author: MOORE, J.

text:
    Rev. Willie B. MABRY and Pamela Stringfellow, Plaintiff-Appellees, v. Honorable Martha ANDRUS, Mayor, City of Grambling, Defendant-Appellant.
    No. 45,135-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Rehearing Denied May 13, 2010.

      Chris L. Bowman, Jonesboro, for Appellant.
    Charles D. Jones, New Orleans, for Ap-pellees.
   Before CARAWAY, MOORE and LOLLEY, JJ.

MOORE, J.

|, Martha Andrus, the mayor of the City of Grambling, appeals one judgment that ordered her to reinstate at full duty, and to take no adverse employment action against, her city accountant/business manager, Rev. Willie Mabry, and her city clerk, Pamela Stringfellow; and another that found that she violated an earlier TRO by letting them back into the office but not allowing them to perform their job functions. For the reasons expressed, we affirm.

Factual Background

Ms. Stringfellow had worked for the city since 1982 and served as city clerk since 1992. She testified that as city clerk, her job included collecting traffic fines, license fees, taxes and water bills. She admitted that in January 2008, at the direction of the city council, she wrote a check on the city’s account for $11,937.55 without advising the mayor and, contrary to internal policy, without obtaining the mayor’s signature on the check. The following month, the mayor moved her out of city hall and to the fire station. After litigation that was ruled inadmissible in this case, the mayor returned her to city hall in June 2008 but did not allow her to do her normal duties, such as collecting fines, signing checks and going to the bank. Ms. String-fellow also testified that sometime in 2008, the State Police began an investigation into financial irregularities in Grambling city hall; she testified that she cooperated but never reported to State Police that any funds were missing. She admitted that as city clerk, she should be aware of and responsible for any missing money.

lain November 2008, Mayor Andrus again moved Ms. Stringfellow out of her office and into the foyer, facing the restroom. Ms. Stringfellow complained that she has not been permitted to collect any fines or water payments and hence cannot do her job as city clerk.

In late 2008, with the approval of the city council, Mayor Andrus hired Mabry as city accountant/business manager, chiefly to amend the city’s 2008 budget and prepare its 2009 budget. Mabry was a 1972 graduate of Southern University and had worked for CPA firms in Baltimore and New Orleans, and in the city of Baltimore’s finance department, but admitted he was not a CPA, having taken the test and failed.

Mabry’s first day of work at Grambling was November 21, 2008. In reviewing the city’s cash receipts, he discovered a lot of missing money, including over $47,000 in water bills that had been received but never deposited into the city’s bank account. He prepared a review of cash receipts with payment summaries in mid-December (introduced at trial as Exhibit P-1, but with a cover letter dated February 25, 2009), handed this to the mayor and advised her that some theft had occurred. He also testified that during their meeting, the mayor phoned Grambling’s police chief, Tommy Clark, who in turn phoned the DA’s office; as a result of this meeting, the mayor placed the deputy city clerk, Elizabeth Jones, on leave without pay (the titular clerk, Ms. Stringfellow, was still sitting in the foyer and not handling city funds). Mabry testified that he separately met with Trooper Roach of the State Police a few days later, showed him the summary, and advised him that certain funds were not accounted for.

laMabry complained that after these meetings, the mayor’s communications with him became “vague” and he was unable to perform his job. He wanted to use the accounting software QuickBooks to detail the 2009 budget, but this was not on the city’s computer server. (It was, he admitted, on deputy clerk Elizabeth Jones’s desktop PC.) Without it, he said, he simply could not amend the 2008 budget or prepare the '09.

On December 80, the mayor sent Mabry a letter of termination, effective immediately. However, in a rare New Year’s Eve action, the Grambling city council unanimously passed a resolution declaring him a whistleblower for “exposing inconsistencies regarding the city’s finances” to the may- or, city police, State Police and city council, and lodging a “no confidence” vote against Mayor Andrus.

Litigation and Subsequent Events

Mabry and Stringfellow filed this suit for injunctive relief, TRO and protective order on February 19, 2009. They requested a TRO and preliminary injunction enjoining the mayor from terminating them from their respective positions and from interfering with or prohibiting them from performing their jobs, including discontinuing their pay. They also sought a protective order to “protect their rights with the City of Grambling until and unless action related thereto is taken by the city council[.]”

At a hearing on March 3, the court granted the mayor’s motion for continuance and accepted the parties’ stipulation that, pending a full hearing, the mayor would be restrained and enjoined from taking any adverse employment action against the plaintiffs and that a protective order | ¿would issue. The court signed a judgment on rule that date.

On March 5, the plaintiffs filed a rule for contempt, alleging that on March 4, a Lincoln Parish deputy served Mayor Andrus with the court’s judgment on rule and they presented themselves for work, but the mayor refused to let them enter their respective workplaces, an action witnessed by two city council members.

At a hearing on the TRO on March 13, the plaintiffs testified as outlined above, and city council member Edward Jones confirmed the facts and chronology of the incidents. Trooper Roach testified that the State Police had begun an investigation into Grambling’s finances in February 2008. Mayor Andrus did not testify; through counsel she invoked her right against self-incrimination.

Counsel for the mayor argued that the plaintiffs were not entitled to “whistleblower” status under La. R.S. 23:967 because they did not first “advise the employer of the violation of law.” Counsel for the plaintiffs urged that the broader statute for public employees, La. R.S. 42:1169, protected them from adverse employment action. The district court took the matter under advisement and, in the interest of judicial economy, began the contempt rule that afternoon.

On the contempt rule, which was not completed until March 20, two deputies testified that upon being served with the judgment on rule, Mayor |sAndrus exclaimed this was “not what she agreed to,” and she would have to call her attorney; she allowed the plaintiffs to enter the office, but their desks had been cleared and their computers disconnected.

Ms. Stringfellow testified that on March 4, another employee was sitting at her old desk; Mabry testified that the bottom half of the Dutch door to the administrative office was locked, so he could not get to his desk. Both admitted, however, that the mayor did not physically block their entry or tell them not to work, and both have received their regular pay. Mabry also admitted that Business Technology Group, a tech company hired to manage the city’s computers, had struggled for days and finally installed the tax software onto Ms. Stringfellow’s PC, and that he had been able to log onto his own desktop PC the preceding Tuesday.

Action of the District Court

The district court rendered two judgments. In the first, dated April 7, the court noted the two “whistleblower” statutes, but held that the public statute, R.S. 42:1169, afforded no judicial relief, only an administrative remedy. By contrast, the general statute, R.S. 23:967, applied to all employees and created a cause of action. The court found that Mabry satisfied every essential element of § 967: he advised the mayor of a workplace act or practice that constituted a violation of state law, disclosed it to outside authorities, did so in good faith, and the mayor’s actions were reprisals under § 967 C(l). Further, because the missing funds strongly indicated theft or malfeasance in office, Mabry effectively advised the mayor of an actual violation of state law; and, in the absence of evidence |fithat Mabry’s job performance was in any way deficient, the action against him was a reprisal. The court rendered judgment reinstating Mabry to his position and a restraining order prohibiting the mayor from taking any further reprisal against him.

As to Ms. Stringfellow, the court found that she was not entitled to whistleblower status because she did not advise the may- or of any violation of law. Nevertheless, the court found that the mayor must administer city departments “in conformity with applicable provisions of state law,” La. R.S. 33:404 A(l). The court enumerated the statutory duties of a city clerk, finding that Mayor Andrus had prevented and inhibited Ms. Stringfellow from performing some of them, including keeping and preserving city records and books, especially “reporting, auditing, or having any access to city funds before delivery thereof to the treasury.” Finding that this action impermissibly infringed on Ms. Stringfellow’s legal duties, the court rendered judgment restraining the mayor from interfering with her job duties, and ordering her reinstated to her job.

|7In the second judgment, dated April 14, the court found constructive contempt based on “wilful disobedience of any judgment, order, mandate or process of court.” La. C.C.P. art. 224(2). The court noted that Mayor Andrus had already been held in contempt in a separate case for violating a consent decree involving Ms. String-fellow. Reiterating the facts, the court found that nothing had really changed with Ms. Stringfellow, and that both plaintiffs were relegated to the hall, denied access to their computers, records, papers and everything else necessary to perform their jobs. The court conceded that the earlier judgment on rule “was not artfully drafted by counsel and did not clearly detail and itemize the actions the Mayor was prohibited from taking or the affirmative actions she was required to take,” but that these deficiencies were corrected in the final judgment. Finding an adverse employment action, the court held the mayor in contempt, sentencing her to 60 days in parish jail; execution was deferred and the mayor could purge herself of the charge by “immediately, fully and completely complying with all orders” of the court.

The mayor has appealed each judgment separately, raising two assignments of error.

