author: | .PICKETT, Judge. 11AMY, J.,

text:
    Wade A. GUILBEAU v. Betty RAMSAY, et al.
    No. 03-1402.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Douglas William Truxillo, Joan L. Bou-dreaux, Onebane, Bernard, Torian, Lafayette, LA, Gina Marie Bradley Tuttle, Attorney at Law, Opelousas, LA, for Defendant/Appellee: Betty Ramsay.
    Elton Ford Duncan III, Kelley A. Sevin, Les Anthony Martin, Brandi Drouet Hil-den, Thomas Allen French, Duncan, Cour-ington & Rydberg, New Orleans, LA, for Defendant/Appellee: St. Paul Fire & Marine Ins. Co.
    J. Quentin Simon, J. Minos Simon, LTD, Lafayette, LA, for PlaintiffAppellant: Allison Guilbeau, Shirley McMayon.
    Adrienne Thomas Bordelon, Attorney at Law, Baton Rouge, LA, for Intervenor/Ap-pellee: Dept, of Health & Hospitals for the Medicaid Program.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, ELIZABETH A. PICKETT, and BILLIE H. EZELL, Judges.
   | .PICKETT, Judge.

FACTS

This suit arises out of a motor vehicle accident that occurred on March 11, 2000, involving a vehicle being driven by Wade Guilbeau and a vehicle being driven by Betty Ramsay in Lafayette, Louisiana. The vehicle being operated by Ms. Ramsay, in the course and scope of her employment with Aries Marine Corporation, (Aries), was insured by Reliance Insurance Company (Reliance).

On March 7, 2001, Mr. Guilbeau filed a Petition for Damages naming Ms. Ramsay, Aries, and Reliance as defendants. He later supplemented his petition and added St. Paul Insurance Company (St.Paul), the excess insurer of Aries, as a defendant.

As a result of the bodily injuries that Mr. Guilbeau sustained in the accident, he underwent surgery on October 16, 2001. Mr. Guilbeau experienced complications which required him to remain hospitalized until his death on January 9, 2002. Following his death, Shirley McMayon, the natural tutrix of Stephen Wade Guilbeau and Garrett Michael Guilbeau, Mr. Guil-beau’s minor children, was substituted as plaintiff.

This matter was set for trial on May 27, 2003. Prior to jury selection, however, the parties entered settlement negotiations and were able to reach a settlement agreement. The terms of the agreement were put on the record by the defense counsel as follows:

My understanding of the terms of the settlement are $340,000.00 paid cash in hand to all plaintiffs for release of all claims.
And on behalf of St. Paul we will pay to Medicaid the lien as represented by Ms. Bordelon to me last week of $55,000.00. And we will also pay plaintiffs’ court cost up to $5,000.00. And I think the actual court costs are $72.00 beyond that, but we will pay the total of $5,000.00. So the total cash out of St. Paul’s pocket is $400,000.00, if | ¡.my math is correct.”

Defense counsel and the court noted for the record that a minor was involved and approval of the minor’s settlement would have to be obtained.

Plaintiffs counsel requested that the Medicaid payment be made payable to his clients, to which defense counsel responded, “On behalf of St. Paul, I don’t care whose name goes on the check, but I have to have Medicaid’s name on the check so they won’t come after my client.”

The trial court reiterated the terms of the settlement agreement as follows:

As I understand what’s going to happen here is: They will tender $340,000.00 directly to your clients. They will also tender to Medicaid and your clients an additional $55,000.00 and $5,000.00 in court costs for a release of all claims against them. If you are able to negotiate a better deal with Medicaid or whatever, so be it.

As of June 26, 2003, thirty days after the parties had reached the settlement agreement, the plaintiffs had not received the settlement funds. Allegedly, on June 27, 2003, the plaintiffs were advised via voicemail that the funds were in the trust account of opposing counsel and would be forwarded to them on June 30, 2003. The funds were not transferred on that date. On July 2, 2003, counsel for St. Paul engaged in a telephone conversation with plaintiffs’ counsel wherein he attempted to convince plaintiffs’ counsel to agree to a Receipt, Release and Indemnification Agreement relative to third party indemnification of any future Medicaid claims. Allegedly, plaintiffs’ counsel refused to discuss the language of the Receipt and Release and demanded disbursement of the settlement funds. On that same day, the plaintiffs filed a Motion to Enforce Settlement Agreement and Statutory Penalties pursuant to La.R.S. 22:1220. On July 9, 2003, the defendant filed a Rule to Show Cause and a Motion For Leave to Deposit the Settlement Funds in the Registry of the Court. Both |3the plaintiffs’ motion and the defendant’s rule to show cause were set for hearing on July 21, 2003.

The court heard the parties’ arguments and took the matter under advisement. At the conclusion of the hearing, the parties attempted to and were able to agree on the release language and the funds were disbursed to the plaintiffs on that same day. The trial court issued a written ruling on July 25, 2003 and denied the plaintiffs’ request for penalties. It is from this ruling the plaintiffs appeal.

DISCUSSION

The plaintiffs’ sole assignment of error is whether the district court erred in failing to apply the penalty provisions of La. R.S. 22:1220 when the settlement funds were tendered fifty-five (55) days after the settlement was perfected and in excess of thirty-five (35) days from the filing of the order authorizing the minor’s settlement.

Louisiana Revised Statute 22:1220 provides, in pertinent part:

A. An insurer, including but not limited to a foreign line and surplus live insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breached these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the |4claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

In his written ruling, the trial court discussed the allegations by both parties as to who was at fault in the delay of the tendering of the funds, then ultimately concluded as follows:

Unless the execution of the minors authority to settle began the 30 day period, the tender was untimely. In fact, even problems which arose with the releases occurred more than thirty days from May 27th, 2003, and cannot be attributed to the plaintiff.
The court now must consider the effect of the necessity for court approval to a settlement of the minors’ claim, (this occurred June 16, 2003). And while this issue has been dealt with as an afterthought by counsel, the court considers it significant.
First, if this necessary prerequisite to settlement is ignored in applying R.S. 22:1220, it is possible the 30 day period could lapse through no fault of the defendant payor. On the other hand one could argue that to consider it in tolling the 30 day period is to enlarge the time period and avoid the clear legislative intent of the statute.
The movers in this action argue that the clear language of R.S. 22:1220 which requires the agreement be “reduced to writing” should be ignored when a settlement is placed on the court record. They may have a point. It would seem unnecessary to reduce the agreement to writing when it has already become enforceable by placing it in the court record. However, when minors are involved, further court involvement is required. Court approval of the settlement is necessary, must be in writing and also filed in a court record.
Under the circumstances I must interpret the 30 day period in R.S. 22:1220 to begin when the last necessary prerequisite to payment is accomplished. Even if only mentioned on the record, all parties were well aware of the need to prepare the documents for the minors’ interest and submit same to the court for approval. I find that until that prerequisite was completed, payment could not be made and the 30 day period before penalties may be imposed did not begin to run.
When considering the June 16th, 2003 date as the 1st day payment could have been made (and legally accepted) the defendant did tender |Kthe settlement proceeds within 30 days.

In order to address the issue of penalties, we must first determine whether the trial court erred in its determination that the defendants tendered payment timely.

Plaintiffs argue that payment was due on June 26, 2003, thirty (30) days after the settlement was put on record, citing La. Civ.Code art. 3071, which provides:

A transaction or compromise is an agreement between two or more persons who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

The clear intent of La.R. S. 22:1220(B)(2) is to impose a time limit upon an insurer for the payment of a claim that has been settled. Louisiana Civil Code Article 3071 requires a settlement be “either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding.” Article 3071 specifically provides for the judicial enforcement of a settlement recited in open court, specifying, however, that the substance of such a settlement “may thereafter be written in a more convenient form.” (Emphasis ours). It is clear, under the provisions of Article 3071, therefore, that a settlement agreement, such as the one before us, recited in open court and capable of being transcribed from the record, is a settlement in writing. Although the parties may agree to set forth its terms in a more convenient form, it is not necessary they do so for the penalty provision in La.R.S. 22:1220(B)(2) to apply.

The settlement was reached in this case on May 27, 2003. Under a strict | ^application of the provisions of La.R.S. 22:1220 the insurer was required to pay the settlement on or before June 26, 2003. In order to perfect the settlement on behalf of the minor, Shirley McMayon, as tutor, had to receive authority from the court in accordance with La.Code Civ.P. art. 4271.

A Petition for Authority to Compromise Settlement on behalf of Stephen W. Guil-beau (the minor) was filed with the trial court on June 6, 2003. The Order authorizing Ms. McMayon to act on behalf of the minor was signed on June 16, 2003.

