author: Judge MAX N. TOBIAS, JR.

text:
    SUCCESSION OF Lloyd Anthony MAQUAR, Jr.
    No. 2003-CA-0041.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.
    Daniel J. Daigle, Metairie, LA, Aaron F. Marcus, Lehmann, Norman, & Marcus, LC, New Orleans, LA, for Appellant.

      Mñes G. Trapolin, Trapolin Law Firm, New Orleans, LA, for Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.).
   Judge MAX N. TOBIAS, JR.

On 7 February 2000, Lloyd Anthony Maquar. Jr. (hereinafter “the decedent”) departed this life. His probated last will and testament, dated 15 December 1999, left the entirety of his estate to his wife, Denise Ott, the appellee herein, and nothing to his only child, Nia Christine Maquar (“Nia”), the appellant. At the time of the execution of the testament, the decedent was unable to sign his name due to physical infirmity. He signed each page of the will with an “X” or similar mark. The final page of the testament contained an attestation clause that read:

The testator, LLOYD ANTHONY MAQUAR, JR., has declared that he knows how to sign his name, but is unable to sign it because of a physical infirmity and so has affixed his mark, an “X” at the end and on each separate page of this will and declared in our presence that this is his last will and testament and in the presence of the testator and each other we have hereunto subscribed our names this 15 day of December, 1999, New Orleans, Louisiana.

The testament was signed by the decedent in the presence of two witnesses and a notary public. Upon opening the succession, the notary that was present for the signing of the will executed an “AFFIDAVIT FOR PROBATE OF STATUTORY I ¿TESTAMENT.” The affidavit stated that the “testator stated to the affiant that the document was his last will and testament, and that they, as attesting witnesses, along with the Notary, signed at the end of the will with an ‘X’ in each others’ presence, and that they recognized the signature of the testator as affixed by him in several places on the will and also their own signatures, and that of each other.”

On 24 April 2001, the appellee filed a petition for probate of a “statutory testament,” as well as a motion to be confirmed as the executrix of the succession, as had been provided in the decedent’s testament. The appellee was confirmed as executrix of the succession on that day.

On August 28, 2002, Nia filed a petition to annul the probated testament of the decedent on the grounds that it failed to meet the statutory requirements for a valid and enforceable testament found in La. C.C. art. 1578. We note that Nia made no allegation in her pleadings that the decedent was unable to see or read. As such, one could assert that the testamentary capacity of her father, the decedent, was not an issue. Thus the issue becomes whether the testament fulfilled the formalities set forth under article 1578 and is valid as a matter of law. We note that La. C.C. art.1573 provides that “[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” [Emphasis added.].

Nia’s petition to annul the probated will also sought to remove her stepmother, the appellee, as the testamentary executrix. Further, she alleged that the testament as a matter of law was invalid. As a consequence, she alleged that j ¡¡the decedent died intestate and that under Louisiana law she is the heir to his estate. As noted above, the petition to annul the testament does not contain any allegation of fraud or undue influence and does not allege that the decedent was illiterate or suffered from any impairment of vision at the time the testament was executed.

In response to Nia’s petition to annul the testament, the notary executed an additional affidavit, which was filed into the record and received in evidence without objection. This second affidavit stated that the notary, who was a licensed attorney and who prepared the testament, knew the testator to be literate; that the notary observed the testator watching television when he arrived at his house to have the testament executed; that he read the testament to the testator and that the testator followed the text with his eyes; that he questioned the testator about the contents of the will and confirmed that it was his last will and testament; that the testator was aware that his wife, Denise Ott, would inherit everything and that his daughter would inherit nothing from him; and that the testator’s only disability on the day he signed the testament was that he was physically unable to sign his name. This affidavit fails, however, to note that the testator declared or signified to the notary and two witnesses that he was “able to see and read” as required by La. C.C. art. 1578(1) or (2). Additionally, the record is devoid of any evidence that the decedent declared to the witnesses that he could see and read or that the witnesses knew in any manner or way that the decedent could see and read.

^Pursuant tó a motion for judgment on the pleadings, a summary proceeding was held on 25 October 2002 to determine the validity of the 15 December 1999 testament. The court rendered a judgment on 7 November 2002, finding that the attestation clause was “substantially similar” to the clause recommended by La. C.C. art. 1578 and that the absence of the clause, “is able to see and read,” would only be potentially fatal to the testament if it had been alleged by Nia that the decedent had not, in fact, been able to see and read. Because no issue of fact on that issue existed, the trial court upheld, the testament and the petition to annul was denied.

Nia appealed that judgment asserting that, as a matter of law, the attestation clause contained in the probated testament rendered the entire instrument unenforceable and invalid, because it did not conform to the requirements found in article 1578. Specifically, she assigns four errors of the trial court. First, she asserts that the trial court erred by holding that the formalities for execution of the testament were followed when the attestation clause of the testament did not state that the decedent was able to see and read. Second, she asserts that the trial court erred by ignoring the newly enacted provision of law requiring the attestation clause of a testament executed by a testator who is able to see and read but is physically incapable of signing to contain the aforementioned language. Third, she argues that the trial court erred by ruling that the attestation clause in question was substantially similar to the clause contained in La. C.C. art. 1578, even though it did not contain the phrase at issue. Finally, she takes issue with the trial court’s reliance on Succession of Fletcher, 94-1426 (La.App. 3 Cir. 4/5/95), 653 So.2d 119, which she asserts is inapplicable to the case at bar.

| .The appellee maintains that the phrase “is able to see and read” is not mandatory and that the attestation clause as drafted is “substantially similar” to the attestation clause found in article 1578. Further, the appellee argues that the purpose of the revisions to succession law was to simplify the probate procedure, not to impose additional formalities and requirements on testaments, and that the formalities that do exist are present to prevent fraud, which is not alleged in this case. As such, she contends that any deviations from the statutory requirements of the decedent’s will are minor and should not invalidate the testament, especially in light of the fact that no allegation is made that the decedent did not execute the will or that it did not reflect his intentions.

La. C.C. art. 1578 provides:

When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial will is as follows:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his will, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of |fithe testator and each other, we have subscribed our names this _day of_,_”

[Emphasis added.]

La. R.S. 9:2442 and La. R.S. 9:2443, which authorized statutory wills, were repealed effective as of 1 July 1999; La. C.C. arts. 1577 through 1579 were enacted in their place, creating a new “notarial” testament. However, a statutory will executed prior to 1 July 1999 in the form and manner required by La. R.S. 9:2442 or La. R.S. 9:2443 remained valid. The attestation clause found in the decedent’s testament executed on 15 December 1999, some 5.5 months after La. C.C. art. 1578 became law, was obviously taken from the former La. R.S. 9:2442, which governed the execution of statutory testaments prior to 1 July 1999. Repealed La. R.S. 9:2442 C provided that:

C. If a testator is unable to sign his name because of a physical infirmity, the will shall be prepared in writing and shall be dated and executed in the following manner:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his last testament, that he is unable to sign because of a physical infirmity, and shall then affix his mark at the end of the will and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: “The testator has declared that he knows how to sign his name but is unable to sign his name because of a physical infirmity and he has affixed a mark at the end and on each other separate page of this will and declared or signified in our presence that this is his last will and testament and in the presence of the testator and each other we have hereunto subscribed our names this_day of_,19 — .”

|7The attestation clause and requirements for a testament executed by a testator who was physically incapable of signing his name but who could see and read found in La. R.S. 9:2442 C are somewhat identical to those contained in La. C.C. art 1578; however, a major difference exists. La. R.S. 9:2442 did not require that the testator declare before the notary and witnesses that he could see and read or that the attestation clause state that the testator was “able to see and read” at the time of the execution of the testament. La. C.C. art. 1578(1) specifically requires that the testator declare, or otherwise signify in some manner, to the notary and two witnesses that he is “able to see and read,” and La. C.C. art. 1578(2) requires that the attestation clause reflect that the testator is “able to see and read.” Under the facts of this case, it is the failure of the testator to include those five words in the attestation to the probated testament, and the failure of the record on appeal to reflect that the testator declared to the notary and two witnesses upon executing the testament that he was able to see and read that arguably makes the probated testament invalid. Such is the gravamen in this case.

