author: | ¡WHIPPLE, J.

text:
    CRESSIONNIE, et al., A Joint Venture v. INTREPID, INC.
    No. 2003 CA 1714.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Kenneth F. Sarama, Hammond, for Plaintiff/Appellant, Cressione et al., A Joint Venture.
    John M. Mamoulides, Metairie, for Defendant/Appellee, Intrepid, Inc.
    Before: WHIPPLE, KUHN and MCDONALD, JJ.
   | ¡WHIPPLE, J.

In this suit to quiet tax title, plaintiff appeals the judgment of the trial court granting defendant’s motion for summary judgment and dismissing its suit with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 30, 1998, plaintiff, Cression-nie, et ah, a Joint Venture, (Cressionnie) filed a petition to quiet tax title, naming Intrepid, Inc. (Intrepid) as defendant, and seeking to quiet title on a certain tract of land in St. Tammany Parish that it purchased at tax sale in 1992. Intrepid responded by filing a motion for summary judgment, contending that the Louisiana Tax Commission had cancelled the tax sale upon the determination that there was a dual assessment of taxes and that the taxes on the subject property had in fact been paid prior to the tax sale.

Following a hearing on the motion, the trial court granted summary judgment and dismissed Cressionnie’s suit with prejudice. From this judgment, Cressionnie appeals, contending that: (1) cancellation of the tax sale did not have an effect on the suit to quiet title; (2) the tax sale was valid in 1992 and could not now be declared invalid because of prior payment of taxes; (3) material issues of fact exist that preclude summary judgment; and (4) a 1992 tax sale cannot be cancelled in 1999, after more than the constitutional peremption period of five years.

SUMMARY JUDGMENT

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

[ ¡.Pursuant to LSA-C.C.P. art. 966(C)(2), the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Keller v. Case, 99-0424, p. 3 (La.App. 1st Cir.3/31/00), 757 So.2d 920, 922, writ denied, 2000-1874 (La.9/29/00), 770 So.2d 354. Moreover, as consistently noted in LSA-C.C.P. art. 967, the opposing party cannot rest on the mere allegations or denials of his pleadings, but must present evidence which will establish that material facts are still at issue. Hunter v. Tensas Nursing Home, 32,217, p. 3 (La.App. 2nd Cir.10/27/99), 743 So.2d 839, 841, writ denied, 99-3334 (La.2/4/00), 754 So.2d 228.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Keller, 99-0424 at p. 4, 757 So.2d at 922.

DISCUSSION

Article 7, section 25 of the Louisiana Constitution of 1974 provides that a tax sale purchaser may quiet his tax title as “provided by law.” Louisiana Revised Statute 47:2228 provides the method and procedure for quieting a tax title. Namely, the tax sale purchaser must bring an ordinary [¿proceeding against the former proprietor, and this suit may be brought any time after the three-year redemption period had ended. LSA-R.S. 47:2228; Gunter v. Moore, 2002-1126, p. 4 (La.App. 3rd Cir.2/5/03), 838 So.2d 118, 121. When a tax purchaser sues to quiet a tax title, he puts that title at issue, and the former owner may avail himself of any defense sufficient to defeat the tax title. Scheen v. Hain, 141 La. 606, 611, 75 So. 427, 428 (1915).

The tax deed of the sheriff constitutes prima facie proof of the regularity of the tax adjudication proceedings. The former owner must then carry the burden of proof in establishing any defects alleged by him based on allegations of irregularities in the tax adjudication proceedings. Crain v. C.W. Vanderdoes Estate, 307 So.2d 157, 158 (La.App. 1st Cir.1974). If the defendant offers evidence sufficient to rebut the presumption of regularity, it then becomes the duty of the tax purchaser to go forward and prove that all requisites for a valid tax sale were complied with. Miller v. Cormier, 16 So.2d 82, 85 (La.App. 1st Cir.1943).

In the instant case, Intrepid alleged in support of its motion for summary judgment that the tax sale was invalid because the taxes on the property at issue had been paid prior to the tax sale. In support of its contention, Intrepid produced two affidavits of Debbie Fendlason, deputy clerk for the St. Tammany Parish Tax Assessor’s Office. In her affidavits, Fend-lason related that the property at issue had been subject to a dual assessment and that the taxes for the year 1991 had in fact been paid prior to the tax sale through which Cressionnie acquired tax title to the property. Fendlason further attested that cancellation of the tax sale had been requested by the St. Tammany Parish Tax Assessor’s Office, that the request to cancel the tax sale had been granted by the Louisiana Tax Commission, |Band that the cancellation of the tax sale at issue was recorded in St. Tammany Parish on August 27, 1999. Intrepid also offered a certified copy of the document of the Louisiana Tax Commission canceling the tax sale, which document was dated July 6, 1999. Cressionnie offered no evidence in rebuttal of Intrepid’s motion.

A sale of property for taxes which were previously paid is an absolute nullity. Mansfield Hardwood Lumber Company v. Butler, 234 La. 322, 332, 99 So.2d 129, 133 (1958); Commercial National Bank in Shreveport v. Dance, 661 So.2d 551, 556 (La.App. 2nd Cir.1995). Thus, evidence of prior payment of taxes establishes an irregularity in the tax adjudication proceedings.

Nonetheless, Cressionnie argues that, despite the evidence that the owner paid the taxes prior to the tax sale, the tax sale cannot now be cancelled or declared null because five years, the constitutional per-emption period, have elapsed since the date of the sale. Louisiana Constitution article 7, section 25(C) provides, in pertinent part, as follows:

Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of recordation of the tax deed if no notice is given. (Emphasis added).

| fiUnder LSA-Const. art. 7, sec. 25(C), tax sales are subject to a five-year peremptive period after which certain irregularities of the sale can no longer be asserted. Catania v. Stuart, 512 So.2d 1189, 1191 (La.App. 1st Cir.), writ denied, 508 So.2d 71 (La.1987); Bank One Louisiana, N.A. v. Gray, 34,802, p. 2 (La.App. 2nd Cir.6/20/01), 792 So.2d 29, 30. However, by the very wording of this constitutional provision, the defense of prior payment of the taxes for the year in which the property was adjudicated is not subject to the five-year peremptive period. See Ca-tania, 512 So.2d at 1191. Thus, an absolutely null sale of property for taxes which were previously paid is not protected by constitutional peremption. Mansfield Hardwood Lumber Company, 234 La. at 332, 99 So.2d at 133. Accordingly, even after a tax sale deed has been of record for a period of more than five years, the defense of prior payment may be asserted. See Catania, 512 So.2d at 1191.

In the instant case, Intrepid bore its burden of proving a defense to the tax sale, ie., that the taxes on the subject property had been paid prior to the tax sale. Thus, Intrepid rebutted the presumption of regularity of the tax sale and, in fact, established its absolute nullity. It then became Cressionnie’s burden to go forward and prove that all requisites for a valid tax sale were complied with. See Miller, 16 So.2d at 85. Cressionnie did not offer any evidence to meet its burden.

Considering the foregoing, we find no error in the trial court’s grant of Intrepid’s motion for summary judgment and dismissal of Cressionnie’s suit. Cressionnie’s arguments lack merit.

^CONCLUSION

For the above and foregoing reasons, the March 12, 2003 judgment of the trial court is affirmed. Costs of this appeal are assessed against Cressionnie, et ah, a Joint Venture.

AFFIRMED.

      . Pursuant to LSA-R.S. 47:1991(C), where property erroneously assessed has been sold for taxes and adjudicated to a third party, the Tax Commission auditor shall authorize and direct the recorder of mortgages to cancel the sale.

      . In support of its argument, Cressionnie relies upon article 10, section 11 of the 1921 Louisiana Constitution, rather than relying upon the provisions of the 1974 Constitution. Article 10, section 11 of the 1921 Constitution provided, in pertinent part:
      No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of recordation of the tax deed, if no notice is given.” (Emphasis added).


source: Caselaw Access Project

author: I,KUHN, J.

license: Public Domain

text:
    John RANDAZZO v. STATE of Louisiana, LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER, Health Care Services Division, Earl K. Long Medical Center, Chapman Lee, M.D., Richard Hodges, M.D. and Lane Moore, M.D.
    No. 2003 CA 1470.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    David Abboud Thomas, Baton Rouge, Counsel for Plaintiff/Appellant John Ran-dazzo.
    Carey Rauhman Holliday, Baton Rouge, Counsel for Defendants/Appellees Earl K. Long Medical Center, et al.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   I,KUHN, J.

Claimant, John Randazzo, filed a complaint against defendants, Earl K. Long Medical Center, Richard Hodges, M.D., Lane Moore, M.D., and Chapman Lee, M.D. (jointly referred to as the State defendants), pursuant to Louisiana Revised Statutes 40:1299.39 et seq., governing malpractice liability for state services. Pursuant to his complaint, Randazzo requested that a medical review panel be convened to review and render an opinion on the treatment rendered to him by the State defendants. In response, the State defendants filed a peremptory exception raising the objection of prescription based on the provisions of Louisiana Revised Statutes 9:5628. After trial of the exception, the trial court sustained the exception, effectively dissolving the medical review panel proceeding pursuant to Louisiana Revised Statute 40:1299.39.1 B(2)(b). Randazzo has appealed, and we affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 15, 2002, Randazzo filed a request with the Commissioner of Administration to invoke a medical review panel regarding the alleged malpractice of the State defendants. Randazzo’s letter of complaint alleged that he had emergency surgery in 1985 at Our Lady of the Lake Regional Medical Center. 13Following this surgery, he used a colostomy bag for several years. Other than being required to wear the colostomy bag, Randazzo had no physical problems or symptoms until 1993. He alleges that upon experiencing problems with blood in his urine, he went to Earl K. Long Medical Center during January 1993.

