author: I JAMES, J. |!PATTERSON, J.,

text:
    Ruth RUSSELL v. SNELLING PERSONNEL.
    No. 2001 CA 2134.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 2002.

      Gregory S. Unger, Metairie, for Plaintiff-Appellee Ruth Russell.
    Bradley P. Naccari, Metairie, for Defen-danh-Appellant Snelling Personnel.
    Before: PARRO, JAMES  and PATTERSON, JJ.

      . Judge A. Clayton James, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

      . Michael A. Patterson is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   I JAMES, J.

Defendant, Snelling Personnel (Snelling), appeals a judgment signed by a workers’ compensation judge (WCJ) on April 20, 2001, awarding claimant, Ruth Russell, a penalty in the amount of $2,000.00 for Snelling’s improper termination of her physical therapy benefits, attorney’s fees in the amount of $2,000.00, and costs in the amount of $3,456.25. Further, defendant appeals the WCJ’s ruling issued on September 13, 2000, following an evidentiary hearing on claimant’s motion to compel discovery responses and for attorney’s fees and penalties, in which the WCJ awarded claimant $2,500.00 in attorney’s fees. Claimant has answered the appeal seeking additional attorney’s fees.

FACTS AND PROCEDURAL HISTORY

Defendant is a personnel agency that had placed claimant in a position with LCR-M Corporation (LCR). On December 15, 1999, while in the course and scope of her employment with LCR, claimant sustained an injury to her arm and shoulder. Defendant accepted claimant’s workers’ compensation claim as compensable, and claimant was immediately treated by Dr. Raina at the Slidell Memorial Hospital Family Care East Clinic. She returned to the same clinic for treatment three more times over the next couple of weeks, and at her last visit on December 27, 1999, Dr. Raina referred her to an orthopedic surgeon for further treatment.

Dr. Jones, an orthopedic surgeon, then began treating claimant on January 17, 2000, and during the course of treatment, he recommended that lsshe receive physical therapy. Defendant authorized approximately thirty sessions of physical therapy and then made the decision not to authorize additional treatments being recommended by Dr. Jones, based on its determination that claimant was not responding well to the physical therapy. However, claimant was still experiencing pain, and on the advice of Dr. Jones, she sought additional treatment from Dr. Logan, another orthopedic specialist, and additional physical therapy.

Claimant filed a disputed claim for compensation benefits. Then, in response to defendant’s refusal to pay for certain diagnostic tests recommended by Dr. Logan, claimant filed a motion to compel payment of medical expenses. Specifically, claimant requested payment by the defendant for the EMG/NCS studies and MRI recommended by Dr. Logan, reimbursement for her travel expenses, and penalties and attorney’s fees for defendant’s arbitrary refusal to authorize medical treatment.

After claimant filed her motion, defendant authorized the MRI and EMG/NCS studies and reimbursed claimant for her travel expenses, and then the parties entered into a consent judgment, signed on June 29, 2000, wherein defendant agreed to pay claimant $750.00 in attorney’s fees and claimant agreed to dismiss her motion to compel payment of medical expenses. As defendant had already complied with the other requests contained in claimant’s motion, the parties entered into the consent judgment for the limited purpose of settling the issue of the penalties and attorney’s fees to which claimant was entitled in connection with the approval of the diagnostic tests and reimbursement of travel expenses. The consent judgment expressly reserved any other rights claimant might have, specifically stating that it “in no way affects the plaintiffs right to past |4benefits other than the benefits specifically addressed above nor her rights to future benefits.”

During the course of this litigation, claimant had served interrogatories, requests for production of documents, and requests for admissions on defendant on April 27, 2000. After claimant agreed to an informal extension of time, defendant responded on June 23, 2000, but then was notified by claimant that the responses were insufficient. Pursuant to an agreement reached between the parties, defendant provided claimant with supplemental responses on August 14, 2000. However, those were again deficient, and claimant filed a motion to compel discovery responses and for attorney’s fees and penalties on August 17, 2000.

Twelve days after the filing of claimant’s motion, defendant provided claimant with its second supplemental answers to interrogatories and supplemental responses to requests for production of documents. A hearing on claimant’s motion was held on September 8, 2000. Although claimant acknowledged that defendant had already satisfied her discovery requests, the WCJ granted claimant’s motion to compel and ordered defendant to pay attorney’s fees incurred in connection with the filing of the motion to compel discovery in the amount of $2,500.00.

After a trial on the merits, the parties were allowed to file post trial memoranda. Along with her memorandum, claimant submitted Exhibit “J,” which was a record of her attorney’s time and costs expended in the litigation. Defendant filed a motion to strike the exhibit because it was not admitted into evidence at trial. The WCJ granted defendant’s motion to strike and ordered that the exhibit not be considered as evidence nor considered by the court in rendering its judgment. However, when he issued his judgment, he awarded costs to claimant in the exact amount requested by | (¡claimant in Exhibit “J.” In addition, claimant was awarded $2,000.00 for defendant’s improper termination of physical therapy benefits and $2,000.00 in attorney’s fees. Defendant has now appealed.

LAW AND ANALYSIS

Defendant first argues that claimant’s claim for penalties and attorney’s fees in connection with defendant’s improper termination of physical therapy benefits is barred by res judicata due to the consent judgment rendered on June 29, 2000. This contention is without merit. The consent judgment was limited to settling the issue of penalties and attorney’s fees in connection with defendant’s refusal to approve certain diagnostic tests and refusal to reimburse claimant’s travel expenses. The consent judgment did not settle the entire dispute between the parties, and it specifically reserved any other rights claimant might have had to past or future benefits. Therefore, res judicata does not bar claimant’s claim for penalties and attorney’s fees in connection with defendant’s improper termination of physical therapy benefits.

Next, defendant argues that claimant is not entitled to penalties and attorney’s fees because defendant was not arbitrary and capricious in discontinuing payment for the additional physical therapy treatments recommended by Dr. Jones. A claimant’s statutory right to attorney’s fees for improper termination of benefits is set forth in La. R.S. 23:1201.2, which provides, in pertinent part, as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney’s fees for the prosecution and collection of such claims.

| fiUnder this statute, an employer who terminates compensation benefits in an arbitrary or capricious manner, or without probable cause, is subject to the payment of attorney’s fees. Patterson v. Long, 96-0191 (La.App. 1st Cir.11/8/96), 682 So.2d 1327, 1336, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. However, in the instant case, the WCJ also awarded claimant a penalty of $2,000.00 for defendant’s improper termination of physical therapy benefits. The penalty was unauthorized because only attorney’s fees are recoverable under La. R.S. 23:1201.2 for the employer’s arbitrary discontinuance of payment of benefits. See Williams n Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 45.

If this had been a situation where the employer had failed to commence payment of benefits, then both penalties and attorney’s fees would be recoverable. See Rush Masonry, 737 So.2d at 45. However, in this case the employer initially authorized payment of claimant’s physical therapy benefits, but then discontinued them. In fact, the WCJ even states in his reasons for judgment that the penalty is “for improper termination of physical therapy benefits,” and such a penalty is clearly not authorized under the statute. Accordingly, we reverse the portion of the judgment awarding claimant a penalty in the amount of $2,000.00 for defendant’s improper termination of physical therapy benefits.

With respect to the award of $2,000.00 in attorney’s fees for defendant’s improper termination of benefits, we note that such an award is proper under La. R.S. 23:1201.2 when the employer has acted arbitrarily or capriciously or without probable cause. Rush Masonry, 737 So.2d at 45. Behavior is arbitrary and capricious when it is willful, unreasonable, or “without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Rush Masonry, 737 So.2d at 45-46 (citing Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890, referring to Black’s Law Dictionary 104, 211 (6th ed.1990)). This means that the employer must adequately investigate the claim before making the decision to terminate benefits. The crucial inquiry is whether the employer had an articulable and objective reason for discontinuing benefits at the time it took that action. Rush Masonry, 737 So.2d at 46.

