author: h CARAWAY, J.

text:
    Jeannie GIBBS, Plaintiff-Respondent v. MAGNOLIA LIVING CENTER, INC., Defendant-Applicant.
    No. 38,184-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Keiser, Auzenne & Boudreaux by Randall B. Keiser, Alexandria, for Applicant.
    James D. Caldwell, Tallulah, for Respondent.
    Before STEWART, GASKINS and CARAWAY, JJ.
   h CARAWAY, J.

The plaintiff, alleging herself to be “a surviving child” of the decedent, filed this suit against a nursing home asserting survival and wrongful death claims grounded in the Nursing Home Bill of Rights. Additionally, the plaintiff had an action instituted against four other health care providers before a medical review panel for alleged medical malpractice. Following the trial court’s denial of defendant’s dilatory and peremptory exceptions, this court granted and docketed this civil writ application to resolve the issues of whether the trial court erred in determining that the four health care providers were not necessary parties to the present action and in finding that the plaintiff had alleged sufficient facts to establish her procedural capacity to bring the survival and wrongful death actions. Finding no error, we affirm the rulings on the exceptions.

Facts

Maudeal Cardin was a resident of Magnolia Living Center. On January 23, 2001, she was admitted to Franklin Medical Center with a urinary tract infection, pneumonitis, dehydration and decubitus ulcers, ailments which eventually caused her death on February 6, 2001. A surviving child of Cardin, Jeannie Gibbs, instituted survival and wrongful death actions against Magnolia pursuant to La. R.S. 40:2010.8, et seq., the Nursing Home Residents’ Bill of Rights.

| ¿Thereafter, Magnolia filed a peremptory exception of non-joinder of a party pursuant to La. C.C.P. arts. 927, 641 and 642. In support of the exception, Magnolia presented evidence that four other medical care providers, including Franklin Medical Center, were being sued by Gibbs in the parallel proceedings before the medical review panel. Magnolia argued that those parties were necessary parties to the present action and that this action should be dismissed until such time that those defendants may be added to the suit. Additionally, Magnolia filed a dilatory exception of lack of procedural capacity alleging that Gibbs had not alleged sufficient facts to establish her right to proceed in a representative capacity.

After hearing arguments on the exceptions, the trial court denied both exceptions. Magnolia sought writs from this court which granted and docketed the matter for briefing and oral argument.

Discussion

I.

The first issue concerns the plaintiffs procedural capacity to sue. The dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in judgment and/or challenges the authority of a plaintiff who appears in a purely representative capacity. Horrell v. Horrell, 99-1093 (La.App. 1st Cir.10/6/00), 808 So.2d 363, writ denied, 01-2546 (La.12/7/01), 803 So.2d 971; Palowsky v. Premier Bancorp, Inc., 597 So.2d 543 (La.App. 1st Cir.1992). Proce dural capacity is presumed unless challenged by the dilatory exception. La. C.C.P. art. 700. Because Gibbs has not alleged in|3her petition that she is suing in a representative capacity, La. C.C. P. art. 930 required Magnolia to introduce evidence to support the dilatory exception of lack of procedural capacity unless the grounds thereof appeared from the petition.

La. C.C. arts. 2315.1 and 2315.2 set forth respectively the survival action and the wrongful death action and list the classes of claimants for those actions. The first class of claimants, whose existence pre-eludes all other classes from making the claims, is listed in both articles, as follows:

The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

The petition alleges in this instance that Gibbs “is a surviving child of Maudeal Cardin.” Magnolia argues that Gibbs has not alleged that she is the sole surviving child of Cardin. Nor does the petition state whether a spouse survived the decedent. Magnolia thus argues that the petition ambiguously leaves open the possibility of the existence of other members of the class of claimants to the survival and •wrongful death claims for whom Gibbs has no procedural capacity to bring the claims. Notably, however, Magnolia did not attempt to prove at the trial of the dilatory exception that there are other children of Cardin and that she died leaving a spouse.

The alleged ambiguity or vagueness of the petition would only have legal consequence for the grant of the dilatory exceptions of vagueness or lack of procedural capacity if (i) the survival or wrongful death claims seek relief which must be granted to the class as a whole, and (ii) Gibbs has no | ¿representative capacity to obtain that relief for the class. We find that those conditions do not apply to either the wrongful death claim or the survival claim for the following reasons.

The jurisprudence holds that the wrongful death action compensates the class beneficiaries under La. C.C. art. 2315.2 for their own individual injury arising out of the victim’s death. Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, 1274. The members of the beneficiary class can receive general damages in various amounts on the basis of the differing degrees of affection which existed between the deceased and the different members of the class. Muse v. Dunbar, 97-582 (La.App. 3d Cir.6/10/98), 716 So.2d 110.

The Civil Code addresses the nature of an obligation owed to multiple persons in Section 5 of Chapter 3 of Title III. La. C.C. arts. 1786 et seq. Under Article 1787, a several obligation with multiple obligees is defined as follows:

When one obligor owes a separate performance to each of different obligees, the obligation is several for the obligees. A several obligation produces the same effects as a separate obligation owed to each obligee by an obligor or by each obligor to an obligee.

The above authority therefore indicates that the tortfeasor owes a separate performance for the payment of different damages to each of the members of the class of beneficiaries entitled to the wrongful death claim. The delictual obligation is therefore several for multiple wrongful death claimants within the beneficiary class. Accordingly, regardless of whether there are other members of the class of beneficiaries for the asserted ^wrongful death of this decedent, in accordance with the last paragraph of Article 1787, Gibbs may pursue the defendant in this action with full procedural capacity for her separate claim.

The survival action is, however, a totally separate and distinct cause of action from the wrongful death claim. Walls, supra at 1273. The survival action differs from the wrongful death claim in that it “permits recovery only for the damages suffered by the victim from the time of injury to the moment of death.” Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). “The action is based upon the victim’s right to recovery being transferred by operation of law to the beneficiary.” Id.

While the survival claim relates to the damages suffered by the decedent, both La. C.C. art. 2315.1(B) and La. C.C.P. art. 801 indicate that members of the applicable class of beneficiaries have capacity to bring the survival claim or to continue a pending tort claim after the death of the victim without the involvement of the decedent’s succession representative. Carl v. Naquin, 93-1725 (La.App. 1st Cir.5/20/94), 637 So.2d 736.

Nevertheless, Magnolia’s assertion of the ambiguity of the petition regarding Gibbs status as “a child” presents the question of whether one member of the class of beneficiaries for the survival action has capacity to |firepresent the class as a whole. This issue may also be resolved by considering Section 5 of Chapter 3 of Title III of the Civil Code provisions on obligations, which provides as follows:

La. C.C. art. 1788 (in pertinent part): When one obligor owes just one performance intended for the common benefit of different obligees, neither of whom is entitled to the whole performance, the obligation is joint for the obli-gees.
La. C.C. art. 1789 (in pertinent part): When a joint obligation is divisible ... each joint obligee is entitled to receive, only his portion.

The delictual obligation of the tortfeasor to pay for the damages experienced by the victim before her death represents a single performance owed to all Article 2315.1 survival beneficiaries and is therefore a joint obligation for the obligees. Any judgment for the payment of money damages is a divisible obligation. La. C.C. art. 1815. Therefore, even assuming that there are other members of the beneficiary class under Article 2315.1, Gibbs would have procedural capacity to recover at least her portion of the survival action damages through this suit. The petition is not subject to either the vagueness exception or the exception of lack of procedural capacity because the alleged delictual obligation is joint and divisible for Gibbs who is at least “a member” of the beneficiary class.

If Maudeal Cardin was survived by other children or a spouse, or both, the possibility for the peremptory exception of non-joinder remains. Cf., Rainey v. Entergy Gulf States, Inc., 01-2414 (La.App. 1st Cir.7/2/03), 859 So.2d 63, writ denied, 03-2107 (La 11/14/03), 858 So.2d 426. Also, in view of C.C. art. 1789 and the joint obli-gee’s entitlement to her portion or virile share, any facts concerning the existence of other beneficiaries for the | ^survival claim appear relevant as an affirmative defense. However, we make no ruling of the propriety of the peremptory exception or such affirmative defense at this time.

II.

Magnolia also contends that the trial court erred in failing to dismiss the suit without prejudice until such time that the medical care providers in the parallel proceedings before the medical review panel can be joined in the present action.

The peremptory exception of nonjoinder under La. C.C.P. art. 927 requires that the issue be considered under La. C.C.P. arts. 641 and 642. Article 641 provides for the mandatory joinder of persons who can be made parties, as follows:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impeded his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

To the extent that the person identified by the test of Article 641 cannot be made a party, the court shall determine whether the action should proceed | ¿without joinder or be dismissed by consideration of the following factors listed in Article 642:

(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights. Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207. The factors set forth in La. C.C.P. art. 641 replace the former classification of parties as necessary or indispensable which was based solely on the interests of the party to be joined. 1995 Comment La. C.C.P. art. 641; State, DOTD v. Lamar Advertising Co. of La., Inc. 279 So.2d 671 (La.1973). Courts are to determine whether a party should be joined and whether the action should proceed if a party cannot be joined by a factual analysis of all the interests involved. La. C.C.P. art. 642.

