author: I,WILLIAM H. BYRNES, III, Chief Judge.

text:
    Kim SAACKS v. MOHAWK CARPET CORPORATION.
    No. 2003-CA-0386.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 2003.

      Robert G. Harvey, Sr., Maria Del Carmen Calvo, Harvey Jacobson & Glago, New Orleans, LA, for Plaintiff/Appellee.
    Jeffrey A. Schwartz, Audrey N. Browne, Watkins Ludlam Winter & Stennis, P.A., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge CHARLES R. JONES, and Judge TERRI F. LOVE).
   I,WILLIAM H. BYRNES, III, Chief Judge.

In this employment contract case, Mohawk Carpet Corporation (“Mohawk”) appeals the trial court’s judgment in favor of the plaintiff Kim Saacks that held that the contract was a defined fixed-term employment agreement. We affirm.

Statement of Facts and Procedural History

Mohawk accepted Kim Saacks for a territorial manager position with the corporation. Mohawk’s June 19, 2000, letter confirmed the offer of employment. Ms. Saacks’s effective date of hire was July 3, 2000. In June 2001, Mohawk notified Ms. Saacks that her position was being eliminated, and her job was terminated.

Ms. Saacks filed this lawsuit, contending that the June 19, 2000, letter constituted a contract for employment for a specific term (eighteen months) and obligated Mohawk to pay Ms. Saacks’s salary for the remaining portion of that term from June 2001 to December 2001. Ms. Saacks also sought penalties and attorney fees in connection with her demand for past wages. The disputed clause in the June 19, 2000, letter, which forms the basis of Ms. Saacks’s claim, states as follows:

COMPENSATION, You will receive a guaranteed salary of $54,000/year through December 2001. At the end of 2001, if you have hit your territory’s quota, you |„will receive a 10% bonus based on your salary amount. At any point during the first seventeen months, you may convert your salary to a draw advance against commissions. In doing so, you will automatically become eligible to participate in the Bonus Incentive Program.

After a trial on October 7, 2002, the trial court found that the employment agreement was a fixed-term contract. The trial court rendered judgment in favor of Ms. Saacks for past wages in the amount of $10,306 and penalty wages in the amount of $18,692, together with interest and costs.

On October 15, 2002, Ms. Saacks filed a motion to amend judgment to correct errors in calculation of past wages. Ms. Saacks argued that the $10,306 awarded in wages represented the amount that had accrued as of September 18, 2001 (the date that Ms. Saacks brought a rule to show cause). Ms. Saacks submitted that by December 2001, the end of the fixed term-contract, the past wages had accrued to the amount of $29,700.

On October 15, 2002, Ms. Saacks also filed a motion for new trial, seeking attorney’s fees in connection with the award for past wages. The trial court held a hearing on the motions on November 22, 2002, and rendered judgment on December 9, 2002. The amended judgment awarded Ms. Saacks past wages in the amount of $29,700 and penalty wages in the amount of $18,692, together with interest and costs. Additionally, pursuant to the motion for new trial, the amended judgment granted Ms. Saacks attorney’s fees in the amount of $9,625. Mohawk’s appeal followed.

On appeal, Mohawk contends that the trial court erred in: (1) concluding that Ms. Saacks carried her burden of proof in providing sufficient evidence that the contract was for fixed-term employment; (2) and (3) assessing penalties against | sMohawk based on a finding of bad faith; and (4) amending the original judgment. The plaintiff claims she is entitled to an increase in the attorney’s fees for the appeal.

Standard of Review

The reviewing court may not overturn the judgment of the lower court absent an error of law or finding of fact that is manifestly erroneous or clearly wrong. Stobarl v. State Through Department of Transportation and Development, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). A lower court’s factual findings can be reversed only when: (1) the record reflects that a reasonable factual basis does not exist for the finding of the trial court; and (2) the record establishes that the trial court’s finding is clearly wrong. Russell v. Noullet, 98-0816 (La.12/1/98), 721 So.2d 868, 872. The reviewing court is to review the evidence in the fight most favorable to the prevailing party. Id. If the district court’s account of the evidence is plausible in fight of the record viewed in its entirety, the appellate court may not reverse it even though it is convinced that if it had been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Hennegan v. Cooper/T.Smith Stevedoring Co., Inc., 2002-0282 (La.App. 4 Cir. 12/30/02), 837 So.2d 96, writ denied 2003-0316 (La.4/21/03), 841 So.2d 794. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987).

\ ¿Fixed-Term, Contract

Mohawk argues that the trial court erred in finding that Ms. Saacks presented sufficient evidence to establish that her employment was a fixed-term rather than an “at-will” contract.

Initially at issue in the present case is whether the parties entered into a contract for hire that was a limited duration contract, or a terminable “at-will” contract. Under a limited duration contract the parties have agreed to be bound for a certain period during which the employee is not free to depart without assigning cause nor is the employer at liberty to dismiss the employee without assigning any reason for so doing. La. C.C. arts. 2746-2750; Terrebonne v. Louisiana Ass’n of Educators, 444 So.2d 206 (La.App. 1 Cir.1983), writ denied 445 So.2d 1232 (La.1984).

La. C.C. art. 2747 provides:

Art. 2747. Contract of servant terminable at will of parties
A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.

Employees hired without a fixed-term are subject to dismissal by their employers at any time, for any reason, without the employers’ incurring liability for wrongful discharge. Copeland v. Gordon Jewelry Corp., 288 So.2d 404 (La.App. 4 Cir.1974).

La. C.C. art. 2749 states:

Art. 2749. liability for dismissal of laborer without cause
If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries |Bwhich he would have been entitled to receive, had the full term of his services arrived.

As a prerequisite for claiming unpaid salaries for work that would have been performed in the future, employees must show that they have been hired for definite time periods. Jackson v. East Baton Rouge Parish School Bd., 393 So.2d 243, 245 (La.App. 1 Cir.1980). The party relying on an alleged contract of employment for a set duration of time has the burden of proof that there was a meeting of the minds on the length of time of the employment. Brodhead v. Board of Trustees for State Colleges and Universities, 588 So.2d 748, 752 (La.App. 1 Cir.1992).

Mohawk asserts that absent a contract for a fixed period of time, an employee is terminable “at will,” at any time for any cause, or for no cause. Pechon v. National Corp. Service, Inc., 234 La. 397, 100 So.2d 213, 216 (1958). Because of the presumption that employment is “at will,” the party alleging a fixed term contract has the burden of proof. Brodhead, supra.

Mohawk claims that its letter of June 19, 2000, confirmed the details of her employment. Citing Weaver v. Purple Shield Life Insurance Co., 356 So.2d 519 (La.App. 1 Cir.1977), and Daybrook Fisheries v. Ketnor, 01-0388 (La.App. 4 Cir. 1/22/03), 839 So.2d 223, Mohawk maintains that the mere expression of an annual salary is insufficient to rebut the presumption that the employment contract was “at-will.”

Mohawk contends that there was no evidence that the parties intended to be bound for a certain period of time. Mohawk points out that the plaintiff testified at trial that she did not believe that the June 19, 2000, letter prohibited her from quitting her job during the 18-month period. Ms. Dawn Day testified that when lfishe authored the June 19, 2000, letter, Mohawk did not intend to contract with the plaintiff for a specified time. Ms. Day stated that the letter’s expression of a stated salary was meant only to convey to the plaintiff that she would be guaranteed that rate of pay for as long as she was employed by Mohawk.

Mohawk relies on the application for employment executed on July 3, 2000. Page three of the application states the following:

I understand that I have the right to terminate my employment at any time with or without notice, with or without cause, and that the Company has the similar right. I understand my employment by this Company does not guarantee that any position be continued for any length of time or that any job assignment or shift be permanent. I understand that no one other than the President of the Company has authority to make any other agreement.

Mohawk submits that the employment application establishes that the plaintiffs employment was “at will” and Ms. Day did not have the authority to hire the plaintiff.

The plaintiff argues that she presented sufficient evidence to show that her employment contract was for a fixed-term based on the June 19, 2000, letter. The plaintiff testified at trial that she thought she was guaranteed a job for eighteen months.

The plaintiff shows and Ms. Day did not dispute that she and the plaintiff negotiated and reached an agreement for hiring Ms. Saacks over the phone. The June 19, 2000, letter stated: “Congratulations on your acceptance of a Territory Manager position with ... Mohawk_I’m pleased to have you join my team.” The plaintiff agrees that her effective date of hire was July 3, 2000, but that she had started working for Mohawk prior to that date. She leased a storage unit with 17Safeguard on Interstate, 1-10 Service Road, and she started receiving carpet samples before the July 3, 2000, date. The plaintiff testified:

I bought another cell phone, hooked up another line too, ‘cause I only had one incoming line. I leased a storage unit with a company called Safeguard on the interstate, 1-10 Service Road, and started receiving samples almost right away, “samples” meaning the carpet book samples, which is what we distributed.

When the plaintiff received the application for employment mailed along with other documents for the plaintiffs signature, she had already started to work for Mohawk.