All parties understood the necessity for court approval to settle the minor’s claim. This requirement was, in fact, duly noted by both defense counsel and the court when the settlement agreement was read into the record. We agree with the trial court that the 30 day period in La. R.S. 22:1220 begins when the last necessary prerequisite to payment is accomplished. Because this matter involved the compromise of a minor’s claim, that date was June 16, 2003, when the order was signed authorizing the tutor to compromise the claim.

We disagree with the trial court’s conclusion, however, that the defendant tendered the settlement proceeds within 30 days of June 16, 2003. Payment was actually made on July 21, 2003, more than thirty days after payment could have been made and legally accepted by the tutor.

Because the defendants failed to tender payment of the settlement funds timely, the penalty provision of La.R.S. 22:1220(B)(2) is applicable and we must determine whether penalties are warranted.

The defendant argues that St. Paul was justified in delaying payment as it “wished to have some type of written document confirming the terms in which this matter was settled.” We find this argument to be without merit. The terms of the 17settlement was clearly set forth in the record of the proceeding, including the terms of the payment to Medicaid and the agreement that the defendant would not be responsible for more than $55,000.00 for the Medicaid lien. That the defendant requested the plaintiffs agree to additional indemnity language some thirty-six (36) days later is of little moment.

There is no just cause for the defendant’s failure to pay the claim within thirty (30) days of the order authorizing the minor’s settlement. There is no evidence that St.PauPs breach of good faith and fair dealing resulted in damages to the plaintiffs, therefore, the proper penalty to assess is a penalty of $5,000 per claimant, for a total penalty of $15,000.00. Rogers v. Commercial Union Ins. Co., 01-443 (La.App. 3 Cir. 10/3/01), 796 So.2d 862.

DECREE

We reverse the trial court’s judgment and award penalty of $5,000.00 each to Allison Guilbeau, Garrett Michael Guil-beau, and Shirley McMayon as natural tutrix for Stephen Wade Guilbeau, for a total penalty of $15,000.00.

REVERSED AND RENDERED.

AMY, J., dissents and assigns reasons.

11AMY, J.,

dissenting.

Reference to La.R.S. 22:1220 indicates that, under appropriate circumstances, penalties “may” be awarded. It follows that the abuse of discretion standard of review is applicable to this type of permissive language. While the imposition of penalties may have been permissible in this case, under La.R.S. 22:1220, I do not conclude that a reversal is warranted as I do not find that the trial court abused its discretion. I respectfully dissent.


source: Caselaw Access Project

author: 11PETERS, J.

license: Public Domain

text:
    Lynette SPURS a/k/a Lynette Spurs Hampton, et al. v. FARMERS INSURANCE EXCHANGE.
    Nos. 03-1267.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.
    J.W. Seibert, III, Attorney at Law, Vi-dalia, LA, for Plaintiffs/Appellees, Lynette Spurs a/k/a Lynette Spurs Hampton, Delta Bank f/k/a Louisiana Central Bank.
    John G. McLure, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Farmers Insurance Exchange.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   11PETERS, J.

This matter originally came before us through an application for supervisory writs by the defendant, Farmers Insurance Exchange (Farmers Insurance). Thereafter, Farmers Insurance filed an appeal, and we consolidated the two proceedings. In both proceedings, Farmers Insurance seeks the reversal of a trial court judgment denying its motion for summary judgment and granting a motion for summary judgment filed by the plaintiffs, Lynette Spurs and Delta Bank. For the following reasons, we deny the writ application from the judgment denying Farmers Insurance’s motion for summary judgment and concomitantly affirm the summary judgment granted in favor of Ms. Spurs and Delta Bank.

DISCUSSION OF THE RECORD

Lynette Spurs is the owner of a 1999 Chrysler Concorde automobile. On June 15, 2001, a vehicle driven by Lasheka Jefferson left the highway and struck Ms. Spurs’ automobile as it sat in the driveway of her Clayton, Louisiana home, causing extensive damage. Ms. Spurs had previously obtained a policy of liability and collision insurance from Farmers Insurance on her Chrysler Concorde. When she acquired the policy, Ms. Spurs chose to pay the insurance policy premium on a monthly basis pursuant to a Farmers Insurance “EasyPay” plan. Delta Bank was named loss payee in the policy.

When presented with a claim for the damages sustained, Farmers Insurance denied coverage on the basis that the policy had been cancelled prior to the accident. The reason given for the cancellation was Ms. Spurs’ failure to timely pay the monthly premium due May 7, 2001, covering the period from May 22, 2001 to June 21, 2001, as well as her failure to additionally pay the monthly renewal premium of $80.82 covering the period from June 22, 2001 to July 21, 2001. Thereafter, Ms. 12Spurs and Delta Bank brought this suit to recover, for the damages sustained as well as penalties, exemplary damages, and attorney fees.

During the course of the litigation, both sides filed motions for summary judgment addressing the coverage issue. Ms. Spurs and Delta Bank sought a summary judgment declaring that the policy issued by Farmers Insurance provided coverage for the June 15, 2001 accident. Farmers Insurance sought the opposite result in its motion for summary judgment. After a hearing, the trial court granted the plaintiffs’ motion and rejected Farmers Insurance’s motion. Farmers Insurance’s application for supervisory writs and appeal followed the rendition of that judgment.

OPINION

Louisiana Revised Statutes 22:636.1(D)(1) provides:

No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by cértified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given. In the event of nonpayment of premiums for a binder, a ten day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail. Unless the reason accompanies the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer within six months after the effective date of cancellation, the insurer will specify the reason for such cancellation. This Subsection shall not apply to nonre-newal.

The Farmers Insurance policy at issue provides in pertinent part in Section A(2)(a)(l):

A. Cancellation. This policy may be cancelled during the policy period as follows:
2. [The insurer] may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy:
a. At least 10 days notice:
la(l) If cancellation is for nonpayment of premium....

The record establishes that Ms. Spurs failed to timely pay a premium payment due May 7, 2001, and covering the period from May 22, 2001 to June 21, 2001. Farmers Insurance responded to Ms. Spurs’ failure to timely pay her premium by mailing her a document entitled “Notice of Cancellation ” on May 22, 2001, which stated in part:

We have not received full payment of your premium on the policies listed below. Therefore, your insurance indicated by the policy number(s) listed which has been issued by the undersigned company(ies) will be cancelled effective at ... 12:01 A.M.... ON 06-07-01.

The notice then described the Farmers Insurance policy at issue and listed the amount due as follows:

Vehicle 158954855 1999 CHRYSLER

Prior Month Activity-

$ 86.29 Billed Last Month

Prior Month Balance

$ 86.29 Current Month Activity

Premium 6-22 to 7-06 Renewal Premium 7-07 to 7-21 Sub Total Service Charge •\SiS \s*l L/v v OO ¿X coppo O GO GO O o to o to

Minimum Amount Due $ 176.11

The notice appears to require Ms. Spurs to pay not only the past-due premium but also a renewal premium for future coverage in order to avoid cancellation of the policy on June 7, 2001.

Ms. Spurs in fact paid $86.29 by check to Farmers Insurance on May 25, 2001, which payment included an $81.79 premium charge and a $4.50 service charge. This ^premium payment was to cover the period from May 22, 2001 to June 21, 2001. Farmers Insurance cashed the check on May 30, 2001, and applied the proceeds to Ms. Spurs’ policy. The accident involving Ms. Spurs’ vehicle occurred on June 15, 2001. Interestingly, not until June 21, 2001, did Farmers Insurance inform Ms. Spurs that it had taken further action on the account, which action consisted of forwarding Ms. Spurs a check in the amount of $31.54 as a refund of the unused premium. It is unclear how Farmers Insurance arrived at this refund figure, but it is clear that Farmers Insurance deemed the policy cancelled at some point after cashing the check.