In the instant case, the WCJ found that an award of attorney’s fees was warranted because defendant did not adequately investigate and assess claimant’s medical status before terminating physical therapy treatment. In his reasons for judgment, the judge stated:

Dr. Jones ultimately discharged Russell on March [31,] 2000, restricting her from all work and recommended Russell seek a second opinion. Additionally, he recommended physical therapy which, according to the Plaintiff, was authorized. Thirty treatments more or less were received, according to the medical review by the Defendant, and further, according to medical review, Ruth Russell’s response to physical therapy was poor and that future physical therapy was withdrawn as not medically necessary.
However, evidence illustrates that some physical therapy appointments were denied and others cut short and discontinued. Insufficient evidence was presented by Snelling to prove the medical basis by which medical services came to the conclusion to terminate physical therapy at thirty plus or minus treatments; and as such, a reasonable controversion was not provided by the defense. Noteworthy, the physical therapist records state that Russell was making progress and would have benefited from additional PT.
Consequently, the employer’s found to have failed to fully investigate, assemble, and assess accurate information on the employee’s medical status before terminating physical therapy treatment, especially in light of Dr. Tiel’s opinion that additional physical therapy may be of benefit. The court acknowledges and cites Gordon v. Sandersons Farms, 693 So.2d 1279. Thus, valuable rehab time has been lost with ultimately returning Russell to some form of gainful employment. Consequently, the defendant is assessed and the plaintiff awarded a penalty of $2,000.00 for improper termination of physical therapy benefits as well as attorney’s fees in the amount of $2,000.

x Whether an employer’s discontinuation of benefits is arbitrary, capricious, or without probable cause and warrants the imposition of attorney’s fees is a factual question which will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Patterson, 682 So.2d at 1337. We have thoroughly reviewed the record and the evidence in this case and conclude that the decision of the WCJ to award claimant $2,000.00 in attorney’s fees was not manifestly erroneous. The duty of an appellate court is simply to determine whether the fact finder’s conclusion was a reasonable one in view of the record in its entirety, Stobart v. State, Through Dept. of Transportation and Development, 617 So.2d 880, 882-883 (La.1993), and we conclude that the WCJ was reasonable in awarding claimant attorney’s fees.

Defendant has also asserted that the WCJ erred in the amount of costs awarded to claimant in connection with this litigation. The WCJ awarded claimant $3,456.25 in costs, which is the exact amount set forth by claimant in Exhibit “J,” which was attached to her post trial memorandum. Although the exhibit was ordered stricken from the record because it had not been admitted into evidence at trial, defendant argues that the WCJ must have improperly relied on the itemizations set forth in Exhibit “J.” In relying on those itemizations, defendant argues that the WCJ awarded costs for expenses that should not be included in an award of costs, namely, expenses associated with depositions that were not introduced into evidence at trial and expenses for postage, photocopies, facsimiles, copies of medical records, Westlaw research, court reporter costs for depositions, and witness fees.

Under La.Code Civ. P. art.1920, “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” |fl Louisiana Revised Statute 13:4533 describes the expenses that are allowed to be taxed as costs, which include “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.” The workers’ compensation statute regarding the allowance of costs provides that the workers’ compensation judge may award costs, in his discretion, in the same manner as in other civil proceedings. La. R.S. 23:1317(B).

Under these statutes, the trial judge has great discretion in awarding costs, and his assessment of costs can be reversed by the appellate court only upon a showing of an abuse of discretion. Barrilleaux v. Franklin Foundation Hosp., 96-0343 (La.App. 1st Cir.11/8/96), 683 So.2d 348, 361, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864. However, La. R.S. 13:4533 does provide that only depositions “used on the trial” can be taxed as costs, and only depositions that are introduced and accepted into evidence are considered “used on the trial” for purposes of the statute. Barrilleaux, 683 So.2d at 361 (citing Succession of Franz, 242 La. 875, 139 So.2d 216, 219 (1962)). Accordingly, it is an abuse of discretion for a trial judge to award costs for a deposition that was not introduced into evidence at trial. Barrilleaux, 683 So.2d at 361.

In the instant case, the cost of Dr. Jones’ deposition is indisputably taxable as a cost because it was introduced and accepted into evidence at trial. Also, clearly taxable as costs are the witness fees paid to one of claimant’s witnesses, Pauline Hayes. Although the deposition of claimant was used during the trial by defendant to impeach her, it was never admitted into evidence. Similarly, the deposition of a Snelling representative, Audrey Borchert, was used during the trial to successfully elicit certain testimony, but it was never admitted into evidence. Therefore, the costs of those two | ^depositions should not have been taxed as costs by the WCJ. See La. R.S. 13:4533.

The problem is that there is nothing in the record before us establishing which expenses were awarded by the WCJ as costs, or even for which expenses claimant was requesting reimbursement. Exhibit “J,” which contained a list of claimant’s expenses, was ordered stricken from the record and, therefore, is not before us. The parties have addressed the matter in the memoranda they submitted to the WCJ and in the briefs they submitted to this court, but that is not sufficient to allow us to make a determination as to the amount of costs which should be awarded in this case. Therefore, we must remand this matter to the office of workers’ compensation administration for a determination as to costs.

Defendant finally asserts that claimant is not entitled to attorney’s fees in the amount of $2,500.00 in connection with the filing of her motion to compel discovery responses because all discovery had been satisfied by defendant prior to the hearing on the motion, and the WCJ had recognized that fact in his judgment and written reasons for judgment. Under La.Code Civ. P. art. 1469, a party is entitled to attorney’s fees in connection with a motion to compel discovery in certain situations. That article provides, in pertinent part:

(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

The motion to which La.Code Civ. P. art. 1469 refers is a motion for an “order compelling discovery,” not a motion for a rule to show cause why Lithe order should not issue. Tate v. Tate, 442 So.2d 1379, 1382 (La.App. 3d Cir.1983); see also Dural v. City of Morgan City, 407 So.2d 757, 759 (La.App. 1st Cir.1981). Accordingly, attorney’s fees may be awarded only if an order is issued directing that discovery requests be answered. Dural, 407 So.2d at 759.

In the instant case, the language of the judgment states that claimant’s motion “is hereby granted,” but this does not constitute an “order compelling discovery” and could not have because claimant acknowledged that defendant satisfied her discovery requests twelve days after the motion was filed, as recognized by the WCJ. Therefore, there was no outstanding discovery to which defendant could be compelled to respond, and the WCJ had no authority to award attorney’s fees. This court is aware of Smith v. Smith, 398 So.2d 549 (La.App. 1st Cir.1979), writ denied, 399 So.2d 585 (La.1980), which seems to be in conflict with Dural. However, Dural is the most recent case in this circuit on the issue, and it therefore controls our decision. Accordingly, we must reverse the portion of the judgment awarding claimant attorney’s fees in connection with her motion to compel discovery responses.

It may well be that the moving party should be allowed attorney’s fees for the filing of the motion regardless of whether an order issues. However, the directive of La.Code Civ. P. art. 1469 is clearly to the contrary, and the problem is one which addresses itself to the legislature because we are obliged to follow the law as written. Tate, 442 So.2d at 1382, n. 2.

| ^CONCLUSION

For the foregoing reasons, we affirm the judgment of the WCJ awarding claimant $2,000.00 in attorney’s fees incurred in connection with the discontinuance of medical benefits. We reverse the portion of the judgment of the WCJ awarding claimant a penalty in the amount of $2,000.00, as well as the September 13, 2000 ruling which awarded claimant $2,500.00 in attorney’s fees in connection with the filing of her motion to compel discovery responses. We further remand this matter to the office of workers’ compensation administration for a determination of the amount of costs due to claimant in connection with this litigation consistent with the views expressed in this opinion. The request by plaintiff-appellee, Ruth Russell, for attorney’s fees incurred in answering and defending this appeal is denied. Each party is assessed with their own costs relative to this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PARRO, J., concurs.

PATTERSON, J., concurs with reason.

|!PATTERSON, J.,

concurring.

I concur in the reversal of the portion of the judgment awarding claimant attorney’s fees in connection with the motion to compel, believing the language of La. C.C.P. art.1469 binds us, as does this court’s ruling in Dural v. City of Morgan City, 407 So.2d 757, 759 (La.App. 1st Cir.1981). However, I add the following comments in the hopes that the legislature will revisit the wording of La. C.C.P. art. 1469 to clarify this issue.

Discovery requests are propounded upon opposing counsel pursuant to the methods provided in La. C.C.P. art. 1420, et seq. Delay in responding to the requests is provided for in the articles. In the present matter, the claimant served interrogatories, requests for production of documents, and requests for admissions on defendant on April 27, 2000. The discovery procedures used by claimant each provided for a fifteen day period after service in which the party shall answer and/or object to the demand. See La. C.C.P. arts. 1458,1462, and 1467.

