author: I-WILLIAMS, Judge.

text:
    Darlene SLAGEL, et al., Plaintiff-Appellee, v. Jack Carol ROBERSON, Defendant-Appellant. Jack Carol Roberson, Plaintiff-Appellant, v. Marty Hawkins, as Administrator for the Estate of Rodney Dean WOOD, Defendant-Appellee. Michael Wilson, Plaintiff-Appellee, v. Jack Carol Roberson, Defendant-Appellant.
    Nos. 37,791-CA, 37,792-CA, 37,793-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 18, 2003.

      Ansel M. Stroud, III, Counsel for Appellant.
    Jack Carol Roberson, In Proper Person.
    James M. Johnson, Minden, and Milam M. Kinard, Counsel for Appellees.
    Before BROWN, WILLIAMS and TRAYLOR (Pro Tempore), JJ.
   I-WILLIAMS, Judge.

The defendant, Jack Roberson, appeals a judgment in favor of the plaintiffs, Darlene Slagel, Marty Hawkins and Michael Wilson. The trial court assessed 80% fault to Roberson in causing the accident and 20% fault to the decedent, Rodney Wood. The court awarded damages of $312,200 to Slagel, $21,610.78 to Hawkins as the administrator of the decedent’s estate, $17,014.56 to Wilson and $5,000 to Roberson. For the following reasons, we affirm.

FACTS

On May 7,1996, Rodney Wood was driving his 1985 Chevrolet automobile south on Louisiana Highway 157 in Bossier Parish. Wood was driving with his passenger, Michael Wilson, from Arkansas to Shreveport, Louisiana, to attend a concert. Jack Roberson was driving a farm tractor north on La. Hwy. 157 toward a hay field. As he reached the private driveway leading into the hay field, Roberson began a left turn, •without a signal, across the southbound lane of the highway. At that point, Wood drove around a sharp curve in the highway and encountered the turning tractor in his path. Wood applied his brakes and veered to the right, but his vehicle crashed into the hydraulic lift in the front of the tractor. The decedent, Wood, was killed in the collision. Wilson and Roberson sustained injuries as a result of the accident.

Louisiana State Police Officer Chris Joyner investigated the accident scene and photographed a skid mark made by the driver’s side tire of decedent’s vehicle. Officer Joyner observed spilled fluids and gouge marks in the driveway pavement and saw paint from the automobile on the tractor. LAs a result of his observations, the officer determined that the vehicles’ point of impact occurred in the driveway near its entrance to the highway and that decedent’s vehicle struck the left front tire of the tractor.

Subsequently, Darlene Slagel, the decedent’s mother, and Marty Hawkins, administrator of decedent’s estate, filed a petition for wrongful death damages against Roberson. Wilson also filed a petition for damages against Roberson, who filed a suit for damages against the decedent’s estate. The three actions were consolidated for trial.

After a bench trial, the court issued a written opinion finding that the left-turning tractor was still partially in the roadway when the accident occurred and that decedent’s vehicle had exceeded a safe speed. The trial court allocated 80% fault to Roberson and 20% fault to the decedent in causing the accident. The court awarded Slagel damages of $800,000 for loss of love and affection, $7,200 for loss of support and $5,000 for loss of services. The court further awarded damages of $17,014.56 to Wilson, $21,610.78 to Hawkins as administrator of decedent’s estate and $5,000 to Roberson. The court rendered judgment providing that all of the above damage awards were to be adjusted according to the allocation of fault. Roberson’s motion for new trial was denied. Roberson appeals the judgment.

DISCUSSION

In two assignments of error, the defendant contends the trial court erred in the allocation of fault. Defendant argues that the decedent should have been assessed with a higher percentage of fault because his excessive |3speed was the major contributing factor in causing the accident.

Before attempting a left turn, a motorist should ascertain whether it can be completed safely. Theriot v. Lasseigne, 93-2661 (La.07/05/94), 640 So.2d 1305; Silva v. Calk, 30,085 (La.App.2d Cir.12/10/97), 708 So.2d 418. In a vehicular collision case, plaintiffs are afforded the benefit of a presumption of the defendant’s negligence when they prove that the defendant executed a left hand turn and crossed the center line at the time of the impact. Miller v. Leonard, 588 So.2d 79 (La.1991). The burden rests on the motorist who desires to make a left turn to explain how the accident occurred and to show that he is free from negligence. Id.; Silva, supra.

Likewise, jurisprudence has established that an oncoming driver has a right to assume that the left-turning motorist will obey the law in allowing him to continue in his proper lane of travel and will yield to his right-of-way. Jones v. Lingenfelder, 537 So.2d 1275 (La.App. 2d Cir.1989), writ denied, 539 So.2d 631 (La.1989); Terro v. Casualty Reciprocal Exchange, 93-593 (La.App. 3rd Cir.02/02/94), 631 So.2d 651, writ denied, 94-0522 (La.04/22/94), 637 So.2d 157.

Nonetheless, all motorists on Louisiana highways must drive with due regard for the traffic on the highway and have an affirmative duty not to drive faster than is reasonable and prudent under the conditions and potential hazards existing at the time. LSA-R.S. 32:64(A); Lennard v. State Farm Mutual Automobile Insurance Company, 26,396 (La.App.2d Cir.01/25/95), 649 So.2d 1114; Jones, supra. Thus, notwithstanding the presumption of negligence attributed to a left-turning driver, a favored | ¿motorist can still be assessed with comparative fault if his substandard conduct contributed to the cause of the accident. Terro, supra.

Pursuant to Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985), the trier of fact will compare the relative fault of the parties in the assessment of liability. The law of comparative negligence is applicable to situations involving automobile accidents. Ortigo v. Merritt, 488 So.2d 1051 (La.App. 2d Cir.1986). The allocation of fault is a factual determination subject to the manifest error rule. Hundley v. Harper Truck Line, Inc., 28,613 (La.App.2d Cir.9/25/96), 681 So.2d 46.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting .evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

Officer Joyner testified that Highway 157 curved sharply just prior to the location, of the private driveway. He stated that decedent’s vehicle left a skid mark of approximately 56 feet up to the point of impact, which was indicated by scrapes and gouges on the west side of the highway pavement. Joyner testified that the automobile hit a hydraulic lift attached to the front of the tractor, tearing off the roof of the vehicle and damaging the tractor’s right front tire. Joyner stated that at impact, the front end of the tractor was past the highway, but the rear of the tractor partially extended into the Rhighway lane of travel. Joyner testified that a major contributing factor in causing the accident' was the speed of decedent’s vehicle.

Roberson testified that while driving his tractor to the hayfield, he looked forward and backward and did not see any other vehicles approaching. Roberson stated that he did not stop or give a signal before turning, but slowed the tractor and turned left toward the driveway. Roberson testified that as he was entering the driveway, he saw in his peripheral vision a vehicle approaching at a high rate of speed and he did not have time to react before impact. Roberson stated that he had cleared the highway when the automobile struck the lift on the front of his tractor. Disagreeing with the police officer’s determination that the tractor was partially in the highway at impact, Roberson testified that he had entered the driveway at an angle and that no part of the tractor remained in the highway.

James Wilson, the passenger in decedent’s vehicle, testified that after they came out of the winding curve they saw the tractor in the roadway. Wilson stated that the brakes locked up, he heard the tires screeching and after that point there was a gap in his memory. Wilson testified that he did not remember the speed at which the automobile was traveling when decedent applied the brakes.

In his brief, Roberson contends he was not at fault because the collision resulted from the oncoming vehicle’s excessive speed, which he could not have reasonably anticipated. However, despite Roberson’s testimony that he became aware as he was turning that a collision was imminent, the evidence shows that he did not apply his brakes or take any [ fievasive action. Applying the Watson factors, we note that Roberson was aware of the danger in making a left turn on a highway in a slow moving tractor without first stopping and that decedent was aware of the risk of driving at a high speed through a curving roadway. The conduct of both Roberson and the decedent created a significant risk of accident and injury.

The trial court heard the evidence and weighed the credibility of the witnesses. Considering the evidence presented, the court could reasonably have concluded that if Roberson had stopped to ascertain whether the left turn could be completed safely, he would have had an opportunity to see the approaching automobile prior to initiating the turn. The trial court was able to evaluate the reciprocal duties of each motorist and the competing theories regarding their respective fault. After reviewing the entire record, we cannot say the court’s allocation of fault was manifestly erroneous. Therefore, we will not disturb the result. The assignments of error lack merit.

Damages

The defendant contends the trial court erred in awarding Slagel $300,000 for loss of affection. Defendant argues that based on the evidence, the award is excessive and should be reduced.

The trier of fact is given much discretion in the assessment of damages. LSA-C.C. art. 2324.1. The elements of damage for a wrongful death action are loss of love, affection, companionship and support. Scott v. Pyles, 99-1775 (La.App. 1st Cir.10/25/00), 770 So.2d 492. Wrongful death awards may be based on the degree of affection with the deceased and the l7closeness of the family relationship. Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820. The parent of a deceased may recover damages which she sustained as a result of the death. LSA-C.C. art. 2315.2; Bryant v. Solomon, 97-2008 (La.App. 4th Cir.3/25/98), 712 So.2d 145.

An appellate court may disturb an award of damages only when the record clearly shows that the factfinder abused its broad discretion in making the award. Scott, supra. After a determination that an award constitutes an abuse of discretion based on the particular injuries sustained and their effect on the particular injured person, the appellate court may reduce or increase the award to the highest or lowest amount reasonably within the factfinder’s discretion. Wilson v. Nat’l Union Fire Ins. Co., 27,702 (La.App.2d Cir.12/6/95), 665 So.2d 1252.

In the present case, Marty Hawkins, the brother-in-law of Darlene Slagel and administrator of decedent’s estate, testified that Slagel and her son seemed to have a “really close” relationship during the time her son lived in her home. Hawkins stated that after the decedent’s death, Slagel “fell apart” and for a period of time cried often and did not eat. Hawkins testified that Slagel was emotionally devastated and sought psychological counseling to help her cope with the loss of her son.