Without discussing the issues of whether Farmers Insurance issued a proper notice of cancellation, whether Ms. Spurs even received such notice, or whether Farmers Insurance was entitled to require payment of a past-due premium as well as a future renewal premium in order to keep the coverage in effect through the date of the accident, the undisputed evidence reveals that, as a matter of law, Farmers Insurance waived any right it may have had to cancel the policy effective prior to June 21, 2001. Specifically, in Maddox v. Keen, 33,072, p. 7 (La.App. 2 Cir. 4/7/00), 756 So.2d 1279, 1284-85 (citation omitted), the second circuit explained the concept of waiver, as distinguished from estoppel, as follows:

Waiver is generally understood to be the intentional relinquishment of a known right, power or privilege. Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished. A waiver may apply to any provision of an insurance contract, even though this may have the effect of bringing within coverage risks originally excluded or not covered.

|,fin the instant case, Ms. Spurs forwarded a check for $86.29 to Farmers Insurance on May 25, 2001, to cover the period from May 22, 2001 to June 21, 2001. Despite the untimeliness of the payment, Farmers Insurance nevertheless cashed the check on May 30, 2001, and applied it to Ms. Spurs’ policy. Importantly, the accident occurred (1) after Ms. Spurs had made the payment and Farmers’ Insurance had cashed the check, (2) during the period for which the payment was applicable, and (3) before Farmers Insurance refunded a portion of the proceeds from the check to Ms. Spurs. At no time prior to the accident did Farmers Insurance give any express written statements of its intent not to waive the June 7, 2001 termination of the policy through' its receipt of Ms. Spurs’ check. Thus, assuming Farmers Insurance had the right to cancel the policy effective June 7, 2001, its conduct in accepting and cashing the check, applying it to the policy, failing to thereafter expressly not waive the June 7, 2001 cancellation of the policy, and refunding only a portion of the proceeds and then only after the accident had occurred demonstrated an actual intention to relinquish that right or at least demonstrated conduct that was so inconsistent with its intent to enforce the right as to induce a reasonable belief that the right had been relinquished.

We note that the court in Maddox found no waiver under the facts of that case. However, Maddox is distinguishable from the instant case. In Maddox, James Keen purchased a six-month automobile insurance policy from Allstate Insurance Company, effective July 7, 1997 through January 7, 1998. Mr. Keen failed to pay his premium for November 1997, and Allstate sent him a cancellation and renewal notice, dated December 18, 1997, which informed Mr. Keen that the policy would be can-celled on January 7, 1998, unless timely payment was made that included an amount for the renewal of the policy. Mr. Keen failed to make a payment before | fiJanuary 7, 1998, and on January 14, 1998, Mr. Keen’s vehicle was involved in an accident. On January 19, 1998, Mr. Keen gave Allstate a check for the full amount that Allstate had previously requested in order to avoid cancellation of the policy. Allstate then posted the payment, reinstated the policy with a lapse in coverage from January 7 to January 31, 1998, and credited the policy with an amount in the form of an unearned premium for the period in which the policy had lapsed. The trial court granted a motion for summary judgment finding insurance coverage at the time of the accident, and Allstate appealed.

On appeal, the second circuit in Maddox addressed, among other things, whether the receipt of Mr. Keen’s check amounted to an implied waiver of Allstate’s right to cancel the policy. The court cited La.R.S. 22:636.1(E)(2), which provides: “Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.” The court ultimately concluded that Allstate’s receipt of Mr. Keen’s check did not amount to an implied waiver. The court noted that before Mr. Keen’s delivery of the check following the accident, the policy had already terminated, unlike in the case presently before us. Additionally, unlike in the case presently before us, after the accident and prior to applying Mr. Keen’s check to renew the policy, Allstate had forwarded to Mr. Keen express written statements of its intent not to waive the January 7 termination of the policy. Thus, the court held that the policy indeed terminated and that Allstate did not waive the termination right.

The Maddox court additionally cited our case of American Surety Co. of New York v. Fowler, 135 So.2d 663 (La.App. 3 Cir. 1961), in which we held that there was no waiver of the defense of policy cancellation under the facts of that case. In | -¡Fowler, State Farm had issued an automobile liability policy to Edgar Fowler. However, State Farm sent Mr. Fowler a cancellation notice for nonpayment dated February 19, 1959, terminating the policy effective as of 12:01 A.M. on March 4, 1959. At about 9:00 A.M. on March 4, 1959, Mr. Fowler’s vehicle was involved in an accident. Several hours after the accident, Mr. Fowler gave State Farm a check in an amount sufficient to cover the balance due on the policy. At that time, a State Farm agent issued a receipt upon which he wrote “renewal.” Additionally, the back of the receipt contained a printed notice that the payment was effective to renew the policy only as of the time and date of the payment. Also following the accident, State Farm consistently informed Mr. Fowler of its position that the liability policy had been cancelled prior to the accident. Thus, the Fowler case is clearly distinguishable from the case presently before us.

DISPOSITION

For the foregoing reasons, we deny the writ and assess costs to Farmers Insurance Exchange.

WRIT DENIED.

      . "In Louisiana, the doctrine of equitable es-toppel applies to situations where an insurer's custom of accepting overdue premiums reasonably leads an insured to believe his policy will remain in effect even though he has not paid the premiums when due." Maddox, 756 So.2d at 1283. Whether Farmers Insurance should be estopped from denying coverage in the instant case involves genuine issues of material fact not proper for disposition by way of summary judgment,


author: PETERS, J.

text:
    Lynette SPURS a/k/a Lynette Spurs Hampton, et al. v. FARMERS INSURANCE EXCHANGE.
    Nos. 03-1493.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      J.W. Seibert, III, Attorney at Law, Vi-dalia, LA, for Plaintiffs/Appellees, Lynette Spurs a/k/a Lynette Spurs Hampton, Delta Bank f/k/a Louisiana Central Bank.
    John G. McLure, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Farmers Insurance Exchange.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

For the reasons given in Spurs v. Farmers Insurance Exchange, 03-1267 (La.App. 3 Cir.4/7/04), 870 So.2d 570, we affirm the summary judgment granted in favor of Lynette Spurs and Delta Bank. We assess costs of this appeal to Farmers Insurance Exchange.

AFFIRMED.


author: hDECUIR, Judge.

text:
    LOUISIANA PHYSICIAN CORPORATION v. LARRISON FAMILY HEALTH CENTER, L.L.C, et al.
    No. 03-1721.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      James L. Bullen, Strain, Dennis & Bates, L.L.P., Lafayette, LA, for Defendant/Appellee, Larrison Family Health Center, L.L.C., James C. Larrison, Jr., M.D., Sherlyn Bell Larrison, M.D.
    S. Joseph Dupuis, Jr., Jeff W. Elmore, Michael D. Hebert, Milling, Benson, Woodward L.L.P., Lafayette, LA, for Plaintiff/Appellant, Louisiana Physician Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and SYLVIA R. COOKS and OSWALD A. DECUIR, Judges.
   hDECUIR, Judge.

Plaintiff, Louisiana Physician Corporation (LPC), and Defendant, Larrison Family Health Center, submitted to mandatory, binding arbitration a dispute concerning the billing and office management services provided by LPC under its contract with Larrison. The issue presented in this appeal is whether the trial court erred in granting a motion to confirm the arbitration award which assessed damages for LPC’s breach of contract. In answer to the appeal, Larrison requests frivolous appeal damages. For the reasons which follow, we affirm and we deny the request for frivolous appeal damages.

The record before us contains only the seventeen-page detailed synopsis and award of the arbitrator. From that award, we have discerned the following facts. In 2000, Dr. James Larrison and Dr. Sherlyn Bell Larrison, husband and wife, moved to Louisiana to establish a rural family medicine clinic in the community of Pierre Part. They contracted with LPC for certain billing, training, and office management services for which they agreed to pay a $2,000.00 start up fee, plus a monthly fee of $3,000.00 or 7% of receivables for that month, whichever was greater. The contract provided that disputes would be resolved by arbitration according to the rules of the American Arbitration Association.

After several months, the Larrisons became concerned about the increasing age and amount of their receivables. When these issues were not satisfactorily resolved by LPC, Dr. Sherlyn Larrison, who was previously the office manager and accountant for a 12,000 acre farming enterprise the Larrisons owned, immersed herself in the billing records in an effort to figure out how the problems with the account could be solved. LPC refused to provide Larrison with all of the documentation pertinent to their account, but from what she had access to, Dr. Sherlyn Larri-son discovered numerous mistakes, both intentional and unintentional, in the work performed by |?.LPC. In fact, in proceedings before the arbitrator, she detailed 1,237 specific patient errors which resulted in $104,023.00 in lost income and payments to patients to settle mistakes made on their accounts.

LPC chose to terminate its contract with Larrison Family Health Center after less than two years of service. Claiming it was owed almost $20,000.00 in fees, LPC filed this claim in arbitration. Larrison answered and reconvened for damages. In an effort to prove its case before the arbitrator, LPC presented the testimony of one of its managers, Marcel Bourgeois. He was not personally familiar with the Larrison account, but he testified the collection rate on the account was 76%, a figure at or above the national rate for family practice collections. Conversely, Larrison offered testimony from previous employees of LPC, all of whom had worked on the Larrison account, who detailed their own mistakes or the mistakes of co-employees. In short, the arbitrator determined Larrison proved LPC breached the contract and, as a result, suffered damages exceeding $100,000.00.