The plaintiff refers to Roussel v. James U. Blanchard & Co., Inc., 430 So.2d 247 (La.App. 4 Cir.1983), and contends that, to find a fixed term contract, the court should look to the facts and circumstances surrounding the employment and the nature of the employment. In Roussel, this Court found a fixed-term employment contract based on a confirmation letter similar to the letter in the present case. That letter stated:

Congratulations and welcome to James U. Blanchard & Company as a member of our sales staff. I know that this will be a rewarding opportunity both financially and personally.
This will confirm that your compensation will be 10% of gross profit. You will also receive $1500, payable each two
week period, as a draw against your future sales, for a six month period. In addition to the terms outlined, you will receive a $4000 payment up front. As an independent contractor you will be responsible for the payment of all income taxes, social security and medical benefits.
In hiring you we feel that you are definitely sales management material and you will be evaluated on that basis, if your performance is up to what we expect, within a six to twelve month period.
Id., 430 So.2d at 248

I «This Court found that the parties intended a fixed minimum employment term of six months.

In the present ease, in her deposition, Mohawk’s representative, Ms. Dawn Day testified that when she negotiated the contract with the plaintiff, it was never Mohawk’s intention to guarantee the plaintiff employment for eighteen months. Ms. Day testified that the plaintiff was only guaranteed a specified rate of pay for eighteen months. Ms. Day explained that a new sales territory could take up to eighteen months to become established, and for that reason, the plaintiff was given a guaranteed salary during that start-up period.

When questioned in her telephone deposition, Ms. Day responded:

Q. What is your understanding of the notation of a guaranteed salary of $54,000.00 a year?
A. It meant that she would be guaranteed a salary each month as she was receiving a check based on commissions. Q. Was it your intent in putting this in the letter to guarantee Ms. Saacks employment through December 2001?
A. No.
Q. Are you aware of any circumstances during your time at Mohawk Industries where territory managers or any sales representatives had contracts for a specific term of employment?
A. No.

Further, Ms. Day was questioned, and she responded:

Q. What then was the purpose of the guaranteed salary through December of 2001?
* * *
A. When a new sales representative joins a company whether the sales representative be experienced or inexperienced there is the knowledge that it will take that person a certain amount of time to generate business, to generate orders, to ship those orders, and to receive payment for them. In order to help offset what could potentially be months of no commissions and therefore no income, it is standard industry procedure to offer a |aguarantee of salary not a guarantee of employment for “x” amount of time.

Carol Lowry, Mohawk’s regional vice president who replaced Ms. Day, confirmed that no one at the company had ever been given a fixed-term employment contract. Ms. Lowry further testified that the June 19, 2000, letter was in accordance with the standard practice of the company, specifically, that the plaintiff was guaranteed a set salary for the first eighteen months that she worked for the company, but was not guaranteed employment for eighteen months.

On July 3, 2000, the plaintiff signed the application of employment that stated: “I understand my employment by this Company does not guarantee that any position be continued for any length of time or that any job assignment or shift be permanent.” However, she had begun working before that date. Although the letter conveyed that only the president had the authority to hire employees, Ms. Day agreed that she offered the plaintiff employment over the phone. The plaintiff reasonably could have believed that Ms. Day had the authority to hire her. She relied on Ms. Day’s authority when she began working when she rented the storage area and obtained additional phone equipment before receiving the July 3, 2000, documents.

The parties do not dispute that the plaintiff quit her job with Neptune Communications to work for Mohawk, and that the plaintiff was hired to develop a clientele in a territory that had no prior representation. Ms. Day agreed that 18 months was the minimum time for the plaintiff to develop a clientele. Ms. Day testified that: “Kim was taking on a territory that for all intense [sic] and purposes had had no representation. There was no backlog. So in my view she was starting at ground zero.”

ImThe plaintiff testified that she and Ms. Day, representing Mohawk, had negotiated and agreed on a contract for a fixed term of 18 months specifically because the territory would be a difficult one to develop. The plaintiff understood that she had to meet a goal within the period of time, 18 months, which was specified in the contract. The plaintiff testified that she would not have left her previous employment and taken the job with Mohawk if the employment agreement had not been for a guaranteed 18 months.

Mohawk maintains that the plaintiff testified that she was free to leave the job before 18 months; however, the plaintiff testified that she was committed to remain at the job during the 18 months. The plaintiff answered the following questions:

Q. Were you of the impression, Ms. Day [sic], that you were not permitted to quit your job?
A. I was under the impression that I was contracted through December 2001. That was the basis of my job, not this application.
Q. I’ll repeat the question. Were you under the impression that you were not permitted to quit your job?
A. Basically I was committed through December 2001, yes.
Q. Did you ever sign any document that said, “I can’t quit this job, and if I do quit, I will have to pay some sort of penalty to the company?”
A. I did not sign a document like that.
Q. Were you under the impression that if you did quit, there would be some ramification that would befall you?
A. There was never a consideration to quit, Ms. Schwartz. It was a committed length of time. I was dedicated to that.
Q. I’m not trying to argue with you, Ms. Saacks. I’m just trying to get you to answer my question. Were you under the impression that if you did quit, that there would be some penalty that you would suffer in terms of your relationship with the company?
A. No.

In Although there was no penalty, the plaintiff did not testify that she believed she was free to leave her employment at any time. She believed that she was committed for 18 months, the time it would take to develop the territory. It could be interpreted that if there were a penalty negotiated, the plaintiff would have felt that she could leave at any time if she forfeited her salary pursuant to a penalty. Without an agreement as to a penalty, the plaintiff could believe she was obligated to work for a fixed time, 18 months, to develop the territory. The plaintiff testified that she was committed for 18 months.

Mohawk asserts that on July 3, 2000, the plaintiff signed the application for employment document that stated that she had the right to terminate her employment at any time and the company had the similar right. She was not guaranteed any position for any length of time or that the job was permanent. Only the company’s president had the authority to make an agreement of employment.

Although the plaintiff signed the form, she believed it was a standard form filled out by all employees but it did not contain the specific terms of employment that were set out in the June 19, 2000 letter confirming her oral agreement with Ms. Day that the plaintiff had been hired for the job that was for a fixed time period of at least 18 months. Although the application for employment form stated that only the president had the authority, this conflicted with the fact that Ms. Day negotiated and hired her. The plaintiff relied on Ms. Day’s authority on behalf of the company to make the agreement to hire the plaintiff.

In the interpretation of statutes and contracts, the specific controls the general. Corbello v. Iowa Production, 2002-0826 (La.2/25/03), 850 So.2d 686 rehearing granted on other grounds (La.6/20/03), 850 So.2d at 714. In the present case, the provisions of the June 19, 1^2000, letter specifically set out the terms of employment whereas the July 3, 2000, general form letter does not. The more specific document, the June 19, 2000, letter, controls, and is the document setting out the terms of employment. Further, the plaintiff began working prior to the July 3, 2000 form letter, and relied on the terms of employment in the June 19, 2000, letter.

The very nature of the plaintiffs employment is a corroboration of her testimony that her contract was for a fixed term for 18 months. It was mutually advantageous to both the employer and the employee for the plaintiff to develop a new territory within 18 months. It would have been an advantage to Mohawk for the plaintiff to develop the new territory, which Mohawk’s representative agreed would take 18 months. It is not as if Mohawk would get something for nothing. The plaintiff was hired to develop a clientele in a territory that had no prior representation. The June 19, 2000, letter stated: “At any point during the first seventeen months, you may convert your salary to a draw advance against commissions.” This wording supports the finding that the plaintiff was committed and had a salary for the first seventeen months.

It was incumbent upon the plaintiff to produce a clientele within 18 months in order to keep her job any longer. The employment was good for at least 18 months. The plaintiff was entitled to the 18-month period to generate the clientele. A reasonable interpretation would be that both parties agreed that she would need 18 months to develop the territory, and her employment contract was for a fixed term of 18 months.

In the Reasons for Judgment, the trial court stated:

Testimony revealed that the parties intended to enter into an employment agreement for at least a certain period of time necessary to develop a clientele in the territory ^assigned to the plaintiff. The defendant’s confirmation letter indicated that the plaintiff was to receive a “guaranteed salary” for a period of eighteen months. Both parties testified that development of the particular territory required approximately eighteen months of sales activity on the part of the plaintiff. [Emphasis added.]

The record reflects that a reasonable factual basis exists for the trial court’s conclusion that the plaintiff showed sufficient evidence of a fixed-term contract. The trial court was not clearly or manifestly wrong in finding that the June 19, 2000, letter constituted a fixed-term contract of employment, and that the plaintiff was entitled to the salary for that eighteen months.

La. R.S. 23:631 and 23:632

Referring to Boudreaux v. Hamilton Medical Group, Inc., 644 So.2d 619, 622 (La.1994), Mohawk maintains that it is not liable for penalties and attorney’s fees under La. R.S. 23:631 because damages like those sought by the plaintiff Ms. Saacks do not constitute “wages” within the meaning and intent of La. R.S. 23:631 and 23:632. In Boudreaux, Mohawk contends that the Louisiana Supreme Court found that the statute’s language attaching liability to an employer who fails to pay wages that are earned by the day, week, or month signifies that only amounts due as wages are contemplated. Therefore, only compensation that is earned during a pay period is considered to be “wages” under the statutes.

