author: _JjGREMILLION, Judge.

text:
    ANTHONY CRANE RENTAL, L.P. v. Rufus FRUGE, Jr., Director of Calcasieu Parish Sales & Use Tax Dept.
    No. 02-0635.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    David Robert Kelly, David Rollins Cas-sidy, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant/Appellee, Anthony Crane Rental, L.P.

      Russell Joseph Stutes, Jr., Toni Lewis Petrofes Scofield, Gerard, Veron, Single-tary & Pohorelsky, Lake Charles, LA, for Defendants/Appellees/Appellants, Calca-sieu Parish School System, Rufus Fruge, Jr.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   _JjGREMILLION, Judge.

In this case, the plaintiff, Anthony Crane Rental, L.PJACR), appeals the judgment of the trial court denying its motion for summary judgment and granting the motion for summary judgment in favor of the defendant, Rufus Fruge, Jr, Director of Calcasieu Parish Sales and Use Tax Department (Department). For the following reasons, we affirm in part, reverse in part, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

ACR, a Pennsylvania limited partnership, operates a crane rental business. It has an office in Westlake, Louisiana, in Calcasieu Parish, through which it leases cranes to companies in the state, that it has purchased outside of Louisiana.

ACR was audited by the Calcasieu Parish School System Sales and Use Tax Department for the period covering January 1, 1995 through June 30, 1998, and was assessed sales and use taxes for the cranes. ACR protested the assessment, but it was denied. ACR paid, under protest, the Department’s final assessment of February 25, 2000, but filed a Petition for Refund to recover the amounts, essentially arguing that the cranes were excluded from taxation, that certain statutes relating to taxation were unconstitutional, that if it were hable for the taxes the Department failed to apply a mandated credit, and that the interest charged by the Department was excessive. The Department answered and requested attorney’s fees as provided by law. Cross motions for summary judgment were filed by both parties.

| ¡After a hearing in April 2001, the trial court denied ACR’s motion for summary judgment and granted the Department’s motion for summary judgment ordering that ACR pay taxes, penalties, interest, and attorney’s fees of 10% up to a maximum of $60,000.

ACR filed a Motion for New Trial, which was granted only on the issue of attorneys’ fees, interest, and penalties. The trial court ruled that the combined interest and penalties charged by the Department could not exceed 15%, citing Elevating Boats v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153. Thus, it ordered a refund of $176,956.02, plus interest, to ACR. With regard to the other issues, the motion for new trial was denied. ACR appeals the trial court’s denial of its motion for summary judgment and motion for new trial. The Department appeals that portion of ACR’s motion for new trial which was granted by the trial court reducing the penalty percentage owed by ACR.

ASSIGNMENTS OF ERROR

ACR assigns as error:

1. The trial court’s finding that its cranes were subject to tax, and

2. Alternatively, the trial court’s finding that it was not entitled to any tax credits.

The Department assigns as error:

1. The trial court’s failure to award it penalties.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B)(0). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. If the opposing party cannot produce any evidence to suggest that it will be able to meet its eviden-tiary burden at trial, no genuine issues of material fact exist. Id. Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

UNIFORMITY

ACR’s argument that the cranes were not subject to tax rests on the provisions found in La.R.S. 47:301(10)(a)(iii) and (18)(a)(iii). It argues that the limitation of exclusion of taxes at the state level provided for in that statute is unconstitutional under La. Const, art. YI, § 29(D) because § 29 requires uniformity in the application of legislative exemptions and exclusions from sales and use taxes, whether levied by state or local governments or by school boards. Thus, ACR argues that a local political body has to apply the exclusion that the legislature has enacted for the state.

LThe local ordinances under which ACR was taxed are found in the Calcasieu Parish School Board Sales Tax District No. Two Sales & Use Tax Ordinance of 1992, which was adopted by the School Board on November 17, 1991, and read in pertinent part:

Section 2.01. (A) That there is hereby levied, from and after January 1, 1993 ... a tax upon the sale at retail, the use ... of each item or article of tangible personal property.... The levy of said tax to be as follows:
(2) At the rate of one-half of one percent Qk%) of he cost price of each item or article of tangible personal property when the same is not sold, but is used, consumed, distributed or stored for use or consumption in the District, provided there shall be no duplication of the tax.

For the period beginning January 1991, La.R.S. 47:301(10)(a)(iii) excluded property purchased for lease from state sales tax. ACR argues that the school board ordinance is unenforceable because the Louisiana Constitution required that the state exemption be applied uniformly to all local taxing bodies. La. Const, art. VI, § 29 authorizes local governments and school boards to assess a sales and use tax. Pri- or to December 11,1996, it read (emphasis added):

(A) Sales Tax Authorized. Except as otherwise authorized in a home rule charter as provided for in Section 4 of this Article, the governing authority of any local governmental subdivision or school board may levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined by law, if approved by a majority of the electors voting thereon in an election held for that purpose. The rate thereof, when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes, levied and collected within any local governmental subdivision, |Bshall not exceed three percent.
(B) Additional Sales Tax Authorized. However, the legislature, by general or by local or special law, may authorize the imposition of additional sales and use taxes by local governmental subdivisions or school boards, if approved by a majority of the electors voting thereon in an election held for that purpose.
(C) Bonds; Security. Nothing in this Section shall affect any sales or use tax authorized or imposed on the effective date of this constitution or affect or impair the security of any bonds payable from the proceeds of the tax.
(D) Exemptions; Protection of Bonds. Except when bonds secured thereby have been authorized, the legislature by Imv may uniformly exempt or exclude any goods, tangible personal property, or services from sales or use taxes levied by local governmental subdivision, school boards, and the state.

La. Const. art. VI, § 29 was subsequently amended by Acts 1996, No. 46, § 1, approved Nov. 5, 1996, effective Dec. 11, 1996, and changed only subpart (D), which states (emphasis added):

(D) Exemptions; Protection of Bonds. Except when bonds secured thereby have been authorized, the legislature may provide for the exemption or exclusion of any goods, tangible personal property, or services from sales or use taxes only pursuant to one of the following:
(1) Exemptions or exclusions uniformly applicable to the taxes of all local governmental subdivisions, school boards, and other political subdivisions whose boundaries are not coterminous with those of the state.
(2) Exemptions or exclusions applicable to the taxes of the state or applicable to political subdivisions whose boundaries are coterminous with those of the state, or both.
(3) Exemptions or exclusions uniformly applicable to the taxes of all the tax authorities in the state.

lain addressing the issue of whether the legislature’s limitation of the tax exclusion to the state was unconstitutional under La. Const. art. VI, § 29, we must first set forth the heavy burden that ACR bears in proving that a legislative act is unconstitutional. In Board of Directors of the Louisiana Recovery District v. All Taxpayers, Property Owners, and the Citizens of the State of Louisiana, 529 So.2d 384, 387-88 (La.1988) (citations omitted), the supreme court stated:

[T]here is a strong presumption that the Legislature in adopting a statute has acted within its constitutional powers. The presumption is especially forceful in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation and public finance. The party attacking such a statute has the burden of showing clearly that the legislation is invalid or unconstitutional, and any doubt as to the legislation’s constitutionality must be resolved in its favor .... [I]t is not enough to show that the constitutionality is fairly debatable, but, rather it must be shown clearly and convincingly that it was the constitutional aim to deny the Legislature the power to enact the statute.

After thoroughly reviewing the statutes, legislative history, and jurisprudence, particularly BP Oil Co. v. Plaquemines Parish Government, 93-1109 (La.9/5/94), 651 So.2d 1322, we find that La.R.S. 47:301(10)(a)(iii), (18)(a)(iii), and 47:310, which only provided for a state exclusion from taxation, were not unconstitutional under La. Const, art. VI, § 29.

In BP Oil, a case relied upon heavily by both parties, BP was assessed a use tax by the Plaquemines Parish government pursuant to a statute similar to the one in this case. One of the issues in BP Oil revolved around the application of a legislative suspension to tax exemptions. The legislature suspended a portion of various state sales and use tax exemptions. BP argued that the suspension of exemptions only applied at the state level and not to local governments. The trial court, relying on La. Const, art. VI, § 29, held that the suspension must apply 17uniformly to state and local governments, and the school board. The supreme court agreed, but remanded the case for a determination based on the various types of suspensions that were applicable at various times.

However, on rehearing, the supreme court stated:

Although La. Const. Art. VI § 29(D) grants the Legislature the discretion to exempt or exclude goods, property and services from sales and use taxes, there appears to be some requirement of uniformity in enacting the exemptions or exclusions. We have concluded, however, that we need not decide in this case the meaning of the scope of any uniformity requirement for exemptions or exclusions in Section 29(D), because the present case involves only the suspension of a law enacted by the Legislature.

Id, at 1337 (emphasis added).

Thus, the supreme court found any uniformity requirements of § 29 were inapplicable as the legislature was not enacting exemptions or exclusions. Because the supreme court declined to decide the extent of uniformity required by the constitution, we must undertake to do it ourselves. We find, based on the language of the statute itself, the supreme court’s ruling, and the subsequent amendment to the article, that the legislature did not intend an all-or-nothing requirement that any exemptions or exclusions apply across the board to the state and every taxing authority in it, but rather, as was urged by BP and now, the Department in its brief, that the requirement means uniformity within each particular type of taxing authority. Thus, the legislature could not exclude one particular parish from imposing a use tax while allowing all the others to do so. However, it could impose, for example, an exemption or exclusion for all parish governments, but not the school board; or for the state, but not parish governments or the school board.