As noted above, the Louisiana legislature replaced the former revised statutes (La. R.S. 9:2442 and La. R.S. 9:2443) governing the requirements and formalities of statutory wills with La. C.C. arts. 1577 through 1579 governing the requirements and formalities of notarial wills, and modified the Code of Civil Procedure to simplify the procedures for the probate of statutory and notarial wills. In particular, the new civil code articles authorize only two types of wills: olographic and notarial. The new notarial will has essentially the same requirements as the old statutory will; in fact, the revision comments to La. C.C. art.1577, entitled “Requirements of Form,” state that “[t]his article reproduces the substance of [La.] R.S. 9:2442. It does not change the law.”

|sOne material change was the deletion of the need for the executor to “prove” the testament when probated. Essentially, the revisions enacted by the legislature to the Code of Civil Procedure provide for testaments to be self-proving: one need only file with the court the statutory or notarial testament to be given effect. Thereafter, the trial court merely enters an order that the testament be “filed and executed and this order shall have the effect of probate.” See La. C.C.P. art. 2891 [effective 1 July 1999]. Formerly, one seeking to probate a statutory will was required, among other formalities, to have the testament presented to and examined by the court, paraphed on each page by the court, and verify the testament through an affidavit; the court issued an order probating the will and made a determination as to its apparent validity. Now, all that is required is for one to file the testament with the court to have the will be presumptively valid. Id.

When the legislature created the civil code articles governing notarial wills, it established separate code articles for a number of different “classes” of testators. For a testator who has no impairment or disability that would preclude him from signing the instrument in his own hand, meeting the requirements of La. C.C. art. 1577 is sufficient to ensure the validity of the testament. However, where a testator is unable to sign his name due to some physical impairment and not as a result of his inability to read or see, the provisions of article 1578(1) must be followed, including adherence to the substance of the attestation clause as described in La. C.C. art. 1578(2). One of those clearly set forth provisions is that |9the testator declare before, or signify to, the notary and witnesses to the will that he is able to see and read. Where a testator is unable to sign his name and is illiterate or sight-impaired at the time the testament is executed, La. C.C. art. 1579 imposes additional formalities and requirements, including that the testament be read aloud in the presence of the testator and the witnesses and that the attestation reflect that this was done to insure that the testator knew of the contents of the testament when he executed it, obviously to protect him and his intended heirs from fraud or mistake.

The legislature took the care to create separate codal articles for notarial testaments created by testators with differing disabilities and/or impairments. We presume that the legislature had good reason to do so. It is apparent that the legislature intended that testaments created under those differing circumstances were to be self-proving so that heirs and legatees who might otherwise bear the burden of eliminating doubt as to testamentary capacity might enjoy the simplified and streamlined probate procedures. That is, the legislature wanted to insure that if one adhered to the codal requirements, he or she could be assured, unless a testamentary bequest ran afoul of other laws, that his testamentary wishes would be honored in accordance with the language contained in the testament. The form of each type of notarial will was established such that one would find it nearly impossible to question, absent ambiguity, whether the testator fully understood that which was set forth in the testament and whether it was indeed a reflection of his or her intent to distribute his or her property after death, with any doubts laid to h prest on the face of the testament. The attestation clause set forth in each of La. C.C. arts. 1577 through 1579 is nothing more than a reflection that the testator has declared his intent before and in the presence of the notary and witnesses in accordance with the existence or nonexistence of a disability.

In the present decedent’s case, the legislature amended the requirements of former La. R.S. 9:2442 such that it required that the testator make known that he was able to see and read; the attestation clause reflects such a declaration to erase any doubt as to the testamentary capacity of the testator, insofar as a testament signed with an “X” or similar mark. Strict compliance with La. C.C. art. 1578 erases the doubt, for all intents and purposes, that either the testator did not sign the document himself, that he may be illiterate, or that he was unaware of the contents of his testament. Therefore, the phrase “able to see and read” is not superfluous in the attestation clause found in article 1578 and any attestation clause drafted pursuant to article 1578 should contain the phrase or one “substantially similar” to it in order to comply with the law. For the testament of one who, for whatever reason, is unable to sign his name to be presumptively valid under the current law, the language required by the legislature to be inserted into the attestation clause is intended to erase all doubt as to whether one adhered to the formalities for confecting the will.

However, in the ease sub judice, no allegations of fraud, mistake, undue influence, or that the testator was unable to see or read at the time the testament | ^was executed is made by the appellant. The argument raised by the appellant is that the testament is technically deficient and, as such, null and void.

The appellant further asserts that the trial court erred in relying on the holding in Succession of Fletcher, 94-1426 (La.App. 3 Cir. 4/5/95), 653 So.2d 119. In Fletcher, the testator suffered a stroke prior to executing his testament. His attorney, cognizant of the fact that his client suffered mild paralysis and would have difficulty in signing the instrument, drafted the testament in accordance with La. R.S. 9:2442 C, which governed the execution of statutory testaments where the testator was unable to sign his name due to physical infirmity. The testator attempted to sign his signature on every page, and apparently was successful to some extent, but apparently had some difficulty in signing his name multiple times, resulting in some variation in his signature throughout the document. The testator’s son, who contested the probate of the testament, alleged that his father lost the ability to read as a result of the stroke and that his testament was ergo invalid, for La. R.S. 9:2442 required that a testator have the ability to read. He further argued that the formal requirements of the statute were not met. That.is, although the attestation clause found in subsection C of the statute was used to indicate that the testator was unable to form a signature, the testator signed his name to at least some portions of the testament, thereby not conforming with the attestation clause, which referenced a “mark,” as opposed to a “signature;” further, he asserted that the testament failed to meet the statutory requirements because the body of the testament itself did not reflect that the testator was unable to sign due to physical infirmity and that inclusion of this fact in the attestation clause was insufficient as a matter of law. The court rejected the son’s argument regarding the testator’s ability to read. The court held that the proponent of the will only had the |12burden of establishing that the will was authentic and that it complied with the statutory requirements. Id. at 4, 653 So.2d at 121. The testator’s ability to read was found to be “an element of testamentary capacity, not of authenticity or formality.” Id. Further, a testator is “presumed to have testamentary capacity, and the opponent bears the burden of defeating this presumption by putting forth clear and convincing evidence to the contrary.” Id., citing, Succession of Lyons, 452 So.2d 1161, 1166 (La.1984). The court further held that the statutory requirements for the will were met. La. R.S. 9:2442 did not require that the declaration of the physical impairment be found in the body of the testament, only in the attestation clause; further the distinction between a “mark” and a “signature” was not germane to the question of whether the formalities of the statute were followed. The more important issue was whether the testamentary form used by the testator was proper given his circumstances. The court found that, given the facts of the case, it was. Id. at 7, 653 So.2d at 123.

We agree with the appellant that the facts of Fletcher are not similar enough to the case at bar for the trial court to have relied upon it in determining whether the decedent’s will complied with the requirements of La. C.C. art. 1578. In fact, we find that the decedent’s testament does not meet the formal requirements of article 1578. The failure to include a phrase that the testator “is able to see and read” in the attestation clause and to produce any evidence that the specific declaration requirements to the notary and witnesses were met is a defect in the instrument, fatal to its enforcement and validity.

In Succession of Roussel, 373 So.2d 155 (La.1979), the Supreme Court invalidated a nuncupative testament by private act in which only four of the six witnesses to the will were residents of the parish in which the testament was |1sexecuted. At the time the testament was executed, La. C.C. art. 1581 required that a nuncupative testament by private act be executed “in the presence of five witnesses residing in the place where the will is received.” In reaching its result, the Supreme Court held that:

a material deviation from the manner of execution prescribed by statute will be fatal to the validity of the will. The fact that there is no fraud, or even the suggestion or intimation of it, will not justify the courts in departing from the statutory requirements, even to bring about justice in the particular instance, since any material relaxation of the statutory or codal rule will open up a fruitful field for fraud, substitution, and imposition.

Id. at 157.