For a tort action, La. C.C. art. 2323 requires the consideration of the fault of all parties, as follows:

A. In any action for damages where a person suffers injury, death or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s |flidentity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.... (Emphasis supplied)

In conjunction with the provision on comparative fault, La. C.C. art. 2324 reviews the relationship of the obligations of multiple tortfeasors, as follows:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

Citing Dumas v. State ex rel. Dept. of Culture, Recreation, and Tourism, 02-0563 (La.10/15/02), 828 So.2d 530, Magnolia argues that the fault of all persons (joint tortfeasors) allegedly contributing to an injury must be quantified and the joint tortfeasors joined in the same suit. Magnolia’s reliance upon Dumas for such a proposition of law is misplaced.

Dumas involved a wrongful death and survival action against the State of Louisiana for an alleged defect in a state road. The plaintiffs decedent was injured in a bicycle accident on the road and ultimately died hnwhile being treated for his injuries at a hospital. The state answered the suit alleging victim fault and asserted an affirmative defense that the death of the victim was caused solely by the medical negligence of the hospital staff. Plaintiffs filed a motion to strike those portions of the answer dealing with the hospital’s fault on the policy grounds of the prior jurisprudence that the original tortfeasor is the legal cause of 100% of the victim’s harm regardless of the subsequent medical malpractice. The trial court granted the motion to strike on the grounds that such legal policy remained viable in our tort law despite the 1996 amendment to Articles 2323 and 2324. This court agreed and affirmed the trial court. The Louisiana Supreme Court granted writs and reversed the lower courts. Specifically, the court ruled that Article 2324(B) abolished solidarity among non-intentional tortfea-sors and makes each liable only for his own share of the fault. Though the issue of nonjoinder was not specifically in dispute in Dumas, the court noted that “[pjursuant to Article 2323, the fault of both the State and the allegedly negligent health care providers should be determined notwithstanding the fact that the health care providers are nonparties.” The court therefore allowed the issue of the medical malpractice of nonparties to be tried as an affirmative defense and, in remanding the case, did not require that the peremptory issue of joinder be considered by the trial court.

In this case, Magnolia’s evidence of the alleged joint tortfeasors also showed that those medical care providers could not be made parties to this Inaction because of the medical malpractice act. La. R.S. 40:1299.47.B(l)(a)(i). Therefore, the test of Article 642 was applicable.

The first factor under Article 642 tests the extent of prejudice to the non-joined party and the existing parties to the suit. While we will review the prejudice to the plaintiff in consideration of factor four, we do not find that Magnolia or any other joint tortfeasor will be prejudiced by the trial court’s denial of the exception on joinder. Articles 2823 and 2324 limit the defendant/tortfeasor’s liability to only his degree of fault as a joint and divisible obligor. By raising the affirmative defense, Magnolia may show the share of fault attributable to the absent health care providers thereby reducing its share of fault. Dumas, supra. Likewise, the health care providers, as defendants in Gibbs’ medical malpractice action, may also raise as an affirmative defense Magnolia’s negligence as a concurrent cause of the defendant’s injuries and death. Magnolia will bear no responsibility for any judgment of liability rendered in the malpractice proceeding.

The second factor tests whether the trial court measures can lessen or avoid prejudice. Since neither Magnolia nor the non-joined parties are prejudiced, this factor weighs more for the plaintiff and judicial administration. While the medical malpractice claim cannot presently proceed in district court, it may later be filed in the court after review by the medical review panel. At that time a measure to consolidate the actions might be appropriate.

The third factor asks whether a judgment rendered in a person’s absence will be adequate. The present action can adequately determine |12Magnolia’s share of fault in relation to the fault of the other tortfeasors alleged in an affirmative defense. The reduction in the payment of the joint and divisible obligation that Magnolia may owe with the other tortfeasors can be determined, and an adequate judgment can be rendered limited to an amount in relation to Magnolia’s degree of fault.

The adequacy of the judgment and the prejudice to the plaintiff are considered in the first and fourth factors. Here, because of the procedural impediment of the medical review panel, the plaintiff may not be able to have these matters tried together if she so desires. Therefore, the possibility of multiple or inconsistent judgments may affect the plaintiffs recovery. However, from this record, we do not have before us the facts concerning the other alleged tortfeasors and cannot, and should not at this stage of the proceedings, determine whether the acts of the defendants in both suits amount to concurrent and related negligence. Only the plaintiff can judge the existence of her prejudice, and she has brought this suit and opposed the peremptory exception for joinder indicating that she is not prejudiced. In opposing Magnolia’s exception, Gibbs asserts only the prejudice which she may experience if the case is dismissed. In addition to delay, Gibbs points out that prescription would run on her dismissed claim against Magnolia, and there is no guarantee that the defendants in the malpractice action will be determined to be negligent and joint tortfeasors with Magnolia. If so, the medical malpractice action may not act as an interruption of her claim against Magnolia under La. C.C. art. 2324(C). Therefore, with Gibbs asserting no prejudice to her in maintaining this action and with no | ^prejudice to the defendant or the non-joined parties, we find no error by the trial court in maintaining the action under La. C.C.P. art. 642.

Finally, we are unpersuaded by the ruling in Bonnette v. Tunica-Biloxi Indians, 02-919 (La.App. 3d Cir.5/28/03), 873 So.2d 1, 2003 WL 21229282, which is argued by Magnolia. The case appears inconsistent with the express wording of La. C.C. art. 2323, Dumas and our analysis under La. C.C.P. art. 642.

Conclusion

For the foregoing reasons, we affirm the judgment appealed and remand for further proceedings in accordance with this opinion.

JUDGMENT AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.

      . Violations of the Residents’ Bill of Rights Law relating to medical treatment constitute an “offense or quasi-offense’’ that give rise to the application of La. C.C. art. 2315, including the right of a survival action. Short v. Plantation Management Corp. 99-0899 (La.App. 1st Cir. 12/27/00), 781 So.2d 46. See also, Rachal v. Peters, 28,655 (La.App.2d Cir.9/25/96), 680 So.2d 1280; Robicheaux v. Adly, 02-37 (La.App. 3d Cir.6/12/02), 827 So.2d 429, writ denied, 02-2783 (La.2/7/03), 836 So.2d 100 and Hinson v. The Glen Oak Retirement System, 37,550 (La.App.2d Cir.8/20/03), 853 So.2d 726, writ denied, 03-2835 (La.12/19/03), 861 So.2d 572.

      . Magnolia’s assertion in argument of this ambiguity from the face of the petition may be considered as an exception of vagueness. The caption of the pleading does not control; the court is obligated to determine the substance of the pleading. Ford Motor Credit Co. v. Brown, 32,995 (La.App.2d Cir.4/5/00), 756 So.2d 654, 658.

      . La. C.C. art. 2315.1(B) provides: In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.

      . La. C.C.P. art. 801 provides: When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.
      As used in Articles 801 through 804, "legal successor” means:
      (1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and ...

      . The amendment to former La. C.C.P. art. 643 removing the statement that "joint obli-gees are necessary parties to any action to enforce a joint right” may indicate that the defendanl/obligor's protection from prejudice is to plead as a defense the principle of divisibility of the obligation reflected in C.C. art. 1789.

      . The appellate court has the power to notice the peremptory exception of nonjoinder on its own motion under La. C.C.P. arts. 927(B) and 645. When such failure is pleaded successfully in or noticed by an appellate court, the latter may remand the case for such amendment and further evidence. La. C.C.P. art. 646.

      . Also noteworthy to this discussion is the 1995 amendment to La. C.C.P. Art. 643 which eliminated the earlier language of that article that had classified "all joint obligors” as necessary parties to an action. See Historical and Statutory Notes, La. C.C.P. art. 643. The 1999 Official Revision Comments to La. C.C.P. art. 643 explain that "[tjhere is no theoretical base which requires the joinder of all joint ... obligors in Louisiana” because the obligation is divisible and not collective. Accord, Louisiana Civil Law Treatise: The Law of Obligations, Litvinoff § 7.23 Joint and Divisible, Procedural Aspects.


source: Caselaw Access Project

author: CARAWAY, J. BROWN, C.J.,

license: Public Domain

text:
    James FUTCH, Plaintiff-Appellant, v. J.O. “Jim” BAILEY, Defendant-Appellee.
    No. 38,324-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Johnson & Placke, L.L.P. by Don H. Johnson, West Monroe, for Appellant.
    Davenport, Files & Kelly, L.L.P. by Ramsey L. Ogg, Monroe, for Appellee.
    Before BROWN, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

In this workers’ compensation case, the magnitude of the work-related accident and the extent of the plaintiffs injury were significantly disputed. Although the plaintiff was initially disabled from work, he returned after a few weeks and worked for another two months before being laid off by his employer due to business conditions. After consideration of the accident and medical testimony, the workers’ compensation judge determined that no job-related disability resulted and dismissed plaintiffs claim. Finding no manifest error in this ruling, we affirm.