La. R.S. 23:631 A(l)(a) provides:

Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation.

La. R.S. 23:632 states:

|14Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, which ever is the lesser amount of penalty wages.

The Louisiana Supreme Court found that the statutes refer to “wages” and subject the employer to the payment of penalties and attorney fees if the wages are not paid timely in Boudreaux, id. The Supreme Court referred to Stell v. Caylor, 223 So.2d 423, 426 (La.App. 3 Cir.), and stated that not all amounts due by the employer to the employee are contemplated by the statutes, but only amounts due as wages are contemplated.

In Boudreaux, id., the Louisiana Supreme Court looked at the amount of “Compensation on Termination” provided in Section 13 of the employment contract. That section provided for an extra sum of money payable when the contract was voluntarily or involuntarily terminated. The Louisiana Supreme Court found that this additional compensation after termination was not due under the terms of employment but that such compensation was an additional compensation of money payable after termination. Although the payment was to be equal to three times the employee’s average monthly income, it was a onetime payment and was not subject to a pay period. The additional compensation under Section 13 was not a “wage” within the meaning of La.R.S. 23:631 and 23:632. However, the amount of money the employer owes the employee is compensation due under the terms of employment, and is considered to be a “wage.”

In the present case, the amount due from the contract is not an additional compensation payable after termination, as provided under Section 13 of the | ^contract in Boudreaux. Because the amount of money constitutes “wages” under La. R.S. 23:631 and 23:632, the employer would be liable for penalties for failure to pay the amount not later than three days following the date of discharge or resignation.

The trial court properly considered an award of penalties and attorney’s fees to the plaintiff as a result of non-payment of the fixed-term employment contract.

Bad Faith Necessary for Award of Penalty Wages

Mohawk contends that the trial court erred in awarding penalty wages to the plaintiff because Mohawk contested the issue in a valid good-faith belief that the plaintiffs employment was “at will.”

Statutes that authorize the imposition of penalties, or sanctions, are penal in nature and are to be strictly construed. Consolidated Distributors, Inc. v. United Group of Nat. Paper Distributors, Inc., 32,431 (La.App. 2 Cir. 10/27/99), 743 So.2d 862. A trial court’s finding as to a sanctionable violation may be reversed if the record furnishes no evidence to support the finding. Id.

Mohawk asserts that although the trial court interpreted the June 19, 2000, letter to be a fixed-term contract, the plaintiff signed the July 3, 2000, job application form, which created the issue of whether the contract was for an “at-will” or fixed-term contract. Mohawk maintains that it was justified in contesting the issue and should not be subject to sanctions. Mohawk submits that the trial court erred in assessing penalties against it where there was no finding of bad faith on the part of Mohawk.

Mohawk avers that to recover penalty wages under La. R.S.23:632, a plaintiff must show that the wages were due and owing, that demand was made, and that the employer did not pay upon demand, citing Hebert v. Ins. Center, Inc., 97-298 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007. Penalties should not be imposed on the employer when it presents a good faith non-arbitrary defense to its liability for unpaid wages. Carriere v. Pee Wee’s Equip. Co., 364 So.2d 555 (La.1978). Penalty wages may be awarded where the employer fails to pay the amount that is clearly due. Wyatt v. Avoyelles Parish School Bd., 2001-3180 (La.12/4/02), 831 So.2d 906. A determination of whether an employer is in good or bad faith is a factual question subject to the manifest error/clearly wrong standard of review. Harvey v. Bass Haven Resort, Inc., 758 So.2d 264, 268 (La.App. 3 Cir. 2/2/00).

Mohawk argues that there is no indication that the trial court considered whether Mohawk acted in bad faith in not paying Ms. Saacks her alleged unpaid wages. Therefore, Mohawk submits that the appellate court should review the issue de novo and that this Court is not held to the manifestly or clearly wrong standard of review.

The record shows that Mohawk discharged the plaintiff prior to the termination of the employment agreement. Although Mohawk claims that Ms. Day did not have the authority to negotiate with Ms. Saacks and to hire her, the parties do not dispute that Ms. Day negotiated the terms of employment with Ms. Saacks by more than one telephone call, and the follow-up letter dated June 19, 2000 set out the employment terms, including salary.

At trial, Mohawk made the claim that Ms. Saacks had not reached a $750,000 sales quota that had been imposed by Mohawk, and therefore, she had been discharged with cause. The parties do not dispute that the plaintiff had 18 months to develop the territory. Mohawk’s claim that the plaintiff did not reach the sales quota before 18 months was a subterfuge for terminating Ms. Saacks and constituted bad faith. The record also indicates that at the time of trial, although [ 17issued three weeks prior to trial, Mohawk did not comply -with the plaintiffs subpoena, requesting any writing of any nature in connection with the employment and/or termination of the plaintiff. This was another example of Mohawk’s failure to proceed in good faith.

Although the trial court did not specifically state that it found that Mohawk was in bad faith, it concluded that: “the penalty damages prayed are reasonable under the facts, given that the plaintiff, pursuant to the terms of the contract was to serve exclusively in the employment of the defendant, thereby precluding her from entertaining other offers of employment.” The trial court found that the plaintiff was bound to the contract and could not change employment although Mohawk asserted that it could fire her “at will.” This was another example of Mohawk’s bad faith. The record supports a reasonable basis for the finding that Mohawk was in bad faith, and the trial court was not clearly wrong in awarding the plaintiff penalty wages.

Trial Court’s Award of Attorney’s Fees

With respect to the trial court’s award of attorney’s fees, the plaintiff filed a motion for new trial.

In Buras v. Schultz, 2002-0628 (La.App. 4 Cir. 9/18/02), 828 So.2d 649, this Court stated:

When an employee is forced to file suit to recover his unpaid wages, the award of reasonable attorney’s fees is mandatory pursuant to La. R.S. 23:682
A recognized purpose of La. R.S. 23:632 is to foster availability of counsel to workers who have been unlawfully denied earned compensation. The attorney’s fee award is to be taxed as costs against the employer. Mitchell v. Turner, 588 So.2d 1305, 1308 (La.App. 2 Cir.1991).

Id. at 651-52.

11 «Even if penalty wages are not due, reasonable attorney’s fees are to be awarded for a well-founded suit for any unpaid wages. Glover v. Diving Services International, Inc., 577 So.2d 1103 (La. App. 1 Cir.1991); Blaney v. Hulsey, Harwood & Hulsey, 27,983 (La.App. 2 Cir. 2/28/96), 669 So.2d 661. Unlike penalty wages, courts do not permit equitable defenses to the award of attorney’s fees in the event that a “well-founded suit” for wages is filed. Beard v. Summit Institute of Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233. The suit is considered “well-founded” and an award of attorney’s fees is mandatory where the employee brings a successful suit and recovers unpaid wages. Cleary v. LEG Unwired, L.L.C., 2000-2532 (La.App. 1 Cir. 12/28/01), 804 So.2d 916. Factors to be considered in determining the reasonableness of attorney’s fees include the following: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Winkle v. Advance Products & Systems, Inc., 98-694 (La.App. 3 Cir. 10/28/98), 721 So.2d 983.

In the present case, considering that the $16,937 award for attorney’s fees represents 35 % of the total award of $48,392, the amount awarded for attorney’s fees was reasonable.

The trial court was not clearly wrong and did not abuse its discretion in the amount of the award to the plaintiff for penalty wages, plus interest, costs, and attorney’s fees.

Ii (Motion to Amend Judgment

Mohawk argues that the trial court erred in granting the plaintiffs motion to amend the judgment. Mohawk points out that the original judgment awarded the plaintiff $10,306, which was the amount that the plaintiff prayed for in her petition. Mohawk maintains that there were no mathematical or grammatical errors. The trial court held that its original judgment was wrong because it did not include the full value of the plaintiffs alleged employment contract. Therefore, Mohawk asserts that the amendment was an alteration to the substance of the judgment and constituted an inappropriate invocation of La. C.C.P. art.1951.

La. C.C.P. art.1951 provides that a final judgment may be amended to alter the phraseology of the judgment, but not the substance; or to correct errors of calculation. Where a mistake in the amount for which the judgment is rendered is clearly the result of miscalculation, the judgment may be corrected. Starnes v. Asplundh Tree Expert Co., 94-1647, p. 5 (La.App. 1 Cir. 10/6/95), 670 So.2d 1242, 1245. The plaintiff refers to State v. Star Enterprise, 95-2124 (La.App. 4 Cir. 8/7/96), 691 So.2d 1221, in which this Court held that the trial court’s authority to correct errors of calculation did not authorize it to make material changes to the judgment in a use tax dispute by awarding use taxes, attorney’s fees, and interest, which were not specified in the original judgment or were entirely new elements of recovery not awarded in the original judgment.