IsWhile the pre-1996 version of Article VI, § 29(D) did not specify this method; the legislature clarified its intention in its revision. We interpret § 29(D)(1)(2) and (3) as specifically allowing the exemptions in the manner aforementioned and find that the legislative intent was the same prior to the revision.

We are further supported in this finding by the legislature’s amendment of La.R.S. 33:2716.1(B), some four years following the enactment of the 1974 constitution. It states (emphasis added):

No exemption from the state sales and use tax granted subsequent to the effective date of this Act and granted pursuant to the provisions of Chapters 2 or 2-A of Title 4-7 of the Louisiana Revised Statutes of 1950 shall be applicable to any sales and use tax levied by any local governmental subdivision or school board unless the state exemption specifically provides that it applies to such sales and use tax levies. In the absence of any such specific application of the state exemption to sales and use tax levies of any local government subdivision or school board, any state exemption granted after the effective date of this Act and granted pursuant to the provisions of Chapters 2 or 2-A of Title 47 of the Louisiana Revised Statutes of 1950 shall be applicable only to the levy and collection of the state sales and use tax.

Based on this review, we find that La. R.S. 47:301(10)(a.)(iii) and 18(a)(iii) were constitutional. Thus, we find that the Department properly assessed ACR with its local use tax, and find no error in the trial court’s grant of summary judgment in favor of the Department as there is no genuine issue of material fact that ACR was subject to the local ordinance imposing the use tax.

In its brief, ACR urges that the authorization to issue bonds was not shown at trial. La. Const, art. VI, § 29(D) excepts secured bonds which have been authorized from the legislature’s exemption or exclusion from sales and use tax. Whether or not bonds have been issued in this case is of no moment because we have found that uniformity was not required.

JgCREDIT UNDER LA. R.S. 33:2718.2

ACR argues that, if it is liable for taxes, then it is entitled to a credit under La.R.S. 2718.2(C)(2). La.R.S. 33:2718.2 states (emphasis added):

A. A credit against the sales and use tax imposed by any political subdivision of the state shall be granted to a taxpayer who paid monies, whether or not paid in error, absent bad faith, based upon a similar tax, levy, or assessment upon the same tangible personal property in a political subdivision of another state, or a political subdivision of this state. The credit granted herein shall only be applicable when a similar taxing authority is seeking to impose and collect a similar tax, levy or assessment from a taxpayer upon the same tangible personal property for which the taxpayer has paid a similar tax, levy or assessment to a similar taxing authority.
C. (1) The proof of payment to a political subdivision of another state or a political subdivision of this state shall be made in accordance with the rules adopted by the secretary of the Department of Revenue under R.S. 47:303(A). Except as provided in Paragraph (2) of this Subsection, in no event shall the credit be greater than the tax imposed by the political subdivision upon the particular tangible personal property that is subject of the sales and use tax.
(2) The credit granted for taxes in any political subdivision in a parish in which no local sales and use tax is levied and imposed shall be the amount of taxes that would have been collected by the political subdivision at the tax rate imputed to that political subdivision. The imputed tax rate shall be the lowest tax levied and imposed by a similar taxing authority in this state as determined by the Department of Revenue.

The trial court, in its judgment, found that ACR was not entitled to a credit because it produced no evidence that the cranes were “transported to Calcasieu ImParish from Cameron Parish or any other political subdivision which does not levy and impose a sales and/use tax.” Thus, the trial court found that ACR could not support its burden of proving that it had paid the tax elsewhere or transported the cranes form a non-taxing parish.

ACR’s only evidence pertaining to whether or not it had previously paid any sales or use tax was an affidavit by David W. Mahokey, Chief Operating Officer of ACR Management, L.L.C., in which he certified that:

4.All of the Owned Equipment was purchased by ACRLP in various states outside of Louisiana. None of the Owned Equipment was purchased by ACRLP in Louisiana.
5. ACRLP did not pay sales (or use) tax to any state or local taxing authority on the initial purchase of the Owned Equipment.
6. The Owned Equipment was transported by ACRLP to Louisiana after its initial purchase out of state.

Thus, according to its own admissions, ACR has never paid any sales or use taxes pertaining to the cranes it leases to any jurisdiction whatsoever, and more importantly, the cranes were purchased outside of Louisiana. At the hearing on the motions, the Department claimed that La.R.S. 33:2718.2(C)(2) applied only to something transported from a parish within Louisiana without a tax, therefore, the provision was inapplicable to ACR because its cranes were brought in from out-of-state and not from a parish within Louisiana.

ACR argues that they should be allowed the credit because otherwise they are being discriminated against because the Commerce Clause of the U.S. In Constitution applies. We disagree and find that La.R.S. 33:2718.2(0 does not apply in these circumstances. In our opinion, the only time La.R.S. 33:2718(2)(C)(2) would apply to an out-of-state purchase is when the purchase was made in a county that did not levy or impose local sales or use taxes. When such proof is adduced, pursuant to the Commerce Clause, the out-of-state purchase is treated in the same manner as an in-state purchase and the imputed sales tax applies. However, in this case, the trial court found that

[P]laintiff has entered no support for the claim that the ‘cranes’ in question were transported to Calcasieu Parish from Cameron Parish or any other political subdivision which does not levy or impose a sales and/or use tax. Plaintiff cannot support a claim that said (sic) it is entitled to a credit for sales or use tax.

We agree with the trial court. The standard is not whether the taxpayer paid a sales or use tax, but whether the taxing authority where the goods were purchased taxed the sale or use of those goods. Further, because we find that La. R.S. 33: 2718(C)(2) is inapplicable to the facts of the particular case, we need not address whether it is constitutionally infirm. If ACR paid sales and use taxes or were exempt from paying such taxes in another jurisdiction outside of Louisiana, it had the opportunity to claim and prove a credit under La.R.S. 33:2718.2(A)(B) and (C)(1). This assignment is without merit.

PENALTIES

ACR was originally assessed interest at the rate of 15% per annum, penalties in the amount of 25% of the outstanding tax, and attorney’s fees under Calcasieu Parish School Board Sales Tax Ordinance section 6.09, which states:

| ^DELINQUENT INTEREST AND PENALTIES. If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due, there shall be collected with said tax, interest upon said unpaid amount at the rate of one and one-quarter (l-%%) percent per month, or fractional part thereof. In addition, there shall be collected a penalty equivalent to five (5%) percent per month, or fraction thereof, not to exceed twenty-five (25%) in aggregate, of the tax due, when such tax is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due. Both interest and penalty will be computed from the first day of the month next following the month for which the tax is due. In the event of suit, attorney’s fees will be charged the dealer at the rate of ten (10%) percent of the aggregate of tax, interest and penalty. All interest and penalties due for subsequent months will be assessed and due as of the first day of each succeeding month. The District Attorney is authorized to employ private counsel to assist in the collection of any sales and use taxes, penalties or interest due under this Ordinance, or to represent him in any proceeding under this Ordinance.

However, following a hearing on the motion for new trial, the trial court, pursuant to Elevating Boats, 795 So.2d 1153, abated the 25% penalty and ordered that ACR be refunded $176,956.02, plus interest. Thus, the trial court reserved that portion of the original judgment awarding 15% in interest and 10% in attorney’s fees. In Elevating Boats, the supreme court addressed the conflict between St. Bernard Parish’s local ordinance imposing a 25% penalty and La.R.S. 33:2746, which provides for a penalty for the nonpayment of tax. La. R.S. 33:2746 states (emphasis added):

Upon local taxes not paid and delinquent thirty days after the date upon which the tax is due, there shall be an interest penalty of one and one-quarter percent per month on the amount of the tax due, which shall be collected by the tax recipient body, together with and in the same manner as the tax.

In Elevating Boats, 795 So.2d at 1173-74 (emphasis added), the supreme court held:

We find that the Parish’s combined interest, penalty, and attorney fees cannot exceed the 15% interest penalties permitted by La.Rev.Stat. § 33:2746. Just as the parish ordinance cannot be less beneficial to the taxpayer than a state statute regarding refunds, it similarly cannot be more burdensome regarding delinquencies. In this case, the Parish ordinance permits a 6% per annum interest charge, a 25% maximum delinquency penalty geared to the length of delay, and a 10% attorney fee in the event of a lawsuit. The state statute, on the other hand, permits only a 15% annual “interest penalty” (R4% per month). We find that the Parish ordinance’s increased burden on the taxpayer is impermissible and that the state statute’s 15% interest penalty sets the maximum allowable burden for delinquent taxes. Therefore, Elevating Boats is responsible for no more than the 15% interest penalty permitted by La.Rev.Stat. § 33:2746.

Thus, if the trial court had strictly followed the holding in Elevating Boats, it would also have to abate the attorney’s fee award to bring the combined interest, attorney fees, and penalty award to 15%. There appears to be some conflict regarding the breadth of the supreme court’s holding in Elevating Boats. The Department argues that the supreme court “misinterprets LSA-R.S. 33:2746.” Subsequent jurisprudence and a review of other applicable statutes may support that position.