Discussion: Application of Whistleblower Statute

By her first assignment of error, Mayor Andrus urges the court erred in ruling that Mabry was a whistleblower and entitled to protection under La. R.S. 23:967. She urges that there was no evidence to prove that Mabry ] ¡/‘notified his employer of any violation of law,” and this facet of § 967 was strictly enforced in the unreported federal opinion of Wells v. City of Alexandria, 2004 WL 909735 (5 Cir.2004), cert denied, 543 U.S. 1000, 125 S.Ct. 607, 160 L.Ed.2d 458 (2004). In support, she cites the cross-examination of Trooper Roach, who said that neither plaintiff ever told him there was a violation of law, and that in fact it was Mayor Andrus who initiated the investigation, in which the plaintiffs merely cooperated. Going outside the record, the mayor also argues that she was entitled to fire Mabry because after six weeks on the job he had still not produced a projected 2009 budget.

The plaintiffs respond by restating much of the court’s April 7 ruling and arguing that the district court committed no manifest error in finding either that Mabry advised the mayor of a violation of law or that the mayor’s actions constituted reprisals. In support they cite Fondren v. Greater New Orleans Expy. Comm’n, 03-1383 (La.App. 5 Cir. 4/27/04), 871 So.2d 688, in which the court reversed a summary judgment to let the plaintiff prove that he really did advise the employer of a violation of law. They also submit that the citation of Wells v. City of Alexandria, was improper under FRAP 32.1(a), under which a federal court may prohibit, in judicial orders, the citation of unpublished opinions issued prior to January 1, 2007.

Louisiana’s “whistleblower” statute, R.S. 23:967, provides in pertinent part:

§ 967. Employee protection from reprisal; prohibited practices; remedies.
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
|fl(l) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body concerning an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law. * * *
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) “Reprisal” includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section]/] * * *
(2) “Damages” include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal. * * *

In order to qualify for whistleblower protection under this statute, the plaintiff must prove an actual violation of a state law, not just a good faith belief that a law was broken. Accardo v. Louisiana Health Services & Indem. Co., 2005-2377 (La.App. 1 Cir. 6/21/06), 943 So.2d 381; Hale v. Touro Infirmary, 2004-0003 (La.App. 4 Cir. 11/3/04), 886 So.2d 1210; Fondren v. Greater New Orleans Expy. Comm’n, supra; Kristen D. Peel, “Louisiana’s Revised Statutes 23:967: The Questionable Interpretation of Louisiana’s Whistleblower Statute and a Solution for the Courts,” 34 S.U.L.Rev. 103, 116-119 (Spring 2007). Moreover, the employee must first “advis[e] the employer of the violation of law” before the statutory remedies take effect. R.S. 23:967 A.

Mabry testified that as a result of his examination, he found over $47,000 missing, and he advised the mayor not only of this fact but that |m“some theft had occurred.” His review of cash receipts (excluding the subsequent cover letter) does not use the words “theft” or “malfeasance in office.” However, several pages are marked “missing dates,” “not on G/L” (general ledger) and “not on bank statement,” indicating that numerous cash payments to the city had disappeared. Trooper Roach confirmed that while Mabry was cooperating in the investigation, he never advised him (Trooper Roach) that a crime had occurred; however, this obviously has no bearing on whether Mabry advised his employer of the violation. Trooper Roach also testified that just from looking at Exhibit P-1, he could not determine that a state law had been violated, but the main thrust of his testimony was to avoid divulging any findings that might compromise the ongoing investigation. On this evidence the district court was entitled to find that Mabry first advised his employer of an actual violation of state law and then provided information to the State Police about that violation. These findings satisfy the requirements of R.S. 23:967. The court did not err in extending whistleblower protection to Mabry.

This assignment of error lacks merit.

Finding of Contempt

By her second assignment of error, Mayor Andrus urges the court erred in holding her in contempt for a violation of the previous order. In support, she cites portions of the plaintiffs’ cross-examination admitting they were never prohibited from entering their offices, they never tried to | n talk to the mayor, and they did not actually try to reclaim their old desks. The mayor maintains that the offices have always been open to them and, in fact, part of the requested software has been installed on the- server. Finally, she contends that by the court’s own admission, the judgment on rule was “not artfully drafted” and thus too ambiguous to support a finding of contempt. LeBlanc v. LeBlanc, 2006-1307 (La.App. 3 Cir. 3/7/07), 953 So.2d 115. She concludes that she did not willfully disobey the judgment on rule and asks this court to reverse the finding of contempt.

The plaintiffs respond that the court committed no manifest error in finding that the mayor willfully, and through the acts of others, prevented them from performing their jobs.

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. Constructive contempt of court includes, inter alia, willful disobedience of “any lawful judgment, order, mandate, writ, or process of the court.” La. C.C.P. art. 224(2). Constructive contempt must be based on a finding that the person violated an order of the court “intentionally, knowingly, and purposefully, without justifiable excuse.” Lang v. Asten Inc., 2005-1119 (La.1/13/06), 918 So.2d 453; Midyett v. Midyett, 32,208 (La.App. 2 Cir. 9/22/99), 744 So.2d 669. The court is vested with great discretion to determine whether a party should be held in constructive contempt for violating a court order. Fink v. Bryant, 2003-0987 (La.11/28/01), 801 So.2d 346. The appellate court will reverse only on a showing of abuse of that discretion. Midyett v. Midyett, supra.

The district court carefully outlined the testimony, concluding that “nothing has changed” since the original judgment: QuickBooks has not been installed, other employees continue to perform Ms. String-fellow’s job duties, both plaintiffs remain seated in the hall, and at various times both plaintiffs’ doors have been locked. The court aptly noted that its initial judgment, drafted by counsel, was not artful, and seems slightly more detailed than the stipulation orally announced by plaintiffs’ counsel. Nevertheless, it clearly directed the mayor to (1) immediately return and restore the plaintiffs to their positions of employment, and (2) give them full and complete access to their respective offices and to all equipment and materials necessary and proper to perform their job functions effectively. Admittedly, the mayor never told the plaintiffs that they were forbidden to do their jobs, did not eject them from city hall, and did not physically block their entrance into their old offices. However, by consigning them to the hall, installing other employees at their desks, and reassigning their job duties, the mayor failed to honor the prior judgment in circumstances showing that her actions were intentional, knowing, purposeful and without probable cause. The district court did not abuse its discretion in finding a constructive contempt of court.

With the district court, we are reluctant to enjoin the mayor from her statutory duty of operating the city. However, at the hearing on March 3, the mayor stipulated to the essential element of the judgment on rule, restraining and enjoining her from taking any adverse employment action | ^against the plaintiffs. On this record, the district court did not abuse its discretion in finding that the mayor willfully disobeyed this lawful order. This assignment of error lacks merit.

Conclusion

For the reasons expressed, we affirm the judgments of the district court. Appellate costs of $243.00 are to be paid by Martha Andrus, Mayor of Grambling. La. R.S. 13:5112.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

      . The judgment on rule included a TRO that restrained the mayor "from terminating or attempting to terminate” the plaintiffs; a preliminary injunction that restrained her "from terminating or taking any adverse employment actions against” the plaintiffs; a protective order "that there shall be no adverse employment actions taken against [the plaintiffs] in their employment positions" without the express approval of the city council; and an order that both plaintiffs be "immediately returned and restored to their positions of employment” with the city "with full and complete access to their respective offices and to all equipment and materials necessary and properly [sic ] [to] effectively perform their respective job duties.”

      . The portion of the judgment reinstating Ma-bry ordered the mayor to grant him "full and complete access to his administrative office and all equipment necessary or expedient to properly perform his duties, including a computer, QuickBooks, computer software, financial and accounting books and records, bank statements, payroll records, and any and all documentation pertaining to the fiscal affairs of the city[.]” The injunction prohibited the mayor from taking "any further reprisal or discriminatory action” against Mabry under R.S. 23:967, "no action that prevents or interferes with the reinstatement of Willie E. Ma-bry as city accountant and business manager,” and directed her to take "all necessary and expedient action as Mayor to fully and completely implement these orders,” under penalty of contempt.

      . The portion of the judgment reinstating Ms. Stringfellow ordered the mayor to grant her "full and complete access to an appropriate office in which the records of her office shall be kept, preserved, and maintained, and in which all funds from any source shall be reported to and audited by her before delivery to the treasurer,” and that she "be furnished with all furniture, equipment, and material necessary for her to perform her duties, including, but not limited to: a desk, file cabinets and space, computer and computer software, QuickBooks, property tax software, books, papers, and documents.” The injunction prohibited the mayor from "preventing, inhibiting, or interfering with Pamela String-fellow in the discharge or performance of her duties” as municipal clerk, and ordered the mayor "to take all action necessary and expedient to fully and completely implement these orders immediately,” under penalty of contempt.