In Bruscato v. Century Ready Mix Corp., 569 So.2d 633 (La.App. 2 Cir.1990), the Second Circuit found that although the trial court lacked the power to amend the final order, the appellate court had the power to amend the judgment in a workers’ compensation case, to require the employer and its insurer to pay for the Lncost of the reclining chair ordered by the employee’s physician, after the trial court had inadvertently omitted the requirement from the final judgment.

Just as statutes are subject to interpretation, the same is true about the rulings of courts. In Broussard v. F.A. Richard & Associates, Inc., 98-1167 (3/17/99), 732 So.2d 578, appeal after remand, 99-10 (La. 3 Cir. 5/5/99), 740 So.2d 156, writ denied, 99-1048 (La.6/4/99), 744 So.2d 625, the Third Circuit held that courts should avoid a construction of a statute which would lead to absurd results; the statute must be interpreted in such a manner as to render its meaning rational, sensible, and logical. Similarly, the ruling of a court should be interpreted to avoid a construction that would lead to absurd results. The ruling should be interpreted in such a manner as to render its meaning rational, reasonable, and logical.

In the present case, in its original judgment, the trial court found that the plaintiff was entitled to be compensated for all wages that she would have received under the contract. The plaintiff was to receive a guaranteed salary of $54,000 per year through December 31, 2001. The plaintiff was terminated on or about June 22, 2001, six months before the expiration of the fixed-term contract. At the time of the plaintiffs rule to show cause on September 18, 2001, requesting a summary proceeding, the plaintiffs past wages at that point had accrued to $10,306. The plaintiff points out that she should receive the following calculation: based on an annual salary of $54,000, her monthly salary was $4,500 multiplied by six months, which equals $27,000. The parties do not dispute that this calculation is correct for the amount included in the remainder of the 18 months.

There is no doubt that the trial court found that the plaintiff, Kim Saacks, was entitled to be compensated for all wages that she would have received for her full term of services, including the time period from June 2001 to December 2001. I^The plaintiff was entitled to the correct amount for all wages, which included the $450 monthly car allowance that equaled $2,700 for six months. The amended judgment corrected an error in the calculation of the salary owed to the plaintiff for that period. The trial court did not add any new items of recovery besides the salary owed, but corrected the calculation of the amount of salary or wages due to the plaintiff. The trial court clearly intended to award the full amount of the salary or wages due to the plaintiff under the contract. The one item of recovery, ie., the salary owed under the contract did not change, but the calculation of the amount of the salary due was properly corrected by the trial court pursuant to La. C.C.P. art.1951.

Alternative if Amendment Were Considered a Substantive Change

Further, even in the alternative, if the amendment in the judgment were considered substantive, the proper vehicle for a substantive change in a judgment is the timely motion for new trial, timely appeal or petition or action for nullity. Webster v. Boh Bros. Const. Co., Inc., 603 So.2d 761 (La.App. 4 Cir.1992). The appellate court’s usual remedy for an amendment made as to the substance of a judgment is to reverse the amended judgment and reinstate the original judgment. Stephenson v. Nations Credit Financial Services Corp., 98-1688 (La.App. 1 Cir. 9/24/99), 754 So.2d 1011.

In Quinn v. United Services Auto. Ass’n, 576 So.2d 594 (La.App. 4 Cir.1991), this Court found that the evidence indicated that the trial court’s intention in granting a new trial on discretionary grounds was only to clarify the earlier damage award in a personal injury action, and thus, the trial court was justified in granting the new trial. Further, although the judge increased the award of damages, this Court found that the judge was clarifying and not amending the judgment.

laIn Tolmas v. Weichert, 616 So.2d 244 (La.App. 4 Cir.1993), writ denied 620 So.2d 878 (La.1993), the original judgment was erroneously entered in favor of the plaintiff rather than the plaintiff-in-reconvention. This Court held that the correction of the error without contradictory proceedings was improper. This Court reinstated the original judgment but also revised the judgment to comport with the record so as to be in favor of the plaintiff-in-reconvention.

In McCrea v. Mobil Oil Corp., 95-0537 (La.App. 4 Cir. 9/28/95), 662 So.2d 143, the trial court clarified the judgment as transferring only a portion of the lawsuit to a different parish and not the entire lawsuit. This Court held that an exception of venue was interlocutory rather than a final judgment and was not governed by the requirements of La. C.C.P. art.1951. The trial court could correct the judgment on the exception of venue.

Further, in McCrea, this Court stated that: “Article 1971 does not require a contradictory hearing on the issue of whether to grant a new trial when the trial judge does so on his own motion. Borras v. Falgoust, 285 So.2d 583, 587 (La.App. 4th Cir.1973).” Id., 662 So.2d at 148. In addition, this Court found that even if the statute governing an amendment of final judgments may have applied to the amended judgment granting the exception to venue, and constituted a substantive change, the trial court’s actions made it clear that the court, ex proprio motu, ordered a new trial to correct the original judgment. The amended judgment was valid after a subsequent conference in which the trial court heard the opposing | ^parties’ complaints about the judgment and reaffirmed the amended judgment as its intended disposition of the exception to venue.

In Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27-28 (La.App. 4 Cir.1990), writ denied 572 So.2d 68 (La.1991), this Court stated:

We note a matter not addressed by the parties. The trial judge substantively amended the original judgment without a motion for new trial. The original judgment (November 13, 1989) granted summary judgment in favor of Amax Nickel, Inc. but did not include defendant John Buckhannon. On November 17, 1989 an amended judgment dismissed the suit against Buckhannon. On November 30, 1989 Davenport appealed both the November 13 and the November 17 judgments.

La.C.C.P.Art.1951 provides:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.
The addition of a party to a judgment is a change of substance and not of phraseology which can only be accomplished by motion for a new trial or on appeal. Teague v. Barnes, 519 So.2d 817 (La.App. 5th Cir.1988). The usual remedy of the appellate court is to vacate the amended judgment and reinstate the original judgment. Teague, supra. Schexnayder v. Schexnayder, 503 So.2d 104 (La.App. 5th Cir.1987).
La.C.C.P.Art. 2164 permits an appellate court to “render any judgment which is just, legal and proper upon the record on appeal.” Here, although the parties neither moved for a new trial nor questioned the amended judgment in this Court, plaintiff appealed both judgments.
The record is complete and we deem it just and proper to vacate the amended judgment and reinstate the original judgment, and to amend the original judgment to include summary judgment in favor of defendant John Buckhannon.

This Court noted that in the interest of justice, where a contradictory hearing had been held in the trial court, the two judgments had been appealed, and the record I i>4was complete, the appellate court could amend the original judgment to include the dismissal of another defendant, a substantive change.

In the present case, in its reasons for judgment dated December 9, 2002, rendered on the same date as the amended judgment, the trial court stated: “This matter came before the Court on November 22, 2002 for a hearing on a Motion to Amend Judgment and a Motion for New Trial filed on behalf of plaintiff, Kim Saacks, and was subsequently taken under advisement.” After a contradictory hearing, the trial court considered both motions at the same time and then amended the calculation of the past due wages due to the plaintiff in the amended judgment.

The December 9, 2002 judgment granted the plaintiffs motion for new trial, as well as the motion to amend judgment. Therefore, because the plaintiff filed a motion for new trial, and a contradictory hearing was held, the trial court did not err in amending the calculation of the wages owed to the plaintiff even if the amendment were considered to be a substantive change.

The trial court properly granted the plaintiffs motion to amend the judgment to correct errors in calculation along with the motion for new trial.

Attorney’s Fees for Appeal

The plaintiff asserts that she is entitled to increased attorney’s fees for the appeal.

The plaintiff notes that in Sam v. Jhane Home Health Care Services, Inc., 95-0081 (La.App. 4 Cir. 6/07/95), 657 So.2d 559, this Court granted an increase of attorney’s fees in the amount of $1,552.05, which an increase of $750, or approximately 50 % of the total award. In that case, the employee/appellee answered the appeal. In the present case, the plaintiff did not appeal or answer the appeal.

|j>sAn increase in attorney’s fees should be awarded to a party who has already been awarded attorney’s fees by the trial court and then successfully defends an appeal. Becht v. Morgan Buildings & Spas, Inc., 2001-1091 (La.App. 1 Cir. 6/21/02), 822 So.2d 56, writ granted on other grounds 2002-2047 (La.11/8/02), 828 So.2d 1117, affirmed, 2002-2047 (La.4/23/03), 843 So.2d 1109; Stutes v. Rossclaire Const., Inc., 575 So.2d 466, 471 (La.App. 3 Cir.1991). However, generally, the appellate court will not consider the appellee’s arguments for modification of the judgment, absent appeal or answer to the appeal. La C.C.P. art. 2133; King v. Sewerage and Water Board of New Orleans, 99-0382 (La.App. 4 Cir. 11/24/99), 747 So.2d 200, writ denied 99-3588 (La.2/18/00), 754 So.2d 967. Taylor v. BASF Wyandotte, 2001-0328 (La.App. 1 Cir. 9/28/01), 805 So.2d 235.