Darlene Slagel, the decedent’s mother, testified that she was at work when she learned that her oldest son had died in an automobile accident. Slagel described her reaction as a feeling of total devastation and that she felt as if someone had ripped out a piece of her heart and placed an anvil on lsher chest. Slagel stated that for a period after her son’s death, she was dysfunctional, she could not eat or sleep and relied on family support to get her through those days. Slagel testified that she never saw decedent after his death because she was told that given the nature of the injuries, it would be better for her not to view the body.

For a number of months, Slagel could not believe the decedent was gone and she visited the cemetery twice each day. Sla-gel stated that she saw a psychiatrist for six months and took anti-depressant medication. Slagel testified that the treatment helped her cope with her feelings of grief, but that her lifestyle had changed as a result of her son’s death, because she was unable to continue with her stressful job as an office worker and was instead working as a housekeeper.

The testimony demonstrated that Slagel had developed a close bond with her son, who was single and did not have any children. In rendering an award in favor of Slagel, the trial court found that decedent and his mother had formed a substantially close relationship and that Slagel suffered a serious emotional impact and loss of affection following the death of her son. After reviewing the record, we conclude that this award does not exceed the highest amount reasonably within the broad discretion of the trial court in assessing damages. Consequently, we cannot say the court’s award of $300,000 for loss of affection is excessive. The assignment of error lacks merit.

In their brief, the plaintiffs contend Wilson’s damage award should not be reduced based on the fault allocation because he was a passenger and |9that Roberson’s damage award should be reversed. However, an appellate court cannot amend a judgment in favor of a party who has neither appealed nor filed an answer to the appeal. Blair v. Tynes, 621 So.2d 591 (La.1993). Plaintiffs did not appeal the judgment or file an answer to the appeal. Thus, the plaintiffs’ arguments regarding the court’s damage award and allocation of fault cannot be addressed by this court on appeal.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Jack Roberson.

AFFIRMED.


source: Caselaw Access Project

author: j .KLINE, J.

license: Public Domain

text:
    Tammy J. BRISTER v. PIZZA INN.
    No. 2002 CA 2426.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Lester Waldmann, Gretna, Plaintiff/Appellant Tammy J. Brister.
    Douglas Cochran, Michael McKay, Baton Rouge, Counsel for Appellee Pizza Inn.
    Before: FOIL, McCLENDON, and KLINE
      , JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   j .KLINE, J.

This is an appeal of a judgment of the workers’ compensation judge (‘WCJ”) finding that the claimant, Tammy Brister, failed to prove the occurrence of a work-related accident, and dismissing her claim against her employer, Pizza Inn. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Tammy Brister was employed by Pizza Inn as a cook for eight months. On or about March 21, 2001, Ms. Brister alleged that she injured herself when she lifted approximately twenty-five pounds of pizza dough from a mixing bowl. On June 21, 2001, Ms. Brister filed a disputed claim for workers’ compensation benefits with the Office of Workers’ Compensation. She attached a statement in which she contended the following:

I’d been doing pizza dough every work day for 8 months straight. On March 21, 2001, I was lifting 25 3/4 pounds of pizza dough from a mixing bowl which is about 3-4 inches from the floor. I was removing it from the bowl to place it on the dough table. I started hurting in my stomach area. I’d been telling my supervisor for 2-3 week before that day that I was having a lot of problems with my back. On March 22, 2001 I went back to work only to find that I was in too much pain to continue working. I had a lump on my left side over my ribs. I showed the lump to Rachel Phillips, Asst. Manager, Carol Cotton and Shannon Jenkins both waitresses at Pizza Inn. Then I got permission from Rachel Phillips, Asst Manager to leave and seek medical treatment.

A hearing was held on June 6, 2002. On June 19, 2002, the WCJ rendered the following judgment:

Upon consideration of the evidence accepted, as well as the testimony heard, the Court finds the plaintiff failed in proving the occurrence of a 23:1201(1) accident, thus;
IT IS ORDERED, ADJUDGED AND DECREED that the claim brought by Tammy Brister against Pizza Inn is herein dismissed with prejudice, each party responsible for their cost. Reasons orally assigned June 19, 2002.

Ms. Brister appeals and asserts the following assignment of error:

Appellant contends that the administrative law judge applied an incorrect legal standard in ruling that there claimant had not sustained a work-related “accident” pursuant to the Workers’ Compensation Act.

| o,LAW AND DISCUSSION

The standard for reviewing workers’ compensation cases was summarized by the Louisiana Supreme Court in Seal v. Gaylord Container Corp., 97-0688, pp. 4-5 (La.12/02/97), 704 So.2d 1161, 1164, as follows:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. “Thus, ‘if the [factfinder’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.” ’ (Citations omitted.)

Ms. Brister asserts that the WCJ erred in applying the incorrect legal standard in determining whether or not Ms. Brister sustained injury from a work-related accident. As a result, Ms. Brister contends that this court should review the instant case de novo.

The WCJ, in its written reasons for judgment, stated the following:

This case came on for trial June 6th, 2002, pursuant to a claim initially filed pro se by the employee, Tammy J. Bris-ter, on June 21st, 2001. She alleges a work-related accident while employed with Pizza Inn in Franklinton, Louisiana occurring March 21st, 2001. She complained in her Form 1008 of injuries to her rib muscles, stomach, and back. She listed Shannon Jenkins, a coworker, as a witness who was called to testify. Jenkins related that Brister was a good worker who complained of pain in her back and ribs but could not confirm a date of hearing of these complaints nor could she testify with any degree of specificity regarding the occurrence of an accident.
Brister testified she prepared dough which required lifting a 18 to 25 pounds of powder and added water making the container of mixed dough considerably more heavy. She further testified she injured herself while manipulating the container of mixed dough; and over a period of time throughout the day, the pain became unbearable forcing her to leave work at the end of her shift in pain. She returned to work the next day March 22nd; but after an hour and a half in her shift, she went home due to pain.
Brister testified she reported an accident to her employer; and on March 24th, 2001, sought emergency room care at Charity Hospital in Bogalusa with complaints of pain under her left breast and back. According to these records identified as Plaintiffs 1 and 2, Brister did not report a lifting or work-related accident. She again sought emergency room care on March 27th and again with no history taken with respect to injury. Subsequent visits to St. Tammany Hospital in Covington on June 29th and July 10th through progress notes reveal a history of lower rib pain as a result |4of lifting a dough pan on March 21st, 2001, at her place of employment.
Revised Statute 23:1021(1) defines accident as an unexpected and unforeseen actual identifiable precipitous event happening suddenly or violently and directly producing at the time objective findings of an injury which is more than a gradual deterioration. Brister must prove and establish a work-related accident by a preponderance of evidence. Her testimony alone may be sufficient provided no other evidence discredits or casts serious doubt and provided her testimony is corroborated by circumstances following the alleged accident. Such corroboration may be testimony of other workers or medical evidence.
In. this case, Pizza Inn manager Larry Kinard testified there was no indication of a work-related accident. Brister did not report an accident to. him nor did she complain of pain. The assistant manager, Rachel Phillips, testified she let Brister go home March 22nd due to fatigue but that there was no mention of a work-related accident. Both Kinard and Phillips testified that Brister usually worked well and performed her duties and they would have readily prepared the required paperwork indicating a work-injury claim had same been suggested or reported.
Karen Young, the claims adjuster, testified Brister called in on the hot line March 29th, 2001, and reported a lump on her side; but there was no report of an accident. Young further testified she investigated the claim and found where Brister had medical complaints prior to March 21st, 2001, similar to the ones complained of herein. She further testified that during the course of her investigation, Brister’s story with respect to a definable accident and date vacillated.
One of her primary physicians, Dr. Alvarado, testified he has treated Bris-ter for various symptoms since May of 1999. It wasn’t until April 9th, 2001, did he treat her after the alleged March 21st incident. At that time her main concern was left rib pain she suffered while lifting dough on March 21st. On May 19th, Dr. Alvarado released her to work with a 10-pound lift restriction. Her next visit with this doctor was June 7th when Dr. Alvarado released her with no restriction.
He further testified the back pain had no relation to her alleged work accident especially since she had complained of back pain at the Charity Hospital Emergency Room on March 27th and that at that time the back pain, according to the history, started three weeks prior to the emergency room visit. Thereafter, Bris-ter was treated by Dr. Yousuf who testified overall finding no objective symptoms related to a March 21st accident. All in all, Brister has failed in corroborating her allegations of a work-related accident thus falling short of her requisite burden of proof in establishing the occurrence of an accident. Consequently, her claim is dismissed with prejudice, each party responsible for their own costs. The Court will prepare its own judgment.

The main issue before the court is whether Ms. Brister suffered an “accident” as defined under the Louisiana Workers’ Compensation Act. In order to be compensable under the workers’ compensation laws, an injury must have resulted from an “accident arising out of and in the course of [an employee’s] | ¡^employment.” La. R.S. 23:1081(A). An accident is defined by Louisiana Revised Statute 23:1021(1):

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

The WCJ, as stated in its written reasons for judgment, applied the proper standard in determining whether or not Ms. Brister sustained a work-related accident. As a result, the WCJ’s factual finding as to whether Ms. Brister sustained a work-related accident is subject to the manifest error or clearly wrong standard of appellate review. The factual finding of the WCJ on whether an accident occurred or not is entitled to great weight on appellate review. Bruno v. Harbert International Inc., 593 So.2d 357, 364 (La.1992).

After a thorough review of the record, we find no manifest error in the WCJ’s factual finding that Ms. Brister did not sustain a work-related accident. We adopt the WCJ’s reasons for judgment and conclude that the WCJ’s finding is a permissible view of the evidence.

CONCLUSION

For the above reasons, the judgment of the WCJ is affirmed. Costs of this appeal are assessed to Ms. Brister.

