author: _[iLEON A. CANNIZZARO, JR., Judge.

text:
    Gloria McCARTER Wife of/and Christopher P. McCarter, Individually and on Behalf of their Minor Children, Kelly McCarter and Cristen McCarter v. Mary SANCHEZ and Patterson Insurance Company.
    No. 2003-CA-0935.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.

      Ford T. Hardy, Jr., New Orleans, LA, for Plaintiff Appellant, Gloria McCarter.
    Gerald A. Melchiode, Kourtney Twen-hafel French, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendani/Appellant, Continental Insurance Company.
    Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.
   _[iLEON A. CANNIZZARO, JR., Judge.

This case arises out of an automobile accident. Continental Insurance Company, a defendant in this case, is appealing the trial court’s judgment in favor of Gloria McCarter, a plaintiff in this case. Mrs. McCarter is also appealing that part of the trial court’s judgment that makes her award subject to a credit for the amount already paid to Mrs. McCarter by another insurance company.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mrs. McCarter was driving her car in a safe and lawful manner, and her two minor children were passengers in the car. A car driven by Mary Sanchez struck Mrs. McCarter’s car from the rear, and as a result of the collision, Mrs. McCarter and her children were injured. Mrs. McCarter testified at the trial that when her car was hit, “my legs went numb.” Thereafter, she began to suffer from unrelenting back pain and ultimately discovered that she had a slipped disk in her spine, which she attributed to the injuries she sustained in the accident involving Ms. Sanchez’s car. Additionally, Mrs. McCarter’s children were injured from being jolted when their mother’s ear was hit by Ms. Sanchez’s car.

|2Mrs. McCarter sued Ms. Sanchez and Patterson Insurance Company, Ms. Sanchez’s insurer. Continental, Mrs. McCar-ter’s uninsured motorist carrier, was also sued. Ms. Sanchez and Patterson admitted liability in the case, and the claims against them were settled for $9,500. After a trial on the merits, the trial court awarded Mrs. McCarter damages in the amount of $50,000 but made the award subject to a credit in the amount of $10,000.

Continental is appealing the award of damages on the ground that Mrs. McCar-ter’s back pain and slipped disk were the result of a pre-existing back problem rather than the accident involving Ms. Sanchez. Just sixteen days prior to the accident Mrs. McCarter had been released from the care of Dr. Frank Culicchia, the neurosurgeon who performed surgery to repair a slipped disk in Mrs. McCarter’s back approximately six weeks earlier. When Dr. Culicchia discharged Mrs. McCarter, he reported to Dr. Robert Miles, who was Mrs. McCarter’s primary care physician, that Mrs. McCarter had “no complaints of pain whatsoever” and wanted to return to her full duties at work. Dr. Culicchia further advised Dr. Miles that he had released her from his care and had “not placed any restrictions or limitations upon her.”

A few days after the accident, however, Mrs. McCarter returned to Dr. Culicchia. She told him that she had been involved in an automobile accident and that she had suffered from a return of the numbness that had affected her legs prior to the surgery that he had recently performed. Dr. Culicchia prescribed pain | ¡¡medication and advised Mrs. McCarter to return to his office if her condition did not improve.

Mrs. McCarter continued to have progressive back pain for approximately two and one half years before she again visited a physician. Mrs. McCarter, however, periodically consulted with Dr. Miles by telephone, and over the course of approximately two and one half years, he prescribed prescription strength ibuprofen for her more than twenty times by calling a pharmacy to have the prescriptions filled.

At the trial Mrs. McCarter explained her failure to visit a physician for approximately two and one half years after she last visited Dr. Culicchia. Mrs. McCarter testified that because she was the caregiver for her mother, who had terminal cancer, for a number of months after the accident, she would have been unable to have back surgery at that time. Additionally, she testified that because she had a high tolerance for pain and was afraid of surgery, she decided to manage her pain with medications and exercise. Mr. McCarter also testified at the trial that Mrs. McCarter had a high tolerance for pain.

Eventually, Mrs. McCarter did return to see Dr. Miles, because her back pain continued to increase. Six months later Dr. Miles determined that Ms. McCarter should have an MRI examination of her back, and the MRI showed that she had a recurrent slipped disk. Dr. Miles then referred Mrs. McCarter to Dr. John Lee Moss, who confirmed that she suffered from a recurrent slipped disk and who advised her to treat the disk problem conservatively with medication and exercise rather than surgically.

|4Mrs. McCarter claimed that there were no intervening acts that could have caused or contributed to her recurrent disk problem other than the accident. Alternatively, Continental claimed that there is no evidence that the accident caused Mrs. McCarter’s recurrent disk problem. The trial court held in favor of Mrs. McCarter and awarded her $50,000 in damages, subject to a $10,000 credit for money already paid by Ms. Sanchez’s insurer. Continental is appealing the trial court judgment, and Mrs. McCarter is appealing that portion of the judgment that made her award subject to the $10,000 credit.

DISCUSSION

Applicable Law

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court discussed the scope of the appellate court’s review of a trial court’s findings of fact as follows:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

| Jd. at 844. See also Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

With respect to issues of law, however, this Court is required to determine whether the trial court applied the law appropriately. In Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405, writ denied, 2002-2977, 2002-3018 (La.3/14/03), 839 So.2d 36, 839 So.2d 37, this Court stated that “[t]he standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct.” Additionally, if a trial court’s decision is based on an erroneous application of the law, the decision is not entitled to deference by the appellate court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983). See also Sander v. Brousseau, 2000-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711, where this Court stated that “[appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.”

Assignments of Error

Continental has made seven assignments of error. Mrs. McCarter has made a single assignment of error.

Continental’s Assignment of Error No. 1: The trial court committed manifest error in applying the Housely presumption, because the facts of this matter do not warrant this application.

In Housley v. Cerise, 579 So.2d 973 (La.1991), the Louisiana Supreme Court, quoting Lucas v. Insurance Co. of North America, 342 So.2d 591, 596 (La.1977), stated that:

|fi[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

579 So.2d at 980.

Continental argues that in order for Mrs. McCarter to fall within the scope of the Housley presumption, she had to show by a preponderance of the evidence (1) that she was in good health prior to the accident and (2) that the accident caused her recurrent slipped disk. In this case, the trial court judge found that Mrs. McCarter was entitled to the benefit of the Housley presumption, and we believe that he properly applied the law.

In his reasons for judgment the trial court judge stated that “[t]his operation [the surgery performed by Dr. Culicchia to repair Mrs. McCarter’s slipped disk] was apparently successful and her post-operative history is uneventful .and reflective of an excellent gradual recovery without pain or complaints, such that in six weeks ... she was discharged to return to full time employment.” We do not find this factual finding to be either manifestly erroneous or clearly wrong. There is sufficient evidence in the record to support the trial judge’s findings. When Dr. Culicchia discharged Mrs. McCarter and approved her return to work, he found that she had no complaints of pain and that she could return to work without any limitations or restrictions on her activities. Therefore, it was not unreasonable for the trial court to conclude that she was in good health when she was involved in the accident with Ms. Sanchez two weeks later.

|7The trial court judge also found .that the accident was the cause of Mrs. McCarter’s recurrent slipped disk. In his reasons for judgment, the trial court judge stated that the “[defendant has done a credible job of producing medical opinions that the time lapse of medical intervention meant the cause of her problems had nothing to so [sic] with this accident, and could be just a recurrent problem.” (Emphasis in the original.) The trial court judge weighed the evidence presented by Mrs. McCarter and the evidence presented by Continental. In weighing the evidence, however, the trial court judge determined that the evidence presented by Mrs. McCarter should be given greater weight. The trial court judge found, and stated in his reasons for judgment, that “[s]he was doing well without pain and with excellent motion through and after her discharge by Dr. Culicchia” and that “[i]t was only because of the numbness after the accident that she returned to Dr. Culicchia and the substantive changes in her back became evident.” (Emphasis in the original.)

We cannot say that the trial court judge’s factual findings regarding the cause of the recurrent slipped disk were either manifestly erroneous or clearly wrong. Mrs. McCarter testified that at the moment of the impact in the accident, her legs suddenly became numb. The trial court judge obviously believed that Mrs. McCarter was a credible witness, and we cannot say that he was not entitled to rely on her testimony.

In Johnson v. Insurance Co. of North America, 454 So.2d 1113 (La.1984), the Louisiana Supreme Court stated that “[i]n evaluating evidence, the trier of fact should accept as true the uncontradicted testimony of a plaintiff witness, absent a sound reason for its rejection.” 454 So.2d at 1117. Mrs. McCarter testified that she was in good health immediately prior to the accident, that at the moment Ms. IsSanchez’s car hit hers, she felt numbness in her legs, and that thereafter she suffered from chronic, progressively worsening back pain. This testimony was uncon-tradicted, and, in fact, it was bolstered by Mr. McCarter’s testimony regarding the progression of his wife’s back pain and by Dr. Miles’ testimony regarding the medication that he prescribed to Mrs. McCar-ter for months after the accident. Therefore, we will not reverse the trial court judge’s finding that the accident caused Mrs. McCarter’s recurrent disk problem.