Motions for orders compelling discovery are filed as a last resort. See La. C.C.P. art. 1469. Typically, a party files discovery requests and the delays for response expire without a proper response, as is the present situation. The claimant’s discovery requests were propounded on the defendant on April 27, 2000. The claimant granted the defendant an informal extension of two weeks to respond to the discovery on May 1, 2000. On June 6, 20, and 27, 2000, the ^claimant sent correspondence to defense counsel regarding the outstanding discovery. The defendant responded with incomplete discovery. A final letter was sent to defense counsel on August 14, 2000, to no avail. Due to the untimely and incomplete response to the discovery requests provided by the defendant, the claimant was forced to file the motion to compel. A complete response to the discovery was finally given on August 29, 2000, twelve days after the motion to compel was filed. The WCJ noted in its judgment and written reasons for judgment that defendant delayed discovery for four months.

Despite the egregious conduct of the defendant, because the party ultimately responded to the discovery, no order compelling discovery may be issued. Thus, the dilatory party has suffered no consequence for the delay. Additionally, the requesting party has exhausted time and expense which cannot now be recovered. In my view, once the requesting party has to file such a motion, some consequence must attach for the actions of the delinquent party.

      .La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers' compensation district from which the appeal was taken and the name of the workers’ compensation judge who rendered the judgment. The WCJ was Honorable Robert W. Varnado, Jr. of the Office of Workers' Compensation Administration, District 6.

      . Claimant has also asserted that she should have been awarded an additional penalty of $500.00, pursuant to La. R.S. 23:1203(E), for defendant's failure to provide her with information regarding its procedure for requesting an independent medical examination. However, claimant did not raise the issue in the lower court, and this appellate court will not consider issues raised for the first time on appeal. See Segura v. Frank, 93-1271, 93-1401 (La. 1/14/94), 630 So.2d 714, 725.

      . If the trial judge does not have the discretion to award attorney’s fees unless an order compelling discovery actually issues, then a party who wishes to delay discovery is allowed to sit back and wait to be ruled into court and yet still avoid discovery sanctions by answering discovery a day before the hearing.

      . Defense counsel's behavior is the type which the first four canons of the Code of Professionalism attempt to prevent. The Code of Professionalism was adopted by the Louisiana State Bar Association and approved by the Supreme Court of Louisiana on January 10, 1992. The Code of Professionalism provides, in pertinent part:
      • I will conduct myself with dignity, civility, courtesy and a sense of fair play.
      • I will not abuse or misuse the law, its procedures or the participants in the judicial process.
      • I will consult with other counsel whenever scheduling procedures are required and will be cooperative in scheduling discovery, hearings, the testimony of witnesses and in the handling of the entire course of any legal matter.
      • I will not file or oppose pleading, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment of any other counsel or party. I will allow counsel fair opportunity to respond and will grant reasonable requests for extensions of time.

        Code of Professionalism, Louisiana State Bar Association, Revised 3/15/02.


source: Caselaw Access Project

author: laKUHN, J.

license: Public Domain

text:
    Carolyn BOUDREAUX v. AUDUBON INSURANCE COMPANY, et al.
    No. 2001 CA 2061.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 16, 2002.

      Matthew W. Bailey, Baton Rouge, for Plaintiff/Appellee Carolyn Boudreaux.
    Sherri A. Young, Baton Rouge, David E. Walle, New Orleans, for DefendanVAppel-lant Audubon Ins. Co.
    Larry M. Roedel, Terry T. Dunlevy, Baton Rouge, for Defendant/Appellee Jacky Johnson.
    Before: KUHN, DOWNING, and LANIER,
       JJ.

      . The Hon. 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.

   laKUHN, J.

Audubon Insurance Company (Audubon) appeals a partial summary judgment in favor of plaintiff-claimant, Carolyn Bou-dreaux, and Audubon’s insured-defendant, Jacky Johnson, in this personal injury lawsuit filed by Boudreaux. The trial court concluded that the Audubon homeowners policy provided liability coverage to Johnson for Boudreaux’s claims and also declared that the insurer has a duty to defend Johnson in this lawsuit. For the following, reasons, we dismiss Audubon’s appeal without prejudice.

BACKGROUND

According to the allegations of Bou-dreaux’s petition, filed on September 1, 2000, while an invited guest of Johnson, she slipped and fell as a result of a hazardous or defective condition in the premises located at 621 Day Drive in Baker, LA. Boudreaux named as defendants in her lawsuit, premises owner Johnson, and his homeowners insurer, Audubon. Audubon answered the lawsuit, denying inter alia, that it provided coverage to Johnson for Boudreaux’s claims. Johnson separately answered Boudreaux’s lawsuit and asserted a cross claim against his homeowners insurer seeking a determination that under the terms of the policy it issued, Audubon provided coverage for Boudreaux’s claims and owed him a defense. Johnson’s cross claim requests from Audubon indemnification and a defense in the lawsuit filed by Boudreaux. Johnson also seeks damages, court costs, and attorney’s fees from Audubon for the insurer’s alleged arbitrary and capricious action or inaction in this matter.

Audubon subsequently filed a motion for summary judgment, urging entitlement to dismissal from the lawsuit under policy exclusions and that no genuine material facts existed on the issue of whether it owed Johnson a duty to defend against Boudreaux’s claims. Boudreaux and Johnson filed cross motions for summary judgment: both asserting entitlement to a judgment concluding Audubon afforded Johnson coverage for Boudreaux’s claims, and Johnson further averring that Audubon owed him a defense.

IsAfter a hearing, the trial court denied Audubon summary judgment but granted relief to Boudreaux and Johnson, finding the Audubon homeowners policy afforded coverage to Johnson and that Audubon owed its insured a defense in this lawsuit. Audubon appeals.

DISCUSSION

According to the provisions of La. C.C.P. art. 966E:

A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.

In this case, the merits of Boudreaux’s claim for damages against Johnson have not been decided. And Johnson’s assertion to entitlement to damages, court costs, and attorney’s fees alleged in his cross claim against Audubon have likewise not been fully disposed of by the trial court. Thus, the grant of summary judgment in favor of Boudreaux and Johnson, falling within the ambit of La. C.C.P. art. 966E, is a partial summary judgment.

This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art.2083. An appeal may be taken from a final judgment under Article 1915A without the judgment being so designated. La. C.C.P. art.1911.

The trial court’s grant of partial summary judgment in favor of appellees was appealed by Audubon subsequent to the amendment to La. C.C.P. art. 1915A. See La. Acts 1999 No. 89, § 1 and No. 1263, § 1. Thus, in addressing this matter, we examine that version of La. C.C.P. art. 1915A, which states in relevant part:

A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E). (Emphasis added.)

The partial summary judgment rendered under La. C.C.P. art. 966E that Audubon appeals, which neither granted appellees all the relief prayed for in their respective Upleadings nor adjudicated all of the issues in this case, is not a final one under La. C.C.P. art. 1915A.

No appeal may be taken from a partial final judgment (which necessarily includes a grant of summary judgment) until the judgment has been designated a final judgment in accordance with Article 1915B. See La. C.C.P. art.1911. Louisiana Code of Civil Procedure article 1915B provides in pertinent part:

(1) When a court renders a partial judgment or partial summary judgment ... as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis added.)

We note that the designation and no-just-reason-for-delay determination required by La. C.C.P. art. 1915B is commonly referred to as “certification.” See Succession of Grimmett, 31,975, 32,217, 32,364, p. 4 (La.App.2d Cir.3/5/99), 738 So.2d 27, 30.

The record does not include the transcript from the hearing, although the oral reasons for judgment were transcribed and filed into the record. The trial judge stated, “I grant [Boudreaux’s and Johnson’s] summary judgment, deny Audubon’s summary judgment and make this a final determination and will sign judgment accordingly.” The signed judgment provides, “IT IS ... ORDERED, ADJUDGED AND DECREED that this is a final judgment.” Nothing in this record establishes that the parties requested the trial court to designate the partial summary judgment final. Neither the trial judge’s transcribed reasons nor the judgment even cursorily states that no just reason for delay exists. And nothing in | sthis record suggests that an express no-just-reason-for-delay determination was undertaken by the trial judge.

As noted by the Third Circuit in Woodward v. Cutrer, 2001-0378, p. 3 (La.App. 3d Cir.10/3/01), 796 So.2d 900, 902, this court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art.2083. Thus, in the absence of a designation of the judgment as final through an express determination — i.e., a meaningful and considered articulation by the trial court — of no just reason for delay, a jurisdictional defect exists. The prudent course is that taken in Succession of Grimmett, 31,975, 32,217, 32,364 at p. 3, 738 So.2d at 31, wherein the Second Circuit stated:

[W]e agree that, generally speaking, it is improper to review the merits of an uncertified partial judgment pursuant to supervisory jurisdiction, without first considering whether or what the trial court has ruled on the propriety vel non of certification. To do so would take from the trial court the responsibility invested in it by the legislature of weighing and balancing the competing factors with which that court is more familiar and upon which it is to exercise its discretion in determining whether the interest of sound judicial administration will be better served through an immediate appeal. At the same time, our conclusion in no way restricts the plenary supervisory powers this court may exercise in its discretion in a proper case.