In the present case, the employee/plaintiff/appellee refers to Hughes v. Cooter Brown’s Tavern, Inc., 591 So.2d 1334, 1338 (La.App. 4 Cir.1991), writ denied 594 So.2d 1318 (La.1992), in which this Court stated:

Plaintiff requests that additional attorney’s fees be awarded against defendant for defense of the appeal. If a suit under LSA R.S. 23:632 is determined to be well-founded in the trial court, it does not lose that status on appeal simply because the plaintiff fails to recover all the relief he sought. Pohl v. Domesticom, Inc., 503 So.2d 125 (La.App. 5th Cir.1987). Therefore, we award an additional $1500 for attorney fees incurred by this appeal, to be taxed as costs against the defendant.

In Hughes, the employer/defendant/appellant appealed. The opinion does not show whether or not the employee/plaintiff/ap-pellee either appealed or answered the appeal.

The employer’s request for additional attorney’s fees made in the employer’s brief on appeal by the worker’s compensation plaintiff was not adequate and could not be considered where the employer did not appeal or answer 128the appeal in Welborn v. Ashy Enterprises, Inc., 504 So.2d 120 (La.App. 2 Cir.1987). See also City of Jennings v. Deshotel, 99-1232 (La.App. 3 Cir. 2/2/00), 758 So.2d 269, writ denied 2000-0663 (La.4/20/00), 760 So.2d 1157; Perkins v. Rapides Parish Police Jury, 98-1899 (La.App. 3 Cir. 5/5/99), 738 So.2d 607, writs denied 99-1798 (La.10/1/99), 748 So.2d 451, 455; Hebert v. CIGNA 93-1400 (La.App. 3 Cir. 5/25/94), 637 So.2d 1221; Schillace v. Channell Shopping Partnership, 623 So.2d 45 (La.App. 1 Cir.1993).

In Winkle v. Advance Products & Systems, Inc., supra, the Third Circuit held that a former employee, who brought an action for unpaid wages, was not entitled to attorney’s fees for preparation and presentation of the appeal, where the employee neither answered the appeal nor appealed.

In the present case, without an appeal or an answer to the appeal filed by the employee/plaintiff/appellee, the plaintiff’s arguments for additional attorney’s fees for the appeal cannot be considered.

Accordingly, the judgment of the trial court is affirmed. Although the plaintiffs request for attorney’s fees for the appeal is not considered, costs of the appeal are assessed against Mohawk.

AFFIRMED.

      . La. C.C.P. art. 1971 provides:
      Art. 1971. Granting of new trial
      A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.


source: Caselaw Access Project

author: h DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Mario MITCHELL v. UNITED PARCEL SERVICE.
    No. 2003-CA-0686.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.

      Mario Mitchell, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Paul Michael Elvir, Jr., Borrello, Olinde & Dubuclet, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   h DAVID S. GORBATY, Judge.

Mario Mitchell, in proper person, appeals a decision rendered by the Office of Workers’ Compensation Administration in favor of his former employer, United Parcel Service, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

This claim arises out of an alleged incident occurring on February 2, 2001, in which Mario Mitchell injured his back while working for United Parcel Service, Inc. (UPS). The matter was tried before Judge Clara Toombs, who resigned before rendering a judgment. Judge Gwendolyn Thompson was appointed as a successor, and rendered judgment on December 24, 2002, after reviewing the record and listening to trial tapes. The judgment provides that Mr. Mitchell did not carry his burden of proving that he sustained a work-related accident with injury on February 2, 2001. His claim was dismissed with prejudice.

DISCUSSION:

Mr. Mitchell argues that the record contains proof that he injured his back at work while loading and unloading heavy material. Mr. Mitchell contends that the proof of his work-related injury is his own testimony at trial. He testified that on the day of his accident, he reported his injury to his supervisor, Kurt Brouillette, band to the Health and Safety Supervisor, Keith Sisón. Mr. Mitchell testified that both men told him to soak in a hot bath and to take over-the-counter pain medication, but took no further action.

UPS counters that the factual determinations of the trial court were entirely reasonable in light of the evidence presented and the lack of credibility on the part of Mr. Mitchell. Specifically, UPS contends that Mr. Mitchell’s factual account of the accident and injury was not corroborated by Brouillette, Sisón, or any of the medical evidence.

Louisiana Revised Statute 23:1031 provides for compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079. To recover workers’ compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683. The claimant has the burden of proof to establish a work-related injury by a preponderance of the evidence. Daspit, supra. A claimant in a worker’s compensation proceeding has the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349. The workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. Harvey v. Bogalusa Concrete, Inc., 97-2945 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130. Once the injured employee carries his initial [3burden of proving a causal connection between the work-related accident and his disabling condition, the burden shifts to the employer to produce evidence that it is more probable than not that the injury was not caused by a work-related accident. Burrell v. Evans Industries, 99-1194 (La.App. 5 Cir. 4/25/00), 761 So.2d 618.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly-wrong standard of appellate review. In applying this standard, the appellate court must determine not whether the factfinder was wrong, but whether the factfinder’s conclusion was a reasonable one. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551, 556. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or' clearly wrong. Stobart v. State Through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990).

After a thorough review of the record, we find the decision of the trial court to be supported by the record in the following particulars:

1. Keith Sisón, the Health and Safety Supervisor, testified by deposition that he specifically asked Mr. Mitchell if he injured his back on the job. Mr. Mitchell replied that his back was bothering him, but that it was not injured at work.
|42. Kurt Brouillette, Mr. Mitchell’s supervisor, testified at trial that he specifically asked Mr. Mitchell if he injured his back on the job. Mr. Mitchell replied that his back was bothering him, but that it was not injured at work.
3. Sisón and Brouillette both denied giving Mr. Mitchell any kind of medical advice.
4. Mr. Mitchell became employed as a truck driver with TCI/Gulf States within one month of leaving UPS. He worked for this company from April 2001 until April 2002.
5. Mr. Mitchell indicated on the TCI/ Gulf States employment application, dated April 20, 2001, that he had no prior injuries or illnesses, and that he did not suffer from chronic low back pain.
6. A representative for TCI/Gulf States testified that Mr. Mitchell’s duties as a truck driver required bending and climbing, and that he was never personally made aware that Mr. Mitchell had a back problem.
7. Mr. Mitchell testified that Dr. Wat-ermeier told him he could not work. However, Dr. Watermeier’s report of September 24, 2001, indicates that Mr. Mitchell could “continue with his regular work activity.”
8. The MRI ordered by Dr. Watermeier was negative.
9. Mr. Mitchell testified that when Dr. Moss performed an independent medical examination for UPS in February 2002, he told Dr. Moss that he had been working. Dr. Moss’s records indicate, however, that Mr. Mitchell told him that he had tried to work but could not. At the time of the examination, Mr. Mitchell was working at TCI/Gulf States.

Considering the foregoing record facts, we cannot say that the trial court was clearly wrong in holding that Mr. Mitchell failed to carry his burden of proving |Bhe was injured in a work-related accident. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


author: I,DAVID S. GORBATY, Judge.

text:
    Maria Antonia RAMIREZ, Francisco Ramirez, Elisa E. Ramirez, Fredy E. Ramirez, Juan Luis E. Ramirez, Francis E. Ramirez and Manuel Enrique E. Ramirez v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC., Regional Transit Authority and XYZ Insurance Company.
    No. 2003-CA-0233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.

      Salvador G. Longoria, Gaudin & Longo-ria, New Orleans, LA, for Plaintiffs/Appellants.
    William M. McGoey, Derek M. Merca-dal, Darren G. Wells, Evans & Clesi, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   I,DAVID S. GORBATY, Judge.

Plaintiffs appeal a judgment rendered in favor of defendants arguing that the jury erred in applying the law to the undisputed facts presented at trial. Further, plaintiffs argue that the trial court erred in denying their Judgment Notwithstanding the Verdict or, in the alternative, Motion for New Trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Maria Antonia Ramirez, a Honduras native visiting this country, was injured near the streetcar tracks at the intersection of St. Charles Avenue and Dufossat Street in uptown New Orleans.

Ms. Ramirez and her friend, Belda Medina, had finished visiting with Ms. Medina’s employer who apparently lived on the riverside of St. Charles on Dufossat. The women intended to board the streetcar to downtown New Orleans. Ms. Medina’s employer had given Ms. Ramirez some clothing and shoes for her use in Honduras, but because some of the clothes were for cold weather, the two women decided to place the cold weather items near the lakeside comer of Dufossat and St. Charles for someone else to pick up.

According to Ms. Medina, she and Ms. Ramirez completely crossed both sets of tracks, and Ms. Ramirez waited on the neutral ground while Ms. Medina ^crossed the westbound lanes of St. Charles to drop off the clothes. When Ms. Medina turned around to cross back, she saw the streetcar approaching and yelled to Ms. Ramirez, “Be careful, the streetcar.” Ms. Medina said Ms. Ramirez then turned to her left (the direction opposite of where the streetcar was approaching), spun around, and fell. When she first saw the streetcar approaching, Ms. Medina was of the opinion that Ms. Ramirez was in a place where the streetcar could pass without hitting her.

