source: Caselaw Access Project

author: UKUHN, J.

license: Public Domain

text:
    Shirley Mae CARTER v. WILLIAMSON EYE CENTER.
    No. 2001 CA 2016.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 27, 2002.
    Cazeline H. Dixon, Baton Rouge, Counsel for Claimant/Appellant Shirley Mae Carter.
    Lawrence B. Frieman, Metairie, Counsel for Defendant/Appellee Williamson Eye Center.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   UKUHN, J.

Because we have no jurisdiction to review the rulings of the Office of Workers’ Compensation (“OWC”), we remand this matter for further proceedings consistent with this opinion.

Claimant, Shirley Mae Carter, cut her finger while performing custodial duties for her employer, Williamson Eye Center. She ultimately filed a claim for workers’ compensation disability benefits urging that the trauma associated with this accident caused her to develop fibromyalgia, which has prevented her from performing her custodial duties. The OWC issued a January 29, 2001 ruling that addressed the primary issues raised by the parties and concluded that Carter failed to bear her burden of proof on the issues of disability and causation. This ruling, however, did not specifically order judgment in favor of or against anyone and did not specify the relief granted. Because the ruling had no such decretal language, we found it to be fatally defective. La. C.C.P. art. 1841; La. C.C.P. art.1918 and Official Revision Comment (a); La. C.C.P. Form 1271; Also see Rogers v. Custom Built Garage, 01-0356 (La.App. 1st Cir.3/28/02), 814 So.2d 693, 696 and Scott v. State, 525 So.2d 689, 690-691 (La.App. 1st Cir.1988), writ denied, 558 So.2d 1128 (La.1990). Accordingly, this court issued an order dated August 12, 2002, that ordered: 1) the parties to present a reformed judgment containing appropriate decretal language to the OWC; and 2) Workers’ Compensation Judge Anthony P. Palermo to sign the judgment expeditiously and effect supplementation of the appellate record.

Workers’ Compensation Judge Palermo signed a revised ruling on August 23, 2002. This revised ruling addressed the pertinent issues raised on appeal and specified which party prevailed on each issue but did not specifically identify: 1) the party in whose favor the ruling was ordered; 2) the party against whom the ruling was ordered; or 3) the relief that was granted or denied. In the absence of these specific provisions, we found that the ruling remained fatally defective. Pursuant to an order dated September 5, 2002, we again ordered the parties to [ ¡¡present a reformed judgment, and we ordered that this be done within five days. We further ordered Workers’ Compensation Judge Palermo to sign the reformed judgment and have the OWC supplement the appellate record within five days of its receipt.

On October 30, 2002, this court received a ruling dated September 12, 2002, that was apparently signed by someone other than Workers’ Compensation Judge Palermo. Although counsel for both parties approved the form of the judgment, the text of the September 12, 2002 ruling is the same as the text of the August 23, 2002 ruling and, thus, it also does not comply with our September 5, 2002 order. Thus, we must dispose of this matter in its current posture.

This court’s appellate jurisdiction extends only to “final judgments.” La. C.C.P. art.2083; Van ex rel. White v. Davis, 2000-0206 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 483. Because the January 29, 2001, August 23, 2002 and September 5, 2002 rulings are defective in that they do not contain decretal language, we cannot consider them as final judgments for the purpose of an immediate appeal. La. C.C.P. art. 1915 B. Since this court lacks jurisdiction to review this matter, we remand it to the OWC for further proceedings. Assessment of appeal costs are to await a final determination of this suit.

REMANDED.

      . We pretermit addressing whether this ruling is otherwise invalid because it was not signed by Workers' Compensation Judge Palermo.


author: | t STEWART, J.

text:
    Andre LEWIS, Plaintiff-Appellee, v. CITY OF SHREVEPORT, et al., Defendants-Appellants.
    No. 36,659-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Casten & Pearce, by Alan T. Seabaugh Jason M. Nash, Amy M. Perkins, Shreveport, Counsel for Appellant City of Shreveport.
    Gregory L. Kelley, Shreveport, Counsel for Appellee Andre Lewis.
    Before STEWART, GASKINS and CARAWAY, JJ.
   | t STEWART, J.

The City of Shreveport (“City”) appeals the judgment of the trial court finding it liable for injuries sustained by Andre Lewis (“Andre”) after he fell in a sink hole that developed in the ground under one of its water meters and awarding damages in the amount of $204,472.34. For the reasons states herein, we affirm the trial court.

FACTS

On July 28, 1999, Andre Lewis was attempting to keep his child from entering the roadway in front of Ethel Lewis’ house located at 4310 Waters Place in Shreveport. Ethel is Andre’s mother. As he crossed between the sidewalk and the street, Andre 'fell into a large, three feet deep sink hole directly below the water meter. The water meter itself was sunk down approximately one foot below ground level.

Apparently, the City had received numerous complaints concerning this hole in the past, but had taken no action to repair the hole. Following this incident, the City immediately sent a crew to repair the hole. It is undisputed that the hole was located on a public right of way, directly below the City’s water meter. The City stipulated that the area where the accident occurred was under its care, custody, and control.

As a result of his fall, Andre was seriously injured, suffering a herniated lumbar disc at the L3-4 level and a severe knee injury. He underwent reconstructive knee surgery at LSUMC, and future' surgery was recommended by his treating physician.

Following a bench trial, the City was found to be strictly liable for Andre’s injuries under La. C.C. art. 2317. This appeal followed.

| {.DISCUSSION

Strict Liability/La. C.C. art. 2817

The City contends that the trial court erred in finding that the portion of the right-of-way where the hole developed was in its care, custody, and control. Strict liability is governed under La. C.C. art. 2317 which reads in pertinent part as follows:

Art. 2317. Acts of others and of things in custody.
We are responsible, not only for the damage occasioned by our own act, but for that which is caused'by the act of persons for whom we are answerable, or of the things which we have in our custody-

The City contends that this area was not in its custody, but rather that the responsibility for the care of the land lies with the owner of the adjacent property, Ethel Lewis, based on the Shreveport Code of Ordinances, Sec. 78-136 which states, in pertinent part:

(a) All record owners of property abutting on the streets of the City shall keep the sidewalks, curbs, and banquettes adjoining their respective property in good and safe condition, in accordance with standards set by the City Engineer.

Although the City acknowledges that courts have restricted the interpretation of this ordinance, it argues that the ordinance can be construed to convey tort liability to the property owner where the “property owner actually created or caused the defect involved.” See Snow v. City of Shreveport, 287 So.2d 647 (La.App. 2d Cir.1973), writ denied, 290 So.2d 332 and 290 So.2d 335 (La.1974). Specifically, the City contends that the hole in the surface was caused by a defect in the four-inch residential | ¡¡service line, approximately one foot from the City’s eight inch main, which was owned and controlled by the owner of the adjacent property.

The City contends that the liability for damages caused by a residential sewer line is governed by Shreveport Code of Ordinances, Sec. 94-117 which places the responsibility for maintaining the residential service line on the property owner, and Shreveport Code of Ordinances, Sec. 94-118 which also places the responsibility for repairing defective sewer lines on the property owner. Thus, since the defect was in the residential service line, the owner of the adjacent property, Ethel Lewis, is solely responsible for any defect that would arise. In this case, it is the sink hole through which Andre Lewis fell.

However, we find the City’s reliance on these ordinances to be misplaced. Our review of the record leads us to the conclusion that the City’s argument is contrary to the law and the evidence presented in this case. The lynchpin of this analysis lies in the fact that the City stipulated that the area where the accident occurred was a public right of way under its care, custody, and control.

It is well established that a stipulation has the effect of judicial admission or confession which binds all parties and the court. La. C.C. art. 1853; State Farm Mut. Auto. Ins. Co. v. Little, 34,760 (La.App.2d Cir.6/20/01), 794 So.2d 927. Consequently, the City is bound by its stipulation.

Moreover, the record is replete with facts that the area was in the custody or care of the City, and that the City wished to have exclusive control or responsibility for any repairs to the area. The sink hole | ¿swallowed up the water meter. It is without dispute that the water meter is clearly owned by the City, and the City is solely responsible for its maintenance. Additionally, Lonnie Fouts, Assistant Superintendent of Water and Sewage, testified that the City of Shreveport is “responsible for the main to the meter and the coupling that goes out of your house.” Fouts also testified that it is the sole responsibility of the Department of Water and Sewage to determine the cause of sink holes in the public right of way. Fouts testified as follows:

Q. (By Mr. Kelley) When a cave in occurs within the City’s right of way-the public’s right of way, it’s the City’s normal practice to go out there an determine what’s causing the cave in; is that correct?
A. Yes, sir.
Q. So when a large hole exists and it’s a sink hole the City would typically go out into that area between the sidewalk and the street in the right of way [and] dig that area up to see what is causing the sink hole?
A. That is a general statement, yes sir. That’s what we would do.

Moreover, when asked by the trial court, Fouts reiterated his earlier testimony in the following exchange:

Q. (By Judge Brun) If you have a sink hole between the sidewalk and the street where the meter is and it’s a pretty good size sink hole, do you want the landowner to start digging and go after it or do you want them to call you?
A. Always call us first....

Therefore, the City clearly had assumed responsibility for all repairs of the right-of-way and is responsible for all damages arising from its failure to repair a defect, of which it had notice, therein.

|fiMoreover, the City stipulated to the fact that the area where the sink hole developed was under its custody and care. The City has maintained responsibility for diagnosing and curing dangerous conditions existing in the public right of way, and, in fact, repaired the area in question in front of Ethel Lewis’ home following the accident. Consequently, the trial court was correct in finding that the City failed to carry its burden of proof. This assignment is without merit.

Third Party Fault

Contrary to the City’s arguments, there is nothing in the record to support that the trial court erred in finding that the development of the sink hole was not the fault of Ethel Lewis. There was no manifest error in the trial court’s finding that Ethel Lewis’ sewer line did not cause the formation of the hole.