In the recent case of Stowe-Woodward Co. v. Lincoln Parish School Board, 36,100 (La.App. 2 Cir. 6/14/02), 821 So.2d 694, the second circuit addressed similar issues surrounding penalties and attorney’s fees. First, it held that the trial court did not err in not assessing the plaintiff a penalty fee. It further held that there was no error in the trial court’s affirmation of the defendant school board’s assessment of interest and attorney’s fees, which exceeded 15%. The second circuit pointed out that La.R.S. 47:1512 authorizes the imposition of attorney’s fees “in the 114amount of ten per centum (10%) of the taxes, penalties and interest due.” Accordingly, the second circuit stated (emphasis added): “This provision was not addressed by the court in Elevating Boats, but clearly it provides for the award of attorney fees in addition to the interest penalty set forth in La.R.S. 33:274,6, which makes no mention of attorney fees.” Stowe-Woodward, 821 So.2d at 703. We agree with the second circuit’s holding that the supreme court’s decision failed to address La.R.S. 47:1512, which clearly authorizes the imposition of attorney’s fees on the taxes, penalty, and interest due. Such a pronouncement leads to the conclusion that the legislature intended to allow attorney’s fees to be assessed after the penalty and interest is assessed, and therefore, attorney’s fees would be in addition to penalty and interest.

Nevertheless, we must still address whether the combined interest and penalties must be limited to 15%. Prior to its holding in Elevating Boats, the supreme court either affirmed or denied writs in several cases where the combined penalties and interest due exceeded 15%. It did not mention these cases, or specifically overrule its previous holdings in Elevating Boats. Hence, the Department argues that La.R.S. 33:2746 applies only to interest rates and not to penalties or attorney fees.

In Clavier v. Lay Down Service, Inc., 00-701, pp. 5-6 (La.App. 3 Cir. 12/20/00) 776 So.2d 634, 638, writ denied, 01-880 (La.5/25/01), 793 So.2d 203, we said:

Although we agree with the trial court that the legislature’s intent in 1989 was to overrule Berry [v. Holston Well Service, Inc., 488 So.2d 934 (1986)] and revert back to the integral relation test as propounded by Thibodaux [v. Sun Oil Co.], 218 La. 453, 49 So.2d 852 [(1950)], we feel constrained to follow the supreme court’s decision in Kirkland [v. Riverwood International USA, Inc., 681 So.2d 329 (1996)] . As a court of appeal, we are bound to follow the decisions of our supreme court. PPG Indus., Inc. v. Bean Dredging Corp., 419 So.2d 23 (La.App. 3 Cir.), writ granted, 422 So.2d 151 (La.1982), affirmed, 447 So.2d 1058 (La.1984). “In our judicial system the Court of Appeal, in its relation to the Supreme Court, occupies the status of an inferior court, therefore, we do not enjoy the prerogative individually or collectively of either criticizing or reversing a decision of that court, even if it should be obviously erroneous.” Fouchaux v. Board of Comm’rs of Port of New Orleans, 65 So.2d 430, 432 (La.App.Orleans 1953). Since we are without authority to overrule the supreme court’s decision in Kirkland, we are bound to reverse the trial court’s judgment granting summary judgment and reconsider the motion in light of that decision.

While we may agree that the legislative intent was not to include attorney’s fees or penalties under the statute, as in Clavier, we are constrained to follow the pronouncements of the supreme court and the clear language it used in its interpretation of La.R.S. 33:2746.

Accordingly, we must reverse the trial court’s judgment regarding the imposition of attorney’s fees since the amount awarded would cause the combined interest, penalty, and attorney’s fees to exceed the 15% penalty permitted by La.R.S. 33:2746. As in Elevating Boats, we remand to the trial court for a determination of the exact amount owed.

CONCLUSION

The summary judgment granted in favor of the defendant, Rufus Fruge, Jr., Director of Calcasieu Parish Sales and Use Tax Department, finding that the 11fiplaintiff, Anthony Crane Rental, L.P., was subject to its sales and use tax and was not entitled to a credit is affirmed. Judgment is reversed regarding penalties, with a combined interest, penalty, and attorney’s fee award not to exceed- 15%. This case is remanded for a determination of that amount. Costs of this appeal are assessed equally between the plaintiff and defendant.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . ACR was assessed $1,221,239.69 consisting of use taxes totaling $707,823.90, penalties totaling $176,956.02, and interest totaling $336,459.69.

      . Note that the attorney general was put on notice of ACR's constitutional challenge, but declined to participate.

      . Subsequent amendments, effective July 1, 1999, excluded property purchased for lease from taxation by local political subdivisions.

      . See also La.R.S. 47:303(A)(3), which grants a credit for sales and use taxes paid in other states.

      . Cameron Parish is the only parish in Louisiana that does not assess a sales and use tax.

      . The amount awarded for attorneys' fees is not in dispute.

      _ Although the trial court completely abated the penalty and reserved the interest award, we read its actions, based upon Elevating Boats, as awarding penalties and interest in the amount of 15%.

      . La.R.S. 47:1512 states: The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten percentum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.

      . See St. John the Baptist Parish Sch. Bd. v. Marbury-Patillo Const.Co., 259 La. 1133, 254 So.2d 607 (1971); Lake Charles Mem’l Hosp.
        v. Parish of Calcasieu, 98-519 (La.App. 3 Cir. 12/9/98), 728 So.2d 454, writ denied, 99-0071 (La.3/12/99), 739 So.2d 213; Turner Corp. v. Parish Sch. Bd. of the Parish of St. Charles, 97-676 (La.App. 5 Cir. 12/10/97), 704 So.2d 848, writ denied, 98-0086 (La.3/13/98), 713 So.2d 470.


source: Caselaw Access Project

author: I SULLIVAN, Judge.

license: Public Domain

text:
    Herman A. NALL, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 01-1671.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Relator, State Farm Mutual Automobile Ins. Co.
    Jerold Edward Knoll, Jr., The Knoll Law Firm, Marksville, LA, for Plaintiffs/Respondents, Herman A. Nall and Patricia Nall.
    Gary P. Koederitz, Koederitz Law Firm, L.L.C., Baton Rouge, LA, for Plaintiffs/Respondents, Herman A. Nall and Patricia Nall.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   I SULLIVAN, Judge.

The issue presented by this writ application is whether the occupants of a vehicle owned by a resident relative may recover under an additional uninsured motorist (UM) policy that they purchased on a vehicle not involved in the accident. Because we find that La.R.S. 22:1406(D)(l)(e) prohibits recovery under a second policy in these circumstances, we hold that the trial court erred in not granting the UM insurer’s motion for summary judgment on this issue.

Facts

On December 25, 1999, Herman Nall was operating a vehicle owned by his mother-in-law, Margie Coker, with Ms. Coker and his wife, Patricia Nall, as guest passengers, when that vehicle was struck by one driven by Blake Lemoine. It is undisputed that Mr. Lemoine’s negligence was the sole cause of the accident. At the time of the accident, the Nalls and Ms. Coker resided together at 2004 Brentwood Avenue in Alexandria, Louisiana.

Mr. Lemoine’s automobile liability insurer tendered its liability limits of $100,000 per occurrence, and Ms. Coker’s UM carrier, State Farm Mutual Automobile Insurance Company (State Farm), tendered its limits of $10,000 per person, $20,000 per accident. Thereafter, the Nalls and Ms. Coker sued State Farm, as the UM insurer of a Lincoln Town Car owned by the Nalls that was not involved in the accident. The Town Car’s UM policy had limits of $25,000 per person, $50,000 per occurrence.

The trial court granted State Farm’s motion for summary judgment that its policy on the Town Car did not provide UM coverage for Ms. Coker, but it denied State Farm’s motion as to the Nalls. In an unpublished opinion, with one judge | ^dissenting, this court denied State Farm’s writ application, finding no error in the trial court’s ruling. Nall v. State Farm Mut. Auto. Ins. Co., 01-1671 (La.App. 3 Cir. 3/5/02). However, upon State Farm’s application, the supreme court remanded the matter to this court for briefing, argument, and opinion. Nall v. State Farm Mut. Auto. Ins. Co., 02-964 (La.5/31/02); 816 So.2d 862.

Opinion

We begin our analysis with La.R.S. 22:1406(D)(1)(c), which provides:

(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities of recovery under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

(Emphasis added.)

In Taylor v. Sider, 97-1841 (La.App. 4 Cir. 4/29/98); 714 So.2d 783, writ denied, 98-1769 (La.10/9/98); 726 So.2d 406, the fourth circuit applied La.R.S. 22:1406(D)(1)(c) under facts substantially similar to those herein. In that case, the plaintiff and her adult, resident daughter were in an accident while occupying a |3vehicle owned by the daughter. In finding that the plaintiff could not recover under the UM policy on a vehicle owned by her resident husband, the court stated:

Under the clear provisions of LSA-R.S. 22.T406(D)(l)(e)(i), while [the plaintiff] may have UM coverage available under two State Farm policies, one on [her daughter’s] car and one on [her husband’s] car, she may not “stack” them so as to receive UM coverage under both policies. William Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law Treatise Vol. 15: Insurance Law and Practice, § 121 at 297 (2nd ed.1996). An exception to this general rule is contained in part e(ii) of the statute, wherein an injured passenger may seek UM coverage for injuries sustained while occupying an automobile not owned by the injured party, resident spouse, or resident relative. In adding this exception, the legislature intended to afford an insured, when riding with others, the protection of his own UM coverage, in addition to whatever coverage was available on the vehicle in which he was riding. McKenzie, Uninsured Motorist Coverage—Stacking, 42 La. L.Rev. 343, 344 (1982). However, in 1988, the Legislature amended the anti-stacking statute to provide that this exception is not limited only to vehicles not owned by the insured, but also to vehicles not owned by a resident spouse or any resident relative. The amendment places all family members residing with the owner in the same position as the owner who is limited to one coverage. McKenzie and Johnson, III, at § 122, page 299.
[The plaintiff] argues that [her daughter] should not be considered a “resident relative” because she was an adult rather than a minor child, and therefore the element of collusive control is [not] present. However, the restriction contained in part (c)(ii) does not include the word “minor,” and by its clear language, includes any relative who is residing with the insured, regardless of age. The plain import of the statute cannot be ignored. Consequently, the exception to the anti-stacking statute is not applicable to the facts of the present case, and [the plaintiff] can recover under the UM coverage of only one policy.

