author: I, PATRICIA RIVET MURRAY, Judge.

text:
    Patrick D. BREEDEN v. Joy Level Wife of/and George A. CELLA III.
    No. 2002-CA-0972.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2002.
    Rehearing Denied Jan. 7, 2003.

      Rodney J. Madere, Metairie, LA, and Patrick D. Breeden, New Orleans, LA, for Plaintiff/Appellant.
    Leonard L. Levenson, Pamela M. Wiza, New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III).
   I, PATRICIA RIVET MURRAY, Judge.

This is a suit by an attorney against a former client to recover attorney’s fees on the basis of two notes, a contract, or quantum meruit. From a judgment in favor of the defendants, Joy Levet wife of/and Geoge A. Celia, III, the plaintiff, Patrick D. Breeden, appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This ease arises out of an attorney-client relationship that spanned a decade. The relationship began in late 1987 when Mr. Celia engaged Mr. Breeden’s services, and ended in May 1998 when (due to the conflict of interest created by filing this suit) Mr. Breeden withdrew as counsel of record in the remaining two cases. According to Mr. Breeden, all the cases on which he was retained involved financial institutions that were suing Mr. Celia by executory or ordinary process on a mortgage that Mr. Celia had given to them to secure a loan or on the note to recover the amount loaned plus interest, attorney fees and costs or on both.

|2Throughout the relationship, one monthly bill was sent for all the matters on which Mr. Breeden represented Mr. Celia. Until 1993, Mr. Breeden’s billing system was not computerized, and his bills included little, if any, description of what services were provided. Indeed, the early bills generically referenced “all cases.” Although his subsequent bills generally provided descriptions of services performed, many of them provided no indication regarding the particular case for which such services were rendered.

The largest matter on which Mr. Bree-den represented Mr. Celia involved St. Bernard Savings and Loan Association (the “St. Bernard matter”). That admittedly complex lender-liability litigation was commenced in state court, but transferred to federal court when the Resolution Trust Corporation (“RTC”) took over St. Bernard Savings and Loan Association. In that matter, two settlements were ultimately reached in August 1994; one was with the RTC, and the other was with two of the bank’s insurance companies.

Confined to the St. Bernard matter, Mr. Breeden purportedly had Mr. Celia sign a contingency fee contract on May 5, 1988, which included the following pertinent provision:

a. Thirty-three and one-third (33 )é%) percent of any amount recovered or saved before suit is filed, or forty (40%) percent of any amount recovered or saved after suit is filed, or fifty (50%) percent of any amount recovered or saved if there is an appeal of any issue due as of the date of the notice of appeal or motion-order of appeal is filed, or;
b. The rate of $140.00 dollars per hour, plus any increase in the Consumer Price Index from the date hereof for legal services rendered, or;
|3c. The attorney fees awarded per judgment or order of the Court or payable pursuant to consent, compromise or settlement decree, whichever is greater between (a), (b) or (c) ...

Pursuant to subpart b. of the contract, Mr. Breeden continued to bill Mr. Celia monthly on a hourly basis for his services in the St. Bernard matter; however, he continued the practice of billing all the matters in a single monthly statement. All the monthly bills were based on an hourly rate, which initially was $140.00. Over the years, the hourly rate was gradually increased to $240.00.

At the commencement of the relationship, Mr. Celia was required to pay a $5,000.00 retainer, which was deposited into Mr. Breeden’s trust account. Subsequent payments of fees were also initially deposited into the trust account and then taken out to pay fees and costs.

In this regard, Mr. Celia testified that during the interval between late 1987 through October 1990, he made routine payments on the monthly bills to Mr. Breeden totaling $54,470.00. Mr. Celia also introduced a listing of those payments; to wit:

Date ck # Am
11/12/87 2944 5,000.00 [retainer]
12/11/87 1,470.00
1/21/88 2977 3,000.00
2/18/88 3008 3,500.00
3/22/88 3068 1,000.00
4/14/88 3092 3,500.00
5/23/88 3123 2,500.00
6/18/88 3164 2,000.00
11/15/88 3208 2,500.00
1/12/89 3220 2,500.00
2/6/89 3222 2,000.00
4/7/89 3227 2,000.00
146/14/89 3229 2,500.00
7/27/89 3232 1,500.00
9/8/89 * 1,500.00
1/17/90 * 2,000.00
1/31/90 * 2,500.00
3/31/90 ' * .1,000.00
3/31/90 * 4,000.00
5/18/90 * 2,500.00
6/22/90 * 2,000.00
10/90 * 5,000.00

Mr. Breeden acknowledges receiving those payments plus an additional $3,000.00 on November 7, 1995. Conversely, Mr. Celia testified that he was certain the October 1990 payment, listed above, was the last check he wrote to Mr. Bree-den. Mr. Celia further testified that he was certain of the date of his last payment because in 1991 he informed Mr. Breeden that he was out of money and could no longer afford to pay him. Mr. Celia, however, acknowledged that Mr. Breeden continued to represent him.

On February 9, 1993, in an attempt to secure payment of his outstanding legal fees, Mr. Breeden had Mr. Celia sign a promissory note in the amount of $41,112.24; this was the exact amount then owed as reflected on the monthly bill. On the next day, Mr. Breeden had Mr. Celia sign a collateral mortgage note in the amount of $500,000.00. Although Mr. Breeden testified that the purpose for executing the notes was to secure payment of his legal fees, he did not contradict Mr. Celia’s testimony that this purpose was never disclosed to him. As to the purpose of these notes, Mr. Celia also introduced into evidence a copy of a letter Mr. Bree-den sent him dated February 10, 1993, which reads:

Dear George:
Please find enclosed a photocopy of the collateral mortgage note, collateral mortgage ahd hand note dated 02/10/93 that you and your wife signed. Same is being forwarded to you for inclusion in your files.
|KThis is also, to confirm that I have suggested that other collateral mortgage notes and collateral mortgages be prepared and filed on the property involved in this litigation.

The litigation referenced in the letter is the St. Bernard, matter.

In August 1994, as noted above, Mr. Breeden represented Mr. Celia in obtaining two settlements in the St. Bernard matter. First, on August 25, 1994, Mr. Celia and the RTC entered into a Receipt, Release and Settlement Agreement, that provided for, among other things, a $3,402,846.57 consent judgment against Mr. Celia and for the dismissal of the claims .between the parties to that agreement in the pending federal proceeding.

Days later, a settlement was reached with two of the bank’s insurance companies. As a result of that settlement, Mr. Breeden received $50,000.00 from the insurance companies. It is conceded that Mr. Celia never directly received any of that sum. Rather, Mr. Breeden applied $40,000.00 of that sum to pay Mr. Celia’s outstanding bills. Particularly, the monthly bill and a disbursement statement reflect that this amount was applied to pay two experts (one a certified public accountant), deposition costs, court costs, an associate’s fees, and $23,888.00 of Mr. Bree-den’s own fees. The remaining $10,000.00 of the settlement sum was placed into Mr. Breeden’s trust account and earmarked for an appeal in the St. Bernard matter involving Mr. Celia’s remaining claims against another bank. That appeal was denied by the federal appellate court in May 1995, and another disbursement statement reflects that sum was applied to pay the costs and legal.'fees associated with that appeal.

To inform Mr. Celia of that unfavorable 'appellate court decision, Mr. Breeden sent Mr. Celia a letter. That letter advised that the appeal was | ¡^unsuccessful and that the case therefore was over. Particularly, that letter dated May 10,1995, reads:

Dear Clients:
It is my unpleasant duty to enclose for your records the denial of the Fifth Circuit court filed May 4, 1995 following the 5/01/95 hearing.
George, you well know my and Bryon UnKauf s sentiments on this one. I can add nothing except that I look forward to representing you on other matters pending where the outlook is more positive.

Mr. Celia testified that he understood this letter to mean that the attorney-client relationship was terminated as to the St. Bernard, matter. Mr. Breeden, on the other hand, testified that he continued to represent Mr. Celia in that matter as well as others.

In May 1998, Mr. Breeden testified that he contacted Mr. Celia regarding payment of outstanding legal fees and was informed that payment would not be forthcoming. This lawsuit followed.

On May 28, 1998, Mr. Breeden filed his original petition alleging that Mr. Celia is indebted to him for $195,714.69. He further alleged that he was the holder in due course and owner of two promissory notes in the amounts of $41,112.26 and $500,000.00, dated February 9th and 10th, 1993, respectively, executed by Mr. Celia, and payable to Mr. Breeden, and that Mr. Celia’s last payment was made on November 7,1995.

Mr. Celia responded with various exceptions, including prescription, and a general denial of the allegations of the petition. Mr. Celia’s answer alleges that the promissory notes “in fact were drafted by plaintiff, and presented to defendant for the sole purpose of attempting to deprive then existing and future creditors of any efforts to obtain properties formerly owned by defendant as the legal advice of 17plaintiff given to defendant.” Mr. Celia’s answer further alleges that “[pjlaintiff had agreed, after 1992, that legal fees would only be due, and would only be based upon sums which were recovered by plaintiff in the course of representing defendant.”

Thereafter, Mr. Breeden filed two supplemental and amending petitions, increasing the alleged amount that Mr. Celia is indebted to him from $195,714.69 to $1,123,633.00 and adding a claim based on the alleged May 5, 1988 contingency fee contract with Mr. Celia in the St. Bernard matter. These petitions also allege that Mr. Breeden represented Mr. Celia in various other cases since November 10, 1987, and that he withdrew as attorney of record from the remaining two cases on May 21, 1998.