In Succession of Malone, 509 So.2d 659 (La.App. 3 Cir.1987), the Third Circuit Court of Appeal invalidated a statutory will prepared for and executed by a testator who was illiterate. The will was purportedly executed in compliance with La. R.S. 9:2443, which governed testaments executed by testators who were illiterate or sight-impaired to the extent that they could not read. At the time, La. R.S. 9:2443 required that a testament for an illiterate testator be read aloud in his presence and that the attestation clause evidence that this requirement was fulfilled. In Malone, the testament did not evidence that it was read aloud to the testator, although the notary to the will and the attorney who was present for its execution testified that the will was read aloud to the testator. Mr. Malone subsequently signed the will with a mark, as he could not form a signature. La. R.S. 9:2443 required that the witnesses follow along with the reading of the will on copies provided to them. This requirement was admittedly not fulfilled; the witnesses to the will did not have copies to read at the time the will was read aloud. The Third Circuit found that the procedures followed by the witnesses to Mr. luMalone’s will were not sufficient to comply with the statute, especially in light of the fact that the body of the will did not state that Mr. Malone could not read and did not in any way explain his mark, which was not a formal signature. Thus, although the flawed attestation clause might have not been fatal to the will, the failure to reflect that the required formalities were followed anywhere in the body of the testament invalidated it as a matter of law.

In Succession of Brown, 458 So.2d 140 (La.App. 1 Cir.1984), the First Circuit Court of Appeal invalidated a will where the notary and witnesses did not recite in the attestation that the testator, notary, and witnesses signed the testament in the presence of each other. Similarly in the case at bar, and as required by article 1578, the notary and witnesses fail to recite in the attestation or otherwise that the testator declared that he could see and read or that the testator could see and read.

The appellee cites Succession of Guezuraga, 512 So.2d 366 (La.1987), in support of her argument that will formalities are not sacrosanct and that adherence to will formalities should be liberally construed. Guezuraga, like Succession of Fletcher, supra, however, is factually distinguishable from the case at bar. In Guezuraga, the testatrix failed to sign the page of her testament containing the conclusion of the attestation clause, but had signed all other pages containing the dispositive portions of her testament. The Supreme Court, noting that the only defect was that the testatrix failed to sign the attestation clause, held that because the will substantially complied with the statute governing the formalities, it was validly executed. In fact, the Court noted that in many common law jurisdictions, from which Louisiana adopted the statutory law, “‘the attestation clause is not | ^regarded as part of the will, but rather as a certificate to the will; and, accordingly, the signature of the testator may either precede or follow such clause and yet be at the end of the will.’ ” Id. at 369, quoting, 2 W. Howe & D. Parker, Page on the Law of Wills § 19.10 & n. 2 (1960 & Supp.1986). Again, the testament was valid because the statutory requirements were met within the body of the will, and the arguably flawed attestation clause did not mandate that it be invalidated.

In the present case, it is not the failure to include the precise words, “is able to see and read,” in the attestation clause that invalidates the testament of the decedent; it is the failure of the testator to comply with the formalities of a notarial will drafted and executed pursuant to article 1578. That article specifically required that the testator declare before, or signify to, the notary and the witnesses the he could see and read. It is this failure to do so that renders the testament null and void as a matter of law. La. C.C. art. 1573.

Based upon the facts presented in this case, we conclude that the 15 December 1999 purported testament of the decedent is absolutely null. Accordingly, we reverse the judgment of the trial court.

REVERSED.

      . In the last will and testament at issue, the appellant is incorrectly named "Nia Martinne Maquar.”

      . We note the inaccuracy of and inconsistencies in the affidavit. It would appear that the affiant intended to say that only the testator signed the will with an "X", that the witnesses and notary signed their names, and that the affiant recognized the testator's signature, his own signature, and that of the witnesses (being unable to attest what the witnesses, who were unable to be located, heard, recognized and saw).

      . It is questionable whether such an affidavit is admissible evidence. See Succession of English, 508 So.2d 631 (La.App. 2 Cir.1987). However, because we decide this case on other grounds, we need not address the appropriateness of the affidavit.

      . Acts 1997, No. 1421.

      . Id.

      .Prior to 1 July 1999, the requirements for a statutory will executed by a testator who was physically incapable of signing his name were contained within the same statute governing the general formal requirements for any statutory testament. A separate statute, La. R.S. 9:2443, governed the validity of a statutory will executed by a testator who was unable to see or read. In the new codal articles, the requirements for a testament executed by a signature-impaired individual with no other disability were carved out of R.S. 9:2442 and encapsulated in its own codal article, article 1578.

      . A change in the law was effected: under La. R.S. 9:2442, the physically impaired testator did not have to declare to the notary and witnesses that he could see and read. Under La. C.C. art. 1578(1), the testator was required to declare to the notary and witnesses that he could see and read. Cf, La. C.C. arts. 1577 and 1579.

      . The changes to Louisiana law enacted by Acts 1997, No. 1421, were made upon the recommendation of the Louisiana Law Institute.

      . In the Official Comments to the revised La. C.C. art. 1578, the legislature notes that "[i]t is intended that the ordinary requirements for a notarial testament apply to the execution of a testament by a person physically unable to sign his name, except insofar as those requirements are modified by this Article.”


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge. JONES, J.

license: Public Domain

text:
    Richard D. MILLER v. Stephanie M. TASSIN.
    No. 2002-CA-2383.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.

      Tamara Kluger Jacobson Jonathan M. Walsh Harvey, Jacobson & Glago, APLC, New Orleans, LA, for Plaintiff/Appellant, Richard D. Miller.
    Paul E. Mayeaux, Baton Rouge, LA, for Appellee, Permanent General Assurance Corporation.
    Court Composed of CHARLES R. JONES, MAX N. TOBIAS, JR., and DAVID S. GORBATY, Judges.
   MAX N. TOBIAS, JR., Judge.

After the instant appeal was filed, this court discovered that the plaintiff/appellant, Richard D. Miller (“Miller”), was appealing from a partial summary judgment without complying with La. C.C.P. art. 1915, as it existed prior to the 1999 legislative amendments. An order to show cause was issued to the parties and Miller filed a supplemental memorandum as to why the appeal should not be dismissed. After considering the memorandum and the applicable law, the court finds that the appeal should be dismissed without prejudice, for the following reasons.

The facts are not in dispute. Miller was allegedly injured when a vehicle driven by the defendant, Stephanie M. Tassin (“Tas-sin”), and insured by Permanent General Assurance Company (“PGAC”), struck Miller’s vehicle. PGAC filed a motion for summary judgment denying that it had any duty to defend and/or cover Tassin because the car she was driving was stolen. Miller argued in opposition to the motion for summary judgment that PGAC should be required to insure Tassin because she had no knowledge, and no reason to know, that the car | ?she was driving was stolen. The trial court agreed with PGAC and dismissed it from the case.

Miller argues that this court should maintain the appeal as provided in La. C.C.P. art. 2083(A); however, the court finds that the requirement of irreparable injury is not present. “Irreparable injury” occurs in those cases where the error in the ruling cannot, as a practical matter, be corrected on appeal after a trial on the merits. Carr v. GAF, Inc., 97-2325, p. 2 (La.11/14/97), 702 So.2d 1384, 1385.

That Miller may be forced to retry the case is not irreparable injury. Generally, requiring a party to go to trial does not constitute irreparable injury turning an otherwise interlocutory order into an appealable one. Collins v. Prudential In surance Company of America, 99-1428, p. 7 (La.1/19/00), 752 So.2d 825, 880. As recognized by Justice Lemmon in his concurrence, a party’s saving the time and expense of litigation generally is a risk of litigation that must yield to the normal orderly process of trial and appeal. Id. at p. 2, 752 So.2d at 832.

Miller contends that he faces irreparable injury because he must try his case against a party who is uninsured and who has not participated in the litigation thus far. These are issues to be handled by the trial court. In addition, Miller argues that if successful in the trial court and in appealing the issue of the insurance company’s dismissal in this court, he would have to re-try the case. This is, as aptly put by Justice Lemmon, a risk of litigation, but does not present irreparable injury as defined by the jurisprudence.

| ^Further, Miller had a method by which to appeal the issue of the insurance company’s dismissal. Pursuant to La. C.C.P. art. 1915, as applicable to this case and as it read prior to the 1999 amendments thereto, the trial court rendered a partial summary judgment that could have been properly appealed by the appellant with an appropriate designation by the trial court. That article, as it existed prior to the 1999 amendments, provided as follows:

Art.1915. Partial judgment; partial exception; partial summary judgment
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1)Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, theories, or parties, whether in an original demand, re-conventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by |4the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
C. If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.