Id. at 785-86 (second emphasis added).

Because the accident occurred while the Nalls were occupying a vehicle owned by a resident relative, Ms. Coker, they do not fall within the “anti-stacking” exception of paragraph (c)(ii) that would have allowed them to recover under one other UM policy in addition to the primary policy on the car involved in the accident. Hence, their recovery is governed by paragraph (c)(i), which provides that “such limits of | uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy.” (Emphasis added.) By seeking to recover under both Ms. Coker’s policy and their policy on the Town Car, the Nalls are clearly trying to increase the UM coverage available to them through the use of more than one policy, in contravention of the statute. The trial court erred in denying State Farm summary judgment on this issue.

The Nalls also argue that they should at least be allowed to choose their recovery under the more favorable of the two policies, the one on their Town Car. In Taylor, 714 So.2d 783, which this court cited with approval in Clavier v. Roberts, 99-1070 (La.App. 3 Cir. 12/29/99); 755 So.2d 977, writ denied, 00-204 (La.3/24/00); 758 So.2d 152, the court also resolved this issue against the plaintiff by applying La.R.S. 22:1406(D)(1)(e):

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

(Emphasis added.)

Although the Nalls did not “own” the Coker vehicle, another family member did. As pointed out in Taylor, 714 So.2d at 786, “Louisiana courts have not distinguished between the owner and other family members” in applying La.R.S. 22:1406(D)(1)(e). The court further explained: “Through this amendment, the Legislature intended to preclude owners from carrying UM coverage only on selected family vehicles, while still gaining benefit of such protections regardless of which vehicle happens to be involved in an accident. Instead, in such circumstances, the lawmakers restricted UM coverage to that policy covering the occupied automobile.” Id. (emphasis added).

Although it was suggested in Clavier, 755 So.2d 977, that a contrary interpretation of paragraph (e) appeared “sound,” we chose to follow the “convincing” jurisprudence that offered the following rationale:

The intent of the statute cannot be circumvented by allowing different members of the same household to actually own the different vehicles and waive the coverage on all but one. Regardless which member of the household owns the vehicle involved in the accident, if coverage is waived on that vehicle there can be no recovery on the coverage of other vehicles owned by other members of the same household that do not list the vehicle involved in the accident in their policy.

Id. at 981 (quoting Jones v. Allstate Ins. Co., 619 So.2d 111, 114 (La.App. 1 Cir. 1993)). Perhaps the supreme court will choose to examine this issue, in light of the clear language of paragraph (e) and the policy that UM statutes should be liberally construed. See Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987). However, we, too, are constrained to follow the precedent of this court and other circuit courts of appeal.

WRIT GRANTED AND MADE PEREMPTORY:

For the above reasons, that portion of the trial court judgment denying State Farm’s motion for summary judgment as to the Nalls’ claims is reversed, and Plaintiffs’ suit is dismissed at their cost.

      . The trial court also ruled via summary judgment that the Nalls and Ms. Coker were not entitled to medical payments under the Town Car’s policy.


author: h KOSTELKA, J.

text:
    Sallie S. West HARRIS, Plaintiff-Appellant, v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 36,591-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.
    Sallie S. West Harris, In Proper Person.
    Beard and Sutherland, by Fred H. Sutherland, for Appellee.
    Before STEWART, KOSTELKA and DREW, JJ.
   h KOSTELKA, J.

Sallie S. West Harris (“Harris”) appeals the judgment of the Workers’ Compensation Judge (the “WCJ”) sustaining the exception of res judicata in favor of her employer, the Caddo Parish School Board (the “School Board”). For the reasons set forth, we affirm.

Facts

Harris was formerly employed by the School Board as a food service worker. On January 23, 1996, while in the course and scope of her employment, Harris slipped and fell in the cafeteria of the school where she was working. As a result, the School Board paid her indemnity and medical benefits. The School Board claims that although Harris was approved to return to work with restrictions, she resigned her employment. Subsequently, in April of 1998, she filed her Disputed Claim for Compensation with the Office of Workers’ Compensation.

On May 25, 2001, in accordance with a joint petition to settle workers’ compensation claim (the “settlement”), a hearing was held regarding the settlement between Harris and the School Board at which the WCJ thoroughly questioned Harris (under oath and on the record) regarding the provisions of the settlement. After Harris indicated her understanding of and willingness to enter into the settlement, the WCJ approved the settlement of all of Harris’s claims against the School Board in connection with the January 23, 1996 accident. An Order evidencing the settlement was entered the same day by the WCJ. That particular Order was not appealed by Harris. As a result of the settlement, the WCJ dismissed the | ¡.claims of Harris against the School Board with prejudice on June 4, 2001. This judgment was not appealed by Harris, although she did file a motion to set aside the settlement which was denied by the WCJ following a hearing of the matter. Again, Harris did not appeal that particular Order of the WCJ.

Shortly thereafter, Harris filed a second Disputed Claim for Workers’ Compensation referring to the same accident as in the previous claim. The School Board answered the disputed claim, including its peremptory exception of res judicata, which asserted the preclusive effect of the previous settlement. A hearing was held on the School Board’s res judicata exception, and Harris, despite being notified by certified mail (a return receipt of which was filed in the record), was not in attendance. After hearing evidence on the School Board’s exception, the WCJ sustained same determining that the issues of the instant claim had been settled previously by the parties. A judgment was entered dismissing Harris’s claims, and this appeal by Harris ensued.

Discussion

Harris appears in this appeal pro se, and whereas her assignment(s) of error are difficult to ascertain, it seems she generally argues that the WCJ erred in sustaining the School Board’s exception of res judica-ta.

The party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. La. R.S. 13:4231 defines res judicata as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
la(l) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Pursuant to Comment (a) of this statute, the central inquiry is not whether the second action is based on the same cause or cause of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. See also, Davis v. Home Depot, 96-850 (La.App. 5th Cir.02/25/97), 690 So.2d 208, writ denied, 97-0728 (La.05/01/97), 693 So.2d 740.

An exception of res judicata is the proper procedural vehicle when a suit is barred by a valid written compromise or transaction. Ortego v. State, Dept. of Transp. and Development, 96-1322 (La.02/25/97), 689 So.2d 1358; Brown v. Drillers, Inc., 93-1019 (La.01/14/94), 630 So.2d 741; Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356 (La.1987); Nelams v. Allen’s TV Cable, 95-444 (La.App. 3d Cir.11/02/95), 664 So.2d 563. Such an exception is legally appropriate, because a valid compromise has the legal efficacy of a judgment. Brown, supra; Aufrichtig v. Aufrichtig, 34,909 (La.App.2d Cir.08/22/01), 796 So.2d 57.

| Considering these principles, we determine that res judicata obviously applies in the case sub judice to bar relitigation of Harris’s present claims. Here, the second claim clearly arises out of the same precise occurrence (i.e., the January 23, 1996 workplace slip and fall) as the first claim, which was settled by the parties. Harris’s Disputed Claim for Compensation from the first action specifically stated the date of injury as January 23, 1996. In her second claim against the School Board, she states the same date of injury. Harris fails to allege anything to suggest that this claim is somehow separate and distinct from her earlier claim. See, Robinson v. P.M.I. (Portioned Meats Inc.), 2001-0926 (La.App. 1st Cir.05/10/02), 818 So.2d 937.

Additionally, as will be further discussed herein, the Order approving the settlement, as well as the Receipt and Release signed by Harris, served to release the School Board from any and all claims by Harris arising out of the January 23, 1996 workplace accident. There is no ambiguity as to the intent of the parties regarding the settlement and to what it pertained.

However, in addition to proving its claim of res judicata, the School Board is further burdened with establishing the validity of the settlement since it is relying on its res judicata effect. See, Nelams, supra. We believe the settlement was valid.

Louisiana R.S. 23:1272 pertains to the compromise settlements of workers’ compensation claims, and it states in pertinent part as follows:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by |srecitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.
C. When the employee or his dependent is not represented by counsel, the workers’ compensation judge shall determine whether the employee or his dependent understands the terms and conditions of the proposed settlement, and shall approve it by order, unless he finds that it does not provide substantial justice to all parties, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

At the hearing on the School Board’s exception, the School Board introduced the following settlement documents: (1) The WCJ’s May 25, 2001 Order approving the settlement between Harris and the School Board; (2) the notarized Receipt and Release by Harris dated May 25, 2001; and (3) the WCJ’s June 4, 2001 Order dismissing the claims of Harris in accordance with the previous Order approving the settlement.

Specifically, in the Receipt and Release Harris acknowledged receipt of $13,678.89, in consideration for releasing the School Board from:

[a]ny and all claims, actions, demands and causes of action, which the said [Harris] now has or may hereafter acquire ^against all or any of them, and from all liability, costs, expenses, attorney fees, damages, workers’ compensation benefits, medical expenses, disability, and all other consequences of any kind or character which are in any way connected with, arise our of, or result from the accident which is alleged to have occurred on January 23, 1996 ... and any other accident, incident, injury or disease which occurred at any other time during [Harris’s] employment with the [School Board] and subsequent thereto through the date of execution of this release.