We find that Mrs. McCarter is entitled to the benefit of the presumption articulated in Housley. We will not reverse the trial court judge’s factual findings regarding the health of Mrs. McCarter prior to the accident or regarding the cause of Mrs. McCarter’s recurrent slipped disk.

Continental’s Assignment of Error No. 2: The trial court committed manifest error by finding, based upon Dr. Robert Miles’ testimony, that the 1997 accident was the cause of plaintiff/appellee’s recurring herniation and current pain, despite Dr. Miles’ testimony that he did not know the cause of her pain complaints.

The testimony at the trial established that Dr. Culicchia had released Mrs. McCarter from his care prior to the accident. He had found her to be without pain and able to return to her full range of activities. According to Mrs. McCarter’s uncontradicted testimony, she was free of pain after she was released from Dr. Cu-licchia’s care, and her symptoms began immediately after the accident and continuously manifested themselves afterward. Dr. Miles did not state that Mrs. McCar-ter’s recurrent disk problem was caused by the accident, but he prescribed prescription strength ibuprofen for her back pain for months, and she was in contact with him by telephone during that time period. Ultimately, Mrs. McCarter was diagnosed with a recurrent slipped disk in her back.

|9We cannot say that the trial court was manifestly erroneous or clearly wrong in determining that Mrs. McCarter suffered an injury in the accident that caused the recurrent slipped disk. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), where the Supreme Court stated that “[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.”

There was medical evidence presented to the trial court from which the trial court judge could conclude that there was a reasonable possibility that the accident caused the recurrent slipped disk. Therefore, using the applicable standard of review, we find this assignment of error to be without merit.

Continental’s Assignments of Error Nos. 3, 4, 5, and 6: In these four assignments of error, Continental asserts that the trial court committed manifest error in not relying on the testimony of Dr. Sax-man Kewalramani, Dr. Frank Culicchia, Dr. J. Lee Moss, and Dr. James Butler, all of whom testified that the accident with Ms. Sanchez’s car was not the cause of plaintiff/appellee’s reoccurring herniation.

In his reasons for judgment, the trial court judge made it clear that he did consider the medical evidence presented by Continental. He even stated that “[w]hile this Court respects the opinions of Dr. Butler and Dr. Bartholomew, they examined plaintiff only after the fact....” The trial court judge then stated that he was going to rely on the opinion of Dr. Miles, “who as the treating physician was aware of her condition the entire time.” Dr. Miles testified that it was his opinion that Mrs. McCarter was taking the medication he prescribed, because she had back pain, and the trial court judge gave this testimony great weight.

Where there are two permissible views of the evidence, the trial court’s decision to rely on one of the two views cannot be manifestly erroneous or clearly wrong. Id. In the instant case, we find that there are, in fact, two permissible views hnof the evidence. One view is that Mrs. McCarter’s recurrent slipped disk and the continuous, progressive pain that she suffered after the accident were caused by the accident. The other view is that Mrs. McCarter’s pain was simply a continuation of her previous back problems. The trial court judge chose to rely on the evidence supporting the first view. This reliance was neither manifestly erroneous nor clearly wrong, and these assignments of error are without merit.

Continental’s Assignment of Error No. 7: The damages award made to plaintiff/appellee is excessive in light of the settlement with Patterson Insurance Company, her treatment, and her reported medical bills.

In Duncan v. Kansas City Southern Railway Co., 2000-0066 (La.10/30/00), 773 So.2d 670, the Louisiána Supreme Court stated as follows:

General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” Vast discretion is accorded the trier of fact in fixing general damage awards. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.

2000-0066, p. 13, 773 So.2d at 682 (emphasis added and citations omitted). See also Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

In the instant case we do not find that the trial court judge abused his vast discretion is assessing damages. Mrs. McCarter, Mr. McCarter, and Dr. Miles all testified that Mrs. McCarter had a high tolerance for pain. Even so, she took prescription strength ibuprofen for months, and the pain worsened to the point that despite her fear of doctors and surgery, she returned to Dr. Miles for the purpose of obtaining additional pain relief. An MRI confirmed that she had a recurrent slipped | n disk, which accounted for her severe pain. We find that the amount of damages awarded is reasonable.

Mrs. McCarter’s Assignment of Error: The trial court manifestly erred when it subjected Gloria McCarter’s damage award to a credit of ten thousand dollars.

Approximately eight months after Ms. Sanchez and her insurer had been dismissed from this case, Mrs. McCarter and her husband filed a stipulation that their damages did not exceed $50,000. Mrs. McCarter is now arguing that the stipulated amount applied only to Continental and not to the total amount of damages. Therefore, Mrs. McCarter claims that the trial court judge should not have made her damage award subject to a $10,000 credit for the amount Ms. Sanchez’s insurer paid to her. Continental, however, argues that the stipulation applied to the total amount of the damages and that the credit was appropriate.

Mrs. McCarter contends that the only reason for the stipulation of damages was that she did not want a jury trial. By limiting her claim to $50,000, under the provisions of La. C.C.P. art. 1732(1), Continental could not provoke a jury trial. La. C.C.P. art. 1732 provides that a jury trial is not available in “[a] suit where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interests and costs.”

In Benoit v. Allstate Insurance Co., 2000-0424 (La.11/28/00), 773 So.2d 702, the Louisiana Supreme Court discussed article 1732 as follows:

[W]e interpret the language change in the 1989 amendment [to article 1732] as intended to focus, not on the amount of the plaintiffs overall claim arising out of the transaction or occurrence ... but on the value of the plaintiffs cause of action against the defendant or defendants who are before the court at the time the right to a jury trial is litigated.
| ^Accordingly, we conclude that the amounts received by the plaintiff in settlement or payment from persons against whom the plaintiff has a separate cause of action are not to be included in determining the amount of plaintiffs cause of action against the defendant presently before the court .... this issue will be presented in only a limited number of cases, such as in the present case ... against a UM carrier after the tortfeasor has settled or paid some amount.

2000-0424, pp 10-11, 773 So.2d at 708.

Had Mrs. McCarter’s original stipulation been the only stipulation in the record, under the Benoit case, the $10,000 credit that was given would have been in error. In the instant case, however, Mrs. McCar-ter’s attorney made the following statement on the record at the beginning of the trial:

Plaintiffs agree that damages don’t exceed fifty thousand dollars. Plaintiffs have received $9,500 from Patterson Insurance Company, therefore they get a credit for $10,000 based upon the full value of the Patterson Insurance Company policy. Is that correct?

(Emphasis added.) The trial counsel for Continental replied that that was correct, and Mrs. McCarter’s attorney made no objection.

Mrs. McCarter’s attorney expressly stipulated on the record at trial that the damages owed by Continental would be subject to a $10,000 credit. Therefore, the prior, unqualified stipulation was superceded by this clarification of Mrs. McCarter’s intent in making the stipulation.

In D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600 (La.1983), the Louisiana Supreme Court discussed stipulations as follows:

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case.

11R 444 So.2d at 601 (citations and footnotes omitted). See also, e.g., Johnson v. T & LNAS/Domino Sugar, 2003-0058, p. 5 (La.App. 4 Cir. 8/20/03), 854 So.2d 985, 987; Norman v. Norman, 99-2750, 99-2751 (La.App. 4 Cir. 7/12/00), 775 So.2d 18, 26.

We do not find that the stipulation made at the trial in this case was in derogation of the law. Therefore, we must affirm the $10,000 credit granted by the trial court judge.

CONCLUSION

We find that the trial court’s judgment was neither manifestly erroneous nor clearly wrong in his factual findings and that the trial court judge properly applied the law in this case. The judgment of the trial court is hereby affirmed.

AFFIRMED.

      . Mrs. McCarter and her husband, individually and on behalf of their minor daughters, were the original plaintiffs in this matter. Mr. McCarter ultimately waived his claims for loss of consortium.

      . The Patterson insurance policy had a policy limit of $10,000.

      . MRI is an acronym for magnetic resonance imaging, a radiological procedure that can produce a two-dimensional view of the spinal cord.


source: Caselaw Access Project

author: | THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Calithia S. THOMAS v. WESTAFF, INC.
    No. 03-1663.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.
    Rehearing Denied June 23, 2004.

      George Arthur Flournoy, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Appellant, Calithia S. Thomas.
    Robert A. Dunkelman, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Shreveport, LA, for Defendant/Appellee, Westaff, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   | THIBODEAUX, Chief Judge.

In this workers’ compensation case, the plaintiff, Calithia S. Thomas, appeals the judgment of the Workers’ Compensation Judge (WCJ) denying her supplemental earnings benefits. The WCJ found that an accident occurred, but that no disabling injury resulted from the accident. We agree with the WCJ and affirm the judgment.

I.

ISSUES

1) Was the WCJ manifestly erroneous in deciding that Ms. Thomas had a work-related accident?

2) Was the WCJ manifestly erroneous in deciding that Ms. Thomas’ accident did not result in a disabling injury?