Ms. Ramirez testified that she heard Ms. Medina yell to her from across the street. She explained that she turned to her left, but “then I don’t know when the streetcar hit me.” She had no recollection of anything else until sometime later at the hospital.

After Ms. Ramirez fell, the operator of the streetcar, Michael Parker, stopped the streetcar. There is some dispute as to exactly where he stopped. Mr. Parker claims he did not stop until the service stop at Valmont Street, the corner past Dufossat. However, Mr. Parker’s supervisor testified that when he arrived on the scene ten to twenty minutes after the accident, the streetcar was still near the intersection of Dufossat and St. Charles.

According to Mr. Parker, he saw Ms. Ramirez as he approached the intersection. Although he claimed she was near the curb at that time, he did state that she was about three feet from the side of his streetcar as he passed her. He admitted that he did not sound his warning bell as he approached. However, he testified that his brakes were engaged because of the heavy traffic situation at that time of day, and that he was certain he could clear Ms. Ramirez as he passed. He saw Ms. Ramirez out the glass on the side of the streetcar as he passed her, and made sure that the overhang of the vehicle also cleared. He did hot know that there |Rwas an accident until he looked in his sideview mirror and saw Ms. Ramirez on the ground. Mr. Parker used a passenger’s cell phone to call his dispatcher to report the accident as per company policy. He also asked all passengers to sign a list he provided if they had witnessed what happened. Only three people signed the list.

Dan Fontenot, a FBI special agent stationed in Baton Rouge, was visiting the city that day. He and some friends were enjoying a ride on the streetcar in question. Mr. Fontenot stated that he was seated on the aisle somewhere between halfway and three-quarters of the way to the back of the car. He claimed that he could see Ms. Ramirez out of the front of the streetcar as it approached her, but he did not see the streetcar strike Ms. Ramirez. As they passed Ms. Ramirez, someone to his right or slightly behind him yelled, “oh, my God,” or “she’s been hit.” He stood up and looked to his right, but could not see anything. He looked forward and saw the operator look in his mirror, brake, and stop the streetcar. The operator ran out of the streetcar with a phone or walkie-talkie, and went to where Ms. Ramirez was lying on the ground. Mr. Fontenot did not recall the operator slowing down or sounding his horn or bell prior to passing Ms. Ramirez. He testified that the operator asked each passenger as they disembarked to sign a list if they had seen or heard anything. Mr. Fontenot signed the list. On cross-examination, Mr. Fontenot testified that he approximated Ms. Ramirez to be four or five feet from the side of the streetcar when he first saw her. He saw the front of the car pass without hitting her. It was his opinion that if the streetcar had hit Ms. Ramirez, he could have seen it from his vantage point.

Following a two-day trial, the jury returned a verdict finding that defendants were not negligent. The trial court made the verdict the judgment of the court. Plaintiffs thereafter filed a Motion for Judgment Notwithstanding the Verdict, or, |4in the alternative, Motion for a New Trial, which the trial court denied. In written reasons, the trial court stated:

Despite the fact that this Court disagrees with the jury’s verdict, this Court will not upset a verdict based on the credibility of the witnesses. The jury believed the testimony of the streetcar operator that Mrs. Ramirez, with her back turned, was a safe distance from the tracks. He had no reason to slow down, or sound his horn. He had no reason to anticipate that she would turn at all.
This appeal followed.

DISCUSSION:

In their first assignment of error, plaintiffs argue that the jury erred in applying the law to the undisputed facts. Therefore, because the jury committed legal error, this Court should conduct a de novo review, and reverse the jury’s verdict. Defendants counter that no legal error was committed; rather, the only issue for review is under the manifest error/clearly wrong standard. As stated by the trial court, the jury’s verdict was based on the credibility of the witnesses.

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Assn., 2002-2660 (La.6/27/03), 851 So.2d 1006, citing Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

| .^Because the jury verdict is based on a credibility call, we are restrained from finding the jury’s decision to be manifestly erroneous or clearly wrong. The trial court is in a much better position to evaluate live witnesses (as opposed to the appellate court who must review a cold record). Further, this principle of review is designed to ensure the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

After carefully reviewing the entire record, we agree with defendants that the jury did not believe that the streetcar actually struck Ms. Ramirez. Therefore, her accident was caused when she fell of her own accord.

Not one witness testified that the streetcar struck Ms. Ramirez. Ms. Medina, plaintiff’s friend, and the only witness to observe the streetcar and Ms. Ramirez before the fall, testified that she did not see the streetcar physically hit Ms. Ramirez. She stated:

Everything went so fast that I couldn’t tell you exactly what happened. I only saw her that she took a complete turn, and I saw her fall. And I saw her in the middle of the tracks. I can’t specify whether it hit her, whether it ran her over. I can’t.

She further stated:

If you’re standing next to a streetcar as it goes by and it goes by very fast, it feels like it pulls you in a way. But I couldn’t tell you whether he pulled her or whether he hit [her], I just don’t know. Because the only thing I saw is that she spun around and she fell down. And it looked to me like she had fallen underneath the wheels of the streetcar.

IfiMr. Parker, the streetcar operator, testified that he saw Ms. Ramirez still standing after the front part of the streetcar passed her. Dan Fontenot, a passenger on the streetcar, testified that he saw the front of the car pass without hitting Ms. Ramirez. It was his opinion that if the streetcar had hit Ms. Ramirez, he could have seen it from his vantage point. It was clear from Ms. Ramirez’s testimony that she did not know for certain that the streetcar struck her causing her to fall.

Dr. Raul Diaz, Ms. Ramirez’s treating orthopedic surgeon, testified that he could not tell from looking at the x-rays whether the fractures incurred were caused by a blow from a streetcar or from hitting the ground after falling.

It was crucial for plaintiffs to establish that the streetcar actually struck Ms. Ramirez to carry their burden of proof. Without such evidence, we cannot say that the jury erred in finding defendants not negligent.

Accordingly, we affirm the judgment of the trial court and pretermit discussion of the remaining assignments of error.

AFFIRMED.


author: I MAMES F. McKAY III, Judge.

text:
    Phyllis LEWIS and Jerry Lewis and Clifton Joseph Simoneaux IV v. TULANE UNIVERSITY HOSPITAL AND CLINIC and Dr. John Freiberg.
    No. 2003-CA-0184.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.

      John M. Robin, Covington, LA, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Karen M. Fonta-na, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Defendant/Appellee, Dr. John Freiberg.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR.).
   I MAMES F. McKAY III, Judge.

The plaintiffs, Phyllis Lewis, Jerry Lewis and Clifton Joseph Simoneaux IV, appeal the judgment of the trial court granting the defendants’, Tulane University Hospital and Clinic and Dr. John Freiberg, motion for summary judgment in this medical malpractice action. We affirm.

FACTS AND PROCEDURAL HISTORY

In November of 1995, Phyllis Lewis underwent a craniotomy to remove a left acoustic neuroma. Subsequently, she began to experience daily severe headaches, which were unresponsive to usual measures. On October 7,1996, she was admitted to Tulane University Hospital and Clinic (Tulane University Hospital). Dr. John Freiberg ordered that she be administered a trial dose of DHE-45 mg intravenously (IV), and Compazine 10 mg IV. As a result of this injection the plaintiff had an anxiety attack; the Compazine was discontinued and Valium and Demerol were given in its place. The physician’s orders were changed to include Phenergan 25 mg to be given with the DHE doses. After the second dose Lof DHE-45/Phenergan TV was administered, the plaintiff complained of chest pains in her sternal area. The attending physician, Dr. Pan, ordered a lk inch Nitroglycerine (NTG) paste to the plaintiffs chest wall, which resulted in all of the plaintiffs pain being resolved. On October 8, 1996, she was administered a third dose of DHE-45/Phenergan IV. After complaining of chest tightness, Dr. Freiberg ordered that the DHE-45 dose be decreased from 1 mg to .5 mg. IV every eight hours. After eight hours she received her fourth dose of DHE-45 .5 mg. IV, without incident. On October 9.1996, she received her fifth dose of DHE-45/ Phenergan IV, as ordered. Later that morning a nurse noted that when the staff attempted to change her TV site, the plaintiff became extremely anxious with visible tremors. Dr. Freiberg, upon being notified of this incident ordered that the DHE-45 be changed from .5 mg. to lmg. intramuscular injection (IM). On October 10, 1996, the second IM injection was given and repeated twice. After the switch to the IM injections, the plaintiff expressed no further chest pain or discomfort. Throughout her stay at Tulane University Hospital her vital signs remained stable. The plaintiff was discharged from Tulane University Hospital with the instructions to administer IM injections of DHE-45 .5mg once daily as needed for headaches. She was also instructed on how to administer the IM injection.