It should be noted that the City came back out in 2000 to attempt to repair a sink hole that had developed in the exact same spot that caused Andre’s accident. This second attempt by the City to repair the line came after they ran a robotic video camera through the sewer main in an attempt to find the origin of the leak. At no time did the City issue a bill to Ethel Lewis for the costs of repairing the hole. It stands to reason that if the City concluded that the repairs were brought about through the fault of Ethel Lewis that she would have been billed for the costs of the repairs, or at least informed of the defect in her sewer line.

Assuming arguendo that the City could show that it was a leak from Ethel Lewis’ sewer line that caused the hole, the City still has a duty to | fimaintain the public right of way. Jones v. Hawkins, 29-914 (La.App. 2d. Cir. 1/21/98), 708 So.2d 749. Moreover, the City’s liability is not solely based on the fact that it had custody or control of the right of way, but that it claimed to have specific responsibility for any repair to the right of way and failed to do so. Even if the court found that Ethel Lewis’ sewage line was the problem, the City still claimed to have responsibility for the repairs. However, the court did not make such a finding. Therefore, this assignment is without merit.

CONCLUSION

For the reasons stated above, the judgment of the trial court is affirmed. Costs assessed to the appellant.

AFFIRMED.


author: | .DOWNING, J.

text:
    Sharon L. DeSOTO v. Nidal A. BALBEISI, USAgencies Casualty Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2002 CA 0169.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied Feb. 3, 2003.

      Leonard Cardenas, III, Baton Rouge, Counsel for Plaintiff/Appellee Sharon L. DeSoto.
    William F. Janney, Baton Rouge, Counsel for Defendant/Appellant State Farm Mutual Automobile Insurance Company.
    Thomas Gibbs, Baton Rouge, Counsel for Defendants USAgencies Casualty Insurance Company and Nidal A. Balbeisi.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   | .DOWNING, J.

This is an appeal from a judgment awarding the plaintiff, Sharon L. DeSoto, attorney fees of $28,890.00 against State Farm Mutual Automobile Insurance Company for its failure to timely tender uninsured/underinsured motorist policy limits and medical benefits. For the following reasons, we amend the judgment of the trial court and affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

This case arises out of a motor vehicle collision in Baton Rouge, Louisiana, on April 14, 1999. Sharon L. DeSoto was seriously injured when a vehicle operated by defendant, Nidal A. Balbeisi, struck her vehicle. Plaintiff named as defendants Ni-dal Balbeisi and the two insurers that insured him in connection with the accident, USAgencies Casualty Insurance Company (USAgencies) and State Farm Mutual Automobile Insurance Company. On December 16, 1999, plaintiff filed an amending petition adding as a defendant her own uninsured/underinsured (UM) motorist carrier insurer, State Farm Mutual Automobile Insurance Company (State Farm). In her amending petition, plaintiff alleged that she provided State Farm with a satisfactory proof of loss on or about October 22, 1999, and that State Farm failed to tender its UM liability policy limits and medical payment limits under her policy within the thirty day time period stipulated in La. R.S. 22:658. Plaintiff sought statutory penalties, attorney fees, costs, and judicial interest.

State Farm contended that a satisfactory proof of loss was not made until November 4, 1999, when plaintiff sent verification of the underlying policy limits of the defendant driver’s liability carrier, USAgencies. State Farm admitted in its pre-trial memorandum that its check, which was mailed out on December 10, 1999, to settle plaintiffs claim, was technically late by |3six days and that it owed a statutory penalty in the amount of $1,413.73 as a result of the late payment. However, it insisted that the brief delay in sending out the payment did not warrant imposing attorney’s fees pursuant to La. R.S. 22:658.

Although plaintiff received all insurance available in connection with the accident prior to trial, plaintiff proceeded to trial against the defendant driver in order to obtain a judgment for the damages sustained in excess of available insurance. Plaintiff also sought to enforce the contested attorney fees due for State Farm’s untimely payment of its UM and medical benefits limits. Thus, the only issues remaining for resolution at trial were the liability of the defendant driver, the amount of plaintiffs damages, and any attorney fees that might be due from State Farm by reason of its untimely tender of funds due under plaintiffs own UM policy.

After a bench trial, the trial judge found that the conduct of State Farm in delaying transmission of payment of the UM and medical benefit limits was arbitrary and capricious. Plaintiff was awarded $28,890.00 in attorney fees. From this portion of the judgment, State Farm appeals, assigning two errors by the trial court, as follows:

1. The Trial Court committed manifest and reversible error of law in considering the contingency fee contract and awarding attorney fees based upon the total awarded DeSoto against Balbeisi and the Appellate Court should conduct a trial de novo on the issue of attorney fees.
2. The Trial Court abused its discretion in awarding $28,890.00 in attorney fees to DeSoto against State Farm Mutual Automobile Insurance Company.

^discussion

Applicable Law

Louisiana Revised Statutes 22:658(A)(1) provides:

All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.

Louisiana Revised Statutes 22:658(B)(1) further provides, in pertinent part:

Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1) ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, ..., together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount. (Emphasis added.)

Louisiana Revised Statutes 22:658 is a penal statute, and as such it must be strictly construed. Vaughn v. Franklin, 00-0291, p. 15 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 91, writ denied, 01-1551 (La.10/5/01), 798 So.2d 969. It subjects an insurer, when it is arbitrary and capricious in failing to unconditionally tender the undisputed amount within thirty days of satisfactory proof of loss, to the mandatory imposition of penalties and attorney fees for the collection of such loss. See Calogero v. Safeway Insurance Company of Louisiana, 99-1625, p. 7 (La.1/19/00), 753 So.2d 170, 174. A “satisfactory proof of loss” is that which is sufficient to fully apprise the insurer of the insured’s claim. McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, 1089 (La.1985).

In order to recover attorney fees pursuant to La. R.S. 22:658, the burden of proof is on the claimant to demonstrate, as a prerequisite to | .¡showing that the insurer was arbitrary and capricious in denying benefits, that a satisfactory proof of loss was made. It is undisputed that plaintiff submitted satisfactory proof of loss to State Farm on its UM claim on November 4, 1999 and that State Farm’s tender to plaintiff was untimely. Thus, the only issue presented for review is whether the amount of attorney fees awarded was excessive under the particular facts and circumstances of this case.

It is well established that the trial court’s conclusion with respect to the assessment of penalties and attorney fees under La. R.S. 22:658 is, in part, a factual determination and should not be disturbed in the absence of a finding that it was manifestly erroneous. Bauer v. White, 532 So.2d 506, 509 (La.App. 1 Cir.1988). In determining an award of attorney fees to be assessed pursuant to La. R.S. 22:658, the trial court should consider the services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, the result obtained, the novelty and difficulty of the questions involved, and the percentage fixed for attorney fees in the plaintiffs contract. Khaled v. Windham, 94-2171, p. 11 (La.App. 1 Cir. 6/23/95), 657 So.2d 672, 680.

Assignments of Error

State Farm argues that the trial judge committed legal error in basing the attorney fees assessed on the total recovery awarded to plaintiff and abused its discretion by basing such fee on the attorney’s contingency fee contract.

When a legal error interdicts a finding of fact, the appellate court must review the record' de novo and render judgment without respect to the | ^manifest error rule. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975). Here, we agree that the trial court committed legal error when it based its award of attorney fees on the total recovery awarded rather than on the attorney’s efforts expended for “the prosecution and collection of’ the loss. La. R.S. 22:658(B)(1). We observe that the “loss” referenced in this statute is the “amount of any claim due [the] insured.” La. R.S. 22:658(A)(1).

Accordingly, after reviewing the entire record de novo to evaluate Plaintiffs entitlement to attorney fees, we agree that the fees awarded against State Farm in this case were excessive and constituted an abuse of the trial court’s discretion.

Louisiana Revised Statute 22:658 provides for an award of reasonable attorney fees as a penalty for untimely payment of the amount due as demonstrated in a satisfactory proof of loss and provides for attorney fees for the prosecution and collection of such loss. Although the amount in controversy between State Farm and plaintiff does not cap the attorney’s fee award, the statute plainly relates the attorney fees award to the efforts expended in the collection of the amount due to the insured from State Farm. Thus, in assessing a reasonable fee, it is appropriate to consider all of counsel’s efforts in connection with that claim, but only those efforts.

In this case, plaintiffs counsel had to establish that the defendant driver was at fault and had to establish the value of the injuries sustained in order to recover from the defendant driver, Balbeisi, and his two insurers. The record supports the conclusion that plaintiffs counsel did a thorough and professional job in preparing plaintiffs case. However, little additional effort was required on the part of counsel to obtain the tender of the State Farm limits, which were paid in full, albeit approximately six days late.

[ 7Counsel for plaintiff submitted a proof of loss to State Farm. On October 22, 1999, he also sent State Farm copies of the medical records and other documentation of damages in discovery responses provided to the liability insurers of the defendant driver, Nidal Balbeisi. A few days later, on October 25, 1999, plaintiffs counsel wrote to State Farm in its capacity as plaintiffs UM insurer, advising of the inadequate amounts of the total underlying liability limits, and demanding that its UM coverage limits be paid by October 29, 1999. On October 29, State Farm’s management authorized tender of the UM coverage limits and payment of medical expenses under the medical payments coverage. Shortly thereafter, on November 1, 1999, the State Farm claims representative responded to plaintiffs demand, offering to pay the UM limits and medical benefit payments, upon receipt of evidence of the USAgencies policy limits. This evidence was provided on November 4, 1999, and a check was sent out by State Farm on December 10, 1999.

After receiving payment from State Farm, counsel for plaintiff filed an amending petition seeking penalties, attorney fees, costs, and judicial interest for State Farm’s untimely payment. Counsel for plaintiff moved for production of State Farm’s claims file. The discovery request was opposed, requiring the preparation of a supporting memorandum and the trial court’s in camera inspection of the file. Plaintiffs counsel was successful in obtaining portions of that file, which were introduced into evidence against State Farm at trial. Plaintiffs counsel also deposed the State Farm claims adjuster regarding the untimely tender of UM limits and medical payments. Trial of this matter was concluded in one day.