On November 6, 2001, the trial court granted Mr. Breeden’s Voluntary Motion to Partially Dismiss with Prejudice his claim arising out of the $500,000.00 collateral mortgage note. That motion was expressly based on the character of that note, and the “recent changes in the law”' — the Louisiana Supreme Court’s decision in Diamond Services Corp. v. Benoit, 2000-0469 (La.2/21/01), 780 So.2d 367— regarding the enforceability of a collateral mortgage note.

On March 6, 2002, the trial court rendered judgment in favor of Mr. Celia dismissing this action and assessing costs equally to both parties. This appeal followed.

DISCUSSION

Mr. Breeden appeals enumerating the following eight issues for review:

1) The court erred in considering any fact, document, or other matter not offered, introduced, and filed into evidence;
2) the court erred in essence granting the motion in limine;
|s3) the court erred in concluding that defendants were denied discovery notwithstanding five formal requests;
4) the court erred in interjecting itself in the trial process as often as it did;
5) the court erred in holding that the note was not for a fee since it should have had more documentation;
6) the court erred in holding that the note prescribed;
7) the court erred in holding that the contract prescribed; and
8) the court erred in holding that plaintiff had not carried his burden of proof for the quantum meruit claim.

Although not addressed individually, each alleged error is disposed of by addressing the three theories on which Mr. Breeden seeks to recover attorney’s fees: (1) the promissory notes, (2) the contingency fee contract, and (3) quantum meruit.

PROMISSORY NOTES

The first theory of recovery advanced by Mr. Breeden is based on the two promissory notes issued in February 1993 for $41,112.26 and $500,000.00. Rejecting the promissory note theory, the trial court reasoned:

Defendant, George Celia III, claims that both notes were made on successive days to facilitate protection of his properties from seizure as recommended by plaintiff. There is substance to this claim because at the time defendants’ properties were in danger of foreclosure and if the note had been signed as a fee, there should have been more documentation reflecting this fact. But these arguments will be unnecessary to reach because the note is prescribed. It was signed on February 9, 1993, was a demand note and therefore prescribed on February 9, 1998 ... before suit was filed on the entire amount of the note.

Mr. Breeden contends the trial court erred in finding a lack of sufficient documentation for the $41,112.26 note. That odd figure for which that note was | nissued, he argues, was the particular amount owed as then reflected on the monthly bill. Countering, Mr. Celia emphasizes that the lack of documentation was not the basis on which the trial court relied to reject recovery under the note; rather, as reflected in the reasons for judgment, the trial court relied solely on prescription. Mr. Celia further argues that the trial court correctly concluded the note is prescribed.

Assuming for purposes of our analysis the validity of this promissory note, we nonetheless find, as did the trial court, that Mr. Breeden’s claim to recover under this note is prescribed by the five-year period set forth in La. C.C. art 3498, which provides:

Actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible.

As the trial court noted, the $41,112.26 note is a demand note and thus payment became exigible on the date it was issued, February 9, 1993; prescription ran five years later, February 9, 1998, three months before this suit was filed.

Mr. Breeden argues that prescription was interrupted by Mr. Celia’s $3,000.00 purported payment on November 7, 1995. Conversely, as noted above, Mr. Celia testified that he was certain his final payment to Mr. Breeden was a $5,000.00 payment made in October 1990.

The gist of the issue presented by this argument is whether the purported November 7, 1995 payment was one actually made by Mr. Celia, as Mr. Breeden .J^contends, or was merely a transfer of funds by Mr. Breeden from his trust account to his regular account, as Mr. Celia contends and the trial court found. The significance of this factual distinction is that if this was simply a transfer of funds by Mr. Breeden from one account to another (i.e., a payment to himself), then it was insufficient to constitute an acknowl-edgement.

The jurisprudence holds that “partial payment by a third party constitutes acknowledgement of a debt which interrupts prescription only if such payment has been made with the authority of the debtor.” Landreneau v. Duplechin, 595 So.2d 1230, 1231 (La.App. 3 Cir.1992). “ ‘A creditor, therefore, cannot be made the agent of the debtor to such an extent as to make the act done by him operate as a new promise to himself.’” Guaranty Bank & Trust Co. v. Heiderich, 163 La. 957, 968, 113 So. 161, 164 (1927)(on reh’g). It follows then that if the November 7, 1995 payment was merely a transfer of funds by Mr. Breeden from one account to another, then it did not interrupt prescription on Mr. Celia’s promissory note.

Turning to the facts, Mr. Breeden testified that his routine practice was to keep one-third of every fee payment in his trust account for taxes and to transfer two-thirds of every fee payment to his regular account. According to Mr. Bree-den, the check he issued to himself on November 7th for $2,000.00 (check number “T3694”) was prompted by Mr. Celia’s payment apparently that same day of $3,000.00. Attempting to corroborate that purported payment by Mr. Celia of $3,000.00, Mr. Breeden offered two documents: (a) a journal entry written by one of his staff referencing that payment; and (b) the November 30, 1995 monthly bill referencing that payment. At trial, however, Mr. Breeden acknowledged that he could not produce either a copy of Mr. Celia’s $3,000.00 check or a deposit slip to corroborate that purported payment.

| uWhen questioned regarding his understanding of the reference to the $3,000.00 payment reflected on the November 30, 1995 bill, which reads “11/07/95 Payment to fee balance T3694 — 3,000.00,” Mr. Celia responded that this was a reference to a check drawn from Mr. Breeden’s trust account. Agreeing with Mr. Celia that the November 7, 1995 payment was Mr. Bree-den paying himself with his own trust account funds, the trial court reasoned: “the facts reveal that this payment was made by a check from plaintiffs own escrow account to himself as payee. Defendants’ rightfully contest this as an interruption of prescription, because it was not signed with his clients[’] prior agreement or knowledge and theoretically could be done monthly or yearly to prevent prescription from ever running.” Although the parties offered divergent testimony on this point, the trial court’s adoption of Mr. Celia’s position is not manifestly erroneous.

Alternatively, Mr. Breeden argues that despite his voluntary dismissal of his claim based on the $500,000.00 collateral mortgage note, that note nonetheless has legal relevance. The legal relevance, he argues, is that it secured the $41,112.26 “hand note” that was executed a day earlier (as well as amounts for future legal fees), and its pledge prevented that hand note from prescribing. Mr. Breeden’s attempt to transform the $41,112.26 promissory note into a hand note secured 'by the $500,000.00 collateral mortgage and thereby to create a collateral mortgage package poses an ethical violation.

This alleged collateral mortgage package would clearly be a business transaction between the parties — an attorney-creditor and a client-debtor — and would thus trigger the ethical rule regarding such transactions. Rules of Professional Conduct, Rule 1.8. Rule 1.8 requires that an attorney inform the client, advise the client to seek independent legal advice, and obtain the client’s |12written consent. None of those requirements were complied with in this case. Mr. Celia was not informed that the purpose of the notes was to secure Mr. Breeden’s attorney’s fees. Mr. Celia was not advised to consult independent counsel regarding that business transaction. Consequently, Mr. Celia’s consent to create such a collateral mortgage package could not conceivably have been obtained.

At trial, Mr. Breeden did not dispute failing to inform Mr. Celia of the purpose for executing the notes; instead, he simply stated that Mr. Celia was an experienced businessman and understood the purpose of a promissory note. However, “[a] fee agreement between a lawyer and client is not an ordinary business contract.” Joanne Pitulla, Excessive Fees Bite Back, 83-APR A.B.A. J. 82 (1997). We find Mr. Breeden’s collateral mortgage package argument unpersuasive.

Our finding is supported by the trial court’s order dismissing Mr. Breeden’s claim on the $500,000.00 note, which states that “any and -all claims and/or causes of action” that Mr. Breeden has against Mr. Celia on the collateral mortgage note are dismissed with prejudice. Moreover, the $500,000.00 note was not introduced into evidence in this case. That note is thus not relevant. .

CONTINGENCY FEE CONTRACT

Mr. Breeden’s second theory of recovery is based on the purported May 5, 1988 contingency fee contract executed solely in the St-Bernard matter. Pursuant to that contract, Mr. Breeden alleges that he is entitled to a million dollar | ^contingency fee calculated on the “amount saved” — three million plus — as a result of the RTC settlement.

Rejecting the million dollar claim theory, the trial court reasoned:

The million dollar claim is unenforceable for two reasons. The three million plus dollar consent judgment, on which the fee claim is based, was clearly a prearranged settlement agreement wherein plaintiffs were released from any liabilities by transferring the disputed properties to the Resolution Trust Corp. The papers signed were merely the method used to facilitate the agreement. In addition, any fee due for this- arrangement, regardless of how much it benefited the defendants, was subject to a three year prescriptive period which began to run on May 10, 1995 when plaintiff informed defendants that all claims in the St. Bernard matter were terminated, as was his representation of them in that matter. Prescription for the attorneys fees then prescribed in three years or on May 10, 1998, some 18 days prior to filing suit.

Assuming for purposes of our analysis that a valid contract exists and that a million dollar contingency fee claim exists thereunder, we nonetheless find, as did the trial court, that Mr. Breeden’s claim to recover on that basis is prescribed by the three-year period set forth in La. C.C. art. 3494 for actions seeking recovery of professional fees.