On October 15, 1996, the plaintiff admitted herself to the emergency room at Tulane University Hospital complaining of crushing constant substernal chest pain, lawhich radiated to her left arm. She also complained of shortness of breath and anxiety. The plaintiff admitted that since her discharge she had self-administered the IM injections on at least three occasions. She also admitted that on that morning she had injected herself without first ascertaining whether the needle was in the muscle, in a vein or an artery. After the plaintiff was admitted to Tulane University Hospital an EKG was ordered. The cardiac monitor revealed normal sinus rhythm without ectopy or dysrhythmia. She was given NTG sublingual spray per physician’s order, which relieved her chest pain within thirty seconds. The EKG was read as abnormal but three separate CPK tests were negative for myocardial infarction and established that there was no cardiac damage. She was then admitted to the cardiac care unit, where a cardiac catheri-zation was ordered to rule out underlying coronary disease. The result was that the plaintiff was diagnosed with significant coronary artery disease, specifically a bifurcating lesion involving LAD and the second diagonal branch. Subsequent cath-eterizations revealed 75% stenosis in the mid LAD, which involved the ostium of the second diagonal artery. Following the October 15, 1996 admission, no further DHE was administered to the plaintiff.

On July 20,1999, a medical review panel was convened in this matter. The panel was composed of three doctors, Drs. Terrence C. D’Souza, Kevin L. McKinley and Allan Toupin. The attorney and chair of the panel was Bobby Marzine Harges. The panel after a review of the record criticized Dr. Freiberg for |4not obtaining an evaluation as to the cause of the plaintiffs chest pains during her hospitalization. Nevertheless, the panel also concluded that the choice of DHE was in compliance with appropriate standards of care. The panel further concluded that there was no association between the use of DHE and the development of arterial selerotic coronary disease especially within a few days of its use. The panel opined that although the DHE precipitated the angina in transient EKG changes, no cardiac damage resulted. The panel further opined: “In fact, the use of DHE probably unmasked underlying coronary damage resulting in early appropriate treatment.”

On September 13, 1999, the plaintiff filed this civil suit alleging medical malpractice based on Dr. Freiberg’s breaching the standard of care in her care and treatment by failing to obtain a cardiac workup. On October 25, 2002, after a hearing was held, the trial court granted the defendant’s motion for summary judgment based on the plaintiffs failure to present sufficient evidence to establish a contested issue of material fact as to the issues of causation. The judgment was signed on November 4, 2002.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, | «together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C. P. art. 966.

The initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 985.

After the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

I «DISCUSSION

Plaintiffs assert that the trial court erred in dismissing their medical malpractice claim by the granting of summary judgment arguing that there are genuine issues of material fact.

In a medical malpractice action, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794(A).

With a few exceptions which are clearly distinguishable from the instant case, because of the complex medical and factual issues involved in medical malpractice cases, a plaintiff will likely fail to sustain his or her burden of proving Ms or her claim under La. R.S. 9:2794 without medical experts. Pfiffner v. Correa, 94-0992 (La.10/17/94), 643 So.2d 1228, 1234. In a medical malpractice action, the plaintiff has the burden of proving, by a preponderance of the evidence, (1) that the doctor’s treatment fell below the standard of care expected of a physician in Ms medical speciality, and (2) the existence of a causal relationsMp between the alleged negligent treatment and the injury sustained. Fusilier v. Dauterive, 2000-0151 (La.7/14/00), 764 So.2d 74. TMs is particularly true m a failure to diagnose case such as Pfiffner or the instant case. Thus, the plaintiffs claim m tMs case must be proven by expert testimony. See Russo v. Bratton, 94-2634 (La.App. 4 Cir. 6/29/95), 657 So.2d 777, 785.

17As the court noted in Richardson ex rel. Brown v. Lagniappe Hosp. Corp., 33,378 (La.App. 2 Cir. 5/15/00), 764 So.2d 1094 (FN2):

In a medical malpractice action, opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not physicians possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence .... This is especially true where the defendant physician has filed a motion for summary judgment supported with expert opinion evidence that his treatment met the applicable standard of care.

Richardson, 33-378, at p. 5, 764 So.2d at 1098-99. Additionally, La.C.C.P art. 966 C(2) specifically requires the plaintiffs to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden at trial.

In the case sub judice, the plamtiffs relied on Dr. Terrence D’Souza’s July 16, 2002 deposition testimony to support their position that Dr. Freiberg’s alleged breach of the standard of care in failing to discover the source of Ms. Lewis’s cardiac problems resulted in damages. Although, Dr. D’Souza agreed that the failure to do a cardiac work-up on Ms. Lewis did not result in cardiac damage, he acknowledged that the admimstration of DHE did precipitate angina and EKG changes with resulting pain. He further opined that he was unaware of any long-term effects from the administration of DHE. When taken in conjunction with the opmion of the medical review panel, the plaintiffs’ sole reliance on tMs testimony was misgmded in that it is insufficient to rebut the defendants’ evidence; the opmion and findings of the medical review panel as a whole. Plaintiffs have failed to meet their burden of proving the causal connexity between Dr. Freiberg’s actions or inactions and Ms. Lewis’s cardiac condition.

|sIn support of the motion for summary judgment, the defendants submitted the opinion and reasons of the medical review panel together with the deposition testimony of Dr. Terrence D’Souza, a panelist. Based on the uncontroverted expert medical testimony established, they assert that there was no causative link between the acts of Dr. John Freiberg and the damages mcurred by Ms. Lewis. While the medical review panel criticized Dr. John Freiberg for not obtaining an evaluation as to the cause of Ms. Lewis’ chest pain dur-mg her hospitalization, the panel found that all aspects of the treatment protocol during hospitalization including the choice of DHE were in compliance with the appropriate standard of care. In essence the plaintiffs failed to establish that any alleged breach of the standard of care provided by Dr. John Freiberg caused any damage to Ms. Lewis.

Hence, the plaintiffs produced no specific facts showing the existence of a genuine issue of material fact for trial to defeat the defendants’ motion for summary judgment. They did not establish that they could satisfy their evidentiary burden at trial. Their assigned error has no merit.

Accordingly, we find no error in the trial court’s judgment granting the defendants’ summary judgment motion. The judgment is affirmed.

AFFIRMED.

      . Dihydroergotamine (DHE)

      . The plaintiff, at the time of her admission to Tulane University Hospital was on a number of drugs including: Tegretol 200 mg. BID; Nortriptyline 50 Mg. X2 at bedtime; Esgic Plus 1 or 2 tablets BID as needed; and Trim-terene BID. Furthermore, the plaintiff was being treated by a psychiatrist, Dr. Mangat, and was having anxiety or panic attacks, which led to emergency room treatments once to twice a month prior to this incident.

      . The plaintiff received subsequent catheteri-zations at Slidell Memorial Hospital, which showed 99% stenosis or narrowing of the LAD artery, at the origin of the second diagonal.

      . Plaintiff continues to receive treatment for her severe coronary artery disease.


author: | JOAN BERNARD ARMSTRONG, Judge.

text:
    WELLS FARGO BANK, MINNESOTA, N.A., as Trustee for NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-2 v. NEW ORLEANIAN LIMITED PARTNERSHIP.
    No. 2002-CA-2228.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.

      Michael A. Crawford, Brett P. Furr, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Plaintiff-Appellee.
    Patrick D. Breeden, New Orleans, LA, for Defendant-Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., and Judge LEON A. CANNIZZARO JR.).
   | JOAN BERNARD ARMSTRONG, Judge.

This is an executory process foreclosure action. Defendant-Appellant New Orlea-nian Limited Partnership (“NOLP”) failed to make payments upon a loan secured by a mortgage originally held by Wells Fargo Bank, Minnesota, N.A., as Trustee for Na-tionsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-2 (“the Trustee”). After the foreclosure proceedings were initiated, the Trustee assigned to NLFC 1998-2 St. Charles, L.L.C. (“NLFC”) the promissory note evidencing the loan. Thereafter, NLFC was substituted as a party plaintiff in this litigation.

The Trustee filed a petition for executo-ry process, seeking the seizure and sale of the St. Charles Regency apartment complex in New Orleans (the “St. Charles Regency”), which was the property securing the loan. The trial court issued a writ of seizure, and the sheriff tentatively scheduled a sale for April 19, 2001. In response, NOLP filed a petition to enjoin the seizure and sale, alleging certain technical deficiencies as to the use of executory process and that the writ of seizure was obtained as a result of the unauthorized practice of law.

The Trustee filed an answer to NOLP’s petition and amended its petition for exec-utory process to address the technical defects of which NOLP complained. |? The trial court denied NOLP’s motion to enjoin the sale. NOLP sought supervisory writs in this court. This court, finding no error in the ruling of the trial court, denied NOLP’s writ application. NOLP did not apply to this court for rehearing, and NOLP did not seek review in the Louisiana Supreme Court.

Subsequent to the sheriffs sale, NLFC filed a motion for summary judgment to dispose of NOLP’s outstanding claims. The denial of the preliminary injunction, and this court’s denial of writs, had effectively disposed of all of NOLP’s claims of technical deficiencies in the executory process action. Thus, all that remained was NOLP’s claim that the order of seizure was obtained as a result of the unauthorized practice of law. After a hearing, the trial court issued a judgment granting NLFC’s motion for summary judgment and dismissed NOLP’s action. NOLP appeals from that judgment. We will affirm.