AFFIRMED.


author: FOIL, J.

text:
    Kirby J. KLEIN and Carolyn Klein Hail and the Estate of Philip B. Klein v. AMERICAN LIFE AND CASUALTY COMPANY, American Estate Services, Inc. a/k/a Advanced Legal Systems, Inc., Brian E. Causey, Ronnie Planchard, and Addison Insurance Marketing, Inc.
    No. 2002 CA 1946.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.

      James F. Willeford, New Orleans, Marian Livaudais, Mandeville, for Appellants Plaintiffs Kirby J. Klein and Carolyn Klein Hail.
    Christine Lipsey, Baton Rouge, for Ap-pellee Defendant American Life & Casualty Ins. Co.
    Melissa J. Richard, Baton Rouge, for Appellee Defendant American Estate Services, Inc.
    Brian E. Causey, In Proper Person.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.
   FOIL, J.

The heirs of an annuity buyer appeal from a judgment dismissing their claims against a life insurance salesman.

For the reasons set forth in our opinion in Klein et al. v. American Life and Casualty Insurance Company et al., 2001 CA 2336 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, 2003 WL 21480366, also decided this date, we (1) REVERSE the judgment insofar as it dismisses plaintiffs’ claims on the grounds of peremption under La. R.S. 9:5606; and (2) REVERSE the judgment insofar as it dismisses plaintiffs’ negligence claims on the grounds of prescription. We REMAND this matter to the trial court for an order directing the plaintiffs to amend their petition within a specified time period and for further proceedings consistent with this opinion. Costs of the appeal are assessed equally to the plaintiffs and to Mr. Causey.

REVERSED IN PART AND REMANDED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.


author: | ¡.CLAIBORNE, J.

text:
    AMITE CENTRAL RAILROAD PROPERTIES, L.L.C., et al. v. TOWN OF AMITE CITY. Town of Amite City v. Amite Central Railroad Properties, L.L.C.
    Nos. 2002 CA 1288, 2002 CA 1289.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Joseph H. Simpson, Charles M. Reid, Amite, Counsel for Plaintiff-Appellant Town of Amite City.
    A.J. Gray, III, Lake Charles, Counsel for Defendanb-Appellee Amite Central Railroad Properties, L.L.C.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   | ¡.CLAIBORNE, J.

This is an appeal by the Town of Amite City (the Town) from a judgment of the trial court awarding Amite Central Railroad Properties, L.L.C. (Amite Central) compensation in the amount of $116,386.86 for the property sought to be expropriated from it by the Town, and also awarding Amite Central costs, $21,721 in attorney’s fees, $5,000 for its appraisal expert, and $1,515 for its surveyor.

FACTUAL AND PROCEDURAL BACKGROUND

This is an expropriation proceeding brought by the Town to acquire property owned by Amite Central. Amite Central contested the Town’s right to expropriate its property. After trial on the merits, the judge ruled in favor of the Town, determined that the Town had the right to expropriate, and fixed the just compensation for the property. The only issue on appeal before this court is whether the trial judge was manifestly erroneous in the amount of just compensation for the property sought to be expropriated in this case.

The property at issue in this case is made up of two tracts of land that Amite Central purchased from Illinois Central Railroad Company (Illinois Central) in May and November of 1996. The tracts border the railroad, which runs through the oldest part of the commercial district of the Town in a north/south direction. The western tract (also called “Cabby’s Tract,” because it is located in front of Cabby’s Restaurant) is bounded on the west by U.S. Highway 51, and the eastern tract (also called “Fire Station Tract,” because it is located in front of the fire station) is bounded on the east by Northeast Central Avenue, although apparently both of these roads actually encroach upon the tracts of land.

|sThe tracts used to be part of the railroad right-of-way, which extended one hundred fifty feet on either side of the centerline of the tracks. Illinois Central did not use all of the right-of-way, and a portion of the property contained trees and green, open areas. Eventually, in the 1980s, Illinois Central decided to keep only twenty-five feet of right-of-way on either side of the tracks, and it began to sell the remaining land along the railroad tracks. After the Town learned that Illinois Central had sold Cabby’s Tract and the Fire Station Tract to Amite Central, it immediately began to discuss possible strategies for acquiring the property for the Town. Mayor Goldsby testified at trial that the Town had not adopted any long-range development plan for the area around the railroad tracks and had not had any formal discussion about purchasing this property from Illinois Central, but he had always thought that Illinois Central would approach the Town first if it intended to sell this property, rather than selling it to a private company.

On November 18,1996, right after learning about Amite Central’s purchase of the railroad property, a special meeting of the Town’s Board of Aldermen was called to discuss, among other things, the steps the Town would take regarding the property. The Board of Aldermen decided that it would immediately begin to negotiate with Amite Central to purchase the property, and it passed a motion that if negotiations failed, then it would begin to take the steps necessary for expropriation. At the meeting, an investor was present who had been in contact with Amite Central concerning possible investments in the property. He asked whether the Town was opposed to any development along this property, and Mayor Goldsby affirmed that fact.

The next morning, November 19, 1996, a special meeting of the Town’s Planning and Zoning Commission was called for the purpose of [4discussing the zoning of the two tracts of land purchased by Amite Central, plus a third tract purchased by Amite Central that is not at issue in this litigation. These tracts of land had never been zoned before and, therefore, had no zoning classification. They are surrounded by property that is either not zoned or is zoned commercial C-2, retad sales. At the Planning and Zoning Commission meeting it was recommended, however, that the Amite Central tracts of land be zoned agricultural A-2, which is agricultural, woodlands, open space, flood conservation, nature preserves, and recreation facilities. The Commission passed a motion to hold a public hearing on zoning the property at their next meeting.

Eventually, the Planning and Zoning Commission voted to deny the A-2 zoning proposal for the Amite Central property. Instead, the Commission chose not to place any classification on the property and passed a resolution declaring that the Town’s zoning ordinance is “unworkable” and that “a comprehensive zoning and drainage plan be instituted for the entire town.”

The Town’s Board of Aldermen voted not to follow the recommendation of the Planning and Zoning Commission and passed a resolution zoning the Amite Central property A-2. However, this resolution was passed by only a majority of the Board, as opposed to the two-thirds required by Town of Amite City Zoning Ordinance 9.102 for resolutions that have failed to receive the approval of the Planning and Zoning Commission.

After the Town’s offers to purchase Cabby’s Tract and the Fire Station Tract from Amite Central were rejected, the Town passed a Irresolution to expropriate the two tracts of land. However, before the Town could file its expropriation suit, Amite Central filed a declaratory judgment action, seeking damages and seeking to declare null and void certain resolutions and ordinances of the Town purporting to rezone and authorize the expropriation of Amite Central’s property. The two lawsuits were consolidated for trial. After an initial trial was held, the judge signed reasons for judgment on January 28, 2000, authorizing the expropriation and setting the value of the two tracts of land at $1.74 per square foot. The judge also set the expert fee for Amite Central’s appraiser. The record was left open for a final determination of the usable area of the two tracts. “Usable” area means that part of the property conveyed by the railroad company to Amite Central, less the parts previously lost by adverse possession to the state and the part previously lost by dedication for Mulberry Street. After two more evidentiary hearings were held, the total usable area of the two tracts was determined to be 66,889 square feet, resulting in an award to Amite Central of $116,386.86, plus costs, $21,721 in attorney’s fees, $5,000 for its appraisal expert, and $1,515 for its surveyor. A judgment to that effect was signed on November 6, 2001, and from that judgment, the Town now appeals.

However, there is no judgment of expropriation in the record. The judgment appealed from fixes the valuation, but it does not order the expropriation in favor of the Town and does not describe the property expropriated. A final judgment affecting title to immovable property must | (¡describe the property fully and with particularity. See La. C.C.P. art.1919. See also Louisiana Intrastate Gas Corp. v. McIntire, 349 So.2d 1331, 1334 (La.App. 1st Cir.1977). The judgment should contain language ordering expropriation and transfer of title upon payment of the amount awarded to the property owners. See City of New Orleans v. Lew, 227 So.2d 785, 789 (La.App. 4th Cir.1969).

A judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art.1918. Where there are written reasons for judgment and no separate judgment, there is no final judgment and appeal delays do not begin to run. Fisher v. Rollins, 231 La. 252, 259, 91 So.2d 28, 31 (1956). If there is a disparity between the judgment and the written reasons for judgment, the final judgment is definitive. See Thurman v. Thurman, 521 So.2d 579, 581 (La.App. 1st Cir.1988).

Considering that the judgment in the expropriation suit does not order expropriation of a particular tract of land or the “usable” extent thereof, it appears a vital prerequisite is missing. Furthermore, there can be no award of just compensation for property that has not been expropriated. Therefore, in the absence of a judgment of expropriation describing the property fully and with particularity, the judgment awarding an amount of just compensation is not a final judgment, and this court lacks jurisdiction to consider this appeal.

Therefore, the case will be remanded for the purpose of allowing the trial court to render final judgment. Costs of this appeal are assessed equally to the Town and Amite Central.

APPEAL DISMISSED; REMANDED.

      . Although the resolution passed by the Town purporting to authorize the expropriation was found by the trial judge to be insufficient, he granted the Town leave to rectify this deficiency by obtaining the proper authorization, which it subsequently did by passing another resolution. Amite Central does not raise this as an issue on appeal.

      . No judgment was ever rendered in Amite Central's declaratory judgment action. However, even without a valid judgment, Amite Central filed an appeal in that action, which it subsequently dismissed by way of a joint motion to dismiss. Accordingly, the declaratory judgment action, entitled Amite Central Railroad Properties, L.L.C. v. Town of Amite City, is not before us on appeal, and there is no appeal or answer to the appeal filed on behalf of Amite Central in the remaining case.


author: | p.McCLENDON, J.

text:
    NORMAN H. VOELKEL CONSTRUCTION, INC. v. The RECORDER OF MORTGAGES FOR EAST BATON ROUGE PARISH and HECK INDUSTRIES, INC.
    No. 2002 CA 1153.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Oct. 31, 2003.
    David C. Clement, New Orleans, Counsel for Plaintiff/Appellant, Norman H. Voelkel Construction, Inc.
    Craig L. Raster, Zachary, Counsel for Defendant/Appellee, Heck Industries, Inc.
    Ben Beychok, Baton Rouge, Counsel for Defendant/Appellee, Honorable Doug Wel-born, Clerk Of Court and Ex Officio Recorder, Parish of East Baton Rouge.
    Before: FOIL, PETTIGREW, McClendon, kline, and CLAIBORNE , JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

      . Hon. Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | p.McCLENDON, J.