      . The mayor initially sought supervisory review of the April 14 judgment, but this court found that it was an appealable final judgment and remanded the matter for perfection as an appeal.

      . We note that the mayor has not contested on appeal the portion of the judgment ordering her to reinstate Ms. Stringfellow, in spite of the finding that Ms. Stringfellow was not entitled to whistleblower status. We express no opinion as to the validity of this aspect of the judgment.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    William ALEXANDER, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 45,126-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Rehearing Denied May 13, 2010.
    William S. Alexander, pro se.
    William T. Allison, pro se.
   Before WILLIAMS, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

|,In this workers’ compensation case, the claimant, William Alexander, appeals the approval of attorney fees by the workers’ compensation judge (“WCJ”) in favor of Alexander’s former counsel, William T. Allison. For the reasons set forth herein, we affirm.

FACTS

Alexander allegedly injured his shoulder on July 13, 2004, while working as a garbage collector for the city of Shreveport. He was placed on light duty and allegedly reinjured the shoulder on January 10, 2005. Alexander was on light duty (at various positions and jobs) until July 19, 2005, when he was examined by Dr. Craig Springmeyer, who opined that Alexander could not work. Dr. Karl Bilderback then examined Alexander and found no injury. Ultimately, Dr. Clint McAlister was appointed as an independent medical examiner. Dr. McAlister examined Alexander and found a shoulder injury which required treatment. The city began paying temporary total disability benefits (“TTDs”) in July 2005.

In May 2006, the city filed a disputed claim form 1008 asserting that Alexander had been released to work with restrictions and had not cooperated with vocational rehabilitation efforts. The record reveals several attempts on the part of the city to get Alexander involved in vocational rehabilitation to no avail. A second disputed claim form 1008 was filed (the record is unclear on the filings and service of these forms) and served on Alexander and a hearing was set on the city’s Motion to Require Claimant to Comply with Vocational Rehabilitation. At that point, Alexander sought legal representation from attorney William T. Allison.

12Alexander first met with Allison on July 12, 2006, and then on August 24, 2006. Alexander was given documents which required execution in order for Allison to open a client file, including a retainer agreement setting forth a fee of 20 percent of any amount recovered in accordance with La. R.S. 23:1141 and 1143, infra. Alexander signed the documents and Allison began legal representation in the matter.

According to Allison, he soon encountered difficulty getting Alexander to provide answers to interrogatories. At some point thereafter, Alexander brought the information needed to answer the discovery to Allison’s office. For reasons not specified in the record, a disagreement arose between Allison and Alexander as to how to answer the discovery. Since Allison refused to answer the interrogatories in the fashion Alexander wanted to answer them, Allison filed a motion to withdraw as Alexander’s counsel. The motion to withdraw was granted.

During the representation, beginning September 15, 2006, Alexander’s weekly indemnity checks in the amount of $373.47 each were deposited in Allison’s trust account. A total of 29 checks were received during the representation totaling $10,830.63. Twenty percent was withheld in the account from each check and the balance was paid out to Alexander each week. On Allison’s withdrawal, the balance in the trust account was $2,166.13. After Allison withdrew as counsel, each weekly indemnity check, in full, was forwarded to Alexander.

Allison subsequently filed an application for approval of attorney fees on January 15, 2009, requesting approval to withdraw the balance of the ptrust account as his fee. Alexander requested a hearing, which was held on March 25, 2009. The WCJ granted the application, thereby approving attorney fees in the amount of $2,166.13, representing the 20 percent withheld by Allison from Alexander’s indemnity checks and retained in Allison’s trust account during his representation of Alexander. This pro se appeal by Alexander ensued.

DISCUSSION

Whether attorney fees are appropriate in a workers’ compensation action is a question of fact. Jeffcoat v. McCann’s Seafood, 96-1259 (La.App. 3d Cir.5/7/97), 696 So.2d 8. Further, an award of attorney fees under the Worker’s Compensation Act is committed to the discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. Smith v. Tudor Const., 25,783 (La.App.2d Cir.5/4/94), 637 So.2d 666.

The fee involved in this ease is a contingency fee based on a contract between the attorney and client, as opposed to a statutory attorney fee award. The Contract of Representation in the case sub judice reads, in pertinent part:

2. ATTORNEY FEES: I agree to pay to my attorney an attorney fee equal to 20% of all amounts recovered, or the maximum amount of attorney’s fees allowed by law, whichever is smaller, subject to the approval of the Workers’ Compensation Judge. I request that my employer and its carrier (or third party administrator) make all payments of workers’ compensation indemnity benefits payable to me and mailed to me in care of my attorney at the attorney’s address.
I authorize my attorney to retain in trust from my indemnity benefits, to secure the payment of my attorney fees and costs, amounts equal to the percentages above set forth, pending approval by the workers’ compensation judge.

|4The Contract of Representation was signed by Alexander on August 24, 2006. As previously stated, beginning in September, Alexander’s indemnity checks were deposited in Allison’s trust account. Twenty percent was withheld from each check and the balance was paid out to Alexander each week.

La. R.S. 23:1141, Attorney fees; privilege on compensation awards, recognizes and limits such contractual attorney fees and provides in part:

A. Claims of attorneys for legal services arising under this Chapter shall not be enforceable unless reviewed and approved by a workers’ compensation judge. If so approved, such claims shall have a privilege upon the compensation payable or awarded, but shall be paid therefrom only in the manner fixed by the workers’ compensation judge. No privilege shall exist or be approved by a workers’ compensation judge on injury benefits as provided in R.S. 23:1221(4)(s).
B. The fees of an attorney who renders service for an employee coming under this Chapter shall not exceed twenty percent of the amount recovered.

Again, while recognized by statute, this fee is not a statutory fee because it is authorized and created by contract between the employee and the attorney. The statute, however, limits the fee charged by the attorney to 20 percent of the amount recovered. La. R.S. 23:1141(B); McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. The contractual fee is not assessed against the employer or the employer’s insurer, but is contractually payable by the employee to the attorney out of the employee’s recovery of benefits that is attributable to the litigation handled by the attorney. Finally, the contractual fee, as a contingency fee, is payable in every case of successful litigation over unpaid benefits, irrespective of the employer’s or insurer’s failure to reasonably controvert |sthe claim that benefits are due to the employee. McCarroll v. Airport Shuttle, supra.

The fact that Alexander was already receiving TTDs when he retained Allison and such benefits continued uninterrupted in the same amount throughout the representation does not mandate denial of the application for attorney fees. In Miller v.

Gaspard, 95-861 (La.App. 3d Cir.12/6/95), 664 So.2d 810, the court explained that a fee contingent on the “amount recovered” in a workers’ compensation case is not precluded simply because the indemnity benefits out of which the fee is paid are not “recovered” through litigation performed by the attorney. The court in Miller opined:

Initially, we address the hearing officer’s determination that Miller was not entitled to an award of 10% of the worker’s compensation benefits Gaspard received because Miller did not recover these benefits. We find this determination an error of law. The hearing officer focused very narrowly on the fact that Gaspard was being paid weekly compensation benefits without the intervention of Miller and that these benefits continued uninterrupted after Miller’s employment. We find such a reading is unduly restrictive and overlooks the professional services, other than litigation, that Miller rendered.

The Miller court further noted that the fee agreement in that case clearly recognized services other than litigation afforded Miller by the attorney. As in Miller, supra, the Contract of Representation in the case sub judice contemplated services other than litigation, including investigation and other legal proceedings.

In addition, this court has recognized that the statutory scheme outlined above limits the amount of attorney fees in workers’ compensation cases, allows a privilege on the award recovered and specifies a procedure |fifor obtaining approval for attorney fees and enforcement of the privilege. Physicians & Surgeons Hosp. v. Young, 32,641 (La.App.2d Cir.1/26/00), 750 So.2d 1177, writ denied, 00-0916 (La.5/26/00), 762 So.2d 1106. Citing Miller, supra, we went on to explain:

These statutes contemplate a workers’ compensation judge being supplied with an application filed by an attorney for approval of a fee and containing information as to the services rendered. Then, based upon that information, it is the duty of the workers’ compensation judge to award the fee, which may not exceed the amount set by the statute. The purpose of the law is to protect the employee from excessive legal charges.

Physicians & Surgeons Hosp. v. Young, supra.

