author: EZELL, Judge.

text:
    Edward SIGNAL, Jr. v. Jared ROMERO, et al.
    No. CA 09-1078.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    James Paul Lambert, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Edward Signal, Jr.
    Ian Alexander MacDonald, Longman Russo, Lafayette, LA, for Defendants/Appellants, BellSouth Telecommunications, Inc. d/b/a AT & T Louisiana Jared Romero.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

[) BellSouth Telecommunications, Inc., and Jared Romero appeal a trial court judgment which found that Edward Signal had a right to file suit against them for bodily injury claims. The Defendants argue that the trial court erred in refusing to enforce a release agreement between the parties and in not dismissing the claims against them.

FACTS

On November 13, 2006, Edward Signal was using an on-ramp to enter Highway 90 from Willow Street in Lafayette, Louisiana. Jared Romero, a service technician with BellSouth, was directly behind him in his service truck. Mr. Signal edged forward to get a better view of the oncoming traffic and stopped. Mr. Romero thought Mr. Signal was merging, so he looked back to begin his merge. At the time, he took his foot off the brake and hit Mr. Signal from behind.

Although no injuries were reported at the scene, Mr. Signal went to the Medical Center of Southwest Louisiana complaining of a headache; neck, upper and lower back pain; and injury to both knees. He was diagnosed with strain in his neck and back and contusions to his knees. Flexeril was prescribed, and Mr. Signal was sent home.

Within a week of the accident, Donna Ellis, the liability claims manager for Bell-South, got an estimate to repair the damage to Mr. Signal’s vehicle. The damages were estimated at $2,784.24. Ms. Ellis sent a check in the amount of $2,784.24 to Mr. Signal on November 21, 2008. The letter indicated that it was “full and final settlement of your claim.”

On October 24, 2007, Mr. Signal filed suit against Mr. Romero and BellSouth for the bodily injuries he suffered in the accident. The Defendants answered asserting |?the affirmative defense of res judicata claiming that Mr. Signal’s claims had been settled. The case was tried before a judge on January 27, 2009. Judgment was entered on January 30, 2009, denying Defendants’ exception of res judicata. General damages in the amount of $15,000.00 were awarded. Special damages in the amount of $14,524.49 were also awarded.

The Defendants appealed the judgment. They argue that the trial judge erred in refusing to enforce the release of claims.

RELEASE

The Defendants argue that the release language was clear and unequivocal and the trial judge erred in refusing to enforce the release agreement. In written reasons for judgment, the trial judge expressed his reasons for finding that the release did not bar Mr. Signal from asserting a personal injury claim as follows:

Signal was 73 years old at the time of the accident. His education and reading abilities were, according to him, effectively at a third grade level. By cashing the check Signal reasonably assumed that it was for property damage only. Obviously the litigation-sawy BellSouth representative was trying to insulate his company from further liability at Signal’s expense. This is not acceptable to the Court. The Court finds that it was reasonable, considering Signal’s age and education, and the circumstances under which the check was sent and paid, for him to assume that the check was for property damage only. The Court finds that Signal did not fully understand the nature of the rights being released or that he did not intend to release certain aspects of his claim.

Aside from the letter mailed with the check indicating that the check was full and final settlement of the claim, the memo section of the check indicates that is for full and final settlement of the claim as well. BellSouth more particularly relies on the endorsement section on the back of the check (emphasis supplied) which reads as follows:

Endorsement of this instrument fully releases BellSouth, its agents, employees and allied and associated companies, from any and all claims known and unknown for property damages and/or bodily injury arising out of the incident which occurred on or about the date shown. IsThis payment is not to be considered an admission of liability on the part of BellSouth.

At the time the check was written, La. Civ. Code art. 3071 provided:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

Louisiana Civil Code Article 8073 further provided:

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.

Furthermore, La.Civ.Code art. 3079 provided:

A transaction may be rescinded notwithstanding, whenever there exists an error in the person or on the matter in dispute. It may likewise be rescinded in the cases where there exists fraud or violence.

Since the Defendants are the ones who are relying on the release language to support their claim that Mr. Signal has no right to sue them based on res judicata, they are the ones who bear the burden of proof to establish the requisites for a valid compromise. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. This includes “the parties’ intent to settle the differences being asserted in the action in which it is interposed.” Id. at 747.

One of the first cases to hold that a release was without effect due to error was Moak v. American Automobile Insurance Co., 242 La. 160, 134 So.2d 911 (1961). |4The supreme court found that a release signed by a husband and wife was not intended by them to release a claim for personal injury and so it was without effect because of error. The supreme court recognized that payment of $242.00 was the exact amount of the uncollected balance for the value of the destroyed personal effects in the automobile and was extremely small in view of the nature and extent of the wife’s injuries. The supreme court also noted that there was nothing mentioned during the negotiations about a personal injury claim.

The supreme court in Brown, 680 So.2d at 749, recognized that a jurisprudential rule developed following Moak, 134 So.2d 911, “that a general release will not necessarily bar recovery for those aspects of a claim not intended by the parties to be covered by the release.” “Under that jurisprudential rule, the parties to a release instrument are permitted to raise a factual issue as to whether unequivocal language in the instrument was intended to be unequivocal.” Brown, 630 So.2d at 749.

The supreme court then recognized that courts have utilized a case-by-case analysis limiting the rule’s application to cases:

establishing either (1) that the releaser was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releaser did not fully understand the nature of the rights being released or that the releaser did not intend to release certain aspects of his or her claim.

Id; see also Buford v. Blanchard, 09-187 (La.App. 3 Cir. 10/7/09), 19 So.3d 1255.

In Wyatt v. Maryland Casualty Co., 160 So.2d 383 (La.App. 2 Cir.1964), the second circuit also found that an endorsement did not serve as a release of plaintiffs personal injuries. The release was printed on a draft made payable to the body repair shop and was for the exact amount of the vehicle repairs.

In Dimitri v. Dimitri, 00-2641 (La.App. 4 Cir. 1/30/02), 809 So.2d 481, the fourth circuit found that there was no mutual intent to release all claims. A check in |Rthe amount of $1,664.50 could have never been considered to cover all medical expenses.

In the present case, seventy-three-year-old Mr. Signal was asked to sign a release a week after the accident. In Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963), the supreme court recognized that a “rush release” has a high potential of error because it is obtained within a very short time of the accident. Neither the letter nor the memo section of the check indicated that it was a release of both property and bodily injury damages. The personal injury language was found in very tiny writing on the back of the check. Mr. Signal testified that the check was for the exact amount of the estimate to repair the car, so he presumed it was just to fix the car. He had no idea it was to be a final settlement. No evidence was offered by BellSouth that any representative had talked with Mr. Signal explaining that the check was for final settlement of any bodily injury claim he may have as a result of the accident. We find no error in the trial judge’s ruling that Mr. Signal did not intend to release his bodily injury claims.

Mr. Signal also asked for an increase in the amount of general damages awarded by the trial court. However, he did not brief this error. Therefore, we consider it abandoned. See Uniform Rules -Court of Appeal, Rule 2-12.4.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to BellSouth Telecommunications, Inc. and Jared Romero.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth A. TILLEY v. BOISE CASCADE CORPORATION, et al.
    Nos. CA 09-1072, CA 09-1073.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Leslie R. Leavoy, Jr., DeRidder, LA, for Plaintiff/Appellant Elizabeth A. Tilley.

      Andrew Holleman Meyers, Beaud & Meyers, Lafayette, LA, for Defendants/Appellees, Boise Cascade Corporation, Dennis Wallace.
    Christopher Jude Roy, Jr., Chris J. Roy, Jr., A.P.L.C., Alexandria, LA, for Plain-tiffyAppellant, Elizabeth A. Tilley.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

Iiln these consolidated cases, Elizabeth Tilley and Terry Choat appeal trial court judgments which granted summary judgment in favor of Boise Cascade Corporation and Dennis Wallace. Both judgments held that the Defendants were entitled to tort immunity as a statutory employer pursuant to La. R.S. 23:1061.

FACTS

Both Ms. Tilley and Mr. Choat were employed by BE & K Construction Company. On June 8, 2007, they were attempting to open a valve on the Number 3 Digester at Boise’s DeRidder paper mill when they were sprayed with a hot liquid causing injuries. BE & K was performing work at Boise pursuant to an annual contractor services agreement which commenced on June 2, 2002.

Ms. Tilley and Mr. Choat filed suit against Boise and Mr. Wallace. They alleged that the Defendants had failed to shut the digester off in sufficient time prior to any performance of work on the digester. In response, the Defendants filed a motion for summary judgment alleging that they were immune from tort liability pursuant to La. R.S. 23:1061.