The May 25, 2001 Order also stated that the payment by the School Board served to fully compromise “any and all claims” that Harris had against the School Board arising from the January 23, 1996 workplace accident or any other accident during Harris’s employment with the School Board. Additionally, the transcript of the hearing regarding the settlement clearly shows that the WCJ carefully ascertained Harris’s understanding of the terms and conditions of the settlement. At that hearing, the WCJ thoroughly questioned Harris as follows:

Q: Have you had an opportunity to review the settlement?
A: Yes.
Q: And did you understand the terms of the settlement?
A: Yes.
Q: Are you in agreement with it?
A: Yes.
Q: Do you understand that by entering into this settlement that you will never ever be able to go back and sue your employer as a result of the accident that occurred?
A: Yes.
Q: Specifically the accident that occurred on January 23rd of 1996?
A: Yes.
Q: Do you also understand that will mean that for whatever medical expenses that you may be incurring from this point, that you will be responsible for payment of those medical expenses? Do you understand that?
A: Yes.
|7Q: And that you will never ever be able to go back and sue your former employer?
A: Yes.
Q: Has anyone threatened you, harassed you, forced you or put you in duress to enter into this settlement?
A: No.
Q: Are you entering into this settlement of your own free will and accord?
A: Yes.

A review of the legal procedure underlying the settlement between Harris and the School Board discloses that the settlement was entered into pursuant to the strict requirements of the Workers’ Compensation Act and was valid. Moreover, without a showing of fraud or misrepresentation, there are no grounds for setting aside the settlement. Therefore, in light of the settlement’s validity, we determine that the settlement of Harris’s claims first brought against the School Board has a res judicata effect as to the subsequent claims brought by Harris arising from the same workplace accident.

Conclusion

The judgment of the WCJ in favor of the Caddo Parish School Board is affirmed, with costs of this appeal assessed to Sallie S. West Harris.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, PEATROSS, KOSTELKA, DREW, and MOORE, JJ.

Rehearing denied.

      . At that time, Harris's surname was ''West.” Sometime subsequent to the filing of this claim, she married and her surname became "Harris.”

      . Harris failed to appear at the hearing on the School Board’s exception of res judicata, despite receiving notice of same. The record reflects that service of the Order setting said hearing was made via certified mail. Pursuant to La. R.S. 23:1310.3(0), service of notice of the hearing by certified mail was proper and sufficient. On March 2, 2002, in an unsigned motion, Harris moved to reset the scheduled March 11, 2002 hearing (along with a variety of other requests); however, she gave no reasons for her request. The motion was apparently denied by the WCJ. A trial judge is vested with wide discretion in granting or denying a continuance under La. C.C.P. art. 1601, and such ruling will not be disturbed on appeal in the absence of clear abuse. Connor v. Scroggs, 35,521 (La.App.2d Cir.06/12/02), 821 So.2d 542, citing, Sauce v. Bussell, 298 So,2d 832 (La.1974); Coffman v. Mainhardt, 602 So.2d 264 (La.App. 2d Cir. 1992).


author: JjKOSTELKA, J.

text:
    Delores B. GADDY, Plaintiff-Appellant, v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 36,583-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Weems, Sehimpf, Gilsoul, Haines & Car-mouche, by Kenneth P. Haines, Brian D. Landry, Shreveport, for Appellant.
    Zelda W. Tucker, Shreveport, for Appel-lee.
    Before CARAWAY, PEATROSS and KOSTELKA, JJ.
   JjKOSTELKA, J.

Dolores B. Gaddy (“Gaddy”) appeals the judgment of the Workers’ Compensation Judge (the “WCJ”) which sustained the exception of prescription in favor of her employer, the Caddo Parish School Board (the “School Board”). For the reasons set forth, we affirm.

Facts

On February 8, 1996, Gaddy was working in the course and scope of her employment as a math teacher at Captain Shreve High School in Shreveport, Louisiana. That day, she was assigned to hall duty and was knocked to the floor by a security guard who rounded a corner suddenly on his way to a disturbance. When Gaddy fell to the floor, she struck the left side of her face which subsequently began to swell. She also had soreness on the left side of her body and a swollen thumb on her right hand.

The next day, she was treated by Dr. Michael Fleming (“Dr.Fleming”) who x-rayed her neck and back and prescribed medication for pain and reduction of swelling. In connection with her injury, the School Board made payments on Gaddy’s medical expenses without objection on February 28, 1996, March 5, 1996, September 6, 1996, October 14, 1996, October 25, 1996, November 12, 1996, and November 20, 1996. Subsequently, in January, 2001, Gaddy returned to Dr. Fleming for treatment of symptoms which he related to her 1996 workplace injury. Dr. Fleming recommended an MRI of the cervical spine to rule out cervical disk disease. That MRI showed significant arthritic/degenerative change with bulging disks. Dr. Fleming then referred Gaddy to Dr. David Cava-naugh (“Dr. Cavanaugh”), a neurosurgeon, who opined that the MRI showed | ¡.cervical spondylosis, which represented degenerative disk disease changes and spurring at multiple levels in the neck. Dr. Cava-naugh stated that it was “quite clear” from the history he obtained from Gaddy that her current symptoms were a result of her work injury, and he recommended surgery.

After November, 1996 the School Board received no other bills or notice of any medical expenses related to Gaddy until February, 2001, when the School Board’s risk management office was contacted by Dr. Cavanaugh’s office requesting approval for Gaddy to be seen for a work-related injury. On March 2, 2001, the School Board wrote to Gaddy denying her claim for medical benefits based on the period of time which had elapsed since her last claim.

Gaddy, appearing pro se, filed a petition for the payment of medical expenses, to which the school board filed a peremptory exception of prescription. At the hearing on the School Board’s exception, and after hearing the testimony and reviewing the evidence presented by the parties, the WCJ sustained the exception of prescription and rendered judgment dismissing Gaddy’s claim. This appeal by Gaddy ensued.

Discussion

On appeal, Gaddy argues that the WCJ erred in granting the School Board’s exception of prescription. She contends that although her claim for medical benefits appears to have prescribed on its face, the toiling of prescription was interrupted due to lack of knowledge of her ailment and its relatedness to her 1996 on-the-job injury.

| ¡¡Here, medical benefits had been paid to Gaddy as a result of her on-the-job injury and the last benefit was paid in November, 1996. The School Board maintains that because three years elapsed between Gaddy’s last claim in November of 1996, and her most recent claim in 2001, the School Board is not liable for payments pursuant to La. R.S. 23:1209(C), which states as follows:

All claims for medical benefits payable pursuant to R.S. 23:1203 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 with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits. (Emphasis added).

When a workers’ compensation claim to recover benefits has prescribed on its face, the claimant has the burden of showing that prescription has been interrupted in some manner. Brown v. Caddo Career Center, 28,111 (La.App.2d Cir.02/28/96), 669 So.2d 712, writ denied, 96-1042 (La.05/31/96), 674 So.2d 262; Lynn v. Berg Mechanical, Inc., 582 So.2d 902 (La.App. 2d Cir.1991). The WCJ noted that the last medical benefit paid to Gaddy had been in November of 1996 and that the medical benefits claimed in 2001 were for the same 1996 injury to her neck. Further, the WCJ recognized that pursuant to La. R.S. 23:1209(C), Gaddy’s claim had prescribed on its face, and that the burden was on Gaddy “to show that there is some exception which would warrant this Court to find that her claim has not prescribed.” Having failed to do such, and considering that more than three years had elapsed without Gaddy making a claim in |connection with her on-the-job injury, the WCJ determined that Gaddy’s claim had prescribed. On appeal, Gaddy argues that the WCJ erred because prescription of her claim was interrupted under the legal doctrine of contra non valentem agere nulla currit praescriptio (“contra non valentem ”).

Initially, we note that at the trial of the matter, Gaddy, who had no legal counsel at the proceedings below, did not object to the School Board’s' exception of prescription on the grounds of contra non valentem. The record reflects two arguments advanced by Gaddy—her lack of knowledge of the three-year prescriptive period set out in La. R.S. 23:1209(C) and that the medical treatment for which she was claiming medical benefits was related directly to her on-the-job injury in 1996. Because she failed to present the defense of contra non valentem as to the School Board’s exception of prescription in the proceedings below, she is, therefore, precluded from raising it for the first time on appeal. Matthews v. Pete Mercer Const., 33,085 (La.App.2d Cir.04/07/00), 758 So.2d 379, writ denied, 2000-1218 (La.06/16/00), 764 So.2d 965; Risinger v. State Farm Mut. Auto. Ins. Co., 29,023 (La.App.2d Cir.06/18/97), 711 So.2d 293. On this basis alone, her appeal fails.

Nor do we place any significance on the fact that Gaddy was a pro se litigant at the trial level, and as such, grant her extra consideration now on appeal. Although we acknowledge that the technical rules of procedure are relaxed in the workers’ compensation court, a pro se litigant assumes all [.¡responsibility for her own inadequacies and lack of knowledge of procedural and substantive laws. Ledbetter v. Wheeler, 31,357 (La.App.2d Cir.12/09/98), 722 So.2d 382; Dixon v. Shuford, 28,138 (La.App.2d Cir.04/03/96), 671 So.2d 1213. It was Gaddy’s responsibility as a pro se litigant to make sure her interests were protected. She was aware that the School Board considered her claim prescribed, which they had claimed not only in a formal exception to the court, but in correspondence to Gaddy. If she was unprepared or unable to provide an objection to the School Board’s exception, Gaddy (a high school teacher, presumably college-educated) was sophisticated enough to have considered engaging legal counsel, which she did for her appeal. Nor can we say that the WCJ erred in failing to notice and apply the defense of contra non valen-tem on her own accord, as Gaddy suggests she should have done. To do so would require trial courts to, in effect, act as counsel for the pro se litigants before it, an unreasonable burden to impose and unfair to opposing parties.