The three-year period for seeking recovery of attorney’s fees under Article 3494 (former La. C.C. art. 3538) has been held to commence from the date that services were rendered. Brod Bagert, Professional Law Corp. v. D’Hemecourt, 95-1036 (La. App. 5 Cir. 3/26/96), 672 So.2d 998 (noting long history of this rule and citing Howe’s Heirs v. Brent (1827), 6 Mart., N.S. 248, and Lyons v. Hall, 90 So.2d 519 (La.App. 2 Cir.1956)). The jurisprudence, however, has recognized that the date on which legal services were rendered is not always the only factor to [ 14be considered in determining when prescription commences to run. Other factors include: (i) the purpose of the attorney’s employment, when and if that purpose was accomplished, and when and if the services were completed; (ii) whether the services were performed on a contingency fee basis; and (iii) when the employment was terminated. Succession of Buvens, 373 So.2d 750, 752 (La.App. 3 Cir.1979). The latter factor, however, is “[pjerhaps the most important factor.” Id.

Applying those factors to the instant case, we conclude, as did the trial court, that the three-year prescriptive period commenced to run from the date the employment as to the St. Bernard matter was terminated. Although Mr. Breeden argues that there was a continuous course of representation with the St. Bernard matter being the largest case and that prescription did not begin to run until he formally withdrew in May 1998 from the two remaining cases, this argument overlooks that the St. Bernard matter was carved out for special treatment on a contingency fee basis. Logically, it follows then that actions taken by Mr. Breeden in representing Mr. Celia in the other matters are not relevant in determining when prescription commenced to run on his contingency fee claim in the St. Bernard matter.

In finding this claim on the contingency fee claim prescribed, the trial court relied on the May 10, 1995 letter Mr. Breeden sent Mr. Celia as marking the termination of the relationship and the commencement of prescription. It follows then that the crux of this prescription issue is the meaning ascribed to that May 10, 1995 letter. As noted, that letter was sent after Mr. Celia’s remaining claims in the Bernard matter against another bank were lost in the federal appellate court. That letter closed with the statement: “I can add nothing except that I look forward to representing you on other matters pending where the outlook is more positive.” Mr. Celia construed that statement to mean that Mr. Breeden’s representation of him in that matter was terminated. On the other hand, Mr. Breeden testified that all cases have “tails” — things that have to occur after an appellate court has ruled — and that he continued to represent Mr. Celia in that matter, as well as others, thereafter. Mr. Breeden further testified:

I thought at that particular time the court case was over. He had lost in the 5th Circuit Court of Appeal, but I continued to represent him on other things such as Elmwood and one or two other cases. We had gotten the 5th Circuit’s opinion and we lost.

Although another attorney might have construed the letter as simply a cover letter accompanying the unfavorable appellate court decision, a client, like Mr. Celia, could reasonably construe the letter to mean the relationship was terminated as to that particular case. Indeed, at that point, the purpose of Mr. Breeden’s employment as to the St Bernard matter was accomplished; in August 1994, the two settlements were executed, and the appeal was denied in May 1995. We thus conclude that the trial court was not manifestly erroneous in finding that as to the St Bernard matter the attorney-client relationship between the parties terminated on May 10, 1995, and the three-year period elapsed on May 10, 1998, days before the instant suit was commenced.

\,«QUANTUM MERUIT

The third and final theory of recovery advanced by Mr. Breeden is quantum meruit An attorney who seeks to recover on a quantum meruit basis must prove the value of his services and the extent of his expenses. Johnson v. Insurance Company of North America, 27,847, p. 4 (La.App. 2 Cir. 1/24/96), 666 So.2d 1286, 1289. Stated otherwise, an attorney must establish both the amount of fees earned and the reasonableness of such fees. Drury v. Fawer, 590 So.2d 808, 811 (La.App. 4 Cir. 1991). An attorney’s failure of proof will preclude recovery on a quantum meruit basis. See Johnson, 27,847 at p. 5, 666 So.2d at 1290; Sanders v. Federal Apartments Ltd. Partnership, 31,562 (La.App. 2 Cir. 2/24/99), 733 So.2d 45.

Rejecting the quantum meruit theory of recovery, the trial court reasoned:

Excluding the prescribed claims, counsel for defendants on at least five occasions formally requested detailed information on work performed and hours used to compute any amounts claimed. Plaintiff was unable to comply with this request to his detriment, because his records were not kept with the accuracy required. The plaintiff was thus unable to sustain his burden of proof in this matter.

Mr. Breeden argues that the trial court erred in holding that he failed to carry his burden of proof for recovery on a quantum meruit basis. Mr. Breeden argues that the monthly bills coupled with his daily time log, detail every aspect of his representation of Mr. Celia in all the cases and thus satisfied his burden of proof. Mr. Breeden further argues that there is no rule requiring an attorney to keep six separate accounts if he handles six separate cases for the same client.

117Mr. Breeden’s argument overlooks the inherent overlap between his prescribed claims on the contingency fee contract and the promissory note and his quantum me-ruit claim. The record reflects that at trial Mr. Breeden focused his efforts primarily on proving his claim for fees on the largest case, the St Bernard, matter. In so doing, he failed to make a record as to the particular amounts due on the other matters. Based on our review of the record, we find no error in the trial court’s conclusion that Mr. Breeden’s failure to prove what services he provided in the other matters and what time he spent performing such services precludes his recovery.

In finding those monthly bills and the contemporaneously prepared time sheets from which those bills were prepared insufficient to satisfy Mr. Breeden’s burden of proof, the trial court analogized this to a merchant’s attempt to recover on an open account by merely presenting a bill for a certain sum without an itemization of what the customer purchased for that sum. We, like the trial court, decline to undertake the accounting task of reconciling the contemporaneous time sheet with the monthly bills covering all matters. We thus conclude that Mr. Bree-den failed to prove his entitlement to any additional fees over and above the amounts he has already collected.

| ^DECREE

For the foregoing reasons, we affirm the judgment of the trial court and assess all costs of appeal on appellant, Mr. Breeden.

AFFIRMED.

      . For ease of reference, we refer to the defendants singularly as Mr. Celia. Although Mrs. Celia was not a party to certain agreements and although she initially disputed her responsibility for the attorney's fees at issue, the parties ultimately agreed that the legal services were provided to both Mr. and Mrs. Celia. That issue is thus not before us.

      . Copies of those monthly bills, dated December 31, 1987 through March 31, 1998, are in the record. Although the trial court allowed those monthly statements into evidence, the court did not accept those statements as proof of any facts.

      . Due to the impracticality of knowing the "amount saved” on which to calculate the contingency fee under subpart a of the contract until the end of the case, Mr. Breeden contends that it was proper to bill hourly during the course of the relationship. At the end of the case, he further contends that the contract allowed him to collect under subpart c the larger amount of the hourly fee or contingency fee, giving a credit for the hourly fees previously paid. As noted elsewhere, no effort is made to calculate what that credit would have been.

      . Some of the issues, such as the trial court's alleged interjection into the proceeding, were not briefed and therefore we do not address them. Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4.

      . We note, yet do not reach, Mr. Celia’s ethical argument challenging the validity of that note given Mr. Breeden’s failure to comply with the disciplinary rule governing engaging in a business transaction with a client. We, however, do reach this issue in connection with Mr. Breeden’s argument regarding the creation of a collateral mortgage package, discussed elsewhere in this opinion.

      . Mr. Celia contests the validity of the contingency fee contract itself. That document is a two-page agreement. Only page one is dated, yet only page two is signed. Mr. Celia does not contest his signature, but he does contest the terms set forth on page one. Particularly, he stresses that the term "saved” is neither defined in the document, nor was it ever explained to him.

      . That figure is arrived at by reducing the three million plus amount for which Mr. Celia confessed judgment ($3,402,846.57) by the sale price of the property ($534,200.00), resulting in a net savings of approximately three million dollars ($2,868,846.65). The net "saving” allegedly occurred because without the settlement Mr. Celia would have been required to pay a deficiency judgment in that amount. Applying the forty percent contingency fee rate to that three million dollars net saving figure is how Mr. Breeden arrives at the million dollar contingency fee he claims in this case.

      . Mr. Breeden again relies on the alleged November 7th payment, discussed above, as interrupting prescription. We, like the trial court, find no merit to that contention; for the reasons discussed above, that payment by Mr. Breeden to himself was insufficient to interrupt prescription.

      . Given that the trial court's decision was based on Mr. Breeden’s failure to meet his burden of proof, not on his failure to comply with discovery requests, Mr. Breeden's alternative arguments regarding the trial court's reliance on his failure to comply with the discovery requests and motion in limine are unpersuasive. Regardless, the trial court declined to rule on Mr. Celia's pre-trial motion in limine; instead, the court indicated it would rule on such evidentiary issues as presented at trial. It follows then, as Mr. Celia contends, that Mr. Breeden’s arguments regarding the motion in limine are moot.

      . According to Mr. Breeden’s estimates, he spent approximately 1,700 hours handling all the matters and 1,200 of those hours handling the St. Bernard matter. The final monthly bill in the record dated March 31, 1998 reflects the balance due for fees and costs in all matters of $196,114.69.

      . Nor do we find persuasive Mr. Breeden’s argument that Mr. Celia’s failure to object to the monthly bills precludes him from challenging such bills based on detrimental reliance.