A hearing on the motion for summary judgment in Ms. Tilley’s case was held on October 30, 2008, before Judge Stuart Kay. He granted the motion for summary judgment. A hearing on the motion for summary judgment in Mr. Choat’s case was held on January 12, 2009, before Judge Kerry Anderson. After taking the case under advisement, Judge Anderson also granted summary judgment in favor of Boise and Mr. Wallace. Both Ms. Tilley and Mr. Choat appealed the judgments. The cases were consolidated in this court after the filing of an unopposed motion to consolidate.

| .¿SUMMARY JUDGMENT

Ms. Tilley and Mr. Choat both claim that the trial court erred in granting summary judgment in favor of Boise and Mr. Wallace. They allege that the Defendants failed to carry their burden of proof and that there are genuine issues of material fact which preclude summary judgment.

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.
A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. Proc. art. 966(A)(2).

La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353-54.

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. at 354.

STATUTORY EMPLOYEE

The Defendants have' alleged that Ms. Tilley and Mr. Choat were statutory employees of Boise at the time of the accident entitling the Defendants to immunity from tort suit. An employer bears the burden of proving entitlement to tort immunity as established by La. R.S. 23:1032. Ernest v. Petroleum Serv. Corp., 02-2482 (La.App. 1 Cir. 11/19/03), 868 So.2d 96. Boise and Wallace argue that there was a | ¡.contract in place at the time of Ms. Tilley’s and Mr. Choat’s accident which grants Boise statutory employer status.

Louisiana Revised Statutes 23:1061 (emphasis supplied) establishes the workers’ compensation responsibility of a principal under the statutory employer doctrine and provides:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principals goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
|4B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

When the legislature amended La. R.S. 23:1061 in 1997, it added a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees when a written contract exists between a principal and a contractor that recognizes the principal as a statutory employer. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that its goods, products, or services. See footnote 2 in Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112.

The record establishes that there is a contract between Boise and BE & K which specifically provides for the statutory employee status of BE & K employees while working at the Boise plant. The terms of the contract provided that the contract expired in five years, or on June 2, 2007. This accident occurred on June 8, 2007. The terms of the contract further provided in Section 22.0 that any amendments to the contract were not valid unless agreed to by the parties in writing and signed by their authorized representative. Boise and Mr. Wallace did introduce into the record an addendum to the contract which provided that the term expired on June 2, 2008. The addendum is signed by the financial affairs manager for Boise and dated May 31, 2007. The addendum is also signed by the vice president of BE & K but is not dated in the blank provided for a date for his signature.

An affidavit from Larry Cook, the purchasing agent for Boise was attached to the Defendants’ motion for summary judgment. Mr. Cook attests that the contract between Boise and BE & K was in effect on June 8, 2007. However, Mr. Cook is not a signatory to the contract nor does he explain how he personally knows that the contract was in effect.

I Jn reviewing the personal knowledge requirement of affidavits, this court stated:

Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. The purpose of the requirement of “personal knowledge” is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment.
Where business records are concerned, as in the present case, the courts have deemed La.C.C.P. art. 967 satisfied when the affiant is qualified to identify the business records as such. The affi-ant has not been required to show that he personally prepared the business records, or that he had direct, independent, first hand knowledge of the contents thereof.

Denbwry Onshore, L.L.C. v. Puchen, 08-1210, p. 18 (La.App. 3 Cir. 3/11/09), 6 So.3d 386, 398 (quoting Hibernia Nat’l Bank v. Rivera, 07-962, pp. 8-9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 539-40 (citations omitted)).

Nothing in Mr. Cook’s affidavit indicates that he had anything to do with the preparation of the addendum or that he saw the parties sign it. He simply makes a conclu-sionary statement that the contract was in effect on the date of the accident. Therefore, we find that this affidavit is insufficient to establish that the contract was in effect on the date of the accident.

While Boise’s representative indicates that he signed the addendum on May 31, 2007, BE & K’s representative did not date his signature even though a specific blank was provided for the date. For all we can tell, he may have signed the addendum after the accident, in which case the contract would have expired and there would be no contract in place recognizing the statutory employer relationship. In that situation, Boise and Mr. Wallace would not be entitled to tort immunity.

| (¡Therefore, we find that Boise and Mr. Wallace failed to establish by a preponderance of the evidence that the addendum was signed by BE & K before the accident. There is a genuine issue of material fact precluding summary judgment. We, therefore, reverse the judgments of the lower court granting summary judgment in favor of Boise and Mr. Wallace. The cases are remanded for further proceedings. Costs of these appeals are accessed to Boise Cascade Corporation and Dennis Wallace.

REVERSED AND REMANDED.


text:
    Terry L. CHOAT v. BOISE CASCADE CORPORATION.
    Nos. CA 09-1073.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Leslie R. Leavoy, Jr., Attorney at Law, DeRidder, LA, for Plaintiff/Appellant, Terry L. Choat.
    Andrew Holleman Meyers, Beaud & Meyers, Lafayette, LA, for Defendants/Appellees, Boise Cascade Corporation, Dennis Wallace.
    Christopher Jude Roy, Jr., Chris J. Roy, Jr., A.P.L.C., Alexandria, LA, for Plaintiff/Appellant, Terry L. Choat.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

For the reasons assigned in the companion case of Tilley v. Boise Cascade Corp., et al, 09-1072 (La.App. 3 Cir. 3/10/10), 32 So.3d 1130, in which a separate decision has been rendered, the judgment of the trial court is reversed and this ease is remanded to the trial court for further proceedings. Costs are assessed against Boise Cascade Corporation and Dennis Wallace.

REVERSED AND REMANDED.


author: PICKETT, Judge.

text:
    Patrick E. PHILLIPS, Jr., et al. v. G & H SEED COMPANY, INC., et al.
    No. 09-1102.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Andre F. Toce, The Toce Firm, APLC, Broussard, LA, for Intervenor-Appellant, Tess Wiltz d/b/a Opelousas Crawfish House, et al.
    Robert E. Dille, Gary A. Bezet, Carol L. Galloway, Allison N. Benoit, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, L.L.P., Baton Rouge, LA, Louis C. Lacour, Jr., Raymond B. Ward, Adams and Reese L.L.P., New Orleans, LA, for Defendants-Appellees, Michael G. Redlich, Bayer CropScience, LP.
    Terrence McCay, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Lake Charles, LA, for Defendants-Appellees, Michael G. Redlich, Bayer CropScience, LP.
    Michael T. Pulaski, Keith W. McDaniel, Allen V. Davis, McCranie, Sistrunk, Anzel-mo, Hardy & McDaniel, PC, Covington, LA, for Defendant-Appellee, Allianz Global Risks Us Insurance Company.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

_JjThe appellant, Tess Wiltz d/b/a Opelou-sas Crawfish House, appeals a judgment of the trial court dismissing her petition to intervene.

STATEMENT OF THE CASE

A brief history of this case is helpful to understanding the issue before this court. In 2000, Patrick Phillips d/b/a Phillips Seafood and Atchafalaya Crawfish Processors, Inc., filed a Class Action Petition. They sought to represent a class of crawfish buyers and processors who were harmed by the use of the pesticide ICON in rice fields that also served as crawfish ponds. Named as defendants in that suit were the manufacturers and sellers of ICON. In May 2005, the plaintiffs filed a Fourth Amended and Consolidated Petition for Damages. In this petition, the plaintiffs abandoned their class action suit and named fifty-two plaintiffs who were buyers and processors of crawfish. The matter proceeded to trial in July 2007, with three bellwether plaintiffs representing the rest of the plaintiffs. The trial resulted in judgments against the manufacturer of ICON, a sales representative, and the weather. The jury awarded a total of $1,750,000 in damages to the three plaintiffs. On appeal, a five-judge panel of this court reversed the judgment of the trial court, finding that the plaintiffs failed to state a cause of action against the manufacturer because they did not have a proprietary interest in the crawfish killed by the use of ICON. Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339, writ denied, 09-1504 (La.10/30/09), 21 So.3d 284, reconsideration not considered, (La.1/8/10), 24 So.3d 871.

| ¡While that appeal was pending, on November 17, 2007, the plaintiffs filed a motion to amend in order to file a “First Resurrected, Reinstigated and Restated Class Action Petition for Damages.” In it, two of the fifty-two plaintiffs named in the Fourth Supplemental and Consolidated Petition for Damages attempted to resurrect the class action suit as the class representatives. The trial court ordered a hearing, and, following the hearing, it denied the Motion to Amend. At the hearing, the trial court ordered the parties to send notice to potential class members that the class action was no longer ongoing and advising them of their rights. This notice was signed by the trial court on March 12, 2008, and sent to the potential class members.

Within thirty days of receiving this notice, Tess Wiltz, d/b/a Opelousas Crawfish House, filed an “Intervenor’s Class Action Petition.” In response, the defendants filed a Motion to Dismiss the petition in intervention, arguing that the trial court had not granted leave to intervene as required by La.Code Civ.P. art. 1033. The plaintiff then filed a “Protective Motion for Leave to Intervene.” Following a hearing on November 17, 2008, the trial court, which considered the motion as one to strike the petition in intervention, granted the motion to dismiss, struck the Wiltz petition, and denied Wiltz’s Motion for Leave to Intervene. The trial court also denied an oral motion made by Wiltz to require that members of the class that Wiltz attempted to represent be notified that her class action was being dismissed. The judgment was signed on January 9, 2009. The trial court denied Wiltz’s motion for a new trial in a judgment signed on July 1, 2009. Wiltz filed a Motion for an Order of Appeal on the same date. She later amended her appeal in the trial court to join all of the named plaintiffs in the appeal.