At the trial of the exception, the parties agreed to the following pertinent facts: 1) In February 1993, John Randazzo was operated on at Earl K. Long Hospital to reverse the colostomy; 2) After the surgical procedure, he recovered; 3) Following his recovery and until September 2002, Randazzo had no physical problems or symptoms related to his 1985 injury, his 1985 surgical procedures, or his 1993 surgery; 4) In August and September 2002, Randazzo began to experience a “severe, stabbing like pain in the area of his rear ‘tailbone’ or coccyx” and this was “the first time he had ever experienced such a sharp and severe pain in [that] location”; 5) Ran-dazzo’s pain was so severe that he went to the Earl K. Long Hospital emergency room on September 1, 2002; 6) An x-ray examination revealed that a pair of forceps was inside Randazzo’s body cavity and a surgical procedure was performed in December 2002 to remove the forceps; 7) The forceps removed from Randazzo’s body cavity have the initials “EKL” stamped on them; and 8) Following the 1985 surgical procedures until the 1993 surgical procedure, and then following the 1993 surgical procedure until December 2002, Randazzo had no other surgeries performed involving access to the area of his body where the forceps were found.

Opposing the exception of the State defendants, Randazzo acknowledged that Louisiana Revised Statutes 9:5628 establishes the applicable prescriptive periods governing his claim. He argued, however, that the trial court should |4“carve out a foreign object exception” to the three-year prescriptive period addressed therein. In oral reasons for judgment, the trial court acknowledged that Randazzo had no apparent way of knowing that the surgical forceps had been left inside of him during the 1993 surgery and that Randazzo did not actually discover its presence until several years later. Although the trial court recognized the unfairness of the situation presented, the trial court rejected Randaz-zo’s argument that an exception could be created, citing In re Medical Review Panel for the Claim of Moses, 00-2643 (La.5/25/01), 788 So.2d 1173, and Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986).

On appeal, Randazzo also urges this court to make a “bold move” by finding that there exists a “foreign body” exception to the 3-year tolling requirement of Louisiana Revised Statutes 9:5628. Ran-dazzo’s only assignment of error is that the trial court committed legal error when it incorrectly held that Louisiana Revised Statutes 9:5628 is a peremptive statute rather than a prescriptive statute.

II. ANALYSIS

Generally, the party pleading prescription bears the burden of proving the claim has prescribed. But when a claim has prescribed on its face, the burden shifts to the claimant to demonstrate prescription was suspended or interrupted. See In re Medical Review Panel for the Claim of Moses, 00-2643 at p. 6, 788 So.2d at 1177-1178.

Louisiana Revised Statutes 9:5628 addressing actions for medical malpractice provides, in pertinent part:

A. No action for damages for injury or death against any physician ... [or] hospital ... as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient | scare shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, Or neglect.

Since the alleged act of malpractice attributable to the State defendants occurred in February 1993, Randazzo’s claim against these defendants prescribed on its face during February 1996, and Randazzo has the burden of establishing otherwise. On appeal, Randazzo urges that we conclude that Louisiana Revised Statutes 9:5628 sets forth a three-year prescriptive period that was suspended from the time of the act of malpractice in 1993 until Randazzo’s discovery of the forceps in September 2002.

As urged by Randazzo, the three-year limitation set forth in Louisiana Revised Statutes 9:5628 is prescriptive rather than peremptive. David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 1, n. 1 (La.7/02/03), 849 So.2d 38, 41, n. 1 and Perritt v. Dona, 02-2601, p. 15 (La.7/2/03), 849 So.2d 56, 66, citing Hebert v. Doctors Memorial Hospital, 486 So.2d at 724, reaff'd in State Board of Ethics v. Ourso, 02-1978, pp. 6-7 (La.4/9/03), 842 So.2d 346, 350-351. However, that classification alone does not warrant a ruling in Randaz-zo’s favor because Louisiana Revised Statutes 9:5628 has also been interpreted as imposing a bar to claims that are asserted more than three years after the occurrence of an alleged act, omission or neglect. In the case of In re Medical Review Panel for the Claim of Moses, the Supreme Court rejected a medical malpractice claim that was based on the concept of continuing tort and was brought more than three years after the alleged negligent act had transpired-. The Supreme Court interpreted the “tripartite prescription provision” of Louisiana Revised Statute 9:5628 as a three-year cutoff to such claims, stating:

First, a one-year prescription period (which parallels the general tort period) is the general rule, which applies to all tjpes. of medical malpractice actions. Under this general rule, such actions prescribe one year from the date of the alleged act, omission or neglect. This rule applies when the damages are immediately apparent.
_ Second, in cases involving damages that are not immediately apparent, a discovery exception to the general rule is codified. The discovery exception embodied in Section 5628 is a codification of the fourth category of contra non valen-tón for cases in which the cause of action is not immediately knowable. Under this discovery rule, such actions prescribe one year from the date of discovery of the alleged act, omission or neglect.
Third, an overall limitation is placed on cases otherwise falling within the discovery rule. That overall limitation is the underscored portion of Section 5628, which provides that “in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.” La.Rev.Stat. 9:5628 (emphasis supplied). Translated, this means ... “the contra non valentem type of exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the alleged injury causing act, - omission or neglect.” Boutte v. Jefferson Parish Hospital Service District No. 1, 99-2402 at p. 5 (La.4/11/00), 759 So.2d 45, 49. “Superimposed upon [the discovery rule], however, is an overall limitation upon the discovery rule’s operation to a period of three years from the date of the alleged act, omission or neglect.” Branch v. Willis-Knighton Medical Center, 92-3086 at p. 17 (La.4/28/94), 636 So.2d 211, 216.
Summarizing, Section 5628 is a hybrid statute, providing both a one-year prescriptive period, including an incorporation of the discovery rule, and a three-year repose period; the latter repose rule acts to cut off the discovery rule incorporated into the former prescriptive period. This type of hybrid statute “not only limits the time following discovery during which the plaintiff must institute his action, but also sets an outer or overall limitation, one based on the 17length of the period following the negligent act, beyond which the action is barred, regardless of subsequent discovery.” 1 David W. Louissell & Harold Williams, Medical Malpractice ¶ 13.02[2][b] at 13-40 (1999) (citing Louisiana’s overall limit of three years); Benge v. Davis, 553 A.2d 1180 (Del.1989) (describing similar hybrid statute as codifying the “inherently unknowable” injury rule known as the “time of discovery rule,” and limiting it to a finite three-year period). The repose rule functions as “a counter rule to the accrual-discovery rule by adding an alternative prescriptive period which begins running at the time of the defendant’s act rather than at the time harm was inflicted or discovered.” 1 Dan B. Dobbs, The Law of Torts § 219 at 557 (2001) (citing Branch, supra). Under Section 5628 this means that plaintiff gets the benefit of the discovery rule, but only during the first three years following the alleged act of malpractice.

2000-2643 at pp. 7-10, 788 So.2d at 1178-1180 (footnote omitted).

Additionally, the Moses Court noted that our state legislature has not carved out an exception from the applicable three-year prescriptive period in cases involving the delayed discovery of foreign objects:

By statute, however, the Legislatures in many jurisdictions, including Louisiana, have placed overall limitations for asserting a claim based on such discovery rule. “These statutes of repose run from the specific date of occurrence and serve to limit the concept of continuing injury.” [Susan S. Septimus, The Concept of Continuous Tort as Applied to Medical Malpractice: Sleeping Beauty for Plaintiff, Slumbering Beast for Defendant, 22 Tort & Ins. L.J. 71,] 78 emphasis supplied). Such repose rules serve to set a fixed time period, three years in Louisiana, after which a plaintiffs right to be compensated for such not immediately knowable injuries is cut off. By their nature, statutes of repose “reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists.” W. Page Keeton, et ah, Prosser and Keeton on Torts § 30 at 168 (5th ed.1984). This is especially so with foreign objects. While some state legislatures have carved out an express discovery rule exception for foreign objects, the Louisiana Legislature has not.

In re Medical Review Panel for Claim of Moses, 00-2643 at pp. 14-15, 788 So.2d at 1182.

1 sWhile the Moses court recognized the obvious harshness of this legislation (In re Medical Review Panel for Claim of Moses, 00-2643 at p. 5, 788 So.2d at 1177), the Supreme Court has also referenced the purported reason for its enactment. The Hebert court noted:

This legislative limitation to a maximum of three years on the application of the discovery rule for a tort action involving medical malpractice ... was purportedly a response to the problem of sharp increases in medical malpractice insurance rates.... It was believed that lengthy periods for filing suit brought about by the discovery rule (a mechanism by which the statute of limitations commenced running only upon discovery of an injury rather than upon perpetration of the tort) had contributed to the increasing number of malpractice claims and that, if the number of suits brought were restricted, insurance risks would be reduced and rates would decline.

Hebert v. Doctors Memorial Hospital, 486 So.2d at 722, n. 9.

Addressing the present case, we are constrained by the applicable statutory law, and the jurisprudence interpreting it, to find that Randazzo has failed to establish that prescription was suspended or interrupted as to his claim against the State defendants. Applying Louisiana Revised Statutes 9:5628, Randazzo’s claim prescribed in February 1996, three years after the surgical procedure during which the forceps were allegedly left behind and more than six years before Randazzo ever experienced difficulty arising from the forceps. We acknowledge that the result reached in this case is extremely inequitable to Randazzo, but we are bound to apply the law as written by the legislature. The inequity that arises from application of this statutory provision is a matter that can be addressed only by the legislature. See David v. Our Lady of the Lake Hospital, Inc., 02-2675 at p. 14, 849 So.2d at 48, quoting a portion of Justice Knoll’s dissenting language in Williams v. Jackson Parish Hosp., 00-3170, pp. 2-4 (La.10/16/01), 798 So.2d 921, 935-936, wherein |flshe stated, “La.Rev.Stat. Ann. 9:5628 is a far-reaching statute. However harsh the application of La.Rev.Stat. Ann. 9:5628, mincing words and linguistic gymnastics should not be utilized to disregard the statutory language. Rather, litigants should seek redress from the Legislature to change the law.”