In confirming the award of the arbitrator, the trial court reasoned as follows:

Matters involving the confirmation, vacation, or modification of arbitration awards are governed by La.R.S. 9:4201 et seq. The grounds for setting aside an arbitration award in whole or in part are specifically laid out in La.R.S. 9:4210 and 4211. Louisiana courts and federal courts routinely hold that absent the existence of one of the specified grounds for vacating an arbitration award, a reviewing court is prohibited from reviewing the merits of an arbitrator’s decision. Welch v. A.G. Edwards & Sons, Inc., 95-2085 (La.App. 4 Cir. 5/15/96), 677 So.2d 520, 523. Further, a reviewing court may not substitute its own conclusions for that of the arbitrator. Allen v. A & W Contractors, 433 So.2d 839, 841 (La.App. 3rd Cir.), writ denied, 438 So.2d 578 (La.1983).
LPC has not raised any of the statutory grounds required to set aside or modify the arbitrator’s award of April 7, 2003. There is one other basis that a litigant such as LPC may use to attack an arbitration award. “A manifest disregard of the law” by arbitrators is a judicially created ground for vacating an arbitration award and refers to error which is obvious and capable of being readily and instantly perceived by an average person qualified to serve as an arbitrator. The doctrine implies that the arbitrator appreciates existence of clearly governing |3legal principle but decides to ignore or pay no attention to it. Welch v. A.G. Edwards & Sons, Inc., 95-2085 (La.App. 4 Cir. 5/15/96), 677 So.2d 520, 524; citing Colchoneria Jiron, S.A. v. Blumenthal Print Works, Inc., 629 So.2d 1288, 1290 (La.App. 4th Cir.1993), writ denied, 94-0145 (La.3/11/94); 634 So.2d 391. LPC’s argument that the arbitrator chose to ignore the basic principle of freedom of contract has no merit. The arbitration award between the parties was a 17 page well-reasoned opinion that thoroughly considered every issue that is now raised by Louisiana Physicians Corporation to vacate or annul the award. The arbitrator carefully considered the relevant provisions of the contract between LPC and the Larrisons, reviewed the evidence, found that LPC had breached the contract, and awarded direct and specific damages [Footnote 1: Exhibit B, Award of Arbitrator, page 15] that were proven at trial.
LPC has advanced arguments that the damages awarded to the Larrisons by the arbitrator are speculative and uncertain, that LPC was entitled to a set off of $19,958.63, and that the Larrisons could have mitigated their damages by canceling the contract between the parties. [Footnote 2: The written award reveals that the arbitrator’s findings were based on the fact that the Larri-sons carried the burden of proof through extensive testimony and documents while LPC presented little or no contravening testimony or documentation, i.e. the results following the arbitration hearing were largely determined by the evidence and the burden of proof, not by interpretation of law or contract. See Exhibit B, p. 4-5.] These issues go to alleged errors of fact and law, which this Court cannot address absent the statutory grounds or a manifest disregard of the law. The parties agreed to arbitration, and by doing so they are presumed to have accepted the risk of procedural and substantive mistakes of either fact or law. Montelepre v. Waring Architects, 2000-0671 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127, citing, In re Arbitration Between U.S. Turnkey Exploration, Inc. and PSI, Inc., 577 So.2d 1131 (La.App. 1 Cir.1991)[,writ denied, 580 So.2d 676 (La.1991) ]. Therefore, even had the arbitrator made errors of fact or law, the result to LPC’s petition to vacate and/or modify would be the same. Because of the strong public policy favoring arbitration, arbitration awards are presumed valid. Errors of fact or law do not invalidate an award. Arbitration is favored and an arbitration award is res judicata. Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed, and the burden of proof is on the party attacking the award. Montelepre v. Waring Architects, 2000-0671 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127 (emphasis added).
Considering the foregoing, the Court confirms the arbitration award that was rendered April 7, 2003, without modification or correction.

l4The trial court’s decision was correct. LPC presented to the trial court no grounds for overturning the final and binding award of the arbitrator, and we are not persuaded by the arguments presented herein. Manifest disregard of the law as a basis for setting aside an arbitration award has been described as a “conscious attempt to disregard Louisiana law.” Welch v. A.G.Edwards & Sons, Inc., 95-2085, p. 6 (La.App. 4 Cir. 5/15/96), 677 So.2d 520, 524. Under this definition, LPC falls far short of meeting its burden of proof in this case. LPC’s complaints concerning alleged “performance standards” articulated by the arbitrator or his assessment and calculation of damages, even if valid, simply do not rise to the level of “manifest disregard of the law,” as that term is understood in Louisiana law.

Accordingly, we affirm the trial court’s judgment confirming the award of the arbitrator.

We address briefly Larrison’s request for frivolous appeal damages. Larrison claims that LPC’s appeal of the arbitration award and the trial court’s judgment confirming that award was frivolous. Louisiana law provides that damages for frivolous appeal are allowed only when “it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of the law he advocates even though the court is of the opinion that such view is not meritorious.” Parker v. Interstate Life & Accident Ins. Co., 248 La. 449, 179 So.2d 634, 636 (La.1965). Further, the Louisiana Supreme Court has explained that because appeals are favored, such damages are inappropriate unless the action is “unquestionably frivolous.” Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993). See also, Fowler v. Bossano, 01-357 (La.App. 3 Cir. 10/3/01), 797 So.2d 160. While LPC’s issues for review may be substantively tenuous, there is no evidence this devolutive appeal was taken for Ldelay or that counsel was insincere in his position. Consequently, we deny the request for frivolous appeal damages.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to Louisiana Physician Corporation.

AFFIRMED.


author: JjPICKETT, Judge.

text:
    G.D. WOMACK TRENCHING, INC. v. MAITLAND WATER SYSTEM, INC., et al.
    No. 03-1579.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Sam 0. Henry, III, Blackwell, Cham-bliss, Henry, Caldwell, Cagle & Camp, LLP, West Monroe, LA, for Defendant/Appellant, Jabar Corporation.
    Virgil Russell Purvis, Jr., Smith, Taliaf-erro, Purvis & Boothe, Jonesville, LA, for Defendant/Appellant, Maitland Water System, Inc.
    George Trippe Hawthorne, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, Baton Rouge, LA, for PlaintiffAppel-lee, G.D. Womack Trenching, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

Maitland Water System, Inc., appeals the judgment of the trial court which withdrew the award of a public contract to Jabar Corporation and awarded the contract to G.D. Womack Trenching, Inc. Ja-bar also appeals this judgment.

FACTS

Maitland Water Systems, Inc. (Mait-land), a public corporation, was required to move some of its water lines because the Louisiana Department of Transportation and Development (DOTD) planned to widen Louisiana Highway 15 from Sicily Island to the Concordia Parish line. Maitland and DOTD entered into a contract regarding the relocation of the lines. Maitland was responsible for doing the work, DOTD was to pay for the work, and all plans had to be coordinated and approved by DOTD through its project engineer, James Free. Maitland retained McManus Consulting Engineers (McManus) to oversee the preparation for the project, including soliciting bids for work related to the relocation of the water lines. One of the elements of the project involved digging a trench, placing pipe, and backfilling the trench.

McManus advertised the right to bid on the project in September 2002. The Bid Form, which had been sent to DOTD for approval in June 2002, included a Base Bid and an Additive Alternative No. 1. The Base Bid included all phases of the project. The Alternate Bid was included because in the areas within the road’s right of way, it was contemplated that the trenches could not simply be backfilled with the dirt originally removed from the trench but had to be filled with select backfill. The alternate bid form suggested that 3,650 cubic yards of backfill would have to be ^removed, disposed of, and replaced with select back-fill. The bid form asked for a unit price per cubic yard for this work.

The bids were opened on October 8, 2002, by Max Larche of McManus. The total amount of the bids was as follows:

Contractor

Base Bid Alternative No. 1 Total

Womack

KCS Construction

Camo Construction

Jabar

$212,218.00

$235,192.40

$256,018.80

$197,926.71

$21,900.00

$34,675.00

$35,587.50

$87,602.00

$239,118.00

$269,867.40

$291,606.30

$285,528.71

While Jabar had the lowest Base Bid, its bid for Alternative No. 1 was at a rate of $4.00 per cubic yard for disposal of backfill and $20.00 per cubic yard for select fill, Since Womack’s bid for Alternative No. 1 was at a rate of $1.00 for disposal of backfill and $5.00 for select fill, its total bid price was lower.