Facts

James R. Futch (“Futch”) is a 62-year-old construction supervisor with a history of working manual labor jobs since age 14. Futch was employed by a commercial building contractor, J.O. Bailey General Contractor, Inc. (“Bailey”), between December, 1999, and the middle of January, 2001. Bailey hired Futch as a “working carpentry supervisor” or “working superintendent” and paid him a weekly salary.

The accident in question occurred on Thursday, October 26, 2000, at a commercial bank building that Bailey was remodeling. Futch and his co-worker, John Sims, were getting ready to “take a wall out.” Futch was standing near Sims, who was on a twelve-foot ladder removing acoustic ceiling tiles. Futch testified that a cinder block fell from the ceiling, hit him on the top of his head, “blacking] him out,” momentarily. Sims testified that some cinder block pieces about the size of a man’s hand came out of the ceiling while he removed the tiles, but he did not see anything hit Futch.

It was reported at trial that cinder block pieces are customarily placed on the top of the inside of the tile, in the corners, to make the tile lie down flat. Futch introduced into evidence as Exhibit P-2 a flat cinder block approximately 15/4" x 754" x 154" thick. He identified the exhibit as the type of cinder block which hit him in the head. After the accident he said he found three pieces of such a cinder block lying on the floor where he was hit.

Futch testified that he finished the workday and returned to work the next day. After the weekend, he was out sick until Wednesday, when he first sought medical treatment at the Monroe Medical Clinic. Futch complained of neck and shoulder pain due to cinder blocks falling “on right shoulder” six days earlier. X-rays of the cervical spine and both shoulders revealed degenerative disc syndrome and arthritis but no sign of any recent bone damage in the neck or shoulder. The doctor diagnosed cervical sprain and right shoulder strain and ordered Futch to stay off of work for the rest of the week. Futch returned to the clinic one week later for a follow-up visit and reported that he was starting to get better. The physician ordered physical therapy and continued Futch’s medications for pain and muscular sprains. Futch was released to work on a light duty restriction and returned to work November 13.

During his next visit to the clinic on November 22, Futch reported that he was “slowly getting better.” The doctor again indicated a return to light duty with a restriction against lifting with the right arm. During Futch’s next visit one week later, he complained of numbness in his right thumb and index finger and muscle soreness in his right shoulder. At this point, he was referred to Dr. Nawas, an orthopedic surgeon, for evaluation of his right shoulder. Nevertheless, Futch returned to the clinic twice more. On December 14, after his consultation with Dr. Nawas, Futch returned to the clinic and requested a full work release. The doctor’s note indicated that the shoulder strain was resolved and Futch was released to full duty. Futch testified that he requested the release to work because he feared that he might lose his job if he remained on partially disabled status.

When Dr. Nawas examined Futch on December 11, 2000, he diagnosed tenderness of the trapezius muscle, between the shoulder blades, which Futch told him was caused by a three-pound cinder block falling on him. Futch did not report any problems with his lower back. Dr. Nawas treated Futch with a steroid injection and told him to go back to work.

Futch’s next doctor visit occurred on January 10, 2001, when he visited his family practitioner, Dr. Yarbrough, complaining of low back pain, frequent urination, and bloody urine. Dr. Yarbrough diagnosed prostatitis. Futch did not report any workplace incident or accidental injury to Dr. Yarbrough during any of the four office visits which occurred over the next six weeks. At his last two visits in February, he complained of flank, penis and testicle pain, and heel pain. At his deposition, Dr. Yarbrough testified that Futch’s low back pain was not related to any type of head or neck injury. A lumbar spine x-ray taken on April 4, 2001, revealed degenerative changes indicative of degenerative disc disease.

In May, 2001, a second orthopedic surgeon, Dr. Douglas Brown, started treating Futch for neck and back pain. Futch told Dr. Brown that a cinder block struck him on his head and low back while he was bending over to lift a box. This was the first medical report indicating that Futch had been hit in the lower back. Dr. Brown eventually concluded that Futch had a 5% permanent impairment due to a degenerative back condition and released him back to work at a medium work level. Beginning in June, 2002, Futch began complaining of problems with his right thumb and hand, which Dr. Brown diagnosed as Quervain’s Syndrome related to Futch’s guitar playing.

Futch received physical therapy from two different providers. Initially, Therapy Works, Inc. treated Futch for tenderness in his neck and shoulders resulting from cervical and right shoulder strain. The therapist’s evaluation stated that Futch “reported that his condition began when a cinder block fell on his head at work.” Futch completed nine of ten visits scheduled with Therapy Works during November, 2000. Beginning in October, 2001, Futch was treated by Wied Physical Therapy for pain in his left low back and shooting pain down the back of his leg into his heel. Futch gave a history of being hit on the head with a cinder block on October 26, 2000. A functional capacity evaluation conducted by Wied concluded that Futch tested out at a “medium” work level.

Finally, Futch sought treatment from Dr. Lawrence Danna on April 12, 2001, for a swollen left ear. Dr. Danna’s handwritten notes stated that Futch’s chief complaint was that a “cement block fell on his left ear,” that the block fell ten feet, and that the top of his left ear had been swollen since November, 2000.

During the course of seeking medical attention at the Monroe Clinic and attending physical therapy, Futch worked for Bailey sporadically during November and December of 2000 and continued to receive payment of his weekly $600 salary “in lieu of compensation.” Bailey’s time records showed that Futch worked 33 days between November 13 and January 17. On January 17, 2001, Bailey laid Futch and two other supervisors off because of a lack of work. Futch has since been unemployed.

Futch filed a disputed claim for workers’ compensation benefits on March 7, 2001, alleging that “a cinder block and pieces of cinder block fell on him, knocking him down, injuring his right shoulder, back and neck.” Following trial, the workers’ compensation judge (WCJ) ruled against Futch’s claim. The reasons for judgment were best summarized by the WCJ as follows:

While this court is persuaded that debris fell from the ceiling being removed by defendant’s employee, Mr. Sims; and while this Court is persuaded that certain debris struck claimant, this Court is equally persuaded that the amount, size and weight of the debris is different than the debris described by claimant and offered as Plaintiffs Exhibit 2. Furthermore, claimant’s inconsistent versions concerning the part of his body struck by the debris has caused this Court to question the causal relationship between any injury he sustained and any disability he suffered. I note that during claimant’s testimony his versions of the accident differed in accordance with the part of his body for which he proclaimed injury. He has contended that the falling debris injured his head, ear, shoulder, lower back, groin, heel, hip and leg. His contentions are not believable and border the inconceivable.

Futch now appeals the denial of his claim for temporary total disability benefits and payment of any further benefits for medical treatment.

Discussion

Initially, we address appellant’s argument that the WCJ should have admitted the March 28, 2003 decision of the Social Security Administrative Law Judge into evidence. The ruling determined that Futch was entitled to social security disability benefits and was based upon the same medical records and reports submitted to the OWC. The ruling was issued after the trial of this matter and proffered into the record before the WCJ’s rendition of judgment. We find Futch’s argument unpersuasive. As Bailey points out, many factors are evaluated in finding a person disabled for the purposes of entitlement to social security benefits which are unrelated to the causal connection between a worker’s disability and accidental injury occurring in the workplace. For example, the rules for finding adult disability in a social security proceeding describe a five-step evaluation to assess the severity of the impairment, the claimant’s ability to do his past work, and the residual functional capacity of the claimant. 29 C.F.R. § 416.920. This assignment is therefore without merit.

An employee is entitled to compensation benefits for personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A). The employee has the burden of establishing a causal connection between the disability and the accident by a preponderance of the evidence. Foy-Watson v. General Motors Corp., 37,106 (La.App.2d Cir.5/14/03), 847 So.2d 85; Pugh v. Casino Magic, 37,166 (La.App.2d Cir.4/11/03), 843 So.2d 1202; Armstrong v. Horseshoe Casino, 36,927 (La.App.2d Cir.3/5/03), 839 So.2d 1028. The causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Thompson v. Dillard’s Department Store, 32,974 (La.App.2d Cir.5/10/00), 759 So.2d 1074. However, an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. When the claimant proves that he had no disabling symptoms before the accident, but that commencing with the accident, the disabling symptoms appeared, and there is medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, a claimant’s work injury is presumed to have aggravated a pre-existing infirmity to produce his disability. Id.