Even if, arguendo, Gaddy had the right to assert such a defense on appeal for the first time, her assignment of error is without merit. Although this Court has recognized four factual situations in which the doctrine of contra non valentem applies so as to prevent the running of liberative prescription, Gaddy only looks to one of those factors, arguing that contra non valentem applies to prevent the running of prescription where the cause of action was neither known nor reasonably knowable by the plaintiff, even though the plaintiffs ignorance is not induced by the defendant. See, Netherland v. Ethicon, Inc., 35,229 (La.App.2d Cir.04/05/02), 813 So.2d 1254, writ denied, 2002-1213 (La.06/21/02), 819 So.2d 339; Renfroe v. State, Dept. of Transp. and Dev., 2001-1646 (La.02/26/02), 809 So.2d 947. Actual knowledge or constructive knowledge of a cause of action has been defined as the time “[w]hen a party has sufficient information to incite curiosity, to excite attention or to put a reasonably minded person on guard and call for inquiry....” Netherland, supra.

Specifically, Gaddy claims that contra non valentem should be applied to suspend prescription in this case, because her claim was not known to her until March, 2001, when she was conclusively diagnosed with cervical disk disease. Further, she asserts that she did not know and could not have reasonably known before 2001 that her medical condition related back to the workplace injury in 1996. We disagree.

Gaddy was first treated by Dr. Fleming the day after she was injured. Apparently, Gaddy had been a long-time patient of Dr. Fleming even before her injury. Although no diagnosis was made at the time, Dr. Fleming noticed tenderness and swelling. In a report dated October 12, 1996, Dr. Fleming notes that he had seen Gaddy back in his office on several occasions since the initial visit following the injury. In that report, he stated that as of her August 28, 1996 visit, Gaddy had occasional complaints of discomfort in her neck, radiating down into her arm. He further opined at the time that Gaddy was “developing cervical disc disease” and prescribed medication and physical therapy. In connection with her treatment for her injury, Gaddy submitted various claims, the last of which was paid on November 20, 1996.

|7The next report from Dr. Fleming is dated February 15, 2001. In that report Dr. Fleming refers to the October 12, 1996 report, stating that at that time, “Gaddy went through several months of physical therapy and has had exacerbations of problems with neck pain off and on....” He continues that “[o]n a visit of 11-10-98 she complained of problems with neck pain. My examination at that time revealed an exacerbation.” He states that he saw Gaddy again on January 9, 2001, when she was complaining of severe pain in her neck radiating down her arm. He recommended at that time an MRI of the cervical spine “to rule out cervical disk disease.” As a result of the MRI, he referred her to Dr. David Cavanaugh who concluded she had severe cervical degenerative disease that would probably require surgery. Finally, Dr. Cavanaugh concluded that the condition was related to her 1996 on-the-job injury.

Whereas, the medical reports are all clear that the symptoms complained of by Gaddy in 2001 were related to her on-the-job injury which occurred in February, 1996, that is not the critical issue, nor, in fact, do we even question the connection. Under the doctrine of contra non valen-tem, we must determine whether Gaddy knew or reasonably could have known of her cause of action during the period in question. Based on the record before us, we conclude Gaddy knew, and if not, she reasonably should have known of her claim against the School Board prior to making an additional claim for medical benefits in 2001.

Gaddy’s medical history and evidence tend to show that she was aware of her claim against the School Board throughout the time period |sbefore 2001. In 1996, soon after her injury occurred, Dr. Fleming opined that she was developing cervical disk disease, for which she continued to seek treatment from him. She filed several claims for benefits up until November 20, 1996. Then, a period of time elapsed until she sought treatment from Dr. Fleming again — this time in November of 1998. At that point in time, Dr. Fleming’s medical records indicate that his “examination at that time revealed an exacerbation.” (Emphasis added). Dr. Fleming’s description of Gaddy’s symptoms shows Gaddy’s knowledge of her ongoing condition as she related it to Dr. Fleming, because an “exacerbation” implies a continuing but worsening of Gaddy’s original ailment. Significantly, Gaddy was experiencing the same symptoms throughout this time period — namely, neck pain. Moreover, the emphasis argued by Gaddy on the need for the MRI to “rule out cervical disk disease” is misplaced. The critical question is what Gaddy knew or should have known during the period of time between her last claim in November, 1996 until Dr. Fleming’s report in 2001. Dr. Fleming’s statement was not a new diagnosis, but related back to his original diagnosis made in 1996. Additionally, in Dr. Cavanaugh’s March 13, 2001 letter to the School Board, he states, “I saw [Gaddy] on consultation from Dr. Fleming on 2/8/01, and then follow up on 3/8/01. Her history she gave me was quite clear that she related her problems to an injury U years ago, ...”

Gaddy argués on appeal that she was unaware of her need for treatment, and, thus, could not bring a claim for medical benefits. However, |flthe evidence indicates otherwise. At the trial of the exception, Gaddy explained that regarding her November, 1998 visit, she did not file a claim, because it was “not an exorbitant amount of money, ...” However, most tellingly, she elaborated that had she known of the rule regarding the three year prescriptive period, she would have filed the claim. This reflects her knowledge of the relatedness of her claim to the 1996 on-the-job injury, but she made the conscious decision not to file the claim, only because it was not a large amount of money. Obviously, she was not unaware of her need for treatment but made a choice not to be reimbursed for that treatment, only because it was not worth it to her financially. Had Gaddy filed this claim at the time, she would have preserved her rights to claim medical benefits further into the future.

Additionally, in Gaddy’s Disputed Claim for Compensation, she stated that “[although there was a(3) three year lapse in Workers’ Compensation payments, there was not a three (3) year lapse in my treatment.” (Emphasis added). Thus, Gaddy concedes that she continued to be treated for the on-the-job injury and that she recognized her cause of action. Further, in a statement attached to her Disputed Claim for Compensation, Gaddy also acknowledges that in 1996, Dr. Fleming diagnosed her injury as cervical disk disorder with myelopathy, indicating her knowledge of the continuing ailment as a result of her job injury.

Finally, at the trial level, the only lack of knowledge argued by Gaddy was her ignorance of the three-year prescriptive period provided in La. R.S. 23:1209(C). However, Gaddy’s lack of knowledge of the prescriptive | inperiod, which she repeatedly argued throughout the trial proceeding, is not equivalent to a lack of knowledge of her disk disease during the period of time between November, 1996 and February, 2001.

Therefore, under the facts before us, we determine that Gaddy had sufficient knowledge, or at the least, she could have known through reasonable diligence, of her claim against the School Board, and, thus, prescription was not interrupted under the theory of contra non valentem.

Conclusion

For the reasons stated, the judgment rendered by the WCJ in favor of the Cad-do Parish School Board is hereby affirmed, with the costs of this appeal assessed to Dolores Gaddy.

AFFIRMED.

      . See, La. R.S. 23:1317(A), which states, “The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, ...”

      . “Exacerbation” is defined by Webster’s New Universal Unabridged Dictionary (Second Edition) as an “intensification or aggravation, as of a disease, pain, etc.”


author: LPEATROSS, J.

text:
    Johnny JONES, Plaintiff-Appellant v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.
    No. 36,552-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Street & Street, by C. Daniel Street, Monroe, for Appellant.
    Hayes, Harkey, Smith & Cascio, L.L.P., by Joseph D. Cascio, Jr., Monroe, for Ap-pellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   LPEATROSS, J.

This appeal arises from a judgment of the trial court awarding Plaintiff, Johnny Jones, damages in the amounts of $1,474 as compensation for .45 acres of land owned by him that was taken by the widening of a drainage ditch by Defendant, Ouachita Parish Police Jury (“Police Jury”), and $3,000 for the cost of removal of spoil and debris from Mr. Jones’ property. The trial court did not award general damages to Mr. Jones, who specifically sought damages for mental anguish and inconvenience, and did not award attorney fees sought by Mr. Jones. Mr. Jones appeals, asserting four assignments of error, challenging both monetary awards as described above and the trial court’s failure to award attorney fees. For the reasons stated herein, we amend the judgment of the trial court and, as amended, affirm.

FACTS

Mr. Jones owns a tract of land consisting of approximately 27 acres in eastern Ouachita Parish. This area, known as the Town and Country area, has historically experienced flood control and drainage problems. It was known by both parties for some time prior to the filing of the instant lawsuit that portions of Mr. Jones’ property would be needed by the parish for drainage purposes. In this regard, the record reveals that there were discussions regarding the possibility of the Police Jury purchasing a portion of Mr. Jones’ property. Apparently, Mr. Jones had in the past had negative encounters with the Police Jury about drainage related work being done on his land without his permission and he had instructed the Police Jury to stay off of his land. There is testimony in the record concerning alleged prior 12instances of intrusion onto Mr. Jones’ property for drainage control purposes.

