author: |, DREW, J.

text:
    Ben G. O’NEAL and Sally Adrienne O’Neal Webb, Plaintiffs-Appellants v. JLH ENTERPRISES, INC., Ida Oil Corporation, and Dzurik Interests, Inc., Defendants-Appellees.
    No. 37,432-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 1, 2003.
    Rehearing Denied Jan. 22, 2004.
    Klotz, Simmons & Brainard by David Klotz, Shreveport, for Appellants.

      Herman Lawson, Mansfield, for Appel-lee JLH Enterprises, Inc.
    G. Warren Thornell, Shreveport, Plum-mer & Means, L.L.C., by David B. Means, Mansfield, Bo Roseberry, for Appellees Dzurik Interests, Inc. and Ida Oil Corporation.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   |, DREW, J.

Ben O’Neal and Sally O’Neal Webb (collectively referred to as “plaintiffs” or “O’Neals”) appeal a judgment denying both their claim that an oil and gas lease granted by them had expired due to lack of production, and their claim that they are entitled to damages of double the amount of past-due royalties as well as attorney fees.

We affirm.

FACTS

The O’Neals are the owners of the mineral rights underlying approximately 599 acres in DeSoto Parish described as:

The Northeast Quarter of the Southwest Quarter and the South Half of the Southwest Quarter, less one (1) acre to Gallie Church, Section 14; the Northeast Quarter, the East Half of the Northwest Quarter, the Northeast Quarter of the Southwest Quarter and the North Half of the Southeast Quarter, Section 23; the West Half of the Northwest Quarter and the Southeast Quarter of the Northwest Quarter, all in Section 24, Township 12 North, Range 15 West, DeSoto Parish, Louisiana, comprising 599 acres, more or less.

On April 8, 1985, the plaintiffs entered into a mineral lease on the above-described property with JLH Enterprises, Inc., for which the O’Neals were to receive a l/5th royalty. Attached to the lease was Exhibit A, which set forth the primary term of the lease. Exhibit A provided, in part:

The term of this lease shall be for a period of ninety (90) days from the date that the lessee obtains approval from the Department of Natural Resources, Office of Conservation, State of Louisiana, at a legal location on the property contained in the aforementioned oil, gas, and mineral lease....
Lessee agrees to drill the initial test well within a period of ninety (90) days to a depth of 4000 ft., or a depth sufficient to test the Mooringsport Formation, whichever is a lesser depth. Lessee further agrees to drill one well every 180 days from the completion of the previous well drilled. If the drilling obligation of this lease is not fulfilled, and one well is not drilled every 180 days from the completion of the last well drilled, this lease shall be terminated and only that portion of this lease included in a unit approved by the Department of Natural Resources, Office of Conservation, will remain in full force. In the absence of units each producing oil well will hold only forty (40) acres in the form of a square as nearly as possible, and each gas well will hold only one hundred sixty (160) acres in the form of a square as nearly as possible.

In 1987, the lease was amended to correct its property description and ratified because the entire lease was in producing units.

On June 2, 1987, the Louisiana Office of Conservation created eight drilling and production units in the Glen Rose Sand, Reservoir C, Canadian Bayou Field (“GR RC”) in DeSoto Parish. The GR RC was defined as the gas and condensate bearing sand encountered between the depths of 3,140 feet and 4,100 feet in the JLH Enterprises-O’Neal No. 1 well.

Three wells were completed on the leasehold, namely O’Neal No. 1, O’Neal No. 2, and O’Neal No. 3. In addition, parts of the leasehold were included in a unit for gas production from the McCoy No. 1 well. Each of the three O’Neal wells was apparently included in separate units producing gas from the Glen Rose Formation. The O’Neal No. 2 well (“OW-2”) was in a 320-acre unit, 240 acres of which were on the property covered by the O’Neal lease, and the remainder on property owned by Carlton McCoy. JLH Enterprises received a permit to drill the OW-2 in February of 1986.

At some point, JLH assigned its working interest to Ida Oil Corporation. Sun-dance Energy Corporation operated the O’Neal lease from May 1, 1992, until May 1, 1999, when Sundance transferred the operating rights to Pace Royalty Fund, Inc. During the time Sundance operated the lease, the only producing well was the OW-2, which was the unit well for GR SC Sand Unit E. Sundance unsuccessfully attempted to reestablish production from the O’Neal Well No. 1. The O’Neal Well No. 3 was plugged and abandoned in 1996 or 1997, but the O’Neal No. 1 was not plugged and abandoned. Sundance never operated the McCoy well.

In March of 1999, O’Neal sent an undated letter to Sundance in which he noted that the royalty check for November, 1998 was not received until March of 1999 despite repeated telephone demands for payment. O’Neal demanded that Sundance release the lease, abandon the wells, remove pipelines, and clean up the site. William Roseberry, President of Sundance, did not recall receiving this letter, although he signed a certified mail receipt on March 25, 1999.