      . Our finding likewise renders it unnecessary for us to address Mr. Breeden's claim for additional attorney’s fees incurred in pursuing this claim under either the contingency fee contract or the open account statute.


source: Caselaw Access Project

author: 1jWOODARD, Judge.

license: Public Domain

text:
    Robert W. WARREN v. MADDOX HAULING.
    No. 02-733.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 4, 2002.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, Louisiana, for PlaintifPAppellee, Robert W. Warren.
    Michael W. Whitehead, Mandeville, Louisiana, for Defendant/Appellant, Maddox Hauling.
    Court composed of HENRY L. YELVERTON, SLYYIA R. COOKS, and BILLIE COLOMBARO WOODARD, Judges.
   1jWOODARD, Judge.

In this workers’ compensation case, Maddox Hauling appeals the WCJ’s decision to assess, against it, a total of $17,800.00 in penalties for untimely or nonpayment of indemnity and medical benefits, $10,000.00 in attorney’s fees, $250.00 for failure to provide a medical report, along with $750.00 in attorney’s fees for obtaining the report, and for awarding Mr. Warren temporary total disability benefits. Mr. Warren answers and appeals the WCJ’s denial of his request for La.R.S. 23:1208 sanctions and seeks attorney’s fees for work done on the appeal. We affirm and grant additional attorney’s fees for the appeal.

On May 24, 2000, Mr. and Mrs. Maddox, doing business as Maddox Hauling, hired Robert Warren as a truck driver. On Friday, May 26, 2000, a co-worker told him that he had a badly leaking wheel seal. Mr. Warren informed one of the Maddox-es. He was told to bring the truck to Courtney Equipment Truck and Trailer Center to have the leak repaired. While examining the truck, the mechanic found additional serious mechanical defects. Consequently, he refused to warranty the seal. The mechanic informed Mr. Warren that it was unsafe to drive the truck. Instead of authorizing the other repairs, the Maddoxes instructed Mr. Warren to return the truck to them.

The next afternoon, May 27, 2000 — a Saturday — Mr. Warren did so. As he got out of the truck, a light strip underneath the cab popped out and snagged the top of his boot. He fell forward, twisted, and caught himself on the front fender. Pain ripped through his right knee. Mrs. Cheryl Warren, who had followed her husband to the Maddox yard, followed him into the Maddox home. Mr. Maddox, who was blind, asked her to write her husband’s paycheck. Mr. Warren informed Mr. Maddox that he had twisted his knee getting out of the truck but did not believe that it warranted going to the emergency room; if it got worse, he would let him know. The Warrens left together.

Mrs. Maddox testified that Saturday afternoon, Mr. Maddox called her to tell her that Mr. Warren had told him that he twisted his ankle getting out of the truck. David Maddox testified that he observed Mr. Warren getting out of the truck and | agoing into his parents’ home; Mr. Warren did not appear to have fallen, nor did he limp into the house as he had testified. He also saw him leave. However, he did not see Mrs. Warren leave with her husband.

On May 28, 2000, Mr. Warren’s pain intensified, necessitating emergency room treatment at the Winn Parish Medical Center. The emergency room staff gave him crutches and a knee immobilizer and instructed him to see an orthopedist. He notified Mr. Maddox that he would not be at work on Monday because of his knee injury and that he had to see a specialist. He testified that Mr. Maddox got upset and fired him. The date and circumstances of his termination are in dispute.

Mr. Warren filed suit on March 7, 2001. The WCJ heard arguments and found in his favor, awarding him temporary total disability benefits from the date of his injury, based on an average weekly wage of $575.00 per week, having a Worker’s compensation rate of $383.30. The WCJ penalized Maddox Hauling $2,000.00 for late indemnity payments for each month from May through August .2001, as well as an additional $1,800.00 for failing to timely commence payment. He assessed Maddox Hauling $2,000.00 in fines for untimely payment of a Louisiana Physical Therapy bill; $2,000.00 for CENLA imaging bills which were not paid; $2,000.00 for failure to authorize pain management; and $2,000.00 for failure to authorize a .third surgery. The judgment, also, ordered Maddox Hauling to pay for a third.knee surgery, if needed. Moreover, the WCJ assessed a $250.00 penalty against Maddox Hauling, along with $750.00 in attorney’s fees, for failure to timely forward a medical report. Lastly, the judge awarded $5,000.00 in attorney’s fees to Mr. Warren’s attorney for work done in securing indemnity benefits and an additional $5,000.00 in attorney’s fees for securing medical benefits. He awarded legal interest on the indemnity benefits from then-due date and legal interest on the medical benefits, penalties, and attorney’s fees from the date of the judgment’s signing. The WCJ found no fraud on either side. Essentially, except for the fraud issue, the WCJ found Mr. Warren’s version of the facts to be more credible than his opposition.

Both parties appeal.

| ^Standard of Review

Appellate courts review a WCJ’s decision to determine the reasonableness of the conclusions. Louisiana jurisprudence has a strong presumption that an appellate court may not set aside a WCJ’s findings of fact in the absence of manifest or clear error, even if we disagree with the WCJ’s factual findings and conclusions.

Untimely or Non-Payment of Indemnity Benefits under La.R.S. 23:1201

Maddox Hauling asserts that the WCJ erred in assessing $9,800.00, in penalties, for failure to timely pay and nonpayment' of indemnity benefits. Whether an employee may be awarded penalties and attorney’s fees is a question of fact which we will not disturb on appeal absent a finding of manifest error.

In accordance with La.R.S. 23:1201, the WCJ awarded a $1,800.00 penalty for failure to timely commence payment of indemnity benefits. In addition, he assessed Maddox Hauling with a $2,000.00 penalty for each month that it failed to pay Mr. Warren benefits. Maddox Hauling began paying indemnity benefits on June 17, 2001; however, the first payment was due on the fourteenth day after the injury, June 10, 2001. Also, the March 9, 2001 payment was not paid until March 22, 2001, as was the case with the March 16, 2001 payment. Moreover, the July 8, 2001 payment was not paid until after July 22, 2001. Thus, the WCJ used La.R.S. 23:1201(F) to calculate his award for these untimely or not paid benefits.

La.R.S. 23:1201(F) provides, in pertinent part:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty |4dolIars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.

After reviewing the record in its entirety, we cannot say that the WCJ committed manifest error in awarding these'penalties, as La.R.S. 23:1201 provides that the employer or insurer is liable for statutory penalties for withholding benefits without evidence to “reasonably controvert” the employee’s right to compensation and medical benefits. Additionally, in Brown v. Texas-LA. Cartage, Inc., our supreme court indicated that the employer must have some valid reasons or evidence upon which to base its denial of benefits in order to reasonably controvert a claim. It stated:

Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Furthermore, in our previous decision, Haynes v. Williams Fence & Aluminum, we affirmed the award of multiple penalties for the untimeliness or non-payment of indemnity benefits. Therefore, in the instant case, we see no manifest error in the WCJ’s finding that Maddox Hauling failed to reasonably controvert Mr. Warren’s claims and in his award of multiple penalties.

Untimely or Non-payment of Medical Benefits

Maddox Hauling, also, contests the WCJ’s award of $8,000.00 for its failure to timely pay medical benefits and to authorize treatment. Initially, Maddox Hauling paid for Mr. Warren’s medical expenses and two unsuccessful knee surgeries, which | ¡¡failed to alleviate his pain. It, also, paid for his visits to Dr. Rambach. Nonetheless, it refused to authorize the third surgery which Dr. Rambach deemed necessary. Furthermore, on March 8, 2001, Mr. Warren submitted the Louisiana Physical Therapy bill to Concepts Claims. It remained unpaid until July 14, 2001. Additionally, he submitted bills on May 3, 2001 and, again, on August 22, 2001, for the reading of two MRIs from CENLA Imaging. Maddox Hauling failed to pay both bills. Moreover, Maddox Hauling failed to pay the Cabrini emergency room bill submitted on August 22, 2001.

When an employer refuses to authorize medical treatment which is reasonable and necessary, penalties and fees are warranted. Dr. Rambach, Mr. Warren’s treating orthopedist, recommended that he undergo a third surgery, which Maddox Hauling denied. An employer may escape liability for its failure to provide medical benefits if: 1) its nonpayment stemmed from conditions over which the employer had no control, or 2) the employer reasonably controverted the employee’s right to such medical benefits. We find no manifest error in the WCJ’s conclusion that Maddox Hauling offered no reasonable explanation for its denial and failed to reasonably controvert Mr. Warren’s claim.

We affirm the WCJ’s ruling in accordance with Haynes.

Medical Reports

Under La.R.S. 23:1125, Maddox Hauling had an obligation to provide Mr. Warren with a copy of its written medical report within thirty days after his request. We find no manifest error in the WCJ’s determination that it failed to do so without just cause and his assessment of a penalty of $250.00, as well as $750.00 in attorney’s fees against Maddox Hauling.

| rAttorney’s Fees

La.R.S. 23:1201’s attorney’s fees provisions are penal in nature. Therefore, we must strictly construe them. They are intended to discourage indifference and undesirable conduct by employers and insurers.

The determination of whether an employer should be cast with attorney’s fees in a workers’ compensation case is essentially a question of fact. We shall not disturb a WCJ’s finding absent manifest error. Based on the WCJ’s determinations for which there was no manifest error, we affirm his award of attorney’s fees.

Additionally, a workers’ compensation claimant is entitled to an increase in attorney’s fees for time incurred in defending an employer’s unsuccessful appeal. We grant Mr. Warren’s request for attorney’s fees for this appeal and award him $5,000.00.