NOLP is the obligor on a note in the approximate amount of $8.4 million, secured by a mortgage on the St. Charles Regency. NOLP failed to make payments on the note, which led to a series of collection efforts and triggered a provision in the mortgage authorizing the use of execu-tory process. By letter dated January 16, 2001, NOLP was contacted by Mr. John D’Errico of Lennar Partners, Inc. (“Len-nar”). The letter stated that Lennar would be servicing the loan and that all future loan payments should be sent to the company’s Florida office. Mr. D’Errico wrote a second letter to NOLP, dated January 16, 2001, and proposed terms under which Lennar and NOLP would meet to discuss the status of the loan. The letter also stated that the company was “empowered to act on behalf of the [■¡Trustee under the Loan Documents in the capacity of attorney-in-fact.” By a letter dated January 17, 2001, Mr. D’Erri-co notified NOLP that it was in default. In that letter, Mr. D’Errico stated that Lennar was “empowered to act on behalf of the Lender in connection with the Loan.” The letter also stated that if the lender did not receive all amounts due within ten days, then the lender would take all actions it deemed appropriate, including seeking foreclosure. By a letter dated January 29, 2001, NOLP received notice from the law firm of Taylor, Porter, Brooks & Phillips (“TPB & P”). The TPB & P letter advised NOLP that the loan had been referred to them for collection and that TPB & P would institute foreclosure proceedings if payment was not made within fifteen days. After NOLP failed to make the payments requested, TPB & P filed a petition for executory process on behalf of the lenders.

Summary judgment should 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 the mover is entitled to judgment as a matter of law”. La.C.C.P. art. 966(B). NOLP argues that the order should be nullified because it was obtained through the unlicensed practice of law by Lennar. NLFC contends that Lennar did not engage in the unlicensed practice of law.

NOLP claims that Lennar was acting under the terms of a contract authorizing Lennar to perform legal services for the lender. NOLP focuses on the correspondence it received from Lennar before the executory process was initiated. One of the letters states that Lennar was empowered to act as the attomey-in-fact for the lender. Another letter states that Lennar was empowered to act on behalf of the lender, notifies NOLP that it is in default under the loan, requests NOLP to satisfy the deficiency within ten days, and advises NOLP that the lender would take all actions, including seeking foreclosure, if the deficiency were not satisfied [4within that timeframe. NOLP argues these statements indicate that Lennar had been authorized by the lenders to perform legal services. We disagree.

First, by describing itself as the “attorney-in-fact,” Lennar indicated that it was not authorized to perform legal services. An attorney-in-fact is “[a] private attorney authorized by another to act in his place and stead, either for some particular purpose, as to do a particular act, or for the transaction of business in general, not of a legal character.” Black’s Law Dictionary (6th ed.1990) (emphasis added).

Second, NOLP has not produced any contract or other document under which Lennar is to provide legal services. It appears from the record that Lennar’s obligations to the lender are governed by the terms of a Pooling and Servicing Agreement. A copy of that agreement is contained in the record. Based on what the record contains, the document appears to identify Lennar as the “Special Servicer” whose obligations are to “service and administer the Mortgage Loans ... in accordance with any and all applicable laws and the terms of this Agreement ...” This provision does not authorize or obligate Lennar to perform legal services. To the contrary, it requires Lennar to perform its duties in accordance with the laws that apply. Because it is illegal for a corporation, other than a professional law corporation, to practice law in Louisiana this provision necessarily denies Lennar the power to represent the lender in legal matters. See La.R.S. 37:213.

Not only does the evidence show that Lennar was not authorized to perform legal services, but also we do not believe that Lennar’s activities as “Special Servi-cer” amounted to the practice of law. One of the letters addressed to NOLP states that Lennar had assumed certain servicing responsibilities on the loan and that future payments should be directed to Lennar. Another letter identifies Lennar Las the “Special Servicer” and proposes terms under which Lennar and NOLP would meet to discuss the status of the loan. The January 17, 2001, letter notifies NOLP that it is in default and says the Lender would seek foreclosure and take other actions if the problem were not cured within 10 days. Finally, a January 29, 2001 letter from TPB & P advises NOLP that Lennar referred the loan to that law firm for collection. NOLP contends that these pieces of correspondence constitute the unauthorized practice of law under a number of judicial decisions addressing the issue. We disagree.

In Pisarello v. Administrator’s Service Corp., 464 So.2d 917 (La.App. 4 Cir.1985), a collection agency was sued by a client for failing to advise it as to prescription of claims. The Pisarello court held that the agency was legally precluded from doing so because it was not authorized to practice law. Unlike Pisarello, there is no evidence that Lennar provided any legal advice.

In Andrus v. Guillot, 160 So.2d 804 (La.App. 3 Cir.1964), the court declared that an agent could make a peaceful collection attempt or adjust a bill without engaging in the practice of law, but that it could not threaten a debtor with legal proceedings or represent a creditor in court either directly or indirectly through an attorney engaged by the collector. Andrus does not support NOLP’s position. The letters that NOLP received from Lennar are clearly the kind of collection attempts that a non-attorney could perform under An-drus. NOLP believes that the January 17, 2001, letter contains a threat by Lennar that it will take the kind of legal action that the Andrus court placed off limits to non-attorneys. We disagree. The January 17, 2001 letter advises NOLP that “the Lender”, not Lennar, would take legal action if NOLP did not cure the default. Moreover, the final warning of legal proceedings appeared in the letter from | f)TPB & P. NOLP claims that Lennar hired TPB & P. However, there is no evidence that it did so. The initial letter NOLP received from TPB & P indicates that “the Trustee” referred the loan to TPB & P through Lennar.

In Duncan v. Gordon, 476 So.2d 896 (La.App. 2 Cir.1985), the defendant was to take all steps necessary to obtain redress for the plaintiff’s personal injuries suffered in a car accident. The court refused to honor the 50 percent contingency fee arrangement because the defendant had to provide legal advice to the plaintiff. There is no evidence that Lennar attempted to, or in fact did, provide legal advice.

In Crocker v. Levy, 615 So.2d 918 (La.App. 1 Cir.1993), a CPA entered into a contingency fee contract with a client. Under the terms of the contract, the CPA agreed to procure a lawyer for the client, and the client agreed to pay the CPA a percentage of certain amounts recovered in a suit contesting her father’s will. Crocker is distinguishable on its facts. In the present case, there is no evidence that Lennar agreed to secure a lawyer in exchange for a percentage of the amounts recovered in a lawsuit.

In Alco Collections, Inc. v. Poirier, 95-2582 (La.App. 1 Cir. 09/27/96), 680 So.2d 735, a creditor engaged a collection agency to collect a debt in exchange for half of the amounts it collected. The agency filed suit in its own name to secure payment against the debtor. The court of appeal concluded that the agency’s actions constituted the unauthorized practice of law. As a result, the court declared the contract between the agency and the creditor to be null and without effect. In addition, because the collection agency did not own the debt, the court sustained [7the debtor’s peremptory exception pleading the objection of no right of action. In the present case, Len-nar did not file suit in its own name to collect the debt owed by NOLP.

In Dunn v. Land and Marine Properties, Inc., 609 So.2d 284 (La.App. 3 Cir. 1992), the heirs of the Dunn estate entered into a contract with a business corporation for it to “perform all administrative and legal work, including the pursuit of litigation if necessary” to recover property from the estate. 609 So.2d at 285. The contract called for payment in the form of a contingency fee of 50% of anything of value received and a mineral lease on any property recovered. The company assigned the contract of representation to its president, an attorney who filed a petition for possession. The trial court issued a judgment of possession that placed the heirs in possession of one half of the estate and the attorney in possession of the other half. The court of appeal concluded that the contract was null and void on its face because it specifically called on the business corporation to perform legal work that it was prohibited from doing under state law. Furthermore, because the judgment of possession was the result of a null contract, the court concluded that the judgment was null and void also.

In Dunn, the contract expressly provided for the provision of legal services by the defendant corporation for the plaintiffs. Here, Lennar’s contract did not authorize it to perform legal services.

Lastly, NOLP argues that Mr. D’Erri-co’s affidavit was not made on his personal knowledge and belief, as required by La. C.C.P. art. 967. Specifically, NOLP argues that we should question whether Mr. D’Errieo had personal knowledge of the facts contained in the statements he made in the affidavit because in a deposition he gave during the course of this litigation he apparently did not |8know the correct amount of the monthly installments due on the loan. However, as the action below was an executory process foreclosure proceeding, and not an action for a deficiency judgment, only the fact that NOLP was in default at all, and not the amount of the overdue payments, was relevant. Consequently, whether or not Mr. D’Errico knew the exact amounts of the payments was not material to the foreclosure.

For the foregoing reasons, we affirm the decision of the trial court to grant the motion for summary judgment and to dismiss all of NOLP’s remaining claims in this matter.

AFFIRMED.

      . We note that Act 1997, No 1088, which amended a section of the Collection Agency Regulation Act, La. R.S. 9:3576.19, appears to have modified the holding of Andrus, so that all of the collection attempts made in Andrus would be legal. However, we need not decide that question, as the facts of the present case are distinguishable from Andrus.