The record before us: (1) does not show a request by any party to have the partial summary judgment designated as final; (2) includes a judgment that does not even perfunctorily express that no just reason for delay exists in the trial court’s ostensible designation of the partial summary judgment as final; and (3) lacks a meaningful and considered articulation by the trial court in support of an implicit determination of no just reason for delay in conformity with the express language of the present version of La. C.C.P. art. 1915B(1). Thus, applying the express language of La. C.C.P. art. 1915B(2), we hold “[i]n the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal.” And when an appeal of [ fian uncertified partial judgment or summary judgment comes before this court, we ordinarily will not exercise our supervisory jurisdiction to address the merits. Because the trial court has neither determined no just reason for delay nor statutorily complied with the designation procedure set forth in La. C.C.P. art. 1915B(1), Audubon’s appeal is dismissed without prejudice.

CONCLUSION

For these reasons, Audubon’s appeal of the partial summary judgment granted in favor of Carolyn Boudreaux and Jacky Johnson is dismissed without prejudice.

APPEAL DISMISSED.


author: | .WHIPPLE, J.

text:
    MORTON BUILDING, INC. v. REDEEMING WORD OF LIFE CHURCH and David M. Diamond. Redeeming Word of Life Church, Inc. v. Morton Buildings, Inc. and John B. Dunlap, III.
    No. 2001 CA 1836, 2001 CA 1837.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 16, 2002.

      John B. Dunlap, Scott E. Mercer, Baton Rouge, for Plaintiff/Appellee, Morton Budding, Inc.
    Murphy J. Foster, III, Steven B. Loeb, for Defendant/Appellant, Redeeming Word of Life Church.
    Before: WHIPPLE, LANIER and CIACCIO, JJ.

      . Judge Walter I. Lanier, Jr., retired, is serving as judge ad hoc and Judge Philip C. Ciac-cio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .WHIPPLE, J.

Defendant, Redeeming Word of Life Church, appeals from a judgment of the trial court, annulling a final judgment in its favor on the finding that the earlier judgment was obtained through ill practices. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1994, Reverend David Diamond, pastor of Redeeming Word of Life Church, Inc. (Redeeming Word), entered into design and construction contracts with Morton Buildings, Inc. (Morton Buildings) for the design and construction of a gymnasium and educational building.

Before construction began, the parties became aware that the proposed elevation for the building as set forth in the plans did not comply with the building code for the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) and that it would be necessary to construct the building at an elevation over two feet higher than that proposed in order to comply with the building code.

Due to cost constraints, Morton Buildings, through its representative, agreed to apply for a flood variance on behalf of Redeeming Word along with the building permit, requesting that the church be allowed to construct the gymnasium at the lower elevation. When a building permit was subsequently issued, Morton Building assuméd that the variance had also been granted and, accordingly, began construction of the gymnasium at the lower elevation.

However, when construction of the building was approximately 90% complete, the Department of Public Works for the City/Parish denied the application for a flood variance for construction of the gymnasium. Because the building, as constructed, was not in compliance with the building code and a variance was not granted, Redeeming Word was unable to obtain a certificate of permanent occupancy upon completion of construction.

|3Pue to the church’s inability to obtain a certificate of permanent occupancy, Reverend Diamond, on behalf of Redeeming Word, refused to make final payment on the construction contract, design services contract and a change order. Morton Buildings then filed suit against Redeeming Word seeking payment on the contracts. Redeeming Word reconvened against Morton Buildings alleging breach of the construction contract and seeking return of the contract price and damages.

Following trial, the trial court found that construction of the building was substantially complete, thus entitling Morton Buildings to payment on the contracts. The court further found that while Morton Buildings had undertaken to help Redeeming Word secure the building permit and flood variance, it had no duty to guarantee that the variance would be granted. Thus, the trial court found no breach of contract by Morton Buildings and denied Redeeming Word’s reconventional demand.

On appeal, this court reversed the trial court’s judgment in its entirety. Morton Buildings, Inc. v. Redeeming Word of Life Church, Inc., 97-2251, p. 12 (La.App. 1st Cir.11/6/98), 744 So.2d 5, 12, writ denied, 99-0687 (La.4/30/99), 741 So.2d 16. With regard to Morton Buildings’ demand, this court concluded that, because the building could not serve its intended purpose at its present elevation, Morton Buildings had not substantially performed the contract. This court noted that Redeeming Word was occupying the building at the time of trial pursuant to a temporary occupancy permit, but that Reverend Diamond had testified that the temporary occupancy permit was granted only for the duration of the litigation. Morton Buildings, Inc., 97-2251 at p. 5 n. 3, 744 So.2d at 8 n. 3. Thus, this court concluded, because the building was not fit for its intended purpose, Morton Buildings had failed to prove its entitlement to payment on the construction contract. Morton Buildings, Inc., 97-2251 at p. 11, 744 So.2d at pp. 11-12. Additionally, with regard to Redeeming Word’s reconventional demand, Rthis court further concluded that, while Morton Buildings had no duty to guarantee that a flood variance would be granted, Morton Buildings had breached the duty it assumed of applying for the flood variance by simply assuming that the variance had been granted by virtue of the building permit having been granted and beginning construction without verifying that the variance had in fact been granted. Morton Buildings, Inc., 97-2251 at pp. 10-11, 744 So.2d at 11. Accordingly, this court awarded Redeeming Word a return of all sums paid on the construction contract. Morton Buildings, Inc., 97-2251 at pp. 11-12, 744 So.2d at 12. The Supreme Court denied Morton Buildings’ writ application on April 30, 1999. Morton Buildings, Inc. v. Redeeming Word of Life Church, Inc., 99-0687 (La.4/30/99), 741 So.2d 16.

After rendition of this court’s opinion and a denial of Morton Buildings’ writ application by the Louisiana Supreme Court, Morton Buildings filed a petition to nullify the previous judgment in favor of Redeeming Word. Morton Buildings alleged that subsequent to the Supreme Court’s denial of its writ application and the resulting finality of this court’s prior judgment, Redeeming Word had continued to use and occupy the building and had, in fact, obtained a certificate of permanent occupancy on June 16,1999.

Morton Buildings alleged that during the pendency of the appeal of the original judgment, Redeeming Word had been informed by an attorney for the City/Parish that the City/Parish would grant Redeeming Word a certificate of permanent occupancy upon Redeeming Word’s execution of an indemnification agreement in favor of the City/Parish. Additionally, Morton Buildings alleged that Redeeming Word had, in fact, executed the indemnification agreement in August of 1998, prior to rendition of this court’s opinion in the original appeal. Thus, Morton Buildings contended, Redeeming Word’s silence to this court and the Supreme Court as to its ability to obtain a certificate of permanent occupancy by | ¡¡mere execution of an indemnity agreement and its continued representation that the building was useless constituted fraud and ill practices pursuant to LSA-C.C.P. art.2004. Accordingly, Morton Buildings claimed that the basis for this court’s previous judgment no longer existed.

Following a hearing on cross motions for summary judgment, the trial court denied Redeeming Word’s motion for summary judgment, granted Morton Buildings’ motion and annulled this court’s November 6, 1998 judgment in favor of Redeeming Word pursuant to LSA-C.C.P. art.2004, finding that the prior judgment was obtained by ill practices. From this judgment, Redeeming Word appeals.

SUMMARY JUDGMENT

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). The burden of proof remains with the mover. LSA-C.C.P. art. 966(C)(2).

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Spears v. Jones, 2000-2799, p. 4 (La.App. List Cir.2/15/02), 807 So.2d 1182, 1185, writs denied, 2002-0663, 2002-0767 (La.5/3/02), 815 So.2d 106, and 826.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that governed the trial court’s determination of whether summary judgment is appropriate. BellSouth Telecommunications, Inc. v. Industrial Enterprises, Inc., 96-0682, p. 4 (La.App. 1st Cir.2/14/97), 690 So.2d 145, 148.

ANNULMENT OF THIS COURT’S PREVIOUS JUDGMENT

Judgments are not infallible. However, even if an error is made, once a judgment becomes res judicata, it is not reversible on grounds of mere error. Livingston Parish Sewer District No. 2 v. Millers Mutual Fire Insurance Company of Texas, 99-1728, p. 6 (La.App. 1st Cir.9/22/00), 767 So.2d 949, 953, writ denied, 2000-2887 (La.12/8/00), 776 So.2d 1175.