Supplemental Earnings and Temporary Total Disability Benefits

On April 20, 2001, Mr. Gary Kern, a claims’ manager with Concepts Claims, informed Mr. Warren’s counsel that it had converted Mr. Warren’s benefit status from TTDs to SEBs. By letter, Mr. Kern requested that Mr. Warren complete a 1020, covering May 27, 2000 through April 18, 2001; after receipt, it would issue him án SEB check within fourteen days. Notwithstanding, Maddox Hauling terminated all benefits on September 22, 2001, because of the decision that an accident did not occur.

After he was no longer receiving benefits, Mr. Warren tried to work for a brief time but was unable to do so because of the incessant and extreme knee pain. Logically, he would have only been entitled to SEBs. Dr. Drury, his first orthopedic surgeon, supported Mr. Warren’s version of events. He admitted that even after two surgeries, Mr. Warren was still having considerable pain and difficulty. Furthermore, when Dr. Drury last saw Mr. Warren on March 16, 2001, he was unable to return to |7work. Also, Dr. Rambach described his disability as “a great deal of difficulty with pain and discomfort in his right knee, knee locking on him, causing more pain and discomfort, unable to stand for even short periods of time without experiencing pain, cannot do any bending, squatting or stooping because of pain.” In his opinion, Mr. Warren needed “arthroscopic surgery in order to perform another extensive lateral release as well as a con-droplasty of the patella, removal of any synovial plicae and excision of the torn portion of the posterior horn of the medial meniscus.” Only after this surgery would Mr. Warren finally reach a point in which he could be rehabilitated to return to gainful employment.

The WCJ concluded that Mr. Warren was entitled to TTDs from the date of his injury until a “reasonably reliable determination of the extent of his disability can be made, subject to a credit for any and all payments of disability benefits previously made by defendant.” The WCJ had a reasonable basis for this finding. Thus, finding no manifest error, we affirm his award of TTDs.

La.R.S. 23:1208 Sanctions Against Defendants

Mr. Warren has appealed the WCJ’s denial of these sanctions because he believes that the Maddoxes made wilful misrepresentations concerning the events surrounding his accident and termination, and thus, are subject to La.R.S. 23:1208(C)’s penalty provisions. Contrarily, the WCJ found that the Maddoxes had not made wilful misrepresentations but had merely had lapses of memory. His finding involved a credibility determination, which we will not upset absent manifest error. Finding none, we reiterate that the decision to grant sanctions is necessarily based upon the WCJ’s findings of fact regarding a party’s conduct. Since the trial court found no fraud, the Maddox-es were not subject to La.R.S. 23:1208’s sanctions. We affirm this part of his ruling, as well.

CONCLUSION

Mr. Robert Warren worked for his employer for a short time before injuring himself. Mr. Warren filed suit after his employer fired him. The WCJ found that Mr. |sMaddox fired Mr. Warren after he reported to him that he had injured himself while getting out of the Maddox truck.

The WCJ ruled in Mr. Warren’s favor and assessed a $9,800.00 penalty against Maddox Hauling and $5,000.00 in attorney’s fees for multiple untimely and/or non-payments of indemnity benefits, as well as an $8,000.00 for penalties and $5,000.00 in attorney’s fees for the multiple untimely and/or nonpayment of medical benefits. Moreover, the WCJ awarded $250.00 in penalties and $750.00 in attorney’s fees for a failure to timely provide a medical report. Lastly, the WCJ awarded TTDs until a determination could be made regarding the extent of Mr. Warren’s disability.

The WCJ denied Mr. Warren’s request for sanctions under La.R.S. 12:1208.

After reviewing the record and finding no manifest error, we affirm the WCJ’s ruling, in its entirety, and award an additional $5,000.00 in attorney’s fees for work done on this appeal. We assess all costs to Maddox Hauling.

AFFIRMED.

      . Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

      . Rosell v. ESCO, 549 So.2d 840 (La.1989).

      . Fontenot v. J.K. Richard Trucking, 97-220 (La.App. 3 Cir. 6/4/97); 696 So.2d 176.

      . La.R.S. 23:1201(B).

      . Lucius v. H.B. Zachry Co., 95-1667 (La.App. 3 Cir. 5/8/96); 673 So.2d 1357, writ denied, 96-1483 (La.9/20/96); 679 So.2d 438.

      . 98-1063, p. 9 (La. 12/1/98); 721 So.2d 885, 890.

      . 01-26 (La.App. 3 Cir. 1/9/02); 805 So.2d 233, writ granted, 02-478, 813 So.2d 1096 (La.4/26/02).

      . Brasseaux v. Abbeville Gen. Hosp., 97-1062 (La.App. 3 Cir. 3/18/98); 710 So.2d 340 writ denied in part, judgment reversed in part, 98-1066 (La.6/5/98); 720 So.2d 673, 692.

      . La.R.S. 23:1201 (F)(2).

      . Nelson v. Roadway Exp., Inc., 588 So.2d 350 (La.1991).

      . Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99); 737 So.2d 41.

      . Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97); 696 So.2d 1382.

      . Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96); 690 So.2d 792.

      . Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95); 653 So.2d 154, writ denied, 95-1133 (La.6/23/95); 656 So.2d 1017.

      . Boise Cascade Corp. v. Dean, 99-1356 (La. App. 3 Cir. 5/3/00); 767 So.2d 76, writ denied, 00-2505 (La.11/13/00); 774 So.2d 146.


author: I .THIBODEAUX, Judge.

text:
    Charles Ray TAYLOR, Jr., et ux. v. Dr. Richard J. CLEMENT and the Louisiana Patient’s Compensation Fund.
    No. 02-561.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 4, 2002.

      Oliver “Jackson” Schrumpf, Law Offices of Oliver “Jackson” Schrumpf and Charles Schrumpf (APLC), Sulphur, LA, for Plaintiffs/Appellees, Charles Ray Taylor, Jr., et ux.
    Dr. Richard J. Clement (Proper Person), M. Keith Prudhomme, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Defendant/Appellant, Louisiana Patient’s Compensation Fund.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR and JIMMIE C. PETERS, Judges.
   I .THIBODEAUX, Judge.

In this medical malpractice case, the Patient’s Compensation Fund (PCF) appeals a judgment of the trial court in favor of the plaintiffs, Sharon and Charles Ray Taylor, Jr., whose infant son died twenty-four days after his birth. The trial court concluded that venue for plaintiffs’ suit filed against the PCF is proper in Calca-sieu Parish; that a summary judgment was properly granted in favor of the Tay-lors on the issue of whether Dr. Richard J. Clement was a Qualified Health Care Provider (QHCP), and that Dr. Clement’s treatment of Sharon and her infant son, Charles Ray Taylor III (Charles III) was the cause of the injuries to and subsequent death of the infant. Lastly, the trial court concluded that the Taylors were entitled to $500,000.00, an amount the PCF asserts is excessive.

For the following reasons we affirm the judgment of the trial court.

I.

ISSUES

The first issue in this case involves the trial court’s ruling that venue was proper in Calcasieu Parish. The PCF asserts that the Taylors’ Petition for Declaratory Judgment concerning Dr. Clement’s status as a QHCP filed in connection with their medical malpractice claim should have been filed in a separate proceeding in East Baton Rouge Parish, the PCF’s principal place of business, in accordance with La. Code Civ.P. art. 42 and La.R.S. 40:694(B). Whether Dr. Clement was a QHCP, the PCF contends, is a decision of the PCF Board located in East Baton Rouge Parish. The second issue is whether the trial court erred in granting summary judgment on the Taylors’ petition for declaratory judgment with respect to whether Dr. Clement |;>was a QHCP because “there exist[ed] several issues of material fact precluding summary judgment.” Third, the PCF asserts that the trial court erred in finding that Dr. Clement was liable for the plaintiffs’ injuries or, alternatively, the trial court’s damage award in the amount of $500,000.00 is excessive.

II.

FACTS

Prior to the birth of her son, Charles III, Sharon had been under the care of Dr. Richard Barry for prenatal services. On October 29, 1994, Sharon arrived at Lake Charles Memorial Hospital (LCMH) in labor. Because Dr. Barry was unable to be at the hospital, Dr. Clement was called to the hospital to attend Sharon. When Dr. Clement arrived, he saw that the feet and ankles of the unborn child were protruding from Sharon’s vagina. Although a heart monitor was not in place upon Dr. Clement’s arrival, a heart rate of between 110 and 138 was recorded after a nurse attending Sharon placed a fetal heart monitor on the child. Dr. Clement testified that an unborn baby with such a fetal heart rate is doing well.

Dr. Clement conducted a vaginal delivery of the baby at 1:53 a.m. on October 29, 1994. At one minute old, the baby had an APGAR, a score assigned to a newborn infant indicating the infant’s well being, of two and was not breathing. Efforts to resuscitate Charles III began. At five minutes old, the baby’s APGAR score increased to five, another low score. The attending nurse, Janean Henning, testified that the two low scores indicated that the baby needed continued resuscitation. By ten minutes old, the baby’s APGAR reached a level of nine, an acceptable score. On November 22,1994, twenty-four days after his birth, Charles III died.

| ¡Procedural Background

The Taylors filed a petition for damages on October 30, 1995. They also served the PCF with a copy of the damage petition. The Taylors’ petition was dismissed upon the granting of the defendants’ Exception of Prematurity based on the fact that Dr. Clement was a self-insured qualified health care provider and the matter had not been first submitted to the medical review panel as required by the Louisiana Medical Malpractice Act (LaMMPA). Thus, the matter proceeded to the medical review panel which rendered an opinion on November 16, 1998, against Dr. Clement. Following the panel’s ruling, on January 13, 1999, the Taylors again filed their petition in district court. After a two day bench trial, the Taylors were awarded $500,000.00, plus interest and costs from the date the claim was filed with the PCF. The judgment was signed on June 22, 2001. On July 3, 2001, the Taylors’ counsel was notified by the PCF that their malpractice claim was no longer qualified for coverage by the PCF because Dr. Clement was no longer a QHCP.