III. CONCLUSION

For these reasons, we are compelled to affirm the trial court’s judgment and to assess appeal costs against claimant-appellant, John Randazzo.

AFFIRMED.

      . Randazzo’s complaint also named Karl A. LeBlanc, M.D., Vincent Russo, M.D., and Our Lady of the Lake Regional Medical Center as defendants and sought review pursuant to Louisiana Revised Statutes 40:1299.41, et seq. These defendants are not involved in this appeal.

      . Such procedure is authorized by Louisiana Revised Statutes 40:1299.39.1 B(2)(a), which provides, "The state or a person, against whom a claim has been filed under the provisions of this Part, may raise any exceptions or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the state medical review panel.” Louisiana Revised Statutes 40:1299.39.1 B(2)(b) further provides, "If the court finds that the claim had prescribed or otherwise was perempted prior to being filed, the panel, if established, shall be dissolved.”

      . In Hebert v. Doctors Memorial Hosp., 486 So.2d 717, the Supreme Court found that a suit timely filed against a purported solidary obligor interrupted the prescriptive period set forth in Louisiana Revised Statutes 9:5628. , Thus, plaintiffs' suit against a defendant hospital that was pending when the petition was amended to name a defendant physician interrupted prescription as to the latter claim. Hebert v. Doctors Memorial Hosp., 486 So.2d at 725.


author: I ¿PETTIGREW, J.

text:
    M.A. ALLEN, INC. v. Clyde J. JOHNSON.
    No. 2003 CA 0671.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Jay J. Harris, Denham Springs, for Plaintiff-Appellee M.A. Allen, Inc.
    A. Shelby Easterly, III, Denham Springs, for Defendant-Appellant Clyde J. Johnson.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   I ¿PETTIGREW, J.

This litigation stems from a dispute between a realtor and a landowner concerning a commercial lease agreement that contained an option to purchase. The landowner has appealed from a judgment in favor of the realtor.

Clyde J. Johnson (“Mr. Johnson”), defendant herein, together with his sons, Kenneth Ray Johnson and Clyde Ricky Johnson (collectively “the Johnsons”), were the owners of a certain parcel of commercial property situated along Florida Boulevard in Denham Springs, Louisiana, that had formerly been occupied by an automobile dealership. Mr. Johnson contacted J.L. Shilling, a real estate agent with plaintiff, M.A. Allen, Inc. (“M.A. Allen”), to assist him in the sale of this property. A Listing and Marketing Agreement was signed by Mr. Johnson and Mr. Shilling and dated December 2, 1998. This agreement was valid through March 2, 1999. Mr. Johnson and Mr. Shilling subsequently executed a Greater Baton Rouge Association of Realtors Multiple Listing Change Form and authorized an extension of this listing through June 29,1999.

During this period, negotiations took place between M.A. Allen, Mr. Johnson, and Kenworth of Jackson, Inc. (“Ken-worth”) that led to an Agreement to Purchase and Sell Commercial Property (“the Agreement”) dated January 29, 1999. The Agreement provided in pertinent part:

In the event of default by either party, the non-defaulting party shall have the right to demand, and sue for specific performance and/or damages and be awarded the deposit. The defaulting party under this agreement shall also be liable for the REALTOR fees and all attorney fees and other costs incurred in the enforcement of any and all rights under this agreement.

Though the Agreement set forth a flat real estate commission of $20,160.00, both sides testified at trial that it was subsequently-agreed that Mr. Johnson would pay a reduced commission of six (6%) percent of the annual rental each year. The Agreement further provided that in the event the option to purchase was exercised, M.A. Allen would receive an eight (8%) percent commission on the sale.

|SA lease between the Johnsons and Kenworth was later executed and became effective on July 1, 1999. The lease agreement between the Johnsons and Ken-worth specified a primary lease term of three years from July 1, 1999 through June 30, 2002, with escalating rents each year and options thereafter to extend the lease term or purchase the property. The lease agreement also provided in pertinent part:

If the Improvements on the demised premises are substantially damaged or destroyed in any fire ... then [the John-sons are] to rebuild the Improvements, and rent will be abated until the building is ready for occupancy .... Insurance proceeds to rebuild or repair such loss shall be payable to [the Johnsons] and shall constitute the maximum amount [the Johnsons are] obligated to expend for re-building.

The lease agreement further required that Kenworth obtain fire insurance coverage for ninety (90%) percent of the replacement value of the building, but not less than $500,000.00. Kenworth was further obligated to have the Johnsons named as additional insureds under the policy. In furtherance of these obligations, Kenworth insured the building for $1,200,000.00.

Upon the signing of the lease in July 1999, Mr. Johnson paid an advance commission to M.A. Allen on the first year’s rental. On the anniversary date of the lease, Mr. Johnson paid the next year’s commission in advance. These rental commission payments totaled $9,360.00.

Three months into the second year of the lease, on September 28, 2000, the leased property was destroyed by fire. Kenworth ceased further rental payments following the destruction of the premises.

The Johnsons did not attempt to repair the building, but sought to recover from Kenworth the fire insurance proceeds of $1,200,000.00. The Johnsons later filed suit for breach of contract against Ken-worth in Livingston Parish seeking to collect the insurance proceeds, plus attorney fees, legal interest, and costs. The Johnsons and Kenworth ^subsequently reached a compromise wherein the John-sons received $1,112,500.00 for the leased premises and burned-out building in its existing state.

On April 25, 2001, M.A. Allen instituted the instant suit against Mr. Johnson claiming breach of contract. M.A. Allen claims that it worked with Mr. Johnson to lease, and later sell the property, and that it is entitled to its agreed upon commission. On October 17, 2001, Mr. Johnson filed a motion for summary judgment claiming that the payment of rent, together with the option to purchase, ceased on September 28, 2000, when the leased premises were totally destroyed. Additionally, Mr. Johnson claimed that no commission was earned on rental payments that were not made, or on an option to purchase that was never exercised. Mr. Johnson further claimed that no commission was owed as a result of its settlement and compromise with Kenworth.

Mr. Johnson and M.A. Allen filed cross motions seeking summary judgment, and following a hearing on December 3, 2001, both motions for summary judgment were denied by the trial court.

This matter was ultimately tried on July 17, 2002, and the parties were thereafter instructed to file Post Trial Memorandums. On January 6, 2003, the trial court issued its Reasons for Judgment setting forth its finding in favor of M.A. Allen and against Mr. Johnson. Mr. Johnson was ordered to pay M.A. Allen $106,800.00 “representing the real estate commission due on the balance of the rental payments together with the sales price for the leased premises.... ” Mr. Johnson was further ordered to pay legal interest from the date of judicial demand, attorney fees of $5,000.00, and all costs. On January 31, 2003, the trial court signed a Judgment consistent with its Reasons for Judgment. From this judgment, Mr. Johnson has appealed.

ASSIGNMENTS OF ERROR

In connection with his appeal in this matter, Mr. Johnson has set forth the following issues for review by this court:

Isl. Whether the trial court erred in finding the existence of a purchase agreement;
2. Whether the trial court erred in awarding commissions on “rental payments” and the “sales price of the leased premises” where a suspensive condition existed that was not met with the result being that no obligation was created;
3. To the extent the contract was ambiguous, if at all, whether the trial court erred in failing to construe such ambiguity against the creator of the contract, M.A. Allen; and
4. Whether the trial court erred in awarding attorney fees for breach of a contract where there was no breach and where breach of a contract was not asserted by M.A. Allen.

STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). When the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and enter judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 n. 2 (La.1989).

DISCUSSION

Existence of a Purchase Agreement

The Initial issue raised by Mr. Johnson is whether the trial court erred in finding the existence of a purchase agreement. Mr. Johnson argues that the option to purchase contemplated not only that rental payments had been made for the preceding three-year lease term, but also that the leased premises would be in existence at the exercise of the option. Mr. Johnson further argues that although the original lease contained an option to purchase that would have entitled M.A. Allen to a commission, said option was never exercised. It is the position of Mr. Johnson that the destruction of the leased premises by fire was an intervening or superceding cause that terminated the lease agreement and the option to purchase. Accordingly, Mr. Johnson contends that no commissions (for ^rental of the property or exercise of the option) were earned by M.A. Allen following the fire on September 28, 2000.

M.A. Allen responds with the argument that Mr. Johnson entered into the Agreement with M.A. Allen that stipulated Mr. Johnson would pay M.A. Allen a commission of eight (8%) percent of the purchase price in the event Kenworth elected to purchase the property. If Mr. Johnson’s intent had been merely to lease the property, he would not have included an option to purchase as part of the lease agreement. Furthermore, M.A. Allen argues, Mr. Johnson would have used the requisite insurance proceeds to rebuild the premises rather than executing a cash sale. M.A. Allen asserts that following the destruction of the premises by fire, both parties received a windfall by agreeing to an early termination of the lease.

In its Reasons For Judgment, the trial court found that “[a] compromise was reached. The compromise transaction between [Mr. Johnson] and Kenworth basically provided that [Mr. Johnson] received $1,112,500.00 (insurance proceeds) and the property was transferred to Kenworth.”