This partial summary judgment falls squarely within the parameters of La. C.C.P. art. 1915(B); without a proper designation from the trial court, the appeal is not properly before the court. This was the unanimous en banc decision of this court in Jackson v. America’s Favorite Chicken Co., 98-0506 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, in which we stated:

We expressly disapprove and overrule the procedure of converting the appeal from a non-final judgment to a supervisory writ and then considering the merits, as was done in Karim v. Finch Shipping Co., Ltd., 97-2518 (La.App. 4 Cir. 8/26/98), 718 So.2d 572, and Walker, Bordelon, Hamlin, Theriot and Hardy, etc. v. Dowe, supra, 98-0937, 98-0938 (La.App. 4 Cir. 12/9/98), 727 So.2d 529. We agree with our colleagues of the First Circuit that
To entertain by a supervisory writ application and grant a stay of a judgment which is not a final judgment subject to an immediate appeal under Article 1915 would be a blatant circumvention of the spirit of that statute, causing the delay and judicial inefficiency which the statute obviously is designed to eliminate. To substitute one method of review (writ application) for a prohibited method of review (appeal) flies in the face of the legislative pronouncement set forth in Article 1915. Therefore, we will not entertain the merits of this writ application. 1R Review of the judgment must await rendition of a complete final judgment in the case, which will be the proper subject of an appeal, unless the judgment is certified as a final judgment subject to an immediate appeal under Article 1915.
In re: Chemical Release at Bogalusa, 98 1122 at p. 1 (La.App. 1 Cir. 8/27/98), 718 So.2d 1015.
While we adopt this reasoning, we decline to certify a partial summary judgment as a final judgment subject to an immediate appeal on the appellate level, as our colleagues did in the case cited above.

Id. at pp. 9-10, 729 So.2d at 1065-66.

The opinion also stated:
The following judges of this Court, en banc, constituting a unanimous majority have voted to explicitly overrule all portions of our opinions in Karim v. Finch Shipping Co., Ltd., Doe v. Southern Baptist Hospital, 98-0063 (La.App. 4 Cir. 5/6/98), 717 So.2d 654 and Walker, Bordelon, Hamlin, Theriot & Hardy v. Dowe that are inconsistent with the instant decision: Chief Judge Klees, Judge Byrnes, Judge Armstrong, Judge Plotkin, Judge Jones, Judge Waltzer, Judge Landrieu, Judge Murray, Judge McKay, Judge Bagneris, Judge Ciaccio (pro tempore), Judge Gulotta (pro tempore) and Judge Gray (pro tempore).

Id. at p. 11 n. 4, 729 So.2d at 1066 n. 4.

Both the Second and Fifth Circuit Courts of Appeal have issued similar en banc decisions with regard to this issue. In Succession of Grimmett, 31,975, pp. 5-6 (La.App. 2 Cir. 3/5/99), 738 So.2d 27, 31, the court en banc stated:

We agree with other circuits that in the absence of certification there is no final, appealable judgment and that a jurisdictional defect exists when an- appeal is taken from such a judgment. Moreover, although we have determined that such a defect can be cured either by subsequent certification or by the rendition of subsequent judgment(s) adjudi-eating all the claims of all the parties, in light of the fact that more than a year and a half has elapsed since the change in the law, and in light of the administrative burden that remand of uncerti-fied partial | ¿-judgments has placed upon us, we hereby announce a change in the policy of this circuit with regard to appeals of uncertified partial judgments. Rather than continue to follow the general policy of allowing additional time to obtain certification in instances where appeals are taken from uncertified partial judgments, we now adopt a general policy of dismissing such appeals without prejudice.

In Whitney National Bank v. Cambridge Realty Corp., 96-956, p. 6 (La.App. 5 Cir. 2/25/97), 690 So.2d 213, 216, the court stated en banc:

We note the following internal rule of this court. Pursuant to internal rules of this court we issued the following en banc order on December 9,1994:
IT IS ORDERED that, as of January 1, 1995, all nonappealable matters filed as an appeal will be dismissed. Accordingly, all parties will be required to follow and adhere to the procedural schemes set forth in our Louisiana Codes of Civil and Criminal Procedure.

In addition, the First Circuit Court of Appeal stated:

This judgment has not been certified by the district court as a final judgment for purposes of an immediate appeal, nor did the parties agree that the ruling was such a judgment under La.Code Civil Proc. Art.1915. To entertain by supervisory writ application and grant a stay of a judgment which is not a final judgment subject to immediate appeal under Article 1915 would be a blatant circumvention of the spirit of that statute, causing the delay and judicial inefficiency which the statute obviously is designed to eliminate. To substitute one method of review (writ application) for a prohibited method of review (appeal) flies in the face of the legislative pronouncement set forth in Article 1915. Therefore, we will not entertain the merits of this writ application. Review of the judgment at issue must await rendition of a complete final judgment in the case, which will be the proper subject of an appeal, unless the judgment is certified as a final judgment subject to an immediate appeal under Article 1915.

See In re Chemical Release at Bogalusa, 98-1122, p. 1 (La.App. 1 Cir. 8/27/98), 718 So.2d 1015, 1016. This, however, is not an en banc decision, but has been followed by other panels of that court.

In 2001, a medical malpractice matter came before this court on appeal after the district court denied Charity Hospital’s exception of prematurity. However, the judgment that was rendered by the district court was not certified as a final appeal-able judgment pursuant to La. C.C.P. art. 1915(B)(1), and the appeal was dismissed. Charity filed an application for a writ of certiorari with the Louisiana Supreme Court, which was granted; the Supreme Court remanded the case to this court to “entertain relator’s position under its supervisory jurisdiction.” See Evans v. Charity Hospital, 2001-0507 (La.4/20/01), 790 So.2d 8.

On remand, a panel of this court stated:

The Supreme Court’s ruling in this case effectively has overruled this Court’s decision in Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, in which it was held that this Court no longer would convert appeals from partial summary judgments that had not been certified as final by the district court to applications for supervisory writs. The Supreme Court’s remand with instruction to consider this appeal under our supervisory jurisdiction reminds us, as this Court noted in Livingston Downs Racing Association, Inc. v. Louisiana State Racing Commission, 96-1215, p. 3 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216 that:
the difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right. As a general rule, the Court of Appeal does not exercise its discretionary supervisory jurisdiction in the absence of a showing that the failure to do so will result in irreparable injury. Where an appeal would provide an adequate remedy there would normally be | sno irreparable injury and the Court would not issue certiorari to review the judgment complained of ...
As in Livingston, it is appropriate for this Court to exercise its supervisory jurisdiction in this case because dismissing this appeal would further dilute Charity’s right to have its day in court. If this Court were to affirm the district court’s judgment, we would, in fact, be requiring a health care provider to adhere to a judgment that forfeited its right to a medial review panel without offering the said provider an opportunity to have this judgment scrutinized due to an oversight committed at the district level. Therefore, the policy created by this Court in Jackson has been overruled, and we re-establish our previous rule to reserve the right to'invoke our supervisory jurisdiction on a case-by-case basis. The Supreme Court’s reversal of Jackson is limited to the issue of this Court exercising its supervisory jurisdiction in converting an appeal to a supervisory writ and making a disposition thereof. Thus, we invoke our supervisory jurisdiction in the case at bar and render our disposition on the merits presented.

See Evans v. Charity Hospital, 2000-0202, pp. 2-3 (La.App. 4 Cir. 11/14/01), 801 So.2d 1192, 1194-95. (Jones & Murray, JJ.; Waltzer, J., dissenting.)

Despite the language above, we find that the Supreme Court’s remand in Evans did not effectively overrule this court’s en banc decision in Jackson for several reasons. First, if the Louisiana Supreme Court’s decision in Evans had overruled Jackson, it would have also been overruling the en banc decision/orders of the Second and Fifth Circuit Courts of Appeal; this did not occur for the Supreme Court would have obviously said so. In addition, the First Circuit reached a similar conclusion in In re Chemical Release at Bogalusa, supra, and that case has not been overruled. Consequently, if the Louisiana Supreme Court’s decision in Evans had intended to overrule Jackson, it would have explicitly done so.