The Taylors then filed a “Supplemental Petition for Declaratory Judgment” on July 30, 2001, seeking, among other things, a determination as to Dr. Clement’s status as a QHCP pursuant to La.R.S. 40:1299.41, et seq. It was not until the Taylors filed this pleading that the PCF became aware of the June 22, 2001 judgment. When it received notice of the June, 2001 judgment in the declaratory judgment petition, the PCF filed a petition for suspensive appeal, and order for which was signed on August 23, 2001. The PCF wanted to preserve its right to appeal the June 22, 2001 judgment in the event the court would find that Dr. Clement was a QHCP with respect to the Taylors’ claims.

| ¿On August 23, 2001, the PCF filed exceptions of venue, prematurity, improper cumulation/joinder and also requested a trial by jury. On August 28, 2001, the Taylors filed a motion for summary judgment with respect to their supplemental petition seeking a declaratory judgment and also filed a motion to strike the PCF’s request for a jury trial.

A hearing on all of these matters was held on October 12, 2001. Ultimately the trial court granted the PCF’s exception of prematurity but denied its exception of venue. A judgment reflecting that decision was signed on December 11, 2001. With respect to the Taylors’ motion for summary judgment, the trial court issued written reasons for judgment on February 6, 2002, granting the Taylors’ motion on the issue of Dr. Clement’s status as QHCP. A judgment conforming to these written reasons was signed on February 27, 2002 and designated as a final judgment of the court. It is from that judgment that the PCF filed the present appeal. The Taylors have answered the PCF’s appeal requesting damages for frivolous appeal, principally on the issue of whether Dr. Clement was a QHCP.

III.

LAW AND DISCUSSION

Venue

The PCF asserts that the Taylors’ petition for declaratory judgment filed as a supplemental action to their medical malpractice claim should have been brought in East Baton Rouge Parish as a separate proceeding against the PCF. Essentially, the PCF argues that Dr. Clement’s status as a QHCP is unrelated to the commission of malpractice in Calcasieu Parish and is a decision made by the board whose principal place of business is East Baton Rouge Parish. The PCF further argues that the venue |fiprovisions of the Administrative Procedure Act support its position that the Taylors should have filed their suit in East Baton Rouge Parish.

In Underwood v. Lane Memorial Hosp., 97-1997, p. 3 (La.7/8/98); 714 So.2d 715, 716-17 the supreme court discussed the meaning of venue pursuant to Louisiana law:

Venue means the parish where an action may properly be brought and tried under the rules regulating the subject. La.Code Civ. Proc. Art. 41. Venue provisions are significantly different from jurisdictional provisions. Code articles governing jurisdiction over the person, for instance, are based largely on constitutional requirements of due process and of full faith and credit. On the other hand, Code articles governing venue are based on legislative considerations for allocating cases, according to the particular action and the particular parties, among the various parishes which have an interest in the action (over which some Louisiana court has the constitutional power to exercise jurisdiction).
The original concept of venue was that “one must be sued before his own judge.” Former La.Code Practice art. 162. This concept, however, has become anachronistic with the ever-increasing number of legislative exceptions to venue at the party’s domicile.
The 1960 Code of Civil Procedure divided the rules of venue into three categories: (1) Article 44 provides a non-waivable mandatory venue for actions such as nullity of judgment; (2) Articles 78 through 83 provide a preferred but waivable venue which governs exclusively when the rule conflicts with any article except Article 44; and (3) Article 42 provides a general venue in which the defendant must be sued at his “home base,” but is subject to numerous exceptions in Articles 71 through 77, which provide specific optional venues that the plaintiff may choose as an alternative to the venue in Article 42. Thus, the rules of venue today are less designed to provide protection for the defendant, who has no constitutional right to be tried in a particular forum, and more designed to allocate cases among parishes with an interest in the proceedings so as to provide for efficient disposition of caseloads.

(Case citations omitted).

|fiThe PCF is a legislatively-created fund administered by the Louisiana Patients’ Compensation Fund Oversight Board. The purpose of the PCF is to hold private monies in trust to protect victims of medical malpractice and its QHCP members who may be found liable for damages caused by their malpractice. La.R.S. 40:1299.44(A)(1). As the PCF correctly asserts, its principal place of business is located in East Baton Rouge Parish. Relying on the general rules of venue, the PCF asserts that the proper venue for the Taylors’ petition for declaratory judgment is East Baton Rouge Parish. Louisiana Code of Civil Procedure Article 42 provides generally that a defendant must be sued in the parish of his domicile. However, La.Code Civ.P. arts. 71 through 77 provide exceptions to that general rule. Specifically, La.Code Civ.P. art. 74 provides in pertinent part:

An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.

Furthermore, La.Code Civ.P. art. 73 provides in pertinent part:

A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled- if the parish of plaintiffs domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203.

The Taylors brought a medical malpractice action against Dr. Clement for his actions that occurred in Calcasieu Parish. The PCF, as the entity created, in part, to protect QHCPs from financial ruin due to medical malpractice claims, was added as a party to the lawsuit and is an obligor, albeit contractually, with Dr. Clement. Thus, in accordance with the venue provisions cited above, Calcasieu Parish is the proper venue for a determination of Dr. Clement’s QHCP status.

|7Lending further support to the finding of proper venue in Calcasieu Parish is La.R.S. 13:5104(A) that provides:

A. All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capítol is located or in the district court having jurisdiction in the parish in which the cause of action arises.

See also Williams v. State, 35,928 (La.App. 2 Cir. 4/3/02); 813 So.2d 1206, writ denied, 02-1279 (La.8/30/02); 823 So.2d 955, where the court held that “may” [in La.R.S. 13:5104(A)] is permissive; thus, a state agency may also be subject to suit in a parish of proper venue as to a defendant who is a solidary obligor with the agency. Dr. Clement’s actions occurred in Calca-sieu Parish. The PCF mistakenly relies upon the venue provisions governing judicial review of the PCF’s decisions found in the Administrative Procedure Act, especially La.R.S. 49:964(A) and (B), that provide for a review of a final decision of a state agency order in the district court of the parish in which the agency is located. However, La.R.S. 49:964(A) and (B) presupposes that there was some type of contradictory hearing or proceeding at the state agency level and a final order or decision was made. In the present ease, there was no contradictory proceeding wherein the PCF entered an order concluding that Dr. Clement was not a QHCP. Further, the permissive “may” is in this provision as well; therefore, a plaintiff is not required to seek review in the parish where the agency is located. Thus, the venue provisions of the administrative procedure statutes are inapplicable.

Summary Judgment

The PCF asserts that a factual dispute exists as to Dr. Clement’s status as QHCP. Neither party disputes that on the date of the alleged malpractice, October 29, 1994, Dr. Clement was considered a qualified self-insured healthcare provider | «with an occurrence type policy. There is also no question that Dr. Clement was qualified at the time the Taylors made their claim against Dr. Clement for medical malpractice. However, the PCF argues that because the security posted to the PCF by Dr. Clements was seized sometime after October 29, 1994, to satisfy another judgment against him, and because Dr. Clement failed to replace the security seized, he is no longer qualified for coverage by the PCF. Thus, they are not hable for the Taylors’ judgment in excess of $100,000.00. On July 3, 2001, well past the date of the alleged malpractice, the filing of the Taylors’ claim against Dr. Clement, and judgment in favor of the Taylors on their medical malpractice claim, the PCF notified counsel for the Taylors that Dr. Clement was no longer a QHCP.

In Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La.1992) the supreme court stated that:

The principal purpose of the Medical Malpractice Act is to limit the liability of health care providers who qualify under the Act by maintaining specified basic malpractice insurance and by contributing a surcharge to the Patients Compensation Fund. As long as a health care provider remains qualified under the Act, the health care provider and his insurer are liable for malpractice only to the extent provided in the Act. La.Rev. Stat. 40:1299.45 A.
The Medical Malpractice Act’s limitations on the liability of a health care provider are special legislation in derogation of the rights of tort victims. As such, the coverage of the Act should be strictly construed. These limitations apply only in cases of liability for malpractice as defined in the Act. Any other liability of the health care provider to the patient is not subject to these limitations.

Id.

Louisiana Revised Statutes 40:1299.42(E)(1) provides:

Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with ^qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board. In the event any portion of said amount is seized pursuant to the judicial process, the self-insured health care provider shall have five days to deposit with the board the amounts so seized. The health care provider’s failure to timely post said amounts with the board shall terminate his enrollment in the Patient’s Compensation Fund.

(Emphasis added).

Pursuant to the seizure of Dr. Clement’s security, the PCF attempted to have Dr. Clement post additional security in place of the security seized within five days in accordance with La.R.S. 40:1299.42(E)(1). Dr. Clement failed or refused to replace the security. The trial court found that Dr. Clement’s failure to provide a deposit after the original deposit amount was seized should only terminate his enrollment with the PCF for claims initiated after the date Dr. Clement was notified that his enrollment was terminated. Ultimately, the trial court found that there was no genuine issue of material fact precluding summary judgment. We agree.