1 ^ASSIGNMENTS OF ERROR
Wiltz asserts five assignments of error:
1. The trial court erred by summarily striking Wiltz’s entire petition, including the assertion therein of her individual claims.
2. The trial court erred by refusing to grant Wiltz leave to intervene.
B. The trial court erred when it denied the Motion to Amend, by appellants Brown and Robichaux, to restore the Phillips class allegations.
4. The trial court erred by granting Defendant’s Motion to Dismiss Wiltz’s Petition in Intervention.
5. The trial court erred by denying Appellants’ Motion for Notice to members of the Wiltz Class that the Wiltz Class Action had been dismissed.

DISCUSSION

At the outset, we note that Wiltz and the forty-six plaintiffs still remaining in the underlying suit failed to brief the third assignment of error. “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules— Courts of Appeal, Rule 2-12.4. Therefore, we consider the appellants’ third assignment of error abandoned.

Wiltz’s first, second, and fourth assignments of error concern the trial court’s dismissal of Wiltz’s petition to intervene in this lawsuit. Louisiana Code of Civil Procedure Article 1038 states:

An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.
An incidental demand that requires leave of court to file shall be considered as filed as of the date it is presented to the clerk of court for filing if leave of court is thereafter granted.

14An intervention is an incidental demand. La.Code Civ.P. art. 1081(B). Articles 1066 and 1092 are not implicated in this case. Wiltz’s intervention was filed well after the answer in this case. Therefore, leave of court is required in order for the petition for intervention to be filed. The trial court has broad discretion in determining whether to allow an intervention to be filed after the answer and in determining if the intervention will retard the progress of the suit. Charla v. Allstate Ins. Co., 93-1230 (La.App. 4 Cir. 3/29/94), 635 So.2d 370. We will not overturn the trial court unless we find an abuse of that discretion.

Here, the plaintiffs abandoned their attempts to certify a class in May 2005. The trial court denied their attempt to convert this matter to a class action after the July 2007 trial was successful. Now, they attempt to have an intervenor, who is represented by the same attorneys who represent the plaintiffs, convert the action to a class action. The trial court determined in his reasons for ruling that this effort would retard the progress of the main demand. We find no abuse of discretion in the trial court’s determination.

We are not persuaded by the appellants that La.Code Civ.P. art. 596 requires a different result. Article 596, which relates to class actions, states:

Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice 15to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

This article only concerns the prescriptive period for Wiltz to file a suit against the defendants. It does not require the trial court to allow her to intervene to convert the suit back to a class action. We find no merit in this assignment of error.

Finally, we find that the trial court did not err in refusing to order notice to members of the class that the class action had been dismissed. The trial court ordered such a notice in March 2008. We find no rationale for the court to require that this notice be sent again because of its denial of leave of court to file the intervention.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellants.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    LOUISIANA HEALTH CARE GROUP, INC. v. ALLEGIANCE HEALTH MANAGEMENT, INC., et al.
    No. 09-1093.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Rehearing Denied April 28, 2010.

      Gregory David Frost, Scott Nikolaus Hensgens, Eric B. Landry, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiff/Appellee, Louisiana Health Care Group, L.L.C.
    Richard E. Hiller, Shuey, Smith, LLC, Shreveport, LA, for Defendants/Appellants, Allegiance Health Management, Inc., Bienville Medical Center, and Rock Borde-lon.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| pursuant to a 2007 “Stock Sale Agreement,” the plaintiff-appellee, Louisiana Health Care Group, L.L.C. (LHC), sold its one hundred percent (100%) interest in Bienville Medical Center, Inc. (Bienville) to Allegiance Health Management, Inc. (Allegiance). The Agreement provided for the retention by LHC of certain account-receivable assets. Upon the collection of these receivables, however, neither Bien-ville nor Allegiance remitted the funds to LHC.

LHC filed a Motion for Partial Summary Judgment (Motion) against Allegiance and Bienville seeking payment of the amounts owed. The tidal court awarded LHC $575,696.68 for the accounts receivable and held Allegiance and Bienville liable in solido for the amount owed plus interest, attorney fees, and court costs. Allegiance and Bienville filed a suspensive appeal. For the reasons fully set forth below, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court erred in granting the Motion for Partial Summary Judgment filed by the plaintiff-appellee, Louisiana Health Care Group, L.L.C., finding the defendants-appellants, Allegiance Health Management, Inc., and Bienville Medical Center, Inc., liable in solido for $575,696.68.

II.

FACTS

In May of 2007, LHC agreed to sell all of its stock in Bienville Medical Center to Allegiance for $180,000.00. However, pursuant to the Stock Sale Agreement (Agreement) between LHC and Allegiance, LHC retained or excluded certain assets from the sale under section three, entitled “Excluded Company Assets.” |gBienville was the subject of the sale and was referred to in the Agreement as “Company.” At sections 8(B), 3(C) and 8(D), respectively, LHC retained “all amounts payable and accounts receivable for services provided [by Bienville] prior to the Effective Date” of July 1, 2007; “all Medicare and Medicaid cost report settlements for cost reporting periods ending on or before the Effective Date;” and, “all Uncompensated Care Distributions and Disproportionate Share Hospital payments received by the Company [Bienville] during calendar year 2007.” The effective date of the Agreement, July 1, 2007, coincided with the fiscal year which ran from July 1 of each year through June 30 of the following year.

In November of 2008, having received none of the payments as provided for under the Agreement, LHC filed a Motion for Partial Summary Judgment alleging breach of contract, conversion, and unjust enrichment. As evidence, LHC attached a copy of Bienville’s responses to LHC’s Request for Admissions, wherein Bienville admitted to having received $431,604.49 in Medicare and/or Medicaid payments for services rendered prior to July 1, 2007. Likewise, the responses also contained an admission by Bienville that it had received $237,031.00 in Medicare and/or Medicaid cost report settlements for the “year ended December 31, 2006.” LHC also attached remittance printouts and other evidence showing the receipt by Bienville of an additional $46,482.54 for services rendered between January 5 and June 30 of 2007.

Based upon the foregoing admissions and printouts, LHC asserted that Bienville had received a total of $715,118.03 for services rendered during the periods described in the Excluded Company Assets that Allegiance and LHC agreed upon as being owned by, retained by, and reserved to LHC under the terras of the Stock Sale Agreement. LHC further stipulated that it had received $139,421.35 for services rendered by Bienville after the effective date of the Agreement. Applying a set-off | sin favor of Allegiance for that amount, LHC requested summary judgment in its favor in the amount of $575,686.68, the difference between the receivables owed to LHC and the set-off applied by LHC. The trial court found in favor of LHC, and in its judgment dated March 10, 2009, the trial court granted the amount requested. In a subsequent “Amended Judgment” dated March 30, 2009, the trial court designated the prior judgment as final pursuant to La.Civ.Code art. 1915(B)(1). In a second judgment dated March 30, 2009, the trial court, pursuant to the Stock Sale Agreement, awarded LHC $42,487.75 in judicial interest, attorney fees and costs. Allegiance and Bienville filed a Motion for a New Trial, which, after a hearing on the matter, was denied, pursuant to judgment dated May 14, 2009.

Allegiance and Bienville appealed the original “Judgment” of March 10, awarding LHC $575,686.68, and appealed the “Amended Judgment” of March 30, 2009, designating the original judgment as final. They did not appeal the additional March 30 judgment awarding interest, costs and attorney fees. Nor did they appeal the May 14 judgment denying the new trial. Therefore, while the defendants-appellants assigned as error the trial court’s denial of a new trial and argued the issue in their appellate brief, the motion and order for this appeal clearly did not include the May 14, 2009 judgment denying the new trial. Accordingly, we will not address the issues or the evidence referenced in the Motion for New Trial but will limit this decision to the Motion for Summary Judgment granted in favor of LHC and against the appellants, Allegiance and Bienville, in solido.

Ji.ni.

LAW AND DISCUSSION

Standard of Review

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” Slier v. Lafayette Ins. Co., 07-2441 p. 5 (La.4/8/08), 988 So.2d 186, 192. Using the same criteria, courts review a grant or a denial of a motion for summary judgment de novo. Id.

Breach of Contract

Allegiance contends that the trial court erred in granting partial summary judgment to LHC and against Allegiance under a breach of contract theory because Allegiance never received the funds from Medicare or Medicaid and did not breach the contract by failing to deliver funds that it never received. Rather, Allegiance argues that the funds were received by Bien-ville and that Bienville, which was not a party to the Stock Sale Agreement, is under no obligation to transmit the receivables to LHC.