3) Was the WCJ manifestly erroneous in dismissing Ms. Thomas’ claim for failure to authorize an EMG?

II.

FACTS

Westaff, Inc. hired Ms. Thomas on or about January 7, 2002. Westaff is a temporary employment agency which places its employees at the job sites of other employers to fill their manpower needs. Westaff placed Ms. Thomas at Alliance Compressor in Natchitoches, Louisiana. Prior to working for Alliance, Ms. Thomas worked for McDonald’s Restaurant. Ms. Thomas kept her job at McDonald’s, but reduced the number of hours she worked for McDonald’s while working for Alliance.

Ms. Thomas’ duties at Alliance included using a t-bar tool to insert plugs into a compressor. On March 11, 2002, she reported that her right hand was hurting. |%Ms. Lynne Andrews, Ms. Thomas’ supervisor at Westaff, sent her to Dr. Jack Corley, a general practitioner in Many, Louisiana on March 13, 2002. Dr. Corley diagnosed Ms. Thomas with fasciitis of the right hand, but opined that she could return to regular duty.

Ms. Thomas is petite in size: four feet, eleven inches tall, weighing 102 pounds. After the incident, Alliance requested that Westaff not send Ms. Thomas back to work because of concerns that her small size was contributing to the problem with her hand.

Ms. Thomas filed a disputed claim for compensation on April 5, 2002. Upon the recommendation of her attorney, Dr. Baer Rambach, an orthopedist in Shreveport, examined Ms. Thomas on April 18, 2002. His diagnosis was probable contusion of the right hand with possible median nerve involvement. He recommended that she get an EMG/NCV study (EMG), which was later performed on July 18, 2002. Dr. Rambach recommended that she not return to work at Alliance but stated that she could return to work at McDonald’s.

Ms. Thomas was involved in a motor vehicle accident on July 8, 2002. On August 30, 2002, Dr. David Delapp, an orthopedist and Westaffs choice of physician, examined Ms. Thomas. Her examination was normal and Dr. Delapp opined that Ms. Thomas could return to work. Ms. Thomas returned to Dr. Rambach on September 23, 2002. In a letter dated December 12, 2002, Dr. Rambach opined that Ms. Thomas was still unable to return to her job at Alliance as a result of her work-related injury.

Trial on this matter was held on July 30, 2003. The WCJ found that an accident occurred, but that no disability resulted from the accident. The WCJ dismissed Ms. Thomas’ complaint. Thereafter, she filed this appeal.

Ja?n.

LAW AND DISCUSSION

Standard of Review

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Under the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Accordingly, if the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Work-Related Accident

Louisiana Revised Statutes 23:1031 requires a workers’ compensation claimant to initially establish personal injury by accident arising out of and in the course of his employment. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Louisiana Revised Statutes 23:1021 defines an accident, for purposes of workers’ compensation:

(1) “Accident” means an unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

|4In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d 853, 855, this court discussed the claimant’s burden of proving that an accident occurred:

To recover workers’ compensation benefits, a claimant must establish by a preponderance of the evidence that an accident occurred on the job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. [Id.] at 60. The evidence is viewed in a light most favorable to the claimant. When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability.

Westaff claims that the WCJ erred in finding that an accident occurred. It argues that the WCJ found that there was no “objective evidence of disabling injury.” Therefore, the WCJ should not have found that an accident occurred because the definition of accident requires “objective findings of injury.” This argument is without merit. The WCJ found that there was no “objective findings of a disability.” His mention of “objective findings” is directed toward a finding of disability, and not toward his finding that an accident occurred. The WCJ found that an accident occurred and, after careful review of the record, we agree.

Ms. Thomas testified that, at the time of her injury, she was testing compressors. This procedure involved putting plugs into several holes. She plugged the first hole without difficulty, but as she was plugging the bottom hole, she pushed hard and felt a sharp pain travel up her right hand. Ms. Thomas testified that she felt the pain in the center part of her hand on the inside and it went all the way up to her elbow. She testified that she told her team leader, Jeff Morgan, about the accident the |Rsame day. After Ms. Andrews was informed of the accident, she recommended that Ms. Thomas see Dr. Corley. Dr. Corley diagnosed Ms. Thomas with fasciitis, which is an aggravation of the hand.

Ms. Thomas’ testimony that she had an accident was uncontradicted. “In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” Bruno, 593 So.2d at 361(quoting West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)). There is no evidence in the record to contradict that Ms. Thomas had an accident.

The WCJ’s decision as to whether the testimony is credible or not is a factual determination not to be disturbed on review unless clearly wrong or in absence of 'showing manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822 (La.App. 2 Cir.), writ denied, 536 So.2d 1200 (La.1988). The WCJ relied on the testimony of Ms. Thomas and the circumstances following the incident in determining that an accident occurred on March 11, 2002. Based on this evidence, we cannot say that the WCJ’s finding was manifestly erroneous.

Supplemental Earnings Benefits

In Palmer v. Schooner Petroleum Services, 02-397, pp. 11-12 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, 649-50, writ denied, 03-367 (La.4/21/0/03), 841 So.2d 802, this court stated the following with respect to a claimant’s entitlement to SEBs:

Integral to an employee’s claim for SEBs is his proof by a preponderance of the evidence that he is disabled due to a work-related injury that rendered him unable to earn ninety percent of his pre-injury wages. “In determining if an injured employee has made out a prima facie case of | (¡entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). La.R.S. 23:1221(3)(a).

Ms. Thomas argues that the WCJ required her to prove “objective findings of disability” and that this was legal error. However, after careful review of the record, we find that this argument is without merit. The WCJ did state that there were no “objective findings of disabling injury.” However, the WCJ did not state that “objective findings of disabling injury” were a requirement. Moreover, the WCJ made the conclusion that there was no evidence of disabling injury after reviewing all of the evidence, the medical and the lay testimony.

Dr. Corley examined Ms. Thomas a few days after the accident. He determined that she had fasciitis of the right hand and released her to return to her regular duties because his examination did not reveal any swelling or any type of finding with regard to neurological problems.

Dr. Rambach saw Ms. Thomas on April 18, 2002, several weeks after the accident and after she filed her workers’ compensation claim. Dr. Rambach noted some fullness about the right palm and tenderness in the mid-palmar area but no tenderness in the wrist itself. He also noted that the grip of her right hand was weaker than the grip of her left hand. However, he did not note any other problems and all of her test results were normal. His diagnosis was probable contusion of the right hand with possible median nerve involvement. He suggested an EMG to rule out a nerve problem. He stated that she could continue to work at McDonald’s, but could not continue the type of work she was doing at Alliance. Her EMG was done on July 18, 2002 and showed no abnormalities.

|7On August 23, 2002, Ms. Thomas saw Dr. Delapp. He diagnosed her with a right hand contusion. However, he opined that she had reached maximum medical improvement and that she was fully capable of returning to work without any restrictions.

Ms. Thomas returned to Dr. Rambach on September 23, 2002. Most of his evaluation pertained to the July 8, 2002 car accident. Although he had not seen her for several months, in a letter dated December 12, 2002, he stated that she was still unable to return to her job at Alliance as a result of her work-related injury.

The lay testimony included that of Ms. Thomas, who testified at trial that she was continuing to experience problems with her hand. She testified that she sleeps with her right arm up on a pillow and that her arm goes numb and starts hurting. Mr. David Williams, Ms. Thomas’ boyfriend, corroborated this testimony. However, the WCJ questioned whether the numbness was due to the car accident in July 2002 because Ms. Thomas testified about a problem with her whole arm and not just her hand. Mr. Charles Moran, Ms. Thomas’ manager at McDonald’s, testified that she was a good employee and that he was aware that she had hand problems since working at Alliance. He testified that he accommodated her when she complained about the pain in her hand by letting her leave early or avoid jobs that aggravated her hand. Ms. Thomas continues to work at McDonald’s and also has a second job at Wal-Mart.

In Brown v. Churchill & Thibaut, Inc., 93-1216, p. 7 (La.App. 1 Cir. 5/20/94), 637 So.2d 764, 768, the court stated:

The finding of disability within the framework of the worker’s compensation law is a legal rather than a purely medical determination. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd Cir.1991); Manson v. City of Shreveport, 577 So.2d 1167, 1169 (La.App. 2nd Cir.), writ denied, 580 So.2d 928 (La.1991). Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Moore v. Mason & Dixon Tank Lines, 540 So.2d 525, 529 (La.App. 1st Cir.), writ denied, 541 So.2d 1390 (La.1989). Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. See Landry v. Central Industries, Inc., 592 So.2d 478, 480 (La.App. 3rd Cir.1991), writ denied, 593 So.2d 381 (La.1992); Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d at 825.

From the medical and lay testimony the WCJ concluded that Ms. Thomas did not prove by a preponderance of the evidence that she was disabled due to a work-related injury that rendered her unable to earn ninety percent of her pre-injury wages. After careful review of the evidence, we cannot say that the WCJ was manifestly erroneous in his determination and, thus, affirm his judgment.