In addition, other panels of this Court have followed Jackson after the Evans remand. See, e.g., the published opinions in Audubon Institute, Inc. v. Chambers, 2002-0887 (La.App. 4 Cir. 10/16/02), 830 So.2d 1055 (appeal of partial summary judgment dismissed without prejudice); Pinkins v. University Hospital, 2002-0755 (La.App. 4 Cir. 9/4/02), 828 So.2d 40 (same); Dean v. United Medical Center, 2001-1414 (La.App. 4 Cir. 4/17/02), 816 So.2d 926 (appeal of denial of exception of prescription dismissed without prejudice).

Third, the fact that the Supreme Court remanded Evans for this court to consider under its supervisory jurisdiction does not mean that it disagrees with Jackson; this is not a practice, in which the Court frequently engages. We could locate only eleven times from 1983 to present where this had occurred, two of which were cases arising in this circuit.

Finally, Evans is distinguishable from Jackson. Evans concerned the denial of an exception of prematurity, an interlocutory order that cannot be designated as final under article 1915(B), whereas Jackson, on the other hand, involved an appeal of a partial motion for summary judgment, which falls squarely within the article’s parameters. Therefore, the remand of Evans says nothing about the viability of Jackson and this court’s en banc decision for the handling of appeals of partial judgments that have not complied with article 1915.

|inMiller also argues that we should address his appeal under our supervisory jurisdiction. The Supreme Court has instructed the intermediate appellate courts to consider and rule upon the merits of a supervisory writ, even if the alleged error can be corrected on appeal, when (1) an appellate reversal will terminate the litigation; (2) there is no dispute of fact to be resolved, and (3) the trial court decision appears to be incorrect. Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

In the instant matter, a factual issue must be resolved, i.e., whether Tassin knew or should have known that the vehicle she was driving was stolen; additionally, a determination of the coverage issue would not terminate the litigation. The three tests of Herlitz mandating a conversion of the present appeal to an application for supervisory writ have not been met. Therefore, we decline to exercise our supervisory jurisdiction in this instance.

However, Miller is not without a remedy. In Fraternal Order of Police v. City of New Orleans, 2002-1801 (La.11/8/02), 831 So.2d 897, the City of New Orleans filed a writ application after the court of appeal’s dismissed its appeal because it was purportedly untimely. The decision the City sought to appeal was a partial summary judgment entered by the trial judge pursuant to La. C.C.P. art. 966(E) on 27 April 2000. On 5 June 2000, 39 days after the issuance of the judgment, the City filed a motion to certify the partial judgment as final for purposes of immediate appeal, pursuant to La. C.C.P. art. 1915. Although the trial judge signed an order certifying the partial judgment as final on 20 June 2000, the notice of signing of the order was not mailed to counsel for the City until 7 November 2000. The City filed its appeal the next day.

In This court dismissed the appeal as untimely on the basis of the Supreme Court’s previous interpretation of the pre-1999 amendment version of La. C.C.P. art. 1915 in Shell Pipeline Corp. v. Kennedy, 2000-3207 (La.10/16/01), 799 So.2d 475. Applying Shell Pipeline, the majority found that the appeal in this case was untimely because it was not filed within 67-days of the signing of judgment. The 67 day period was calculated by adding the seven-day delay for filing a motion for new trial, established by La. C.C.P. art.1974, to the 60-day delay for filing a devolutive appeal, established by La. C.C.P. art.2087.

The issues presented to the Court were: (1) whether a motion to certify a partial judgment as final for purposes of appeal must be filed within a specific time period after the trial court’s issuance of the partial judgment; and (2) whether the delay for filing an appeal of a partial judgment begins on the day the motion to certify is signed by the trial judge or the day the notice of signing of the motion is mailed.

After analyzing the applicable statutes, the Supreme Court held that a motion to certify a partial summary judgment as final for purposes of immediate appeal does not have to be filed within a specific time period after the trial court’s issuance of the judgment. Fraternal Order of Police, 2001-1801 at p. 4, 831 So.2d at 899. In addition, the Court held that the delay for filing an appeal of a partial judgment begins on the day the notice of signing a motion to certify is mailed. Id. at p. 5, 831 So.2d at 900. Fraternal Order of Police has eviscerated Shell Pipeline.

|1s>We find, therefore, that a dismissal of this appeal without prejudice permits the appellant to obtain the required article 1915 designation and thereafter file an appeal in this court of that judgment.

Accordingly, the appeal filed by Miller is dismissed without prejudice. The judgment sought to be appealed is not a final judgment that is immediately appealable because the judgment is not properly designated by the trial court as a final judgment for the purpose of immediate appeal. La. C.C.P. art. 1915(B) as it existed prior to the 1999 amendments thereto, and as interpreted by this court’s en banc decision in Jackson v. America’s Favorite Chicken Co., supra, requires the dismissal without prejudice. We adhere to our ruling in Jackson and jurisprudence to the contrary is rejected as no longer of precedential value.

APPEAL DISMISSED WITHOUT PREJUDICE.

JONES, J. Dissents With Reasons.

JONES, J.

Dissents With Reasons.

Professor Frank Maraist and Justice Harry T. Lemmon (retired) promulgate that “[w]hen a partial final judgment reaches the court of appeal without proper designation, but the circumstances justify an early appellate decision, the appellate court probably should exercise its supervisory jurisdiction to hear the ease.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 14.3 (Supp.). This point was further elucidated in Evans v. Charity Hospital in New Orleans, 2000-0202, pp. 2-3 (La.App. 4 Cir. 11/14/01), 801 So.2d 1192, 1194-1195 which states:

The Supreme Court’s ruling in this case effectively has overruled this Court’s decision in Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, in which it was held that this Court no longer would convert appeals from partial summary judgments that had not been certified as final by the district court to applications for supervisory writs. The Supreme Court s remand with instruction to consider this appeal under our supervisory jurisdiction reminds us, as this Court noted in Livingston Downs Racing Association, Inc. v. Louisiana State Racing Commission, 96-1215, p. 3 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216 that:
the difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right. As a general rule, the Court of Appeal does not exercise its discretionary supervisory jurisdiction in the absence of a showing that |;>the failure to do so will result in irreparable injury. Where an appeal would provide an adequate remedy there would normally be no irreparable injury and the Court would not issue certiorari to review the judgment complained of ...

The record in this matter indicates that the judgment of October 8, 2002, was the subject of a Motion for Devolutive Appeal filed on October 24, 2002. While the appellant is not entitled to appeal this interlocutory judgment, he clearly filed his appeal within the delays allowed for this Court to exercise our supervisory jurisdiction. Thus, it is not appropriate for this Court to dismiss this appeal, but rather we should exercise our supervisory jurisdiction pursuant to Evans, supra.

      . As required by law, because this lawsuit was filed before 1 January 2000, the effective date of Acts 1999, No. 1263, we apply Article 1915 as it existed prior to the 1999 amendments.

      . Article 2083 provides in pertinent part:
      A. An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, from an interlocutory judgment which may cause irreparable injury.... [Emphasis added.]

      . However, irreparable injury was shown permitting an appeal by a hospital from an order overruling its exception of prematurity made on a claim that complaint was required to be presented first to a medical review board as required by Louisiana Medical Malpractice Act (La. R.S. 40:1299.41 et seq.). See Cashio v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1 Cir.1979); see also Lange v. Earl K. Long Medical Center, 97 1661 (La.App. 1 Cir. 6/29/98), 713 So.2d 1195, writ denied, 98-2061 (La. 11/13/98), 730 So.2d 935 (Although judgment rejecting a dilatory exception raising the objection of prematurity is interlocutory, a judgment requiring a health care provider to forego the benefit of a medical review panel is appealable in that panel proceedings cannot be adequately replicated after reversal on appeal.).