The Stock Sale Agreement provides that LHC is transferring its ownership of one hundred percent (100%) of Bienville’s outstanding stock to Allegiance for consideration in the amount of $180,000.00. However, the Agreement also provides, under section three (3), “Excluded Company Assets,” that “the parties agree” that the seller, LHC, “shall retain all rights, title and interest” in and to the following:

A. Any and all bank accounts, and pri- or to the Effective Date Company shall transfer and assign to Seller all its rights, title and interest in and to Company’s bank | ¿account which receives remittances from third party payors, including Medicare....
B. Any and all amounts payable and accounts receivable for services provided prior to the Effective Date....
C. Any and all Medicare and Medicaid cost report settlements for cost reporting periods ending on or before the Effective Date, and
D. Any and all rights to any [and] all Uncompensated Care Distributions and Disproportionate Share Hospital payments received by [Bienville] during calendar year 2007....

Therefore, while Bienville was not a party to the Agreement, it was the subject of the Agreement. Allegiance agreed that funds generated by its newly acquired company, Bienville, prior to July 1, 2007, and not yet received (hence, outstanding accounts receivable), would not be part of the sale but would be retained by, and remitted to, LHC. The argument that Allegiance had no contractual obligation under the Agreement to obtain the receivables from Bienville, which it now owned, and to deliver those receivables to LHC, or to cause Bienville to remit the receivables directly to LHC, has no merit. “Future things [such as amounts payable and accounts receivable] may be the object of a contract.” La.Civ.Code art. 1976. Moreover, pursuant to La.Civ.Code art. 1977, and the Agreement, Allegiance is obligated for the performance of Bienville. More specifically, our Civil Code provides:

Art. 1977. Obligation or performance by a third person
The object of a contract may be that a third person will incur an obligation or render a performance.
The party who promised that obligation or performance is liable for damages if the third person does not bind himself or does not perform.

| ^Accordingly, under articles 1976 and 1977, Allegiance agreed in writing that its newly acquired company, Bienville, would reserve for LHC the future collections, or future payments on accounts receivable, for certain Medicare and/or Medicaid payments and for designated services that Bienville provided prior to July 1, 2007. Through the Agreement, Allegiance promised to LHC that Bienville would render performance by remitting the receivables that it collected, and because Bienville has not performed, Allegiance is liable for the payments. Because Allegiance has not remitted the payments for which it is liable, it has breached its contract with LHC. The trial court did not err in finding breach of contract.

Conversion

Allegiance argues, in a somewhat contorted effort to create an issue of fact, that it is unknown what the Agreement contemplated, but that Allegiance could not have converted funds that it never received, and Bienville could not have converted funds if it were not a party to the Agreement. Ostensibly quoting Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-0343 (La.12/1/98), 721 So.2d 853, Allegiance defines conversion as “a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein.” The quote by Allegiance is not found in Dual Drilling. Nonetheless, it is a fair, but incomplete definition. Allegiance limits its definition of conversion and questions whether the Agreement contemplates the receipt of funds by Allegiance “in exactly the manner in which the funds at issue were received,” thereby implying no wrongful |7dominion. However, the definition of conversion is broader than argued. That is to say,

The tort of conversion is an intentional act done in derogation of the plaintiffs possessory rights. It is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner’s rights. Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Although a party may have rightfully come into possession of another’s goods, the subsequent refusal to surrender the goods to one who is entitled to them may constitute conversion.

Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05), 912 So.2d 715, 718 (emphasis added) (citations omitted), writ denied, 05-2356 (La.3/17/06), 925 So.2d 544.

In its discovery responses to LHC’s Request for Admissions, Bienville admitted to having received $431,604.49 in Medicare and/or Medicaid payments for services rendered prior to July 1, 2007. Likewise, the responses also contained an admission by Bienville that it had received $237,031.00 in Medicare and/or Medicaid cost report settlements for the “year ended December 31, 2006.” Due to these admissions by Bienville, and the above discussed liability of Allegiance for the nonperformance of Bienville, Allegiance’s self-serving and self-created dispute over the fact of the receipt of funds cannot materially affect the propriety of summary judgment in this case. Allegiance argues that neither it nor Bienville acquired possession of funds in any unauthorized manner such that the tort of conversion has been proved.

However, while the initial, and admitted, receipt of the funds by Bienville may not have been wrongful, Bienville’s and Allegiance’s subsequent refusals to surrender the funds to LHC, pursuant to the contract, constitute a | ^conversion of the funds for use by the defendants and against the rights and interests of LHC. Whether they used the funds for operations, payment of bills, or for investment purposes, their use of the funds prevented LHC from using the funds for their own purposes. The trial court did not err in finding that defendants converted the LHC funds to their own use.

In summary, Allegiance argues that summary judgment is inappropriate because there are disputed issues of material fact. Allegiance contends that the Agreement is unclear and ambiguous as to when payments for services rendered by Bien-ville were to be applied and to whom. This argument has no merit. As shown above, the Agreement is very clear. The receivables for services rendered by Bien-ville prior to July 1, 2007, the effective date of the sale and Agreement, were excluded from the sale and were to be paid to LHC when collected. Under La.Civ. Code arts. 1976 and 1977, the future amounts collected on Bienville’s accounts payable and receivable for services before the effective date were designated in the Agreement as belonging to LHC, and Allegiance contracted for and promised performance by Bienville for the delivery of those payments.

For these same reasons, contrary to Allegiance’s assertions, it is immaterial whether Allegiance actually received the funds itself, and it is immaterial that Bien-ville was not a party-signatory on the Agreement. To the extent that Allegiance disputes the amount of credit and setoff that Allegiance and/or Bienville are owed, the amount of additional credits was not raised until the motion for a new trial, which is not on appeal. Moreover, setoff is an affirmative defense. Because LHC clearly showed the amounts owed to LHC, through the introduction of the Agreement and the admissions by Bienville, the burden shifted to Allegiance and Bienville to show that it could prove any affirmative defense that would defeat | flsummary judgment. John C. Bose Consulting Engineer, LLC v. John T. Campo & Associates, Inc., 07-1001 (La.App. 4 Cir. 2/20/08), 978 So.2d 1033, writ denied, 08-0643 (La.5/09/08), 980 So.2d 696. Allegiance and Bienville did not carry that burden. Accordingly, we find no issue of material fact to prevent summary judgment in this matter.

Because we have found Allegiance liable under breach of contract and have found Allegiance and Bienville liable under tor-tious conversion of LHC assets, and because we have found no issue of material fact to preclude summary judgment, we need not discuss the other two theories of liability, equitable estoppel and unjust enrichment.

IV.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment granting summary judgment in favor of LHC. All costs of this appeal are assessed against Allegiance Health Management, Inc. and Bienville Medical Center, Inc.

AFFIRMED.

      . Conversion “is grounded on the unlawful interference with the ownership or possession of a movable.... A conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.” Dual Drilling Co., 721 So.2d at 857.


author: MOORE, J. BROWN, Chief Judge,

text:
    Doris KEY, Plaintiff-Appellee, v. MONROE CITY SCHOOL BOARD, Defendant-Appellant.
    No. 45,096-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2010.

      The Lawrence Law Firm, LLC by L. Douglas Lawrence, Bastrop, for Appellant.
    Parhms Law Firm, LLC by C.L. Parhms, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   MOORE, J.

_jjThe Monroe City School Board (“MCSB”) appeals a judgment which awarded the claimant, Doris Key, supplemental earnings benefits (“SEB”) from the date of termination of prior benefits, ordered MCSB to provide knee surgery, and awarded a penalty of $2,000 and attorney fee of $8,000. Ms. Key answers the appeal, seeking additional attorney fees for responding to the appeal. For the reasons expressed, we affirm the judgment and deny the answer to appeal.

Factual Background

Ms. Key had worked as a custodian at Monroe City Schools since 1980. The parties stipulated that at the time of the accident, her comp rate was $204.83 per week. In February 2006 she was applying stripper to a classroom floor at Thomas Jefferson Elementary when she slipped and fell, landing on her knees and badly injuring the right one. She reported the accident to her supervisor and went to MCSB’s doctor, who eventually sent her to Dr. Brian Bulloch, an orthopedic surgeon.

Dr. Bulloch placed her on physical therapy and pain management, including steroid injections, which yielded minimal results. He performed arthroscopic surgery in May 2006; Ms. Key testified that this helped but she still had to use a walker or a cane. Dr. Bulloch performed a total right knee replacement in January 2007; as a result, according to Ms. Key, the knee is better but still gets stiff easily. A functional capacity evaluation in April 2007 limited her to sedentary work, noting that she “will have difficulty returning to work in the custodial department” at MCSB. Owing to her pain and limited mobility, Ms. Key retired from MCSB on July 27, 2007.

|2Because of favoring her right knee for years, Ms. Key’s left knee began bothering her; Dr. Bulloch performed arthroscopic surgery in January 2009 and prescribed eight weeks’ therapy. Knowing the pain and possible complications of knee replacement, she was not yet willing to do this on the left knee but testified that she would consider it if the condition got worse. At trial in July 2009, she listed four pain medications she takes daily and testified that in her current state she cannot work as a custodian.