On this particular occasion, employees of the Police Jury entered onto Mr. Jones’ property in order to dredge spoil material from an existing drainage ditch adjacent to a portion of his property. Bo Boyte, the then director of Public Works for Ouachita Parish and Police Jury employee, had received complaints about water backing up in a subdivision near Mr. Jones’ property. Mr. Boyte testified that he dispatched equipment crews with heavy equipment to clear several drainage ditches in the area, one of which lay between Mr. Jones’ property and a levee constructed by the East Town & Country Water District. Mr. Boyte did not consult any other member of the Police Jury, nor the parish manager, before dispatching the crews. In addition, he admitted that he did not obtain permission from Mr. Jones prior to commencing the work on the drainage ditch. Mr. Boyte further admitted that parish workers did enter onto and work from Mr. Jones’ property while cleaning out the ditch.

The overall testimony at trial, however, differed as to whether or not parish equipment was used to deposit spoil and debris onto Mr. Jones’ property, the value of the property taken as a result of the work and the cost to restore the property. Mr. Boyte testified that the only spoil that was placed on Mr. Jones’ property was from the cleaning of the portion of the ditch that was on his property and that no debris or spoil was moved from other areas and deposited onto Mr. Jones’ property. Danny Jones, [3Mr. Jones’ brother, testified to the contrary, stating that he saw the workers digging the ditch with a backhoe and hauling the dirt, mud and debris in a dump truck to Mr. Jones’ property where it was deposited and the mud was spread with a bulldozer.

Mr. Jones maintains that the drainage ditch, which had formed by the release of water at the spillway flowing down the levee, was greatly enlarged by the Police Jury workers, forming a canal that encroached onto his property at both ends of the ditch/canal. Mr. Jones submits that the encroachment is visible on the plats and surveys done by Donald R. Harrison, the Ouachita Parish drainage engineer, and Braswell Surveyors. John W. Bras-well surveyed the area for Mr. Jones and testified that the ditch encroached on Mr. Jones’ property at both ends. He also identified the areas on which he found debris and spoil. Don Harrison surveyed the property for the parish and also identified areas of spoil and debris. In addition to construction debris, however, Mr. Harrison pointed out a sofa and other “domestic ingredient[s]” in the debris, which led him to conclude that the area may have also been a place where people discarded trash that would not have necessarily come from the drainage ditch excavation. Mr. Harrison did agree, however, that the ditch encroached on Mr. Jones’ property, stating that “the total encroachment of the spoil bank and the portions of the channel itself that are within his property we’re showing to be point four five (.45) acres.” Regarding the area as a whole, Mr. Harrison testified that it was “flood-prone” and that there was a natural drainage route running through the property. Specifically, he provided the court with 14the elevations of different areas of Mr. Jones’ property and concluded that “[p]robably ninety-five percent of it falls in a special flood hazard area.”

Mr. Boyte testified that the parish workers did not enlarge the ditch, but merely cleaned and dredged the existing ditch with a long-arm backhoe. Mr. Boyte admitted that the crew worked from Mr. Jones’ property to clean the ditch, but he also stated that the area in which they were working had apparently been a construction dump site as there was concrete and other such debris present on the property (not only in the ditch) prior to the commencement of the drainage work. In response to questioning concerning a possible purchase of Mr. Jones’ land by the parish, Mr. Boyte testified that he recalled discussing the price of approximately $3,000 per acre if the entire tract was purchased.

Both parties provided expert appraisal testimony at trial concerning the value of Mr. Jones’ land. Graham Gault appraised Mr. Jones’ land on March 23, 2000. He valued the land at $6,972 per acre or $32,000 for the 4.59 acre tract which was affected by the work. Mr. Gault testified that the best use for the land was subdivision into single or multi-family dwellings; however, he admitted that he did not know whether the entire 4.59 acre tract or a portion of the tract was in a flood zone. In this regard, he agreed that being in a flood zone would “make a difference” when examining comparable properties (“compara-bles”) in the appraisal process, i.e., one would want to use comparables that were or were not in a flood zone as the case may be.

| BMr. Gault further agreed that the com-parables he utilized had existing water, sewer, utility and telephone service, whereas Mr. Jones’ tract was vacant and unimproved with no standing timber and no water, sewer, utility, electric or telephone services. Finally, it was noted during Mr. Gault’s testimony that, while there were existing duplexes on property located in the same “flood zone” as Mr. Jones’ property, those areas were in a levee district, i.e., a levee system had been constructed to prevent the property from flooding. No such system was in place on Mr. Jones’ property.

Charles Wilkes provided expert appraisal testimony for the Police Jury. The trial judge stated in reasons for judgment that Mr. Wilkes is very experienced and has personal knowledge of the property as he lives in a nearby area. Mr. Wilkes’ appraisal was done in the spring of 2000 and he valued the property (as of May 1, 2000) at $1,100 per acre for the entire 27-acre tract, with the highest and best use being edge-of-town recreational property, with a possible use as a single-family large acreage homesite built on stilts. He noted that a possible range, depending on use, could be $700 per acre to $1,130 per acre. Adjusting the appraised value based on the size of the tract, Mr. Wilkes valued the .45 acre tract, that was now part of the drainage ditch, at $1,474. In response to questions regarding the value of only the larger 4.59 acre area allegedly affected by the parish work, Mr. Wilkes appraised it at $1,250 per acre. Mr. Wilkes provided thorough testimony as to his considerations in the appraisal of the property, noting as a critical factor which may preclude development of the property, that ninety percent of the land was in a flood zone which would require flood | ^insurance and a wetlands permit from the Corps of Engineers prior to development. He described the property as flood prone with soil types characteristic of swamp areas. According to Mr. Wilkes, the comparables he utilized in appraising Mr. Jones’ property were also subject to flooding, albeit in varying degrees. Mr. Harrison corroborated this in his testimony as well.

There was also conflicting evidence presented regarding the cleanup of the debris and restoration of the property to its condition prior to the drainage work. Frank Miletello, a heavy equipment contractor who provides dirt moving services, testified on behalf of Mr. Jones. Mr. Miletello testified that Mr. Jones had requested that he do an estimate of the cost of removing the debris and spoil from his property and filling in the drainage ditch. Regarding the latter, Mr. Miletello’s testimony was unclear as to whether he was to bid on completely filling in the entire drainage ditch or just a portion of the ditch. In any event, he admitted that filling in the ditch would impede the water drainage in the area. Mr. Miletello provided an estimate of $45,860 for cleaning up the debris on Mr. Jones’ property and filling in the drainage ditch, which would take from ten days to four weeks to complete. On the other hand, Mr. Boyte testified that, in his opinion, the debris and spoil could be removed and the property restored by the work of three dump trucks over approximately three 10-hour work days (depending on how far the debris was hauled).

In reasons for judgment, the trial court noted that Mr. Jones’ petition sounds in tort, but describes an action in trespass. He alleged that the Police j7Jury sent equipment onto his land without permission, dug a ditch and deposited spoil and other debris, such as stumps and concrete, onto his land, without compensation. As previously stated, Mr. Jones sought damages for mental anguish and inconvenience, attorney fees and damages in the amount of $150,000 for the alleged five acres that were destroyed by the activity of the parish. Alternatively, Mr. Jones sought $45,860 in damages which he claimed would be necessary to restore the property.

Again, it is not disputed that the drainage work at issue was commenced without obtaining Mr. Jones’ permission. Mr. Boyte admitted as much in his testimony. The Police Jury, however, argued to the trial court that the parish only owed Mr. Jones the reasonable fair market value of the part of the property affected by the work done without his permission, subject to a credit for the cost of any work that was done that improved his property or its marketability. As previously stated, finding Mr. Wilkes to be the more credible expert witness, the trial court relied on his testimony in awarding Mr. Jones $1,474 for the .45 acres “taken” by the work done on the drainage ditch and $3,000 representing the cost of cleaning up and restoring the property. This appeal ensued.

DISCUSSION

The monetary awards

Mr. Jones argues that the amounts awarded by the trial court are inadequate. Specifically, he claims that $3,000 is not enough to remove the large amount of spoil and debris on his property and that the trial court erred in accepting Mr. Wilkes’ appraisal figures rather than those provided by |sMr. Gault. In its thorough and well-written reasons for judgment, the trial court concluded the following regarding these issues:

It is the opinion of this Court that [La. R.S. 38:113 and La. R.S. 33:1236(13)] authorize the Police Jury to enter onto Jones’ land even without his permission in order to do necessary drainage improvement work, including clean-out of natural drains in the area, such as the ditch in question. The Court does not believe that it has been proven by a credible preponderance of the evidence that the Ouachita Parish Police Jury’s employees were responsible for replacement of all of the debris materials shown in Jones’ photographs. It is highly likely that the area in question, having not been effectively fenced off, was used as a dumping ground by trespassers, hunting poachers or other unauthorized persons. The Court specifically finds that the plaintiff has failed to carry its burden of proof of showing that the numerous concrete chunks were placed there by Ouachita Parish Police Jury employees.
Although the evidence is far from conclusive, the Court believes the Police Jury has shown by a preponderance of the evidence that the work done by its employees in cleaning out the drainage ditch abutting Jones’ property resulted in only a small enlargement of the ditch rather than a wholesale widening. As a result, a small portion of Jones’ property was taken by inverse condemnation and the spoil from the clean-out of the ditch area affected an area amounting to approximately .45 acres, which the court values at the amount of $1,474, based upon the appraisal of Mr. Wilkes, which appraisal the Court finds to be much more persuasive than Mr. Gault’s.
Bo Boyte estimated that it would take approximately three 10-hour days for Police Jury employees to remove the spoil material from Jones’ land if Jones would grant them access onto his property. The Court awards the plaintiff an additional $3,000 for the cost of removal of the spoil ... Frank Miletello’s estimate of nearly $46,000 entailed an extensive program of work including filling up the canal ... [which] would doubtless cause a worsening of periodic flood control problems.