On October 11, 2002, Larche sent the bid tabulation sheet and Jabar’s low Base Bid to John Tyler of DOTD. After reviewing the bid sheets, Tyler called Larche and told him that the project did not require 3,650 cubic yards of backfill to be replaced with select fill because select fill would only have to be used where the water line crossed the road. After speaking with Tyler, Larche reviewed the plans and determined that no more than 140 cubic yards of backfill would have to be disposed of and replaced with select fill. On October 24, 2002, Larche recalculated the total amounts of the bids, changing only the quantity for the Alternative No.l. The result was as follows:

Contractor

Base Bid Alternative No. 1 Total

Womack $212,218.00

KCS Construction $235,192.40

Camo Construction $256,018.80

Jabar $197,926.71

$ 890.00 $1330.00 $1365.00 $3360.00

$218,058.00

$236,522.40

$256,383.80

$201,286.71

| ¡¡Following this recalculation, it was determined that Jabar was the lowest bidder. McManus recommended to Maitland that the contract be awarded to Jabar. DOTD approved, and the contract was awarded to Jabar. The other bidders, including Wom-ack, were given notice that Jabar had been awarded the contract on November 18, 2002.

Representatives of Jabar, McManus, and Maitland met to discuss the project on January 9, 2003. On January 14, because DOTD requested that a stop work order issue because of delays in clearing and grubbing, a stop work order was issued by McManus. The letter from Larche to Ja-bar specifically stated that Jabar should continue ordering materials for the project. On April 11, 2003, Jabar sent an invoice to DOTD for pipe that it had purchased for the project and was stockpiling at the Maitland office.

On May 5, 2003, Womack filed a petition against Maitland and Jabar to enjoin performance of the contract between Maitland and Jabar and to declare the contract illegal and void. Womack claimed that its bid was the lowest bid and that Maitland engaged in post-bid manipulation that made Jabar’s bid the lowest bid. Womack also sought an order declaring it to be the lowest bidder and awarding it the contract. The trial court issued a Temporary Restraining Order on May 5, 2003.

Maitland and Jabar answered the petition, asserting that the bid was not manipulated for the purpose of awarding Jabar the bid. Maitland claimed it had the authority by the terms of the bid itself to modify the alternate bid to conform to the work requirements of DOTD. Maitland and Jabar also claimed that Womack’s suit was untimely and that the delay of six months before filing suit constituted waiver of objection. The trial court held a hearing on May 29, 2003, which the parties | ¿stipulated would constitute trial of the preliminary and permanent injunctions and all other issues.

The trial court issued a written ruling on August 23, 2003. The trial court ruled that the reduction of the quantities in the alternate bid was a violation of La.R.S. 38:2212. The trial court further found that the bid form, reserving to Maitland the right to decrease quantities, did not allow Maitland to recalculate the bid using lower quantities for the alternate bid. The trial court further found that Womack’s suit was not untimely. The trial court declared the contract between Maitland and Jabar null and void and ordered Maitland to award the contract to Womack. Finally, the trial court authorized Maitland to issue a change order allowing it to purchase the pipe Jabar , had stockpiled and deducting that from the contract awarded to Wom-ack. A judgment to that effect was signed on September 8, 2003. Maitland and Ja-bar now appeal that ruling.

ASSIGNMENTS OF ERROR

Maitland asserts three assignments of error:

1. The Trial Court erred in its conclusion under the undisputed facts that the recalculation of the alternative bids and the award to Jabar violated La.R.S. 38:2212.
2. The Trial Court erred in concluding that the reservation of the right to reduce quantities did not grant Maitland the right to recalculate the bid.
3. Alternatively, the Trial Court erred in ordering that the contract be awarded to Womack.

Jabar Corporation adopts the assignments of error alleged by Maitland and also complains that the trial court erred in refusing to find that Womack’s petition was untimely and, thus, failed to state a cause of action.

DISCUSSION

We will begin by addressing the issue of whether Womack’s complaint was timely. Initially, we note that Womack filed this suit as an interested party pursuant to La.R.S. 38:2220, which states, in pertinent part:

A. Any purchase of materials or supplies, or any contract entered into for the construction of public works, contrary to the provisions of this Part shall be null and void.
B. The district attorney in whose district a violation of this Part occurs, the attorney general, or any interested party may bring suit in the district court through summary proceeding to enjoin the award of a contract or to seek other appropriate injunctive relief to prevent the award of a contract which would be in violation of this Part, or through ordinary proceeding to seek appropriate remedy to nullify a contract entered into in violation of this Part.

The statute itself does not include any specific time limits for filing a suit seeking injunctive relief. Jabar alleges that the supreme court’s ruling in Airline Construction v. Ascension Parish School Board, 568 So.2d 1029 (La.1990), mandates a finding that the trial court erred in finding the suit was timely. The supreme court held in Airline Construction that an unsuccessful bidder does not have a cause of action to recover damages unless the unsuccessful bidder timely seeks injunctive relief. In the instant case, Womack filed a suit for injunctive relief, not a suit seeking damages. In the course of its opinion, however, the supreme court did discuss the timeliness of a suit for injunction:

We hold that an unsuccessful bidder on a public contract who wishes to obtain relief because of the rejection of its bid must seek injunctive relief at a time when the grounds for attacking the wrongful award of the contract were known or knowable to the bidder and when corrective action as a practical matter can be taken by the public body. Cf. Gray v. State of Louisiana through the Department of Highways, 250 La. 1045, 202 So.2d 24 (1967) (landowners, although aware that their property was being appropriated for borrow pit purposes, did not seek to enjoin the entry onto their land and the removal of dirt, but filed suit only two days before the job was completed, and the court denied | fidamages for trespass, limiting recovery to just compensation for the property taken). If an aggrieved bidder does not timely file a suit for injunction, he has waived any right he may have to claim damages against the public body or the successful bidder.
The timeliness of a suit for injunction depends on the facts and circumstances of the particular case, including, among other things, the knowledge possessed by the attacking bidder concerning the wrongful award of the contract, the point in time the bidder acquired this knowledge, the point in time that the public body became indebted to the successful bidder, and the time period between the awarding of the illegal contract and the completion of construction.

Id. at 1035.

The trial court found that “[t]he unsuccessful bidder filed suit for injunction and declaratory relief prior to any work being performed on the project in question.” Whether corrective action can be taken is but one factor to be weighed in determining the issue. Other factors include when the aggrieved party knew the contract was awarded wrongfully. In this case, Womack was aware of all of the facts relating to the bid when he received notice that Jabar had been awarded the contract in November 2002. Womack did not file this suit until April 2003, and gave no reason for the delay. The trial court concluded that since a stop order had been issued by DOTD and work had not begun, the suit was timely. Jabar alleges that they bought materials for the job and made other arrangements in order to begin work on the project when the stop order was lifted. The trial court found that payment for the materials could be arranged so that Jabar would be returned to its original position. The second part of the test is whether “corrective action as a practical matter can be taken by the public body.” Because the stop work order had been issued, this condition was met. The suit is timely, and we will proceed to discuss the merits of the case.

|7The trial court found that the recalculation of the bids violated La.R.S. 38:2212(A)(3)(e), which provides:

Any proposal shall include no more than three alternates. An alternate bid by any name is still an alternate. Alternates, if accepted, shall be accepted in the order in which they are listed on the bid form. Determination of the low bidder shall be on the basis of the sum of the base bid and any alternates accepted. However, the public entity shall reserve the right to accept alternates in any order which does not affect determination of the low bidder.

By altering the quantities used in the alternate bid, the determination of the low bidder was affected. Maitland correctly points out that the law would sanction any one of three alternatives to the action it took. First, it could have accepted the base bid and alternate of Womack and then executed a change order. Second, it could have rejected all bids and called for new bids. Finally, it could have accepted the base bid of Jabar and rejected all of the alternate bids and then executed a change order. The trial court suggested the final option would have been most appropriate, but Maitland argues that since there was no unit price for select fill and backfill disposal this would have been impossible. • A change order can be within the scope of a contract and not include merely additions or deletions from the existing materials. This assignment of error lacks merit, as Maitland chose an alternative that is not sanctioned by the law.

The second assignment of error alleged by Maitland is that the language of the bid clearly put the bidders on notice that the amounts in the contract might be changed. On the final page of the bid, the following clause appears:

The OWNER reserves the right to accept or reject any, all or any one of the above Items. Due to the nature of the work, quantities may be increased or decreased. Therefore, Contractors are advised not to | Rsubmit unbalanced bids. The low BIDDER will be determined by the combination of Base or Alternate Items, as required to implement this project. BIDDERS must submit bids for all Bid Items (Base and Alternate).

The trial court found that this language, as well as a note at the bottom of the page reserving the right of the owner to have change orders executed by the contractor, did not grant to Maitland the authority to change the quantities in the alternate bid section. We find that as used in the bid form “Item” refers to either the Base Bid or the Alternate Bid, not to the individual specifications included in those bids. As such, this paragraph is merely a restatement of the law and clearly enunciates Maitland’s right to accept both the base bid and the alternate bid, accept the base bid and reject the alternate bid, or reject both bids. Reading the paragraph as the appellants suggest invites the possibility of manipulating quantities and specifications to reach a desired result. This assignment of error lacks merit.