By this appeal, a contractor contests the trial court’s denial of a writ of mandamus to cancel a lien filed pursuant to the Private Works Act, LSA-R.S. 9:4801 et seq. For the following reasons, we reverse.

On February 25, 2000, Norman H. Voelkel Construction, Inc. entered into a construction contract with Albertson’s, Inc. Under the terms of the contract, Voelkel agreed to act as the general contractor for the construction of Albertson’s Store No. 2747 located at the corner of Airline Highway and Highland Road in Baton Rouge, Louisiana. Voelkel subcontracted a portion of the work to Cloy Construction, Inc. Cloy, then, contracted with Heck Industries, Inc. to supply concrete for a part of the project.

On April 27, 2000, Albertson’s filed a notice of contract with the Recorder of Mortgages for East Baton Rouge Parish. It is undisputed that substantial completion of the project occurred on January 10, 2001, when Albertson’s fully occupied the location and opened its doors for business to the general public. It is also undisputed that no termination of the work was filed in the mortgage records.

On July 18, 2001, Heck filed in the mortgage records a statement of claim or privilege against Voelkel, alleging that Heck carried an unpaid balance in the sum of $45,886.07 for concrete and/or labor furnished to Cloy for use in the construction of improvements on the Albertson’s store. On September 24, 2001, after Heck refused to deliver written authorization to cancel the lien, Voelkel petitioned for writ of mandamus, seeking cancellation of subcontractor’s lien.

After hearing the matter, the trial court rendered judgment, denying Voelkel’s request for a writ of mandamus. Voelkel appeals, contending that the notice of contract and the statement of claim or privilege were | improperly filed as neither contains a full and complete legal property description. Voelkel also asserts that Heck’s statement of claim or privilege is untimely.

The Louisiana Private Works Act, LSA-R.S. 9:4801 et seq, grants contractors, laborers, sellers and others a privilege on an immovable to secure the price of their work. LSA-R.S. 9:4801(1). The pertinent statutory provisions concerning perfection of this privilege provide as follows:

LSA-R.S. 9:4822 provides, in pertinent part:

A. If a notice of contract is properly and timely filed in the manner provided by R.S. 9:4811, the persons to whom a claim or privilege is granted by R.S. 9:4802 shall within thirty days after the filing of a notice of termination of the work:
(1) File a statement of their claims or privilege.
C. Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of them respective claims and privileges within sixty days after:
(2) The substantial completion or abandonment of the work, if a notice of termination is not filed.

LSA-R.S. 9:4811 provides, in pertinent part:

A. Written notice of a contract between a general contractor and an owner shall be filed as provided in R.S. 9:4831 before the contractor begins work, as defined by R.S. 9:4820, on the immovable. The notice:
(1) Shall be signed by the owner and contractor.
(2) Shall contain the legal property description of the immovableupon which the work is to be performed and the name of the project.
(3) Shall identify the parties and give their mailing addresses.
J*..
B. A notice of contract is not improperly filed because of an error in or omission from the notice in the absence of a showing of actual prejudice by a claimant or other person acquiring rights in the immovable. An error or omission of the identity of the parties or their mailing addresses or the improper identification of the immovable shall be prima facie proof of actual prejudice.

LSA-R.S. 9:4831 of the Private Works Act further explains the requirements of a property description as follows:

A. The filing of a notice of contract, notice of termination, statement of a claim or privilege, or notice of lis pen-dens required or permitted to be filed under the provisions of this Part is accomplished when it is filed for registry with the recorder of mortgages of the parish in which the work is to be performed ...
C.Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirements of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection.

Under this legislation, both notices of contract and statements of claim or privilege must contain legal descriptions that “clearly and permanently” identify the immovable property at issue. See Boes Iron Works, Inc. v. Spartan Bldg. Corp., 94-0519, p. 2 (La.App. 4 Cir. 12/15/94), 648 So.2d 24, 26, writ denied, 95-0103 (La.3/10/95), 650 So.2d 1184.

Albertson’s notice of contract contained the following property description: “Description of Property: Airline & Highland, particularly described on Exhibit A attached hereto and incorporated herein.” Attached to the documents as “Exhibit A” was a copy of the AIA, Standard Form | ^Contract in which the property was described as located at “SWC Airline Road & Highland Hwy, Baton Rouge, LA.” The documents also incorporated by reference the sitework drawings that described the property at issue, but were not filed in the public record. Heck filed its statement of claim or privilege, describing the property solely as “Albertson’s #2747, Airline at Highland, East Baton Rouge Parish, Louisiana.”

Under LSA-R.S. 9:4831C, a municipal address is insufficient to perfect a privilege. Heck avers that describing the property as located at the intersection of Highland Road and Airline Highway, along with the store number is sufficient to perfect a privilege. We disagree. Liens and privileges are to be strictly construed against claimants and liberally construed in favor of owners as they are in derogation of the common rights of owners. Louisiana Nat’l Bank of Baton Rouge v. Triple R Contractors, Inc., 345 So.2d 7, 10 (La.1977); Circle H Bldg. Supply, Inc. v. Dickey, 558 So.2d 680, 682 (La.App. 1 Cir.1990). Therefore, Heck must comply with all necessary requirements of the statute it claims establishes a lien or privilege. Herein, Heck advocates the acceptance of a description of lesser quality than a municipal address, a property description expressly deemed insufficient by the statute. We also reject Heck’s contention that any deficiency in the property description is cured by the incorporation by reference of the sitework drawings into the notice of contract. The notice of contract and the statement of claim or privilege contain no lot, square, range or other information on which one can identify the specific property involved, without resorting to knowledge outside the public records. Therefore, we find the descriptions in both the notice of contract and the statement of claim or privilege are insufficient to perfect a claim of | ^privilege. Heck cannot avail itself of the thirty-day time limitations for claims of privileges provided by LSA-R.S. 9:4811A.

Furthermore, Heck failed to timely file its claim of privilege. LSA-R.S. 9:4822C(2) provides:

C. Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:
(2) The substantial completion or abandonment of the work, if notice of termination is not filed.

Therefore, in the absence of a legal description and proper notice, Heck had only sixty days from the date of substantial completion of the construction project to file its claim. Substantial completion occurred on January 10, 2001, and Heck filed its lien on July 18, 2001, clearly exceeding the time limits for filing a lien. Therefore, Heck’s claim or privilege, even if sufficient as far as a legal description, was not perfected because it was not timely filed.

On appeal, Voelkel also seeks attorney’s fees under LSA-R.S. 9:4833B, which provides that a defendant contractor “who, without probable cause, fails to deliver written authorization to cancel a statement of claim or privilege ... shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney’s fees incurred in causing the statement to be cancelled.” Considering the complex issues presented in this case, we conclude that Heck had probable cause to refuse to voluntarily erase its lien. Therefore, an award of attorney’s fees is not warranted in this case.

|7For the foregoing reasons, the judgment of the trial court is reversed. Judgment in rendered in favor of Norman H. Voelkel Construction, Inc., ordering the Clerk of Court of East Baton Rouge Parish as Recorder of Mortgages to erase and cancel the private works lien recorded by Heck Industries, Inc. at Original 67, Bundle 11250. Costs are assessed against Heck Industries, Inc.

JUDGMENT REVERSED AND ORDER ISSUED TO CLERK OF COURT.

FOIL, J., dissents. I would affirm the trial court.

      . Herein, the improper property descriptions constituted “prima facie proof of actual prejudice” under LSA-R.S. 9:481 IB. Heck failed to rebut this presumption.


author: I ¡.GUIDRY, J.

text:
    In the Matter of Alexandra M. COOK.
    No. 2002 CA 2479.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Stephen A. Fritch, Mandeville, Counsel for Defendant-Appellant J.G. Wentworth, S.S.C., LP.
    Thomas A. Lane, Baton Rouge, Counsel for Plaintiff-Appellee Tara B. Cook.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   I ¡.GUIDRY, J.

The assignee of a settlement annuity appeals a judgment declaring the purported assignment of the annuity invalid and unenforceable. Having reviewed the evidence and the law governing this matter, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts in this case are not in dispute. On September 22, 1994, Mark A. Cook signed a “RECEIPT, RELEASE, HOLD HARMLESS DEFENSE AND INDEMNITY AGREEMENT” (hereinafter referred to as the “release agreement”) wherein he compromised all claims against Wayne Bernard, Sterling Transportation, and Northland Insurance Companies (collectively “tortfeasors”) stemming from an accident that occurred on September 8, 1990. The release agreement provided for the periodic payment of certain sums to Mark A. Cook on certain dates and to his daughter, Aexandra M. Cook, after his death. A provision in the release agreement entitled “Claimant’s Rights to Payments” expressly stated, “payments cannot be accelerated, deferred, increased or decreased. The Releasor [Mark A. Cook] shall have no power to sell, mortgage, encumber or anticipate the payments in whole, or part, by assignment or otherwise.”

In the release agreement, the tortfea-sors reserved the right to purchase an annuity from Transameriea Occidental Life Insurance Company to fund its obligations under the release agreement and also to make a qualified assignment of those obligations to Transameriea Annuity Service Corporation (TASC), in accordance with section 130(c) of the Internal Revenue Code of 1986. Ownership of said annuity would be vested in the tortfeasors, or the qualified assignee, pursuant to the release agreement. The release agreement further provided that in the event a qualified assignment 13was made to TASC, the tort-feasors would be fully and completely released of all liability to Mark A. Cook relative to the September 8, 1990 accident.