In determining whether the worker has discharged his 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 v. Harbert Int’l, 593 So.2d 357 (La.1992); Foy-Watson v. General Motors Corp., supra. The fact finder’s determination as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno v. Harbert Int’l, supra; Foy-Watson v. General Motors Corp., supra. When findings are based on determinations regarding 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. Bruno v. Harbert Int’l, supra; Armstrong v. Horseshoe Casino, supra. In applying the manifest error standard, the appellate court must determine not whether or not the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Armstrong v. Horseshoe Casino, supra, citing Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). Causation is not necessarily and exclusively a medical conclusion; it is usually the ultimate fact to be found by the court based on all of the credible evidence. Pugh v. Casino Magic, supra.

As shown by the above quote from the WCJ’s reasons for judgment, the WCJ did determine that an accident occurred when the falling debris and cinder block fell on Futch. The WCJ, however, could determine from the testimony that a large 15]6" x 7/6" slab of cinder block did not crash down on Futch. From his own testimony at trial, Futch only recalled being struck in the head. He admitted that he never felt being struck in the shoulder or lower back. He stated that after the accident he saw three pieces of cinder block which, he claimed, formed a shattered 15/6" x 716" cinder block. He also claimed that Sims told him after the accident that he had been “hit all over [his] back” by debris and that, on the basis of Sims’ report, he later told some of the doctors that he was struck in the shoulder or back. Sims did not give such report in his testimony before the WCJ. Therefore, from the standpoint of credibility, the WCJ could conclude that a much smaller piece of cinder block struck Futch on the head and right shoulder resulting only in the injuries which Futch temporarily experienced over the weeks immediately following the accident.

The WCJ’s conclusion is further supported by Futch’s initial reports of injury and the treatment he received immediately following the accident. His lower back pain which now represents the most significant disabling injury was not reported to and treated by the doctors at Monroe Medical Clinic or Dr. Nawas. His release to return to work by those doctors is evidence that Futch’s back condition was not manifested following the accident. Clearly, his degenerative spinal condition causes his back pain, at least in part, yet the initial medical examinations did not find a causal link between the accident and the back problem.

With the above evidence in support of the WCJ’s conclusion, manifest error is not shown merely by Dr. Brown’s conclusion that Futch’s injury to his lower back could have been caused by his receipt of a blow to the head or shoulder while bent over in a flexed position. Likewise, Futch’s position that he reported back pain to other workers long before his treatment by Dr. Yarbrough does not outweigh the evidence of the initial medical providers that a back injury was not present. Accordingly, from our review of evidence under the manifest error rule of appellate review, the factual conclusion of the WCJ may be affirmed.

Conclusion

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed at appellant’s cost.

AFFIRMED.

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

BROWN, C.J.,

Dissenting.

Plaintiff, a 62-year-old construction supervisor, had a work-related accident. Plaintiff indicated that he was in good health when debris fell down upon him. The amount of debris is in dispute. As a result, plaintiff suffered neck and shoulder injuries. Whether he also aggravated a degenerative back condition is disputed. There was no evidence that there had been an intervening event.

The accident occurred on October 26 and soon afterward plaintiff complained of neck and shoulder pain. About two months after the accident, plaintiff reported to his physician low back pain and shortly thereafter, Dr. Brown gave plaintiff a permanent impairment rating due to his back condition. The Social Security Administrative Law Judge, Charles Lindsay, found that “based on the medical evidence and the established residual functional capacity, the claimant is unable to return to either of his former occupations.” As stated by the majority, “an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which the compensation is claimed.” The short time between the accident and plaintiffs complaints of back pain is insufficient to be characterized as an intervening event. This is particularly true when there were immediate complaints and related treatment for neck and shoulder pain. As stated by the majority, there is a presumption of a causal connection between the accident and the disabling condition when there are no disabling symptoms before the accident but, commencing with the accident, the symptoms appear. I believe the WCJ was clearly wrong.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS, and MOORE, JJ.

Rehearing denied.

BROWN, C.J., and would grant rehearing.


author: 11 STEWART, J.

text:
    Willie J. YOUNG, Sr., et al, Plaintiffs-Appellees, v. Patricia SANDERS, Defendant-Appellant.
    No. 38,412-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Charles C. Foti, Jr., Attorney General, Angie R. LaPlace, Frances Pitman, Roy A. Mongrue, Jr., Assistant Attorneys General, for Appellant Louisiana Dept, of Justice.
    Larry English, Shreveport, for Appel-lees Willie J. Young, Sr., Lurry Crew, Maxine Wilson, Leamon Cheatham, Linda K. Robinson and Vanessia A. Thompson.

      Before STEWART, DREW and MOORE, JJ.
   11 STEWART, J.

This appeal arises from an attempt to recall Huey P. Dean, Mayor of the Town of Homer, Louisiana, pursuant to La. R.S. 18:1300.1 et seq. Patricia Sanders, the Registrar of Voters for Claiborne Parish, disqualified certain names from the recall petition on the grounds that they were either written in print or did not look like the names on the voter registration cards. The plaintiffs, signers of the recall petition, sought a writ of mandamus directing Sanders to certify the names that she had disqualified. After a hearing, the trial court rendered a judgment ordering Sanders to return 66 names to the recall petition and to forward the petition of recall to the Governor. This appeal by the Attorney General of Louisiana followed. For the following reasons, we affirm the trial court’s judgment.

FACTS

A recall petition aimed at recalling Huey Dean, Mayor of the Town of Homer, was presented to Sanders, the Registrar of Voters, for certification in accordance with La. R.S. 18:1300.1 et seq. Sanders disqualified 42 names from the recall petition because the names had been printed by hand on the signature block of the recall petition rather than signed in cursive. Sanders also disqualified a number of other names upon concluding that the signatures of the electors on the recall petition did not look like the signatures on their voter registration cards.

A group of voters who signed the recall petition, the plaintiffs herein, filed a petition for a writ of mandamus to compel Sanders to certify the names of the voters she had disqualified. We note that one of the plaintiffs was struck from the petition due to not having signed the recall petition. |2The matter came for a hearing before the trial court on September 11, 2003. The parties agreed that the two essential issues to be determined were whether Sanders was authorized to strike the signatures that were printed on the recall petition and whether she was authorized to strike the signatures which she believed did not match the signatures on the voter registration cards.

With regard to the first issue concerning the validity of printed names on the recall petition, the trial court noted the requirement that all signatures on the recall petition be handwritten as set forth in La. R.S. 1300.2(B) and concluded that this requirement encompassed printed signatures. As such, there were 42 printed names that had been improperly disqualified by Sanders. The trial court noted that in the absence of a statute prescribing the method of affixing one’s signature, a signature may be affixed in different ways. The trial court further noted that the person subject to the recall suit could file suit and attempt to prove the printed signatures to be fraudulent or forged.

With regard to the second issue concerning signatures disqualified because Sanders believed they did not look like the signatures on the voter registration cards, the plaintiffs presented the testimony of Roberta Paschal, a notary public for Claiborne Parish. Paschal testified that she notarized 57 affidavits of individuals verifying the validity of their signatures on the recall petition. These affidavits were admitted into evidence, and of these affidavits, the court accepted 49 only. The court determined that 25 of those affidavits were by persons who had printed their signatures on the recall ^petition. This created an overlap between the number of affidavits accepted by the court and the signatures wrongly disqualified because they were printed. Therefore, a total of 66 names were found to have been improperly disqualified and were returned to the recall petition. Of the 66 names, 49 were verified by affidavit and 17 were printed names returned to the petition of recall without other verification.

Under La. R.S. 18:1300.2(B), the petition was required to be signed by a number of electors of the voting area “as will in number equal not less than thirty-three and one-third percent of the number of the total electors of the voting area wherein and for which a recall election is petitioned.” In the instant case, the plaintiffs needed 61 signatures added back to the petition to have the required 33% percent. With 66 names added back to the petition, the required percentage was met, and the trial court ordered Sanders to forward to the governor the names of the qualified electors who signed the recall petition.

DISCUSSION

The Louisiana Attorney General raises four assignments of error on appeal. The first assignment of error challenges the trial court’s finding that the registrar of voters had no authority to determine the validity of the signatures on the recall petition. The second and third assignments of error challenge the trial court’s finding that the term “handwritten” includes printed signatures and the return of 17 printed names to the recall petition even though there was no other evidence validating the signatures. The fourth assignment of error challenges the grant of mandamus relief when the | verification of signatures on the recall petition involves an exercise of the registrar of voter’s discretion.

We begin our analysis with the fourth assignment of error. Under La. R.S. 18:1300.3(D), if the registrar of voters refuses to execute the certificate described in R.S. 18:1300.3(A), any signer of the recall petition, or a designated chairman or vice-chairman representing the signers, may utilize summary process to compel the registrar to execute the certificate. Moreover, under the provisions of La. C.C.P. art. 926, the unauthorized use of a summary proceeding is a dilatory exception that is waived unless pleaded. Here, there was no objection to the use of summary proceeding, nor was there any objection to the introduction of the affidavits verifying the signatures on the recall petition. Accordingly, under the facts established in this record, we find no merit in this assignment of error.