These efforts, however, were not expended to prosecute and collect plaintiffs claim against State Farm, such claim having been paid on |sDecember 10, 1999. It is clear that plaintiff went to trial primarily to establish the total amount of damages sustained in the accident in order to obtain an excess judgment against the defendant driver, Nidal Balbeisi. The bulk of the trial was directed toward substantiating plaintiffs damages in order to obtain the largest possible judgment against the defendant driver. By the time of trial, State Farm had admitted that plaintiff tendered a satisfactory proof of loss by November 4, 1999, and that its payment on December 10, 1999, was untimely. State Farm merely contested whether its brief delay warranted the imposition of attorney fees. The testimony of only one of the four witnesses at trial related directly to the attorney fees claimed against State Farm. Plaintiffs counsel introduced no evidence regarding the number of hours devoted to the attorney fees issue. No novel issues of law were presented.

Although the trial judge has great discretion in the amount of attorney fees awarded, the discretion of the trial judge is not unlimited. Bauer, 532 So.2d at 510. After reviewing the record in its entirety and considering the efforts related specifically to State Farm, we are left with the conviction that the award made in this case was clearly excessive. We have considered the evidence substantiating the labors of plaintiffs counsel, the result obtained, the skill exercised, the contingency fee contract of plaintiffs counsel, the degree of difficulty of the case, and the fact that the labors of plaintiffs counsel were directed primarily at establishing claims against the defendant driver and his two insurers. But primarily we consider the minimal attorney’s efforts actually needed to prosecute and collect the plaintiffs claim that was paid six days late.

State Farm suggests that an attorney fees award of $2,500.00 would be the highest award appropriate under the facts and circumstances of this Rcase in which it tendered the payment due in an untimely manner. Pursuant to La. R.S. 22:658, attorney fees are due only for the “prosecution and collection of such loss.” While we are inclined to limit the attorney fees award even further, and would not take into consideration the services rendered after the State Farm limits were paid, in view of State Farm’s admission that an award of at least $2,500.00 would be appropriate, we will reduce the award to that amount.

In so holding, we note our disagreement with our brethren of the Fourth Circuit and their holding in Daney v. Haynes, 630 So.2d 949 (La.App. 4 Cir.1993) where they interpret the word “loss” as used in La. R.S. 22:658(B)(1) to include penalties and attorney fees. In so holding, the Fourth Circuit states that to hold otherwise would dilute the effect of the penalty provision and be contradictory to public policy. Daney, 630 So.2d at 955. We disagree because the statute refers to the “loss” as the “amount of any claim due any insured.” La. R.S. 22:658(A)(1). And since this statute is penal in nature, it must be strictly construed. Vaughn, 00-0291 at p. 15, 785 So.2d at 91. We also disagree that public policy is unserved by our interpretation because it punishes an insurer severely if it delays in paying a just claim, but punishes it less severely the more promptly it cures its sanctionable behavior. The statutory penalty serves the penal purpose; the “reasonable” attorney’s fees recoverable, while penal in nature, are intended as reimbursement for the insured’s legal expenses incurred in recovering the loss and penalty; not as a windfall.

Accordingly, we find merit in State Farm’s assignments of error.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to reduce the amount of attorney fees assessed in favor of Sharon L. DeSoto |inand against State Farm Mutual Automobile Insurance Company to $2,500.00. In all other respects, the judgment is affirmed. Costs of this appeal are assessed equally against the parties to this appeal..

AMENDED AND AFFIRMED AS AMENDED.

      . This amount represented the statutory 10% penalty based on the $10,000.00 UM limits in the State Farm policy and the medical payments due.

      . Prior to trial, USAgencies tendered its liability limits, deposited same into the registry of the court, and was dismissed from the lawsuit. State Farm in its capacity as the liability carrier for the defendant, Nidal Balbeisi, was also released from the litigation after settling with plaintiff. Plaintiff did not release Nidal Balbeisi and sought a judgment against him in excess of the coverage limits available under his liability policies.

      . Prior to awarding attorney's fees, the trial court acknowledged that Plaintiff and her attorney had entered into a 25% contingency fee contract.


author: | ¡.GAIDRY, J.

text:
    Stephen Ray BURDETTE v. Ron DRUSHELL.
    No. 2001 CA 2494.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied Feb. 3, 2003.

      Michael L. Hyman, Baton Rouge, Counsel for Defendant/Appellant Ron Drushell.
    James S. Holliday, Jr., Baton Rouge, Counsel for Plaintiff/Appellee Stephen Ray Burdette.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   | ¡.GAIDRY, J.

This civil action arises from an oral contract for the completion of construction and renovation of a residence. The defendant, Ron Drushel, has appealed a money judgment for the balance of labor and materials alleged to be owed by him to the plaintiff, Stephen Ray Burdette, together with awards for attorney’s fees and damages. Defendant also appeals that portion of the judgment recognizing a privilege against his property under the Louisiana Private Works Act. For the reasons set forth below, the trial court’s judgment is reversed in part, amended in part, and, as amended, affirmed in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 13, 1994, Mr. Drushel made the decision to purchase property which included an unfinished “camp.” Two days later, on March 15, Mr. Drushel arranged for Mr. Burdette, a friend and carpenter, to informally inspect the building and to share his thoughts on costs of completion. Mr. Burdette agreed with another estimate that the building could be completed for approximately $35,000.00. Several weeks later, Mr. Drushel contacted Mr. Burdette and proposed that he undertake the completion of the camp. The parties met on or about June 7, 1994, and entered into an oral agreement to that effect. It is undisputed that no fixed price for labor and materials was agreed upon, and that the terms of the agreement provided that plaintiff would perform the job on a “costs plus” basis. The contract was never reduced to writing, and the scope of work was never clearly defined.

After plaintiff commenced work on the renovation and refurbishing project, defendant requested numerous significant changes to work phases completed or in | «progress, and insisted upon the use of premium materials (such as red oak for the interior woodwork), requiring an added level of craftsmanship. During the course of construction, plaintiff submitted, and defendant paid without protest, two interim invoices totalling $62,519.00.

After the work had proceeded for about five months, defendant became dissatisfied with the progress towards completion of the camp, and terminated the contract in late November of 1994. Plaintiff did not file for record a written notice of contract prior to beginning the work.

This litigation commenced with the filing of plaintiffs petition, styled as a “Suit to Enforce Lien.” Plaintiff alleged that he performed labor and furnished materials necessary for the work on the camp, that the amount of $48,864.21 due had not been paid, and that he had filed and served a “Labor and Materialmen’s Lien [notice] and Statement of Claim” relating to the subject property. Plaintiff accordingly claimed a privilege against the property for the contractual amount due, as well as a money judgment for that amount, damages, legal interest from the date of judicial demand, costs, and a reasonable attorney’s fee.

Defendant answered, generally denying liability. Later, in a supplemental and amended answer, he raised the defense that plaintiff did not properly perfect the privilege. Defendant also alleged that plaintiff overcharged him, and that he was entitled to reimbursement for all amounts paid in excess of reasonable charges for the work done, as well as additional incurred expenses required to complete the work on the camp.

| ¿Following a protracted discovery dispute relating to a request to inspect the premises, this matter was set for bench trial on June 13-15, 2000.

Following the trial, the trial court took the case under advisement for decision. On November 14, 2000, the trial court issued its written reasons for judgment, finding that plaintiff was entitled to recovery of the full sum of $44,365.94 claimed as of the time of trial, recognition of the privilege claimed in that amount, attorney’s fees of $2,500.00, and damages of $5,000.00. However, the trial court expressly denied the prior motion for contempt referred to the merits. On January 3, 2001, the trial court signed the judgment prepared by plaintiffs counsel at its direction. From that judgment, defendant appeals.

II. THE ISSUES ON APPEAL

Defendant contends the trial court erred (1) in finding that plaintiff met his burden of proof as to the sum awarded; (2) by admitting third-party invoices into evidence without testimony from the third parties; (3) by considering expert testimony from plaintiffs expert witness; (4) in awarding duplicative damages; and (5) in awarding attorney’s fees.

III. STANDARD OF REVIEW

As an appellate court, we cannot set aside the trial court’s factual findings unless we determine there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, if the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the “manifest error” or “clearly wrong” standard is no longer applicable, and, if the record is otherwise complete, the appellate court should |Rmake its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman’s Fund Insurance Company, 94-1252, pp. 6-7 (La.2/20/95), 650 So.2d 742, 746-47.

IV.RECOVERY UNDER THE COSTS PLUS CONTRACT

A. DISCUSSION

The contract involved here was a “costs plus” contract. A “costs plus” (costs plus percentage of costs) contract, or a “percentage” contract, is a construction contract in which the owner agrees to reimburse the contractor for the costs of material and labor and to pay a percentage of those costs as his profit. Schiro-Del Bianco Enterprises, Inc. v. NSL, Inc., 99-1237, p. 4 (La.App. 4th Cir.5/24/00), 765 So.2d 1087, 1089-90, writ denied, 2000-2509 (La.11/13/00), 774 So.2d 146.

When a contractor asserts a claim on a “costs plus” contract and the owner denies being indebted to the contractor, the contractor has the burden of proving each item of expense in connection with the job and he must itemize each expenditure made by him. American Plumbing Company, Inc. v. Hadwin, 483 So.2d 169, 172-73 (La.App. 2nd Cir.1986).

In support of the balance claimed, plaintiff introduced his final statement for services previously submitted to defendant, in the original amount of $48,864.21, as well as copies of his labor time records, materials invoices, and, over defendant’s objection, the labor and materials invoices of other contractors (referred to for convenience herein as subcontractors) supporting that amount. The final statement contains an item of $18,563.87, designated as “overhead and profit,” representing 20% of the total claimed. Plaintiff called defendant as an adverse witness, and in connection with that examination introduced as his own exhibit a videotape taken by defendant on November 24, 1994, depicting the state of the premises then and defendant’s narration regarding the work performed. |fiPlaintiff also called as witnesses one of his own carpenters and two of the subcontractors he engaged for the project.