On the other hand, a final judgment obtained by fraud or ill practices may be annulled by filing an action to annul within one year of the discovery of fraud or ill practices. LSA-C.C.P. art. 2004. This article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure. Because an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof, it is imperative that courts review a petition for nullity closely. The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals. Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766.

The two criteria that have been set forth jurisprudentially to determine whether a judgment was obtained by actionable fraud or ill practices are: (1) the circumstances-under which the judgment was rendered showed the deprivation of 17legal rights of the litigant seeking relief; and (2) enforcement of the judgment would be unconscionable and inequitable. Livingston Parish Sewer District No. 2, 99-1728 at p. 6, 767 So.2d at 953.

“Ill practice” is any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right. The “legal right” of which a litigant must be deprived to have a judgment annulled includes the right to appear and assert a defense and the right to a fair and impartial trial. See Belle Pass Terminal, Inc., 2001-0149 at pp. 6-7, 800 So.2d at 766-767;

In the instant case, Reverend Diamond testified at the original trial in this matter that the church had been able to obtain a temporary occupancy permit, but that the certificate was granted only for the duration of the litigation of this matter. Morton Buildings, Inc., 97-2251 at p. 5 n. 3, 744 So.2d at 8 n. 3. Thus, Redeeming Word represented to the trial and appellate courts that it would not be able to legally occupy the building on a permanent basis. Morton Buildings, Inc., 97-2251 at p. 5, 744 So.2d at 8-9.

In granting the summary judgment in favor of Morton Buildings and annulling this court’s previous judgment, the trial court found that Redeeming Word had, in fact, entered into a hold-harmless agreement with the City/Parish in August of 1998, approximately three months before this court handed down its original opinion. The trial court further noted that in the hold-harmless agreement, Redeeming Word had agreed that if it were allowed permanent occupancy, it would not seek any reparations or indemnification from the City/Parish for any future damage caused by the lower elevation. The trial court further noted that |swhile there was no guarantee that signing the hold-harmless agreement would result in the obtaining of the certificate of permanent occupancy, signing the agreement was “arguably ... moving [the church] in that direction.” Accordingly, the trial court concluded that Redeeming Word’s failure to apprise the appellate court of the signing of this document, which could have affected the outcome of the case, constituted ill practice and that equity demanded that the prior opinion of this court be annulled.

On appeal, Redeeming Word contends that the trial court erred in granting summary judgment and nullifying this court’s previous judgment when the only alleged grounds for nullification consist of an act or omission (i.e., the failure to notify the court of the execution of a hold-harmless agreement) which occurred after the conclusion of trial on the merits and after the case was submitted to the court of appeal. Citing Hertz v. Nguyen, 609 So.2d 834, 836 (La.App. 5th Cir.1992), Redeeming Word contends that the original judgment of the trial court obviously could not have been obtained through alleged fraud or ill practices based upon alleged acts committed or occurring subsequent to rendition of that judgment.

In Hertz, the appellant argued that ap-pellee’s failure to obtain a transcript of the original trial for purposes of the original appeal and an alleged | flmisrepresentation by appellee to the appellate court in the original appeal constituted ill practices entitling it to have the original judgment annulled. Hertz, 609 So.2d at 836. The Fifth Circuit Court of Appeal disagreed, holding that nullity is an appropriate remedy only when the judgment was obtained by fraud or ill practice. Consequently, the appellate court held that the original judgment could not have been obtained through fraud or ill practices allegedly committed subsequent to its rendition. Hertz, 609 So.2d at 836.

At the outset, we note that the Louisiana Supreme Court has held that counsel has a continuing duty to inform the court, including the appellate courts, of any development that may conceivably affect the outcome of the litigation. St. Charles Parish School Board v. GAF Corporation, 512 So.2d 1165, 1173 (La.1987). Additionally, Rule 3.3 of the Louisiana Rules of Professional Conduct, entitled “Candor toward the tribunal,” provides, in pertinent part, as follows:

(a) A lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
(2) Conceal or knowingly fail to disclose that which he is required by law to reveal ...;
* * *
(4) Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

The duty set forth in section (a)(1) of Rule 3.3 (to refrain from making false statements) is a continuing duty to the end of the proceeding. Moreover, the duties placed on an attorney in sections (a)(2) and (a)(4) to not knowingly conceal that which the attorney is required by law to reveal and to take “reasonable remedial measures” where the attorney discovers the falsity of evidence offered are unlimited in time. La. Rules of Profl Conduct, Rule 3.3(b); Washington v. Lee Tractor Company, Inc., 526 So.2d 447, 448-449 (La.App. 5th Cir.), writ denied, 532 So.2d 131 (La.1988).

In Washington, the Fifth Circuit Court of Appeal held that a party’s refusal to proceed with rescission of a summary judgment where counsel for that party had later learned that the affidavit upon which the judgment had been based was erroneous and false constituted an ill practice. Washington, 526 So.2d at 448. In so holding, the court noted that failure to correct false evidence, even if originally offered in good faith, violates Rule 3.3 of the Rules of Professional Conduct. Washington, 526 So.2d at 449.

Similarly, we find no merit in Redeeming Word’s assertion that an act or omission allegedly involving failure to disclose new evidence that renders previous testimony suspect cannot form the basis of a finding of fraud or ill practices pursuant to LSA-C.C.P. art.2004 simply because the particular act or omission occurs after rendition of the trial court’s judgment and during the pendency of the appeal process.

Additionally, while Redeeming Word argues that its act or omission, which allegedly constituted an ill practice, occurred subsequent to rendition of the trial court’s judgment and, thus, the judgment could not have been obtained by its alleged ill practices, we note that the trial court’s judgment is not the judgment rendered in its favor of which Morton Buildings complains. Rather, we observe that the judgment in Redeeming Word’s favor which Morton Buildings seeks to annul is the prior judgment of this court, which was rendered subsequent to Redeeming Word’s execution of the hold-harmless agreement. Thus, Redeeming |1¶Word’s argument that the alleged ill practices occurred subsequent to rendition of the judgment complained of lacks merit.

We likewise reject Redeeming Word’s argument that, pursuant to LSA-C.C.P. art.2005, this court’s previous judgment may not be annulled because the ground alleged to nullify the judgment appeared in the record on appeal and was considered by this court in rendering the original opinion. Article 2005 of the Louisiana Code of Civil Procedure provides that “[a] judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.” Redeeming Word contends the issues of the usefulness of the building and the indefinite-continued-future use of the building by Redeeming Word were considered by both the trial court and the appellate court and, consequently, the issue of Redeeming Word’s continued use of the building cannot form the basis for nullity of this court’s previous opinion.

However, contrary to Redeeming Word’s argument, the ground alleged, and the actual basis for, the nullification of this court’s original opinion was Redeeming Word’s failure to disclose its execution of the hold-harmless agreement which allegedly resolved the elevation problem and the question of permanent occupancy. The existence of the hold-harmless agreement and any ramifications of that agreement were unknown to the appellate courts and clearly were not considered by this court in our rendition of an opinion.

We find no merit in Redeeming Word’s remaining argument that the trial court erred in granting summary judgment where material issues of fact existed. Substantive law determines whether a particular fact in dispute is material. Spears, 2000-2799 at p. 4, 807 So.2d at 1185.

In considering a petition for nullity based on fraud or ill practices, relevant considerations are whether the petitioner was deprived of his legal rights and | ^whether enforcing the judgment would be inequitable or unconscionable. Belle Pass Terminal, 2001-0149 at p. 6, 800 So.2d at 766. Louisiana law provides: “A person who has been enriched without cause at the expense of another person is bound to compensate that person.” LSA-C.C. art. 2298.

Relying upon that principle, the only material issue of fact is whether Redeeming Word is able to use and occupy the gymnasium and education building and has been enriched by the construction of the building. It is well settled in the jurisprudence that an injured party has a duty to take reasonable steps to mitigate damages. LSA-C.C. art.2002; Aisole v. Dean, 574 So.2d 1248, 1253-1254 (La.1991), and cases cited therein. Redeeming Word was very successful in doing just that. This issue has been resolved; Redeeming Word has its certificate of permanent occupancy and has no restrictions upon its use of the building. Thus, the prior judgment would award to Redeeming Word full ownership and unrestricted use of a gymnasium and educational building for which it paid nothing, thereby unjustly enriching Redeeming Word at the expense of Morton Buildings. See LSA-C.C. art. 496; A. Yiannopoulos, Property, La. Civ. Law Treatise § 276, pp. 553-556 (4th ed.1991); Britt Builders v. Brister, 618 So.2d 899, 902 (La.App. 1st Cir.l993)(wherein this court observed that “[t]he redactors of our Civil Code envisioned application of Article 496 when the owner of the immovable would be unjustly enriched by the efforts of a good faith possessor.” (Emphasis added)).