Upon review, we note that the Agreement that is the basis of this litigation addresses the lease and possible sale of the property not merely the improvements situated thereon. In accordance with the terms of the subsequent lease, the rent was abated due to the fire and the destruction of the improvements on the property. Thus, Kenworth had no obligation to tender further rental payments until the Johnsons rebuilt the building with the proceeds of the insurance Kenworth was required to maintain. There being no evidence to indicate that the Johnsons elected to terminate the lease through written notice to Kenworth, the lease presumably remained in effect. Instead of rebuilding the building with the insurance proceeds, it appears that the parties, by mutual agreement, chose to accelerate the time frame within which Kenworth could exercise its option and purchase the property. Consequently, the Johnsons and Kenworth, through execution of an escrow agreement and private act of sale, reached a compromise with respect to the purchase price of the property in its present condition. The compromise agreement flowed from the option to purchase that was contained in the original lease.

|7In its reasons for judgment, the trial court referred to the Agreement between Mr. Johnson and M.A. Allen as a purchase agreement when the Agreement was in actuality an agreement to lease with an option to purchase. This misnomer was nothing more than harmless error in view of the fact that Kenworth ultimately purchased the property. This assignment of error is without merit.

Existence of a Suspensive Condition

The second issue raised by Mr. Johnson is whether the trial court erred in awarding commissions on “rental payments” and the “sales price of the leased premises” if there was a failure to meet a suspensive condition.

With respect to rental commissions, Mr. Johnson states that it is undisputed that he paid an advance commission of six percent on the first year’s lease of $72,000.00. Mr. Johnson further states that his advance payment of six percent on the second year’s lease of $84,000.00 is similarly undisputed. It is further undisputed that the building on the property was totally destroyed by fire three months into the second year of the lease and that further rental payments by Kenworth ceased.

Mr. Johnson claims that the parties agreed to negotiate rental commissions each year; however, due to the fire, the commission on the third year’s rent was not negotiated and no rent was ever paid. Mr. Johnson argues that the trial court erred in ordering him to pay a rental commission on rent that was never paid at a rate that was never negotiated.

M.A. Allen responds with the assertion that pursuant to the terms of the lease, Mr. Johnson was required to rebuild the improvements on the premises in the event of a fire. While M.A. Allen recognizes that rent was to be abated until the building was ready for occupancy, M.A. Allen argues that thereafter, Mr. Johnson would be entitled to rent for the remainder of the lease period, and it would have been entitled to a commission on the rent paid.

We find that this argument by M.A. Allen ignores the fact that if Mr. Johnson had elected to rebuild the premises there was no guarantee that Kenworth would have exercised its option to purchase the property at the conclusion of the lease. Hence, M.A. |sAllen was not assured of receiving a commission on both the rent and the sale of the property.

As we have noted, the Johnsons and Kenworth reached a compromise with respect to the purchase price of the property in its existing condition. Under the terms of the Agreement, at the trial of this matter, both parties testified that the agreed upon commission in the event of a sale was eight (8%) percent. Thus, M.A. Allen is entitled to a sales commission of eight (8%) percent of the sales price of $1,112,500.00, or $89,000.00.

The trial court ordered Mr: Johnson to pay M.A. Allen the “sum of $106,800.00 representing the real estate commission due on the balance of the rental payments together with the sales price for the leased premises.” We find that because rent for the property was abated following the fire, no rent was received, and no commission was- due.

Accordingly, we affirm the trial court’s award of $89,000.00 representing the agreed upon commission of eight (8%) percent of the $1,112,500.00 sales price of the property, but reverse with respect to any amounts that the trial court awarded for additional commissions on rental payments that were never received.

Ambiguity of Contract

The third issue raised by Mr. Johnson asserts that to the extent the contract was ambiguous, the trial court erred in failing to construe such ambiguity against the creator of the contract, M.A. Allen. In support of this proposition, Mr. Johnson urges application of La. Civ.Code article 2056 that provides:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.

In response, M.A. Allen cites La. Civ. Code article 2046 that provides:

|9When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.

M.A. Allen argues that all of the parties involved in the transaction were aware of their contractual obligations concerning the lease and purchase of the property.

We agree that the Agreement between Mr. Johnson and M.A. Allen clearly reflects that in the event the option to purchase was exercised, an eight (8%) percent commission would be paid to M.A. Allen. This assignment is without merit.

Award of Attorney Fees

The final issue raised by Mr. Johnson concerns the trial court’s award of attorney fees for a contract that Mr. Johnson claims was not breached. Mr. Johnson concedes that the Agreement provides that in the event of a default, the defaulting party will be liable for all attorney fees incurred in the enforcement of any and all rights under the agreement. Nevertheless, Mr. Johnson contends that the contract was not breached, and further, that when he and Kenworth subsequently entered into an actual lease, the Agreement became a “dead contract.”

M.A. Allen responds with the assertion that Mr. Johnson defaulted on his obligation to pay a commission for the third year of the lease and on the sale of the property. M.A. Allen argues that the contract provides for attorney fees, therefore, Mr. Johnson is liable in the event he defaults.

We agree. The agreement clearly provides that M.A. Allen is entitled to an eight (8%) percent commission if the property is sold, and that the defaulting party is responsible for attorney fees in the event of a default. We affirm the trial court’s award of $5,000.00 in attorney fees. This assignment of error is without merit.

CONCLUSION

For the above and foregoing reasons, that portion of the trial court’s judgment awarding M.A. Allen the sum of $89,000.00 representing the agreed upon eight (8%) percent commission on the sale of the property for $1,112,500.00 is hereby affirmed. In addition, the trial court’s award of $5,000.00 to M.A. Allen as attorney fees is also affirmed.

[inThe trial court’s judgment is reversed in part with respect to M.A. Allen’s claim for real estate commissions following the fire.

All costs associated with this appeal shall be assessed equally against Mr. Johnson and M.A. Allen.

REVERSED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED.

DOWNING, J., concurs.

      . The parties executed the lease on June 15, 1999.

      . One million, two hundred thousand and no/ 100s ($1,200,000.00) dollars cash was the price for the property that was set forth in the option contained in the lease agreement.

      . Clyde J. Johnson, et al. v. Kenworth of Jackson, Inc., 90,952, Division ''D'', 21st Judicial District Court, Livingston Parish, Louisiana.

      .In its petition, M.A. Allen claimed that it was owed a balance of $10,800.00 on the $20,160.00 rental commission set forth in the Agreement, together with $96,000.00 representing an 8% real estate commission on the original $1,200,000.00 purchase price for the property as set forth in the option.

      . The record reflects that while Mr. Johnson paid a lease commission on the entire second year in advance, the building was destroyed in the third month of the second year. Therefore, Mr. Johnson could have raised the issue of said overpayment as an affirmative defense pursuant to La.Code Civ. P. article 1005.


author: JjgFOIL, J. | FITZSIMMONS, Judge, II GAIDRY, J.,

text:
    Lonnie ALBERT v. ROADWAY EXPRESS and Old Republic Insurance Company.
    No. 2003 CA 1507.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Julius P. Hebert, Jr., Houma, for Plaintiff Appellant Lonnie Albert.
    Roger A. Javier, New Orleans, for Defendants Appellees Roadway Express Old Republic Insurance Co.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   JjgFOIL, J.

In this workers’ compensation case, an employee challenges the granting of summary judgment in favor of his employer. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Lonnie Albert, was employed as a line freight haul truck driver by defendant, Roadway Express, Inc. He suffered a ruptured disc in a fall while working on May 2, 1997. As a result of the injury, plaintiff began receiving workers’ compensation benefits at the maximum rate of $341.00 per week. Plaintiff subsequently underwent surgery on March 27, 1998. On June 15, 1998, plaintiffs treating physician indicated that he had reached maximum medical improvement (MMI), and released him to return to work with work restrictions. Plaintiff could not return to his prior truck driving position and Roadway terminated him.

Thereafter, Roadway provided plaintiff with vocational rehabilitation and identified several jobs for plaintiff that were approved by his treating physician on December 23, 1998. According to Roadway, although it was entitled to reduce and reclassify benefits to supplemental earnings benefits (SEBs) as of that date, it continued to pay temporary total disability (TTD) benefits at the maximum rate through September 4, 2002. Effective September 5, 2002, benefits were reduced to SEBs based on the approval of jobs earning $6.00 per hour. As a result of the overpayment made between December 23, 1998 and September 4,2002, SEBs were paid at a reduced rate until the credit was exhausted.

On April 10, 2002, plaintiff returned to his treating physician, who diagnosed a recurrent herniation and recommended a second surgery. Plaintiff filed a disputed claim for benefits because Roadway did not authorize the second surgery and because it had modified and offset his TTD benefits.

|3In response, Roadway filed a motion for summary judgment. Following a hearing and the admission of documentary evidence, the workers’ compensation judge, Glynn F. Volson, rendered judgment in Roadway’s favor. In written reasons for judgment, the WCJ concluded that plaintiff had been paid TTD benefits until September 4, 2002. Thereafter, Roadway properly modified benefits to SEBs and was entitled to an offset for any overpayment. Finally, the WCJ found that plaintiffs need for a second surgery was not causally related to the original work-related accident. This appeal by plaintiff followed.

DISCUSSION

On appeal, plaintiff challenges various factual findings made by the WCJ, and further asserts that the WCJ committed certain legal errors. Specifically, he argues that: 1) medical causation is a question of fact that is not properly resolved on a motion for summary judgment; 2) Roadway was not entitled to an offset of plaintiffs SEBs under the defense of res judicata; and finally, 3) Roadway erred in its calculation of SEBs. As such, he asserts it was error for the WCJ to grant summary judgment in Roadway’s favor.

Appellate courts review summary judgments in workers’ compensation cases de novo under the same criteria that govern

the trial court’s consideration of whether a summary judgment is appropriate. Davis v. St. Tammany Parish School Board, 00-2860, p. 3 (La.App. 1 Cir. 2/15/02), 808 So.2d 826, 828. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

After a thorough review of the record, we agree with the WCJ’s factual findings and his legal conclusions on the issues presented. We affirm the |4WCJ’s judgment and adopt his written reasons as our own, attaching a copy to this opinion. Costs of this appeal are assessed to plaintiff, Mr. Albert.

AFFIRMED.