Defendant testified on his own behalf regarding the work done by plaintiff and various alleged deficiencies, and also called Brenda Bourgeois, his girlfriend, to corroborate his testimony in that regard. Additionally, defendant called plaintiff as an adverse witness under cross-examination.

In addition to their own testimony and that of supporting witnesses, the parties presented the testimony of their respective expert witnesses, both of whom testified in detail regarding their analysis of the nature of the work, the type of residence being constructed, the labor and materials documented, and the correlation between the labor and materials charged and the ultimate product.

With the exceptions described herein, we agree with the trial court’s finding that plaintiff met his burden of properly itemizing the costs making up the price of his work through his testimony and that of his witnesses, together with the documentary evidence.

B. THE AMOUNT OF THE OBLIGATION

Plaintiff initially sought recovery of the principal amount of $48,864.21, representing the unpaid balance of labor and material charges for plaintiffs work, as well as that of the subcontractors whose services he procured. The evidence demonstrated, and plaintiff acknowledged at trial, that defendant paid the invoice of Appliance Distributors for kitchen appliances installed in the camp, and was entitled to a credit, plaintiff claiming a revised balance of $44,365.94. This is the principal amount ultimately awarded. At trial, through the testimony of his expert, Mr. Clary, plaintiff conceded that the balance should also have been reduced by the overhead and profit margin of 20% added to Appliance Distributors’ invoice. The invoice in the record is in the amount of $4,172.04. Thus, the trial court erred in | failing to credit that amount, and the judgment must accordingly be reduced by $834.41.

(1) ADMISSION OF THIRD-PARTY INVOICES

Defendant contends that the trial court erred in allowing the introduction of third-party invoices into evidence, since they constituted inadmissible hearsay. Plaintiff counters that the records constitute part of his own “business records” and therefore fall within the corresponding exception to the general rule against hearsay evidence.

La. C.E. art. 803(6) sets forth the “business records” exception to the hearsay rule:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term, “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

Defendant contends that the third-party invoices and receipts introduced by plaintiff were inadmissible hearsay evidence, and were not admissible as plaintiffs “business records,” since the third parties who generated the records were not | Rcalled as witnesses to authenticate them and to corroborate the information contained therein. We find that the trial' court did not abuse its discretion by admitting and considering the third-party invoices.

A contractor working under a “costs plus” contract is under the duty of submitting to the owner an itemization of each and every expenditure made by him, and a bill in globo for numerous items will not meet that requirement. Wendel v. Maybury, 75 So.2d 379, 382-83 (La.App. Orl.Cir.1954). In the Wendel ease, the contractor was criticized for submitting a bill listing labor and materials he supposedly paid in one lump sum, without any itemization of the nature of the charges making up the total. The stated purpose of the principle enunciated in Wendel was the protection of the owner from vague or duplicative charges by providing ready means of corroboration of the costs. Attaching copies of the very invoices upon which the general contractor bases his claim for costs reimbursement and profit may fulfill the requirement of an itemization by which an owner is protected from vague or inflated costs items.

We conclude that in appropriate situations, “incorporated business records” may fall within the ambit of the business records exception to the hearsay rule. Defendant argues that Louisiana’s rule requires all “business records” be literally “made” by the business keeping them, suggesting the differences in phraseology 19from its Federal counterpart mandate that conclusion. Nothing in the wording of the article itself precludes the introduction of “incorporated business records” originally generated by another business, if properly authenticated and determined to be trustworthy by the trial court. The Comments suggest that the article was drafted to conform to “the clear intent of Federal Rule 803(6)[and] the cases interpreting that rule.” La. C.E. art. 803(6), Comments (a), (b). Accordingly, it is appropriate to review the jurisprudence interpreting the analogous Federal rule for guidance on this issue.

Federal courts interpreting the nearly identical language of F.R. Evid. 803(6) have held that third-party invoices received and held by a party in its regular course of business are admissible under circumstances which demonstrate trustworthiness, such as where adequate foundation testimony to the foregoing effect is offered by the party, even without testimony from the third party preparing the invoices. See United States v. Flom, 558 F.2d 1179, 1182 (5th Cir.1977), 2 Fed.R.Evid. Serv. 451.

|inIn the case of Sundbery’s, Inc. v. Price, 117 So.2d 328, 329-30 (La.App. 1st Cir.1960), a supplier of building materials sought recovery for the price of materials supplied for the remodeling of the defendant’s residence. The defendant contended that legally sufficient proof of delivery of the materials was not presented. The plaintiff did not attempt to secure the testimony of its drivers who delivered the materials, but its manager identified its dray receipts showing delivery, bearing the signature of the defendant’s contractor’s foreman. The invoice related to the dray receipts specifically designated the material as assigned to defendant’s job. The defendant objected to the receipts as being hearsay, and that the signature was not properly authenticated. The court found that the signed dray receipts were sufficient proof of delivery, where no contradictory proof of non-delivery was put forth.

In this case, for example, we observe that although the Gabriel Building Supply materials invoices were not originally prepared by plaintiff himself, most were signed by him acknowledging receipt of the materials described therein for this specific job location. On their face, they show the receipt of lumber, moulding, frames, nails, paint, steam bath components, and other supplies installed by him on this job.

Distilling the principles expressed in the codal article itself and the foregoing cases, we conclude that the trial court’s admission of the described third-party invoices, cash receipts, and plaintiffs cancelled checks was not error, given the reasonable discretion accorded it under our law relating to the admission of trial evidence. The record demonstrates that most of the third-party invoices became an integral part of plaintiffs own work documentation, plaintiff had firsthand knowledge of the transactions and their corresponding invoices, and the invoices | n were in fact provided to defendant as part of the necessary “costs plus” itemization from which defendant could independently confirm the accuracy of plaintiffs’ charges. Plaintiff and his expert, Mr. Clary, offered direct testimony verifying the incorporation of the invoices’ materials into the work, and both relied upon the accuracy of the invoices in presenting an evidentiary summary of the voluminous materials and labor records.

Although courts should generally be wary of admitting third-party “hearsay within hearsay” documents under the guise of “incorporated business records,” their admission is proper in cases where they are customarily used as such, the parties contemplate their use for accounting or verification purposes, such as in a “costs plus” construction contract, and proper proof of trustworthiness is established. Louisiana does not have the “best evidence” rule. Although these third-party invoices and receipts are not the “best evidence,” they are “some evidence” of the debt owed, which, with other corroborating evidence, may be considered by the trial court in determining that the party carried its burden of proof. Admissibility does not mean sufficiency: “Evidence may be admissible under a hearsay exception but insufficient to carry the offering party’s burden of proof, or may otherwise be considered by the fact-finder as weak or unpersuasive evidence.” La. C.E. art. 803(6), Comment (c).

Our opinion does not mean that “incorporated business records” are always admissible. Better practice would be for the proponent of such evidence to submit a request for admissions to the other party, to obtain an evidentiary stipulation from the other party, or to secure a certificate of authenticity of its records from the third party. We simply decide here that the trial court did not abuse its discretion |12as to the admission of evidence under the facts of this case. Under the modern rules of discovery, there is less chance of prejudice to the opponent of the business record:

Given the extensive opportunity for pre-trial discovery in civil cases, the opponent of the evidence will normally know of the proponent’s intention to offer the hearsay business record prior to trial and, if desired, may himself subpoena the declarant to testify in court as well as those who have recorded or kept the information received.

George W. Pugh, Robert Force, Gerard A. Rault, Jr., & Kerry Triche, Handbook on Louisiana Evidence Law, La. C.E. art. 803(6), Authors’ Notes, (2), at 547 (2002 ed.)

We find that the element of payment set forth in the paid invoices, cash receipts, and plaintiffs checks, supported by his testimony, fulfilled the necessary elements of reliance and verification, justifying their admission. See M. Carbine Restoration, Ltd. v. Sutherlin, 544 So.2d 455, 458-59 (La.App. 4th Cir.1989), writ denied, 547 So.2d 355 (La.1989); Provenzano v. Populis, 428 So.2d 556, 558-59 (La.App. 4th Cir.1983). Likewise, the materials invoices signed by plaintiff which were received on the jobsite provide support for his verbal identification of them as incorporated business records, and also corroborate his testimony that the materials were incorporated in the camp, a necessary element of his burden of proof as contractor. Sundbery’s, Inc. v. Price, 117 So.2d at 329-30.

This does not end our analysis of the third-party documents, however. The third-party “proposal” of Harold Norman, the vinyl siding subcontractor, even if arguably treated as an invoice by plaintiff, is clearly inadmissible hearsay, and should have been excluded. See Provenzano, 428 So.2d at 559; Dikert v. Ruiz, 231 So.2d 633, 635 (La.App. 4th Cir.1970). The record contains no evidence demonstrating plaintiffs rebanee on and verification of the reliability of the “proposal,” including but not limited to payment. On its face, the document does [13not suggest that the work was in fact accomplished for the price stated. The trial court therefore erred in admitting the “proposal.”

(2) ADMISSION OF EXPERT TESTIMONY

Defendant contends the trial court committed error in accepting the testimony of plaintiffs expert, Mr. James Clary, as an expert in the field of construction, and in refusing to strike his testimony after given, on the grounds that his particular expertise was not in the field of construction. He further suggests that the testimony was not helpful in the determination of the reasonableness of the charges for labor and materials for the work. Defendant maintains the trial court’s rejection of the testimony of his expert, Mr. Webb, and his interpretation of the Means Building Construction Cost Data reference was error.

A trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. Lemaire v. CIBA-GEIGY Corporation, 1999-1809, p. 16 (La.App. 1st Cir.6/22/01), 798 So.2d 336, 349. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Fountain v. Fountain, 93-2176 (La.App. 1st Cir.10/7/94), 644 So.2d 733, 738. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Thornton ex rel. Laneco Construction Systems, Inc. v. Lanehart, 97-2871, p. 5 (La.App. 1st Cir.12/28/98), 723 So.2d 1127, 1130. Further, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Insurance Company, 563 So.2d 850, 853 (La.1990). Although usually consisting of opinion testimony, expert testimony need not be in such form to be admissible. La. C.E. art. 702 provides that if specialized knowledge will assist the trier of fact to [Uunderstand the evidence or to determine a fact in issue, an expert witness may testify “in the form of an opinion or otherwise.” [Our emphasis.]

Mr. Clary, a civil engineer, testified that he met with plaintiff, reviewed with him the labor and materials records and invoices and the work aspects they represented, and personally inspected the residence. Mr. Clary opined that the amount of labor materials billed by plaintiff appeared to conform with the scope of the job, particularly considering the quality of workmanship and materials and the work changes initiated by defendant. He further testified that the profit margin or markup of 20% for this “costs plus” contract was quite reasonable compared to the standard in the industry, corroborated by the reliable Means Repair & Remodeling Cost Data reference.

Defendant’s expert architect, John Webb, testified that plaintiff charged defendant for approximately 2,500 man-hours of labor (excluding the labor of the subcontractors) for Ms work on the residence, well in excess of what he felt was a reasonable “average” nationwide figure of 1,933 man-hours in all trades to completely construct a similar residence. He further testified that he found some instances where the amount of materials purchased was substantially in excess of what he calculated was actually needed. On cross-examination, however, he admitted that his analysis of plaintiffs man-hours did not take into consideration the work performed on the garage and the adjacent boat house and pier.

The record shows that Mr. Clary was a professional civil and consulting engineer of many years’ experience, and that he had previously been accepted as an expert in the fields of construction and engineering in numerous Louisiana courts. We find no abuse of discretion in the admission of his testimony. Even if Mr. Clary’s opinions regarding the quality of the work and materials were to be discounted entirely, it cannot be concluded that his factual testimony relating to his inspection of the premises, expert-summary and analysis of materials and labor 11Firecords, and his expert explanation of contractors’ practices, overhead and profit margin, and the Means Building Construction Cost Data and Means Repair & Remodeling Cost Data references were not of benefit to the trial court.

The weight and credibility given Mr. Clary’s testimony by the trial court are entitled to great deference by this court, and we find no abuse of its discretion in denying defendant’s motion to strike the testimony.

We agree that plaintiff is entitled to judgment for those portions of the contractual price representing subcontractors’ charges, proven by competent evidence to have been paid by plaintiff. However, he cannot recover those subcontractors’ charges for which proof of payment was not shown. Schiro-Del Bianco Enterprises, Inc. v. NSL, Inc., 99-1237, at pp. 7-8 (La.App. 4th Cir.5/24/00), 765 So.2d 1087, 1091-92, writ denied, 2000-2509 (La.11/13/00), 774 So.2d 146. See also Provenzano, 428 So.2d at 559.

The brick mason subcontractor, Ernest Thompson, testified at trial regarding the services provided and specifically identified his third-party invoice for $3,850.00 to plaintiff. However, plaintiff is not entitled to judgment for that amount, since it was not proven to have been paid. The original judgment amount must be reduced by that amount and by a figure representing plaintiffs corresponding 20% markup for overhead and profit, or $770.00. Likewise, as previously discussed, the amount of the “proposal” of Mr. Norman, the vinyl siding subcontractor, or $4,050.00, must be deducted from the principal amount of the judgment, together with plaintiffs overhead and profit margin of 20%, or $810.00.

The evidence establishes that it was ■ necessary for the electrical subcontractor, Roshto Electric, Inc., to substantially re-install the entire original | T (¡electrical system, adding considerably to the project cost. Roshto Electric, Inc.’s first invoice for $867.00 showed on its face it was paid. The testimony of the head electrician, Shelby Roshto, confirmed that payment and that there was a second payment received. As there was only one later invoice submitted to plaintiff from Roshto Electric, Inc., the trial court correctly allowed plaintiff recovery of Roshto Electric, Inc.’s total charges of $3,565.00, together with $713.00, representing his incremental 20% markup.

The photographs and videotape depicting the subject property confirm the subject property’s status as a “custom” residence, as described by both experts. With some relatively minor exceptions, both defendant and his expert architect admitted that the quality of the work accomplished by plaintiff was good. Plaintiff introduced into evidence an appraisal of the subject property performed by Clyde R. Tucker, Jr., indicating an appraised fair market value of $190,000.00 as of November 4, 1999. The appraised value lends additional support to the trial court’s resolution of the dispute in plaintiffs favor. Defendant’s prompt and uncomplaining payment of over $62,000.00 in prior interim bills belies his claimed reliance upon a $35,000.00 or $36,000.00 “estimate” for completion of the building. See, e.g., Lagasse v. Allen, 219 La. 745, 749, 54 So.2d 6,7 (La.1951).

In summary, plaintiff is not entitled to a money judgment for the amounts of subcontractors’ invoices for which he did not properly prove payment. These charges include the following:

Younger Miller (Plumbing): $ 419.00 (unpaid balance)
Ernest Thompson (Brick Mason): 3,850.00
Harold Norman (Vinyl Siding): 4,050.00
Steve Breakfield (Air Conditioning): 470.00
Victor Methview [sic]: 221.00

|17The trial court’s monetary award is reversed in part and amended to disallow those charges, totalling $9,010.00, and their corresponding markup for overhead and profit, in the total amount of $1,802.00, for a balance of $32,719.53. As to the factual finding warranting judgment against defendant for the balance, we note that the trial court specifically found that the quality of plaintiffs work was good. Such finding was essentially a credibility determination, and, as such, the judgment must be affirmed in part.

(3) THE AWARD OF DAMAGES

Defendant assigns as error the trial court’s award of “duplicative damages.” Defendant offers no explanation nor argument in his brief relating to this assignment of error, nor is any supportive authority cited. Nevertheless, it is obvious that defendant takes issue with the propriety of the award of unspecified “damages” in the amount of $5,000.00. The judgment and written reasons for judgment are both silent as to the eviden-tiary basis for that award. The trial record contains no testimony or other evidence as to “damages” or their amount. Plaintiff put forth no evidence of any tangible consequential damages, such as idled equipment, overhead, or lost profit. See Robinson, “Construction Law: Elements of Contractors’ Damages,” 38 La. B.J. 247 (Dec.1990). Plaintiff likewise offers little support in his brief regarding the basis for the award, except to contend that it represented consequential damages under La. C.C. art.1994, incurred by reason of defendant’s failure to pay the monetary balance due under the contract.

Where the required performance consists of payment of a sum of money, “damages for delay in performance are measured by the interest on that sum from the time it is due, ... and whatever loss [the obligee] may have suffered he can recover no more.” La. C.C. art.2000. Since plaintiff prayed for and was awarded legal interest on the contractual balance due him, any additional award based liSupon defendant’s delay in payment is clearly duplicative of the judgment interest. The trial court’s judgment is accordingly reversed in part to vacate the award of damages in the amount of $5,000.00.

V. THE PRIVATE WORKS ACT PRIVILEGE

We first note that it is undisputed that the plaintiffs statement of privilege was filed timely after the substantial .completion or abandonment of the work, as required by La. R.S. 9:4822. Defendant challenges the trial court’s recognition of the privilege sought by plaintiff, contending that plaintiff is not entitled to recognition of any privilege in his favor, having failed as a general contractor to comply with the mandatory provisions of La. R.S. 9:4811(A).

Although the Louisiana Private Works Act must be strictly construed as being in derogation of general contract law, courts should not overlook the clear legislative intent, which is to protect contractors, laborers, materialmen, and subcontractors engaged in construction and repair projects. Hibernia National Bank v. Belleville Historic Development, L.L.C., 2001-0657, p. 7 (La.App. 4th Cir.3/27/02), 815 So.2d 301, 305-6, writ denied, (La.6/14/02), 818 So.2d 785.

Even though plaintiff does not claim the status of general contractor for the work at issue, it is readily apparent that he met the statutory definition of “general contractor” in the Louisiana Private Works Act. A contractor “who contracts to perform all or substantially all of a work” is a “general contractor.” La. R.S. _[i29:4807(B)(l). See also Executive House Building, Inc. v. Demarest, 248 So.2d 405, 410-11 (La.App. 4th Cir.1971). While his testimonial reference to the other contractors providing services as “subcontractors” does not conclusively determine their status as to him, the record clearly demonstrates that he coordinated the engagement of their services and supervised their work, assuming the defacto role of general contractor. Additionally, he included their charges in his billing to defendant as part of the services and materials he provided, and added his overhead and profit margin of 20% to most if not all of their charges submitted through him. In light of the undisputed evidence, we find the trial court’s implicit conclusion to the contrary is clearly wrong.

Having failed to properly file written notice of his contract in the mortgage records as required by La. R.S. 9:4811(A), plaintiff is not entitled to the privilege granted a “general contractor” under La. R.S. 9:4801. La. R.S. 9:4811(D). The fact that a “costs plus” contract is involved does not relieve the general contractor from the obligation of filing the notice of contract; it is incumbent upon him to “reasonably estimate” the price of the work prior to beginning work if there is the possibility of the price exceeding $25,000.00. La. R.S. 9:4811(A)(4) and Comment (b).

We next address whether plaintiff is entitled to recognition of any privilege at all against the subject property, and, if so, the nature and amount of such privilege. Plaintiff contends that the privilege sought and ultimately recognized by the trial court was either that of a “laborer” under La. R.S. 9:4801(2) or a non-general or ordinary contractor under La. R.S. 9:4801(1).

1 ¡^Defendant contends that La. R.S. 9:4811(D) bars recognition of any privilege at all in favor of plaintiff, since plaintiff occupied the status of “general contractor” and neglected to record a written notice of his contract. We disagree. La. R.S. 9:4822 makes a clear distinction between a “general contractor” who has properly recorded a notice of contract and “other persons granted a privilege under R.S. 9:4801” when notice of a general contract is not filed. Included within the latter category is a “general contractor” who fails to record a notice of contract, to the extent he performed or provided labor or services other than the supervisory work generally performed by a “general contractor.” Thorpe and Brooks, Inc, v. Arnott Corporation, 406 So.2d 1, 5-6 (La.App. 1st Cir.1981).