Failure to Authorize

In Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181, the supreme court recognized that failure to authorize comes under La.R.S. 23:1203(A). Under La.R.S. 23:1203(A), the employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal.” La.R.S. 23:1203(A). Thus, - a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. La. R.S. 23:1201(F)(2); Authement, 840 So.2d at 1187.

Ms. Thomas claims that the WCJ erred in dismissing her claim for failure to authorize the EMG and not awarding penalties and attorney fees. However, the record before us does not provide sufficient information to determine that Wes-taff failed to authorize the EMG.

[flThe record indicates than an EMG was recommended by Dr. Rambaeh in his reported dated April 18, 2002. Dr. Ram-bach’s report was forwarded to Westaff on May 6, 2002. The EMG was performed on July 18, 2002, a little over two months after the request. The bill from Dr. J. Eric Bicknell, who performed the EMG, was sent to Westaff on August 20, 2002 and it was paid on August 31, 2002. Although Westaff may not have authorized the EMG, the record does not contain any evidence to prove this. The only information in the record' is the argument of Ms. Thomas’ attorney that he pre-paid the bill himself. There is no evidence that he paid the bill, no letter regarding the authorization, and no testimony on the issue. The record is void of any evidence of what occurred between the request for authorization and the date when the EMG was performed.

The record available to the WCJ did not contain sufficient factual information from which to conclude that Westaff failed to authorize the EMG. “The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact.” Authement, 840 So.2d at 1188. Factual findings are subject to the manifest error or clearly wrong standard of review. Banks, 696 So.2d at 556. Therefore, we cannot say that the WCJ was manifestly erroneous in dismissing Ms. Thomas’ claim and not awarding penalties and attorney fees.

IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed to Ms. Calithia S. Thomas.

AFFIRMED.


author: I,DENNIS R. BAGNERIS SR., Judge.

text:
    John FOX v. Frederick HEISLER.
    No. 2003-CA-1964.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2004.
    Rehearing Denied June 15, 2004.

      John B. Fox, Robert W. “Doc” Booksh, Jr., John Fox & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Henry L. Klein, James H. Daigle, Jr., Klein-Daigle, LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR.)
   I,DENNIS R. BAGNERIS SR., Judge.

Plaintiffiappellant, John Fox (hereinafter “Plaintiff’), appeals the trial court’s judgment, which granted a summary judgment in favor of defendant/appellee, Frederick Heisler (hereinafter “Defendant”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This appeal involves a fee dispute between two attorneys. On June 13, 2003, Plaintiff filed a Petition for Declaratory Judgment against Defendant to determine whether an oral agreement to divide attorney fees violates Rules 1.5(e) and Rule 5.6 of the Rules of Professional Conduct. Specifically, the Plaintiffs petition alleges, in pertinent part:

3.
Plaintiff represented Christopher Mann, Sr. and Christopher Mann Jr., in a claim for personal injuries which has now settled.
4.
The attorney fee on said settlement was one-third of the gross settlement.
I 2&-
Plaintiff was an attorney-employee of defendant during 1988 to 1990.
6.
When plaintiff left defendant’s employment, he entered into a verbal agreement whereby defendant was to receive fifty percent of the attorney fee in the Mann case.
7.
Plaintiffs representation of the Manns began before his employment with defendant, continued during the period of employment, and ended well after the employment relationship terminated.
8.
Plaintiff performed all of the work in the Mann case.
9.
Defendant performed none of the work in the case, but did contribute some of the costs of litigation. Said costs were reimbursed upon settlement with one of the insurers.
10.
Plaintiff had a written attorney-client agreement with the Manns wherein he assumed responsibility for handling the aforementioned claim for damages.
11.
Defendant had no written attorney-client agreement with the Manns wherein he assumed responsibility for handling the aforementioned claim for damages.
12.
Plaintiff brings this action for declaratory judgment to determine the rights between the parties in the following respects: whether said agreement to divide the attorney fee violates Rules 1.5(e) and 5.6 of the Rules of Professional Conduct in accordance with the holdings in Bertucci v. McIntire, 693 So.2d 7 ([La.] 5 Cir.1997), and Minge v. Weeks, 629 So.2d 545 ([La.App.] 4 Cir.1993).

On July 16, 2003, Defendant filed a Motion for Summary Judgment, alleging that 50% of the $1,153,333.33 legal fees generated in the matter of Christopher Mann v. Brittany Place Associates, is due and payable to him. In [¡¡Defendant's memorandum in support of motion for Summary Judgment, he alleges that during the 1990 Labor Day weekend, Plaintiff took 211 case files which belonged to Heisler & Wysocki and as to which Heisler & Wy-socki had funded $108,940.54. Defendant alleges that among these files was the “lucrative but expensive Chris Mann case, ... which involved a young man paralyzed when he dove into a swimming pool and broke his neck.” Thereafter, Defendant alleges that on October 3, 1990, within a month of Plaintiffs departure, he and Plaintiff entered into the following verbal contract: (i) for Plaintiff to provide Defendant with a list of cases which were taken, (ii) for Plaintiff to pay 30% of dead files by November 1 to Defendant, and (iii) for Plaintiff and Defendant to split all fees 50/50.

Further, Defendant attached, as exhibits to his memorandum in support of motion for Summary Judgment, evidence that since 1990, Plaintiff has remitted the agreed 50% fee in at least 74 cases, including two prior fees collected in the Chris Mann case as partial settlements. The exhibits reflect that the first Mann settlement occurred on June 5, 1996, wherein Plaintiff recovered a fee of $333,333,00. Defendant’s ledger reflects that a June 10, 1996 credit entry is shown in the amount of $185,331.56, which is made up of 50% of the fee |4($166,666.00) and $18,665.56 owed to Defendant in costs. The second Mann partial settlement was reached in July, 2001. The exhibits reflect Plaintiffs settlement sheet showing that $49,390.83 fee as being undated and Defendant’s ledger showing that he received his agreed 50% on July 18, 2001. Further, the exhibits reflect that in 1994 and 1995, Plaintiff requested that Defendant advance funds totaling $12,381.51, a request Defendant granted.

On August 7, 2004, Plaintiff filed a Cross Motion for Summary Judgment. Specifically, the Cross Motion states as follows:

1.
Plaintiff represented Christopher Mann, Sr., on his own behalf and on behalf of his minor child, Christopher Mann, Jr., in a claim for personal injuries which recently resulted in a settlement with one insurer in the amount of $3,500,000.00.
2.
The attorney fee on said settlement was one-third of the gross settlement.
3.
Plaintiff was an attorney-employee of defendant during 1988 to 1990.
4.
In 1987, before entering defendant’s employment, plaintiff signed a contingency fee contract with Mr. Mann wherein he assumed responsibility for representation of the client.
5.
Defendant never had any written agreement with Mr. Mann wherein defendant assumed responsibility for representation of the client.
Jé-
When plaintiff left defendant’s employment, he entered into a verbal agreement whereby defendant was to receive fifty percent of the attorney fee in the Mann case.
7.
Said verbal agreement was never reduced to writing or recited in open court.
8.
Plaintiffs representation of the Manns began before his employment with defendant, continued during the period of employment, and ended well after the employment relationship terminated.
9.
Plaintiff performed all of the work in the Mann case.
10.
Defendant performed none of the work in the case, but did contribute some of the costs of litigation. Said costs were reimbursed upon settlement with one of the insurers.
11.
The verbal agreement is unenforceable under the terms of Civil Code Art. 8071 because it was never reduced to writing or recited in open court as required by that statute.
12.
The verbal agreement is unenforceable under the terms of Rules 1.5(e) and 5.6 of the Rules of Professional Conduct.

Following oral argument on the motions, the trial court rendered the judgment at issue on September 5, 2003, granting Defendant’s Motion for Summary Judgment, and denying Plaintiffs Cross-Motion for Summary Judgment. In its reasons for judgment, the trial court states in pertinent part:

Fox [Plaintiff] orally agreed with Heis-ler [Defendant] that he would continue to work on this case, refund all outstanding expenses, and share all fees generated from the case 50/50. For thirteen years Fox [Plaintiff] honored this oral agreement. Heisler [Defendant] advanced litigation costs at Fox’s [Plaintiffs] request. Attorney’s fees were split 50/50 on two settlements regarding the Mann case. A judgment had been rendered in favor on plaintiff Chris Mann, generating a $1,153,333.00 fee. Fox [Plaintiff] currently desires to dishonor this ^agreement by refusing to pay to Heisler [Defendant] fifty percent of this $1,153,333.00 fee....
The court finds that due to the thirteen year duration of adherence to the agreement by John Fox [Plaintiff] and Frederick Heisler [Defendant], the fact that Fox [Plaintiff] allowed Heisler [Defendant] to advance litigation costs in anticipation of a 50/50 split of attorney’s fees, and the previous split of fees on two separate occasions regarding the Mann case, Fox [Plaintiff] should not now be allowed to deny the existence of the agreement with respect to the $1,153,333.00 fee.