Immediately after the accident, MCSB began paying Ms. Key weekly benefits at the stipulated comp rate of $204.83 and provided the right knee surgeries and therapy. Sometime before her first arthroscopic surgery, MCSB sent her a letter about working as a school bus monitor, but after the operation she was unable to work at that time. She never received any further job leads from MCSB.

On April 22, 2008, MCSB terminated Ms. Key’s benefits, citing that she was now retired and had already received the 104-week statutory maximum of SEB. Ms. Key filed this disputed claim in May 2008.

At trial in July 2009, the parties stipulated that Ms. Key sustained a work-related accident. Counsel for Ms. Key stated that she had been receiving temporary total disability (“TTD”) benefits until these were terminated in April 2008; MCSB did not object. The only witness was Ms. Key, who testified as outlined above. She also introduced her medical records from Dr. Bulloch’s clinic and Louisiana Pain Care. MCSB cross-examined Ms. Key but called no witnesses and introduced no documentary evidence.

|oThe WCJ ruled from the bench that Ms. Key had no intention of retiring but for her work-related injury; in these circumstances, she was deemed not retired for purposes of workers’ compensation benefits. The WCJ then noted Dr. Bul-loch’s report of April 10, 2007, that Ms. Key could do sedentary work or medium work without pushing and pulling, and that MCSB terminated her benefits over a year later. The WCJ found that MCSB never reclassified Ms. Key’s benefits as SEB, and on the record presented, she was entitled to SEB from the date of termination; she was also entitled to the left knee surgery. Finally, the WCJ found no evidence to support the termination of benefits and no attempt to offer rehabilitation services. She therefore assessed a penalty of $2,000 and an attorney fee of $8,000.

MCSB has appealed, raising five interrelated assignments of error.

Discussion: Standard of Review

By its first assignment of error, MCSB urges that de novo review is warranted because the WCJ committed multiple errors of law. Citing the rule of Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, MCSB lists its remaining assignments of error as legal errors that interdicted the fact-finding process.

Ordinarily, the factual findings of the WCJ are subject to manifest error review. Buxton v. Iowa Police Dept., 2009-0520, p. 18 (La.10/20/09), 23 So.3d 275, 287; Dean v. Southmark Const., 2003-1051 (La.7/6/04), 879 So.2d 112; Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. Under this standard, the reviewing court does not decide |4whether the factfinder was right or wrong, but only whether its findings are reasonable. Buxton v. Iowa Police Dept., supra; Stobart v. State, 617 So.2d 880 (La.1993).

An exception to manifest error review applies in the event of legal error:

Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law, such as a consequential but erroneous ruling on the exclusion or admission of evidence, forecloses any finding of fact, and the record is otherwise complete, the appellate court should, if it can, render judgment on the record.

Slier v. Lafayette Ins. Co., 2007-2441, p. 19 (La.4/8/08), 988 So.2d 186, 201; Foley v. Entergy La. Inc., 2006-0983 (La.11/29/06), 946 So.2d 144; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; McLean v. Hunter, 495 So.2d 1298 (La.1986).

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Evans v. Lungrin, supra at p. 7, 708 So.2d at 735; Lasha v. Olin Corp., 625 So.2d 1002 (La. 1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Id.

For the reasons discussed below, we discern no legal errors in the proceedings below: no incorrect rulings on motions or objections, no improper admission or exclusion of evidence, no application of the wrong |5law to the case. Moreover, the WCJ’s factfinding role was not interdicted, impeded or tainted in any way. She carefully restated the salient facts of Ms. Key’s testimony, and this court notes that MCSB put on no evidence whatsoever to contradict the claimant. On this record, we find no basis for a de novo review and instead have applied the manifest error standard.

Sufficiency of Demand and Effect of Retirement

By its second assignment, MCSB urges the award of SEB was beyond the scope of relief sought by, or that could be awarded to, Ms. Key. MCSB shows that the claimant must allege, in her Form 1080, “the benefit in dispute” and “the specific compensation benefit which is due[.]” La. R.S. 23:1310 B, 23:1311 A(3). It contends that because Ms. Key alleged she had been receiving TTD, a resumption of TTD was the only issue properly before the court. It also argues that SEB for a retired employee are subject to a statutory cap of 104 weeks under La. R.S. 23:1221(3)(d)(iii). MCSB asserts that from the outset, it classified Ms. Key’s benefits as SEB and was entitled to end them as of April 2008. It concludes that the WCJ failed to make a definite ruling that the prior benefits were SEB instead of TTD.

Ms. Key responds that MCSB did not object to counsel’s assertion that her benefits were TTD, and offered no evidence to show otherwise, so the WCJ’s finding that the employer terminated TTD was not plainly wr ong.

A workers’ compensation claim must set forth the time, place, nature and cause of injury, “the benefit in dispute,” and the employee’s actual earnings. La. R.S. 23:1310 B. Moreover, the petition must set forth the “specific compensation benefit which is due but has not been paid or is not lfibeing provided.” La. R.S. 23:1311 A(3). Ms. Key’s Form 1080 alleged that “wage benefits [were] reduced or terminated on: April 22, 2008” and that she had a bona fide dispute as to her disability status. This is sufficient to allege a “benefit in dispute” or a “specific compensation benefit,” whether it might be TTD, SEB or any other form of indemnity. The WCJ was entitled to award any compensation benefits proved by Ms. Key.

The right to SEB is subject to a maximum of 520 weeks, but shall terminate “[w]hen the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than 104 weeks.” La. R.S. 23:1221(3)(d)(iii). The retirement referred to in § 1221 (3) (d) (iii) is not resignation from work because of disability; it refers only to a worker who has no intention of returning to work regardless of disability. Johnson v. Bossier Parish Sch. Bd., 43,817 (La.App. 2 Cir. 1/21/09), 3 So.3d 580, 242 Ed. Law Rep. 951, writ denied, 2009-0676 (La.5/15/09), 8 So.3d 586; Peters v. General Motors Corp., 39,279 (La.App. 2 Cir. 1/26/05), 892 So.2d 717, and citations therein. When a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by her disability, then that worker is said not to have withdrawn from the workforce and is not considered retired under § 1221 (3)(d)(iii). Peters v. General Motors, supra; Oestringer v. City of New Orleans, 2003-2213 (La.App. 4 Cir. 6/2/04), 876 So.2d 240, and citations therein.

Ms. Key testified that she retired “because of [my] knees” and “when I get well, I will, you know, return * * * [because] I liked working for the |7Monroe School Board.” MCSB put on absolutely no evidence to the contrary. On this record, the WCJ could find that Ms. Key retired only because of her work-related injury and thus was deemed not retired for purposes of § 1221(3)(d)(iii). This assignment of error lacks merit.

Award of SEB

By its third assignment, MCSB urges the award of SEB was not supported by sufficient evidence. It quotes La. R.S. 23:1221(3) in extenso but argues only that the WCJ erred in relying on the medical records offered by Ms. Key because she never showed Dr. Bulloch’s expertise in any field. Without expert opinion as to her disability, MCSB submits .there is no evidence on which to base the award of SEB.

Ms. Key responds that Dr. Bulloch’s reports show that she can no longer earn 90% of her pre-injury wage and that MCSB offered nothing to dispute his expertise or medical opinion.

The failure to object to evidence at trial waives the right to contest it on appeal. La. C.E. art. 103; Brown Radiator & Frame v. Kidd, 44,354, p. 13 (La.App. 2 Cir. 6/24/09), 13 So.3d 1244, 1251, and citations therein. This record clearly shows that when Ms. Key offered the Orthopedic Clinic records into evidence, MCSB’s counsel replied, “No objection.” Hence this court has no basis to disregard either Dr. Bulloch’s expertise or medical conclusions. He limited her to sedentary work but as of the time of trial she had not yet begun working. The WCJ was entitled to find that by April 2008 she could do some work but was unable to earn 90% of her pre-injury wage. This assignment lacks merit.

| sClassification of Benefits

By its fourth assignment, MCSB urges the WCJ failed to make a specific finding classifying, as either TTD or SEB, the benefits Ms. Key received until April 2008. MCSB maintains that her benefits were always SEB and subject to termination after 104 weeks. It concedes, however, that the WCJ was correct in finding that after April 2008, she was not entitled to TTD.

Ms. Key responds that at trial, her counsel asserted that her benefits had always been TTD, and MCSB did not object; hence, the WCJ was not plainly wrong to find that she had been receiving TTD until termination. She also argues that the employer may not surreptitiously shift benefits from TTD to SEB just to assert the time limitation of § 1221(3)(d)(iii). Glover v. General Motors, 38,805 (La.App. 2 Cir. 8/18/04), 880 So.2d 172.

Ms. Key correctly shows that MCSB neither objected nor offered any evidence to contradict her claim that her benefits had been TTD. This court cannot help but feel that with a modicum of effort, such as taking Dr. Bulloch’s deposition or moving for an independent medical examination, MCSB could perhaps have shown that Ms. Key was able to do some kind of work prior to April 2008. However, MCSB put on no evidence at all. The WCJ was therefore not plainly wrong to accept Dr. Bulloch’s report and find that Ms. Key was entitled to receive, and in fact receiving, TTD until termination.