On June 22, 1999, Roseberry mailed royalty payments for the OW-2 for the months of January, 1999 through April, 1999 to O’Neal. He requested that O’Neal hold the checks for March and April until July 1 before depositing. Roseberry also apologized for the late royalty payments, and added that Pace had-assumed operations effective May 1, 1999. Roseberry blamed the late payments on his health problems.

The record reflects that in July 1999, Pace paid $1,089 in royalties to each of the O’Neals for May 1999 production from the OW-2. Apparently, this was the only royalty payment made by Pace to the O’Neals. O’Neal cashed his check from Pace, but his sister did not cash her check.

On February 4, 2000, O’Neal wrote a letter to the District Manager of the Office of Conservation requesting that the OW-2 be sealed due to Pace’s failure to file production reports.

On March 16, 2000, O’Neal executed an affidavit regarding cancellation of the lease. He stated that the OW-2 had not produced since May of 1999, and that no production reports concerning the lease had been filed with the Office of Conservation since June 1,1999. He concluded that the lease had expired by its own terms. This affidavit was filed in the conveyance records of DeSoto Parish on March 21, 2000, and received by the Office of Conservation on May 8, 2000.

Also on March 16, 2000, the O’Neals executed a mineral lease on the leased property with C.H.C. Gerard. This top lease was recorded in DeSoto Parish on March 26, 2001.

On March 1, 2001, Ida Corporation assigned its right and interest in the lease to Dzurik Interests, Inc., which took over operations around April 1, 2001. Dzurik sent royalty checks in May of 2001 to the O’Neals. The check to Webb was for $5,106; the check to O’Neal was for $3,926. These checks, which apparently were for royalties owed for the period of May 1999 through August 2000, were for different amounts because O’Neal had cashed the earlier royalty check from Pace. Later that month, the O’Neals sent separate letters to Dzurik in which they wrote that the checks were being returned because they believed that the lease had expired and they were entitled to 100% royalties from the OW-2’s production on or after May 1, 1999, that was attributable to their ownership of the lands included in the unit. The O’Neals later returned royalty checks from Dzurik that they received in July of 2001.

On April 17, 2001, Joe Wojtkiewicz, who acted as an oil and gas consultant to the O’Neals and who was also employed by C.H.C. Gerard, wrote a letter to James Broussard, the District Manager for the Louisiana Office of Conservation (“Conservation”), in which he urged Conservation to seal the OW-2, which Conservation declined to do. Broussard explained that sealing a well means shutting-in a well and placing a Conservation seal on it, and that sealing a well was the most severe enforcement action and would not be done just because a well was not producing. Brous-sard had also received telephone calls from O’Neal and Wojtkiewicz about sealing the well.

On July 23, 2001, the O’Neals filed suit against JLH Enterprises, Inc., Ida Oil Corporation, and Dzurik Interests, Inc. They sought:

• a declaratory judgment stating that the mineral lease had expired on or before October 21, 1994, as to all lands covered by the lease except the land included in the unit for OW-2;
• a declaratory judgment stating that the lease had expired as to the land included in the unit for OW-2 due to a failure to produce or failure to produce in paying quantities;
• the recovery of royalties from OW-2 during 1999 and thereafter; and
• additional damages of double the royalties due, an accounting, and attorney fees.

Dzurik filed a reconventional demand asserting that its right to peaceable enjoyment of its leasehold interest had been disturbed by the March 16, 2000, lease; March 2000 affidavit; and letters to Conservation. Named as defendants to the reconventional demand were the O’Neals, Joe Wojtkiewicz, and C.H.C. Gerard.

Following a bench trial in July 2002, the trial court rendered judgment ordering that the 1985 lease remained in full force and effect in favor of the lessee, and that any past-due royalties were to be paid in full with interest from the original due date. Costs were assessed to defendants.

DISCUSSION

Production

The O’Neals first argue on appeal that the lease expired by its own terms prior to March 1, 2001 due to the failure of the OW-2 to produce for a period of more than 90 days. They specifically contend that there was no natural gas production from the OW-2 from August, 2000 through February, 2001.

Our examination of appellants’ arguments begins with the language of the O’Neal-JLH lease, which states, in part:

2. Subject to the other provisions herein contained, this lease shall be for a period [reference to Exhibit A of lease] from this date (called “primary term”) and as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith; or (2) it is maintained in force in any other manner herein provided.
6. If within ninety (90) days prior to the end of the primary term, Lessee should complete or abandon a dry hole or holes on the land described above or on land pooled therewith, or if production previously secured should cease from any cause, this lease shall continue in force and effect for ninety (90) days from such completion or abandonment or cessation of production. If at the expiration of the primary term or at the expiration of the ninety (90) day period provided for in the preceding sentence, oil, gas, sulphur, or other mineral is not 17being produced on said land or on land pooled therewith, but Lessee is then engaged in operations for drilling or reworking thereon, or if production previously secured should cease from any cause after the expiration of the primary term, this lease shall remain in force so long thereafter as Lessee either (a) is engaged in operations for drilling or reworking with no cessation between operations or between such cessation of production and additional operations of more than ninety (90) consecutive days; or (b) is producing oil, gas, sulphur or other mineral from said land hereunder or from land pooled therewith....