On September 29, 2003, Defendant filed a Reconventional Demand. Thereafter, the trial court granted Plaintiffs Motion and Order for Devolutive Appeal. Plaintiff now seeks review of the September 5, 2003 judgment of the trial court.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Five Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, his burden does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

DISCUSSION

We first note that this Court ordered the Plaintiff to show cause why the judgment was not “interlocutory in nature since a reconventional demand, which was filed on September 29, 2003, remained outstanding.” The Plaintiff submitted a brief arguing, “the reconventional demand was never appropriately filed, so that it was never ‘outstanding,’ and does not, in fact, remain outstanding.” As such, Plaintiff attached a certified copy of the January 5, 2004 judgment, which |sdismissed the reconventional demand for lack of subject matter. Because the dismissal of the reconventional demand was neither appealed, nor was a timely writ filed, the judgment dismissing the reconventional demand is now final and no reconventional demand remains outstanding. Accordingly, we find the September 5, 2003 judgment is now a final, appealable judgment.

On appeal, Plaintiff briefed three assignments of error, arguing that the trial court erred in: (1) failing to find that the agreement is in violation of Rule 1.5(e) of the Louisiana Rules of Professional Conduct; (2)failing to find that the agreement is in violation of Rule 5.6 of the Louisiana Rules of Professional Conduct; and (3) failing to find that the agreement was a transaction and compromise in avoidance of litigation which is not enforceable under Civil Code Art. 3071.

The primary issue raised in Plaintiffs assignment of error is whether the oral agreement between Plaintiff and Defendant regarding the division of legal fees is in derogation of the Code of Professional Responsibility.

Rule 1.5(e) of the Louisiana Rules of Professional Conduct states as follows:

A division of fee between lawyers who are not in the same firm may be made only if:
(1) The division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibilities for the representation;
(2) The client is advised of and does not object to the participation of all the lawyers involved; and
(3) The total fee is reasonable.

Rule 5.6 of the Louisiana Rules of Professional Conduct states as follows:

A lawyer shall not participate in offering or making:
|9(a) A partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b)An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.

In the case sub judice, both parties agree that when Plaintiff left Defendant’s employment, he entered into an oral agreement whereby Defendant was to receive fifty percent of the attorney fee in the Mann case. Further, the parties agree that the attorney fee has now been paid in full, with two of the three settlement checks being split 50/50. Accordingly, this is neither a suit for recovery of attorney’s fees nor a suit over the terms of the settlement agreement. Rather, Plaintiff merely argues that the oral agreement to share in the fee fund is unenforceable and against public policy because the agreement does not comply with the Code of Professional Responsibility.

In Scurto v. Siegrist, the retained attorney had entered into an oral agreement with another attorney to divide the legal fee. 598 So.2d 507 (La.App. 1 Cir. 4/10/92), writ denied, 600 So.2d 683 (La.1992). The retained attorney who sought to recover his share of the contingency fee, Scurto, was obligated by the agreement to manage the client, as well as to advance costs. Scurto, 598 So.2d at 510. The First Circuit Court held that “the suit by an attorney to recover pursuant to that agreement is a suit to recover for breach of the agreement to share in the fund resulting from payment of the fee. It is not a suit for recovery of attorney’s fees.” Id. citing Duer and Taylor v. Blanchard, Walker, O’Quin and Roberts, 354 So.2d 192 (La.1978). Thus, the court in Scurto found that the attorneys were in a Duer situation, that is, two attorneys not of the same firm jointly representing a client. See Duer, 354 So.2d at 194-195. The First Circuit Court held that, because the | ^retained attorney had associated, employed, or procured the employment of the other attorney to assist him in handling a case involving a contingency fee, the agreement regarding the division of the contingency fee was a joint venture. Scurto, 598 So.2d at 510. Further, the First Circuit Court indicated that the Rules of Professional Conduct do not prohibit the enforcement of such an agreement and would not require the apportioning of the fee on a quantum meruit basis when the attorneys are in a Duer situation. Id. Accordingly, the agreement between the attorneys to divide the fee was held to be valid and enforceable.

We find the facts in this case similar to the facts in Scurto. Defendant in this case advanced costs to Plaintiff and he kept records concerning the case. Without Defendant’s involvement in the Mann case, Plaintiff might have gone bankrupt and could no longer represent Client. Further, its worth reiterating the fact that Plaintiff adhered to the oral contract he had with Defendant for thirteen years, and that the Plaintiff and Defendant had split fees on two separate occasions regarding the Mann case.

Additionally, while we agree with Plaintiff that the cases on which he relies are persuasive in establishing public policy may well be served by finding oral arguments unenforceable under certain conditions based on prospective uncertainties, the thirteen-year history of events which are factually cataloged in the record do not establish contravention of any public policy. Specifically, the client’s choice is clearly not limited by the agreement since the client had already hired Plaintiff before Plaintiff began working for Defendant’s firm. As such, Plaintiff was already bound to work for client, and the fee-sharing agreement had no affect on the client’s choice of legal representation. Further, the parties do not dispute any terms of the contract, which militates against a finding that the oral Inagreement, as a transaction and compromise, should be in writing. Accordingly, under these circumstances, we hold that the oral contract was valid and should be enforced as agree upon.

For these reasons, we affirm the trial court’s judgment, which granted summary judgment in favor of Defendant, Frederick Heisler.

AFFIRMED.

      . Attached to Defendant’s Motion for Summary Judgment was the following contract, which the hired associates agreed to in writing:
      All files, including your own cases, will belong to Frederick P. Heisler and James A. Wysocki, jointly; in the event that you leave this office, suitable arrangements concerning fees, ledger balances and related matters would have to be worked out before any files could be removed from the office and the specific permission, in writing, of Frederick P. Heisler and James A. Wysocki must be obtained before any files are removed.

      . In that instance, Plaintiff kept $186,507.38 for himself and an additional $70,000 for a ■ "litigation escrow.”

      . The Reconventional Demand requested Plaintiff to disclose any and all settlements and/or judgments connected in any and all of the files that were removed from Defendant's firm in 1990, and requesting that Plaintiff turn over to Defendant any and all funds to which he is entitled to from said files.

      . A Motion to Supplement the Record has been filed by Plaintiff to have this Judgment of January 5, 2003, and the Notice of Signing of same filed with this Court.


author: I «SUSAN M. CHEHARDY, Judge.

text:
    Michael TRAHAN and Iris Trahan v. John MILLIET and Darlene Milliet.
    No. 04-CA-59.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Denied June 29, 2004.
    Jeffrey W. Bennett, Metairie, LA, for Appellees, Michael and Iris Trahan.
    Daniel T. McKearan, Harahan, LA, for Appellants, John and Darlene Milliet.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   I «SUSAN M. CHEHARDY, Judge.

John and Darlene Milliet (hereinafter “the Milliets”) appeal from a default judgment granted in favor of Michael and Iris Trahan (“the Trahans”). For the following reasons, we affirm.

On May 9, 2002, the Trahans filed a Petition for Damages and Injunctive Relief against their next-door neighbors, the Mil-liets, alleging that the Milliets had deprived them of peaceful enjoyment of their property. Specifically, the Trahans alleged that the Milliets had attached a wooden structure to the Trahans’ fence that, according to a recent survey, encroached on the Trahans’ property. Further, the Trahans allege that the Milliets’ dogs, which are kept in said structure, were specifically taught and encouraged by Mr. Milliet to bark at the Trahans and their visitors and generally allowed to bark “at all hours of the day and night.” Furthermore, the Trahans allege that the Mil-liets “routinely and systematically” deposit their dogs’ urine and feces onto the Tra-hans’ property by hosing the waste from inside of the structure, which is attached to the Trahans’ fence, into the Trahans’ yard.

|aThe Trahans also allege that the Mil-liets throw “wine glasses, sticks, rocks and cigarettes” among other things into the Trahans’ yard. Additionally, the Trahans allege that the Milliets trespassed on their property by parking their vehicles in and riding a motorcycle up and down the Tra-hans’ driveway. The Trahans also allege that the Milliets and their guests often park in a way that blocks ingress and/or egress from the Trahans’ driveway. Finally, the Trahans also allege that Mr. Milliet has, while riding his motorcycle, chased their 12-year-old son who was riding his bicycle and stared at him in a “mean, intentionally intimidating” fashion.

The Jefferson Parish Sheriff was unable after four attempts to serve the Milliets. Accordingly, the Trahans moved for appointment of a private process server, pursuant to La. C.C.P. art. 1293. In their motion, the Trahans asked the court to appoint “a representative of Legal Wings, Inc.” as the private process server. Further, the Trahans averred that the representative was “of full age of majority and a resident of the State of Louisiana.” On June 7, 2002, the trial judge appointed “a representative of Legal Wings, Inc.” to serve the petition on the Milliets. The trial court record indicates that, on July 5, 2002, Stephen Mentz of Legal Wings, Inc. served the citation and petition on Darlene Milliet at the Milliets’ residence.