Redeeming Word’s failure to inform Morton Buildings or this court of its pending resolution with the City/Parish undoubtedly thwarted the fairness of the prior judgment. Because the Civil Code has provisions enacted to prevent unjust enrichment, enforcing the original judgment would be unconscionable and | ^inequitable. When the enforcement of a judgment would be unconscionable and inequitable, courts are obliged to strike down such a judgment. Belle Pass Terminal, 2001-0149 at p. 10, 800 So.2d at 769.

Our decision today puts the parties in the same legal positions they occupied pri- or to the original trial court judgment. Morton Buildings has a main demand for specific performance for an alleged unpaid portion of the contract price. LSA-C.C. art.1986 et seq. Redeeming Word has a reconventional demand for dissolution of the contract and damages. LSA-C.C. art. 2013 et seq. Pursuant to LSA-C.C. art. 2014, dissolution of the contract is no longer a viable remedy; damage awards are. LSA-C.C. art.1944 et seq.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Morton Buildings. All costs of this appeal are assessed against appellant, Redeeming Word of Life Church. This matter is remanded for resolution of all pending issues between the parties in accordance with law and the views expressed herein.

AFFIRMED AND REMANDED.

      . Shortly before Morton Buildings filed its suit for nullification, Redeeming Word had filed suit against Morton Buildings contending that Morton Buildings had committed the torts of conversion and abuse of civil process in executing on the original judgment of the trial court in its favor during the pendency of Redeeming Word's devolutive appeal. Although the suits were consolidated, Redeeming Word’s claim for damages for conversion and abuse of process are not before us at this time.

      . The hold harmless agreement, dated August 7, 1998 and signed by Reverend Diamond on behalf of Redeeming Word, provides, in pertinent part, as follows:
      As owner we are hereby requesting that the City of Baton Rouge/Parish of East Baton Rouge grant the Redeeming Word of Life Church a flood variance so that we can obtain a final inspection on our building which was erroneously constructed below the required flood elevation. We understand that because of the discrepancy we may not be able to obtain flood insurance and if we are able to obtain it, it may be at a much higher rate than normal.
      We agree to hold the City of Baton Rouge/Parish of East Baton Rouge free and harmless from any liability for granting us a variance and a final inspection for our building which has been constructed below the required flood elevation. We agree that this variance is being granted at our request and we agree to reimburse the City of Baton Rouge/Parish of East Baton Rouge for any expenses that may be incurred as a result of any legal proceedings that may be filed in connection herewith.

      . The duties set forth in subsections (a)(2) and (4) also apply even if compliance requires disclosure of information otherwise considered confidential pursuant to Rule 1.6 of the Rules of Professional Conduct. La. Rules of Profl Conduct, Rule 3.3(b).

      . Under certain circumstances as set forth in LSA-C.C.P. art.2005, a judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled through an action for nullity. The action to annul a judgment rendered by an appellate court must be brought in the trial court. LSA-C.C.P. art.2006.


author: I aCARTER, C.J.

text:
    Alga MILLER, Pearl Miller, Dalton Miller, Vergis Adams, Rita Adams, Anita Miller, Wilbert Miller and Opal Miller v. SUPERIOR SHIPYARD AND FABRICATION, INC., Chris J. Guidry, Louisiana Farm Bureau Mutual Insurance Company, Ulysses Hunter, T.T.C. Illinois, Inc., Lexington Insurance Company, State Farm Mutual Automobile Insurance Company and Allstate Indemnity Company
    No. 2001-CA-2907.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Jan. 22, 2003.

      J.B. Jones, Jr., Cameron, for Plaintiffs, Alga Miller, et al.
    Barry Boudreaux, Houma, Patrick J. McShane, Frederick J. Greschner, Jr., New Orleans, for Defendant, Superior Shipyard and Fabrications, Inc.
    Mark C. Dodart, Nora B. Bilbro, New Orleans, for Defendant/Appellant, Lexington Insurance Company.
    Isaac H. Soileau, Jr., New Orleans, for Defendants/Appellees, T.T.C. Illinois, Inc. and Credit General Insurance Company.
    Harold J. Lamy, New Orleans, for Defendant, Ulysses Hunter.
    Thomas L. Hutchinson, New Orleans, for Defendants, Louisiana Farm Bureau Mutual Ins. Co. and Chris Guidry.
    Cheri T. Burlett, New Orleans, for Defendant, Chris Guidry.
    Michael G. Gee, Thibodaux, for Defendant, State Farm Mutual Automobile Ins. Co.
    Christopher E. Lawler, Metairie, for Defendant, Allstate Insurance Company.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

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

   I aCARTER, C.J.

This case is on appeal pursuant to the trial court’s certification of a partial summary judgment as final under LSA-C.C.P. art. 1915. Finding that the trial court erred in certifying the partial summary judgment as a final judgment, we conclude this court lacks subject matter jurisdiction, dismiss the appeal and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arose out of personal injuries sustained by plaintiff, Alga Miller, on August 11,1998, in an accident at Superior Shipyard and Fabrications, Inc. (Superi- or). The accident occurred when one of Superior’s contract welders, Chris Guidry (Guidry), backed over plaintiff, a pedestrian on Superior’s premises, while operating his welding truck, in Ml view of another contract welder, Ulysses Hunter (Hunter), who allegedly could have prevented the accident.

Plaintiff brought suit on October 2,1998, against Superior, Guidry, Hunter, and Gui-dry’s insurer. The petition was supplemented and amended numerous times naming various other insurers, as well as Superior’s general commercial liability insurer, Lexington Insurance Company (Lexington), and T.T.C. Illinois, Inc. (T.T.C.), as defendants. Superior had a contract with T.T.C. wherein T.T.C. agreed to provide payroll services and other administrative functions for Superior. Superior was required by the contract to provide liability insurance and name T.T.C. as an additional insured.

Plaintiff alleged that T.T.C. was vicariously liable under the doctrine of respon-deat superior for the alleged negligence of Superior and the contract welders, Guidry and Hunter. T.T.C. denied all liability and filed a cross-claim against Superior and Lexington for its defense, attorney fees, costs and expenses pursuant to its agreement with Superior. Lexington denied coverage for T.T.C. under its policy.

T.T.C. filed a motion for partial summary judgment against Lexington, asking the trial court to grant “additional insured” status to T.T.C. under an endorsement to the Lexington policy and an interpretation of the contract between T.T.C. and Superior, Rthereby requiring Lexington to provide T.T.C. with a defense and reimburse attorney fees and expenses. On August 16, 2001, the trial court granted T.T.C.’s motion for partial summary judgment and ordered that “after finding that there is no just reason for delay, the court designates this Judgment as a final, ap-pealable judgment pursuant to Louisiana Code of Civil Procedure Article 1915.” Lexington appealed, arguing that the trial court improperly granted the summary judgment.

APPELLATE JURISDICTION

It is the duty of appellate courts to examine subject matter jurisdiction sua sponte when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 2000-1058, p. 8 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260. An appeal lies only from a final judgment of the trial court. LSA-C.C.P. arts. 1911 and 2083. A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841. Whether a partial final judgment is appealable is determined by examining the requirements of LSA-C.C.P. art. 1915. At the outset, we note that because the instant suit was filed before January 1, 2000, the 1997 version of LSA-C.C.P. art. 1915 is applicable to this case. See Belanger v. Gabriel Chemicals, Inc., 2000-0747, p. 6 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 564 n. 4, writ denied, 2001-2289 (La.11/16/01), 802 So.2d 612.

We find this judgment is a non-appeal-able partial summary judgment. The trial court’s granting of summary judgment in favor of T.T.C. on the issue of “additional insured” status is only a partial adjudication of Lexington’s potential liability in this matter. LSA-C.C.P. art. 1915, as it existed at the time this suit was filed, provided that a summary judgment granted on the issue of liability alone is a partial judgment that is final and appealable. However, that provision envisioned a summary judgment that | ^completely adjudicated liability, with the issue of damages left to be decided by the trial court. See former LSA-C.C.P. art. 1915(A)(3) and (B).