FITZSIMMONS, J., agrees and assigns additional reasons.

GAIDRY, J., dissents and assigns reasons.

| FITZSIMMONS, Judge,

agreeing, with reasons.

I respectfully agree that the plaintiff failed to prove causation. His own treating physician could not substantiate the claimed causation. In addition, the plaintiff failed to establish either a miscalculation of benefits or the existence of a prior judgment on the issue of SEBs.

II GAIDRY, J.,

dissents in part and concurs in part.

I dissent in part. My de novo review of the judgment appealed convinces me that the workers’ compensation judge plainly erred in his interpretation of the evidence, particularly the expert testimony of Dr. Connolly, and that the judgment should be reversed insofar as it dismisses Mr. Albert’s claim.

The evidence plainly demonstrates that not only is there is genuine issue of material fact as to a causal connection between Mr. Albert’s work-related injury and the recurrent disc herniation, but that the evidence predominates in favor of such a causal connection. Dr. Connolly testified that Mr. Albert had “a 10% chance of having a recurrence” of disc herniation by virtue of his original injury. It is undisputed that Dr. Connolly in fact diagnosed a “recurrent herniation” at the same level as the original herniation. Thus, the evidence simply shows that Mr. Albert fell within the unfortunate 10% of patients suffering a recurrence. The workers’ compensation judge’s reasons for judgment strongly imply that he equated the 10% chance of recurrence, which did in fact occur, to a “10% possibility” of causal connection between the recommended surgery and the 12original accident. Such is a misinterpretation of the testimony. While Dr. Connolly did testify that the accident was not “directly a cause” of the recurrent herniation and the recommended surgery, he did confirm its “relationship” to them by virtue of the original injury and the increased chance for subsequent herniation at the operated site. Our law does not require a “direct” connection to an on-the-job accident for a symptomatic recurrence of an original job injury to be compensa-ble. The factual scenario of Fontenot v. Trans Gulf, Inc., 95-0342 (La.App. 1st Cir.11/9/95), 664 So.2d 1238, relied upon by the workers’ compensation judge, cannot fairly be compared to the different and more common situation presented here. No separate, intervening cause of Mr. Albert’s continuing disability was proven. Summary judgment in favor of the employer and insurer on this issue was improper.

As to Mr. Albert’s other assignments of error, relating to res judicata and method of calculation of the supplemental earnings benefits, I respectfully concur.

I «ATTACHMENT

WRITTEN REASONS FOR JUDGMENT

STATEMENT OF THE CLAIM

The claimant alleged he is entitled to surgery recommended by Dr. Edward Connolly, neurosurgeon. The defendant, Roadway Express, Inc., filed a Motion for Summary Judgment against the claimant, Lonnie Albert, alleging there are no genuine issues of material fact as a matter of law.

FINDINGS OF FACT

1. On May 2, 1997, the claimant sustained an accident while working for defendant. As a result of the accident the claimant began receiving workers’ compensation benefits at the maximum rate of $341.00 weekly-

2. The claimant began treatment with Dr. Connolly on June 25, 1997 and underwent surgery on March 27, 1998. Dr. Connolly testified in his deposition that the surgery was performed without any complications. The claimant was discharged and sent home the day after surgery. Dr. Connolly also testified in his deposition that when he next examined the claimant on May 4, 1998, the claimant was objectively better than when he first examined him on May 2,1997.

8. The claimant returned to Dr. Connolly on June 15, 1998. During this examination, the claimant advised that he had some pain in his right calf if he stood for too long. Dr. Connolly advised the claimant was at maximum medical improvement, had fully recovered from the surgery and Dr. Connolly imposed work restrictions of lifting not more than forty pounds. On October 12, 1998, the claimant went to Dr. Connolly for his last examination. The claimant complained of recurrent pain in his right calf if he tried to walk a long distance. However, the claimant advised that he was able to cut grass.

4. The defendant initiated vocational rehabilitation and several jobs were identified for the claimant and were approved by Dr. Connolly on December 23, 1998. At the time of his deposition, Dr. Connolly confirmed that the jobs identified were suitable for the claimant as he approved several jobs identified through the labor market surveys. However, the defendant continued to pay the claimant the maximum compensation rate of $341.00 weekly through September 4, 2002. Thereafter, benefits were reduced to supplemental earnings benefits effective September 5, 2002 |4to the present. Additionally, as a result of the overpayment of benefits between December 23, 1998, through September 4, 2002, supplemental earnings benefits is being paid at a reduced rate until the credit is exhausted.

5. On July 22,1999, the claimant treated with Dr. Connolly at which time he complained of occasional back pain if he overworked in his yard. Between July 22, 1999 and April 10, 2002, the claimant did not treat nor did he have any examinations scheduled with Dr. Connolly. Dr. Connolly testified in his deposition that, if there were any complications relative to the surgery or if there were residual problems, Dr. Connolly would have anticipated treatment for the back condition in this period of time.

6. On April 10, 2002, the claimant returned to Dr. Connolly who opined that there was a change, his history had changed, and now he was having trouble standing or walking and having developed low back and right leg pain. Dr. Connolly recommended surgery on May 9, 2002, as a result of a recurrent herniation. Regarding work, Dr. Connolly testified in his deposition that “not related for his problem, at this time, I thought that he shouldn’t be doing work because he had a herniated disc and had to be operated on. But he had other medical problems.”

7. Dr. Connolly testified in his deposition that the claimant recurrent herniation could have been due to getting out of bed, doing yard work, and even driving of which the claimant admitted driving to Texas and cutting his grass on several occasions. Dr. Connolly also testified that he did not know the actual cause of the second herniation. Regarding causation, Dr. Connolly testified further in his deposition that: “I don’t think it’s directly a cause but it is a relationship. Because he had a previous disc herniation, he has a 10% chance of having a recurrence. If you have one disc herniation, you have a higher incident of recurrence than a person who has never had a disc herniation.” Further testimony elicited confirmation of Dr. Connolly that the only way his recommendation for surgery is related to the claimant’s work accident of May 2, 1997 is only the 10% possibility that the claimant will sustain a recurrent herniation.

CONCLUSIONS OF LAW

La C.C.P. Art. 966 has been amended to provide for the just, speedy and inexpensive determination of every action. Instead of the former presumption in favor of a trial on the merits, there now exists a preference in favor of the summary judgment procedure. Hayes v. Autin, 685 So.2d 691 (La.App. 3rd Cir.1996) In achieving these goals, the statute provides that the moving party need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Once a mover shows that the motion should be granted, the burden shifts to the non-moving party who must present evidence that manifests remaining issues of material fact. If the non-moving party fails to provide said evidence, summary judgment will be granted. Johns v. Cloud, 696 So.2d 12, 13 (La.App. 3rd Cir.1997)

Pursuant to LSA-R.S. 23:1221(3), supplemental earnings benefits is equal to 66% % of the difference between the average monthly wages at the time of the injury and the average monthly wages the employee is able to earn is any month thereafter. In this case, it is undisputed that the claimant’s own treating physician, Dr. Connolly, approved several of the jobs identified by the vocational consultant. However, despite Dr. Connolly’s approval of their position on December 23, R1998, the claimant continued to be paid temporary total disability benefits at the maximum compensation rate.

Pursuant to LSA-R.S. 23:1206, “any voluntary payment or unearned waged paid by the employer’s insurer either in money or otherwise to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.” Moreover, where an overpayment of benefits is erroneously made by the employer/insurer, the employer/insurer is entitled to recoup the amount of overpayment even where the erroneous overpayment is discovered years later. Crews v. Alexas Corp., 731 So.2d 338 (La.App. 5th Cir.1999)

The claimant bears the burden of proving that his employment somehow caused or contributed to his disability. Fontenot v. Trans. Gulf, Inc., 664 So.2d 1238, 1244 (La.App. 1st Cir.1995) Moreover, the First Circuit Court of Appeal recognizes that, a subsequent off the job injury is compensa-ble: “Where is it foreseeable and came about as a result of the work injury having predisposed the worker to future injury. However, if an accident caused a disability from which a worker would have recovered except for further disability produced by a separate, intervening cause, there is no liability for ■ compensation beyond the disability produced by the job-related accident.

In Fontenot, the claimant injured his back, right knee, side and sustained a hernia while working for the defendant. Subsequent to the claimant’s work injury, he developed emphysema for which he also claimed entitlement to workers’ compensation benefits. The First Circuit held that the defendants were not required to pay for any disability relating to the increased disability caused by the emphysema. In so ruling, the court recognized that there was no evidence to establish that the emphysema was related to or caused by his work accident. In this regard, the claimant’s treating physician for the claimant’s emphysema provided no opinion as to the cause of the claimant’s emphysema. Further, the defendant’s choice of orthopedic surgeons, Dr. Randall Lea, opined that he could not relate the emphysema to the claimant’s work injury. As a result of the claimant’s failure to produce any evidence to support entitlement to benefits for the subsequent disability the First Circuit denied any benefits resulting from the subsequent disability.

Similarly, there is insufficient evidence that directly links the claimant’s alleged current disability which necessitates surgery to his original work accident which is required in order to obligate the defendants to pay for the recommended surgery and any accompanying disability. Dr. Connolly testified that the claimant’s original surgery was performed without any complications and that the claimant fully recovered from the surgery back in 1998. This is evident from the fact that the claimant had only one visit in 1999 with Dr. Connolly and had no visits, nor was any medication prescribed by Dr. Connolly, between 1999 and April, 2002.

The lack of consistent medical treatment for almost a three year period further enforces the tenuous relationship of the claimant’s current condition to his work accident. Dr. Connolly testified that, if the claimant had any complications relative to the surgery or some other problems or residuals between 1999 and 2002, he would have anticipated a return visit by the claimant for medical treatment. However, there was no such visit. Requiring a defendant to pay for a surgery when there has been a lack of treatment for almost three years could lead to an absurd application | fipf an employer’s liability whereby the employer could be obliged to pay for a surgery ten years after the original surgery even when the employee has not treated during the period of time. The lack of treatment during an extended period of time supports defendant’s position that the current surgical recommendation along with any accompanying disability is not related to his work accident.