      . We do not mean or intend to say that the trial court is required to certify the judgment as final, immediately appealable, and that no just reason for delay of the appeal is warranted. Rather, the decision whether an otherwise partial judgment is final and subject to an immediate appeal is determined by the trial judge and reviewable by an appellate court on an application for supervisory writs; our review would be upon whether the trial court abused its vast discretion in not certifying the judgment as final and immediately appealable.


author: McKAY, Judge. TOBIAS, J.,

text:
    Kermit DALES v. CECO CONCRETE CONSTRUCTION.
    No. 2002-CA-2740.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.

      William S. Vincent, Jr., William W. Meeks, Law Offices of William S. Vincent, Jr., New Orleans, LA, for Plaintiff/Appel-lee.
    Philip J. Borne, Leslie E. Hodge, Chris-tovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   McKAY, Judge.

The defendant, Ceco Concrete Construction, seeks review of the workers’ compensation judge’s ruling that the plaintiff is entitled to continuing medical benefits and an award of penalties and attorney’s fees.

The plaintiff, Kermit Dales, injured his right knee on May 23, 1998 while employed as a foreman for Ceco Concrete Construction. The plaintiff continued to work after the injury, taking only one day off for surgery on the knee. He was laid off by Ceco -on October 27, 2000. While surgery on the knee was successful, the plaintiff still had some residual problems, including what he thought was a clicking coming from the right knee. The plaintiff’s treating physician determined that the clicking was coming from the plaintiffs right hip and suggested that an MRI be performed. When the defendant denied payment for the MRI, the plaintiff filed a disputed claim for compensation on November 28, 2000.

The trial of the matter was held on April 10, 2002. The workers’ compensation judge took the matter under advisement and rendered a written judgment on August 22, -2002. The judge held that the plaintiff “failed to prove that the painless hip clicking, though possibly caused by his job related injury, prevents him from working, and he is therefore not entitled to any medical | ^treatment of his hip.” The judge further held that the plaintiff “is working in pain in his right knee, and he is therefore entitled to continued medical treatment as prescribed by his treating physician, together with any and all diagnostic test and treatment recommended by his physician.” The judge awarded plaintiff penalties of $2,000.00 for “defendant’s failure, without reasonable cause, to provide continued medical care for his right knee.” The judge also awarded plaintiff attorney fees of $8,000.00, finding defendant was “arbitrary and capricious in failing to pay indemnity benefits when due for at least six weeks following the surgery, having opted to pay claimant wages in lieu of workers’ compensation benefits.”

The defendant contends that the judge erred when she determined that the plaintiff was entitled to continuing medical benefits for his right knee and awarded plaintiff penalties for the defendant’s alleged failure to provide continuing medical care for plaintiffs right knee. The defendant argues that the only issue before the judge was whether the plaintiff was entitled to benefits for his right hip. At the hearing held on April 10, 2002, the defendant sought to continue the matter because plaintiff had just informed his counsel and defendant that he had been injured in a subsequent accident. The judge denied the continuance, stating that she would only consider evidence relating to the issues on plaintiffs disputed claim for compensation filed on November 28, 2000. The form filed by plaintiff on that date referenced the accident of May 23, 1998 and indicated that the plaintiff suffered injury to his back, knee and hip. The pretrial statements filed by both plaintiff and defendant placed plaintiffs knee and hip injuries at issue. However, plaintiffs post-trial memorandum discussed only plaintiffs injury to his right hip and the need for medical treatment for the right hip.

| ¡¡Given that the disputed claim for compensation and the pre-trial memoranda raised the issue of the plaintiffs knee injury, the workers’ compensation judge did not abuse her discretion when she considered evidence of whether the plaintiff was entitled to continuing medical benefits for his knee injury.

The next issue is whether the plaintiff produced sufficient evidence to support the judge’s finding that he was entitled to continuing medical treatment for his knee injury.

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Under this standard of review, an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. After reviewing the entire record, the appellate court must determine if the factfinder’s conclusion was reasonable. Where conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Id. at 738. If the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/01/97), 696 So.2d 551.

Whether a claimant has carried his burden of proof and whether his testimony is credible are questions of fact to be determined by the workers’ compensation judge. Harris v. Coushatta Indus. Sand, Inc., 31,977 (La.App. 2 Cir.6/16/99), 741 So.2d 143. A claimant’s burden of proof in establishing a causal relationship between a job related accident and a disability is by a preponderance |4of the evidence. Durham v. Plum Creek Manufacturing, 32,888 (La.App. 2 Cir.5/10/00), 760 So.2d 564.

In determining whether the worker has discharged the burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of his testimony. A worker’s testimony alone may be sufficient to discharge the burden of proof provided that two essential elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the incident. Jackson v. Creger Automotive Co., Inc., 29,249 (La.App. 2 Cir. 04/02/97), 691 So.2d 824.

The plaintiff was the only person to testify at the hearing. The deposition and medical records of Dr. David W. Aiken, Jr., the plaintiffs treating physician, were introduced into evidence. Plaintiff stated that his knee was still causing him pain. However, he had not seen Dr. Aiken since January 10, 2000 at which time he told Dr. Aiken that he was still having pain in the right knee. The plaintiff stated that he had wanted to see Dr. Aiken but the defendant would not approve the visit. This was despite Dr. Aiken’s correspondence to defendant that he wanted to see the plaintiff in August of 2000. It was not until September 12, 2000, that the plaintiff received a letter from the defendant authorizing a visit to Dr. Aiken. As of the date of the hearing, the plaintiff had not seen Dr. Aiken since January of 2000. The defendant produced no evidence to contradict plaintiffs evidence. Thus, the workers’ compensation judge did not commit manifest error when she concluded that the plaintiff was entitled to continuing medical treatment for his knee.

|sAs plaintiff was entitled to continuing medical treatment for his right knee, the workers’ compensation judge also determined that the plaintiff was entitled to penalties for defendant’s failure to provide continuing medical treatment. The defendant argues that the imposition of penalties was improper. The defendant also complains that the workers’ compensation judge erred when she awarded plaintiff attorney fees for the defendant’s alleged failure to pay compensation benefits.

The plaintiff testified at the hearing that he took only one day off for surgery and went back to work the next day. The plaintiff stated that his supervisor told him that it would be better for him to report to work. He would make one hundred per cent of his salary instead of sixty-six and two-thirds of his salary through workers’ compensation benefits. In addition, the supervisor told him that he would save the company several thousand dollars. Plaintiff testified that when he returned to work the day after the surgery, he was given a sedentary job. Dr. Aiken testified in his deposition that he would not encourage anyone to return to work the day after arthroscopic surgery. Dr. Aiken stated, in correspondence to the defendant, six days after plaintiff’s surgery, that the plaintiff would probably be able to return to regular duties in three weeks.

La. R.S. 23:1201(F) provides for the greater of $2,000.00 or a twelve percent (12%) penalty on any workers’ compensation or medical benefits that an employer fails to pay pus reasonable attorney fees, unless the employer reasonably controverts the employee’s claim for compensation or benefits. A claimant’s rights to benefits are “reasonably controverted” if the employer’s factual and medical information reasonably counters that of the claimant. Connor v. Jones Bros. Enter prises, 606 So.2d 996, 1004 (La.App. 4 Cir.1992). Employers must | (¡demonstrate that they made reasonable efforts to ascertain the workers’ exact condition before denying benefits. “An employer has an ongoing duty to review medical reports concerning an injured employee’s disability, and may not deny or discontinue compensation based on inconclusive medical reports.” Blanque v. City of New Orleans, 612 So.2d 948, 952 (La.App. 4 Cir. 1993). The determination of whether an award of penalties and attorney fees is warranted is a question of fact that shall not be disturbed unless manifestly erroneous or clearly wrong. Price v. City of New Orleans, 95-1851 (La.App. 4 Cir. 3/27/96), 672 So.2d 1045, 1051.