Allison attached time records (although somewhat difficult to interpret) to his application for approval of fees, substantiating his time spent on Alexander’s case. The record is clear that Allison performed legal services, including conducting discovery and correspondence with the city on Alexander’s behalf, for which he is entitled to payment. The Contract of Representation is equally clear that Alexander agreed for Allison to withhold 20 percent from his weekly indemnity checks to cover the cost of representation, which is within the statutory limit of La. R.S. 23:1141. Based on this record, we cannot say that the WCJ abused his wide discretion in approving Allison’s application for approval of attorney fees in the amount of $2,166.13.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge approving the application for approval of attorney fees |7of William T. Allison is affirmed. Costs of this appeal are assessed against William Alexander.

AFFIRM1ED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS & DREW, JJ.

Rehearing denied.


text:
    Jerry W. BAUGHMAN, Plaintiff-Appellant, v. COVENANT TRANSPORT, INC., and The Louisiana Workforce Commission, Defendant-Appellee.
    No. 45,122-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Jerry W. Baughman, Pro Se.
    Covenant Transport, Inc., Pro Se.
    J. Jerome Burden, for Appellee, Louisiana Workforce Commission.
    Before BROWN, PEATROSS & DREW, JJ.
   PEATROSS, J.

Lin this unemployment benefits dispute, Appellant, Jerry W. Baughman, initially received unemployment benefits from' his former employer, Covenant Transport, Inc. (“Covenant”). Covenant then appealed Mr. Baughman’s unemployment benefits award to an Administrative Law Judge who terminated the award. Mr. Baugh-man appealed the ALJ’s ruling to the Louisiana Workforce Commission (“the Commission”) who dismissed Mr. Baughman’s claim.

Mr. Baughman appealed the Commission’s decision 27 days later, which was 12 days after the 15-day deadline for appeal had elapsed pursuant to La. R.S. 23:1630. Appellees filed an exception of peremption arguing that Mr. Baughman’s appeal was untimely. Agreeing with Appellees, the trial judge sustained the exception and Mr. Baughman now appeals. For the reasons stated herein, we affirm.

FACTS

In 2008, Mr. Baughman was an unemployment benefits recipient to be paid by his former employer, Covenant. In late 2008, Covenant appealed the unemployment benefits award to the ALJ which determined that Mr. Baughman was not entitled to unemployment benefits and that he had, in fact, received an overpayment of benefits. The ALJ then terminated the award but did not require Mr. Baughman to repay the benefits since he had not acted fraudulently. Mr. Baughman then appealed the ALJ’s ruling to the Commission which subsequently dismissed Mr. Baughman’s claim.

The Commission mailed a copy of its decision dismissing Mr. Baughman’s claim for unemployment benefits to his mailing address on |2Pecember 24, 2008. During this time, Mr. Baughman had returned to work as a truck driver and, thus, was often out of town and rarely returned to his residence. Mr. Baughman’s son, Kevin Baughman, who resides with Mr. Baugh-man, received the letter from the Commission on December 27, 2008. Kevin called Mr. Baughman on the day he received the letter from the Commission and read the contents of the front page of the letter to Mr. Baughman over the phone. Kevin did not, however, read to Mr. Baughman the contents on the back of the letter which contained information regarding the 15-day deadline to appeal the Commission’s decision.

After becoming apprised of the Commission’s decision denying his claim, Mr. Baughman called the Commission office several times over the next couple of weeks. Mr. Baughman did not formally appeal the Commission’s decision dismissing his claim until January 20, 2009. As previously stated, once Mr. Baughman finally filed his appeal with the district court, the trial judge presiding over the matter granted the Commission’s exception of peremption on the grounds that the appeal was untimely because it was filed 12 days after the 15-day deadline pursuant to La. R.S. 23:1630.

Mr. Baughman now appeals the trial judge’s ruling.

DISCUSSION

In his sole assignment of error, Mr. Baughman argues that the trial judge erred in granting the Commission’s exception of peremption. In support of this contention, Mr. Baughman asserts that the Commission pfailed to give him proper instructions on the procedure to appeal its decision denying his claim. Additionally, Mr. Baughman urges this court to exercise de novo review of the trial court’s ruling granting the Commission’s exception.

Primarily relying on La. R.S. 23:1630(B) and citing various applicable case law in support thereof, the Commission argues that Mr. Baughman’s appeal was untimely; and, thus, the trial judge properly granted their exception of peremption. The Commission further contends that it did not err in its administrative role or capacity to provide correct and timely instructions to Mr. Baughman with regard to the procedure to appeal. We agree.

La. R.S. 23:1630(B) provides:

B. The board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date an appeal is received or initiated by the board. Should the board of review, within sixty days from the date an appeal is received or initiated, direct that additional evidence be taken, the board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date it receives the additional evidence. Such decision shall be final unless, within fifteen days after the mailing of notice thereof to the party’s last known address, or, in the absence of such mailing, within fifteen days after the delivery of such notice, a proceeding for judicial review is initiated pursuant to R.S. 23:1634. Upon denial by the board of review of an application for appeal from the decision of an appeal referee, the decision of the appeal referee shall be deemed to be a decision of the board of review within the meaning of this Section for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to decision of the board of review, except that the time for initiating such review shall run from the date of notice of the order of the board of review denying the application for appeal. (Emphasis added).

|_,La. R.S. 23:1634(A) provides:

A. Within the time specified in R.S. 23:1630, the administrator, or any party to the proceedings before the board of review, may obtain judicial review thereof by filing in the district court of the domicile of the claimant a petition for review of the decision, and in such proceeding any other party to the proceeding before the board of review shall be made a party defendant. If the claimant is not domiciled in Louisiana at the time for filing a petition for review, the petition or request for review may be filed in the district court of the parish in which the claimant was domiciled at the time the claim was filed or in the parish in which the Louisiana Workforce Commission is domiciled. The petition for review need not be verified but shall state the grounds upon which such review is sought. The administrator shall be deemed to be a party to any such proceeding. If the administrator is a party defendant, a certified copy of the petition shall be served upon him by leaving with him, or such representative as he may have designated for that purpose, as many copies of the petition as there are defendants. With his answer or petition, the administrator shall certify and file with the court, within sixty days of service of process, a certified copy of the record of the case, including all documents and papers and a transcript of all testimony taken in the matter, together with the board of review’s findings, conclusions, and decision. If the administrator fails to file the record with the court within the time provided herein, the court, upon hearing sufficient evidence, may issue a judgment directing payment of benefits to the claimant. (Emphasis added.)

In a proceeding for judicial review of an agency determination of unemployment compensation benefits, “the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” La. R.S. 23:1634(B); Banks v. Administrator, 393 So.2d 696 (La.1981); Menyweather v. Office of Employment Security, 43,170 (La.App.2d Cir.4/30/08), 981 So.2d 814. Judicial review does not permit the weighing of evidence, drawing of inferences, re-evaluation of the evidence or substituting the views of this court for those of the board as to |Bthe correctness of facts. Menyweather, supra; Lafitte v. Rutherford House Inc., 40,395 (La.App.2d Cir. 12/14/05), 917 So.2d 684.

Appeal from the Commission’s decision is permitted “within fifteen days after the date of notification or of mailing of a decision of an appeal referee, by any party entitled to notice of such decision, if such appeal is either mailed, as evidenced by the postmarked date, or is delivered by any such party.” La. R.S. 23:1630(A).

La. C.C. art. 3458 provides that “[p]er-emption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” “Peremption may be pleaded or supplied by the court’s own motion.” La. C.C. art. 3460.

The courts of this state have recognized that the 15-day period provided by La. R.S. 23:1630 is a peremptive period. Bullock v. Administrator, Dept. of Employment Sec., 628 So.2d 190 (La.App. 2d Cir.1993); Town of New Llano, La. v. Hunt, 02-1385 (La.App. 3d Cir.3/5/03), 839 So.2d 1161. The expiration of the period “destroys the claim so completely that any right of action ceases to exist and is lost.” Bullock, supra.

The Commission mailed a copy of its decision dismissing Mr. Baughman’s claim for unemployment benefits to his mailing address on December 24, 2008. Mr. Baughman does not dispute this fact and further admits that his son received the letter at Mr. Baughman’s residence on December 27, 2008, the contents of which were read aloud to Mr. Baughman over the phone. Furthermore, the Commission’s letter to |fiMr. Baughman clearly informed him of his right to appeal, the procedure through which to do so and the 15-day deadline after which he would lose his right to appeal.

Accordingly, we find no error in the trial court’s ruling sustaining Appellees’ exception of preemption. Due to the expiration of the 15-day period prior to Mr. Baugh-man’s filing for judicial review with the district court, the action was untimely. As stated above, the expiration of the period extinguished Mr. Baughman’s claim in full.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Appellees’ exception of peremption pursuant to La. R.S. 23:1630 is affirmed. Costs of this appeal are not assessed. La. R.S. 23:1692. Where the employer has prevailed as in this case, costs must be absorbed by the clerk of appropriate court. Atlas Processing Co. v. Administrator, Dept. of Employment Sec., 584 So.2d 1187 (La.App. 2d Cir.1991); Melton v. State, Office of Employment Sec., 473 So.2d 925 (La.App. 3d Cir.1985).