Where it is equally plausible that the claimant’s current condition could be the result of varying activities which he himself admits doing, the claimant has not established, more probably than not, that the surgery recommendation along with his accompanying disability is caused by his work accident. Where the evidence is evenly balance, the evidence merely shows some possibility that a work accident produced the disability, or where the evidence leaves the question of causation open to speculation, the claimant fails to carry his burden of proving his case by a preponderance So.2d evidence. Blanson v. GM Inland Fisher Guide, 764 So.2d 307 (La.App. 2nd Cir.2000) The only evidence connecting the surgery recommendation and disability to the claimant’s work accident in 1997 is Dr. Connolly’s opinion that, as a result of a prior herniation from a work accident, the claimant has a 10% chance of sustaining a recurrent herniation. This evidence is insufficient to carry the claimant’s burden. Dr. Connolly’s surgical recommendation along with the claimant’s current disability is caused by his original 1997 work accident especially in light of other activities which could have caused his herniation.

Therefore, this Court finds that the defendant’s Motion for Summary Judgment is hereby granted.

Additionally, this Court finds the workers’ compensation claim of Lonnie Albert is hereby dismissed with prejudice at his costs.


author: 1 .PETTIGREW, J.

text:
    OCWEN FEDERAL BANK, FSB f/k/a Berkeley Federal Bank & Trust FSB v. Nemiah HAWKINS and Bernadine Cage Hawkins.
    No. 2003 CA 1622.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    Michael H. Rubin, Juston M. O’Brien, Baton Rouge, Charles H. Heck, Jr., John C. Morris, III, Monroe, Jeffrey N. Rabb, Baton Rouge, for Plaintiff-Appellant Ocwen Federal Bank, FSB f/k/a Berkeley Federal Bank & Trust FSB.
    Ronald J. Savoie, Baton Rouge, for Defendant-Appellee H. Stern Investments, L.L.C.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   1 .PETTIGREW, J.

Ocwen Federal Bank, FSB F/K/A Berkeley Federal Bank & Trust FSB (“Ocwen”) appeals from a trial court judgment granting a motion to enforce settlement filed by H. Stern Investments, L.L.C. (“H. Stern”). For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On December 20, 2001, Ocwen filed a petition for executory process against Ne-miah Hawkins and Bernadine Cage Hawkins seeking to enforce a note and mortgage previously executed by Mr. and Mrs. Hawkins on certain immovable property in East Baton Rouge Parish. The trial court entered a writ of seizure and sale on January 3, 2002, ordering the sheriff to seize and sell the property in question. While the foreclosure action was pending, but before the sheriffs sale, Mr. and Mrs. Hawkins apparently contacted Ocwen and inquired about what it would take to reinstate the loan. In a February 18, 2002 “LOAN REINSTATEMENT SCHEDULE” addressed to Nemiah Hawkins, Ocwen indicated that the “total amount due on the ... loan as of 02/28/02” was $7,894.89.

Meanwhile, on February 26, 2002, a “SALE SUBJECT TO EXISTING MORTGAGE” was filed in the public records for East Baton Rouge Parish. According to this document, H. Stern purchased the property in question from Mr. and Mrs. Hawkins for the sum of $3,600.00 and assumed the aforementioned mortgage held by Ocwen. The parties agreed to the following terms:

The consideration for this sale is $3,600.00 and other valuable consideration which the SELLER acknowledges receiving $3,600.00 in the form of cash, and other valuable consideration and subject to that certain mortgage obligation assumed and described as follows: PURCHASER assumes and agrees to hold the SELLER, free and harmless from the payment of the balance due on that certain Assignment of Mortgage made and executed by NEMI-AH HAWKINS and BERNAJDINE CAGE HAWKINS to the order of GULF COAST INVESTMENT CORPORATION dated December 9, 1980, in the principal sum of [$]43,250.00, recorded in Book 419, Pages 9409, of the Mortgage Records of East Baton Rouge Parish. The parties hereto acknowledge that the principal balances due by SELLER on the notes secured by the aforedescribed Mortgages as of this date, is the sum of $7,394.89, plus back payments, attorneys’ fees, and sheriffs costs.

Thereafter, on April 15, 2002, on the motion of Ocwen and “upon showing that all costs and commissions due” were “paid in full,” the trial court dismissed, without prejudice, the |3petition for executory process and ordered that the sheriffs seizure and sale of the property in question be canceled.

In February 2003, almost one year after the dismissal of Ocwen’s petition for execu-tory process, H. Stern filed a motion to enforce settlement in the same docket number previously assigned to the execu-tory process proceeding. H. Stern’s motion contained the following pertinent allegations:

1.
This matter arose on a Petition for Executory Process filed by Ocwen ... regarding immovable property that secured certain debt under a mortgage, as is set forth in said Petition for Executo-ry Process.
2.
H. Stern ... is successor in interest to the original named defendants in this matter ... having acquired the mortgaged property pursuant to that certain Sale Subject to Existing Mortgage executed on February 22, 2002 ....
3.
Ocwen’s petition at paragraph 5 in this very lawsuit, made the judicial declaration that the debt principal secured by the mortgage on the above-described property was $40,491.24, plus accrued interest. Ocwen’s judicial assertion in that pleading is hereby incorporated by reference.
4.
During pendancy of the Hawkins Suit ... H. Stern ... entered into negotiations between the parties of the Hawkins Suit. Counsel for Ocwen represented to your plaintiff in writing that the outstanding amount to make the mortgage debt current as of February 18, 2002 amounted to $7,894.89.
5.
Based on Ocwen’s representations, H. Stern ... acquired the above-described property, and paid the $7,394.89 to bring the outstanding mortgage current.
6.
The payment of the $7,394.89 in fact ended the foreclosure in this litigation. The payment of $7,394.89 pursuant to Ocwen’s written representations through counsel arises to the level of transaction or compromise under Civil Code articles 3071 et seq.
7.
Ocwen has since asserted that there was another $28,350.52 that was secured by the property, in addition to the principal of $40,491.24 described above.
Ji8.]
Ocwen is estopped from asserting a mortgage debt principal balance above the $40,491.24 they represented was the outstanding principal secured by said mortgage.
WHEREFORE, H. Stern ... respectfully prays that this Court issue rule to the plaintiff, Ocwen ... to show cause why the settlement of this matter should not be enforced.

In addition to the motion to enforce settlement, H. Stern also filed what is purported to be an answer to Ocwen’s petition for executory process, which petition had previously been dismissed by Ocwen.

Ocwen opposed H. Stern’s motion to enforce settlement and filed an exception raising the objection of no right of action. Ocwen argued that because there was no contract or privity of contract between Ocwen and H. Stern, H. Stern had no standing to bring this claim and the motion should be dismissed.

The matter proceeded to hearing before the trial court on April 21, 2003. After hearing from the parties and considering the evidence in the record, the trial court found in favor of H. Stern, concluding as follows:

The court is going to enforce the settlement, the court being of the opinion that it is a compromise, well favored in the law. The parties entered into it. You stand in the shoes of your ancestor in title, and in reviewing all those documents, the court is of the opinion that you have a right to enforce the settlement.
This matter was taken out of foreclosure by the payment of the seven thousand some hundred dollars and this court will enforce that agreement.

In a judgment signed on April 24, 2003, the court denied Ocwen’s exception raising the objection of no right of action and granted H. Stern’s motion to enforce settlement as follows:

The Court further hereby GRANTS H. Stern Investments’s motion on finding that Ocwen Bank sought additional accrued interest after it settled the foreclosure, and on finding that H. Stern Investments detrimentally and justifiably relied on the pleadings filed in this action before it provided the settlement funds to Ocwen Bank. Accordingly this Court hereby specifically holds that the $28,850.52 in accrued interest that accrued prior to July 1, 2001 was not pled in paragraph 5 of the Ocwen Bank’s Petition for Executory Process and that any debt owing to Ocwen Federal Bank on such prior accrued interest is not secured by the mortgage on the property subject to this litigation.

15It is from this judgment that Ocwen has appealed, assigning the following specifications of error:

1. Did the trial court err in finding that H. Stern Investments, which had assumed a note and mortgage, could “rely” upon pleadings that could be amended at any time?
2. Did the trial court err in limiting the collectibility of an obligation secured by a mortgage when H. Stern Investments expressly became a party to that obligation?
3. Did the trial court err in granting the motion to enforce a purported settlement?

DISCUSSION

The central question to be decided in this appeal is whether the February 18, 2002 “LOAN REINSTATEMENT SCHEDULE” constitutes a transaction or compromise as contemplated by La. Civ. Code art. 3071. Following our extensive review of the record herein, we disagree with the trial court’s finding that there was a settlement or compromise between Ocwen and H. Stern and reverse the April 24, 2003 judgment accordingly.

A transaction or compromise is defined in Article 3071 as follows:

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

While Article 3071 does not provide for the consequences of failure to reduce a compromise agreement to writing, the Louisiana Supreme Court has previously held that a compromise that is not reduced to writing is unenforceable. Further, the requirement that the agreement be reduced to writing necessarily implies that the agreement be evidenced by documentation signed by both parties. Felder v. Georgia Pac. Corp., 405 So.2d 521, 523 (La.1981); Brasseaux v. Allstate Ins. Co., 97-0526, p. 5 (La.App. 1 Cir. 4/8/98), 710 So.2d 826, 829.