Subsequent to the execution of the release agreement, the tortfeasors made a qualified assignment of their obligations under the release agreement to TASC, which in turn, purchased a settlement annuity from Transameriea Occidental Life Insurance Company, which policy was issued on December 14, 1994. The annuity contract itself makes no reference to the release agreement and contains none of the language limiting the ability of the annuity to be assigned by Mark A. Cook.

Approximately three and a half years later, on July 10, 1998, Mark A. Cook executed a “PURCHASE AGREEMENT” wherein he purportedly sold, transferred and assigned to the J.G. Wentworth S.S.C. Limited Partnership (Wentworth) the following payments under the annuity:

A) 14 monthly payments of $300.00 each, beginning 8/3/1998 and ending on 9/3/1999; B) 48 monthly payments of $400.00 each, beginning on 10/3/1999 and ending on 9/3/2003; C) 48 monthly payments of $500.00 each, beginning on 10/3/2003 and ending on 9/3/2007; D) 1 lump sum payment of $20,000.00 due on 10/3/2001; E) 1 lump sum payment of $40,000.00 due on 10/3/2006; and F) 1 lump sum payment of $8,602.38 due on 10/3/2007.

Also pursuant to the purchase agreement, Mark A. Cook granted Wentworth an irrevocable power of attorney coupled with an interest. Thereafter, the Transameriea Occidental Life Insurance Company, pursuant to Mark A. Cook’s written request, sent the scheduled annuity payments directly to Wentworth, in the name of Mark A. Cook.

On July 13, 2000, Mark A. Cook died, and this dispute arose as to who would be entitled to future annuity payments- — • Wentworth or Mark A. Cook’s minor daughter and heir, Alexandra M. Cook. Tara S. Cook, the mother of Alexandra, sought and received appointment as Alexandra’s tutor |4and instituted the instant proceedings seeking a declaration that Alexandra was the lawful recipient of future annuity payments. Wentworth denied Alexandra’s claim to future annuity payments in its answer and further reconvened to assert its claim to the payments.

A hearing on the conflicting claims was held on August 12, 2002. After considering the documentary evidence submitted, the trial court rendered judgment declaring Alexandra to be the lawful recipient of future annuity payments. Wentworth sus-pensively appeals that judgment.

DISCUSSION

In its first assignment of error, Wentworth raises three separate arguments whereby it contends that the trial court erred in the judgment rendered. However, because we believe our discussion of Wentworth’s second argument will be dispositive of this appeal, we will commence our review by determining whether the trial court erred in finding that TASC, and not the decedent, was the owner of the annuity policy at issue.

Both the annuity contract and the release agreement expressly state that TASC is the owner of the annuity policy. Furthermore, we find that the annuity policy at issue is an annuity policy and not a life insurance policy as alleged by Went-worth. Louisiana Revised Statutes 22:6(17) expressly provides, in pertinent part, that “a contract that may provide for a series of payments to be made or received at regular intervals at the direction of the contract holder” is an annuity.

Thus, the trial court is correct in its determination that TASC, as the owner of the annuity, was the only party with authority to assign rights | sunder the annuity policy. Cf. Stelly v. Guidroz, 02-0962, pp. 4-5 (La.App. 3rd Cir.2/5/03), 838 So.2d 900, 904. See also Allstate Insurance Company v. American Bankers Insurance Company of Florida, 882 F.2d 856, 859-860 (4th Cir.1989); CGU Life Insurance Company of America v. Metropolitan Mortgage & Securities Co., Inc., 131 F.Supp.2d 670, 675-676 (E.D.Pa.2001); Grieve v. General American Life Insurance Company, 58 F.Supp.2d 319, 322 (D.Vt.1999).

Accordingly, since we likewise find that as a non-owner of the annuity policy at issue, the decedent was without authority to make a valid assignment of any future annuity payments, we pretermit Went-worth’s remaining arguments and assignment of error regarding the validity of the assignment. In so holding, we affirm the judgment of the trial court. All costs of this appeal are cast to the J.G. Wentworth S.S.C. Limited Partnership.

AFFIRMED.

      . The release agreement provides that in the event the tortfeasors made a qualified assignment of their obligations under the release agreement and an annuity policy was purchased to fund the obligations incurred, the assignee, TASC, "shall be the owner of the annuity policy and shall have all rights of ownership.”


author: J^PETTIGREW, J.

text:
    PALACE PROPERTIES, L.L.C. v. The CITY OF HAMMOND.
    No. 2002 CA 1263.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Rodney C. Cashe, Deshea S. Richardson, Hammond, Blayne Honeycutt, Den-ham Springs, for Plaintiff-Appellee Palace Properties, L.L.C.
    Robert A. Kutcher, Nicole S. Tygier, Patricia D. Tunmer, Metairie, J. Thomas Anderson, Gary N Boutwell, II, Hammond, for Intervenor-Appellant Sizeler Hammond Square Limited Partnership.
    Ron Maealuso, Hammond, for Defendant the City of Hammond.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^PETTIGREW, J.

In this case, Sizeler Hammond Square Limited Partnership (“Hammond Square”) appeals from the trial court’s judgment whereby the court denied its request to intervene in a suit between Palace Properties, L.L.C. (“Palace”) and the City of Hammond (“City”) and further granted summary judgment in favor of Palace. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Initially, we address briefly the circumstances underlying the complex litigation involving the property at issue in this matter. The instant lawsuit is one of several cases involving a dispute over the use of a certain road located in Hammond, Louisiana, namely C.M. Fagan Drive (“Fagan Drive”). According to the record, Hammond Square owns property in Tangipahoa Parish on which the Hammond Square Shopping Center (“the mall”) is located. Palace owns adjoining property to the north and west of Hammond Square’s property. Fagan Drive runs from Morrison Boulevard on its west to U.S. Highway 51 South on its east in Hammond, Louisiana. A portion of Fagan Drive runs across Hammond Square’s property and was originally part of a private ring road around the mall. In 1981, Hammond Square’s predecessor in title granted the City a servitude of passage or right of way over its ring road at the northern end of its property to allow the City to extend Fagan Drive from Minnesota Park to Highway 51. Hammond Square maintained full ownership of the land underneath the road.

In 1999, the City sought to expropriate the land owned by Hammond Square, i.e., a narrow strip of land between Fagan Drive and the northern boundary of the mall. Hammond Square challenged the propriety of the expropriation action; and on the day of trial, entered into a settlement agreement with the City. On November 15, 1999, the parties and the court signed a consent judgment, wherein the parties agreed that the City would abandon, revindicate, and/or re-convey unto Hammond Square the servitude over Fa-gan Drive that had previously been granted to the City in 1981. The judgment also provided that the City would relocate the traffic flow from Fagan Drive to Minnesota Park Road.

IsThe effective date of the abandonment of Fagan Drive by the City was to take place on or before June 30, 2000. According to the record, the portion of Fagan Drive at issue was closed on July 1, 2000. In accordance with the consent judgment, the City physically abandoned Fagan Drive with the opening of the Minnesota Park Road extension and the rerouting of traffic from Fagan Drive to Minnesota Park Road.

On June 29, 2000, just one day before the barricades were to be erected and Fagan Drive was to be closed, Palace filed various pleadings in the expropriation action seeking to be allowed to intervene in the action and to have the consent judgment revoked. In response, Hammond Square filed various exceptions, including a dilatory exception raising the objection of lack of procedural capacity and a peremptory exception raising the objection of no right of action. Following a hearing on these various matters, the trial court rendered judgment on September 18, 2000, granting Hammond Square’s exceptions and dismissing the relief requested by Palace. Palace sought a writ of review with this court, which was subsequently denied. See City of Hammond v. Sizeler Hammond Square Limited Partnership, 2000 CW 2502 (La.App. 1 Cir. 12/18/00). No appeal was ever taken from this judgment.

Thereafter, on November 29, 2000, Palace filed a petition for declaratory judgment against the City seeking a judgment declaring that: (1) the action of the Hammond City Council in abandoning its servitude over Fagan Drive was unlawful, “thereby revoking Sections I, II, and III of the Consent Judgment;” and (2) “declaring the entirety of Fagan Drive from Morrison Boulevard on its west end to Highway 51 South on its east end to be a public right of way.” On December 28, 2000, the City filed an answer generally denying the allegations of Palace’s petition. Thereafter, on January 3, 2001, Hammond Square filed a petition of intervention alleging it was a party to the consent judgment sought to be revoked.

|4On January 8, 2001, Palace filed a motion for summary judgment. Arguing that Fagan Drive was a public right of way, Palace asserted that the action of the Hammond City Counsel in abandoning its servitude over Fagan Drive was an absolute nullity and an abuse of discretion. On January 18, 2001, Palace filed an amended petition for declaratory judgment. Palace sought a judgment declaring: (1) “the City of Hammond’s abandonment of C.M. Fa-gan Drive as arbitrary and in violation of the City of Hammond’s ordinances, [and] therefore, an absolute nullity” and, (2) “the entirety of C.M. Fagan Drive from Morrison Boulevard on its west end to U.S. Highway 51 South on its east to be a public right of way, to be free and clear of all obstructions of whatever nature, kind, or description thereon.”

On January 16, 2001, the trial court heard arguments from the parties concerning Hammond Square’s petition for intervention and Palace’s motion for summary judgment. The court took the matter under advisement and, thereafter, on February 1, 2001, issued reasons for judgment. Noting that “[c]omplete relief’ could be granted in Hammond Square’s absence and that “adjudication in [Hammond Square’s] absence will not impair or impede its ability to protect any interest it has in the subject matter,” the trial court found that Hammond Square was not an indispensable party and denied its petition for intervention. With regard to Palace’s motion for summary judgment, the trial court found as follows:

This court finds that prior to the confection of the November 15, 1999, consent judgment, Fagan Drive was an open public right-of-way, which had been used continuously by the general public without interruption, and maintained by the City of Hammond from approximately 1981 [through] October 4, 1999. This court further finds that the City of Hammond’s Charter and Code of Ordinances requires the adoption of an ordinance by the Hammond City Council before a public right-of-way within the City of Hammond can be abandoned. This court further finds that no such ordinance has been adopted. This court further finds it does not have the authority to revoke Sections I, II, and III of the November 15, 1999, consent judgment.