In the matter before us, there are still many issues of liability to be decided by the trial court, even as to Lexington against whom the partial summary judgment was rendered. The trial court judgment ordered that T.T.C. was entitled to “additional insured” status under the Lexington policy, and therefore, Lexington was obligated to provide a defense and reimburse attorney fees to T.T.C. A judgment finding the availability of insurance coverage under a policy does not determine liability. The issue of insurance coverage is incidental to the issues of liability and quantum. See Med-Trans, Inc. v. Rockwood Ins. Co., Inc., 509 So.2d 602, 604 (La.App. 3 Cir.1987); Wilkinson v. State Farm Mutual Automobile Ins. Co., 378 So.2d 167, 168 (La.App. 1 Cir.1979). This judgment does not grant relief, and it does not resolve the litigation as to any party. No issues of liability or the merits of any claim were decided as to any party, even as to Lexington.

A summary judgment as to fewer than all the claims or parties shall not constitute a final judgment for purposes of immediate appeal unless specifically designated as final by the trial court or unless specifically agreed to by the parties. See LSA-C.C.P. art. 1915(B) (prior to amendment by Acts 1999, No. 1263); see also LSA-C.C.P. arts. 1915(A)(3) and 966(E); Lee v. Grimmer, 99-2196, p. 2, n.4 (La.App. 1 Cir. 12/22/00), 775 So.2d 1223, 1224. The judgment rendered must be sufficiently final in that it disposes of the claim or dispute in regard to which the judgment was entered. In determining whether a partial judgment is final for the purposes of an immediate appeal, a court must always keep in mind the historic policies against piecemeal appeals. Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, 99-0460, p. 10 (La.App. 1 Cir. 3/31/00), 764 So.2d 1041, 1047, writ denied, 2000-1265 (La.6/16/00), 765 So.2d 338.

The record does not contain any specific agreement by the parties as to the finality of the partial summary judgment. There is an express designation by the trial | fiCourt that the judgment is final for purposes of appeal; however, the judgment still may be non-appealable even though there is a finality certification. See Flatland Real Estate Company, LLC v. Dugas Construction, Inc., 2000-1794, p. 2 (La.App. 3 Cir. 5/9/01), 784 So.2d 867, 869; Van ex rel. White v. Davis, 2000-0206, p. 8 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 485. Furthermore, this court is not bound by the trial court’s certification. We must review the propriety of the finality certification de novo. See Van ex rel. White v. Davis, 808 So.2d at 484.

After a thorough review, we have determined that the trial court improperly certified the partial summary judgment as ap-pealable, because the judgment does not terminate the suit as to any party and the same parties will continue to litigate the remaining issues regarding liability and damages. Some of the issues surrounding T.T.C.’s and Superior’s liability and the scope of Lexington’s insurance coverage may have to be reviewed again in a subsequent appeal, resulting in piecemeal litigation.

Due to our resolution of this jurisdictional issue, we do .not reach the issues raised by Lexington addressing whether the trial court properly granted the partial summary judgment. Because the partial judgment is not a final one, it may be revised at any time prior to rendition of a judgment adjudicating the remaining issues in the case. LSA-C.C.P. art. 1915(B)(2); Van ex rel. White v. Davis, 808 So.2d at 485; Doyle v. Mitsubishi Motor Sales of America, Inc., 764 So.2d at 1047.

CONCLUSION

This court lacks jurisdiction to review the partial summary judgment granted in favor of T.T.C. Illinois, Inc. because it is not a final judgment subject to immediate appeal under LSA-C.C.P. art. 1915. Accordingly, we hereby dismiss this appeal and remand for further proceedings. See LSA-C.C.P. arts. 2162 and 2164. Costs of this appeal are assessed against appellant, Lexington Insurance Company.

APPEAL DISMISSED; REMANDED FOR FURTHER PROCEEDINGS.

      . Plaintiff died subsequent to the filing of suit and his adult children were substituted as parties.

      . Several motions for summary judgment by several different parties came on for hearing on August 16, 2001. The trial court signed the partial summary judgment at issue on September 10, 2001.

      . In Shell Pipeline Corp. v. Kennedy, 2000-3207, p. 5 (La. 10/16/01), 799 So.2d 475, 478, the supreme court determined that the pre-2000 language of LSA-C.C.P. art. 1915 is ambiguous with regard to the availability of appeal in cases involving partial summary judgments dismissing less than all the parties. However, we conclude that the rationale behind maintaining the appeal in that case is inapplicable in this instance because this case involves a partial summary judgment that was designated as a final judgment in an apparent attempt to comply with the amended version of LSA-C.C.P. art. 1915, and no parties were dismissed by the judgment.

      . If this partial summary judgment had only involved Lexington’s duty to defend, our result may have been different. Cf. Radar v. Duke Transportation, Inc., 484 So.2d 323, 325 (La.App. 3 Cir. 1986).

      . We further decline to exercise our supervisory jurisdiction to review this partial summary judgment by treating Lexington's appeal as an application for supervisory writs, as the ruling at issue does not meet the criteria of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). See Dixon v. B.W. Farrell, Inc., 97-2586, pp. 4-5 (La.App. 1 Cir. 6/29/98), 713 So.2d 1255, 1257, writ not considered, 98-2081 (La.11/6/98), 726 So.2d 918.


author: | ¡¿PATTERSON, J.

text:
    Carlton GOODMAN v. MANNO ELECTRIC, INC. and Louisiana Workers’ Compensation Corporation.
    No. 2001 CA 2863.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Mark Zimmerman, Lake Charles, Counsel for Plaintiff/Appellee, Carlton Goodman.
    Sammie Henry, Merilla B. Miller, Baton Rouge, Counsel for Defendants/Appellants, Manno Electric, Inc. and Louisiana Workers’ Compensation Corporation.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired, and Michael A. Patterson are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡¿PATTERSON, J.

pro tempore.

Defendant, Manno Electric, Inc. (Man-no), appeals the- decision rendered by the workers’ compensation judge (WCJ) on October 24, 2000, awarding claimant, Carlton Keith Goodman (Goodman), temporary total disability benefits from August 19, 1999, to September 22,1999; supplemental earnings benefits at the full rate from September 22, 1999, until February 10, 2000; supplemental earnings benefits at the modified rate from February 10, 2000, until February 17, 2000; and applicable judicial interest and court costs. The WCJ also found that Manno did not reasonably controvert the claim, and assessed $4,000 in penalties and $2,000 in attorney’s fees against Manno.

FACTS AND PROCEDURAL HISTORY

From May 5, 1999, until August 19, 1999, Goodman was employed by Manno as a foreman. This job entailed supervising other employees, working with heavy equipment, acting as an electrician, and doing maintenance tasks. The job also involved digging and cutting trenches in the ground. Goodman’s average weekly wage while he worked for Manno was $440. While working for Manno at the Tiger Plaza apartment complex worksite, Goodman was involved in five accidents that combined to result in his injury.

The five incidents that culminated in Goodman’s injury occurred in early August 1999. Originally, Goodman dislocated his knee as he was jumping on a shovel at the worksite. A second incident occurred when Goodman was getting down into a manhole, which had been dug for fiberop-tics and telephone cable. As he was getting down into the manhole, Goodman slipped on dirt and popped the same knee out of socket. The third incidént occurred when Goodman fell off a tractor/trencher at the site. The fourth incident occurred as Goodman was walking down the sidewalk next to the maintenance building at the worksite. As Goodman kicked his leg forward, his knee came out of socket again. Goodman continued to work after these four incidents. The fifth and final | ¿incident occurred as Goodman was walking into his house. As had occurred earlier, Goodman’s knee came out of socket as he was simply walking. After this fifth incident, Goodman could no longer “pop” his knee back into place and suffered severe swelling and pain.

Goodman first reported his injury to Jay Manno of Manno Electric, Inc., on August 12, 1999, about a week after the shoveling incident. Goodman spoke to Jay Manno a second time about his injury on the telephone, informing Jay Manno that he could not come back to work because his knee injury seemed serious. Jay Manno suggested that Goodman seek medical treatment.

On August 13, 1999, Goodman saw Dr. Rosalyn Tabor for his knee injury. Dr. Tabor referred Goodman to Dr. Gerard Murtagh at The Bone & Joint Clinic of Baton Rouge, whom he saw on August 16, 1999. Dr. Murtagh diagnosed Goodman with an internal derangement of the right knee and probably torn cartilage. Dr. Mu-rtagh opined 'that the cause of Goodman’s injury was from the shoveling incident. Dr. Murtagh released Goodman to return to light-duty work. However, Goodman’s last day of work with Manno was on August 19, 1999. On September 9, 1999, Dr. Murtagh performed an arthroscopy and debridement of the right knee.