Even though plaintiff acted as “general contractor,” he also occupied the status of an ordinary “contractor” under La. R.S. 9:4807(A) for his carpentry services and related labor and material costs. The record establishes that the parties clearly contemplated plaintiff would personally perform labor under the “costs plus” contract, and that such labor was payable as part of the “costs,” separately from the 20% overhead and profit increment. Thus, as such, he is entitled to the privilege granted under LA. R.S. 9:4801(1) to an ordinary “contractor” for “the price of his work,” which ranks equally with that granted a “general contractor.” The important difference, however, is in the nature of the allowable charges secured by the privilege.

The trial court correctly concluded that plaintiff is entitled to claim a privilege for his own labor and that of his employees under La. R.S. 9:4801(1). City Bank & Trust Company v. Caneco Construction, Inc., 341 So.2d 1331, 1336-38 (La.App. 3rd Cir.1976); Thorpe, 406 So.2d at 5. However, although plaintiff 1 g1may properly claim a contractor’s privilege, it cannot hold the superior ranking of a laborer’s privilege under La. R.S. 9:4801(2).

The “price of [the] work” of a general contractor clearly includes the charges of subcontractors he has engaged and paid, since their work for him forms part of the larger work he has undertaken for the owner. See La. R.S. 9:4802(A)(1), (F); La. R.S. 9:4807(C). However, when a general contractor fails to properly file a notice of contract under La. R.S. 9:4811(D), he is not entitled to claim a privilege in that capacity for subcontractors’ charges for labor and materials. See Gauguin, Inc. v. Addison, 288 So.2d 893, 897 (La.App. 1st Cir.1973).

In addition to the sum of $3,565.00 paid to the electrical contractor, plaintiff paid St. Joe Brick Works the sum of $985.32 for materials for the brickmason subcontractor, verified by his check No. 2185. He is clearly entitled to judgment against defendant of that sum and its markup, but those figures cannot form part of the privilege in his favor. Likewise, plaintiff cannot claim a privilege for the sum of $515.00 paid by check to Mr. Miller, the plumbing subcontractor, although he is entitled to judgment against defendant for that amount and his markup.

In summary, then, plaintiff is not entitled to recognition of a privilege in his favor for the amount of any charge by or payment to a subcontractor, since he was a general contractor for such charges, and failed to properly file for record a notice of contract. The judgment is further adjusted to deduct the amounts of the payments to Roshto Electric, Inc., Younger Miller, and St. Joe Brick Works ($5,065.32), along with their corresponding 20% markups ($1,013.06.), totaling | ?,a$6,078.38. He is accordingly entitled to recognition of a contractor’s privilege under La. R.S. 9:4801(1) for labor and materials in the total amount of $26,641.15.

VI. THE AWARD OF ATTORNEY’S FEES

Defendant challenges the trial court’s award of attorney’s fees, on the grounds that neither the terms of the contract nor positive law authorize such award. We agree. There is no evidence that the oral contract at issue provided for such recovery by either party. Plaintiff has not cited, nor have we found, any statutory authority for recovery of attorney’s fees by a contractor seeking payment for labor and materials and recognition of a lien under the present facts.

A prior discovery motion seeking attorney’s fees and to hold defendant in contempt had been referred to the merits. In connection with that motion, plaintiff introduced a number of exhibits documenting his efforts to compel inspection of the property, as well as his expenses and attorney’s fees incurred in pursuing that issue. The only conceivable basis for the award, as recognized by plaintiff in his brief, was a finding that defendant was either in contempt of court or otherwise violated the trial court’s prior discovery order relating to inspection of the premises. However, in its judgment and written reasons for judgment, the trial court expressly denied plaintiffs motion for contempt. Neither the judgment nor the reasons for judgment state or even suggest that the trial court granted plaintiff attorney’s fees as an alternate sanction under La. C.C.P. art. 1471, in lieu of a contempt order. The motion having been resolved in defendant’s favor, it cannot serve as a basis for the award. The trial court’s judgment is therefore reversed in part with regard to its award of attorney’s fees in the amount of $2,500.00.

| ^CONCLUSION

Initially, we issue the following order:

IT IS ORDERED, ADJUDGED AND DECREED that the motion of the plaintiff, Stephen Burdette, to supplement the record on appeal by filing a certified copy of his “Labor and Materialmen’s Lien and Statement of Claim” (notice of privilege) be and is hereby granted.

For the reasons stated above, the portion of the trial court’s judgment granting judgment for the contractual obligation claimed is amended to reduce that amount from $44,365.94 to $32,719.53. That portion of the trial court’s judgment awarding damages of $5,000.00 is reversed. That portion of the trial court’s judgment providing, “The lien filed by plaintiff is recognized with all the rights and damages that flow from that recognition” is vacated and substituted with the following language: “The privilege claimed by plaintiff is recognized under La. R.S. 9:4801(1) for the sum of $26,641.15.” That portion awarding attorney’s fees in the amount of $2,500.00 is reversed.

The costs of this appeal are assessed 75% to the defendant-appellant, Ron Drushel, and 25% to the plaintiff-appellee, Stephen Ray Burdette.

MOTION TO SUPPLEMENT RECORD GRANTED.

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

      . The defendant’s surname is consistently spelled “Drushel” in his own pleadings and exhibits.

      . La. R.S. 9:4801, et seq.

      . This pleading also contained a prayer for judgment awarding him reimbursement and "reasonable damages.” However, defendant did not designate this pleading as incorporating a reconventional demand, nor did he request service pursuant to La. C.C.P. arts. 1063 and 1314. Plaintiff understandably did not answer this pleading. Accordingly, issue was not joined as to the claims for reimbursement and damages, and they would now appear to be barred by both res judicata and collateral estoppel. La. C.C.P. art. 1061(B); La. R.S. 13:4231. This result would not prevent consideration of defendant’s claim of overcharges as an affirmative defense. La. C.C.P. art. 1005.

      . Defendant’s reliance on the case of Great American Surplus Lines Insurance Company v. Bass, 486 So.2d 789, 794 (La.App. 1st Cir.1986), writ denied, 489 So.2d 245 (La.1986), is misplaced. The precise issue in that case was whether the plaintiff could properly prove lost profits from his business by means of a list of supplies purchased by him from a third-party supplier, based upon its invoices, where the list was admittedly compiled for trial purposes. Given the fact that the list was not prepared in the ordinary course of business but for litigation purposes, it was properly excluded on that basis alone. We further note that the case of Herlitz Construction Company, Inc. v. Clegg, 378 So.2d 1002 (La.App. 1st Cir.1979), cited in Bass, 486 So.2d at 794, and the cases cited therein were decided long before the enactment of the Louisiana Code of Evidence, embodying a tacit legislative approval of the spirit and intent of the Federal Rules of Evidence. Additionally, Herlitz s holding relating to the third-party records was expressly limited to "the facts of [that] case.” Id. at 1006. It did not purport to establish a blanket rule that the “element of reliability” as to incorporated business records must be supplied by the testimony of the third parties. Here, plaintiff was a party to the transactions represented by the invoices and receipts, and initiated the purchases and other transactions personally. He indisputably had firsthand personal knowledge of the factual basis for the third parties' preparation of the documents.

      . In pertinent part, the language of F.R. Evid. 803(6) differs from Louisiana’s counterpart in stating that the record must be "kept in the course of a regularly conducted business activity” (as opposed to being “made and kept”) and that "it was the regular practice of that business activity to make the . .. record” (as opposed to "make and to keep”), and in not specifically stating that the supplying and recording of information be performed in the course of a regular business activity by a person owing a duty to the business. See La. C.E. art 803(6), Comment (b).

      . See La. C.E. Art. 901.

      . See also United States v. Ullrich, 580 F.2d 765, 771 (5th Cir.1978)(Vehicle inventory schedule and vehicle's statement of origin, both prepared by manufacturer, used and kept in the regular course of the victim dealership's business, were in effect "integrated into the records of the dealership,” and were admissible as its business records.); Falcon Jet Corporation v. King Enterprises, Inc., 678 F.2d 73, 77 (8th Cir.1982) (A construction company was permitted to introduce third-party invoices for work done on the premises in support of its claim against the defendant for the amount of work, where its witness demonstrated that they were "sufficiently trustworthy.”); United States v. Sokolow, 91 F.3d 396, 403-04 (3rd Cir.1996) (The records of an insurance claims adjuster derived in large part from a third-party insurer’s records were admissible as business records, where it was a regular business practice to incorporate the insurer’s records into its own records, the adjuster relied on the records, and there was “adequate verification or other assurance of accuracy” of the third-party records.); Air Land Forwarders, Inc. v. United States, 172 F.3d 1338 (C.A.Fed.1999) (Third-party records were admissible without firsthand testimony upon a showing that the party incorporated those records into its own, it relied upon those records in its day-to-day operations, and there were other strong indicia of their reliability.)

      . Those invoices of Gabriel Building Supply which do not bear plaintiff’s signature or that of an employee, verifying receipt of the materials, amount to $3,352.94. Plaintiff did identify those invoices as reflecting his purchases of materials used in this job, however.

      . See Duncan Development, Inc. v. Haney, 634 S.W.2d 811 (Tex.1982), and Houston Shell & Concrete Company v. Kingsley Constructors, Inc., 987 S.W.2d 184 (Tex.App. 14th Dist.1999), for similar reasoning.

      . La. R.S. 13:3733(D).

      . See La. R.E. art. 901(B)(4).