A judgment in accordance with the court’s findings was subsequently signed on February 8, 2001. Thereafter, Hammond Square filed a motion for new trial and a motion for stay, asserting that the judgment was clearly contrary to the law and evidence. In a judgment | ^signed April 17, 2001, the trial court denied the motion for new trial and declared the motion for stay moot.

On March 27, 2001, Palace filed a motion to enforce the February 8, 2001 judgment seeking a mandatory injunction against the City requiring the City to “remove from C.M. Fagan Drive, any barricade or other obstacle which impedes or obstructs the flow of traffic thereon.” Following a hearing on April 9, 2001, the trial court issued an order dated April 17, 2001, granting a mandatory injunction in favor of Palace and against the City, enforcing the provisions of the February 8, 2001 judgment, and further ordering the City to remove all the barricades that were obstructing the flow of traffic on Fagan Drive.

Thereafter, Hammond Square filed a motion for suspensive appeal from both the February 8 and April 17, 2001 judgments. Said motion was granted by the trial court on April 18, 2001, prompting Palace to file a motion to vacate the order of appeal as it related to the mandatory injunction issued on April 17, 2001. Noting that Hammond Square was not a party “who could have intervened in the trial court” in accordance with La.Code Civ. P. art.2086, Palace argued that Hammond Square had no right to appeal from the mandatory injunction. In a judgment dated May 2, 2001, the trial court vacated the order of appeal as it related to the summary judgment and the mandatory injunction, reinstated the mandatory injunction effective that date, and again ordered the City “to remove any and all obstructions which impede or obstruct the flow of traffic on C.M. Fagan Drive” in an expeditious manner.

In response to the trial court’s May 2, 2001 judgment, Hammond Square sought a writ of review with this court, arguing that the trial court had no jurisdiction to vacate the suspensive appeal order previously granted on April 18, 2001. In Palace Properties, L.L.C. v. The City of Hammond, 2001 CW 0901 (La.App. 1 Cir. 5/11/01), another panel of this court granted Hammond Square’s writ as follows:

WRIT GRANTED. This writ is granted insofar as the trial court’s judgment of May 2, 2001 vacating its order of suspensive appeal as to the summary judgment granted on February 8, 2001 and the mandatory injunction issued on April 17, 2001 is concerned. On the granting of the order of suspensive appeal and the timely filing of the appeal bond, the | ¡jurisdiction of the trial court over all matters in the case reviewable under the appeal was divested and that of this court attaches. See La. C.C.P. art.2088. The suspensive appeal seeks review of the trial court’s summary judgment granted on February 8, 2001 and the [mandatory] injunction issued on April 17, 2001. Therefore, the trial court had no jurisdiction to vacate its suspensive appeal order as to those rulings and the judgment signed on May 2, 2001 is reversed.

In spite of this court’s May 11, 2001 ruling, Palace filed a motion to enforce the mandatory injunction on April 25, 2002. In support of its motion, Palace noted that Hammond Square was not a party to either the summary judgment proceeding or the mandatory injunction that was later issued by the court. Relying again on La.Code Civ. P. art.2086, Palace argued that the only matters renewable under the pending appeal filed by Hammond Square were the February 8, 2001 judgment denying Hammond Square’s petition for intervention and the April 17, 2001 order denying Hammond Square’s motion for new trial on the petition of intervention. Thus, Palace asserted, the trial court retained jurisdiction over the summary judgment and mandatory injunction and could enforce same.

After hearing argument from the parties on May 28, 2002, the trial court granted Palace’s motion to enforce the mandatory injunction. Hammond Square again sought a writ of review with this court, which writ was granted on May 31, 2002. See Palace Properties, L.L.C. v. The City of Hammond, 2002 CW 1128 (La.App. 1 Cir. 5/31/02), writ denied, 2002-1733 (La.7/3/02), 819 So.2d 1028. This court reversed the trial court’s judgment as follows:

[O]n the trial court’s granting of the order of suspensive appeal on April 18, 2001, and the timely filing of the $10,000 appeal bond set by the trial court, the jurisdiction of the trial court over all matters in the case reviewable under the appeal was divested and the jurisdiction of this Court attached. The order of appeal, as signed by the trial court, applied to the trial court’s judgment dated February 8, 2001, in its entirety and applied to the “Order of April 17, 2001.” Although there were three rulings signed on April 17, 2001, only one was entitled “Order” and that ruling applied to the mandatory injunction. Therefore, the trial court is without jurisdiction to enforce a ruling that has been suspen-sively appealed. Whether or not relator had standing to appeal is an issue that can be raised before this Court once the appeal record is lodged.

[■ASSIGNMENTS OF ERROR

On appeal to this court, Hammond Square has assigned the following errors to the trial court’s judgments below:

1. The district court erred in denying Hammond Square the right to intervene in an action seeking to declare a portion of the private shopping center ring road formerly used by the City pursuant to a servitude of passage, to be a public right of way.
2. The district court erred in granting the City’s Summary Judgment without addressing the Twenty-Two genuine issues of material fact set forth by Hammond Square and Hammond Square’s pending exceptions.
3. The district court abused its discretion in failing to grant Hammond Square’s Motion for New Trial on its February 8, 2001 Judgment which denied Hammond Square’s right to intervene in the action and declared Hammond Square’s property to be a public right-of-way in its absence.
4. The district court erred in issuing a mandatory injunction ordering the City of Hammond to enter onto Hammond Square’s property and “remove any barricade or other obstacle which impedes or obstructs the flow of traffic thereon” without either a specific prayer for such relief and a trial on the merits during the pendency of Hammond Square’s Suspensive Appeal.
5. The district court erred in determining that a municipality’s maintenance of a private road pursuant to a servitude of passage was sufficient to convert a private shopping center ring road into a public road under the dictates of La. R.S. 48:491.

HAMMOND SQUARE’S RIGHT TO INTERVENE

Louisiana Code of Civil Procedure article 1091 provides as follows:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

In Livingston Downs Racing Association, Inc. v. State, Through Edwards, 96-1988, p. 6 (La.App. 1 Cir. 9/23/97), 700 So.2d 1021, 1023, this court set forth the requirements that must be satisfied before a party will be allowed to intervene.

Article 1091 and the cases construing that provision establish that the requirement for intervention is two-fold: the intervenor must have a justiciable interest in, and a connexity to, the principle action. Niemann v. American Gulf Shipping, Inc., 96-687, p. 6 (La.App. 5 Cir. 1/15/97), 688 So.2d 42, 45, writ denied, 97-0404 (La.3/27/97), 692 So.2d 397. In Amoco Production Company v. Columbia Gas Transmission Corporation, 455 So.2d 1260, 1264 (La.App. 4th Cir.), writs denied, 459 So.2d 542, 543 (La.1984), the court defined the term “justiciable right” as it is used in the context of an intervention as “the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.”
The cases hold that the justiciable right must be “so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the interve-nor’s rights”. Amoco Production Company v. Columbia Gas Transmission Corporation, 455 So.2d at 1264; Chrysler First Financial Services Corp. v. ZIA Corporation, 542 So.2d 87, 89 (La.App. 1st Cir.1989).

In the instant case, Palace contends it is merely seeking a declaratory judgment that Fagan Drive is a public right of way and that the effort to abandon this public right of way by the Hammond City Council failed to comply with state law and its own ordinances. Palace maintains that Fagan Drive is a public right of way for reasons other than the 1981 grant by Hammond Square’s predecessor in title, and as such, the abandonment of the road by the City should be declared an absolute nullity. Palace posits that the “public’s interest in keeping as an open artery, a public right of way, even though it traverses the property of [Hammond Square], is a matter of public concern and therefore, the challenge need only be directed at the Hammond City Council, whose action took this right of way from the public.” Thus, it is argued, challenging the action of the Hammond City Council in abandoning this public road in no way requires the intervention of a private landowner such as Hammond Square.

Hammond Square argues that it is a necessary party to this action and that it has both a justiciable interest in and con-nexity to the principal action. Hammond Square maintains that “[rjegardless of whether Palace seeks to explicitly ‘revoke’ the Consent Judgment, or undermine it by means of a declaratory judgment declaring Fagan Drive to be a public right of way, the inescapable result is to deprive Hammond Square of its property, by allowing third parties the unrestricted use of that portion of Fagan Drive which rests within Hammond Square’s property boundaries.” Noting it has the constitutional right to be heard pursuant to La. Const, art. 1, § 2, Hammond Square asserts it has standing to intervene as a matter of right. As further support for its position, Hammond Square cites the case of Stephenson v. Nations Credit Financial Services Corp., 98-1688, 98-1689 (La.App. 1 Cir. 9/24/99), 754 So.2d 1011, and contends that based on this court’s holding in Stephenson, any judgment rendered “in Hammond Square’s absence declaring Hammond Square’s property subject to a public right of way or otherwise alienating its property would be an absolute nullity.”

Based on our review of the instant record, we believe that Hammond Square has satisfied the two-part test for intervening in the pending litigation. As is correctly pointed out by Hammond Square in brief, this court has “bluntly” held that “[a] court may not grant passage over lands of neighbors who are not parties to the suit.” Stephenson, 98-1688 at 9, 754 So.2d at 1018. Although Stephenson was a case interpreting La.Code Civ. P. art. 641 and the joinder of parties, we find our reasoning therein to be applicable herein. In Stephenson, this court concluded that owners of property over which a public right of way or a servitude of passage is sought have an interest in the subject matter of the litigation such that their absence would impair their ability to protect this interest. Stephenson, 98-1688 at 11, 754 So.2d at 1019.