La. R.S. 31:133 provides that a mineral lease terminates at the expiration of the agreed term or upon the occurrence of an express resolutory condition.

The language from paragraph six of the lease regarding reworking operations does not aid defendants in this instance. The last workover during the August 2000 to February 2001 period ended on October 23, 2000. According to defendants’ calculations, 90 days from that date is January 21, 2001.

In order to address the O’Neals’ claims, it is necessary to summarize the OW-2 production reports from the relevant months that were filed with Conservation by the working interest operators:

It is obvious from the production records that although there was no gas production reported during the months of August 2000 through February 2001, there was condensate production during this period. It was explained at trial that condensate is a light oil that is extracted on the surface from gas produced at the well. Although it is apparently possible to produce gas without condensate, gas production is required in order for condensate to be extracted. Thus, the O'Neals are skeptical that condensate was even produced as reported because there was no reported gas production.

Harrison testified that there was condensate production without reported gas production during the period of August 2000 to February 2001 because Pace lacked a compressor to sell the gas due to plaintiffs’ actions, which will be explained later in this opinion; therefore, the gas that was being produced was utilized to operate the pump, with the remainder flared or vented. Although Harrison never notified Conservation that he was flaring gas, he believed that Conservation knew about it from its well-site inspections.

Kevin Dzurik testified that when he inspected the lease before acquiring it, he saw and heard the OW-2 venting gas. He added that the engine for the pumping unit was powered by natural gas, the heater-treater ran on gas, the vessel had gas-operated dumps, and gas pressure was used to send liquids to the tanks; in sum, gas was used to operate the surface production facility, and the remaining gas was vented. Dzurik also explained that if no gas was sold, the production reports would show zero disposition of gas to a buyer.

Dzurik initially believed that it was not a violation of the rules and regulations of Conservation to vent gas without a permit. He claimed that he told Broussard about the venting prior to the acquisition and that Broussard did not have a problem with it.

The habendum clause of the lease provided that if production ceased after the primary term of the lease, the lease would remain in effect as long as the lessee was producing oil, gas, or other mineral from the land. Even though no gas production was reported during the months at issue, condensate production was reported. Accordingly, oil, or at the very least “other mineral,” was being produced. Plaintiffs’ argument on this issue is without merit.

Paying Quantities

The O’Neals next argue that even if the OW-2 did not fail to produce for a period of more than 90 days, it still expired prior to March 1, 2001, as it failed to produce in paying quantities from February 2000 through February 2001. La. R.S. 31:124 requires production in paying quantities when a mineral lease is maintained by production of oil or gas. That article provides that production is in paying quantities when:

... production allocable to the total original right of the lessee to share in production under the lease is sufficient to induce a reasonably prudent operator to continue production in an effort to secure a return on his investment or to minimize any loss.

111 Implicit in the term “paying quantities” is that the lessee is required to show a profit; production income must exceed operating expenses. Menoah Petroleum, Inc. v. McKinney, 545 So.2d 1216 (La.App. 2d Cir.1989).

The O’Neals contend that lease operating expenses exceeded unit net revenues for each month during the period of February 2000 through February 2001. In addition, they argue that when comparing the total lease operating expenses of $41,442 during this period to the total unit revenue of $8,460 during the same period, it is evident that the OW-2 was operated at a substantial loss. In making this argument, the O’Neals relied upon operating statements prepared by Pace for Ida.

An examination of the operating statements shows that when plaintiffs calculated the operating expenses in order to establish their claim, plaintiffs deducted only some of the expenses that defendants urge were incurred in the four workover operations done by Pace during the 13 months at issue. The workovers were from February 2, 2000, through February 18, 2000; March 9, 2000, through May 15, 2000; July 7, 2000, through July 10, 2000; and October 11, 2000, through October 23, 2000. Filed into evidence by defendants were invoices or work tickets from the companies with whom Pace contracted for the workover services. The workover expenses were listed on Pace’s operating statements under the general category of “operating expenses,” although no significance should be given to this categorization by Pace as the operating statements were prepared for a client, not in anticipation of litigation over paying quantities.