Dr. Clement was an enrolled QHCP on the date of the occurrence of the medical practice, on the date the Taylors filed their claim against Dr. Clement, and on the date the judgment against Dr. Clement was signed. The Act does not expressly state that a healthcare provider, qualified at the time of the medical negligence, qualified at the time of a complaint of medical negligence is filed, and qualified at the time judgment against the healthcare provider is signed, is somehow disqualified when it comes time to pay on the judgment because sometime after these events, the healthcare provider is terminated. Further, the July 3, 2001 letter sent by the PCF to hncounsel for the Taylors stated that Dr. Clement was “no longer a qualified provider.” We construe the phrase, “no longer” to mean after the date of the letter and henceforth.

Support for . our interpretation of the PCF’s termination notice can be found in a recent fifth circuit case, Perdue v. Sudderth, 02-357 (La.App. 5 Cir. 10/29/02); 831 So.2d 1050, cited by the Taylors in their supplemental brief, where similar to the present case a physician allowed his self-insurance deposit with the PCF to lapse. In Perdue, the physician’s certificate of self-insurance deposit was still held by the PCF at the time the plaintiff filed her claim against Dr. Sudderth. However, Dr. Sudderth had other claims pending against him and one claimant obtained a judgment in her favor in the amount of $375,000.00 therefore, the certificate of deposit held by the PCF on behalf of Dr. Sudderth was used to satisfy that judgment. Dr. Sudderth, after receiving notice from the PCF to restore his deposit, failed to do so and his status as a QHCP was terminated as of August 6, 1996. Like Dr. Sudderth, Dr. Clement in the present case failed to restore his deposit after notification of its seizure by another claimant. The PCF asserted, as it does in the present case, that because Dr. Sudderth’s qualification was terminated, it was no longer responsible for payment on her claim. The fifth circuit noted, as have we, that the Act is silent as to what happens to pending claims, or for that matter, claims that have reached final judgment, when a self-insured doctor’s qualification is terminated. Ultimately, the fifth circuit concluded that “the failure to replenish the deposit should terminate enrollment of the provider, but only as to claims filed after the date of disqualification.” Id. at p. 5, 831 So.2d at 1052. Like the plaintiff in Perdue, the PCF notified the Taylors that Dr. Clement was a QHCP and they proceeded with their claim pursuant to the Act’s requirements. Therefore, as the fifth circuit found in In Perdue, the Taylors’ “rights under the Act should not be terminated, and the PCF should not be able to deny coverage, because the doctor subsequently [and in the present case, after the Taylors’ claim was reduced to a judgment in their favor] became disqualified due to his own failure to replenish his deposit.” Id. Thus, we find that for purposes of the Taylors’ case, Dr. Clement is a QHCP and summary judgment in favor of the Taylors on this issue was proper.

Dr. Clement’s Liability

The issue of Dr. Clement’s liability for the suffering and the death of the Taylors’ child is subject to the manifest error/clearly wrong standard of review as set out in Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993), Rosell v. ESCO, 549 So.2d 840 (La.1989) and Clement v. Frey, 95-1119 (La. 1/16/96); 666 So.2d 607.

Pursuant to La.R.S. 9:2794.1, in order to prevail in a medical malpractice case the plaintiff must prove:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3)That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of |12care the plaintiff suffered injuries that would not otherwise have been incurred.

The standard of care that a physician is to render to a patient is set forth in Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 661 (La. 1989):

In a medical malpractice action against a physician, the plaintiff must establish the doctor’s deviation from the standard of care exercised by others in the same field. The plaintiff must also show a causal relationship between the doctor’s alleged negligence and the resulting injury. La.R.S. 9:2794(A); Smith v. State, 523 So.2d 815 (La.1988).

The evidence in this case shows that Dr. Clement arrived to deliver the Taylors’ baby. Upon his arrival, the fetus was in a double footling breech position. In a double footling breech position, the baby’s feet are at the vaginal opening and the baby’s head is at the top of the uterus. A baby in a normal position at the time of delivery has its head at the vaginal opening and feet at the top of the uterus. Dr. Clement testified that the feet were protruding outside of Sharon’s body upon his arrival. Nurse Henning testified that a baby in the position of the Taylor baby is usually delivered by c-section and that she never saw a vaginal delivery of a double footling breech baby. Moreover, the medical review panel members all agreed and testified at trial that footling breech deliveries are not done vaginally because of the danger of the umbilical cord coming out with the baby’s body and being squeezed so as to cut off the baby’s oxygen supply. Also, a c-section delivery is recommended because a newborn baby’s head is quite large in comparison to the baby’s body thus, there is the danger of delivering the trunk and extremities, but causing the baby’s head to get trapped in the cervix. With the mother’s contractions, cord and neck compression may occur causing a lack of oxygen to the baby’s brain. A compression of the cord for five minutes could cause brain damage.

113Instead of proceeding to conduct a c-section delivery of the Taylor infant, Dr. Clement chose to do a complicated vaginal delivery. The testimony at trial further revealed that a c-section delivery could have been accomplished in a short amount of time using general anesthesia. Dr. John Colligan, an obstetrician/gynecologist who served on the medical review panel investigating Dr. Clement’s actions and who testified at trial, stated that by using “general anesthesia with the crash induction technique,” Sharon would have been asleep within one to two minutes. Because of the difficulty in getting the baby out of the vaginal canal, Dr. Clement ordered the attending nurses to push on Sharon’s stomach to facilitate the baby’s delivery. Dr. Colligan further stated that Dr. Clement’s order to the nurses to apply fundal pressure was inappropriate because when the nurses pushed on Sharon’s stomach, they were actually pushing on the baby’s head which could cause head trauma to a baby in a double footling breech position.

Dr. Clement was the only witness to testify that he was not liable for the suffering and death of the Taylors’ baby. Dr. Clement’s primary contention is that the baby was dead before he was delivered. However, the medical records and the testimony of Nurse Henning reveal that there were two instances when the baby’s heart rate was recorded at 110 and later at 138, both indications that the umbilical cord was not prolapsed and within the normal range of a baby who is doing well. The medical review panel and the trial court found that Dr. Clement was negligent in his delivery of the Taylor baby. We agree and find no merit to the PCF’s argument that Dr. Clement was not liable.

Damages

The PCF contends that the amount of damages awarded to the Taylors is excessive. The standard for an appellate court’s review of damages was well | uestablished in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Suffice it to say, we will not disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s discretion. In its written reasons for judgment, the trial court stated the following with respect to damages:

When considering damages, the elements to be considered are the medical expenses of plaintiffs which are not disputed to be $23,209.98, funeral expenses of $587.68, burial expense $400.00, Per-kin’s Pharmacy $175.23. Insofar as the damages of CHARLES RAY TAYLOR, III for pain, suffering and disability as a result of the twenty-four (24) days of life in acute distress, the Court feels an appropriate award would be $100,000.00 which is inherited by his parents. For the past, present, future pain and suffering of SHARON TAYLOR and CHARLES RAY TAYLOR, JR. who have suffered much anguish not only during the twenty-four (24) days of the life of their child visiting him frequently in the hospital and subsequent problems in their relationship and marriage which occurred as a result of the grief, the Court feels each parent is entitled to an award of $250,000.00.
The award will be reduced in accordance with the “cap limitations” on medical malpractice cases a total of $500,000.00 plus interest and costs from the date the claim was filed with the Louisiana Compensation Fund, together with expert witness fees to be fixed upon presentation of the appropriate motion to the Court.

(Emphasis in original).

After a thorough review of the entire record, we find that the trial court did not abuse its great discretion in the assessment of damages.

Frivolous Appeal

The Taylors answered the PCF’s appeal seeking attorney fees and the payment of costs for defense of a frivolous appeal pursuant to La.Code Civ.P. art. 2164. The courts have been very reluctant to grant damages under this article, as it |15is penal in nature and must be strictly construed. Guarantee Sys. Const. & Restoration, Inc. v. Anthony, 97-1877 (La. App. 1 Cir. 9/25/98); 728 So.2d 398, writ denied, 98-2701 (La.12/18/98); 734 So.2d 636. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Id., 728 So.2d at 405. However, an appeal is not automatically deemed frivolous simply because it lacks merit. Broussard v. Union Pacific Res. Co., 00-1079 (La.App. 3 Cir. 1/31/01); 778 So.2d 1199, writ denied, 01-0589 (La.4/27/01); 791 So.2d 118, citing Hershell Corp. v. Fireman’s Fund Ins. Co., 98-1352 (La.App. 3 Cir. 6/2/99); 743 So.2d 698, writ denied, 99-1923 (La.9/17/99); 747 So.2d 568. While the issue of Dr. Clement’s status as an enrolled QHCP advanced by the PCF as an issue for review may be substantively tenuous, there is no evidence that the appeal was taken for delay or that counsel was insincere. To the contrary, as evidenced by the foregoing, this case contains novel legal questions concerning the status of self-insured healthcare providers who, for whatever reason, do not replenish their deposits with the PCF upon demand after the deposit is seized pursuant to La.R.S. 40:1299.42(E)(1), and whose enrollment is terminated after judgment in favor of plaintiffs is obtained.

IV.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellants, Dr. Richard Clement and the Louisiana Patient’s Compensation Fund.

AFFIRMED.

      . The total amount awarded was $624,372.89 but this amount was reduced pursuant to damage limitation provided in La.R.S. 40:1299.42(B)(1).