On July 24, 2002, the Trahans moved for preliminary default. On July 31, 2002, the trial judge confirmed the default judgment. On August 6, 2002, the trial judge signed the written judgment in favor of the Trahans ordering, among other things, removal of the wooden structure, granting injunctive relief, and $10,000.00 in damages.

On May 21, 2003, the Milliets filed a Petition to Annul Judgment and for In-junctive Relief. The Milliets specifically alleged that the August 6, 2002 default judgment was invalid and should be annulled because service of process was not Lproperly effected. In the petition, they alleged that they had no knowledge of the initial proceedings until they were served with notice of a “Judgment Debtor Rule” in December of 2002. Further, they alleged that service of process was defective because the trial judge, when he appointed “a representative of Legal Wings, Inc.,” failed to appoint a specific person as required by La. C.C.P. art. 1293.

On June 30, 2003, the Milliets’ Petition to Annul Judgment was tried. At trial, Mi*, and Mrs. Milliet testified that neither of them had been served with the Citation and original Petition for Damages and In-junctive Relief.

Mr. Mentz testified, however, that, on his third attempt to serve process on the couple, a woman answered the door at 4712 Craig Avenue. She was holding a brown and white dog, which “appeared to be a pit bull,” by the collar. He stated that, “knowing that it was going to be a difficult service to make,” he had already placed two copies of the citation and petition in a packet to enable himself to speedily effect service. He testified that, when the woman identified herself as Darlene, he threw the packet over her right shoulder and “walked away as quickly as possible to make sure the dog wasn’t coming out [sic] the house.” At trial, he identified defendant, Darlene Milliet, as the woman that he had served. He also testified that he saw a black truck and Lincoln automobile parked at the residence.

On cross-examination, Mrs. Milliet admitted that she owned at least one dog in July of 2002. Further, she also admitted that, in July of 2002, she drove a Lincoln Townear and her husband drove a black truck. After hearing the testimony, the trial judge took the matter under advisement.

On August 15, 2003, the trial judge issued a written judgment denying the Mil-liets’ Petition to Annul Judgment, finding that service was proper. The Milliets’, thereafter, moved for a new trial, which was denied after a hearing on October 1, 2003.

|RThe Milliets appeal the denial of their Petition to Annul as well as the denial of their Motion for New Trial. On appeal, the Milliets allege two assignments of error: first, the trial judge erred in failing to appoint a specific person as special process server, and, second, the trial judge erred in confirming the default judgment where the plaintiffs failed to prove service of process “like any other fact in the case” as required by La. C.C.P. art. 1293.

Regarding the first assignment of error, the Milliets, citing Guaranty Energy Corp. v. Carr, 490 So.2d 1117 (La.App. 5 Cir.1986); Brickman v. Screven County Hosp. Authority, 599 So.2d 427 (La.App. 4 Cir.1992); and Strain v. Premier Video, Inc., 99-0181 (La.App. 1 Cir. 3/31/00), 764 So.2d 983, contend that the statutory language prohibits appointment of an unnamed “representative” since an appointed process server cannot delegate the appointment to another person. While we agree that the current jurisprudence supports the conclusion that a special process server, appointed by the court pursuant to La. C.C.P. art. 1293, may not delegate authority to another, we find that inapplicable to this case. Here, the trial judge appointed a representative of a corporation. According to the record, Mr. Mentz, who served Mrs. Milliet, was one of the owners of the corporation as well as a representative of that corporation. There was no delegation of authority in this case. Accordingly, we find no error in the trial court’s finding that service of process was proper in this case.

Next, the Milliets argue that the trial judge erred in confirming the default judgment where the plaintiffs failed to prove service of process “like any other fact in the case” as required by La. C.C.P. art. 1293. Our review of the record indicates that the return of service was not in the record when it was lodged on appeal. We ordered supplementation of the record. The record now reflects “domiciliary service” on Darlene Milliet on July 5, 2002 by Stephen Mentz of Legal Wings, Une. The service return was in the trial court record on the date of the hearing on the confirmation of default. We are thus satisfied that the Trahans adequately complied with the statutory requirements and a valid default judgment was rendered on August 6, 2002.

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by the Milliets.

AFFIRMED.

      . Our review of the record indicates that the return of service was not in the record when it was lodged on appeal. We ordered supplementation of the record with the service return, which reflects "domiciliary service” on Darlene Milliet on July 5, 2002 by Stephen Mentz of Legal Wings, Inc. Further, the record contains the affidavit of Stephen Mentz stating that he personally served Mrs. Milliet at her home by handing her two copies of the Citation and Petition for Damages but mistakenly indicated on the service return that he had effected "domiciliary service” on Mrs. Milliet. Moreover, Mr. Mentz later testified that he personally served Mrs. Milliet and effected domiciliary service on Mr. Milliet.


author: JjLEON A. CANNIZZARO, JR., Judge. hBAGNERIS, J.,

text:
    Mark D. JOHNSON and Computer Networking Specialists, Inc. v. John T. CULOTTA, Kurt D. Engelhardt, Joseph L. Spillman, III, William R. Seay, Jr., and Hailey, McNamara, Hall, Larmann & Papale, L.L.P.
    No. 2003-CA-1355.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2004.
    Rehearing Denied June 24, 2004.

      Robert H. Matthews and Pauline M. Warriner, Hearin & Warriner, LLC, New Orleans, LA, for Plaintiffs/Appellants, Mark Johnson and Computer Networking Specialists, Inc.
    William E. Wright, Jr., Deutsch, Kerri-gan & Stiles, L.L.P. and John R. Martzell, Martzell & Bickford P.C., New Orleans, LA, for Defendants/Appellees, Hailey, McNamara, Hall, Larman & Papale L.L.P., John T. Culotta, Kurt D. Engel-hardt, and William R. Seay, Jr.
    John E. Galloway, J. Michael Daly, Jr., Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee, John T. Culotta.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

This case involves an appeal from a summary judgment dismissing the claims of the plaintiffs, Mark D. Johnson and Computer Networking Specialists, Inc., against the defendants, John T. Culotta, Kurt D. Englehardt, Joseph L. Spillman, III, William R. Seay, Jr., and Hailey, McNamara, Hall, Larmann & Papale, L.L.P. The plaintiffs are appealing the dismissal of their claims.

STATEMENT OP FACTS AND PROCEDURAL HISTORY

Computer Networking Specialists, a company in the business of selling, servicing, and offering support for computer networking hardware and software, and Mr. Johnson, the company’s owner, sued the defendants for legal malpractice. Three claims of malpractice, which are discussed below, have been asserted.

Loan Transaction

Mr. Sam Culotta was originally hired to work for the company as a sales representative, but he was soon promoted to a position in which he managed the company. According to Mr. Johnson, shortly after Mr. Sam Culotta was hired, he said that the company now had “in house counsel”, because his brother, Mr. John “Jack” Culotta, was an attorney and was available for consultation. It was Mr. Johnson’s understanding that Mr. Sam Culotta, in connection with his management |gof the company, consulted with his brother on behalf of the company whenever legal advice was needed. Mr. Johnson specifically claimed that Mr. Jack Culotta advised the company and conducted negotiations on its behalf in connection with a joint venture the company sought with another company.

Mr. Jack Culotta obtained a loan from Mr. Johnson during the time that Mr. Johnson alleged that Mr. Jack Culotta was representing the company. The loan was unsecured and was originally non-interest bearing. Mr. Jack Culotta, however, con-fected a promissory note that required interest to accrue for all but the first three months of the loan, although the interest rate was below the market rate. Because Mr. Johnson alleged that Mr. Jack Culotta was representing him and his company at the time the loan was made, Mr. Johnson also asserted that in accepting the loan, Mr. Jack Culotta violated Rule 1.8 of the Rules of Professional Conduct, La. R.S. 37, Ch. 4, Art. 16, Rule 1.8, which prohibits a lawyer from acquiring a pecuniary interest adverse to a client absent certain safeguards, which were not met in this case.

In response to Mr. Johnson’s claim that a loan was accepted by him in violation of Rule 1.8, Mr. Jack Culotta contended that he was not representing Mr. Johnson or his company when the loan was made. Mr. Culotta stated in deposition testimony that his representation of Mr. Johnson and the company began when Mr. Johnson and Mr. Sam Culotta asked him to represent them and the company in a lawsuit brought by Microsoft Corporation against Mr. Johnson, the company, and Mr. Sam Culotta. It is undisputed, however, that the loan was not repaid in full until after Mr. Jack Culotta began representing Mr. Johnson.

Although Mr. Jack Culotta tendered a check to Mr. Johnson in the amount of the below market rate interest stipulated in the promissory note, Mr. Johnson | ^refused the cheek. He has sued for interest on the note but has failed to specify the amount of interest that he seeks.

