenot asserts that same factual basis and the same claims against Van Winkle as asserted against Saxby: breach of an implied warranty and contractual breaches. As explained above, La.Civ.Code art. 2475 obligates a seller to provide a thing fit for its intended use. However, Van Winkle does not owe |1()this obligation because Van Winkle was not the seller in the exchange that took place between Fontenot and Sax-by. There is no privity of contract between Van Winkle and Fontenot and thus Fontenot cannot recover from a breach of this implied warranty.

In brief, Fontenot requests that if this court affirms the trial court’s judgment sustaining Van Winkle’s exception for no cause of action, that she be allowed to amend her petition according to La.Code Civ.P. art. 934 which provides, in part:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.

The right to amend one’s petition is qualified by the requirement that the petition can be cured and does not afford a reviewing court an opportunity to speculate as to the validity of a claim on unwarranted facts. Smith v. Ieyoub, 01-1517 (La.App. 8 Cir. 3/6/02), 809 So.2d 1256. The record reveals that Fontenot never requested leave to amend her petition after the trial court sustained Van Winkle’s exception. Further, Fontenot does not assert how she seeks to cure her petition if afforded an opportunity to amend her petition. Therefore, this court will not speculate on the validity of a claim in an amended petition and her request to amend her petition is denied.

DECREE

For the forgoing reasons, the trial court’s judgment granting Saxby’s motion for summary judgment and sustaining Van Winkle’s exception for no cause of action are affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Dr. Rita Rae Fontenot.

AFFIRMED.