The issues raised by the three remaining assignments of error all broadly pertain to whether the registrar has authority to reject a person’s handwritten signature because, in the registrar’s estimation, it does not “reasonably compare” to the person’s signature on the voter registration card. For the reasons which follow, we conclude that a registrar’s duty in certifying the number of qualified electors whose handwritten signatures appear on the recall petition is limited to simply comparing the names on the recall petition to the names appearing on the registrar’s record of electors. The registrar has neither the duty, nor the discretion, to compare a signature on a recall petition with a signature on a voter registration card and then |Bstrike the signature if, in the registrar’s opinion, the signatures were not made by the same hand.

Because the recall election is a harsh remedy, the provisions which govern the recall process must be strictly construed. Cloud v. Dyess, 172 So.2d 528 (La.App. 3d Cir.1965). La. R.S. 1300.3(A) provides, in pertinent part, as follows:

A. The registrar of voters of each parish in the voting area wherein a recall election is sought shall certify on the recall petition, within fifteen working days after it is presented to him for that purpose, the number of names appearing thereon, the number of qualified electors of the voting area within the parish whose handwritten signatures appear on the petition, and also the total number of electors of the voting area within the parish as of the date of the filing of the petition with the secretary of state.

The registrar is also required to indicate names appearing on the petition of individuals who are not electors of the voting area. La. R.S. 18:1300.3(A).

In determining the number of qualified electors of the voting area who signed the petition, the registrar is directed by La. R.S. 18:1300.3(E) to comply with the provisions of La. R.S. 18:3(C). This provision states:

C. In determining the number of persons signing the petition who are electors in the voting area for the purpose of certifying the petition, the registrar shall not include any person who has not affixed to the petition his signature and the address at which he is registered to vote or any person who does not appear on the registrar’s roll of electors. The signature of an elector shall include the surname under which the elector is registered to vote. The signature may include the elector’s surname, first, and middle name, the initials of his surname, first, and middle name, or any combination thereof as the form in which his name appears on the petition, but shall not designate a title, designation, or deceptive name, nor shall it designate an occupational or professional description or abbreviation. However, the signature of a married woman may include her husband’s surname, first, and middle name, the initials of his surname, first, and middle name, or any combination thereof, preceded by the title “Mrs.” as the form in which her name appears on the petition, but only if she has registered under her husband’s name preceded by the title “Mrs.”.

LLa. R.S. 18:3(C).

The registrar of voters disqualified a number of signatures on the recall petition because they had been written in print. The Louisiana Election Code defines “signature” as “the name of a person which is signed,” and this definition includes “the handwritten, electronic, or digitized name of an individual, except when the handwritten signature of the individual is specifically required.” La. R.S. 18:2(7). Petitions submitted to a registrar of voters for certification are required to contain the “handwritten signature of the voter who is signing the petition.” La. R.S. 18:3(A)(1). With regard to the signature affixed to a recall petition, La. R.S. 18:1300.4 provides only that “(N)o person may sign any name to a recall petition other than his own” and makes provisions for those who are incapacitated and unable to write. We find nothing in the relevant statutory provisions which would prohibit an elector from affixing his handwritten signature by printing it. Accordingly, we find no error in the trial court’s determination that the 42 names printed on the recall petition had been improperly disqualified and must be returned to the recall petition for certification by the registrar of voters.

With regard to the registrar’s striking of signatures on the recall petition because they did not look like the signatures on the voter registration cards, we note that the relevant statutory provisions do not provide a procedure for direct comparison of the signatures on the recall petition with the signatures on the voter registration cards to determine whether the signatures look alike or are written in the same hand or writing 17style. In complying with the provisions of La. R.S. 18:3(C), as quoted above, when determining the number of qualified electors in the voting area who signed the recall petition, the registrar’s duty is limited to a comparison of the handwritten name of the voter with the name under which the voter has registered, not a comparison of the hand or writing style in which the name on the recall petition appears with that on the voter registration card.

Moreover, the recall remedy is statutorily designed for prompt action following circulation of a recall petition. Cloud v. Dyess, supra. In voting areas with less than 50,000 registered voters, the registrar has only 15 working days after being presented with a recall petition to certify the petition. La. R.S. 18:1300.3(A). This short time frame is hardly conducive with the onerous duty of comparing signatures on a recall petition with signatures on individual voter registration cards to determine whether the two signatures were written by the same hand. Had the legislature intended for the registrar to have the significant burden of rejecting signatures on a recall petition for their apparent failure to “reasonably compare” with signatures on voter registration cards, then the legislature would have provided a procedure for the registrar to challenge a signature, to send notice to the voter whose signature was questioned, and to provide the voter with an opportunity to verify the signature. Although no such procedure has been enacted, the legislature has provided the means by which a public officer subject to recall may challenge the recall on the basis of fraud or other illegality.

| sUnder the provisions of La. R.S. 18:1300.3(0), a copy of the recall petition, once certified, shall be retained in the office of the registrar of voters in each parish affected by the petition and shall be a public record. Furthermore, under the provisions of La. R.S. 18:1300.17, nothing in the statutes on recall elections shall be construed to deny any public officer recalled, or whose recall is sought, the right to contest the recall or any related proceedings in a court of competent jurisdiction for fraud or other illegality. Thus, a public officer whose recall is sought may review a copy of the recall petition and contest its certification. As provided in La. R.S. 18:1405(F), an action contesting certification of a recall petition shall be instituted within 15 days after the governor has issued a proclamation ordering the recall election, or if no recall election is called, within 15 days after the last day for the governor to call the election. Accordingly, the established election procedures provide the public officer whose recall is sought with the opportunity to challenge the names on the recall petition when there is suspicion about the validity of the signatures.

Under the established procedures of the election code, the registrar’s duty is to certify that the signatures on the recall petition are electors in the voting area, and questions regarding the validity of such signatures are to be raised in the context of a suit by the public official subject to recall. In this way, improvised procedures in the course of recall efforts, such as the actions taken by the plaintiffs in this matter, may be avoided, particularly as such improvised procedures are hardly desirable in election matters.

|aFor these reasons, we conclude that the Registrar of Voters for Claiborne Parish should not have deleted the printed name of any voter on the recall petition as these names were, in fact, “handwritten signatures” as contemplated under La. R.S. 18:1300.3(A). We find no error on the part of the trial court in either adding those printed signatures back onto the recall petition or adding back the signatures verified by affidavit. The trial court correctly concluded that the total number of signatures added back to the recall petition was sufficient to require the recall petition to be certified and sent to the governor.

CONCLUSION

For the reasons set forth above, we hereby affirm the judgment of the trial court.

AFFIRMED.

      . Compare the procedure for challenging absentee ballots found in La. R.S. 18:1315.


author: k CARAWAY, J.

text:
    George HOOKER, Jr., Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 38,350-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Street & Street by C. Daniel Street, for Appellant.
    McGlinchey Stafford, PLLC by Stephen P. Beiser, New Orleans, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   k CARAWAY, J.

This case has recently been before this court concerning an award of benefits by the Office of Workers’ Compensation to plaintiff for three weeks of disability following a work place injury. Hooker v. Wal-Mart Stores, Inc., 38,244 (La.App.2d Cir.3/3/04), 867 So.2d 869. This district court suit was also instituted in connection with plaintiffs three-week absence from work which resulted in his dismissal from employment. Plaintiff claims his dismissal was in retaliation for his assertions for workers’ compensation benefits in violation of La. R.S. 23:1361. Following a motion for summary judgment by the employer, the trial court dismissed plaintiffs suit. Finding that the issue of the employer’s motive for the employee’s dismissal remains clouded by genuine issues of material fact, we reverse the trial court’s ruling and remand for further proceedings.

Facts

George Hooker, Jr. went to work for Wal-Mart stocking groceries at a Monroe Wal-Mart store in 2000. On September 3, 2002, Hooker was working inside a trailer using an electric pallet jack to unload groceries from a delivery truck. While doing so, the equipment malfunctioned causing boxes to fall and the trailer’s rear door to come down and strike Hooker on the head. Hooker reported the accident immediately to James Tedleton, the market manager, but alleges that he was denied medical attention until the following day. The next day, Tedleton took Hooker to the North Monroe Medical Center emergency room where he was diagnosed with cervical spine strain, chest wall strain and a minor scalp contusion.

| i>On the day of the accident, Hooker completed a form entitled “Associate Statement — Workers Compensation” describing the accident. On the following day when he was taken to the doctor, he completed a second form entitled “Workers’ Compensation Request for Medical Care” which contained a release authorizing Wal-Mart to obtain copies of Hooker’s medical records regarding his occupational injury.