[fiOn appeal, Ocwen assigns error to “[H.] Stern’s claim, and the trial court’s conclusion, that an agreement with Mr. and Mrs. Hawkins, allowing them to bring their past-due arrearage current and halt the foreclosure suit is some type of ‘settlement’ of the remaining amounts owing on the loan secured by the mortgage.” With regard to the purported settlement, Ocwen contends the February 18, 2002 letter it sent to Mr. and Mrs. Hawkins “cannot in any sense of the word be a ‘settlement’ or ‘transaction and compromise’ designed to limit Ocwen Federal’s right to collect the full amount of the loan as such payments become due.” Moreover, Ocwen notes that H. Stern “introduced no evidence of either a writing by Hawkins or a transcript of an oral agreement in court.”

We agree with Ocwen’s arguments concerning this issue. The February 18, 2002 “LOAN REINSTATEMENT SCHEDULE” does not constitute a transaction or compromise pursuant to Article 8071. It merely serves as a notice to Mr. and Mrs. Hawkins that their account is past due and that as of February 28, 2002, the amount necessary to reinstate the loan is $7,394.89. Under the jurisprudence and applicable law cited above, this February 18, 2002 letter cannot be considered an agreement of the parties reduced to writing. Therefore, we conclude the trial court erred in holding that there existed a valid and enforceable compromise agreement between Ocwen and H. Stern, and reverse the April 24, 2003 judgment accordingly.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court granting H. Stern’s motion to enforce settlement is reversed. All costs associated with this appeal are assessed against H. Stern.

REVERSED.

      . According to the record, on March 6, 2002, counsel for Ocwen wrote to Mr. and Mrs. Hawkins, advising them that they were in default under the terms and conditions of the note and mortgage and that as of March 5, 2002, $28,350.52 was the amount necessary to "cure the current delinquency” and prevent foreclosure proceedings.


author: laMCCLENDON, J.

text:
    Sundra LIZANA v. GULF COAST PAIN INSTITUTE.
    No. 2003 CA 1672.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      D. Bruce Cameron, Slidell, Counsel for Plaintiff/Appellee Sundra Lizana.
    Frank E. Brown, III, Baton Rouge, Counsel for Defendants/Appellants Gulf Coast Pain Institute and Louisiana Workers’ Compensation Corporation.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   laMCCLENDON, J.

In this workers’ compensation case, the sole issue raised on appeal is whether the employee’s medical condition is the consequence of a work-related accident. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation in favor of the employee.

On August 1, 2001, while in the course and scope of her employment with Gulf Coast Pain Institute, Sundra Lizana suffered a work-related accident. As she carried medical charts, Ms. Lizana tripped on a medical crate and fell, striking her right knee and upper left body. The following day, Dr. Lew, the owner of Gulf Coast Pain Institute, examined Ms. Lizana’s knee and neck. He prescribed medication and advised Ms. Lizana to see an orthopedist if the knee did not get better in a few days. He also opined that her neck pain was secondary to the knee injury because she was favoring the knee. The knee did not resolve satisfactorily. On August 6, 2001, Dr. Brian Fong, an orthopedist, examined Ms. Lizana’s right knee. Dr. Fong diagnosed Ms. Lizana with a right knee contusion, opined that it would take three to four months to resolve, and released her to work to full duty that day. Ms. Lizana returned to work.

At trial, Ms. Lizana testified that, although she occasionally had muscle spasms in her neck and back prior to the accident, the pain after August 2001 was a “completely different pain.” She testified that she initially treated her injuries with anti-flammatory medications, expecting her injuries to resolve once the knee healed. However, the pain in her neck and back worsened continuously after the accident. By January of 2002, she was experiencing “excruciating pain in [her] back down [her] right leg to the toes.”

|3Pue to the pain in her neck and back, Ms. Lizana saw Dr. Kathleen McDonald, her primary care physician, on January 28, 2002. Dr. McDonald diagnosed Ms. Liza-na with fibromyalgia, concluded that she could not return to work, and referred her to Dr. Jeffery Oppenheimer, a neurosurgeon. Dr. Oppenheimer confirmed the diagnosis of fibromyalgia and agreed that Ms. Lizana could not work.

Subsequently, Dr. Louis Provenza, a neurosurgeon, treated Ms. Lizana for complaints of neck and lower back pain, with pain radiating from her hip to her toes on the right side. Dr. Provenza confirmed Ms. Lizana’s diagnosis of fibromyalgia and determined that she was unfit for work.

With the exception of the medical expenses attributable to Dr. Fong, Gulf Coast Pain Institute and its workers’ compensation insurer, Louisiana Workers’ Compensation Corporation, paid none of Ms. Lizana’s medical expenses. Gulf Coast Pain Institute and Louisiana Workers’ Compensation Corporation also refused to pay Ms. Lizana any workers’ compensation indemnity benefits.

On July 25, 2002, Ms. Lizana filed a disputed claim for compensation with the Office of Workers’ Compensation, seeking workers’ compensation indemnity benefits, payment of medical expenses, medical treatment, and statutory penalties and attorney’s fees. Therein, she named as defendants Gulf Coast Pain Institute and Louisiana Workers’ Compensation Corporation.

After hearing the matter, the workers’ compensation judge found that Ms. Liza-na’s neck and back pain and the fibromyal-gia resulted from her accident of August 1, 2001. The workers’ compensation judge rendered judgment in favor of Ms. Lizana, awarding her medical expenses and temporary, total disability benefits beginning January 28, 2002. The |4workers’ compensation judge rejected Ms. Lizana’s claim for penalties and attorney’s fees. Gulf Coast Pain Institute and Louisiana Workers’ Compensation Corporation appeal.

Herein, the occurrence of a work-related accident is undisputed. It is undisputed that Ms. Lizana advised her employer that she was experiencing back pain as well as knee pain after her accident of August 1, 2001. At trial, the defendants stipulated that the knee injury was com-pensable. That Ms. Lizana suffers from fibromyalgia and is disabled are also undisputed. The evidence reflects that Drs. McDonald and Provenza opined that Ms. Lizana’s fibromyalgia is the result of her work-related accident. On the other hand, Dr. Oppenheimer declined to state his opinion in regard to the cause of the fibro-myalgia, stating that he could not state one way or the other. On appeal, the appellants assert solely that the workers’ compensation judge erred in concluding that the claimant’s neck and back injuries and fibromyalgia are a result of the work-related accident that occurred on August 1, 2001, relying on Dr. Oppenheimer’s statement.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Harris v. Coushatta Indus. Sand, Inc., 31,977, p. 6 (La.App. 2 Cir. 6/16/99), 741 So.2d 143, 147. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or | ^clearly wrong. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Thus, “if the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

In this case, we conclude that two permissible views of the evidence were presented. Ms. Lizana presented the opinions of two physicians who stated that her condition was caused by her work-related accident. In addition, Ms. Lizana’s testimony concerning her experiences with neck and back pain during the interval between the time of the accident on August 1, 2001, and her initial diagnosis with fibromyalgia early the following year is consistent with the nature of the disease as reflected in the record. Having been presented with two permissible views of the evidence, we cannot find that the judgment of the Office of Workers’ Compensation is manifestly erroneous.

Accordingly, we affirm the judgment on appeal. Costs are assessed against Gulf Coast Pain Institute and Louisiana Workers’ Compensation Corporation.

AFFIRMED.


author: J^FITZSIMMONS, J.

text:
    Gordean Adella WINGFIELD, Individually and as Guardian and Conservator of the Estate of Her Major Son, Kenny Clark v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al. Jackie Murray, Sharon Ray Rovner, Ivy J. Wills as Legal Guardian and Attorney for Joseph Edward Wingfield and Joseph Edward Wingfield v. State of Louisiana, through the Department of Transportation and Development, et al.
    Nos. 2003 CA 1740, 2003 CA 1741.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Charles R. Moore, J.E. Cullens, Jr., Baton Rouge, Counsel for Plaintiffs-Appel-lees Gordean Adella Wingfield, et al.

      Richard G. Creed, Jr., Robert E. Klein-peter, Baton Rouge, Counsel for Plaintiffs Jackie Murray, et al.
    Stacey Moak, Douglas M. Chapoton, Baton Rouge, Counsel for Defendant-Appellant State of Louisiana Through the Department of Transportation and Development.
    Isaac H. Ryan, Robert E. Kerrigan, David F. Bienvenu, Nathan L. Schrantz, New Orleans, Counsel for Defendant National Union Fire Insurance Company of Pittsburgh, PA.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

On August 6, 1994, a tragic and fatal accident occurred west-bound on the 1-10 approach to the Mississippi River Bridge in Baton Rouge, Louisiana. An eighteen-wheeler, driven by Kenneth Clark, hit the guard rail, jackknifed, and rolled over the railing onto a highway below the westbound interstate highway. The only passenger in the truck, Jack Ray Wingfield, was killed. The driver, Mr. Clark, was injured and entered a permanent unresponsive state, which required constant care. Various family members of the driver and passenger filed suit. See Wingfield v. State, Department of Transportation and Development, 01-2668, 01-2669 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, writs denied, 03-0313 (La.5/30/03), 845 So.2d 1059; 03-0339, 03-0349 (La.5/30/03), 845 So.2d 1060, cert. denied, Louisiana ex rel. Department of Transportation and Development, - U.S. -, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003). Included among the defendants were the State of Louisiana, Department of Transportation and Development (DOTD), and its insurer, National Union Fire Insurance Company.

In response to plaintiffs’ allegations of a defective roadway, DOTD asserted the defense that Mr. Clark was driving while impaired by the use of marijuana. On that issue, plaintiffs filed a motion for a Dau-bert hearing and for summary judgment. Wingfield, 01-2668, 01-2669 at p. 7, 835 So.2d at 795; see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Foret, 628 So.2d 1116 (La.1993). After the hearing, the trial court found that the evidence was insufficient to support a conclusion of impairment and excluded the impairment issue evidence. The trial court also granted plaintiffs’ motion for summary judgment and dismissed the defense of impairment. The evidence, however, was proffered. Wingfield, 01-2668, 01-2669 at pp. 7-8, 835 So.2d at 795.