This court’s review of the trial court’s finding’s is governed by the manifest error/clearly wrong standard. Stobart v. State of Louisiana, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra; Rosell, supra. Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.

When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra. In summary, where a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding; can virtually never be manifestly erroneous or clearly wrong. Id.

In the case sub judice, the trial court heard and evaluated conflicting testimony and viewed photographs and documentary evidence on the issues raised by Mr. Jones. First, the record contains conflicting testimony regarding the size of the ditch over the years and the extent of the widening of the ditch by the parish workers. We find a reasonable factual basis for the trial court’s finding that the Police Jury’s work resulted in the “taking” |inof only a small portion of Mr. Jones’ property. Specifically, the parish engineer, Mr. Harrison, testified that .45 acres was the portion of Mr. Jones’ property encroached upon by the spoil bank of the drainage ditch. We find no manifest error in the trial court’s accepting this testimony.

Next, we note that the determination of the amount of compensation owed must be made on the basis of the facts of each case and in accord with the uniqueness of the thing taken. Huckabay v. Red River Waterway Commission, 27,-113 (La.App.2d Cir.10/12/95), 663 So.2d 414, writ denied, 95-3007 (La.3/8/96), 669 So.2d 403. The trial court made a credibility determination which weighed in favor of Mr. Wilkes’ appraisal value of the .45 acres over Mr. Gault’s appraisal value. The record contains evidence that Mr. Wilkes is a very experienced appraiser and lives in the immediate area of the property in question. In addition, there is ample evidence in the record to support Mr. Wilkes’ figures. A credibility call such as this can virtually never be clearly wrong, and we will not disturb the trial court’s finding on appeal. See Rosell, supra.

We reach the same conclusion on the issue of the cost of removal of the spoil. The trial court found persuasive the testimony of several witnesses that the area was more likely than not used as a construction and domestic dumping site prior to the Police Jury’s work on the drainage ditch. Accordingly, the trial court found that not all of the debris shown in photographs of Mr. Jones’ property came from the excavation of the drainage ditch, including the large chunks of concrete. Mr. Jones’ testimony to the contrary presented the trial court with two permissible | T1 views of the evidence and its choice between those views cannot be manifestly erroneous. In addition, conflicting testimony was presented regarding the length of time necessary to remove the spoil and debris and the cost thereof. The choice to accept Mr. Boyte’s opinion as to the steps necessary to restore the property was not manifestly erroneous. Mr. Jones’ assignments of error regarding these issues are without merit.

General damages

Mr. Jones argues that the trial court erred in ruling that La. R.S. 38:113 and La. R.S. 33:1236 authorized the Police Jury to enter onto his land to perform drainage work without his permission. As such, according to Mr. Jones, it was error to refuse to award general damages for mental anguish and inconvenience as a result of the Police Jury’s trespass on his property. We disagree.

La. R.S 38:113 provides, in pertinent part:

The various levee and drainage districts shall have control over all public drainage channels or outfall canals within the limits of their districts which are selected by the district, and for a space of one hundred feet on both sides of the banks of such channels or outfall canals, and one hundred feet continuing outward from the mouth of such channels or outfall canals, whether the drainage channels or outfall canals have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels or outfall canals, and may adopt rules and regulations for preserving the efficiency of the drainage channels or outfall canals.

La. R.S. 33:1236(13) provides as follows:

To construct and maintain drainage, drainage ditches, and drainage canals; to open any and all drains which they may deem necessary and to do and perform all work in connection therewith; to cut and open new drains, ditches and canals, to acquire lands for necessary public purposes, including rights of hj>way, canals and ditches by expropriation, purchase, prescription or by donation; to enter into contracts for the construction of such drainage works, and to purchase machinery and have the work performed under their own supervision; to allocate, use and expend the general alimony of the parish for any of the above purposes; to incur debt and issue bonds for drainage and drainage canals in the manner provided for by Subtitle II of Title 39; and use such other funds as may be legally expended for such purposes; to levy taxes for the maintenance of said drainage works in the manner provided for and under the authority of Article X, Section 10 of the Constitution of the State of Louisiana, as amended, and to construct any works and do any and all things necessary to effect proper drainage and carry this Paragraph into effect; to enter into contracts or agreements, under such terms and conditions as may be mutually agreeable with the State of Louisiana, through the Department of Public Works for the securing of State aid for the purposes herein authorized; to cooperate and participate in any State or Federal aid program which may now exist or which may hereafter come into effect under any State or Federal law. Police juries shall open all natural drains which they deem necessary in their respective parishes and shall perform all work connected therewith, which they may deem necessary to make the opening of natural drains effective. They may perform all other acts necessary to fully drain all the land in their respective parishes and maintain such drainage ivhen established. This Paragraph is intended to furnish additional means whereby parishes in the State of Louisiana may accomplish the objects and purposes herein referred to, and shall be liberally interpreted. (Emphasis added).

Mr. Harrison testified that there is a natural drain running through Mr. Jones’ property. The above statutes authorized the Police Jury to “open” the natural drain and to perform the work necessary to accomplish this result. We find, as did the trial court, that Mr. Jones is not entitled to damages for trespass, but he is entitled to damages for inverse condemnation.

Assuming, arguendo, that there was a trespass in this case, we agree with the trial court that the case of Williams v. City of Baton Rouge, 98-1981, 98-2024 (La.4/13/99), 731 So.2d 240, on which Mr. Jones relies, is distinguishable from the case sub judice. Williams involved a finding of bad faith on the part of the Police Jury in entering onto the plaintiffs property despite its knowledge that a judge had refused to issue a court order permitting the drainage work and two legal ad-visors had advised the city and parish that such a court order was needed. Based on the bad faith conduct of the Police Jury, 'the plaintiff in Williams was awarded actual damages for trespass. Unlike Williams, we find no evidence of bad faith trespassing on the part of the Police Jury in this case. Thus, Mr. Jones is limited to damages for inverse condemnation.

We note, however, that recovery of damages for mental anguish arising from property damage is not limited to cases involving a trespass. In Simmons v. Board of Commissioners of Bossier Levee District, 624 So.2d 935 (La.App. 2d Cir. 1993), this court recognized that

[S]uch damages may be awarded to persons whose property was damaged by intentional or illegal acts, or by acts giving rise to strict or absolute liability, or by acts amounting to a continuing nuisance, or where the property owner was present when or shortly after the damage was negligently inflicted and suffered a psychic trauma similar to a physical injury as a direct result of the incident.

We do not find any of the above circumstances to be present in the case sub judi-ce. While there was testimony in the record concerning prior instances where the parish had sent workers onto Mr. Jones’ land and his expression of disapproval of the same, we do not find that any such activity rises to the 114level that would justify an award for mental anguish. We conclude, therefore, that the trial court was proper in refusing to award general damages to Mr. Jones.

Attorney fees and expert appraisal and survey fees

La. R.S. 13:5111(A) provides as follows:

A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding.

The trial court in the case sub judice did not address Mr. Jones’ request for attorney fees and ordered that each party bear the cost of that party’s expert appraisal fees. Since we have found that a taking occurred, however, we agree with Mr. Jones that the above statute requires the trial court to determine and award reasonable attorney fees “for compensation for the taking of property.”

Mr. Jones contracted to pay attorney fees of one-third of his recovery. While we recognize that a court is not bound to award attorney fees in the percentage stipulated in an attorney-client fee contract, we find that an award for attorney fees of one-third of the total award is reasonable in this case. See Huckabay, supra; Simmons, supra; Naquin v. Dept. of Transportation and Development, 604 So.2d 62 (La.App. 1st Cir.1992), writ denied, 608 So.2d 169 (La.1992). We base the attorney fee award on|1Rthe total amount of the judgment, $4,474, representing the amount of $1,474 awarded as compensation for the taking of .45 acres of Mr. Jones’ property and severance damages of $3,000 for the cost to cure or restore the property. Simmons, supra. The judgment, therefore, is hereby amended to add an award of attorney fees in the amount of $1,491.33. Likewise, we find that Mr. Jones is entitled to an award of the appraisal fee of $400 and surveyor’s fee of $1,000 incurred by him. The judgment is hereby amended accordingly.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to include an award to Johnny Jones of $1,491.33 for attorney fees and $1,400, representing his expert appraisal and survey fees. As amended, the judgment of the trial court is affirmed. Costs of appeal shall be borne equally by Johnny Jones and the Ouachita Parish Police Jury.

AMENDED AND, AS AMENDED, AFFIRMED.

      . We agree with Mr. Jones, however, that the above statutes do not authorize the dumping of spoil and debris onto a private landowner's property, damages for which Mr. Jones is compensated by the trial court’s judgment.

      . See State Through the Dept. of Highways v. Bray, 511 So.2d 1300 (La.App. 2d Cir. 1987), writ denied, 515 So.2d 446 (La.1987); State Through DOTD v. Manuel, 93-269 (La.App. 3d Cir.2/9/94), 640 So.2d 299, writ denied, 94-0542 (La.4/29/94), 641 So.2d 203, citing Mathis v. City of DeRidder, 599 So.2d 378 (La.App. 3d Cir.1992)(severance damages may be determined by a “cost to cure” approach meaning that the owner is allowed to recover the cost of correcting or curing the damage done to the remaining property).