Microsoft Litigation

The second allegation of legal malpractice concerned the representation of Mr. Johnson, the company, and Mr. Sam Cu-lotta by Mr. Jack Culotta, Mr. Engle-hardt, Mr. Spillman, Mr. Seay, and the law firm of Hailey, McNamara, Hall, Lar-mann & Papale, L.L.P. in connection with the lawsuit filed by Microsoft. The individual defendants in the instant case were attorneys at the Hailey McNamara law firm who represented Mr. Johnson, the company, and Mr. Sam Culotta in the Microsoft litigation. In that litigation, Microsoft alleged that Mr. Johnson, the company, and Mr. Sam Culotta had infringed Microsoft’s copyrights and had profited from the infringement.

In the instant case, Mr. Johnson and the company claimed that Hailey McNamara and the named individuals who were attorneys with the firm committed legal malpractice by improperly handling the Microsoft litigation. The depositions of two lawyers, each of whom was testifying on behalf of one of the sides in this case as a legal expert, contained very different assessments of the handling of the Microsoft litigation. One of the lawyers testified that the Microsoft litigation was properly handled, and the other lawyer testified that it was not.

Additionally, Mr. Johnson and the company alleged that the third party demands that were made against the vendors, who sold the company the software that allegedly infringed Microsoft’s copyright, were settled without the approval of |4Mr. Johnson and the company. They claim that Mr. Jack Culotta settled the claims against the third party defendants without authorization on the basis of two telephone calls, one to Mr. Sam Culotta, who allegedly did not have the authority to authorize the settlement, and another to a representative of the company’s insurer. Mr. Johnson and the company contended that they were ultimately forced to sign settlement agreements that they had never authorized. They based their contention on the fact that the magistrate judge before whom the settlement conference in the Microsoft case was held took the position that he had heard Mr. Jack Culotta obtain authorization by telephone to settle the third party claims.

Conflict of Interest

Mr. Johnson and the company also claimed that they incurred damages, because when Hailey McNamara and its attorneys were representing Mr. Johnson and the company, they were also representing Mr. Sam Culotta in connection with a transaction in which their interests and Mr. Sam Culotta’s interests were in conflict. Specifically, Mr. Johnson and the company alleged that Mr. Englehardt gave advice to Mr. Sam Culotta in connection ■with a dispute between Mr. Sam Culotta and Mr. Johnson regarding a computer project for a school.

Allegedly, Mr. Johnson and Mr. Sam Culotta disagreed regarding how to allocate the profits from the project, and Mr. Englehardt drafted a provision pursuant to which Mr. Sam Culotta would receive all of the profits. The day after the language was drafted by Mr. Englehardt and transmitted to Mr. Sam Culotta by ejlectronicR mail, Mr. Sam Culotta left the company and started his own competing business. Shortly after he started his new business, Mr. Sam Culotta hired two key employees of the company to work for his new business, and several of the company’s customers started doing business with the new business rather than the company.

Mr. Johnson and the company alleged that by representing the interests of Mr. Sam Culotta when those interests were in conflict with the interests of Mr. Johnson and the company, Hailey McNamara and the Hailey McNamara lawyers violated Rule 1.7 of the Rules of Professional Conduct, La. R.S. 37, Ch. 4, Art. 16, Rule 1.7. That rule prohibits a lawyer from representing a client if the representation will be directly adverse to another client unless certain safeguards are met. In the instant case, those safeguards were not met. Mr. Johnson and the company alleged that they suffered damages, because there was a direct conflict between their interests and the interests of Mr. Sam Culotta.

Summary Judgment

After a hearing on the motion for summary judgment brought by Hailey McNamara and the lawyers who were sued individually, the trial court granted the summary judgment. The claims of Mr. Johnson and the company were dismissed. This appeal followed.

STANDARD OF REVIEW

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991).6 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 the mover is entitled to judgment as a matter of law.” La. C.C.P. 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.... ” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

99-2181, 99-2257, p. 7, 755 So.2d at 230-31. See also Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

In Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, the Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” 98-2821, p. 6, 744 So.2d at 610. The Supreme Court also stated that “[fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. Additionally, this Court has held that “courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence” in determining what constitutes a genuine issue of material fact. Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, 830.

DISCUSSION

Legal Malpractice

In Spellman v. Bizal, 99-0723, p. 6 (La.App. 4 Cir. 3/1/00), 755 So.2d 1013, 1017, this Court stated that “[t]o prove a claim for legal malpractice, a |7plaintiff must prove: (1) there was an attorney-client relationship; (2) the attorney was negligent; and (3) that negligence caused plaintiff some loss.” The plaintiff must also show that the attorney failed to exercise the degree of care, skill and diligence which is exercised by prudent practicing attorneys in the locality where the attorney practices law. Id. The attorney is not, however, required to exercise perfect judgment in every situation. Id. Once the plaintiff establishes that the attorney has failed to exercise the proper care, skill, and diligence, the burden of proof shifts to the attorney to prove that the client could not have succeeded on the claim in connection with which the allegation of malpractice was asserted. Id. See also Johnson v. Tschirn, 99-0625, p. 4 (La.App. 4 Cir. 9/29/99), 746 So.2d 629, 632.

In Schlesinger v. Herzog, 95-1127, 95-1128 (La.App. 4 Cir. 4/3/96), 672 So.2d 701, this Court stated the following with respect to whether an ethical duty is tantamount to a legal duty in legal malpractice claims:

The defendants complain that the trial judge transformed an ethical issue into a legal duty. But on the next page of their brief defendants argue that the Louisiana State Bar Association’s Rules of Professional Conduct “have the force and effect of substantive law.” We agree. Thus, the ethical issue was transformed into a legal duty.

672 So.2d at 707 (emphasis added).

In the Schlesinger case, this Court also discussed conflicts of interest in the context of a legal malpractice action. This Court stated:

It is customary to expect one’s counsel to aggressively assert one’s rights in preference to those of another party. However, where an attorney discloses a conflict he does so to let his client know that this may not be a realistic expectation under the circumstances because the attorney may lose his objectivity without intending to do so and without even realizing it.... Therefore, a disclosure of a Isconflict is a warning that the attorney may not pursue his client’s interests with the singleness of purpose normally expected.... A wavier by the client of objection to a conflict is not a waiver of that client’s right to complain about the intentional infliction of harm by the attorney or the “obvious negligence” of the attorney to prevent such harm.

672 So.2d at 709-10

Trial Court’s Findings

In his reasons for judgment the trial court judge based his dismissal of the claims of Mr. Johnson and the company on the following findings:

1. Mr. Johnson and the company failed to establish the existence of an attorney-client relationship with Mr. Jack Culotta at the time Mr. Johnson made a loan to him;
2. Mr. Johnson’s execution of a receipt and release in connection with the third party claims in the Microsoft litigation eliminated any potential malpractice claim in connection with the unauthorized settlement of those claims by Mr. Jack Culotta;
3. there was a lack of evidence to support Mr. Johnson’s claim that any Hailey McNamara attorney had knowledge of Mr. Sam Culotta’s intention to leave the company; and
4.Mr. Johnson and the company failed to substantiate their allegations of legal malpractice.

Analysis of the Trial Court’s Findings

We disagree in part with the trial court’s findings. We find that there are several material issues of fact in this case that must be decided by a trier of fact.

| ¡¡Failure to Establish that an Attorney-Client Relationship Existed at the Time of the Loan

The trial court judge concluded that Mr. Johnson failed to establish that an attorney-client relationship existed between him and Mr. Jack Culotta at the time Mr. Johnson made the loan to Mr. Jack Culotta. Mr. Johnson claimed that when Mr. Sam Culotta was hired, he represented to Mr. Johnson that his brother, Mr. Jack Culotta, would be available to advise the company as its “in house counsel”. Mr. Johnson further claimed that he was led to believe that Mr. Jack Culotta advised Mr. Sam Culotta, the company’s manager who ran the day-to-day operations of the company, regarding legal issues affecting the company. Also, Mr. Johnson claimed that Mr. Jack Culotta did, in fact, advise the company in connection with a joint venture transaction with another company and in connection with an employment contract with one of the company’s employees. He also alleged that as compensation for his legal services, Mr. Jack Culotta received computer services provided by Mr. Sam Culotta. Mr. Johnson also testified in a deposition that the reason he offered to make an interest free loan to Mr. Jack Culotta was in consideration of the legal services he had provided.

Mr. Jack Culotta denied Mr. Johnson’s claims regarding when the legal representation of Mr. Johnson and his company began. Mr. Jack Culotta testified in his deposition that he did not represent either Mr. Johnson or the company until after Microsoft filed suit against them and his brother, which was approximately seven months after Mr. Johnson made the loan to Mr. Jack Culotta.