In the case at bar, the plaintiff has shown that he was entitled to continued treatment with Dr. Aiken for his knee injury. The defendant has not produced any evidence to reasonably controvert plaintiffs evidence. Thus, the workers’ compensation judge did not commit manifest error when she determined that the plaintiff was entitled to penalties for the defendant’s failure to authorize continuing treatment for plaintiffs knee injury. Further, the workers’ compensation judge did not commit manifest error when she awarded plaintiff attorney fees for the defendant’s failure to pay compensation benefits. The defendant argues that since it paid plaintiff his regular salary, it did not have to pay plaintiff compensation benefits. However, plaintiff only received his regular salary because he returned to work the day after his surgery. As Dr. Aiken stated in his deposition and correspondence to the defendant, he advised plaintiff that he should not return to work until several weeks after the surgery. Despite Dr. Aiken’s medical advice, the defendant suggested to the plaintiff that he return to work immediately after the surgery so defendant would not have to pay several thousands of dollars for workers’ compensation. The workers’ compensation judge did not commit 17manifest error when she found that the defendant’s actions entitled plaintiff to an award of attorney fees.

Accordingly, the judgment of the workers’ compensation judge is affirmed.

AFFIRMED.

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurring and assigning reasons.

I respectfully concur in order to assign additional reasons that, in my opinion, reinforce part of what the majority finds.

My review of the record establishes that the parties tried the issue of whether the plaintiff was in need of continuing treatment of his knee. I read the claim form submitted by the plaintiff to the Office of Workers’ Compensation as broad enough to encompass the claim relating to the knee. To the extent that the issue may not have been specifically pleaded, I note La. C.C.P. art. 1154, which provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

| .¡In this case, to the extent necessary, I read the pleadings filed in this court as an implicit request for expansion of the pleadings.

I am loath to ever reduce an award of attorney’s fees in a case because of the vast discretion afforded trial courts in such matters. Although the trial court failed to articulate any reasons why and how it arrived at the $8,000.00 fee and no evidence appears of record of the amount of time that the plaintiffs counsel expended on the plaintiffs case, I do not find that ultimately an $8,000.00 fee is not warranted.

When a record contains no evidence of the amount of time that counsel has expended on a case, the only way one can assess the effort that counsel expended is to examine the pleadings, transcript, and other documents in the record on appeal; some weight must be given to the effort that counsel expended in preparing the appellate brief. One makes a good faith effort to then arrive a reasonable fee under the circumstances. In reviewing all of same in this case, I think reasonable minds could say that the plaintiffs counsel expended fifty hours on this entire case (through and including the appeal). Therefore, although an award of $8,000.00 might have been excessive for the trial court because the plaintiffs counsel had not yet prepared the appellate brief, when one considers the time expended post-trial by counsel, the $8,000.00 fee is not unreasonable.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Desmond K. GARRUS.
    No. 2002-KA-1940.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Anne M. Dickerson, Assistant District Attorney of Orleans Parish, Harry F. Connick, Former District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellant.
    Tracy Blizzard, Tamara Martinez, Student Attorneys, Katherine M. Mattes, Supervising Attorney, Tulane Law Clinic, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO JR.).
   JAMES F. McKAY III, Judge.

STATEMENT OF CASE

Desmond K. Garras was charged by bill of information on December 10, 2001, in case number 426-692 “C”, with the unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. He pled not guilty at his arraignment on December 28, 2001. On January 25, 2002, the defense filed an application for a subpoena duces tecum, requesting fingerprints from two people, and copies of the fingerprints lifted from the stolen vehicle. The court set a return date of February 22, 2002, on the subpoena. On February 22, 2002, the court found probable cause to bind the defendant over for trial; however, there is no mention of the fingerprint subpoena on that date.

On April 2, 2002, the first setting for trial, the State moved for a continuance because the fingerprint information requested by the defense had not yet been produced by the NOPD Crime Lab. The State advised the court that the information sought by the defense might contain exculpatory evidence, as the fingerprints recovered from the stolen vehicle did not belong to the defendant. The State further argued that because the evidence was incomplete and therefore not | ¿fully explored, it required additional time to analyze that evidence relative to its case.

The trial denied the State’s request for continuance stating that it did not understand how the “incomplete” information could be Brady material because the fingerprints recovered from the stolen vehicle already excluded the judge defendant. The State then entered a nolle prosequi on April 2, 2002.

On April 5, 2002, the State re-instituted proceedings against the defendant under case number 429-295 “C”. The defendant was arraigned on April 18, 2002, and pled not guilty.

On April 80, 2002, the defense filed a motion to quash the bill of information, which the trial court granted that same day. This appeal followed.

On January 24, 2003, this Court ordered the State to show cause why this appeal should not be dismissed as untimely pursuant to La.C.Cr.P. art. 914 and State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291. The State responded to the show cause order on February 11, 2003.

La.C.Cr.P. art. 914 states in pertinent part that “[a] motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.”

In this case, the State orally noted “its intent to seek writs” immediately after the trial court granted the defendant’s motion to quash. The docket master indicates that on the same day the trial court quashed the proceedings, it allowed the State until May 29, 2002 “to take a writ”. On May 29, 2002, the State filed a notice of intent to file an appeal, followed by a motion for appeal on June 10, 2002, which the trial court granted.

|aThe State argues that it adhered to the time constraints of La. C.O.P. art. 914 by placing the defense on notice it would seek review of the order quashing the proceedings on the same day the trial court rendered the ruling. Further, the State maintains that neither the trial court nor the defense objected to or claimed prejudice when the State orally noticed its intent to seek a “writ”, or when it filed a notice of intent to appeal, albeit a late notice. The State notes that appeals are favored in the law, and the Louisiana Supreme Court has disapproved of the dismissal of appeals on “hyper technical” grounds. “Appeals are favored in law, and appeals should not be dismissed on hyper technical interpretations of a statute which can be reasonably interpreted to preserve the appeal, particularly in the absence of any claim of prejudice by the opposing party.” State v. Gilbert, 99-2838 (La.4/20/00), 758 So.2d 779.

As further support for the timeliness of its appeal, the State cites State v. Armant, 2002-0907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271, in which the Fifth Circuit chose to construe an oral notice of intent to apply for supervisory review as an oral notice for appeal. However, the State’s reliance on Armant is misplaced because it is factually inapposite to this case. In Armant, the defense, not the State, noticed its intent to seek “writs” rather than appeal, and then filed a written motion for appeal nine days later, rendering the appeal untimely under C.Cr.P. art. 914.

In its January 24, 2003, order, this Court also questioned the timeliness of this appeal in light of State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.

LResponding, the State argues that this case is distinguishable from Gray, supra. The distinction, according to the State, is that in Gray, there is no indication that the State notified the defense, either by writ or appeal, within the five day time period of La.C.Cr.P. art. 914, that it intended to seek review of the judgment quashing the proceedings.

The State’s argument is incorrect. In Gray, the State did object to the granting of the motion to quash, and was allowed one month to file for a writ of certiorari. One day after the due date for filing the writ, the State filed a motion for appeal, which was granted. State v. Gray, unpub., 98-0347, p. 2 fn. 1, 731 So.2d 559 (La.App. 4 Cir. 10/21/98). Vacating this Court’s decision in Gray, and reinstating the judgment granting the motion to quash the Supreme Court concluded that “... the district court’s judgment became final when the state failed to take a timely appeal from the disputed ruling. State v. Veazey, 337 So.2d 1163 (La.1976).” State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.

Considering the time limitation imposed by La.C.Cr.P. art. 914 and the procedural posture of this case in relation to State v. Gray, supra, it appears the State’s appeal is untimely.

Accordingly, we dismiss the State’s appeal as untimely under C.Cr.P. art. 914 and State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.

APPEAL DISMISSED.

      . La.C.Cr.P. art. 912(B) provides in pertinent part:
      ... Adverse judgments or rulings from which the state may appeal include, ... (1) A motion to quash an indictment ...


author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Thomas H. WILLIAMS.
    No. 2002-KA-2189.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.
    Eddie J. Jordan, Jr., District Attorney, Kristen A. Keller, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.

      (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   CHARLES R. JONES, Judge.