Hooker returned to work on light duty for several days during which the condition worsened. On September 17, 2002, while taking an already scheduled week of vacation, Hooker saw his orthopedist, Dr. Sidney Bailey. Dr. Bailey previously diagnosed Hooker with degenerative changes in his neck and explained that this condition made Hooker more susceptible to injury. Dr. Bailey recommended physical therapy and gave Hooker a note stating, “George Hooker needs to be off work until 10-7-02.” Hooker made an appointment to see Dr. Bailey again on October 10, 2002. That day, Hooker took the note to Wal-Mart and gave it to the personnel manager, Sandra Johnson.

On September 20, 2002, Dr. Bailey’s office received a fax from Angie Nichols, a case manager with Claims Management, Inc. (“CMI”), Wal-Mart’s third-party administrator. The fax stated that Hooker had filed a compensation claim with CMI and asked the doctor to complete an attached temporary alternative duty form and treatment plan and fax it back to CMI “as soon as possible.” The fax stated that ‘Tour assistance in this matter will allow the associate to safely recover at work, earn a full wage, and continue to receive benefits.”

[üThe September 20, 2002 fax was followed up by a second faxed letter from a nurse at CMI, Eloise Leonard. This fax noted Dr. Bailey’s diagnosis of a cervical sprain/strain and stated that Wal-Mart could provide the employee with a modified position under any restrictions the doctor outlined. The letter asked, “What harm could come to Mr. Hooker working within restrictions for a cervical sprain?” The fax also asked the doctor to complete a “work form” outlining specifically the restrictions to be placed on Hooker’s work.

On September 25, 2002, Dr. Bailey completed the temporary alternative duty form. He noted on the form that Hooker needed to alternate sitting and standing, could not work on a ladder and could not reach over his head or work over his shoulders. The doctor could not explain what prompted him to change his recommendation from “no work until October 7” to light-duty work, but confirmed that he did not re-examine Hooker before doing so. Dr. Bailey testified that is was unusual that he responded so promptly to this request and that “some level of urgency” must have been communicated to him. He speculated that these circumstances prompted the amended recommendation.

Dr. Bailey completed another temporary alternative duty form on October 7, 2002, again indicating Hooker’s work restrictions.

Hooker testified in his deposition that he was not informed of this new light duty recommendation by the doctor’s office. Dr. Bailey did not know whether Hooker was notified of this information or even aware that communications occurred.

|4On September 25, 2002, Wal-Mart notified Hooker that he should return to work. When he called CMI, Angie Nichols informed him of his doctor’s revised recommendation as to his work status. She also informed him that he would be paid one day of workers’ compensation benefits, after which he was authorized to return to work.

Thereafter, Hooker went into Wal-Mart where a manager, Derek Blue, and another employee, Mary Edmonson, told him his doctor released him to light duty and that Wal-Mart had a light-duty job for him. He testified that while he was shown Dr. Bailey’s note of September 25, 2002, he did not believe it was accurate because he had not seen the doctor since September 17, 2002. Although Hooker initially agreed to return to light duty work the following day, he changed his mind and told them he would not return to work until October 7, 2002, as originally recommended by Dr. Bailey. Hooker was afraid that he would be ordered to do heavier work because before, while he was on “light duty” for an earlier accident, he was suspended for refusing to follow an order.

Hooker heard for the first time that Wal-Mart terminated him while attending physical therapy. He received correspondence from Wal-Mart dated October 1, 2002, informing him that he had been terminated for failing to report to work on September 26, 27, 28, 29 and 30. On October 7, 2002, Hooker reported back to work at Wal-Mart and was again informed that his employment was terminated.

Hooker returned to Dr. Bailey on October 10, 2002. The doctor released Hooker to full duty then and recommended additional physical | ¡^therapy. Dr. Bailey said that while most of the therapeutic exercises could be done at home, others require a therapist. Dr. Bailey’s records showed Wal-Mart refused payment for the additional therapy.

In addition to claims for workers’ compensation and unemployment benefits, Hooker filed the instant suit on October 8, 2002, claiming that he was discharged in retaliation for filing a workers’ compensation claim in violation of La. R.S. 23:1361. Wal-Mart moved for summary judgment alleging that there was no genuine issue of material fact based upon the deposition testimony of Dr. Bailey and Hooker.

Hooker opposed the motion and submitted the transcript of the workers’ compensation judge’s (‘WCJ”) ruling. The WCJ found that Hooker had suffered an injury at work and that Dr. Bailey’s release of Hooker to light duty work was not based on any change in his condition, but “on whatever information was provided to him by the representative of the employer.” The WCJ concluded that the employer had improperly contacted Dr. Bailey in violation of La. R.S. 23:1127, and further had 1^improperly discussed Hooker’s medical history with an unauthorized person, his cousin. The WCJ awarded Hooker temporary total disability benefits.

The trial court granted Wal-Mart’s motion for summary judgment and dismissed Hooker’s suit with prejudice. Hooker now appeals.

Discussion

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action except those disallowed by law. La. C.C.P. art. 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(l-2). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1). A fact is material if its existence or non-existence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Curtis v. Curtis, 28,698 (La.App.2d Cir.9/25/96), 680 So.2d 1327. The burden of proof remains with the mover unless he would not bear the burden at the 17trial of the matter before the court on the motion for summary judgment. La. C.C.P. art. 966(C)(2).

When a motion for summary judgment has been properly made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.

In determining whether a fact is material, we must consider the substantive law governing the litigation. Plaintiffs claim for retaliatory discharge is based on La. R.S. 23:1361 which provides in pertinent part:

B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with reasonable attorney’s fees and court costs.

The purpose of the statute is “to prevent unjust dismissals and to allow employees to exercise their right to workers’ compensation benefits without fear of retaliatory action by their employers.” Ducote v. J.A. Jones Construction Co., 471 So.2d 704, at 707 (La.1985). Even so, the employee 1 Rbears the burden of proving by a preponderance of the evidence that he was terminated for that reason. Lewis v. Willamette Industries, Inc., 537 So.2d 780 (La.App. 2d Cir.1989), writ denied, 540 So.2d 331 (La.1989). When the employer offers another justification in connection with firing a workers’ compensation claimant, the trial court must ascertain the employer’s true reason or motive based on the facts presented. An employer cannot circumvent the statute by stretching the facts out of context or inventing an excuse for firing a compensation claimant. Lewis, at 783.

The trier-of-fact’s function in a retaliatory discharge claim such as this is to ascertain the true motive for the employee’s discharge. King v. Career Training Specialists, Inc., 35,050 (La.App.2d Cir.9/26/01), 795 So.2d 1223. Even though the summary judgment procedure is favored, it is not a substitute for trial and is often inappropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Harrison v. Parker, 31,844 (La.App.2d Cir.5/5/99), 737 So.2d 160, writ denied, 99-1597 (La.9/17/99), 747 So.2d 565. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263. Additionally, the circumstantial evidence usually necessary for proof of motive requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling.

In the instant case, the only evidence both supporting and opposing the motion for summary judgment was the deposition testimony of the claimant and Dr. Bailey and the WCJ’s findings. After our review of this ^evidence, we believe the circumstances surrounding Hooker’s discharge establish a genuine issue of fact precluding summary judgment.

There are two facts that weigh against Wal-Mart in this matter. First, the WCJ determined that Hooker was disabled and entitled to workers’ compensation wages benefits when Wal-Mart fired him. That ruling has been affirmed by this court. Second, in accordance with La. R.S. 23:1127, Wal-Mart’s case manager did not provide Hooker a “written summary” or “narration” of Dr. Bailey’s “diagnosis or opinion” which was purportedly obtained by the case manager in communications with Dr. Bailey. One purpose of this statute is to avoid the misunderstandings and bruised feelings which the employee might experience from an informal discussion of his medical condition by the employer or case manager. Instead, the case manager is first required to document the communication received from the employee’s doctor regarding the employee’s reasonable return to employment. When such written documentation is furnished to both the employee and the doctor, the employee may privately review the report and discuss and verify its content with his health care provider.

Wal-Mart’s decision to fire Hooker was therefore reached through an improper procedure in clear ■violation of the workers’ compensation laws. The employee’s reaction to Wal-Mart’s violation of the law served as Wal-Mart’s justification for the firing. Whether Wal-Mart acted in error or with a retaliatory motive for Hooker seeking workers’ compensation benefits is for the trier-of-fact to decide from the circumstantial evidence of this case. 11 (Accordingly, the trial court’s grant of summary judgment was in error and is reversed. Costs of this appeal are assessed against Wal-Mart.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . La. R.S. 23:1127 provides:
      A. It is the policy for the efficient administration of the workers’ compensation system that there be reasonable access to medical information for all parties to coordinate and manage the care for the injured worker and to facilitate his return to work.