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Tyrone Dewayne GIPSON, Appellant.
    No. 45,121-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      James E. Beal, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jason T. Brown, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

11 The defendant, Tyrone Dewayne Gip-son, appeals his convictions for possession of a Schedule II controlled dangerous substance, cocaine, over 28 grams, but less than 200 grams; possession of a Schedule I controlled dangerous substance, methy-lenedioxymethamphetamine (MDMA a/k/a Ecstasy); and possession of a Schedule II controlled dangerous substance, hydroco-done. He was adjudicated a third felony offender and was ordered to serve concurrent sentences of 35 years at hard labor and a $50,000 fine for the cocaine conviction, 20 years at hard labor for the MDMA conviction, and 10 years at hard labor for the hydrocodone conviction. For the following reasons, the defendant’s convictions are affirmed. The sentence for possession of cocaine is amended and, as amended, affirmed. The remaining sentences are affirmed.

FACTS

On July 28, 2007, around 1:00 a.m., Corporal Daniel Sawyer, Corporal Christopher Yarborough, and Officer Jeff Hammer of the Shreveport Police Department went to the Pendleton Apartments in Shreveport to arrest a suspect on outstanding felony warrants. The apartments are very small and all face inward onto a common area. The officers did not find the suspect. While standing in the common area, they saw a man, later identified as Willie Lee, exit apartment 109 with a smile on his face and something in his hand. Once the man saw the officers, he stopped smiling and put his hand behind his back. The officers approached Mr. Lee and asked him what was in his hand. Mr. Lee had a rock of crack 12cocaine which he said he obtained in apartment 109. He was placed under arrest.

While Corporal Yarborough and Officer Hammer detained Mr. Lee outside the apartment, Corporal Sawyer walked to the apartment and knocked on the door. The door was answered by Fodie Gipson, the occupant, a man approximately in his 60s. An unidentified woman, also approximately in her 60s, was sitting on the sofa. Fodie Gipson gave his consent for Corporal Sawyer to enter the apartment.

According to Corporal Sawyer, as he entered the apartment, he saw another woman, Swandolawn Brewer, coming from the bedroom. When Ms. Brewer saw Corporal Sawyer, she turned and headed back to the bedroom. She did not respond when the officer asked her where she was going. Because the apartments were known for drug sales and distribution, as well as violent crimes, Corporal Sawyer was concerned for his safety. He immediately followed Ms. Brewer back to the bedroom to make sure that she was not trying to retrieve a weapon.

The defendant, Mr. Gipson’s nephew, came out of the bathroom into the bedroom and looked surprised to see Corporal Sawyer. The top dresser drawer in the bedroom was open, within arm’s length of the defendant and Ms. Brewer. The defendant and Ms. Brewer looked at the drawer and then at each other. In the drawer, Corporal Sawyer observed, in plain view, a large, white rock that appeared to be cocaine. The defendant moved in front of the dresser and closed the drawer with his rear end. Corporal Sawyer physically moved the defendant aside and reopened the drawer. The | ¡¡defendant closed the drawer on the officer’s hand. Corporal Sawyer told the defendant that he was under arrest. The defendant then started fighting the officer.

Corporal Sawyer radioed for Corporal Yarborough and Officer Hammer to assist him. During the altercation, Corporal Yarborough was head butted and Corporal Sawyer received blows to his head from the defendant.

The defendant attempted to flee the apartment. He was stunned with a Taser gun several times before he was subdued. The defendant was originally arrested for battery of a police officer. Cocaine, weighing approximately 30 grams, was found in the dresser drawer along with MDMA pills and hydroeodone tablets. The officers also recovered more than $1,500 in cash. Approximately $700 of that amount was found on the defendant. The defendant and Ms. Brewer were placed under arrest. Fodie Gipson and the unidentified woman apparently left the apartment during the altercation.

On October 29, 2007, the defendant was charged by bill of information with possession of a Schedule II controlled dangerous substance, cocaine, over 28 grams, but less than 200 grams; possession of a Schedule I controlled dangerous substance, methy-lenedioxymethamphetamine (MDMA a/k/a Ecstasy); and possession of a Schedule II controlled dangerous substance, hydroco-done.

The defendant filed a pro se motion to suppress the evidence against him. A hearing was held on October 22, 2008. The defendant argued the 14motion himself, against the advice of counsel. The trial court found that the search and seizure were proper and denied the motion to suppress.

On October 28, 2008, the defendant was tried by a jury. He proceeded to trial against the advice of counsel who urged the defendant to accept a plea bargain by the state with an agreed sentence of 30 years at hard labor. At the beginning of the trial, the defendant expressed the desire to have his uncle, Fodie Gipson, appear to testify. A subpoena was issued. After Mr. Gipson was located, defense counsel persuaded the defendant not to call him to testify because it would not be in the defendant’s best interest.

At trial, Corporals Sawyer and Yarbor-ough and Officer Hammer testified, detailing the events of the defendant’s arrest. Corporal Sawyer testified regarding entering the apartment, discovering the drugs, and fighting with the defendant, as outlined above.

According to Corporal Yarborough, it appeared that drug sales had been conducted from the back window of the bathroom because there was a hole in the window screen. Corporal Yarborough testified that at the Pendleton Apartments, there were frequently holes in the window screens used to sell drugs or to get drugs out of the apartment quickly.

Officer Hammer corroborated the testimony of Corporals Sawyer and Yarbor-ough. He also stated that, in addition to the large rock of crack cocaine located in the drawer in plain view, they also recovered other pieces of crack cocaine along with MDMA and hydroeodone. Officer Hammer stated that $700 was found on the defendant when he was patted down |BfoIlowing his arrest. Money was also found in the drawer, on the bed, and on the kitchen table.

Randall Robillard, a forensic chemist with the crime lab, was accepted as an expert and testified regarding the chemical analysis of the drugs recovered in this case. He stated that Exhibit 1 was crack cocaine weighing 31.2 grams; Exhibit 2 was MDMA, also called Ecstasy; Exhibit 3 contained smaller amounts of crack cocaine; Exhibit 4 was hydroeodone with acetaminophen.

In a 10-2 verdict, the jury found the defendant guilty as charged of all three offenses. On November 19, 2008, the defendant was charged as a fourth felony offender. The bill of information alleged that on May 8, 1991, the defendant pled guilty to unauthorized use of a movable and was sentenced to three months in the parish jail. On August 26,1992, the defendant pled guilty to illegal possession of stolen firearms and was sentenced to 18 months at hard labor, suspended, and 18 months’ supervised probation. On March 10, 2003, the defendant pled guilty to forgery and was sentenced to three years at hard labor. The defendant was convicted of the present offenses on October 23, 2008.

At the hearing on the multiple offender charge, the prosecution showed that the defendant’s fingerprints were on the bills of information for the charges of illegal possession of stolen firearms and forgery. His fingerprints were not on the bill of information for unauthorized use of a movable. Because the state could not conclusively prove that the defendant |fiwas the same person convicted on the charge of unauthorized use of a movable, the trial court found that the defendant was a third felony offender.

The defendant appeared before the court for sentencing on April 6, 2009. He was sentenced as a third felony offender to serve 35 years at hard labor with a fine of $50,000 for possession of a Schedule II controlled dangerous substance, cocaine, over 28 grams, but less than 200 grams; 20 years at hard labor for possession of a Schedule I controlled dangerous substance, methylenedioxymethamphetamine (MDMA a/k/a Ecstasy); and 10 years at hard labor for possession of a Schedule II controlled dangerous substance, hydroco-done. The sentences were ordered to be served concurrently. The defendant appealed, arguing that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to suppress the evidence in this case.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the jury’s verdict is based totally on circumstantial evidence regarding his knowledge of the drugs in the apartment. He claims that the apartment was his uncle’s and that he did not live there. There was nothing in the dresser drawer where the drugs were found indicating possession or ownership by the defendant. According to the defendant, it is rational to assume that he was simply in his uncle’s apartment using the bathroom and was merely trying to protect him. According to the defendant, there is no evidence to show that he owned or possessed the money or the drugs found by the police. He claims there was 17insufficient evidence to establish his guilt beyond a reasonable doubt. This argument is without merit.

Legal Principles

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992).