We find that even though there may be some uncertainty regarding exactly when Mr. Jack Culotta began representing Mr. Johnson and his company, the trial court correctly granted summary judgment against Mr. Johnson and the company |1flon this issue. Mr. Jack Culotta tendered $1,221.94 in interest on the loan to Mr. Johnson, and he refused to accept it. Mr. Johnson testified as follows in his deposition:

Q. You’re currently demanding interest; is that correct?
A. Correct.
Q. How much is owed in interest?
A. I haven’t put a number on it yet.
Q. Let me show you a letter dated October 12, 2001.... This is directed to Mr. Matthews, your attorney.
Were you made aware of the fact that there was a tender of $1,221.94 in interest on the promissory note?
A. Yes.
Q. And the check was rejected; is that correct?
A. That’s correct.
Q. Why is that?
A. Because it wasn’t — I wasn’t going to accept it.
Q. Why not?
A. It wasn’t enough.
Q. How much is enough.
A. I haven’t determined that yet.
Q. Well, this was a tender based upon five percent interest.
If there was ten percent interest tended [sic] to you, would you accept that?
A. No.
Q. And in this letter, Mr. Galloway [an attorney representing Mr. Culotta]in the last sentence says, “Once again, I ask that you provide me with a dollar amount that will resolve the interest due, if any, on the $10,000 loan.”
Do you intend to respond to Mr. Galloway?
A. At this particular time, I don’t know.
Q. Why is that?
A. I haven’t made up my mind of an amount.

Mr. Culotta has not only tendered interest on the loan, he has also asked Mr. Johnson to tell him how much interest he wants him to pay. Mr. Johnson has refused to tell him. In Austin v. Abney Mills, Inc., 2001-1598, p. 7 (La.9/4/02), 824 So.2d 1137, 1160, the Louisiana Supreme Court stated that “the party still has to have some cognizable, as opposed to speculative, damages before his cause of action accrues.” Mr. Johnson’s damages are purely speculative, because he has refused to determine what his damages are. Therefore, the trial court properly granted summary judgment with respect to the issue of the loan.

Unauthorized Settlement of the Third Party Claims

The trial court judge found that Mr. Johnson and the company were precluded from asserting a claim of legal malpractice against Hailey McNamara and Mr. Jack Culotta, because Mr. Johnson ultimately executed the settlement agreement that Mr. Johnson asserted he did not authorize. There is clearly a factual dispute regarding whether or not Mr. Jack Culotta had the authority to agree to settle the third party claims. However, we find that the execution of the settlement agreement by Mr. Johnson estops him from asserting a malpractice claim based on Mr. Jack Culotta’s settlement of the third party claims allegedly without proper authorization.

Mr. Johnson asserted that he felt forced to execute the settlement agreement, because the magistrate judge, before whom the settlement was negotiated, would have testified in a legal action to enforce the settlement that he had heard Mr. Jack Culotta receive authorization to settle the third party claims over the telephone. Mr. Johnson was certainly not precluded from presenting evidence in any proceeding to enforce the settlement agreement that Mr. Jack Culotta did not have authority to settle the third party claims.

La. C.C. art. 3078 provides in relevant part that “[t]ransactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion.” In Misumca v. Metropolitan Life Ins. Co., 199 La. 868, 871, 7 So.2d 167, 171 (1942), the Louisiana Supreme Court discussed a compromise agreement as follows:

The foregoing contract is free from ambiguity and speaks for itself.... [T]he plaintiff was faced with the choice of either litigating a suit ... or entering into an agreement whereby, in making certain concessions, he would avoid litigation .... He chose the latter course and cannot now retract from his solemn obligation, in the absence of fraud, duress or error of fact. He was represented by competent counsel and his action in signing the agreement was brought about after due deliberation on his part.”

Because Mr. Johnson failed to present his arguments regarding the lack of authorization for the settlement agreement in the Microsoft proceeding, and, instead, acquiesced in the settlement that had been negotiated, he is now precluded from litigating the issue of the authorization of the settlement agreement. Mr. Johnson and the company ratified the agreement that was allegedly negotiated without authorization when they executed, and thereby bound themselves to, the settlement agreement.

Knowledge of Sam Culotta’s Dispute with the Company

The trial court judge found that there was a lack of evidence to support Mr. Johnson’s claim that the Hailey McNamara attorneys had knowledge of Mr. Sam Culotta’s intention to leave the company. We find that although the Hai-ley McNamara attorneys may not have known that Mr. Sam Culotta intended to leave the company, there may still have been a conflict of interest in Hailey McNamara’s representation of both Mr. Johnson and Mr. Sam Culotta, because Mr. Johnson asserted that at least some of the attorneys at Hailey McNamara had knowledge of disagreements between Mr. Johnson and Mr. Sam Culotta. In support of his assertion, Mr. Johnson claimed that the Hailey McNamara attorneys had agreed not 11gto take sides in any disputes between Mr. Johnson and Mr. Culotta. Also, Mr. Johnson testified in his deposition that Mr. Seay told him that rumors about a disagreement between Mr. Johnson and Mr. Sam Culotta had been “floating around the office for a while.” Additionally, Mr. En-glehardt testified in his deposition that “they [Mr. Johnson and Mr. Sam Culotta] were having a disagreement and someone had told me, I think it was Mr. Seay told me that there was a disagreement.”

Mr. Englehardt, who drafted a contract provision pursuant to which Mr. Sam Cu-lotta was to receive all of the profit from a computer project to be done for a school, also testified in his deposition that he originally told Mr. Sam Culotta that because the project was being done on behalf of the company, Mr. Sam Culotta would not be entitled to receive all of the profits. He further testified that he drafted the provision only after he had been told by Mr. Sam Culotta that Mr. Johnson had agreed that Mr. Sam Culotta would receive all of the profits. There is, however, no evidence that Mr. Englehardt consulted Mr. Johnson to verify what Mr. Sam Culotta had told him.

We find that there is a material issue of fact regarding the potential conflict of interest Hailey McNamara and its attorneys had in representing both Mr. Johnson and Mr. Culotta. Rule 1.7(b) of the Rules of Professional Conduct, La. R.S. 37, Ch. 4, Art. 16 provides that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client” unless two conditions are met. (Emphasis added.) First, the lawyer must reasonably believe that the representation will not be adversely affected. Second, the client must consent to the representation after being advised regarding the conflict. Rule 1.7(b) expressly states that [wjhen | ^representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”

In the instant case, we find that there is a genuine material issue of fact as to whether the level of knowledge that the Hailey McNamara attorneys had regarding the disagreements between Mr. Sam Culotta and Mr. Johnson was sufficient to trigger the provisions of Rule 1.7(b). If so, the attorneys should have followed the mandates of that rule, and they did not do so. Because there is a genuine issue of material fact regarding the attorneys’ knowledge of the conflicting interests among Mr. Johnson, Mr. Sam Culotta, and the company, the trial court should not have granted the defendants’ motion for summary judgment on that issue.

Failure to Substantiate Claims of Legal Malpractice

Mr. Johnson and the company have alleged that Hailey McNamara’s attorneys failed to meet the standards of care for attorneys practicing law in the community in the litigation of the Microsoft case. In Bonnette v. Conoco, Inc., 2001-2767, p. 33 (La.1/28/03), 837 So.2d 1219, 1240, the Louisiana Supreme Court stated that “[t]he principle that questions of credibility are for the trier of fact to resolve applies to the evaluation of expert testimony....” Because the record contains deposition testimony of two legal experts that is clearly conflicting, there is a material issue of fact regarding whether or not the Hai-ley McNamara attorneys committed legal malpractice. Therefore, summary judgment was not appropriate regarding this issue.

CONCLUSION

We find that Mr. Johnson and the company must be given the opportunity to prove certain of their allegations in a trial of this case. A trier of fact should 11fidetermine the credibility and validity of (1) the claims and assertions that have been made with respect to the conflict of interest created by any knowledge that the Hailey McNamara attorneys might have had regarding any disputes among Mr. Sam Culotta, Mr. Johnson, and the company and (2) the legal malpractice claims against Hailey McNamara and its attorneys in connection with the Microsoft litigation other than the claims regarding the negotiation of the third party settlement agreement and the loan transaction. The trier of fact should decide from the evidence presented at trial whether a preponderance of the evidence supports the allegations that have been made by Mr. Johnson and the company.

Accordingly, we affirm the judgment of the trial court granting summary judgment in this case in connection with the loan transaction and the settlement agreement with the third party defendants in the Microsoft litigation, and we reverse the judgment of the trial court granting summary judgment on the other claims presented by Mr. Johnson and the company. We hereby remand this case to the trial court for further proceedings in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

hBAGNERIS, J.,

dissents with reasons.

I respectfully dissent. Plaintiffs failed to establish any connection between the alleged breaches of duty and the claims asserted in the petition. As the trial court found, plaintiffs failed to demonstrate with reasonable certainty any damages. The trial court did not err. I would affirm the granting of the summary judgment.

      . We note that Mr. Englehardt is now a federal district court judge. Because this case involves allegations of acts that occurred pri- or to Judge Englehardt’s appointment to the federal bench, we will refer to him in this opinion as Mr. Englehardt. We intend no disrespect to Judge Englehardt by such reference.

      . We note that when the settlement agreements were signed in connection with the third party claims, Mr. Johnson and the company were no longer represented by Hailey McNamara or any of its attorneys. Mr. Johnson and the company signed the settlement agreements on the advice of their new counsel, who further advised that Mr. Johnson and the company could then sue Mr. Jack Culotta for legal malpractice, because his actions put Mr. Johnson and the company in the position of being forced to sign the settlement agreements.