      C. (1) Consistent with the policy of reasonable access to medical information for all parties and notwithstanding the provisions of Article 510 of the Louisiana Code of Evidence or any other law to the contrary, a health care provider, without the necessity of a subpoena or other discovery device, shall verbally discuss medical information regarding the injured employee with another health care provider examining the employee, a case manager, or a vocational rehabilitation counselor assigned to provide rehabilitation for
      that insured worker. No health care provider or his employee or agent shall be held civilly or criminally liable for disclosure of the medical information conveyed pursuant to this Section. This Paragraph shall not apply to examinations conducted by medical examiners appointed by the director pursuant to R.S. 23:1123.

      (3) In addition to any other duty or responsibility provided by law, a case manager or vocational rehabilitation counselor who is a party to a verbal communication with the health care provider regarding an employee, as authorized by Paragraph (1) of this Subsection, shall, within five working days of the communication, mail a written summary of the communication and any work restrictions or modifications required for the employee's reasonable return to employment to the employee, his representative, and the health care provider. The summary shall be mailed by certified mail, return receipt requested, to the employee or his representative. It shall include a narration of any diagnosis or opinion given or discussed, any conclusions reached concerning the vocational rehabilitation plan, any return to work opportunities discussed consistent with the vocational rehabilitation plan, and the medical evaluation of the health care provider.
      (4) Any medical information released in writing shall be furnished to the employee at no cost to him simultaneously with it being furnished to the employer, its insurer, agent, or representative. Any such records or information furnished to the employer or insurer or any other party pursuant to this Section shall be held confidential by them and the employer or insurer or any other party shall be liable to the employee for any actual damages sustained by him as a result of a breach of this confidence up to a maximum of one thousand dollars, plus all reasonable attorney fees necessary to recover such damages. An exception to this breach of confidentiality shall be any introduction or use of such information in a court of law, or before the Office of Workers' Compensation Administration or the Louisiana Workers' Compensation Second Injury Board.

      . The WCJ's ruling was affirmed by this court in Hooker v. Wal-Mart Stores, Inc., supra.


author: JjLOLLEY, J.

text:
    Robert D. RYAN and Patricia Ann Adams Ryan, Plaintiffs-Appellants, v. Robert Glen LEE and Mary Alice Williams Lee, Defendants-Appellees.
    No. 38,352-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2004.
    Rehearing Denied May 6, 2004.

      Gaharan & Wilson by Donald R. Wilson, Jena, for Appellants.
    Brown, Erskine, Burkett & Breithaupt by Donald R. Brown, Monroe, for Appel-lees.
    Before BROWN, MOORE, and LOLLEY, JJ.
   JjLOLLEY, J.

In this possessory/boundary action, Robert and Patricia Ryan appeal a judgment by the Thirty-Seventh Judicial District Court for the Parish of Caldwell, State of Louisiana, partially in favor of Glenn and Mary Alice Lee. In response, the Lees answer the Ryans’ appeal as to that portion of the judgment in favor of the Ryans. For the following reasons, we reverse in part and affirm in part.

Facts

Substantive facts

The Ryans and Lees are adjacent land owners. Robert Ryan (“Bobby”) purchased property in June 1970 from his father, Aaron “Bubba” Ryan. That property is described as: “the West thirty (30) acres of the Northwest Quarter of the Southwest Quarter of Section 16, Township 12 North, Range 5 East, Caldwell Parish, Louisiana” (emphasis added)(the “Ryan property”). Glenn acquired his property through a donation inter vivos from his parents, H.L. Lee and Georgia Lee, in 1993. That property is described as: “the Northwest Quarter of the Southeast Quarter of Section 17, Township 12 North, Range 5 East, Caldwell Parish, Louisiana,” less and except 2.08 acres described in the act (emphasis added)(the “Lee property”).

The Ryans have asserted that the common boundary between the Ryan and Lee properties is marked, in whole or in part, by an existing fence which was originally erected by Bubba Ryan and H.L. Lee, the parties’ respective ancestors-in-title. Said fence was erected in approximately 1969 |2or 1970 on a line then identified by a surveyor as the section line between the Ryan property and the Lee property (the “old fence”).

Between 1993 and 1995, Bobby removed portions of the old fence, leaving 210 feet at the north end and 12 feet on the south end. Around 1995, Glenn extended the fence line on the north end by 120 feet (still along the old fence line) in order to make an enclosed area for horses on his side of the old fence, making the fenced portion at the north end approximately 330 feet. However, after a survey in the summer of 2001 by Charles David Parker (“Parker”), the Lees began building a fence on what the Parker survey showed the ideal boundary line to be between the two tracts of land, thus creating a strip of property which is now in dispute between the parties (the “disputed strip”).

Procedural facts

In September 2001, the Ryans filed a request for injunction and possessory action against the Lees, claiming they had possessed this disputed strip within visible bounds and adversely for over one year. The Lees answered and reconvened for an action in boundary, which the trial court dismissed upon the Ryan’s exception. Thus, the matter proceeded to hearing solely on the Ryans’ request for injunctive relief and the right to possession of the disputed tract. After that hearing, a judgment was issued by the trial court in favor of the Ryans, recognizing their right of possession and enjoining the Lees from interfering with their possession. The ruling | ¡¡further ordered the Lees to remove the fence erected by them and to replace the old fence.

However, during these proceedings at the trial court, the Lees proceeded to file a writ application regarding the dismissal of their boundary action, which writ this court granted, ordering the reinstatement of the Lees’ boundary action. That matter then proceeded to trial, with the Ryans’ claiming in defense that they had possessed the disputed strip within visible bounds.

After a trial of the Lees’ boundary action, the trial court fixed the boundary line as indicated on Parker’s, survey, except for 330 feet on the north end and 12 feet on the south end, which portion of the property was awarded to the Ryans on their plea of thirty years’ acquisitive prescription. The Ryans have appealed, urging that the trial court erred in not finding them in possession of the disputed strip and not upholding their plea of acquisitive prescription as to the disputed strip. The Lees have answered the appeal, arguing that the judgment was erroneous as to the award of 12 feet on the southern end of the boundary line and any more than 210 feet on the northern end of the boundary line.

Discussion

On appeal, the Ryans raise several assignments of error in connection with the issue of the disputed strip and its possession and alleged ownership by acquisitive prescription.

| ¿Ten Years’ Acquisitive Prescription

First, the Ryans argue that the trial court erred in not finding them the owners of the disputed strip by virtue of ten years’ acquisitive prescription. Ownership and other real rights in immovables may be acquired by the prescription of ten years. La. C.C. art. 3473. By pleading prescription, the Ryans had the burden of proving the four requisites for ten years’ acquisitive prescription: (1) possession for ten years; (2) good faith; (3) just title; and (4) a thing susceptible of acquisition by prescription. La. C.C. art. 3475; see also, Harry Bourg Corp. v. Punch, 94-1557 (La.App. 1st Cir.04/07/95), 653 So.2d 1322, 1324. In this instance, their claim fails under the element of “just title.”

A title is just for purposes of acquisitive prescription when the deed is regular in form, is valid on its face, and would convey the property if executed by the owner. See La. C.C. art. 3483; see also, O’Brien v. Alcus Lands Partnership Trust, 577 So.2d 1094, 1097 (La.App. 1st Cir.1991). The paper title relied upon by one seeking to establish ten years’ acquisitive prescription must sufficiently describe the property so as to transfer its ownership. One must be able to identify and locate the property from the description in the deed itself or from other evidence which appears in the public records. O’Brien, supra, citing, Pure Oil Co. v. Skinner, 284 So.2d 608, 611 (La.App. 2d Cir.1973), rev’d on other grounds, 294 So.2d 797 (La.1974). A deed describing a different tract of land from the one in controversy is not translative of the land in controversy, and therefore cannot serve as a basis for prescription. Albert Hanson Lumber Co. v. 5Angelloz, 118 La. 861, 43 So. 529 (La.1907). Here, it is evident that the deed transferring ownership to Ryan did not include the disputed strip, i.e., the property description contained therein clearly described property contained only in section 16, whereas the disputed strip lies entirely and actually in section 17. Because the disputed strip was not described in the deed transferring ownership to Bobby, he did not acquire just title to the disputed strip. Without the requisite element of “just title,” the Ryans cannot show they acquired ownership of the disputed strip by ten years acquisitive prescription, making this assignment of error without merit.

Possession and Thirty Years’ Acquisitive Prescription

The additional issues raised by the Ryans on appeal, as well as those raised by the Lees in their answer, all relate generally to the subjects of possession and thirty years’ acquisitive prescription; therefore, the various assignments of error raised by the parties can be addressed and determined in a comprehensive discussion of the subject.

This litigation has been centered around Bobby’s removal of a large portion of the old fence in 1995 and the effect of that removal. In fact, the trial court’s final conclusion was based solely on where fencing existed and where it did not. The trial court determined as to a large length of the disputed strip where the old fence had been completely removed that the Ryans had not possessed within visible bounds for the requisite length of time to acquire ownership by thirty years’ acquisitive prescription. For the northern and southern ends of the disputed strip, the trial court noted that | ¿visible bounds or vestiges of the old fence remained, and so awarded those portions of the disputed strip to the Ryans.