On October 6, 1999, Goodman filed a disputed claim for compensation (an LDOL-WC-Form 1008) with the Office of Workers’ Compensation, for indemnity and medical benefits. Goodman stated in the disputed claim for compensation that he was injured on August 12, 1999, while going down a manhole, and later reported the injury to his supervisor, Jay Manno, on August 17, 1999. On October 11, 1999, Manno filed a Form 1007/First Report of Injury, which stated that an accident was reported on August 12, 1999, and that the incident involved Goodman jumping on a shovel. The Louisiana Workers’ Compensation Corporation (LWCC) investigated the matter and ultimately denied the claim for indemnity or medical expenses due to the inconsistencies provided by the parties and witnesses.

14A trial on the matter was conducted on September 11, 2000. After hearing the testimony and reviewing the evidence, the WCJ found that Goodman suffered a com-pensable accident while in the course and scope of his employment with Manno, and as a result, was entitled to indemnity and medical benefits related to the compensa-ble injury. Additionally, the WCJ found that the cause of Goodman’s injury was the shoveling incident, when his knee popped out of place, despite a pre-existing problem Goodman had with the same knee. The WCJ awarded benefits to Goodman, as well as an award of penalties and attorney’s fees as a result of Manno’s failure to reasonably controvert Goodman’s claim.

On appeal, Manno asserts the following assignment of error:

The workers’ compensation judge committed manifest error in awarding penalties and attorney’s fees against the employer, Manno Electric, Inc., when the evidence produced in the case shows that they had a reasonable basis to controvert the claim of Goodman.

Goodman answered the appeal, claiming that the decision of the WCJ was correct. However, Goodman argues in his assignment of error that the WCJ’s award of $2,000 in attorney’s fees was too low, and thus, an abuse of discretion and reversible error. Goodman also contends that he is entitled to additional attorney’s fees for this appeal.

LAW AND ANALYSIS

The statutory provision for the payment of penalties and attorney’s fees when the employer declines to pay compensation benefits is found in La. R.S. 23:1201. The applicable portion of the statute provides:

A. Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident....
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation | ^insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Attorney’s fees under La. R.S. 23:1201 are not awarded unless the WCJ imposes a penalty for failure to pay compensation or medical benefits timely. Penalties are not to be assessed when the employee’s right to such benefits has been reasonably controverted by the employer or insurer. Statutes providing for penalties and attorney’s fees are penal in nature and must be strictly construed. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683, 690.

In Hall v. McDonald Insulation, 537 So.2d 328, 332-33 (La.App. 1 Cir.1988), this court adopted the test set forth in Chelette v. American Guarantee and Liability Ins., Inc., 480 So.2d 363, 367 (La.App. 3 Cir.1985), to determine whether an employee’s right to benefits has been reasonably controverted, which tests provides:

Given the facts, medical and otherwise, known to the employer or his insurer, did the employer or insurer have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Stated another way, did the employer or his insurer have sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. This test requires a close analysis of each workers’ compensation case.

Whether the refusal to pay benefits warrants the imposition of penalties and attorney’s fees is a factual question, which we will not disturb in the absence of manifest error. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736, 740 (La.App. 1 Cir.), tvrit denied, 553 So.2d 466 (La. 1989). A determination of whether a denial of compensation benefits was warranted depends primarily on the facts existing and known at the time that benefits are denied. The court must consider whether there was a “reasonable” basis for a dispute as to the employee’s entitlement to benefits. Haws v. Professional Sewer Rehabilitation, Inc., 763 So.2d at 691.

In this matter, the WCJ was provided with the testimony of, among others, Goodman, Jack and Jay Manno, who are the president and vice-president of Manno, and IfiAngie DeShazer, an LWCC claims adjuster. Each party provided his or her summary of events surrounding Goodman’s injury and how it occurred. The testimony was both conflicting and confusing. However, the WCJ concluded that the cause of Goodman’s injury was the shoveling incident, which occurred within the course and scope of employment and ultimately resulted in Goodman’s knee injury. Neither Manno nor LWCC appeal this determination by the WCJ. In her reasons, the WCJ opined:

I think that Dr. Murtagh very clearly set out in his deposition how he felt about the way this developed. It’s the result of the [shoveling] incident... You are asymptomatic before, and you are symptomatic after, and it was caused by the [shoveling] incident and it did happen on the job.

Next, the WCJ had to determine whether Manno knew of this incident and injury and did not reasonably controvert the claim, as required under La. R.S. 23:1201(F)(2). Manno argues that it had a reasonable basis for denying the claim because it did not know about the shoveling incident until Goodman filed his disputed claim for compensation on October 6, 1999. In reaching her conclusion on this issue, the WCJ looked at the evidence and testimony provided. The WCJ noted that Manno filled out the 1007 Form about the shoveling incident, remarking that this form is a document that is “totally within the purview of the employer.” The WCJ found that the information provided in the 1007 Form was relayed to Crystal Sanchez, who prepared the form, by Jack Manno. In the 1007 Form, Manno provided that Goodman was injured on or about August 6,1999, that it was informed of the injury on August 12, 1999, and that the injury occurred when Goodman was “digging with a shovel.” While Jack Manno stated he was unaware of any shoveling incident, the WCJ was not clearly wrong in concluding that Jack Manno provided this information in the 1007 Form, based upon the testimony of Ms. Sanchez.

In her oral reasons, the WCJ stated:

[Crystal Sanchez] also said that she got all the information for filling out the 1007 from Mr. Jack Manno. She specifically included the knowledge of the date that the employer knew, August 12th, because I asked her where did you get this August 12th date, and she said I got it from Mr. Jack. So when she fills out this form, she is getting this information between Mr. Goodman and the employer. Mr. Goodman may have supplied her, in her mind, with a [shoveling] incident, but there are a lot more specifies in this 1007, from her testimony, than she ever got from Mr. Goodman. So I do believe they knew of these incidents.
Ji * * *
Now, moving to the next issue and that’s reasonable controversion.... I mean, this is a credibility call for me, in general, in trying to piece this thing together, because I can’t accept either sides (sic) complete versions. They don’t melt (sic).
So, I’m not going to award any penalties or attorney’s fees against the insurer. However, in light of the employers filling out that 1007, and the information on it and Mr. Jack Manno[’]s testimony with regard to discussions he had with his son, I feel they knew he had problems and had had incidents with his knee on the job and they didn’t tell LWCC about this, or that they presented it to LWCC in a manner that led LWCC to believe that he never had any incidents on the job. Therefore, I am awarding penalties and attorney’s fees against Manno Electric.

Manno knew of the shoveling incident that occurred while Goodman was employed with Manno, prior to Goodman’s filing of the disputed claim for compensation. Based on this fact, the WCJ concluded that Manno did not reasonably controvert Goodman’s claim for indemnity and medical benefits. We find no error with the WCJ’s conclusion. Thus, Manno’s contention that penalties and attorney’s fees were not warranted because Manno reasonably controverted the claim is without merit.

Although, as previously noted, the award of attorney fees under La. R.S. 23:1201(F) is penal in nature, the award of a reasonable fee is within the broad discretion of the trier of fact. Orgeron v. Tri State Road Boring, Inc., 434 So.2d 65, 69 (La.1983). The trier of fact may employ his own experience and expertise in deciding the amount of time and effort the lawyer has put into the preparation of the case. Haws v. Professional Sewer Rehabilitation, Inc., 763 So.2d at 691. The factors used to determine the amount of attorney fees are the degree of skill and ability exercised, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Naquin v. Uniroyal, Inc., 405 So.2d 525, 528 (La.1981).

Goodman argues that the award of attorney’s fees was unreasonably low in light of the pre-trial preparation, pre-trial discovery, deposition of Dr. Murtagh, and the length of the trial. The WCJ awarded $2,000 in attorney’s fees against Manno. Goodman seeks to have the amount of attorney’s fees awarded raised to $5,000 for the trial level work, with an additional $2,500 for work on the appeal. Although Goodman has answered the appeal and requested an increase in attorney’s fees awarded, as well as additional |sattorney’s fees for this appeal, we do not find that the WCJ abused her discretion in awarding $2,000 in attorney’s fees. We find the above amount is sufficient in light of the amount of time and effort spent at both the trial level and in this court. Therefore, this argument is without merit. The decision of the WCJ is affirmed, with costs assessed to Manno.

AFFIRMED.

      . La. R.S. 23:1310.5(F) requires that the published court of appeal decision identify the office of workers’ compensation district from which the appeal was taken and the name of the workers' compensation judge who rendered the judgment. The workers’ compensation judge was Honorable Pamela Moses-Laramore of the Office of Workers' Compensation, District 5.