Finally, Maitland argues that the trial court erred in awarding the contract to Womack rather than rebidding the contract. In Haughton Elevator Division v. State, through the Division of Administration, 367 So.2d 1161 (La.1979), the supreme court determined that although Haughton was the low bidder on the contract at issue, the contract had been awarded to the second lowest bidder. Upon determining that Haughton’s bid had been improperly rejected, the supreme court reversed the trial court’s denial of the appellant’s request for a preliminary injunction and remanded the case to the district court with instructions “that it issue a preliminary injunction restraining, enjoining, and prohibiting the defendant ... or any person acting on its behalf from awarding the ... contracts at issue to any person, firm, or corporation other than the plaintiff Haughton Elevator Division, the low bidder on such contracts.” Id. at 1169-70. Accordingly, we find no error in the ruling of the trial 19court in the instant matter which orders that the contract be awarded to the lowest bidder.

CONCLUSION

We agree with the trial court that the appellee’s suit for injunction was timely filed. We further agree that Maitland violated La.R.S. 38:2212(A)(3)(e) by recalculating the bid prior to awarding the contract to Jabar. The trial court acted within its authority by ordering the contract to be awarded to the appellee. The judgment of the trial court is affirmed. Costs of this appeal are to be divided equally between the appellants.

AFFIRMED.

      . The trial court incorrectly designates this section of the statute as R.S. 38:2212(d).


author: JjDECUIR, Judge. | j WOODARD, J.,

text:
    Steven B. SOILEAU v. Cynthia Bailey SOILEAU.
    No. 03-1282.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Michael H. Davis, Davis & Saybe, LLP, Alexandria, LA, for Plaintiff/Appellee, Steven B. Soileau.
    Henry H. Lemoine, Jr., Gregory N. Wampler, Lemoine & Wampler, Pineville, LA, for Defendant/Appellant, Cynthia Bailey Soileau.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   JjDECUIR, Judge.

Cynthia Soileau appeals the trial court’s judgment, assigning error to two aspects of the judgment partitioning property of the former community between Cynthia and her former husband, Steven Soileau. For the reasons that follow, we affirm.

FACTS

After a ten-year marriage, Steven and Cynthia Soileau divorced in 1995. In 1998, he sought to partition their community property. The trial court heard the case in 2000, took the matter under advisement, and rendered a partition judgment in 2002. Cynthia appeals, assigning error to two aspects of the judgment, namely, the trial court’s failure to assign any value to the business Steven runs and its failure to recognize the community debt owed to Helen Matthews.

VALUATION OF THE BUSINESS

Steven started out as a self-employed carpenter. He now runs Soileau Construction/Remodeling, an unincorporated business. Cynthia argues this is a commercial business and, therefore, has an inherent value based on goodwill. Thus, she appeals the trial court’s ruling that the business has no value.

During the trial, she requested the trial court appoint an expert in accordance with La.R.S. 9:2801(4)(a) to assess the value of the business. Both parties concurred in the appointment of Mr. Bobby Lester, a certified public accountant, who ultimately concluded the business had no value. Cynthia did not present any evidence to refute Mr. Lester’s opinion, but she now argues that, notwithstanding Mr. Lester’s valuation, the trial court should have given value to the goodwill associated with the business.

| aWe cannot agree. “Goodwill has been defined as the probability that customers of an established business will continue to patronize the business.” Landry v. Simon, 98-1386, p. 2 (La.App. 8 Cir. 3/17/99), 732 So.2d 587, 588, writ denied, 99-1050 (La.5/28/99), 743 So.2d 672 (citing Godwin v. Godwin, 533 So.2d 1009 (La.App. 1 Cir.1988), writ denied, 537 So.2d 1165 (La.1989)). We do not include goodwill in the value of a business if it is a “professional corporation in which the goodwill results solely from the identity of the professional and his personal relationship with patients or clients.” Landry, 732 So.2d at 588 (citing Head v. Head, 30,585 (La.App. 2 Cir. 5/22/98), 714 So.2d 231). However, goodwill can be included in determining the value of a commercial business. Landry, 732 So.2d 587.

There is insufficient evidence in the record to determine whether this is a commercial business, that is, a business that can be bought or sold in the market, or a professional corporation. Collier v. Collier, 00-1263 (La.App. 3 Cir. 7/18/01), 790 So.2d 759, writ denied, 01-2365 (La.12/7/01), 803 So.2d 30. However, assuming, arguendo, that it is a commercial business, we still find no error in the trial court’s determination. While goodwill can be included in valuing a commercial business, it is not mandatory. Landry, 732 So.2d 587. In the instant case, the record is silent regarding the value of any goodwill, and the expert did not assign it any value. This was Cynthia’s burden of proof, which she failed to satisfy.

Cynthia directs us to jurisprudence concerning general business valuation methods; however, she presented no evidence at trial of how these methods apply to the business at issue. Further, while Cynthia suggests that we remand the case for the taking of appropriate evidence to establish the goodwill value, she provides no indication that she was prevented from offering such evidence at the time of trial. To remand the case under these circumstances would be to encourage piece-meal l.glitigation. Given the record before us, we find no extraordinary circumstances which necessitate a remand.

The determination of the value of this business is a factual one which we will not disturb absent manifest error. See Collier, 790 So.2d 759. Given the unrefuted evidence of “no value,” we find no manifest error in the trial court’s determination and reliance on Mr. Lester’s valuation. Thus, we affirm its ruling.

DEBT TO HELEN MATTHEWS

Cynthia contends that the trial court erred in failing to assign the community debt owed to her aunt, Helen Matthews.

The trial court did not mention the debt in its judgment or its written reasons for judgment. “As a general rule, where a judgment is silent with respect to any demand which was at issue in the case under the pleadings, such silence constitutes a rejection of that demand.” Green v. L & F Constr., Inc., 02-524, p. 4 (La.App. 3 Cir. 10/30/02), 829 So.2d 1206, 1209 (quoting Edwards v. Daugherty, 97-1542, p. 38 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112, 1134,) writs denied, 99-1393, 747 So.2d 1105, 99-1434 (La.9/17/99), 747 So.2d 1105. Moreover, we recognize that “a trial court has broad discretion in adjudicating issues raised in a proceeding for partitioning of the community regime.” Aymond v. Aymond, 99-1372, p. 11 (La.App. 3 Cir. 3/1/00), 758 So.2d 886, 892 (citing Queenan v. Queenan, 492 So.2d 902 (La.App. 3 Cir.), writ denied, 496 So.2d 1045 (La.1986)). In the instant case, we find no abuse of discretion in the trial court’s failure to include and assign the alleged debt to Matthews.

Cynthia did not include the debt on her detailed descriptive list. In his detailed descriptive list, Steven listed a possible community debt but specified no amount. Matthews testified that she loaned the couple a little over $75,000.00 from 1987 to IJ.991, some of which she loaned to Steven for the construction business and some of which she loaned to both of them. Matthews presented a copy of a letter from her attorney to Steven’s attorney which stated the amount of the debt was $75,825.00. However, the canceled checks and promissory note attached to this correspondence total only $60,825.00. She testified that on December 27, 1997, some two years after the divorce, Cynthia made one $500.00 payment on the debt. Whatever the import of this untimely payment, Cynthia’s actions cannot be construed as a waiver of any rights on the part of Steven with regard to the alleged debt. See Bridges v. Bridges, 96-1191 (La.App. 3 Cir. 3/12/97), 692 So.2d 1186.

Matthews testified further that she had filed suit against Steven and Cynthia to recover the debt and that the suit was still pending at the time of her testimony. Matthews is not a party to this suit and the existence and validity of the alleged debt is before another court. Matthews’ testimony and the letter she presented are insufficient to establish the existence and validity of a community debt. Cynthia did not even list the alleged debt on her detailed descriptive list. While Steven lists the alleged debt on his list, he specifies no amount and makes no comment on its validity. Under these circumstances we find the information on Steven’s descriptive list insufficient to constitute a judicial admission of the debt. Therefore, neither Steven nor Cynthia has admitted the amount owed or judicially admitted that they in fact owe the debt.

Moreover, in his brief to this court, Steven asserts that the trial court was correct in ignoring the debt because the debt is no longer valid. Specifically, he avers that the debt has prescribed. This issue was not raised below and, therefore, we will not consider it. However, the fact that it is being asserted further demonstrates that | sthe existence of the debt is still in dispute. Accordingly, we find the trial court correctly declined to assign this debt because it has not been proven.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Cynthia Soileau.