Although the removal of a large portion of the old fence as a visible boundary between the properties is crucial in some respects, it is of little significance on its own to answer whether the Ryans’ continued to exercise adverse possession of the disputed strip. Thus, it is critical to distinguish and discuss two distinct means by which a party can show their ownership by thirty years’ acquisitive prescription in Louisiana, those being by (1) possessing within visible bounds, and (2) adverse possession. See, Sattler v. Pellichino, 71 So.2d 689 (La.App. 1st Cir.1954).

The notion of possession within “visible bounds” derives from La. C.C. art. 794 (former article 852 of the Louisiana Civil Code of 1870), which article is contained in Title VI of the current Louisiana Civil Code addressing “Boundaries.” Article 794 provides, in pertinent part, “[i]f a party and his ancestors in title possessed for thirty years without interruptions, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” (Emphasis added). Thus, art. 794 envisions an uninterrupted, thirty-year possession within a visible boundary and provides the means for determining the boundary in accordance with that possession.

Regarding adverse possession and thirty years’ acquisitive prescription, La. C.C. art. 3486 provides that, “[ojwnership and other real |7rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” As provided in the comments to art. 3486, the attributes or requirements of this prescription are as set forth in La. C.C. art. 3476, which states that:

The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription.
The possession must be continuous, uninterrupted, peaceable, public and unequivocal. (Emphasis added).

Notably, there is no requirement therein that the possession be marked by visible bounds. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425. The revision comments to art. 3425 further explain that “[cjorporeal possession is that by which one possesses a thing corporeally, for example, by residing in a house, cultivating land, or using a movable.” Furthermore, “[i]n the absence of title, one has possession only of the area he actually possesses.” La. C.C. art. 3426 (emphasis added). The revision comments to that article explain that “[ajctual possession must be either inch by inch possession ... or possession within enclosures.” (Emphasis added).

Had the entirety of the old fence remained in place for thirty years, the Ryans obviously would have established a visible boundary for the requisite period of time pursuant to La. C.C. art. 794. Although this did not occur, the inquiry does not stop there (as the trial court did), but then becomes whether the Ryans exercised such other acts of possession over the disputed strip to show their adverse possession for the requisite period [ sof time. We conclude that they did, because, clearly, as required by La. C.C. art. 3424, the Ryans established corporeal possession of the disputed strip by their acts of use, detention, and enjoyment of the thing.

As stated by the Louisiana Supreme Court, “the nature of possession is neither simple nor precise.” Liner v. Louisiana Land & Exploration Co., 319 So.2d 766, 772 (La.1975), citing, Melvin H. Riseman, Elementary Considerations in the Commencement of Prescription on Immovable Property, 12 Tul. L.Rev. 608 (1938); see also Ferguson v. Gunther, 385 So.2d 876 (La.App. 2d Cir.1980) (“The quality of corporeal possession required to defeat an owner in constructive possession and establish title by acquisitive prescription is neither simple nor precise”). For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed, which “actual possession is determined according to the nature of the property.” La. C.C. art. 3487 (former art. 3503 of the La. C.C. of 1870) and revision comments; see also Liner, supra; Hill v. Richey, 221 La. 402, 59 So. 434 (1952); Ferguson, supra.

For instance, and specifically applicable to the facts at hand, “the corporeal possession requisite in the ease of agricultural land should not be the same as that in the case of wood land or swamp land.... ” Liner, supra, at 772. Therein the court noted that in the case of wood land or swamp land, very little could be done to indicate possession. Id. at 772, n. 12. By implication, adverse possession of agricultural lands would be more 19obvious, i.e. by cultivating same. In fact, in Hill, 59 So.2d at 439, the court noted that:

In the thirty years’ prescription which is not based on title, the possession is called pedis possessio, foot possession; as there is no title to indicate the limits in which the possessor considers his rights as owner to extend, his position is limited by the area over which he exercises actual possession. The cultivated ftelds would be the most obvious limits of possession.... (Emphasis added).

The Hill court further stated that “there is nothing which limits [thirty years’ acquisitive prescription] to land possessed by enclosures for a period of 30 years. The only restriction is that announced in [art. 3487]” regarding “actual possession.” Hill, 59 So.2d at 439-40 (emphasis original). The court further stated:

There is nothing said or implied in these articles that in order to possess, the land must be enclosed for the entire time, or for that matter, that it must be enclosed at all. It is well recognized, of course, that for the prescription of 30 years to be successfully pleaded the person pleading it must have the actual, physical, and corporeal possession of the property which he seeks to acquire by this period of prescription; that, when once this prescription has been commenced and establish [sic] and has not been interrupted, it may be preserved by external and public signs announcing the possessor’s intention to preserve the possession of the thing,.... (Emphasis added).

Id. at 440.

In Ferguson, supra, this court considered unimproved residential property and determined that “... periodic mowing of unimproved residential property up to the line where an old fence once stood years before, is sufficient corporeal possession to support acquisitive prescription.” Id. at 877, citations omitted. The Ferguson court placed | inemphasis on the nature of the land (in that case residential) and the continuous, periodic use of that land.

Here, the evidence indicates that Ryan actually and corporeally possessed the disputed strip, which was agricultural in nature. In this case, it was not controverted that. Bobby continuously and periodically during the thirty years exercised “physical acts of use, detention, or enjoyment” over the disputed strip, evidenced by such continuous acts as its cultivation, a “junk pile,” and a small building characterized as Ryan’s “shop.” This is the type of possession described in art. 3425, i.e. corporeal possession. Such corporeal possession is necessary to first establish possession and may also serve to retain that possession. See La. C.C. arts. 3424 and 3431.

That said, it is clear in the case sub judice, that the Ryans failed to show they had possessed the entire disputed strip within a visible boundary for an uninterrupted period of thirty years, because at some point in time a portion of the fence was taken down and, for that portion of the disputed strip, the entire boundary was no longer visible. In that respect the trial court was correct. However, the trial court erred in placing complete emphasis on the existence (or non-existence) of the old fence and in not considering whether the Ryans had exercised acts of adverse possession over the disputed strip for thirty years, as they claimed to have done, and, Intherefore, whether they acquired ownership of the disputed strip by virtue of thirty years’ acquisitive prescription in accordance with La. C.C. art. 3486 and arts. 3424, et seq. Clearly, we conclude that by the continuous and periodic use, detention, and enjoyment of the disputed strip, the Ryans showed their adverse possession of the entire disputed strip for at least thirty years, from which follows their establishment of thirty years’ acquisitive prescription under La. C.C. art. 3486, et seq., despite the loss of a visible boundary over a portion of the disputed strip for a short period of time. Moreover, the assignment of error raised by the Lees in their answer is consequently deemed to be without merit.

Conclusion

For the foregoing reasons, that portion of the trial court’s final judgment against the Ryans is reversed and that portion in their favor is affirmed; thus, by virtue of the Ryans’ adverse possession of the disputed strip for at least thirty years, they are deemed to be owners of same in accordance with La. C.C. art. 3486. Moreover, we adopt the legal property description set out in the trial court’s judgment of March 8, 2002 to describe now the Ryan property in accordance with this opinion. The costs of these proceedings are assessed to the Lees.

REVERSED IN PART, AFFIRMED IN PART.

MOORE, J., would grant rehearing.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The old fence, in fact, is shown on a survey by S.B. Easterly dated February 1978.

      . The parties stipulated that the testimony taken at the first hearing would be allowed to be considered by the trial court in making an ultimate determination of the merits of both the principal demand and the reconventional demand.

      . In fact, the thirty years' acquisitive prescriptive noted in art. 794 has been referred to as "thirty year boundary prescription,” and a distinction was noted between "thirty year boundary prescription” and the "adverse possession necessary for thirty-year prescription.” See, John F. Simon, Note on Real Property, Boundaries, Article 852, Louisiana Civil Code of 1870, 32 Tul. L.Rev. 324, 327 (1958).

      . In failing to make such an analysis, the trial court made an error of law, which is subject to de novo review by this court. Kevin Associates, L.L.C. v. Crawford, 2003-0211 (La.01/30/2004), 865 So.2d 34.

      . Although there was differing testimony regarding whether a turn row existed at the old fence line, such is only pertinent in order to determine whether a visible boundary existed under La. C.C. art. 794 thirty years’ acquisitive prescription. Moreover, whether vestiges of the old fence remained in some places is of no moment for corporeal possession as exercised by the Ryans. Such a consideration would be applicable if the Ryans had exercised only civil possession of the disputed strip, i.e., if they had ceased to possess corporeally and had retained possession by the mere intent to possess as owners. See La. C.C. art. 3431, revision comment (d), which states that "... vestiges of works, ..., may signify civil possession.”

      . Additionally, consideration of ownership and possession are relevant, proper, and necessary inquiries in a boundary action. See La. C.C. art. 792 and La. C.C.P. art. 3693.