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Rob ertson, 1996-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529; State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422; State v. Linnear, 44,830 (La.App.2d Cir.12/9/09), 26 So.3d 303.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630. La. R.S. 15:438 provides that the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Nelson, 44,762 (La.App.2d Cir.10/28/09), 25 So.3d 905; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

To support a conviction for possession of a controlled dangerous substance, the state must prove that the defendant was in possession of the | ¡¡illegal drug and that he knowingly possessed the drug. However, to be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987. A person may be in constructive possession of a controlled dangerous substance even though it is not in his actual physical custody if he willingly and knowingly shares with another the right to control it. Guilty knowledge and intent may be inferred from the circumstances of the transaction. State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991).

Factors which may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that the illegal drugs were present, evidence of recent drug use, the defendant’s proximity to the drugs, and evidence that the area is frequented by drug users. Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra.

Discussion

Viewed in the light most favorable to the prosecution, the evidence is suffi-eient to support the convictions of the defendant on all three counts. The law clearly bans the possession of the substances found; the issue is |10whether the evidence presented at trial shows that the defendant was in constructive possession of the prohibited substances.

According to Corporal Sawyer’s testimony, the defendant looked toward the rock of cocaine as soon as he saw the officer. The defendant immediately stepped in front of the drawer and closed it. When the officer moved the defendant and opened the drawer again, the defendant slammed the drawer on the officer’s hand. The defendant began fighting Corporal Sawyer when the officer attempted to arrest him. These factors solidly establish that the defendant had a possessory interest in the drugs. While there was no evidence of recent drug use, there was ample evidence of recent drug sales. Willie Lee was arrested outside the apartment and said he bought the drugs in apartment 109. Also, the large amount of cash found in the defendant’s pocket, the hole in the bathroom window screen associated with drug sales, and the defendant’s presence in the bathroom when the officer entered the room are factors which clearly show that recent drug sales had taken place. The defendant was in close proximity to the drugs. All three officers testified that these apartments are in a high crime area known for drug sales. These factors show that the defendant was in constructive possession of the illegal narcotics. A rational jury could have found the elements of these crimes proven beyond a reasonable doubt. Therefore, there is sufficient evidence in this case upon which to base the defendant’s convictions.

J^MOTION TO SUPPRESS

The defendant argues that the trial court erred in denying the motion to suppress the evidence against him. The defendant urges that there was no consent to search the house and that Corporal Sawyer had no reason to go into the bedroom; therefore, the evidence seized should have been excluded. This argument is without merit.

Legal Principles

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168; State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10),27 So.3d 841.

The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. State v. O’Neal, supra.

When the constitutionality of a warrant-less search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of | ^proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra.

The plain view doctrine is an exception to the warrant requirement. State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753; State v. O’Neal, supra. The plain view doctrine renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. O’Neal, supra.

The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pretrial morion to suppress. State v. Collins, 44,248 (La.App.2d Cir.5/27/09), 12 So.3d 1069. This court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Collins, supra.

Discussion

The evidence seized was lawfully acquired under the plain view doctrine. Corporal Sawyer asked and received permission to enter Fodie Gipson’s residence. While lawfully inside the apartment, Corporal Sawyer saw Ms. Brewer come out of the back room and, after she saw him, she retreated back to the bedroom and failed to respond when Corporal Sawyer 11sasked her where she was going. All three officers testified that the apartment complex is considered a high crime area. Out of concern for his safety, Corporal Sawyer lawfully followed Ms. Brewer into the back room. While in the room, he saw the narcotics in plain view.

Corporal Sawyer had the consent of the apartment’s occupant to be in the residence. Due to the exigent circumstances of officer safety, Corporal Sawyer acted properly in following Ms. Brewer into the back room. Immediately upon entering the room, Corporal Sawyer saw the rock of cocaine and recognized it as an illegal substance. At that point, exigent circumstances existed allowing the officer to lawfully seize the drugs to prevent destruction of the evidence. The warrantless search which resulted in the recovery of the cocaine and other drugs in this case was justified under the plain view exception to the warrant requirement. The trial court correctly denied the motion to suppress.

ERROR PATENT

In this case, we have discovered several errors patent which require correction by this court. It appears that the trial court may not have vacated the prior sentences for these offenses before imposing the present sentences under the habitual offender statute. Although no transcript appears in this record, the trial court minutes indicate that, prior to his adjudication as a habitual offender, the defendant appeared before the trial court on February 5, 2009, at which time an oral motion for new trial was denied and |,,sentences were imposed. Accordingly, we vacate any sentences imposed upon the defendant on that date for the offenses at issue here. See State v. Dickerson, 584 So.2d 1140 (La.1991).

When sentencing the defendant as a habitual offender, the trial court imposed a fine of $50,000 in connection with the cocaine conviction. The habitual offender statute does not provide for a fine. Consequently, we amend the sentence on our own motion to delete the fine. State v. Ealy, 44,252 (La.App.2d Cir.5/13/09), 12 So.3d 1052, writ denied, 2009-1393 (La.2/5/10), 27 So.3d 298; State v. Davidson, 44,916 (La.App.2d Cir.2/10/10), 32 So.3d 290.

The trial court also failed to advise the defendant of his rights under La.C.Cr.P. art. 930.8. The defendant is hereby advised that no application for postconviction relief shall be considered if filed more than two years after the judgments of conviction and sentences have become final. State v. Fuller, 42,971 (La.App.2d Cir.2/13/08), 975 So.2d 812; State v. Davidson, supra.

CONCLUSION

For the reasons stated above, we affirm the convictions of the defendant, Tyrone Dewayne Gipson, for possession of a Schedule II controlled dangerous substance, cocaine, over 28 grams, but less than 200 grams; possession of a Schedule I controlled dangerous substance, methy-lenedioxymethamphetamine (MDMA a/k/a Ecstasy); and possession | ^of a Schedule II controlled dangerous substance, hydro-codone. We amend the sentence in connection with the cocaine conviction to delete the fine of $50,000 imposed. In all other respects, the sentences are affirmed.

CONVICTIONS AFFIRMED; POSSESSION OF COCAINE SENTENCE AMENDED AND, AS AMENDED, ALL SENTENCES AFFIRMED.

      . Ms. Brewer was originally charged as a codefendant in this matter. Because she opted for a bench trial instead of a trial by jury, the cases were severed.

      . The record is contrary to the defendant's argument in brief that only $7.00 was found on him when he was arrested.

      . Exigent circumstances may arise from the need to prevent the offender’s escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, 2000-3437 (La.2/26/02), 809 So.2d 923.


text:
    Samuel D. SILVERMAN, Jr., Plaintiff-Appellee, v. MIKE ROGERS DRILLING COMPANY, INC., Defendant-Appellant.
    No. 45,119-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Lunn, Irion, Salley, Carlisle & Gardner by Ronald E. Raney, Shreveport, for Defendant-Appellant, Mike Rogers Drilling Company, Inc.
    Gregorio, Gregory & Payne by Sam Gregorio, Shreveport, Emily Chafin, for Plaintiff-Appellee.
    Cook, Yancey, King & Galloway by Brian A. Homza, Jason B. Nichols, Shreveport, Hargrove, Smelley, Strickland & Langley by Glenn L. Langley, Julianna Petchak Parks, Shreveport, for Third Party Defendant-Appellee, Bass Enterprises Production Company.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

hln this tort suit brought by an oilfield worker, the defendant/oilfield contractor whose employee allegedly injured the plaintiff appeals from the trial court’s granting of an exception of no cause of action in favor of the oil company against whom it filed a third-party demand for indemnification. Mike Rogers Drilling Company, Inc. (“Rogers”), the defendant/oilfield contractor, contends that the trial court incorrectly applied the provisions of the Louisiana Oilfield Anti-Indemnity Act, which was designed to protect oilfield contractors, to instead penalize it by denying it indemnity under the terms of a negotiated contract with the oil company. We affirm the trial court judgment.

FACTS

The plaintiff, Samuel Silverman, Jr., was an employee of BJ Services Company, which had been hired by Bass Enterprises Production Company (“Bass”) to provide services on an oil well Bass had drilled in Caddo Parish. Bass had also contracted with Rogers to perform other services on the oil well.

The drilling bid proposal and daywork drilling contract between Bass (as “Operator”) and Rogers (as “Contractor”) included the following relevant provisions:

Paragraph 14.9
Operator’s Indemnification of Contractor: Operator shall release contractor of any liability for, and shall protect, defend and indemnify Contractor from and against all claims, demands, and causes of action of every kind and character, without limit and without regard to the cause or causes thereof or the negligence of any party or parties, arising in connection herewith....
|2Paragraph 18
GOVERNING LAW: The Contract shall be construed, governed, interpreted, enforced and litigated, and the relations between the parties determined in accordance with the laws of Arkansas.