14After the trial on the merits, the jury found DOTD, its insurer, and Mr. Clark liable for the accident, and awarded damages in the millions. In the final judgment, the trial judge ordered DOTD, and its insurer, to pay 66% of all taxable costs and legal interest. Wingfield, 01-2668, 01-2669 at p. 4, 835 So.2d at 793.

Plaintiffs filed post-trial motions, including a rule to tax costs, which were heard on July 23, 2001 and taken under advisement. Wingfield, 01-2668, 01-2669 at p. 4, 835 So.2d at 793. The costs at issue were expert and related fees arising from the Daubert hearing and the trial on the merits.

On the appeal of the merits, the great majority of the evidence presented at the Daubert hearing, but excluded from the trial, was found by this court to be admissible. However, after a review of the evidence, this court held that impairment had not been sufficiently proved. Wingfield, 01-2668, 01-2669 at p. 15, 835 So.2d at 800. Although adjustments were made to the damages, the remainder of the judgment was affirmed. See Wingfield, 01-2668, 01-2669 at p. 38, 835 So.2d at 812-13.

On December 30, 2002, after the appeal on the merits had been decided, the trial court issued written reasons for its decision on the rule to tax costs. On January 22, 2003, judgment was rendered and signed. The judgment awarded $23,867.43 for Daubert hearing costs, and for the trial, $61,931.61. DOTD and its insurer were ordered to pay $40,874.86, or 66% of the costs awarded. DOTD appealed. We affirm in part, reverse in part, render and remand.

On appeal, DOTD challenges the award of certain expert fees and related costs. For costs from the Daubert hearing, DOTD argues that the trial court erred in awarding fees and costs to the parties who lost on appeal. Secondly, DOTD asserts that the court abused its discretion by awarding, without sufficient evidence, particular fees and costs arising from the trial on the merits.

INAPPLICABLE LEGAL PRECEPTS

Louisiana C.C.P. art. 1920 states that “[ujnless the judgment provides otherwise, costs shall be paid by the party cast and may be taxed by a rule to show cause.” However, “[ejxcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La. C.C.P. art. 1920. Louisiana R.S. 13:4533 provides: “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” (Emphasis added.) Although La. R.S. 13:4533 delineates certain “costs,” it does not discuss who is entitled to costs or under what circumstances. Boleware v. City of Bogalusa, 01-1014, p. 4 (La.App. 1 Cir. 12/20/02), 837 So.2d 71, 73; Bourgeois v. Heritage Manor of Houma, 96-0135, p. 4 (La.App. 1 Cir. 2/14/97), 691 So.2d 703, 706. For suits involving the state, La. R.S. 13:5112 allows a trial or appellate court, “after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure” to “grant in favor of the successful party and against the state, ... an award of such successful party’s court costs under R.S. 13:4533 and other applicable law as the court deems proper .... ” (Emphasis added.) Louisiana R.S. 13:3666 sets out the general rule regarding compensation of expert witnesses, costs of medical reports, and copies of hospital records, in pertinent part, as follows:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required. (Emphasis added.)
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the | ¿presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall forra a part of the final judgment in the cause.

Experts are only entitled to reasonable fees and related costs. Neither the agreement between the hiring party and the expert, nor the bill submitted to the court, binds the court’s decision. Wampold v. Fisher, 01-0808, p. 3 (La.App. 1 Cir. 6/26/02), 837 So.2d 638, 640. Factors to be considered by the trial court in setting expert fees and related costs include: the time spent testifying at trial, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of work performed, and the knowledge, attainments, and skill of the expert. Additional considerations include the helpfulness of the expert’s testimony to the court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. Samuel v. Baton Rouge General Medical Center, 99-1148, p. 8 (La.App. 1 Cir 10/2/00), 798 So.2d 126, 132. While an expert may receive fees for preparatory work, this is limited to the work done in preparation for trial, not consultations that only assist the attorney in his preparation for trial. Smith v. Roussel, 00-1672, p. 6 (La.App. 1 Cir. 6/22/01), 808 So.2d 726, 731. Experts who testify by deposition may also have their fees taxed as costs, provided that their depositions have been introduced as evidence. Smith, 00-1672 at p. 6, 808 So.2d at 730-31.

In setting expert fees and related costs for in-court time, such as testimony and depositions submitted at trial, the trial court may rely upon its own in-court observations and experiences, without further proof. Wampold, 01-0808 at pp. 2-3, 837 So.2d at 640. However, for work done or expenses incurred outside the courtroom, such as time spent gathering facts in preparation for trial testimony and |7time spent away from regular duties, the plaintiff in rule must submit competent and admissible evidence. Unless the parties stipulate to the specifics and costs of the out-of-court work, the expert must testify at the trial, or a subsequent hearing on the rule to tax costs, and be subject to cross-examination. Wampold, 01-0808 at p. 3, 837 So.2d at 640; see Allen v. Roadway Express, Inc., 31,628, pp. 3-8 (La.App. 2 Cir. 2/24/99), 728 So.2d 1015, 1017-19. Thus, pursuant to Wampold v. Fisher, the mere assertions of an attorney and the expert via the submitted bill, even in conjunction with an expert’s affidavit attesting to the correctness and truth of the billing statement, are not sufficient. Id. This is especially true for complex, protracted litigation that has produced high expert fees and related costs.

The trial judge has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Boleware, 01-1014, p. 3, 837 So.2d at 73; Bourgeois, 96-0135, p. 4, 691 So.2d at 706.

DAUBERT FEES AND COSTS

We disagree with DOTD’s assertion that the losing party was awarded costs, and find no error in the trial court’s award of Daubert fees and related costs to plaintiffs. Although this court held that the trial court erred in excluding from trial the evidence submitted on the issue of impairment, we found that the evidence was not sufficient to prove that Mr. Clark was impaired by the use of marijuana. Thus, on the overall issue of impairment, the plaintiffs prevailed.

TRIAL AND PREPARATORY FEES AND COSTS

This case was a complex one requiring multiple experts from many areas of expertise. All of the experts specifically objected to by DOTD in this appeal (Mr. James Lock, Mr. Maurice Bronstad, Mr. John Mounce, Dr. John Clifford, Dr. Alan Weintraub, Mr. Robert Voogt, Mr. High Long, and Ms. Mary Anne MacLellan) submitted either unitemized bills or bills covering more than just in-court trial or deposition testimony. While we note that the trial court’s award of [¿fees did not mirror these experts’ bills, the court’s award did not differentiate between testimony offered at trial and any other claim. However, DOTD does not dispute the evidence in the record concerning the time spent at trial and the billed hourly rate. Although the original trial judge who observed the experts testifying at trial, and heard the rule to tax costs, would have been better able to set the in-court fees based on his first hand observations, he no longer sits on the district court bench. Therefore, in the interests of justice and judicial economy, this court has thoroughly reviewed the record and the requisite factors inherent in expert trial testimony. See La. C.C.P. art. 2164; Samuel, 99-1148 at p. 8, 798 So.2d at 132. Based on our review and analysis, we find the following to be reasonable fees for the time spent at trial: $1500.00 for Mr. Lock, $1375.00 for Mr. Bronstad, $500.00 for Mr. Mounce, $675.00 for Mr. Voogt, $262.50 for Mr. Long, $200.00 for Dr. Clifford, and $1250.00 for Dr. Weintraub. For Ms. MacLellan’s testimony, the record does not provide sufficient evidence of the time spent in deposition or adequately distinguish between the fee and related cost of the videotaped deposition.

As to the fees and costs claimed for work done in preparation and outside of the courtroom, “for example, time spent gathering facts necessary for [the expert’s] testimony, time spent away from regular duties while waiting to testify, or if the party seeks a fee outside of that normally charged by similar experts in that field,” the party must present the requisite proof. Wampold, 01-0808 at p. 3, 837 So.2d at 640. In this case, with no stipulation by the parties, the plaintiffs in rule had to present particular evidence from the experts in a manner subject to cross-examination. Thus, a bill, even one coupled with an attestation of the truth and correctness, does not meet the requirements of Wam-pold. Without more direct evidence on the value of the out-of-court claims, and their relevance to the expert’s opinion, particularly those claims for the unusual charges for assistants and for lost |ntime arising from travel, the trial court had no basis to determine the reasonableness of the those claims.

For these reasons, we find that the trial court’s award of fees and related costs arising from the trial work must be reversed. For the disputed in-court work, we award $5762.50, and order defendants, DOTD and its insurer, to pay 66% of that award, or $3803.25. As to the other claims disputed on appeal, but not resolved by this opinion, we remand for stipulations, or an evidentiary hearing, and further proceedings consistent with this opinion. The award of the Daubert fees and related costs, and all other aspects of the judgment, are affirmed. The costs of this appeal, $3,441.30, are assessed one-half to plaintiffs and one-half to the DOTD.

AFFIRMED IN PART, REVERSED IN PART, RENDERED, AND REMANDED.

GAIDRY, J., concurs without reasons.

      . Although we need not decide the issue at this time, the jurisprudence suggests that this court has considered the cost of time lost from the expert's regular work caused by the need to travel to the courthouse. Riche v. City of Baton Rouge, 541 So.2d 905, 908 (La.App. 1 Cir.1988); Stafford v. Unsell, 492 So.2d 94, 99 (La.App. 1 Cir.1986). However, we note that (1) the choice of an expert, including the distance the expert must travel to testify, is within the control of the hiring party, and (2) an expert’s fee and related costs are always subject to a reasonableness standard. Whether a deposition would have sufficed should also be considered. Few cases will support an award specifically for lost work time arising from the need to travel. Wampold, 01-0808 at p. 1, 837 So.2d at 641 (Fitzsimmons, J. concurring).