      . October 29, 1995 was a Sunday.


author: h WOODARD, Judge.

text:
    Bryan D. WALKER v. Melody Snow WALKER.
    No. 02-606.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 4, 2002.

      Deé A. Hawthorne, Melrose, LA, for Plaintiff/Appellant, Bryan D. Walker.
    Anna L. Garde, Many, LA, for Defendant/Appellee, Melody Snow Walker (Now Mooter).
    Court composed of HENRY L. YELVERTON, SYLVIA R. COOKS, and BILLIE COLOMBARO WOODARD, Judges.
   h WOODARD, Judge.

In this child support case, Mr. Bryan D. Walker appeals the trial court’s modification of child support provisions, including, but not limited to, tax deductions, visitation expenses, retroactivity of the child support reduction, payment for school clothes, and the continual exchange of income information and recalculation of child support. We reverse in part and affirm as amended.

* * *

On March 30, 2000, Bryan D. Walker filed a petition for divorce from his estranged wife, Melody Snow Walker, now Mooter. The trial court signed the divorce judgment on May 15, 2000. Subsequently, the parties signed a consent judgment, stipulating to joint custody of their four children, designating Ms. Walker to be the domiciliary parent and awarding Mr. Walker visitation every other weekend, every other major holiday, and six weeks during the summer. Additionally, based on the stipulation, the court ordered him to pay child support, totaling $1,320.00 per month, medical insurance, 85% of the non-covered medical expenses, and 50% of the non-eovered dental and optical bills. Furthermore, it ordered him to purchase school clothes, jackets, and shoes for the minor children at the beginning of each school year, as well as to pay all of Reginald Walker’s expenses during his junior year of high school. In turn, Ms. Walker was to use the physicians listed in the Preferred Providers Plan.

Following the consent judgment, one child reached the age of majority. Another died. Ms. Walker moved to Oklahoma. Mr. Walker relocated to Gonzalez, Louisiana. Both remarried and experienced changes in their incomes — Ms. Walker’s income increased; Mr. Walker’s decreased.

Because of these changes in circumstances, on November 9, 2001, Mr. Walker filed a rule to show cause why the previous consent judgment should not be modified. Based upon his reduced annual salary of $50,000.00 and Ms. Walker’s increased annual income of $17,160.00, the trial court recalculated the total child support obligation to be $1,175.00. It assessed Mr. Walker with 74.45% of support and Ms. Walker with 25.55%. This reduced Mr. Walker’s child support obligation to $875.00 per month for two children. The court made it effective for January 1, 2002.

It also |2ordered the parties to exchange income information, such as W-2 forms and check stubs, throughout the year, because Mr. Walker expected to receive work-related bonuses. These would affect his annual income and, thus, the child support obligation, which the court ordered the parties to recalculate on their own. Furthermore, Ms. Walker is to provide health care insurance for the children, which her new husband can do through his employer at no additional premium cost. The court ordered each party to pay his/ her proportionate share of all health care costs (including medical, dental, and optical) which the insurance plan does not cover. They are to share travel expenses for visitation at the same percentage as their respective child support obligations. Additionally, Mr. Walker is to pay $250.00 per child to Ms. Walker each August for new school clothes. Finally, the trial court assigned all annual tax deductions for the children to Ms. Walker.

Mr. Walker appeals.

Standard of Review

We may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong. As such, in order to reverse the trial court’s judgment, after reviewing the record in its entirety, wfe must find that a reasonable factual basis does not exist for the trial court’s finding and that the record establishes that the finding is clearly wrong.

Exchange of Income Information

Mr. Walker asserts that the trial court erred by ordering the parties to exchange income information and make child support adjustments throughout the year because of his commissions. He claims that the court’s error will force a continual adjustment of child support, based on the income information exchanged, without meeting the legally required burden for change under La.R.S. 9:311(A), which provides, in pertinent part:

|sAn award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

(Emphasis added.) This implies that the parties must return to court with their evidence. Furthermore, La.R.S. 9:311’s Comment (a) provides that a reduction or increase in child support must be supported by a change in circumstances which is material. It defines material as:

[A] change in circumstance having real importance or great consequences of the needs of the child or the ability to pay of either party. The amendment specifying that the court first consider the threshold matter of materiality of the change in circumstance overrules Stogner v. Stogner, 739 So.2d 762 (La.1999), in which the Louisiana Supreme Court held that any change in circumstances is sufficient to justify a reduction or increase in child support, a conclusion extended to spousal support by the court of appeal in Council v. Council, 775 So.2d 628 (La.App. 2 Cir.2000).

(Emphasis added.)

While we understand that the trial court ruled as it did in an effort to try to alleviate some of the parties’ burden of having to return to court when Mr. Walker’s income changes, we do not find support for it in the law. Therefore, we must reverse this part of the ruling.

Tax Deductions

Mr. Walker urges us to reverse the trial court’s ruling, granting all tax dependency claims to Ms. Walker. Based on La.R.S. 9:315.18(C), “[t]he non-domiciliary party whose child support obligation exceeds seventy percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions every year if no arrearages are owed by the obligor.” (Emphasis added.) Ms. Walker contends that the trial court granted her the tax deductions because Mr. Walker’s commissions were not guaranteed. Although she correctly states that Mr. Walker testified that he would not have a problem with her claiming the minor children if their education would be paid for through the State of Oklahoma based on her income, she did not establish this fact to be reality.

14As neither party presented any evidence regarding arrearages in child support, and the court compelled Mr. Walker to pay 74.45% of the child support obligation, we find that the trial court erred in awarding Ms. Walker the tax deductions. Therefore, we reverse this part of the trial court’s ruling and award them to Mr. Walker.

Non-Covered Medical Expenses

Additionally, Mr. Walker complains that the trial court erred in requiring him to pay any percentage of all medical expenses which insurance does not cover. The court specified medical, dental, and optical expenses. La.R.S. 9:315(C)(3) governs this issue:

“Extraordinary medical expenses” means uninsured expenses over one hundred dollars for a single illness or condition. It includes but is not limited to reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, uninsured chronic health problems, and professional counseling or psychiatric therapy for diagnosed mental disorders.

(Emphasis added.)

We find that it was within the trial court’s discretion to specify all medical expenses not covered. However, this statute permits, only, an allocation of that unpaid portion after the first $100.00. Thus, we amend the court’s ruling accordingly. Mr. Walker is to pay 74.45% of that amount above $100.00 for all non-covered medical expenses, including dental, medical, and optical.

School Clothes

Mr. Walker urges that the trial court erred in ordering him to pay an additional $250.00 per child for school clothes.

Usually, clothes are considered to be part of the basic child support obligation. Ordering Mr. Walker to pay an additional $500.00 elevates his child support obligation beyond that which the child support guidelines require. Those guidelines are expressed in La.R.S. 9:315.1 which provides, in pertinent part:

|bA. The guidelines set forth in this Part are to be used in any proceeding to establish or modify child support filed on or after October 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support.
B. The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or mitten reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines.

(Emphasis added.)

The court has provided no reasons for the deviation, and we find none. Notwithstanding, logically, La.R.S. 9:315.6 permits the costs for certain children’s clothes to be assessed in addition to the basic obligation if the clothes fit the criteria for extraordinary expenses:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation: '
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.
(2) Any expenses for transportation of the child from one party to the other.

The record contains no evidence that the clothes for the children in the instant case are for a private or special school. Thus, they do not qualify as an extraordinary expense to be allocated above the basic child support obligation. We reverse this part of the trial court’s ruling.

16Retroactivity

Lastly, Mr. Walker asserts that the trial court erred in making the reduction of child support effective on January 1, 2002, his next pay period after the reduction, rather than retroactive to the date of judicial demand. La.R.S. 9:315.21(C) provides: “Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.” (Emphasis added.) Because the trial court neither showed good cause nor gave any reasons for its actions, we reverse this portion of its ruling and make the reduction retroactive to the date of judicial demand.

CONCLUSION

Mr. and Ms. Walker signed a consent judgment regarding a multitude of matters, including child custody and child support, designating Ms. Walker to be the domiciliary parent. Due to a change of circumstances, Mr. Walker filed a rule to reduce child support. At that hearing, the trial court reduced his child support obligation to $875.00 per month; ordered him to pay an additional $250.00 per child for school clothes each August, as well as to pay 74.45% of all medical costs not covered by Ms. Walker’s insurance plan and 74.45% of the children’s travel expenses; allocated all annual tax deductions for the children to Ms. Walker; and ordered the parties to exchange financial information throughout the year as Mr. Walker’s income changes and to recalculate, on their own, child support and the resulting percentages of other contingent expenses. Mr. Walker appealed.

Because the trial court failed to follow statutory guidelines, we reverse its ruling regarding the exchange of income information, its assignment of the tax deductions to Ms. Walker, its assessment against Mr. Walker for an additional $250.00 per child for school clothes, and we make the reduction effective to the date of judicial demand. We amend its order that Mr. Walker pay a percentage of all non-eov-ered medical costs. Mr. Walker is to pay 74.45% of all non-covered medical expenses, including dental and optical, above $100.00.

We assess all costs of this appeal to Ms. Walker.

REVERSED IN PART, AND AFFIRMED AS AMENDED.

      . Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

      . Id.

      . La.Civ.Code art. 227.

      . See Settle v. Settle, 25,643 (La.App. 2 Cir. 3/30/94); 635 So.2d 456, writ denied, 94-1340 (La.9/16/94); 642 So.2d 194.