The ultimate relief sought by Palace in this case was to have the entirety of Fagan Drive, including that portion located on Hammond Square’s property, declared a public right of way, thereby revoking the November 15, 1999 consent judgment entered into between Hammond Square and the City. In fact, after Hammond Square’s petition for intervention was denied and summary judgment was granted in favor of Palace, the trial court issued an order on April 17, 2001, granting a mandatory injunction in favor of Palace and against the City and ordering the City to remove all the barricades that were obstructing the flow of traffic on Fagan Drive.

Based on our review of this record and our holding in Stephenson, we agree with Hammond Square that any adjudication made in this case without making Hammond |inSquare a party thereto would be an absolute nullity. Clearly, by not allowing Hammond Square to intervene in the instant litigation, Hammond Square’s ability to protect its interest in the subject property was impaired and impeded, as is evidenced by the April 17, 2001 order de-daring the entirety of Fagan Drive to be a public right of way and clear of all obstructions. The trial court’s finding to the contrary is clearly in error. Accordingly, we reverse the trial court’s judgment denying Hammond Square’s petition for intervention. Having found reversible error in the trial court’s denial of Hammond Square’s request to intervene, the subsequent judgments rendered by the trial court; i.e., the February 8, 2001 summary judgment in favor of Palace, the April 17, 2001 judgment denying Hammond Square’s motion for a new trial, and the April 17, 2001 order granting mandatory injunction in favor of Palace, are all rendered absolute nullities. No further discussion is warranted regarding the other issues raised by Hammond Square in this appeal.

CONCLUSION

Based on the above and foregoing, the judgment denying Hammond Square’s petition for intervention is reversed. The case is remanded for proceedings not inconsistent with this opinion. All costs associated with this appeal are assessed against Palace Properties, L.L.C.

REVERSED AND REMANDED.

      . According to the record, Hammond Square also filed exceptions raising the objections of lis pendens, lack of procedural capacity, non-joinder of party, and no right of action. There is no indication in the record before us that the trial court ever considered these exceptions. In fact, Hammond Square assigns error to the trial court’s grant of summary judgment in favor of Palace without first addressing these pending exceptions.

      . As previously indicated, Hammond Square filed various exceptions to Palace's petition for declaratory relief, including a peremptory exception raising the objection of nonjoinder of party. Although not ruled on by the trial court, we note the provisions of La.Code Civ. P. art. 645, which would allow this court to notice such an objection on our own motion. Nonetheless, whether based on Article 1091 or Article 641, the result in this case remains the same, i.e., Hammond Square must be allowed to participate in this litigation.


author: | ^CARTER, C. J.

text:
    Roxanne IVY v. V'S HOLDING COMPANY.
    No. 2002 CA 1927.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      Dennis A. Pennington, Baton Rouge, for Plaintiff-Appellee, Roxanne Ivy.
    Matthew W. Tierney, Robert D. Hoover, Baton Rouge, for Defendanb-Appellant, V’s Holding Company.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ^CARTER, C. J.

In this workers’ compensation case, V’s Holding Company (defendant) appeals a judgment rendered by the Office of Workers’ Compensation Administration awarding indemnity benefits, medical benefits, penalties, attorney’s fees, costs and interest to its former employee, Roxanne Ivy (claimant). For the following reasons, we reverse in part and affirm in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

It is undisputed that claimant was injured in an accident on January 4, 2000, during the course and scope of her employment as a telephone collector with defendant. Claimant fell on her left side when a spring-loaded door closed against her as she was leaving the “break” room. Claimant alleges that she suffered immediate pain in her left ankle and leg that persisted and subsequently developed into back pain with radiating leg pain. She eventually had two surgical procedures for repair of a herniated disc in her lumbar spine at the L4-5 level. It is undisputed that claimant had a long history of a preexisting degenerative back condition, documented by a pre-accident MRI revealing a bulging disc in her lumbar spine at the L4-5 level. Claimant alleges that the accident aggravated her pre-existing back condition, making her back surgeries necessary.

Approximately one week after the accident, on January 13, 2000, claimant sought medical treatment for left leg pain that she had been suffering since the fall at work. She saw her family physician, Dr. Christine L. Smith, who had treated her for a variety of health conditions, including back pain and sporadic leg pain, since 1998. Claimant complained of bruising on her left ankle and left leg pain that she related to her fall at work, but she made no mention of back pain at that visit or at her next visit on January 20, 2000. Claimant did not complain to Dr. Smith about back pain related to the work accident until a January 29, 2000 visit. Initially, Dr. Smith prescribed pain medication and advised light-duty work for a few days. After several visits for persistent leg pain that was moving up claimant’s leg, Dr. Smith referred claimant to an orthopaedic surgeon, Dr. Janet |3E. Lewis, for an evaluation. Dr. Lewis diagnosed a contusion and recommended physical therapy; however, claimant never attended the physical therapy prescribed by Dr. Lewis.

Claimant continued to treat with Dr. Smith for leg pain and bronchitis on March 6 and 27, 2000 and April 18, 2000. At each visit, Dr. Smith prescribed pain medication for claimant, although she questioned claimant several times about her possible over use of narcotic medications. Dr. Smith’s notes specifically mention back pain only twice after the date of the accident; once on January 29 and again on May 8, 2000. The notes on the other dates consistently refer to complaints of significant leg pain. On June 26, 2000, Dr. Smith referred claimant to a neurosurgeon for an evaluation of the radicular, burning leg pain. Claimant’s appointment with the neurosurgeon was scheduled for August 2000, and in the meantime, claimant’s leg and back pain escalated. On July 7, 2000, Dr. Smith admitted claimant into the hospital for testing in connection with severe leg pain and weakness, back pain, and foot drop (an indication that the nerves in the left leg were compromised). A neurosurgeon, Dr. Horace L. Mitchell, saw claimant in the hospital, and a new MRI revealed a large herniated disc at the L4-5 level. Claimant underwent “urgent” microdiscec-tomy surgery on July 9, 2000, for the herniated disc.

On August 24, 2000, claimant notified the workers’ compensation claims adjuster for defendant, Ms. Maggie Blanchard, for the first time that she had undergone back surgery related to her January 4, 2000 injury at work. Until this point, Ms. Blanchard had handled claimant’s file as a medical-payment claim, and she had not investigated any of claimant’s medical records, because other than Dr. Lewis’s report and bill, she had no other doctor reports or bills in her file. Claimant requested that defendant pay her medical expenses connected to the surgery and workers’ compensation indemnity benefits. Ms. Blanchard refused payment of any medical expenses or indemnity benefits related to the surgery Lbecause she believed claimant’s back surgery was due to a pre-existing condition that was not related to the accident at work.

Ms. Blanchard transferred claimant’s claim to another adjuster, Ms. Regina Patterson, who handled claims involving time off from work. Ms. Patterson immediately requested claimant’s medical records to begin an investigation into the claim; however, she also decided not to pay indemnity and medical benefits on the claim. On December 27, 2000, claimant filed a disputed claim for compensation benefits claiming that the accident had aggravated a pre-existing back condition necessitating her back surgery. Dr. Smith’s deposition was taken on August 1, 2001, and Dr. Mitchell’s deposition was taken on December 11, 2001. Defendant did not request that claimant have an independent medical examination and claimant did not seek medical treatment from any other physicians. On May 17, 2001, claimant underwent a second stabilization surgery, an anterior lumbar fusion at the L4-5 level, which she alleged was also related to the accident.

This case went to trial before the workers’ compensation judge (WCJ) on February 13, 2002. The primary issue at trial was what part of the body did claimant injure in the accident. The only witnesses at trial were claimant, Ms. Blanchard, Ms. Patterson, and Dr. Smith. The testimony of Dr. Mitchell, the neurosurgeon who performed both surgeries on claimant, was submitted by way of deposition. The WCJ determined that the accident aggravated claimant’s pre-existing back condition, that the subsequent surgeries were related to the accident, and that claimant was entitled to indemnity benefits, medical benefits, penalties, attorney’s fees and costs. Defendant appeals.

LAW AND ANALYSIS

Causation and Expert Testimony

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying this standard, the appellate court must determine not whether the trier-of-fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact-finder’s choice |fibetween them can never be manifestly erroneous or clearly wrong. Thus, 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, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556.

The claimant-employee bears the burden of establishing a causal link between the work accident and the claimed disability. A pre-existing disease or infirmity of a claimant does not automatically disqualify a compensation claim if the work-related injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. A disabled claimant’s work-related injury is presumed to have been aggravated, accelerated or combined to produce the disability if the claimant proves that before the work-related injury he had not manifested disabling symptoms, but that commencing with the work injury the disabling symptoms appeared and there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the work injury and the activation of the disabling condition. Once the claimant has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier-of-fact that it is more probable than not that the work-related injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce the disability. Dawson v. City of Slidell, 2000-2265, pp. 2-3 (La.App. 1 Cir. 12/28/01), 804 So.2d 902, 903-904, writ denied, 2002-0292 (La.4/12/02), 813 So.2d 406.

After a thorough review of the record, we cannot say that the WCJ erred in finding that claimant’s accident at work aggravated her pre-existing back condition to the point that she needed two back surgeries. The record reasonably supports this conclusion given that claimant and her treating physician, Dr. Smith, both testified that claimant’s persistent symptoms of radiating leg pain after the accident were different than before the accident. Claimant had suffered a few sporadic instances of leg pain before the accident, Ifibut it had always subsided. Dr. Smith clearly testified that claimant’s radi-cular pain and herniated disc were more probably than not caused by the acute injury on January 4, 2000, when claimant fell at work. Dr. Smith also testified that claimant’s progression of persistent leg and back pain was consistent with a disc herniation and nerve-root-impingement injury. Dr. Smith stated that the injury was evidenced on the post-accident MRI and it was different from the pre-accident MRI that revealed only a broad-based disc bulge. Dr. Smith further testified that claimant obtained relief from her leg pain after the July 9, 2000 surgery, but continues to suffer from back pain. Defendant failed to produce any evidence to contradict Dr. Smith’s testimony or to demonstrate any intervening trauma or cause for claimant’s herniated disc.