      . We take note of the verbal admission by defendant in his videotape that vinyl siding was installed after the purchase of the property by a person engaged by plaintiff; however, plaintiff did not sufficiently prove that Mr. Norman was that person, nor that he was paid by plaintiff,

      . In his petition, plaintiff prayed for "legal interest from the date of judicial demand." Prejudgment interest on a conventional obligation runs from the time the obligation to pay is due, not from the date of judicial demand. La. C.C. art.2000. However, the trial court’s judgment, prepared by plaintiff’s counsel, specifically limited judgment interest to interest "from date of judicial demand until paid,” and plaintiff did not appeal or answer this appeal to seek additional interest from the date the debt was due. Under these facts, we decline to amend the judgment to comply with La. C.C. art.2000, although authorized to do so under La. C.C.P. art. 1921.

      . It is undisputed that the notice of privilege was recorded in the mortgage records as described by the trial court in its reasons for judgment. Although a copy was supposedly attached as an exhibit to the petition, it is not contained in the record on appeal. Nevertheless, it is apparent that the notice was in fact filed, as the trial court’s reasons reference not only the date of its filing, but also the mortgage recordation data. Defendant has not challenged the fact of the proper and timely filing of notice. Upon being notified of the omission in the record, plaintiff moved to supplement the record. We grant the motion to complete the record.

      . Cf. American Plumbing Company, Inc. v. Hadwin, 483 So.2d at 173-74 (general contractor held not entitled to recovery of additional charges for his own carpentry work under "costs plus” contract, where he failed to prove that parties agreed to such charges, in addition to his profit percentage as general contractor).

      . Comment (c) to La. R.S. 9:4801 explains:
      (c) Subsection (2) contemplates that the obligations secured must be for the price of labor or services of an employee. A contractor who renders personal services in the course of performing his contract is not included in this category. The owner is not liable to him for such services but only for the price of the contract. This distinction is significant, primarily because of the priority given to the privileges of employees by Section 4821, infra.

      . La. R.S. 9:4822(K) was not specifically invoked here, nor were its requirements proven. Neither plaintiff's petition nor the evidence suggests that his claim was one on open account under La. R.S. 9:2781. See Bernard Lumber Company, Inc. v. Lake Forest Construction Co., Inc., 572 So.2d 178, 183 (La.App. 1st Cir.1990); Hill v. Leach, 98-1817, p. 3 (La.App. 3rd Cir.4/21/99), 734 So.2d 116, 118.

      . We also note that the award of attorney’s fees in the judgment is included in the paragraph of the judgment dealing with the principal debt, not that dealing with the motion for contempt.


author: | ¡JARRO, J.

text:
    Russell W. BOLEWARE v. CITY OF BOGALUSA.
    No. 2001 CA 1014.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Charles R. Davoll, Davoli & Sorrells, Baton Rouge, for Plaintiff-Appellee Russell W. Boleware.
    Delbert G. Talley, Covington, for Defendant-Appellant City of Bogalusa.
    Before: CARTER, PARRO, and CLAIBORNE, JJ.

      . Honorable Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡JARRO, J.

In this workers’ compensation action, the employer appeals from a judgment of the Office of Workers’ Compensation Administration (OWC), denying its motion for expert witness fees and related legal expenses. For the following reasons, we affirm in part, reverse in part, and remand to the OWC for further proceedings.

Facts and Procedural History

On October 23, 1995, Russell W. Bole-ware was a firefighter for the City of Bogalusa (Bogalusa) when a leaking railroad tank car containing approximately 100,000 pounds of nitrogen tetroxide exploded at the Gaylord Chemical Plant in Bogalusa, Louisiana. A week later, Boga-lusa completed an employer’s report of occupational injury or disease in connection with Boleware’s October 23, 1995 exposure to oxides of nitrogen while working at the Gaylord plant, which exposure reportedly resulted in irritation to his throat, skin, eyes, and lungs. Boleware continued to work until November 7, 1995, when he was referred to Dr. Henry Jackson, a pul-monologist. Although Boleware returned to duty as a firefighter on March 1, 1996, he was assigned to work as a truck driver and worked in that capacity until December 15, 1996, when he experienced chest pains and shortness of breath in a firefighting incident. On December 16, 1996, Bogalusa completed an employer’s report of occupational injury or disease in connection with the chest pains and shortness of breath experienced by Boleware on December 15, 1996. Boleware was placed on paid medical leave until December 31, 1997.

From December 4, 1995, to February 28, 1996, Bogalusa paid medical benefits and indemnity benefits. Eventually, Boga-lusa denied Boleware’s claims on the basis that his health problems were actually due to a congenital heart condition. Subsequently, Boleware filed a disputed claim for workers’ compensation benefits against Bogalusa and its workers’ compensation insurer concerning the October 23, 1995 chemical spill and the December 15, 1996 incident, alleging he had suffered | ¡¡permanent lung, heart, and nervous system injuries. In its answer to Boleware’s complaint, Bogalusa prayed that judgment be granted in its favor at Boleware’s costs. After finding that Boleware was not disabled as a result of the chemical spill, the workers’ compensation judge signed a judgment in favor of Bogalusa, denying and dismissing Boleware’s claims and ordering him to pay court costs. Boleware appealed to this court, urging that the workers’ compensation judge erred in finding (1) he did not sustain injury on October 23, 1995, or December 15, 1996, and (2) he was not disabled from his employment as a firefighter as a result of injury to his lungs and/or respiratory system and the resulting potential aggravation of his preexisting heart condition. After considering the divergent views presented by the medical and lay witnesses and the credibility determinations made by the workers’ compensation judge, this court concluded that the view chosen by the judge was a permissible one and was reasonably supported by the record. Accordingly, the dismissal of Boleware’s claim for workers’ compensation benefits was affirmed. Boleware v. City of Bogalusa, 98-2528 (La.App. 1st Cir.2/18/00) (unpublished opinion).

Pursuant to the award of court costs in its favor in the judgment on the merits, Bogalusa filed a rule to fix court costs seeking reimbursement of expenses totaling $15,596.15, which it allegedly had incurred and paid in connection with this matter. Following a hearing on this rule, the workers’ compensation judge denied Bogalusa’s claim for expert witness fees and related legal expenses. Bogalusa appealed, contending that the workers’ compensation judge erred in refusing to fix the court costs that were taxed to Boleware in the judgment on the merits.

Discussion

Under LSA-C.C.P. art.1920, LSA-R.S. 13:4533, and LSA-R.S. 13:3666, the trial judge has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Bourgeois v. Heritage Manor of Houma, 96-0135 (La.App. 1st Cir.2/14/97), 691 So.2d 703, 706. LSA-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.

14LSA-R.S. 13:4533 merely delineates what is meant by the term “costs.” It does not discuss who is entitled to costs and under what circumstances. Bourgeois v. Heritage Manor of Houma, 691 So.2d at 706. According to LSA-C.C.P. art.1920, costs shall be paid by the party cast and may be taxed by a rule to show cause, unless the judgment provides otherwise.

Louisiana Revised Statute 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.
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 form a part of the final judgment in the cause.
C. In either manner provided in Subsection B, the court shall also determine and tax as costs, to be paid by the party cast in judgment, the reasonable and necessary cost of medical reports and copies of hospital records.

Based on the above statutory framework, clearly, the general rule is that expert witness fees may be taxed as costs against the party cast in judgment, and in the event an appeal is taken, the trial court retains jurisdiction to do so by a rule to show cause filed by the prevailing party even after rendition of the final judgment on the merits. Edwards v. Sawyer Industrial Plastics, Inc., 31,316 (La.App. 2nd Cir.11/1/00), 7901 So.2d 29, 32, writ granted, 00-3240 (La.2/2/01), 783 So.2d 376. The court’s authority to render a judgment for costs is further governed by the second sentence of LSA-C.C.P. art.1920, which states that a court may render judgment for costs, or any part thereof, against any party, as it may consider equitable, except as otherwise provided by law.

In workers’ compensation cases, the provisions for the awarding of costs and fees of expert witnesses are contained in LSA-R.S. 23:1317(B), which provides:

Costs may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings. The fees of expert witnesses shall be reasonable and shall not be allowed unless fixed in the judgment. The judgment rendered shall have the same force and effect and may be satisfied as a judgment of a district court. The director shall fix the fees to be charged by experts in each field of expertise on an hourly basis for the taking of the expert’s deposition and travel time if the deposition is taken away from the expert’s regular place of business. (Emphasis added).

Furthermore, with respect to the awarding of costs, LSA-R.S. 23:1310.9 provides:

If the workers’ compensation judge before which any proceedings for compensation or concerning an award of compensation have been brought, under the Worker’s Compensation Act, determines that such proceedings have not been brought on a reasonable ground, or that denial of benefits has not been based on a reasonable ground, the workers’ compensation judge shall assess the total cost of the proceedings to the party who has brought them or the party who has unreasonably denied payment of benefits.

Under this statute, an award of the total costs of the proceedings is mandatory only upon a finding that a compensation proceeding has not been brought on a reasonable ground or that denial of benefits has not been based on a reasonable ground. Because the workers’ compensation judge did not make such a finding in this case, LSA-R.S. 23:1310.9 is inapplicable.

Thus, we focus on the language of LSA-R.S. 23:1317(B). Under this statute, the ^question of awarding costs lies within the sound discretion of the workers’ compensation judge, as it does with the district court judges under the general civil provisions. Bourgeois v. Heritage Manor of Houma, 691 So.2d at 707. However, the second sentence of LSA-R.S. 23:1317(B) states that the fees of expert witnesses are allowable only when “fixed in the judgment.” Based on this language and prior jurisprudence, Bole-ware argues that expert witness fees may only be awarded in a workers’ compensation case when fixed in the judgment on the merits between the employee and employer. He urges that LSA-R.S. 23:1317(B) precludes the fixing of expert witness fees pursuant to a subsequent rule to tax costs. In denying Bogalusa’s claim for expert witness fees and related legal expenses, the workers’ compensation judge apparently agreed with Boleware’s interpretation of LSA-R.S. 23:1317(B).