The employer may not shift an employee’s indemnity benefits from TTD to SEB in the absence of an appropriate justification. Glover v. General Motors, supra, and citations therein; Malone & Johnson, 13 La. Civ. Law Treatise (Workers’ Compensation, 4th ed.), § 276, pp. 665-666 (West Group, ©2002). The instant record discloses no evidence to justify shifting her benefits to SEB prior to Dr. Bulloch’s report of April 2008.

The WCJ was not plainly wrong in classifying Ms. Key’s benefits. This assignment lacks merit.

Penalty and Attorney Fee

By its final assignment, MCSB urges the WCJ erred in finding an arbitrary and capricious termination of benefits. It reiterates that Ms. Key never demanded SEB, the relief ultimately awarded, and hence the failure to pay SEB cannot violate the statute. It also asserts that because “questions existed, remain unresolved,” the penalty and attorney fee are not warranted. Finally, it contends there was absolutely no documentation for the $8,000 attorney fee and hence it lacks factual and legal basis.

Ms. Key responds that the WCJ has great discretion in assessing a penalty and attorney fee. Nowlin v. Breck Const. Co., 30,622 (La.App. 2 Cir. 6/24/98), 715 So.2d 112. She submits there was no abuse of discretion. By answer to appeal, she requests an additional attorney fee for responding to MCSB’s appeal.

Any employer or insurer who at any time discontinues payment of compensation claims due, when such discontinuance is found to be “arbitrary, capricious, or without probable cause,” is subject to a penalty not to exceed $8,000 and reasonable attorney fee. La. R.S. 23:1201 I; Brien v. Leon Angel Constructors Inc., 42,904 (La.App. 2 Cir. 3/12/08), 978 So.2d 576, writ denied, 2008-0802 (La.6/6/08), 983 So.2d 919; Williams v. Tioga Manor Nursing Home, 2009-0417 (La.App. 3 Cir. 11/18/09), 24 So.3d 970. Arbitrary and capricious conduct is “willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” J.E. Merit Constructors Inc. v. Hickman, 2000-0943, p. 5 (La.1/17/01), 776 So.2d 435, 437-438; Brien v. Leon Angel, supra. Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co. United, 2004-0100 (La.3/2/05), 894 So.2d 1096.

A workers’ compensation claimant is generally entitled to an additional attorney fee to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood Inc., 2004-1086, p. 13 (La.1/19/05), 892 So.2d 7,15; Thomas v. Hollywood Casino, 44,271, p. 14 (La.App. 2 Cir. 5/13/09), 13 So.3d 717, 725. Any award of an attorney fee is subject to review under the court’s inherent power to regulate the practice of law. State v. Williamson, 597 So.2d 439, 441-442 (La.1992); Reed v. St. Francis Med. Center, 44,211, p. 8 (La.App. 2 Cir. 4/8/09), 8 So.3d 824, 829.

The WCJ found no change in Ms. Key’s condition between April 10, 2007, the date of Dr. Bulloch’s partial medical release, and April 22, 2008, the date of termination of benefits. The medical records fully support this conclusion. For the reasons already discussed, MCSB took no action to reclassify her benefits from TTD to SEB and thus get the time limitation of |n§ 1221(3)(d)(iii). Even if it had, MCSB would have been liable to Ms. Key for 104 weeks, but terminated benefits after only 54 weeks. MCSB’s action appears arbitrary and capricious, and without due regard for the facts and circumstances presented. The imposition of the penalty and attorney fee will be affirmed.

As to quantum, this court notes that the hearing before the WCJ lasted under one hour and a pretrial mediation conference yielded only the notation, “additional time needed.” Counsel completed and filed a Form 1008, as well as a three-page pretrial statement and a motion to continue. With all due respect to the economic necessities of representing comp claimants, the court finds that the $8,000 fee awarded stretches the upper limit for this claim. We find that this fee -will adequately compensate counsel for his work in the OWC and for preparing a 4)£-page appellate brief. The assignment of error lacks merit, and the answer to appeal will be denied.

Conclusion

For the reasons expressed, we affirm the judgment of the WCJ in favor of the claimant, Doris Key, but deny her answer to appeal. The appellate filing fee of $121.50 is to be paid by the employer, Monroe City School Board. La. R.S. 13:5112 A.

AFFIRMED. ANSWER TO APPEAL DENIED.

BROWN, C.J., concurs with written reasons.

BROWN, Chief Judge,

concurring.

pin her July 2009 judgment the WCJ stated, “At the time, Dr. Bulloch found that (claimant) was able to perform sedentary work, she would have been entitled to (SEB). However, the benefits were never re-categorized as (SEB).” I agree that following the April 2007 report from Dr. Bulloch, claimant was entitled to SEB and not temporary total disability benefits. Therefore, starting in April 2007, I would find that the benefits paid by the school board were supplemental earning benefits.

Finally, claimant testified that she in fact retired and, thus received retirement benefits. She did not resign from work, she retired. Thus, La. R.S. 23:1221(3)(d)(iii) is applicable.

I concur that the school board prematurely stopped paying SEB and was subject to the imposition of penalty and attorney fees.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. James Dennis WILSON, Appellant.
    No. 45,060-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2010.

      Frank E. Brown, Jr., Shreveport, Jacqueline Scott, Bossier City, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Dale N. Montgomery, II, Assistant District Attorneys, for Appel-lee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

| defendant, James Dennis Wilson, was convicted of purse snatching, a violation of La. R.S. 14:65.1. He was sentenced to 20 years at hard labor, without the possibility of diminution of his sentence. For the following reasons, defendant’s conviction and sentence are affirmed.

Facts

On December 13, 2001, Mary Thompson was at the north end of the Wal-Mart parking lot in Bossier City, Louisiana, when a man grabbed her purse. Ms. Thompson attempted to hold on to her purse, but the assailant pulled so hard that it caused her to fall to the ground and hit her head. Ms. Thompson described the assailant as a black man with a goatee, wearing a knit cap and plaid shirt.

Billy Massey and his wife heard Ms. Thompson scream. Billy Massey chased the assailant but stopped when he pointed at his gun. Mr. Massey then saw the man jump into the passenger side of a gold Ford Taurus which headed northbound on Airline Drive.

Motorists Julie Griffith and her husband witnessed the Taurus driving off as well. They were able to catch up to the gold Ford Taurus and write down its license plate number. The investigating police officer, Detective James Cole, tracked the car to a Felicia Jenkins. Ms. Jenkins informed Det. Cole that her “cousin” Jeremy had taken her car to have a flat tire fixed, and that she did not know his last name.

The victim’s purse contained money and her cell phone. Before the cell phone was deactivated there were a number, of calls to a residence that defendant stayed at in Los Angeles and to the residence of defendant’s |2cousin, Tequila Wilson. Det. Cole talked with Corporal Richard McGee, who had worked in the Bossier City Police Department’s gang division. Cpl. McGee stated that he knew Tequila Wilson and defendant and that the victim’s description of the assailant matched that of defendant.

Relying on the information supplied by Cpl. McGee, Det. Cole obtained a photograph of defendant and created a photo lineup to show Ms. Thompson. She was not immediately able to identify defendant in the photo array, but was able to eliminate all but two pictures, one of which was defendant’s. A couple of months later Ms. Thompson viewed the photo lineup again, and this time she positively identified defendant as the purse snatcher.

In addition to Ms. Thompson, Det. Cole showed the lineup to Billy Massey. Like Ms. Thompson, Mr. Massey was not able to positively identify defendant in the photo lineup, but he too was able to narrow his choice down to two photos, one of which was defendant’s. Mr. Massey suggested to Det. Cole that he show the lineup to his wife, Sirena Massey, because she got a good look at the perpetrator. Mrs. Massey immediately picked defendant as the purse snatcher.

A warrant was issued for defendant’s arrest in January 2002. Approximately two months later defendant was arrested in California by U.S. Marshals and transported back to Bossier Parish. Thereafter, defendant’s mother, Linda Willis, his cousin, Belinda Willis, and the mother of one of his children, Marion Howard, reported to Sergeant Gregory of the Bossier City Police Department that Jerry James Wilson (Jerry), defendant’s |suncle, told them that he, not defendant, had taken the purse. The women gave Sgt. Gregory the victim’s insurance card, which they said they got from Jerry.

Det. Cole brought Jerry in for questioning. Jerry told Det. Cole that on the day of the purse snatching his friend, Darnell Sellers, drove his girlfriend’s gold Ford Taurus to the Wal-Mart. Jerry further stated that they parked on the south side of the store. Sellers went into the store while he stayed in the ear, and all of a sudden, Sellers hopped into the driver’s seat holding a women’s purse.

Although noting in his police report that the story Jerry gave him did not match the events that transpired, Det. Cole still put together a photo lineup with a picture of Sellers in it and showed it to Ms. Thompson. Ms. Thompson did not recognize anyone in that lineup. It was at this time that she asked to see the first photo lineup again and positively identified defendant.