AFFIRMED.

WOODARD, J., dissents in part and assigns reasons.

| j WOODARD, J.,

dissenting, in part.

Respectfully, I dissent from the majority’s analysis and conclusions regarding the debt the community owes to Helen Matthews. I must agree with Cynthia that the trial court abused its discretion in its failure to include and assign it, as Steve, himself, established its validity in the trial court and Cynthia did not dispute it but, rather, acknowledged it.

Specifically, under oath, Steve asserted in his sworn detailed descriptive list that the community owed a debt to Ms. Matthews, though he did not know the amount of that debt. The majority finds that he did not admit its validity because he, merely, listed it on his sworn descriptive list; he did not “comment on its validity.” However, the act of swearing that the item is a liability of the community demonstrates that he believed it to be valid. That is precisely what a detailed descriptive list is — a list that “contains all of the community assets and liabilities then known to that party.”

The majority, also, notes that Cynthia did not list the debt on her sworn descriptive list. However, she did not file her own list. Rather, in her answer, she | ¡.traversed, only, those things in Steve’s list with which she disagreed. She did not disagree that the community has a liability to Ms. Matthews. Thus, both parties agreed that the community owes a debt to Ms. Matthews. Since Cynthia did not traverse this item, the only question for the trial court to address was the amount of the debt for which Steve presented evidence.

At trial, it was he who called Ms. Matthews as a witness to establish the amount of the debt. Specifically, his attorney asked her:

Q. I’m going to show you a letter and some attachments that Mr. Hays sent to me, and I’ll mark this Plaintiffs exhibit # 16, and ask you if this — if these are the checks and the note as well as the letter that was sent by your attorney to me setting forth what the debt is?
A. Yes, sir.

The majority finds that the debt’s validity was in dispute because, apparently, Ms. Mathews was attempting to have the debt reduced to judgment in another proceeding. However, again, neither party disputed the debt’s validity during the only proceeding that was before the trial court, and now us, nor does the record even contain a suit number or other sufficient reference information to forestall the trial court’s obligation to assign the debt. Furthermore, Steve did not request that the court withdraw the item from his sworn list of the community’s debts. In other words, the only evidence in the record before us is that neither Steve nor Cynthia disputed that the community owes a debt to Ms. Matthews and Ms. Matthews’ testimony, which clarified the amount of the debt, is unrefuted. Accordingly, the record reveals uncontradicted testimony of the debt and its amount, and the trial court abused its discretion by not assigning it.

Furthermore, prescription does not offer a reasonable basis for the trial court to have ignored the debt. Neither party raised the prescription issue at the trial court, and courts are not permitted to recognize it on their own. The first and only time Steve raised the issue of prescription in the course of these proceedings was in his brief to this court. However, this is inadequate because appellate briefs are no |3more than written arguments. They are not pleadings or part of the record on appeal. Steve did not plead prescription in the trial court, answer Cynthia’s appeal, file his own appeal in this matter, or offer any formal plea of prescription in this court.

Furthermore, a party must specifically plead the affirmative defense of prescription. La.Civ.Code art. 3452 and La.Code Civ.P. art 927(B), explicitly, prohibit courts from supplying any objection or plea of prescription. Therefore, neither we nor the trial court can supply the plea sua sponte.

Usually, prescription is pled in a peremptory exception because it has the effect of terminating the action. However, in the instant case, the prescription plea is atypical; it simply operates as an affirmative defense against the validity of a community debt. Normally, an affirmative defense constitutes a defense to the plaintiffs assertions and is pled in the defendant’s answer. However, further compounding the procedural complexity in this case is Steve’s attempt to raise an affirmative defense, not to Cynthia’s assertions, but to assertions he made in his own pleadings. Specifically, in his sworn descriptive list, he admitted that the community owed a debt to Ms. Matthews. At trial, it was he who called Ms. Matthews as a witness and solicited testimony to prove the validity of the debt, establishing its amount and that he and Cynthia had incurred it during the community’s existence.

When a party makes a declaration in a judicial proceeding, such as Steve did in his sworn detailed descriptive list, the declaration is deemed a judicial confession and constitutes full proof against him of the fact declared. Thus, he cannot, now on appeal, deny a fact to which he has judicially confessed and, in fact, established through his own affirmative proof.

I/Thus, there is no basis for the trial court’s failure to recognize this community debt and to do so was an abuse of discretion.

      . La.R.S. 9:2801(l)(b).

      . La.Civ.Code art. 3452; La.Code Civ.P. art. 927(B).

      . Hyde v. Hibernia Nat’l Bank in Jefferson Parish, 584 So.2d 1181 (La.App. 5 Cir.1991).

      . Id.

      . La.Civ.Code art. 3452.

      . See La.Code Civ.P. arts. 923 & 927.

      . La.Code Civ.P. art. 1005.

      . La.Civ.Code art. 1853.

      . Id.


text:
    Leon FRANCIS v. QUALITY BRANDS, INC.
    No. 03-1662.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      W. Alan Lilley, Goforth & Lilley, PLC, Lafayette, LA, for Defendant/Appellee, Quality Brands, Inc.
    Jermaine D. Williams, Attorney at Law, Abbeville, LA, for Plaintiff/Appellant, Leon Francis.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and SYLVIA R. COOKS and OSWALD A. DECUIR, Judges.
   hDECUIR, Judge.

Claimant appeals a judgment of the workers’ compensation judge finding that he failed to establish a work-related injury and denying benefits.

FACTS

Leon Francis began working as a route helper for Quality Brands on April 4, 2001. His primary duty was to deliver cases of alcoholic beverages to stores throughout the Lafayette area. Francis alleges that he felt and heard a pop in his back while delivering several hundred cases of beer on or about May 11, 2001. Francis did not file an accident report or inform his supervisor of the alleged accident. His co-worker testified that Francis did not complain of an accident and he did not witness any accident. Moreover, Francis did not report a job-related injury to any of the physicians, instead stating variously that he injured his back while lifting a log, a bunk bed, or tree limbs. In addition, Francis told several employees that he had injured his back moving furniture at home. Finally, Francis reported to personnel employees, Ray Davidson and Joye Declet, that he had hurt his back at home but had been advised by his doctor to file a workers’ compensation claim.

Francis ultimately filed a claim, and the workers’ compensation judge denied benefits based on Francis’ failure to establish a work-related injury. Francis lodged this appeal.

WORK-RELATED INJURY

Francis assigns two errors on appeal. He first contends that the workers’ compensation judge erred in finding the probabilities that he sustained a work-related injury were evenly balanced and, therefore, not sufficient to sustain his workers’ compensation claim. His second assignment alleges that the workers’ compensation judge erred in determining the credibility of certain witnesses. We will address both | «.assignments together as they address the factual determinations of the workers’ compensation judge.

The claimant seeking workers’ compensation benefits must prove by a preponderance of the evidence that she was injured in an accident in the course and scope of her employment. Bums v. Beauregard Nursing Ctr., 94-131 (La.App. 3 Cir. 10/5/94), 643 So.2d 443. In addition, the claimant must also establish a causal link between the accident and the subsequent disabling condition. Marks v. 84-Lumber Co., 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof. Bernard v. O’Leary Bros. Signs, Inc., 606 So.2d 1331 (La.App. 3 Cir.1992).

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). The workers’ compensation judge’s assessments of the weight of the medical evidence are not to be disturbed unless clearly wrong. Chambers v. Louisiana Pacific Mfg., Inc., 97-1188 (La.App. 3 Cir. 4/22/98), 712 So.2d 608. Furthermore, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

In this case, Francis gave conflicting stories as to how he injured his back. He did not report a work-related injury at the alleged time of the accident. His co-worker does not corroborate his injury, and Francis’ own statements put his credibility in question. Francis did produce two alleged eyewitnesses to the accident who | asupported his story. However, considering the contradictory evidence presented by Quality Brands and Francis’ own statements, we find no manifest error in the workers’ compensation judge’s determination as to the credibility of the various witnesses. Likewise, after reviewing the record, we find no error in the workers’ compensation judge’s finding that Francis failed to carry his burden of proof.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to appellant, Leon Francis.

AFFIRMED.


author: DECUIR, Judge.

text:
    Brenda WHITE v. PHOENIX PHARMACY.
    No. 03-1624.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Linda S. Blackman, Attorney at Law, Bossier City, LA, for Defendant/Appellant, Phoenix Pharmacy.
    R. Scott lies, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Brenda White.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and OSWALD A. DECUIR, Judges.
   DECUIR, Judge.