Defendant argues that the WCJ erred in permitting Dr. Smith to testify as an expert and to opine as to causation in this case. Generally, a treating physician’s opinion is given more weight than a non-treating physician, and the testimony of a specialist is given more weight than a general practitioner. Ponthier v. Vulcan Foundry, Inc., 95-1343, pp. 3-4 (La.App. 1 Cir. 2/23/96), 668 So.2d 1315, 1317. The WCJ accepted Dr. Smith as an expert in family practice and specifically found that Dr. Smith had more than enough expertise to form an opinion as to the causation of claimant’s injury. A trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. Lemaire v. CIBA-GEIGY Corp., 99-1809, p. 16 (La.App. 1 Cir. 6/22/01), 793 So.2d 336, 349, writ denied, 2001-2153 (La.11/16/01), 802 So.2d 608. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Hart v. Riverside Medical Center, 2001-2428, p. 4 (La.App. 1 Cir. 11/8/02), 835 So.2d 771, 773. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Thornton ex rel. Laneco Const. Systems, Inc. v. Lanehart, 97-2871, p. 5 (La.App. 1 Cir. 12/28/98), 723 So.2d 1127, 1130, writ denied, 99-0177 (La.3/19/99), 740 So.2d 115. The rule that questions of credibility are for the trier-of-fact applies to the evaluation of expert 17testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).

The WCJ found that because Dr. Smith extensively treated claimant both before and after the accident, she was in a position to see the progression and change in claimant’s symptoms. Furthermore, the deposition testimony of Dr. Mitchell, the specialist in this instance, did not contradict Dr. Smith’s testimony. Dr. Mitchell had no record of claimant’s history because he saw her as a consultation in the hospital before the first surgery. However, Dr. Mitchell expressed no doubts as to Dr. Smith’s opinion regarding causation based upon Dr. Smith’s treatment of claimant both before and after the accident. Thus, we find the jurisprudential favoring of a specialist’s testimony is irrelevant in this case because there is no difference of opinion between the two physicians. It is the function of the WCJ to assess the weight to be accorded both the lay and the medical testimony, and the court may accept or reject the opinion of a medical expert depending upon what impression the qualifications, credibility, and testimony of that expert make on the court. Davison v. Horseshoe Casino, Inc., 31,166, pp. 4-5 (La.App. 2 Cir. 10/28/98), 720 So.2d 785, 787, writ denied, 98-2950 (La.1/29/99), 736 So.2d 833. Considering the record before us and the complete lack of contradictory evidence, we conclude that the WCJ did not commit manifest error in finding that claimant’s pre-existing degenerative disc condition was aggravated by the accident at work.

Penalties and Attorney’s Fees

Defendant also alleges error on the part of the WCJ in awarding penalties and attorney’s fees for its failure to pay indemnity benefits and medical benefits because it argues that the claim was reasonably controverted. Determination of whether an employer’s refusal to pay workers’ compensation benefits warrants the imposition of penalties and attorney’s fees is a factual question that will not be disturbed on appeal in the absence of manifest error. Wilson v. St Mary Community Action, 2000-2106, p. 8 (La.App. 1 Cir. 12/28/01), 803 So.2d 1106, 1112. The assessment of penalties and attorney’s fees is determined by |ainquiring whether the employer or its insurer has “reasonably controverted” the compensation claims or determining if the nonpayment resulted from conditions over which the employer or its insurer had no control. See LSA-E.S. 23:1201(F)(2).

In the instant case, the WCJ found that once Dr. Smith’s deposition testimony was taken in August 2001 and Dr. Smith related claimant’s back surgery to the accident, that defendant no longer had reason to deny payment of claimant’s benefits. The WCJ found that before Dr. Smith’s deposition was taken, defendant reasonably denied the claim because the medical records did not link the accident with an aggravation of the pre-existing back condition. Before that time, the medical records simply documented a pre-existing back condition and a bruised and painful leg after the work accident. It was Dr. Smith’s deposition testimony that clearly linked claimant’s back injury and surgery to the work accident. Defendant never possessed any medical evidence to the contrary.

An employer has a continuing duty to fully investigate an employee’s medical status before terminating/denying benefits. Compensation benefits may not be terminated/denied based on inconclusive medical reports. An employer or insurer must make reasonable efforts to ascertain the employee’s exact medical condition before terminating/denying benefits. Termination/denial of benefits may be considered arbitrary when it appears further medical information was required to make an exact determination of the employee’s condition. This obligation is continuing in nature. If an insurer or employer first receives an optimistic medical report, but later receives information indicating the possibility of continuing disability, it may not blindly rely on the earlier report to avoid penalties and attorney’s fees. See Collins v. Family Dollar Stores, Inc., 99-0622, p. 8 (La.App. 1 Cir. 5/12/00), 760 So.2d 1210, 1216, writs denied, 2000-2356, 2000-2363 (La.11/13/00), 773 So.2d 727; Gordon v. Sanderson Farms, 96-1587, pp. 10-11 (La.App. 1 Cir. 5/9/97), 693 So.2d 1279, 1286-1287.

Both claims adjusters that worked on claimant’s file admitted that they did not conduct an investigation into claimant’s injury before they received notice of |9the first surgery in August 2000 because they were not aware that claimant had such a serious claim. They treated the claim as a medical-payment file only. There had been such a time lapse between the initial medical benefits paid in connection with Dr. Lewis’s orthopaedic examination and some of Dr. Smith’s prescriptions, that Ms. Blanchard considered the file to be inactive.

After notification of claimant’s surgery and the claim for payment, Ms. Patterson testified that she began to gather claimant’s medical records in order to investigate the claim. One year after Ms. Patterson began work on the file, Dr. Smith’s deposition was taken. We agree with the WCJ’s conclusion that it was at this point that Ms. Patterson should have been aware that Dr. Smith related claimant’s back surgery to the work accident. However, despite knowledge of Dr. Smith’s deposition testimony, Ms. Patterson maintained the opinion that claimant had sustained only a bruised ankle and leg in the work accident and that claimant’s back surgery was not related. Ms. Patterson did not seek the opinion of any other medical expert to support the continued denial of claimant’s benefits. Ms. Patterson’s only explanation for the continued denial of benefits was that the claim was in litigation and that she would rely on the court to decide the issue. Based upon our review of the evidence, we cannot say the WCJ was manifestly erroneous in the decision to award penalties and attorney’s fees in this instance. Forfeiture of Benefits

Defendant further argues that the WCJ erred in failing to find that claimant forfeited her workers’ compensation benefits under LSA-R.S. 23:1208 because she made false statements and misrepresentations for the purpose of obtaining benefits. However, the burden of proof requires more than a mere showing of j ^inconsistent statements or inadvertent omissions by the claimant. Sevin v. Greenbriar Nursing Home, 2000-2794, p. 4 (La.App. 1 Cir. 2/15/02), 807 So.2d 1179, 1181. The issue of whether an employee forfeited her workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Hull v. Fluker Farms, 2000-0757, p. 6 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612.

We find no manifest error in the WCJ’s determination that the claimant’s inconsistent statements regarding her medical history and her ambiguous answer on defendant’s medical health questionnaire did not rise to the type of willful, false representation that would trigger a forfeiture of benefits. Although we agree with the WCJ that claimant’s credibility was problematic, defendant did not demonstrate that claimant knowingly gave untruthful answers or made false statements for purposes of obtaining benefits. Claimant clearly listed pre-existing back problems on the same medical-health questionnaire about which defendant complains. Consequently, based upon this record, we cannot say the WCJ erred in the factual findings based heavily on credibility determinations.

Deposition Costs

Finally, we find merit to defendant’s contention that the WCJ erred in casting it with the cost of the deposition of Maggie Blanchard because the deposition was not introduced at the trial. The general rule is that only depositions used at trial are taxable as costs. See LSA-R.S. 13:4533; Barrilleaux v. Franklin Foundation Hosp., 96-0343, p. 19 (La.App. 1 Cir. 11/8/96), 683 So.2d 348, 361, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864. It is undisputed in the instant case that Maggie Blanchard’s deposition was not introduced or accepted into evidence at trial. Thus, the WCJ abused its discretion in taxing that deposition fee as court costs to defendant. We hereby reverse that portion of the WCJ’s judgment.

In CONCLUSION

The judgment of the WCJ is reversed insofar as it taxes defendant with the cost of Maggie Blanchard’s deposition. The WCJ’s judgment is affirmed in all other respects. Defendant is to pay all costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . Defendant terminated claimant's employment shortly after the accident occurred. Claimant began working for another company, Easy Money Pay Day Loans, within one week of her termination. She was employed at Easy Money until May 15, 2000, and has not worked since that date.

      . It is undisputed that defendant (through its workers' compensation insurer, LUBA) paid medical benefits totaling $974.33 to claimant for Dr. Lewis's bill and some prescriptions written by Dr. Smith between January 13 and March 13, 2000. No other medical expenses were submitted for payment until August 2000, after claimant notified defendant of her first surgery.

      . Defendant does not question the amount awarded for penalties and attorney’s fees.

      . We note that Dr. Smith’s deposition testimony was substantially the same as her testimony at trial wherein she correlated claimant’s back surgeries with the work accident.

      . Claimant contends that defendant waived the affirmative defense of forfeiture of benefits because it was not pled in the answer and it is being raised for the first time on appeal. However, we note that pleadings may be enlarged to include an affirmative defense not specifically pleaded where the evidence supporting the defense is introduced without objection. LSA-C.C.P. art. 1154; Edwards v. Edwards, 282 So.2d 858, 860 (La.App. 1 Cir.), writ refused, 284 So.2d 777 (La.1973). At trial, evidence and testimony regarding alleged misrepresentations made by claimant about her prior medical and accident history was introduced without objection. Accordingly, we will consider the evidence relating to claimant’s alleged misrepresentations and how it affects her right to workers’ compensation benefits.