On April 30, 2002, defendant was charged by bill of information for violation of La. R.S. 14:65.1, purse snatching. Discovery was satisfied in May 2002, and trial was set for September 23, 2002. Defendant, however, failed to appear for the trial and a bench warrant was issued for his arrest. Defendant was finally arrested and brought before the court in August 2008. Trial was set for January 26, 2009.

On January 28, 2009, after a two-day trial, the jury found defendant guilty of purse snatching. After ordering a presen-tence investigation report (“PSI”) and hearing the victim’s statement, the trial court imposed the |4maximum sentence of 20 years imprisonment at hard labor with credit for time served, but without the possibility of the diminution of sentence for good behavior. Defendant now appeals.

Discussion

Sufficiency of the Evidence

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29, 253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

An appellate court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation and does not extend to credibility determinations made by the trier of fact. La. Const. Art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir. 1984). The 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. Eason, 43,788 (La. App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

|sThe definition of purse snatching is set forth in La. R.S. 14:65.1(A), and it states:

Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

Beyond proving the elements of the offense, it is necessary to prove the identity of the defendant as the person who committed the crime. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047.

Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Youngblood, 41,976 (La.App.2d Cir.05/09/07), 957 So.2d 305, writ denied, 07-1226 (La.12/14/07), 970 So.2d 530; State v. Davis, 27,961 (La.App.2d Cir.04/08/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

Defendant contends that there was insufficient evidence to prove beyond a reasonable doubt that he was the person who committed the purse snatching since the state’s case consisted entirely of conflicting and inconsistent eyewitness testimony. Furthermore, defendant asserts, the testimony of his friends and family clearly shows that his uncle, Jerry Wilson, and Darnell Sellers were the culpable parties. Thus, based upon the testimony presented at trial, defendant posits that no rational trier of fact could reasonably conclude that he was the perpetrator.

At trial the state put on testimony from the victim and two eyewitnesses, as well as the investigating officer. Although it was more than eight years since the crime was committed, and some portions of their 1,;testimony were slightly inconsistent with the original police report, all of the eyewitnesses testified that they were positive that defendant was the perpetrator. Det. Cole testified that Ms. Thompson’s cell phone records revealed that calls had been made to defendant’s cousin, Tequila Wilson, and to the home at which defendant was subsequently arrested in California. Furthermore, Det. Cole testified that Jerry Wilson’s “confession” got many of the details of the offense incorrect, i.e., on which side of the parking lot the car was parked, and into which side of the car the purse snatcher jumped.

The defense presented testimony from family and friends of defendant who all claimed that defendant’s uncle, Jerry Wilson, who is now deceased, committed the theft. Defendant’s cousin, Tequila Wilson, testified that her Uncle Jerry, not defendant, called her residence from the victim’s cell phone. Marion Howard, the mother of one of defendant’s children, testified that Jerry told her, while she was with Belinda Wilson and Linda Willis, that he was involved in the crime and that defendant did not commit the purse snatching. Defendant’s cousin, Belinda Wilson, and his mother, Linda Willis, both testified that they saw Jerry with the purse and that he told them that defendant had not been involved. Linda Willis also testified that she paid Jerry to turn himself into the police.

The jury, as the trier of fact, was free to accept or reject, in whole or in part, the testimony of any witness. They were in the best position to observe the witnesses’ demeanor, weigh their testimony, and evaluate their credibility. Despite any inconsistencies in the eyewitnesses’ testimony if |7the jury believed defendant’s positive identification by any one witness, it would have been sufficient to support the conviction. See State v. Youngblood, supra. Accordingly, after reviewing the evidence in the light most favorable to the prosecution, we find that the jury could have reasonably concluded that defendant committed the purse snatching.

Continuancellneffective Counsel

The factual timeline particular to this case is significant to whether the trial court acted within its discretion in denying a continuance. The offense occurred on December 13, 2001. Following the commission of the crime, defendant fled to California. He was arrested by the U.S. Marshals and returned to Louisiana. On May 1, 2002, defendant, being represented by the IDB, waived arraignment and pled not guilty. Trial was set for September 23, 2002. On May 3, 2002, defendant made bond and was released from jail. Discovery was filed and answered. On the day set for trial, defendant failed to appear, his bond was forfeited, and a bench warrant was issued for his arrest. Defendant was not arrested and returned to the jurisdiction of the court until August 2008. Again the IDB was appointed to represent him. In September 2008, a motion to reduce bond was filed and denied, and in October 2008, a status conference was held, and trial was set for January 26, 2009. The IDB represented defendant at both proceedings.

On the day trial was set to begin the trial court received a motion to enroll and a motion for continuance from defendant’s newly retained attorney, William G. Nader. At the hearing on the motions, Mr. Nader argued that a continuance was necessary since he had just been retained. |sThe trial court informed Mr. Nader that he could enroll, but that his motion for continuance was denied. Mr. Nader chose not to enroll.

Carlos Prudhomme, defendant’s public defender, also requested a continuance. Mr. Prudhomme stated that he had only been assigned to the case two weeks prior and he too would need additional time to prepare his defense. Mr. Prudhomme, however, did inform the court that he had reviewed the IDB’s files from 2002 and believed he could adequately defend defendant. The trial court denied Mr. Prud-homme’s motion for continuance as well.

This matter was pending for more than seven years. Defendant knew of the charges against him, but he delayed the administration of justice by absconding from the jurisdiction of the court. Defendant could have hired counsel of his own choosing at any time and turned himself in to the police. Nevertheless, defendant was arrested and brought back into the court’s jurisdiction, and for more than three months he sat idly while the IDB represented him. Then on the eve of trial defendant decided to retain Mr. Nader and to seek a continuance.

A defendant not only has a constitutional right to counsel but should be afforded a fair opportunity to secure counsel of his own choice. State v. Roberts, 569 So.2d 671 (La.App. 2d Cir.1990). However, this right cannot be manipulated to obstruct the orderly procedure of the court and it must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings. State v. Seiss, 428 So.2d 444 (La.1983); State v. Leggett, 363 So.2d 434 (La.1978). Absent a justifiable |<,basis there is no constitutional right to have new counsel appointed or enrolled on the day of trial if a continuance will also be required. Id.

Considering the delay caused by defendant, we find no justifiable basis for the trial court to grant a continuance at that late stage of the proceeding so that defendant could switch counsel.

Regarding the denial of Mr. Prud-homme’s request for a continuance, we note that the IDB had more than three months to prepare this case. Even though Mr. Prudhomme had only been assigned the case two weeks before trial, he stated that he had access to his predecessor’s files and believed that he could provide defendant with adequate representation and a fair trial. Accordingly, we find that the record does not indicate that the time allowed Mr. Prudhomme to prepare was so minimal that the need to show specific prejudice can be disregarded, and defendant has failed to raise specific instances of prejudice. See State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995); State v. Gipson, 28,113 (La. App.2d Cir.06/26/96), 677 So.2d 544, writ denied, 96-2303 (La.01/31/97) 687 So.2d 402.

Next, we undertake defendant’s claim that he received ineffective assistance of counsel. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.09/26/07), 966 So.2d 139, unit denied, JiS07-2190 (La.04/04/08), 978 So.2d 325. However, when the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); Slate v. Willars, 27,394 (La.App.2d Cir.09/27/95), 661 So.2d 673.

A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, to establish that his attorney was ineffective, defendant must show that counsel’s performance was deficient. This requires a showing that counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Stnckland, supra. Second, defendant must show that counsel’s deficient performance prejudiced his defense. Defendant must prove actual prejudice, and this requires a showing that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.04/05/95), 653 So.2d 174, writ denied, 95-1398 (La.11/03/95), 662 So.2d 9.

A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, writ denied, 02-1570 (La.05/30/03), 845 So.2d 1067.

|nBased upon our review of the record, we find that there is insufficient evidence to make a ruling on this claim on appeal.

Excessive Sentence

Defendant contends that the sentence he received is harsh and disproportionate to the offense.

The trial court is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.04/09/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710.

La. R.S. 14:65.1(B) states:

Whoever commits the crime of purse snatching shall be imprisoned, with or without hard labor, for not less than two years and for not more than twenty years.

Prior to imposing sentence the trial court reviewed the PSI and heard the victim’s statement concerning the continuing effects of the offense. The PSI outlined defendant’s extensive criminal history, including seven felony convictions, several of which took place after the instant offense, and a multitude of misdemeanors. Most of the crimes involved some type of theft and/or battery. The court also discussed defendant’s personal history and his admitted substance abuse. Considering the factors set forth in La. C. Cr. P. art. 894.1, the trial court found that defendant was in need of correctional treatment provided most effectively by commitment to an institution, that a lesser sentence would deprecate the seriousness of the lacrime, and that defendant’s criminal conduct was likely to recur. Based upon the aforementioned reasons, as well as Ms. Thompson’s statement, the trial court sentenced defendant to the maximum penalty of 20 years at hard labor.