Phoenix Pharmacy appeals a workers’ compensation judgment awarding indemnity benefits to Brenda White, a former employee who was injured on the job. Raising issues of prescription, time of accident, disability, penalties, and attorney fees, Phoenix contends the trial court erred in its decision. White answered the appeal, requesting an increase in attorney fees for work done on appeal and contending the trial court erred in the assessment of penalties and costs. For the following reasons, we affirm in part, reverse in part, and amend.

The record reveals that Brenda White was employed as a clerk and cashier at Phoenix Pharmacy. Phoenix has a UPS shipping service available to the public which White handled on a daily basis. In early September of 2000, a customer requested shipping of an automobile transmission. White weighed the transmission and determined it was too heavy to ship via UPS because it was over 100 pounds. She then helped the customer return the transmission to his truck. Immediately upon re-entering the pharmacy, White told her co-worker what she had done and indicated that she had hurt her lower back.

Within a few days, White was in pain and sought medical care on the military base where her husband worked. White was diagnosed with an acute lumbosacral strain, was given pain medication, and was told to rest for several days. Upon her return to work after two weeks, Phoenix made accommodations and allowed White to use a stool, take time off for physical therapy, continue her pain medication, and refrain from heavy lifting when necessary. Phoenix also paid White her regular salary for the two weeks she was unable to work. The testimony in the record clearly shows that White’s co-employees and supervisors knew of the incident involving the transmission and knew she had been hurt as a result thereof.

Throughout the next several months, White continued working, but she also continued to seek medical care from time to time. In March of 2001, she had an MRI which showed a small disc herniation. She continued to take narcotic pain medication and briefly saw a physical therapist. White testified that she started looking for a better paying job, one that would allow her to work fewer hours for the same amount of income. Thinking she had secured such a position, White resigned from Phoenix Pharmacy in September of 2001. The new job, however, never materialized, and White spent a short time bar tending two days a week.

White’s medical condition continued to worsen. She was given steroid injections in the spinal canal and, at one point, had intravenous pain medication in the army hospital emergency room. In June 2002, White had another MRI which showed a “huge disc rupture.” On August 8, 2002, White underwent a lumbar laminectomy at the L5-S1 level of her spine. She spent several months recuperating and was released to return to work on March 21, 2003. At the time of trial, White was self-employed as an Avon representative. The trial court awarded supplementary earnings benefits for the period White worked as a bartender and then after she was released to light duty work following surgery; otherwise, temporary total disability benefits were awarded from the date White left her job at the pharmacy.

The above-stated facts were essentially unrefuted at trial. In this appeal, Phoenix makes much of the fact that the date of the transmission incident was not proved with certainty. White’s testimony concerning the fact of the accident some time in early September 2000, however, was corroborated in the medical records and in the testimony of Phoenix personnel. White’s supervisor knew she had been injured at work. For whatever reason, she chose not to complete an accident report contemporaneous with the accident, instead filling out the form a year later after White left her employment. Under these circumstances, we find ascertainment of the actual date of the accident unnecessary.

Regarding the question of whether White’s claim for indemnity benefits has prescribed, the pertinent dates are revealed in the record. In early September of 2000, White sustained an accident at work. Between the accident and September of 2001, White periodically sought medical treatment while continuing to work; in March 2001, an MRI showed a small herniation. On September 30, 2001, White resigned from Phoenix Pharmacy. Between October 2001 and March 2002, White attempted working and continued to seek medical treatment. Her claim for benefits was filed on March 18, 2002.

The prescriptive period for filing a workers’ compensation claim is contained in La.R.S. 23:1209(A), which provides:

In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and [FN1] in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

In Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1959 (La.4/10/95), 652 So.2d 1323, the supreme court described the developing disability doctrine as follows:

Workers’ compensation laws are to be liberally interpreted in favor of protecting workers from the economic burden of work-related injuries. Lester v. Southern Casualty Ins. Co., 466 So.2d 25 (La.1985); Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976). In furthering that policy, this court has construed La.Rev.Stat. 23:1209 A’s term “the time the injury develops” liberally in cases in which the worker attempts to continue working until no longer able to perform his or her employment duties. Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise' — ■ Workers’ Compensation § 384 (3d ed.1994). This court has consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disabling injury, rather than from the first appearance of symptoms or from the first date of treatment. Swearingen v. Air Prod. & Chem., Inc., 481 So.2d 122, 124 (La.1986); Bolden v. Georgia Casualty & Sur. Co., 363 So.2d 419, 422 (La.1978); Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 526 (1956); Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2, 5 (1955); Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, 219 (1952). The “time the injury develops,” as interpreted to mean the date the disability develops, is usually determined as the time when it becomes clear that the worker can no longer [94-1859 La. 5] perform his or her employment duties in a satisfactory manner. Swearingen v. Air Prod. & Chem., Inc., 481 So.2d at 124; Wallace v. Remington Rand, Inc., 86 So.2d at 525. Thus, the “developing injury” rule has been applied not only when the injury does not manifest itself immediately, but also when the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so.
The underlying rationale for this interpretation is that an injured employee who continues to work, despite a work-related medical condition which is painful but not then disabling, should not be penalized for attempting to remain in the work force in order to support his or her family or in the hope that the condition will improve. Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise — Workers’ Compensation § 384 (3d ed.1994). Requiring any injured employee, who is not yet disabled, to assert his or her claim within one year of the accident (or one year of the last payment of benefits) in order to preserve the cause of action would encourage needless litigation.

Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, pp. 4-5 (La.4/10/95), 652 So.2d 1323, 1325-26.

Following this jurisprudence, we find no error in the trial court’s decision to overrule Phoenix Pharmacy’s exception of prescription.

On the issue of White’s disability and inability to continue working at Phoenix Pharmacy, the record contains only White’s testimony. She chose to leave the pharmacy for a job that would require her to work fewer hours at a higher hourly wage. White testified that she made this choice based on her continuing pain which necessitated her taking large amounts of pain medication; she believed if she could rest more, she could take less medication. The new job, however, never came through, and White testified that her pain nevertheless continued to increase. White then worked a few hours a week as a bartender until the end of 2001.

The medical records submitted into evidence supported White’s testimony. She had consistent complaints of pain for which she sought treatment and pain relief. We find no manifest error in the conclusion that White met her burden of proving that these symptoms interfered with her job duties, ultimately causing her to become disabled.

The trial court specifically found White’s claim for indemnity benefits was unreasonably controverted; therefore, the court assessed Phoenix Pharmacy with a $2,000.00 penalty and attorney fees in the amount of $5,500.00. The court addressed the question of whether the facts, medical and otherwise, known to the employer, gave a reasonable basis to believe that compensation benefits were not due. The court found the occurrence of an accident was not seriously disputed by the employer, the medical records supported both the history of the accident and White’s complaints, and there was no showing of an intervening incident which could have caused White’s injury. Our review of the record reveals no manifest error in these findings. Accordingly, we conclude the award of penalties and attorney fees was appropriate.

We disagree, however, with White’s contention that she is entitled to two separate penalties of $2,000.00 each, one for the employer’s failure to pay temporary total disability benefits and another for the failure to pay supplementary earnings benefits. The employer was assessed a penalty for the failure to pay indemnity benefits. We cannot, in this case, say that a change in the classification of those benefits, based on White’s activities, gives rise to further penalties. Therefore, we affirm the penalty awarded by the trial court.

White also contends the trial court erred in failing to tax as court costs the preparation of the trial transcript for her counsel’s use in preparing his post-trial memorandum. Because there was no judgment in White’s favor at the time she requested a transcript, and it was requested for a party’s private use rather than for the benefit of the court, Phoenix contends there was no error in the trial court’s refusal to assign the court reporter’s fee as a court cost assessed to the losing party.

Under the circumstances presented in this case, we find the trial court abused its discretion in denying White’s motion to tax the transcript fee as a court cost. The court ordered post-trial memoranda immediately at the close of the evidence; the parties did not ask for the opportunity to file briefs. White was required to pay the court reporter’s fee of $468.25. Upon filing a motion for appeal, Phoenix Pharmacy then paid the court reporter $459.00. The claimant ultimately prevailed in this matter and has successfully defended this appeal. Accordingly, we reverse the denial of her post-trial motion to tax the transcript fee as a court cost and order Phoenix Pharmacy to reimburse her for this item of costs.

We also grant White’s request for an increase in attorney fees for work performed on appeal; we hereby amend the judgment to increase the award of attorney fees by $1,500.00.

For the foregoing reasons, the judgment rendered by the workers’ compensation judge is amended so as to assess the transcript cost to Phoenix Pharmacy and increase the award of attorney fees by $1,500.00. The denial of White’s motion to tax the cost of the transcript is reversed. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to Phoenix Pharmacy.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.