In July 2005, Silverman allegedly sustained a knee injury when a hoist operator employed by Rogers dropped a cement head that pinned Silverman’s knee against the derrick. In June 2006, Silverman filed suit against Rogers for the injuries he allegedly sustained due to the negligence of its hoist operator. In August 2008, Rogers filed a third-party demand against Bass. It alleged that at the time of the accident it was operating under its contract with Bass which provided for Bass to indemnify Rogers against claims by Bass’ employees or contractors, including agents, consultants or subcontractors.

In October 2008, Bass filed an answer and a third-party demand, as well as peremptory exceptions of no cause of action and prescription. Bass alleged that the indemnity provision sued upon was in violation of La. R.S. 9:2780 and against public policy. It also asserted a third-party demand against BJ Services for its role in the accident and sought indemnification from it pursuant to the contract between them. As to its exceptions, Bass again asserted violation of the provisions of La. R.S. 9:2780 on the exception of no cause of action and untimely filing of suit under La. C.C. art. 3492 and La. C.C.P. art. 1067 on the exception of prescription.

The exception of no cause of action was argued and submitted on May 4, 2009. The trial court issued reasons for judgment sustaining the exception on May 6, 2009. The court found that La. R.S. 9:2780 was | ^.applicable to Rogers and Bass and that the statute prohibited the language in contractual provision 14.9 requiring Bass to indemnify Rogers as contrary to public policy. Also noting that under La. C.C. art. 3540, contractual choice of law controls except to the extent that law contravenes the public policy of the state, the court found paragraph 18 of the contract stating that Arkansas law applied was unenforceable. Since the third-party claim by Rogers was a pure claim for indemnification and was predicated on two contractual provisions violative of Louisiana public policy, the trial court concluded that Rogers had no cause of action against Bass. Judgment in conformity with these reasons was signed the same day, dismissing Rogers’ third-party demand with prejudice. In a supplemental judgment, the court certified the prior judgment as a final appealable judgment.

Rogers appealed. The plaintiff filed a brief stating that he takes no position on the issue on appeal.

LOUISIANA OILFIELD ANTI-INDEMNITY ACT

Law

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court conducts a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Gipson v. Fortune, 45,021 (La.App.2d Cir.1/27/10), 30 So.3d 1076; Wakefield v. Kyle, 44,317 (La.App.2d Cir.5/13/09), 12 So.3d 468.

La. R.S. 9:2780, which is known as the Louisiana Oilfield Anti-Indemnity Act (“LOAIA”), provides, in relevant part:

14A. The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee.
B. Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indem-nitee.
C. The term “agreement,” as it pertains to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, as used in this Section, means any agreement or understanding, written or oral, concerning any operations related to the exploration, development, production, or transportation of oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, including but not limited to drilling, deepening, reworking, repairing, improving, testing, treating, perforating, acidizing, logging, conditioning, altering, plugging, or otherwise rendering services in or in connection with any well drilled for the purpose of producing or excavating, constructing, improving, or otherwise rendering services in connection with any mine shaft, drift, or other structure intended for use in the exploration for or production of any mineral, or an agreement to perform any portion of any such work or services or any act collateral thereto, including the furnishing or rental of equipment, incidental transportation, and other goods and services furnished in connection with any such service or operation.

The starting point for interpretation of any statute is the language of the statute itself. Dejoie v. Medley, 2008-2223 (La.5/5/09), 9 So.3d 826. When a law is clear and unambiguous, and its application does not lead to | r,absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. See La. C.C. art. 9; La. R.S. 1:4; Dejoie v. Medley, supra.

Where a statute is ambiguous and susceptible of two constructions, the courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences. Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La.1980). When the language of a law is susceptible of different meanings, however, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examination of the context in which they occur and the text of the law as a whole. Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.7/1/97), 696 So.2d 1373.

Discussion

Rogers argues that the LOAIA should not prevent a small oilfield contractor (like itself) from receiving contractual indemnity from an oil production company/operator (like Bass) under a contract to be pei’formed in Louisiana. Rogers maintains that it — not an oil company like Bass — is one of the “certain contractors” that the LOAIA was designed to protect. As the operator of the well site where the plaintiff was injured, Rogers asserts that Bass was the principal in the relationship between it and Rogers and that Rogers essentially “worked for” Bass. In its reply brief, Rogers points Rout that Bass has sought the same contractual indemnity in its third-party demand against BJ Services. It further contends that the trial court decision violated the original legislative purpose of the LOAIA.

Bass argues that under the clear and unambiguous wording of La. R.S. 9:2780, any indemnity clause contained in any agreement pertaining to an oil well which required the indemnitor to indemnify the indemnitee for the indemnitee’s own negligence is null and void as against the public policy of Louisiana. Since the damage sued upon here was allegedly caused by Rogers’ hoist operator, Bass asserts that the trial court properly found that paragraph 14.9 was such a prohibited indemnity clause.

As noted above, the starting point for judicial interpretation of a statute is not its legislative history but its wording. Our examination of the statute reveals that it clearly prohibits “any provision” which would mandate that an indemnitor indemnify an indemnitee in a situation involving damages for death or bodily injury which was caused by the negligence of the in-demnitee or its employee. Such is the case here. The allegations of the plaintiffs petition assert that his injury was caused by the negligence of Rogers’ employee. Nowhere in the record have we found any assertion of negligence on the part of Bass. Thus, it appears that under the clear and unambiguous wording of the LOAIA, the provision in the contract between Bass and Rogers is void and unenforceable.

Because we are unable to construe the wording of the statute as being ambiguous and susceptible of different meanings in the instant case, we do not reach the legislative intent of the LOAIA.

^CONFLICT OF LAW

Law

La. C.C. art. 3540 states:

All other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 8537.

La. C.C. art. 3537 provides:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

Discussion

Rogers contends that since it is an Arkansas company and Bass operates out of Texas, Louisiana and Arkansas, the parties to the contract at issue had “no significant reason” to desire the application of Louisiana law. It argues that there is no violation of public policy in requiring an oil company to contractually indemnify an oilfield contractor. As a result, the contractual choice of law provision here is valid and enforceable.

On the choice of law issue, Bass stresses the following factors: the plaintiff is a Louisiana resident; the contract at issue covered a rig located in Louisiana; the plaintiff was injured on the rig in Louisiana; all work | pursuant to the contract was performed in Louisiana; the plaintiff was the employee of a Louisiana-based company; Bass has many connections to Louisiana, i.e., offices, operations and employees; and there is no allegation of any negligence against Bass. To the extent that Arkansas law would allow an indemnitee to be reimbursed for his agent’s negligence, Bass maintains that it is against the public policy of Louisiana and should be disregarded pursuant to La. C.C. art. 3540.

In oral argument, counsel for Rogers essentially conceded that Arkansas law would apply only if the LOAIA was found to be inapplicable. Because we find that application of the LOAIA is appropriate in the instant case, we agree with the trial court’s conclusion that the contract’s selection of Arkansas law is against public policy and thus unenforceable under La. C.C. art. 3540.

CONCLUSION

We affirm the judgment of the trial court sustaining the exception of no cause of action filed by Bass Enterprises Production Company. Costs of this appeal are assessed against the appellant, Mike Rogers Drilling Company, Inc.

AFFIRMED.


author: CARAWAY, J.

text:
    Greg W. WHITHAM and Mary Hammontree Whitham, Plaintiffs-Appellants, v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, F.H.F. No. 1, L.L.C., F.H.F. No. 2, L.L.C., F.H.F. No. 3, L.L.C., Unopened Succession of Benjamin O’Neal, Jr., and State Farm Mutual Automobile Insurance Company, Defendants-Appellee.
    No. 45,199-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      W. Brett Cain, Shreveport, for Appellants.
    Williams Family Law Firm, LLC by Joseph Payne Williams, Sr., Natchitoches, for Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    Before BROWN, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

| plaintiffs filed suit seeking to recover damages for injuries sustained in a vehicular accident when they were hit by a truck. The truck was owned and insured by a limited liability company. The trial court granted judgment in favor of the truck driver’s auto insurer based upon a policy exclusion for coverage pertaining to the use of any auto, other than an insured auto, which is made available for the regular use of the insured. Finding no manifest error, we affirm.

Facts

On April 4, 2004, Greg Whitham and his wife, Mary Hammontree-Whitham, were driving on U.S. Highway 171 in DeSoto Parish, when B.F. O’Neal, Jr., pulled out from a stop sign onto the highway, colliding with the Whithams’ vehicle. Mr. O’Neal was driving a 1997 Ford F-150 pickup truck at the time, with his wife as a guest passenger. The accident resulted in the death of Mr. O’Neal and in serious injuries to both of the Whithams. The Whithams instituted this suit, seeking to recover damages for injuries sustained as a result of the accident.