Although maximum sentences are typically reserved for the most serious offenders and offenses, we have held before that a trial court did not abuse its discretion by imposing the maximum sentence for purse snatching based primarily on defendant’s extensive criminal history and his failure to modify his behavior after multiple incarcerations and probations. See State v. Morgan, 44,461 (La.App.2d Cir.08/19/09), 16 So.3d 1289. Considering defendant’s past behavior and the personal nature of the crime, we find that the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense so as to shock the sense of justice. See State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993).

Conclusion

For the foregoing reasons, the conviction and sentence of defendant are affirmed.


text:
    Kevin and Corliss STENSON, et al. v. CITY OF OBERLIN.
    No. 09-1125.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Rudie Ray Soileau, Jr., Lundy, Lundy, Soileau & South, LLP, Lake Charles, LA, for Intervenors/Appellants-Silton and Robin Fuselier.
    Errol David Deshotels, Deshotels, Mouser & Deshotels, Oberlin, LA, for Defendant/Appellee, City of Oberlin.
    Edward E. Rundell, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees-Meyer, Meyer, La-Croix <& Hixson, Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| plaintiffs, Silton and Robin Fuselier, seek to intervene in a consolidated litigation brought on behalf of several citizens of Oberlin, Louisiana who allege ongoing problems with the sewerage and waste water system maintained by the City of Oberlin. The trial court maintained defendant Meyer, Meyer, LaCroix, & Hixson, Inc.’s (MMLH) exception of prescription and executed a final judgment. Mr. and Mrs. Fuselier appeal the trial court’s judgment and assert that the trial court erred by failing to admit testimony into the record regarding the Fuseliers’ injury and by granting MMLH’s exception of prescription. For the following reasons, we reverse.

I.

ISSUE
We must decide whether the trial court:
(1) erred when it refused to allow Mr. and Mrs. Fuselier to offer evidence at the November 21, 2008 hearing to controvert the exception of prescription urged by defendant MMLH; and,
(2) erred when it granted the exception of prescription urged by defendant MMLH.

II.

FACTS AND PROCEDURAL HISTORY

This matter involves claims brought by several residents of the City of Oberlin for property damage and personal injury allegedly caused by sewerage overflow. Kevin and Corliss Stenson filed the earliest petition in the consolidated action against the City of Oberlin in 2008. Mr. and Mrs. Fuselier filed a petition to intervene on July 20, 2006.

Prior to the Fuselier petition, several notable filings in the consolidated action occurred. Specifically, on March 10, 2005, the Stenson plaintiffs filed their IgSecond Supplemental Petition for recognition of class status, and on March 17, 2005, the Stenson plaintiffs served their Second Supplemental Petition on the last defendant— MMLH.

In their Petition of Intervention, Mr. and Mrs. Fuselier assert allegations similar to those contained in the petitions of the Stenson plaintiffs. Specifically, Mr. and Mrs. Fuselier claim that their alleged problems with sewerage and water overflow commenced in approximately the summer and fall of 2003. They contend that the City of Oberlin “purposefully and knowingly misled and misinformed plaintiffs of the cause for the waste water and raw sewerage in their home....” Moreover, Mr. and Mrs. Fuselier claim that they continue to have problems with the back up of waste water and raw sewerage into their home. Finally, Mr. and Mrs. Fuselier allege that the City of Oberlin contracted with MMLH to design a waste water sewerage treatment plant for the City of Oberlin.

MMLH filed an Exception of Prescription in response to the Fuseliers’ Petition of Intervention. As part of its exception, MMLH contended that the Fuseliers’ incidental demand was untimely pursuant to La.Code Civ.P. art. 1067 because it was barred by prescription when the “main demand,” or Second Supplemental Petition of the Stenson plaintiffs, was filed in March 2005, and was not filed within ninety days of service of the main demand of the Stenson plaintiffs. The Fuseliers argued in opposition that the intervention could relate back to the original petition filed by the Stenson plaintiffs.

The trial court held two hearings on the matter. At the second hearing, Mr. and Mrs. Fuselier’s counsel attempted to present the testimony of Robin Fuselier regarding the date the Fuseliers first became aware of the water and sewerage problem in their home. MMLH’s counsel objected and argued that the ruling on IsMMLH’s exception of prescription should be made from the face of the pleadings. Mr. and Mrs. Fuselier’s counsel appeared to acquiesce and agree with MMLH’s counsel’s statement. Counsel neither proffered Mrs. Fuselier’s testimony at the hearing nor submitted an affidavit for the record.

The trial court took the matter under advisement and invited the parties to submit post-hearing memoranda. Mr. and Mrs. Fuselier submitted a memorandum that focused on the trial court’s refusal to allow testimony at the second hearing on the exception. The trial court ultimately maintained the exception and executed a final judgment.

III.

LAW AND DISCUSSION

Standard of Review

“The manifest error standard of review applies to an appellate court’s consideration of an exception of prescription.” Credeur v. Champion Homes of Boaz, Inc., 08-1096, p. 3 (La.App. 3 Cir. 3/4/09), 6 So.3d 339, 341-42 (citations omitted). “We must bear in mind, however, that an appellate court must strictly construe the statutes against prescription and in favor of the extinguished claim.” Id.

Submission of Evidence at the Hearing on Prescription

Louisiana Code of Civil Procedure Article 931 provides in part that “on the trial of the peremptory exception pleaded at or prior to the trial of the ease, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” (emphasis added). Where the record is adequate for a trial court to rule on an exception of prescription, the court does not abuse its discretion in not allowing the testimony. Johnson v. \tUnopened S-uccession of Alfred Coving-ton, Jr., 42,488, 42,389 (LaApp. 2 Cir. 10/31/07), 969 So.2d 733.

The Fuseliers’ counsel attempted to introduce evidence of the Fuseliers’ injury by offering the testimony of Robin Fuselier. MMLH’s counsel objected. Mr. and Mrs. Fuselier’s counsel acquiesced and agreed with MMLH’s counsel, stating as follows:

That’s very good, Your Honor. Then I will rely on the paragraphs fifteen and sixteen. No, really, I understand and we’ve been here before. We’ve got an affidavit that’s coming into evidence. But I do agree with [MMLH’s counsel] that if you take the pleadings and on the face of the pleadings — Let me just go ahead and recite what it says because that becomes our factual standard.

Counsel neither proffered Mrs. Fuselier’s testimony at the hearing nor submitted an affidavit for the record. Instead, he relied on the face of the pleadings. Thus, the trial court did not abuse its discretion in failing to permit the testimony of Robin Fuselier at the November 21, 2008 hearing.

Exception of Prescription

MMLH asserts that the Fuseliers’ tort claims against MMLH are prescribed. We disagree. In reaching this conclusion, we kept in mind that “[prescriptive statutes, under our jurisprudence, are strictly construed in favor of maintaining rather than barring actions.” Calbert v. Batiste, 09-514, p. 7 (La.App. 3 Cir. 11/4/09), 23 So.3d 1031, 1036 (citations omitted).

We focus on whether the Fuseliers’ claims relate back to the original petition brought by the Stenson plaintiffs. Louisiana Code of Civil Procedure Article 151153 governs the “relation back” of a related pleading to an original pleading. The article states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

To determine whether the Fuseliers’ petition relates back to the original Stenson petition, we look to the test set out by the Louisiana Supreme Court in Giroir v. South Louisiana Medical Center Div. of Hospitals, 475 So.2d 1040 (La.1986). “The test was originally used to determine whether an amended petition adding or substituting a plaintiff should be allowed to relate back to the date of the filing of the original petition, but multiple courts have used the same test in considering prescribed intervening suits.” CalbeH, 23 So.3d at 1035. In Giroir, the supreme court stated:

[A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

Giroir, 475 So.2d at 1044 (citations omitted).

In examining the four Giroir factors, it is clear that the Fuseliers’ intervening tort claim against MMLH relates back to the time of the original filing by the Stenson plaintiffs. The claims are virtually identical and arise from the same occurrence — MMLH’s design of the City of Oberlin’s sewerage system. Considering that the original suit was brought by other residents of the City of Oberlin, MMLH should have anticipated that others in the City using the sewerage system might choose to enter the suit. Mr. and Mrs. Fuselier are not wholly new or unrelated | (¡parties. They are suing in the same capacity as the Stenson plaintiffs — residents who have been adversely affected by the City of Oberlin’s water and sewerage facility. Moreover, MMLH would not be prejudiced in preparing and conducting a defense against the Fuseliers, as the defense put forth would be identical to the one that would be presented against the Stenson plaintiffs.

Thus, we find that the filing of the original petition by the Stenson plaintiffs interrupted prescription for the benefit of the Fuseliers’ intervening suit. Mr. and Mrs. Fuselier are permitted to proceed with their action against MMLH.

IV.

CONCLUSION

Based upon the foregoing, we reverse the judgment of the trial court. Costs of this appeal are assessed to MMLH.

REVERSED AND REMANDED.

      . Specifically, MMLH relies on La. Code Civ.P. art. 1067 which provides that "an incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand...." This article, however, contemplates an action that ordinarily may have been subject to prescription and would not otherwise be subject to revival. Here, La. Code Civ.P. art. 1153 governs.