Thomas H. Williams was charged by bill of information with and convicted of simple possession of crack cocaine. On March 5, 2002, the district court sentenced him to serve seventeen months at hard labor. The court also granted Williams’ motion for appeal. On that same date, the State filed a multiple bill, alleging that Williams was a second offender. Williams pled not guilty to the multiple bill. The hearing on the multiple bill was continued several times until August 9, 2002. At that hearing, after the State introduced documentation to support the multiple bill, the parties realized that the documentation did not match the prior conviction alleged in the multiple bill. Rather, it was documentation from the present case. The district court continued the matter, and on November 6, 2002, the district court held a second hearing. At the conclusion thereof, the district court found Williams to be a second offender. The court vacated the original sentence and ordered Williams to serve thirty months at hard labor as a second offender, without benefit of parole, probation, or suspension of sentence. The district court denied Williams’ motion to reconsider his sentence. Williams now appeals his conviction and sentence, arguing one error as to his adjudication as a second offender.

12At trial, Detective Frank Watts and Officer Todd Durel testified that they were on routine patrol in the early evening of September 24, 2001. As they were driving down N. Dorgenois Street they saw the defendant, Thomas Williams, walking south on St. Ann Street. They each testified that as they stopped at the corner of N. Dorgenois and St. Ann Streets, Williams observed them, dropped an object from his hand, turned, and began walking north on St. Ann Street. The officers testified that they exited their vehicle and while Detective Durel detained Williams, Officer Watts walked over to the area where Williams dropped the object and retrieved the object, which was a plastic bag containing what appeared to be a rock of crack cocaine. The officers further testified that they arrested Williams, and at that point a woman came out of the house on the corner and questioned why they were arresting Williams. Williams identified the woman as his “old lady.” Detective Watts testified that there was no debris in the area where he retrieved the cocaine, and he also testified that he did not lose sight of the object Williams dropped. Both officers testified that Williams was the only person in the area of the object when they saw him drop it.

Also at trial, the parties stipulated that the object in the bag retrieved by Detective Watts tested positive for cocaine, and it weighed one tenth of a gram.

At trial, Trina Mahone testified that she is Williams’ girlfriend, and that on September 24, 2001, she and Williams lived at 2601 St. Ann Street, located at the corner of St. Ann and N. Dorgenois. She further testified that she, Williams, their young son, another woman, and her brother were just leaving the house to get something to eat when the officers drove up and ordered Williams to come to their vehicle. Ms. Mahone further testified that Williams was carrying five syringes at the time of his arrest, intending to walk to his grandmother’s house nearby to give l.othem to her. She also testified that the officers immediately handcuffed Williams and began searching him and the area. She further testified that they found nothing, and then she allowed Officer Durel to search the house. She estimated she and Officer Du-rel were inside the house for approximately ten minutes. When they emerged from the house, Detective Watts indicated that he “found it,” showing them the bag with the rock of cocaine in it.

Williams admitted he had a prior conviction for armed robbery, testifying at trial that he was caught in the robbery, and that he pled guilty to the charge in 1992, when he was sixteen years old. He testified that on the day of his arrest in this case, he and the others were getting ready to leave the house to get something to eat when he got a call. In response to that call, he grabbed a few syringes, intending to walk to his grandmother’s house and give them to her. He testified that he saw the officers as he walked out the front door, and they called him over to them. He also testified that he went to them, and they immediately handcuffed him and began searching him. He testified that they questioned him about the syringes, and while he was being detained his grandmother arrived on the scene to corroborate his statement that he had them for her. Williams also testified that the area where the officers stopped him was full of debris, and when the officers found nothing, Officer Durel and Ms. Mahone went into the house. He testified that he estimated they were inside for about seven minutes and then they came back outside. He also testified that when Officer Durel indicated that the house was “clean”, Detective Watts told him “I got it,” indicating the bag with the rock of crack cocaine. Then Detective Watts told Durel he saw Williams throw down the bag. Williams also testified that the officers arrested him, and that a few weeks Rafter he was released on bail, Detective Watts again arrested him for dropping a bag of cocaine, but those charges were refused as false.

A review of the record reveals one patent error. The district court erred by imposing Williams’ sentence without benefit of parole. Neither La. R.S. 40:967C(2), the substantive statute for possession of cocaine, nor La. R.S. 15:529.1A(l)(a), the multiple bill statute, provide for the prohibition of parole for a second offender convicted of simple possession of cocaine. Thus, we amend Williams’ sentence to delete the prohibition of parole eligibility.

By his sole assignment of error, Williams argues that he is entitled to a new multiple bill hearing because of errors committed by the State which denied him the opportunity to dispute the voluntariness of his 1992 plea of guilty to armed robbery, which formed the basis of the multiple bill. According to the minute entry of March 5, 2002, the State filed a multiple bill just after sentencing, alleging that Williams was a second offender, and Williams pled not guilty to the multiple bill. The matter was reset a few times, and on August 9, 2002, the State called a fingerprint expert who compared fingerprints taken from Williams to fingerprints found on the back of an arrest register. The expert matched the fingerprints, but then it was discovered that the arrest register was for the present offense, not for the 1992 armed robbery plea of guilty alleged in the multiple bill. The district court then reset the matter, allowing the State time to compile the correct paperwork. Williams objected on the record, noting he had been to court many times in the case already. At the conclusion of the hearing, held November 6, 2002, the State presented the certified copies from Williams’ 1992 guilty plea to armed robbery, as well as testimony from Williams’ parole officer who positively identified Williams as the man he supervised in the armed robbery case. Williams | ^testified at that hearing that he told the judge in 1992 that he was pleading guilty because his mother told him to do so. Nonetheless, the district court found him to be a second offender, vacated his original sentence, and resentenced him to serve thirty-months as a second offender.

Williams now argues that his second offender adjudication and sentence are invalid because he was not given the opportunity to dispute the voluntariness of his prior plea because of the State’s failure to show him its documentation prior to the November multiple bill hearing. He argues that at the August hearing the State had the wrong arrest register, and he also argues that the prosecutor at the November hearing “believed” she had given the defense at the earlier hearing the certified copies of the prior conviction, but she was not certain she had done so. He argues that because he indicated at the November hearing that his prior plea was not voluntary because he only pled guilty at the urging of his mother, he is now entitled to a new hearing on the multiple bill.

Williams’ claim is without merit. He cites no authority for the proposition that the State must produce its evidence to the defense prior to the actual hearing date. As per La. R.S. 15:529.1(D), the district court must inform the defendant of the allegations in the multiple bill and allow him time to object to the allegations. The statute does not require the State to produce its proof of the multiple bill prior to the hearing. In addition, it is clear that Williams knew the 1992 armed robbery plea was going to be used to enhance his sentence, as that is the case alleged in the multiple bill of information which was filed many months prior to the August hearing. Now he does not argue that the documentation submitted at the hearing 1 fiwas inadequate to meet the State’s burden of proof of the multiple bill, see State v. Shelton, 621 So.2d 769 (La.1998), nor that the documentation would show that he was not adequately advised of his rights as per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Indeed, a review of the minute entry and the waiver of rights form the State presented as to the prior plea indicates that Williams was adequately advised of his Boykin rights.

Instead, Williams argues that his plea was involuntary because he pled guilty not because he wanted to do so, but because his mother forced him to do so. At the multiple bill hearing, he argued that he could prove this claim if he had the colloquy of that plea. However, Williams and his attorney knew from the moment the multiple bill was filed that the State would try to use this plea to enhance his sentence, but apparently no effort was made to obtain this transcript. Because the argument of involuntariness did not hinge upon the sufficiency of the documentation of the plea, it is immaterial whether or not the State provided this documentation prior to the November hearing. Williams was put on notice when the multiple bill was filed that the State intended to use this prior plea to enhance his sentence, and it is clear that at the latest he was aware at the August hearing that this plea would be used. Because he had at least three months in which to obtain his proof of involuntariness, and because his claim was not tied to the State’s documentation of the plea, he cannot now argue that any failure to produce this documentation prior to the November hearing denied him the right to prove the 1992 plea was involuntary. As such, we find his argument that he is entitled to a new hearing on the multiple bill is without merit.

| ^Accordingly, we affirm Thomas H. Williams’ conviction and his adjudication as a second offender. We amend his sentence to delete the prohibition of parole, and affirm his sentence as amended.

AMENDED, AFFIRMED AS AMENDED.

      . The case Williams cites, State v. Davis, 98-1019 (La.App. 4 Cir. 12/29/99), 751 So.2d 326, does not stand for this proposition.