A historical overview of the enactment of, and changes made to, this law reveals the following. Subsection 4 of section 18 of the Employers’ Liability Act, as originally enacted, provided:

If an answer has been filed by the respondent within the delays allowed by law or granted by the Court, or if no judgment has been entered as provided in the paragraph immediately above at the time fixed for hearing, or any adjournment thereof, the said judge shall hear such witnesses as may be presented by each party. Either party shall have the right to be present at any hearing or to appear through an attorney or any other agent. The judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided. The Judge shall decide the merits of the controversy as equitably, summarily and simply as may be. Costs may be awarded by said Judge in his discretion, and when so awarded the same costs shall be allowed, taxed and collected as are allowed, taxed and collected for like services and proceedings in civil cases. The judgment rendered by the Court shall have the same force and effect and may be satisfied as other judgments of the same Court. (Emphasis added).

See 1914 La. Acts, No. 20, § 18.4. In 1926, subsection 4 of section 18 was amended to add that “fees of medical witnesses shall be reasonable and are not to be allowed unless fixed in the judgment.” See 1926 La. Acts, No. 85, § 1. The addition of this |7sentence was analyzed by the supreme court in Jefferson v. Lauri N. Truck Lines, 192 La. 29, 187 So. 44 (1939). A divided supreme court found that the context in which the clause appears leaves no doubt that “the judgment” referred to means the judgment rendered on the merits of the controversy, as opposed to an incidental judgment subsequently rendered to fix and tax the costs. The term “costs” as used in the subject law was interpreted to refer to statutory costs or fees of court officials and of nonexpert witnesses, which were then fixed by general statutes on the subject. The court reasoned that the need for limiting and providing for the fixing of fees of medical expert witnesses arose because such fees were costs that had not been fixed by statute. The court determined that the purpose of the 1926 amendment to this section by Act 85 was “to forbid the rendering of a judgment fixing and taxing as costs fees of medical expert witnesses, after the judgment ‘on the merits of the controversy’ has become final.” Jefferson v. Lauri N. Truck Lines, 187 So. at 46.

This court in Jackson v. W. Horace Williams Co., 12 So.2d 22 (La.App. 1st Cir.1943), recognized the controlling effect of the supreme court’s decision in Jefferson v. Lauri N. Truck Lines, despite prior decisions of this court to the contrary. Jackson v. W. Horace Williams Co., 12 So.2d at 25. Exceptions have been made to the court’s ruling in Jefferson v. Lauri N. Truck Lines where the record revealed that the trial judge neglected to fix expert witness fees in the original judgment after being requested to do so both before rendition of the judgment and after rendition by a motion for a ^rehearing to revise the judgment. See Pohl v. American Bridge Division, U.S. Steel Corp., 109 So.2d 823, 830 (La.App.Orleans 1959); Jackson v. W. Horace Williams Co., 12 So.2d at 25; see also Smooth v. Southern Stevedoring Co., 116 So.2d 204 (La.App.Orleans 1959). Except for a few minor changes, the provisions interpreted in Jefferson v. Lauri N. Truck Lines are virtually identical to those in the present statute.

This court in Bourgeois v. Heritage Manor of Houma, 691 So.2d 703, addressed the assessment of expert witness fees pursuant to a rule to fix costs where the judgment on the merits of the controversy had dismissed the claimant’s claim for workers’ compensation benefits in favor of the employer and had assessed the claimant with “costs.” A subsequent judgment fixed those costs and fees. The claimant’s appeal of the judgment on the rule to fix costs sought a reduction in the amount of the fees awarded to certain expert witnesses on the ground of reasonableness or the propriety of the award under LSA-R.S. 13:3666(A). Bourgeois v. Heritage Manor of Houma, 691 So.2d at 708-709. The claimant’s appeal in Bourgeois v. Heritage Manor of Houma did not challenge the award of expert witness fees pursuant to the rule to tax costs as being in violation of LSA-R.S. 23:1317. Because that issue was not specifically raised in the appeal, we do not find this court’s ruling in Bourgeois v. Heritage Manor of Houma to be instructive or determinative of the issue raised in the instant case.

Being constrained to follow the supreme court’s ruling in Jefferson v. Lauri N. Truck Lines, we find no legal error in the workers’ compensation judge’s dismissal of Bogalusa’s claim for expert witness fees that was asserted by its rule to fix court costs after a final judgment on the merits.

| gAlthough in its answer to Boleware’s complaint, Bogalusa prayed for an award of costs in the event of the dismissal of Boleware’s claim, nothing in the record before this court on this appeal reflects that any other effort was made before, during, or immediately after the trial on the merits of this case to have the workers’ compensation judge fix the amount of expert witness fees so that such amount could be included in the judgment. Nor does the record support a finding that the workers’ compensation judge was presented with sufficient evidence during the trial on the merits from which to fix the fees of the expert witnesses that Bogalusa now seeks to have set. Accordingly, we are unable to conclude that the workers’ compensation judge erred as a matter of law or abused its discretion in denying Bogalu-sa’s request to have the fees of its expert witnesses set pursuant to a rule to fix costs.

Notwithstanding our conclusion regarding expert witness fees as an element of costs, the original judgment on the merits in this case ordered Boleware to pay court costs, in general. Under the clear language of LSA-R.S. 23:1317, the question of awarding costs lies within the sound discretion of the workers’ compensation judge, as it does with the courts under the general civil provisions. Bourgeois v. Heritage Manor of Houma, 691 So.2d at 707. Although there was an appeal from the judgment on the merits, the workers’ compensation judge’s award of court costs in favor of Bogalusa was not raised by either party on appeal. Therefore, it became final. The fixing of such costs can be accomplished by a rule to show cause after judgment on the merits, and the workers’ compensation judge erred in failing to fix those costs.

Decree

For the foregoing reasons, that portion of the judgment of the workers’ compensation judge denying Bogalusa’s claim for fees of expert witnesses is affirmed. Otherwise, judgment is reversed, and this matter is remanded for the determination |1nand fixing of other court costs. Each party is assessed with their own costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The workers' compensation judge in this case was Honorable Delos R. Johnson, Jr., of District 6.

      . Furthermore, under LSA-C.C.P. art.2088, which specifies those matters over which a trial court retains jurisdiction once a judgment has been appealed, the trial court has jurisdiction in the case over those matters not reviewable under the appeal, including the right to set and tax costs and expert witness fees.

      . We note that after recognizing this general rule, the Edwards v. Sawyer Industrial Plastics, Inc. court found that it was inapplicable in workers' compensation cases, distinguishing this court’s Bourgeois v. Heritage Manor of Houma decision because the timing of the fixing of expert witness fees was not an issue there. Edwards v. Sawyer Industrial Plastics, Inc., 790 So.2d at 32. Although the timing issue was the only issue in the Edwards v. Sawyer Industrial Plastics, Inc. case and the supreme court granted a writ on the issue, there has been no further action from the supreme court.

      . The fact that the workers' compensation judge is vested with great discretion in assessing and awarding costs is also provided in LAC 40:1.6609(B) which provides in pertinent part: “Costs shall include a $30.00 filing fee, and may include expert witness fees, court reporter fees, and costs of depositions and such other costs allowed by law, at the Workers' Compensation Judge's discretion.”

      . In Jefferson v. Lauri N. Truck Lines, nearly five months after the judgment had become final and some time after it was paid, a doctor, who had testified as a medical expert witness for the claimant on the trial of the case, applied for and obtained a. rule to show cause why the defendants should not be required to pay his fees, to be fixed by the judge, for the medical expert testimony. Jefferson v. Lauri N. Truck Lines, 187 So. at 45. In affirming the appellate court opinion denying the doctor’s claim, the court noted that there was no mention of fees of medical or expert witnesses in the judgment that was rendered in the suit. Jefferson v. Lauri N. Truck Lines, 187 So. at 47.

      . In a dissenting opinion, Justice Higgins made the point that the quoted sentence referred to the judgment taxing costs and not to the judgment on the merits. To hold otherwise would embroil the trial court in disputes regarding expert fees, "controversies which were foreign to the merits of the case.” Jefferson v. Lauri N. Truck Lines, 187 So. at 48 (Higgins, J. dissenting).

      . Cf. Arriaga v. Reliance Insurance Co., 564 So.2d 832, 838 (La.App. 3rd Cir.1990), which held, without mention of Jefferson v. Lauri N. Truck Lines or LSA-R.S. 23:1317, that where the trial court in a workers' compensation action did not make any specific ruling as to the setting and assessment of expert witness fees, the appropriate procedure was for the claimant to file a rule to show cause in the trial court for a specific assessment of those fees.

      . A 1988 amendment substituted references to the hearing officer for existing references to the court throughout the section, substituted "expert witnesses” and "a judgment of a district court” for "medical witnesses” and "other judgments of the same court” in the second and third sentences of subsection B, respectively, and added a fourth sentence to subsection B regarding deposition fees of experts. See 1988 La. Acts, No. 938, § 1, effective July 1, 1989. In 1997, "workers' compensation judge” was substituted for "hearing officer” throughout. 1997 La. Acts, No. 88, § 1.

      .Furthermore, the opinion in Bourgeois v. Heritage Manor of Houma does not disclose sufficient facts from which to determine whether the workers’ compensation judge neglected to fix expert witness fees in the original judgment after being requested to do so, such that it would constitute an exceptional circumstance similar to the ones presented in Pohl v. American Bridge Division, U.S. Steel Corp., or Smooth v. Southern Stevedoring Co.

      . Accord Edwards v. Sawyer Industrial Plastics, Inc., 790 So.2d at 35.

      . The following are litigation costs that would not be allowable as court costs because they are outside the scope of LSA-R.S. 13:4533: duplication costs of various documents and medical reports not used on the trial, postage and telephone charges, as well as plaintiff’s food and lodging during the trial.
        Degruise v. Houma Courier Newspaper Corp., 00-0229 (La.App. 1st Cir.3/28/02), 815 So.2d 1074, 1081, writs denied, 02-1179, 02-1202 (La.6/21/02), 819 So.2d 342 and 345.