The petition named as defendants the unopened succession of B.F. O’Neal; Forest Home Farm, LLC (“F.H.F”), as the employer of B.F. O’Neal; State Farm Mutual Automobile Insurance Company (“State Farm”), as the Whithams’ own automobile liability insurer; and Louisiana Farm Bureau Casualty Insurance Company (“La. Farm Bureau”), as the automobile liability insurer of B.F. O’Neal and F.H.F. On January 31, 2006, F.H.F. was dismissed summarily, after a finding that B.F. O’Neal was 12not in the course and scope of employment with F.H.F. at the time of the motor vehicle accident. Subsequently, on June 26, 2006, all claims against State Farm, F.H.F., and the succession of B.F. O’Neal were dismissed with prejudice, after settlement and compromise. The action against La. Farm Bureau for claims under policy number C707173, issued to F.H.F., was also dismissed, while plaintiffs specifically reserved any and all rights or claims against La. Farm Bureau under policy number C707172, issued to B.F. O’Neal. Therefore, La. Farm Bureau remains as the sole defendant.

The Ford F-150 truck which Mr. O’Neal was driving was owned by F.H.F. F.H.F. was the family farm inherited by B.F. O’Neal’s wife, Nancy O’Neal. The limited liability company, formed in August of 1993, was composed of five members, including Nancy O’Neal and her four children. Although B.F. O’Neal was not a member and received no interest in the limited liability company, he was the registered agent and manager of F.H.F. As manager, Mr. O’Neal arranged for the purchase of the truck and thereafter procured insurance on the vehicle which was insured under La. Farm Bureau policy number C707173.

At the time of the accident, the policy numbered C707172 was B.F. O’Neal’s personal policy of liability insurance with La. Farm Bureau. The “insured” under the policy included Mr. O’Neal and any relative of his household. The policy listed the following vehicles under its coverage: a 1982 Chevrolet van, a 1997 Lincoln Town Car, a 1991 Lincoln Town Car, and a 1984 Cadillac Fleetwood. This policy insured Mr. O’Neal for any property and bodily injury damages he became legally liable for while ^operating a motor vehicle. Specifically, the policy stated that La. Farm Bureau agreed:

To pay on behalf of the insured all sums, except punitive damages, which the insured shall become legally obligated to pay as damages:
Coverage A — because of bodily injury sustained by any person, and
Coverage B — because of injury to or destruction of property, caused by accident and arising out of ownership, maintenance or use of any automobile, including loading and unloading thereof;

However, the policy contained the following disputed exclusion:

THIS POLICY DOES NOT APPLY:
(b) under any of the coverages for automobiles owned or furnished for the regular use of any member of the insured household, unless shown on the declaration .... (emphasis supplied)

La. Fai’m Bureau denies coverage based upon this policy exclusion. It claims that Mr. O’Neal used the 1997 Ford F-150, undeclared in the above policy and owned by F.H.F., for his regular use and thus coverage under the policy was excluded. Conversely, the Whithams contended that the policy exclusion was inoperable because on the day of the accident, Mr. O’Neal was driving the truck to a Sunday gathering, which they argued did not constitute a regular use of the truck.

Both Nancy O’Neal and Dr. Barron O’Neal, the O’Neals’ son, testified by deposition regarding the use of the truck. Both stated that the truck was available for use by any member of the family, including B.F. O’Neal, unless it was already being used by another member. Permission to use the truck was implicit. No single family member possessed a personal set of keys to the vehicle; rather, whoever possessed the truck at the time also maintained the keys. Maintenance of the truck was charged to the |4person who possessed the vehicle at the time of a needed repair. The costs of such repairs would then be assessed to F.H.F. The truck was used for a variety of purposes and was often, but not exclusively, utilized for farm work, including the hauling of feed and supplies to the farm. Mrs. O’Neal testified that on the day of the accident, her husband obtained the truck in order to carry a large ice chest to the weekly Sunday gathering at the farm.

On June 1, 2009, a bench trial was held on the sole issue of coverage, based on the deposition testimony of witnesses, documentary evidence, and arguments of counsel. The trial court rendered judgment in favor of La. Farm Bureau. The court made the following observation:

This is a very unusual case because of the very loose way that the O’Neal family allowed the vehicle to be used but I think that does fall within the term. Regular use does not have to be strict rules laid down. It is the way they did business according to the depositions.

On June 15, 2009, a judgment was signed dismissing La. Farm Bureau from this suit. Plaintiffs now appeal this judgment.

Discussion

In an action under an insurance contract, the insured bears the burden of proving the existence of policy and coverage. The insurer, however, bears the burden of showing policy limits or exclusions. Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916.

An insurance policy is a contract between the parties and should be construed using ordinary contract principles. McFarland v. Southern Farm Bureau Cas. Ins. Co., 39,612 (La.App.2d Cir.5/11/05), 902 So.2d 1207, writ denied, 05-1564 (La.1/9/06), 918 So.2d 1045. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Id. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Id. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Id.

The jurisprudence of Louisiana has held that the purpose of the type of exclusionary clause involved here is to exclude from coverage non-owned automobiles over which the insured has “general authority of use.” Curry v. Taylor, 40-185 (La.App.2d Cir.9/21/05), 912 So.2d 78; O’Neal v. Blackwell, 00-2014 (La.App. 1st Cir.11/14/01), 818 So.2d 118. The phrase “available for regular use” encompasses the vehicle which is accessible, obtainable and ready for immediate use. Chon v. Allstate Ins. Co., 522 So.2d 690 (La.App. 5th Cir.1988). The phrase “furnished for regular use” means that the vehicle is provided, supplied or afforded to the individual according to some established rule or principle or used in steady or uniform course, practice or occurrence as contrasted with being furnished for use only on casual, random, unpredictable or chance occasions. Brouillette v. Fireman’s Fund Ins. Co., 163 So.2d 389 (La.App. 3d Cir.1964), writ denied, 246 La. 594, 165 So.2d 485 (1964).

From the above interpretation of this policy exclusion, the use of a vehicle owned by a driver’s fiancé was held not to constitute regular use when the driver infrequently used the vehicle and could only do so with special and specific permission from the owner each time she took the car. Moreau v. Keller, 144 So.2d 281 (La.App. 4th Cir.1962). Likewise, the use of a truck to occasionally run errands or for personal use with specific authorization by the owner was held not to constitute regular use. Taylor v. State Farm Mut. Auto. Ins. Co., 171 So.2d 816 (La.App. 3d Cir.1965), aff'd, 248 La. 246, 178 So.2d 238 (1965). In contrast, the use of a vehicle to go back and forth to school five days a week when the driver had a set of keys and could use the automobile whenever she wanted with standing permission has been held to constitute regular use. Horridge v. Cooney, 405 So.2d 1276 (La.App. 4th Cir.1981). Additionally, the use of a company vehicle by an employee, who was free to use the vehicle in any way he saw fit, including personal, business, and social purposes, was held to be furnished for his regular use. Romano v. Girlinghouse, 385 So.2d 352 (La.App. 1st Cir.1980).

Because La. Farm Bureau is relying on an exclusionary provision in the policy, it has the burden of showing that the exclusion applied in this case. Such a burden required La. Farm Bureau to show that the F-150 truck was “furnished for regular use” by B.F. O’Neal. The truck was not owned by Mr. O’Neal but by the family limited liability company over which he held managerial control. To that extent, the separate entity furnished the vehicle to Mr. O’Neal and the record indicates that he regularly used the truck for the farm-related activities of F.H.F. and his personal matters.

The depositions of Nancy O’Neal and Dr. Barron O’Neal, discussed above, establish that B.F. O’Neal did have regular use of the F-150. Although Mr. O’Neal did not exclusively possess a set of keys to the truck, |7no one held such possession. As manager of F.H.F., Mr. O’Neal had standing permission to use the vehicle and the only time he would not have access to the vehicle was when another family member was already using the truck.

Although plaintiffs submit that on the day of the accident the truck was being-used for personal use, rather than farm business, the record indicates that the limited liability company allowed its vehicle to be regularly used for both the farm and personal business of the family members. Because no individual member of the family was authorized to maintain exclusive use of the truck, the truck was available for each family member’s general use. The relevant inquiry under the Louisiana jurisprudence is whether Mr. O’Neal had general authority of use of the vehicle or was furnished the vehicle for use in steady, uniform course or practice. Curry v. Taylor, supra.

Accordingly, we find no manifest error in the trial court’s determination that the vehicle driven by Mr. O’Neal on the day of the accident was made available to him by F.H.F. for regular use. Thus, La. Farm Bureau has carried its burden of showing that the exclusionary language applied to the facts of this case.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. Costs of these proceedings are assessed to appellant.

AFFIRMED.