Workover expenses, considered to be extraordinary expenses, are generally distinguished from operating expenses and should not be included as an operating expense when determining if there was production in paying quantities. Lege v. Lea Exploration Company, Inc., 93-065 (La.App. 3rd Cir.2/2/94), 631 So.2d 716, writ denied, 94-0450 (La.4/4/94), 635 So.2d 1112.

In Jardell v. Hillin Oil Co., 485 So.2d 919 (La.1986), the supreme court discussed what constitutes a reworking operation:

... No doubt an exact definition of reworking operations is difficult to formulate. The problems of producing oil and gas thousands of feet below the surface are many and varied, as are the procedures for rectifying production that is sluggish or has ceased. See Williams and Meyers, Oil and Gas Law—Manual of Oil and Gas Terms, 758-59 (1984) (citing Lone Star Producing Co. v. Walker, 257 So.2d 496, 500 (Miss.1971).) However, the prior jurisprudence of this state has provided some guidance for distinguishing reworking operations from routine maintenance. For reworking to occur, it is necessary first that production has ceased or slowed down or has never been achieved. Reworking need not involve additional drilling. It is also clear that reworking operations encompass essential preparatory steps. Furthermore production need not be resumed during the delay. There is also the suggestion that the operations conducted by the lessee must be a good faith effort to resume production as soon as possible.
The Manual of Oil and Gas Terms, supra, mentions additional factors cited by courts in other jurisdictions as determinative of a reworking operation. The Alabama Supreme Court in Sheffield v. Exxon Corp., 424 So.2d 1297, 1303 (Ala.1982) declared that an activity should be physically associated with the well site and intimately connected with the resolution of the difficulty that caused the well to cease production in order for it to constitute reworking. However, the presence of a workover rig at the well site was not found to be a necessary incident to a reworking operation in Lone Star Producing Co. v. Walker, 257 So.2d at 500. And, whatever the activity, it must be done “as an ordinarily competent operator would do in the same or similar circumstances,” according to a Texas court. Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311, 314 (1953).

Footnote omitted. Id., 485 So.2d at 924-5.

When categorizing an expense as an operating expense to determine if production was in paying quantities, ordinary and recurring expenses are generally distinguished from expenses that are extraordinary and largely non-recurring. See, Lege v. Lea Exploration Company, Inc., supra.

We note from the outset that the only recurring monthly expenses during this period were a $650 administrative fee paid to Pace and a $383.33 pumper charge fee. In addition, a chart allocation fee that ranged between $2.20 and $38.70 was charged in 10 of the 13 months. There was a property tax charge of $890.65 in December, which would also be a recurring expense, albeit on an annual basis.

Summarized in the table below are the unit net revenue (after the severance tax is deducted) and total expense figures reflected in Pace’s operating statements; what plaintiffs allege were the operating expenses and the reworking expenses; and what defendants allege were the reworking expenses as supported by invoices. The unit net revenue for each month is from the sale of gas that had been produced two months earlier. It should be noted that the operating statements do not reflect the sale of condensate.

It is apparent that even if defendants receive credit for every workover expense that they claim, the operating expenses of $22,583.88 ($64,051.46 minus $41,467.58) still exceed the net revenues of $8,460.65. However, for two reasons, this initial calculation is not dispositive of the O’Neals’ allegation.

First, we note that the period of production to be examined is not limited to 13 months. Compare Edmundson Brothers Partnership v. Montex Drilling Company, 98-1564 (La.App. 3rd Cir.5/5/99), 731 So.2d 1049, where the court examined production over an 18-month period. The gap between revenues and operating expenses is eliminated if we consider some of the earlier operating statements that were entered into evidence by plaintiffs. The nature of the recurring expenses remain the same for these additional months.

Unit Net Total J HjDate_Revenue_Expenses Workover expenses Recurring supported by Expenses invoices

05-99 l 0 fc 4,167.14 1,038.83 & 1,673

06-99 0 11,679.64 1,038.83 7,875.50

07-99 13,949.15 1,033.33 1,033.33 0

08-99 10,894.08 1,430.28 1,080.28 0

09-99 981.90 5,277.77 1,038.83 0

10-99 4,569.99 1,038.83 1,038.83 0

11-99 11,360.69 1,471.63 1,122.63 0

12-99 12,350.10 16,005.80 1,953.67 12,548.13

01-00 6,932.61 1,156.13 1,033.33 0

Total 61,038.52 43,260.55 10,378.56 22,096.63

Two workovers were performed during these earlier months. The first occurred from May 14 to June 22, 1999. A new zone was not perforated during this work-over. The second workover occurred from December 10 through December 30, 1999. A new zone below the existing zone was perforated during this workover.

During the period of May of 1999 through January of 2000, the net revenues of $61,038.52 exceeded the actual operating expenses of $21,163.92 ($43,260.55 minus $22,096.63) by $39,874.60. In addition, taking these additional months into consideration, for the period of May 1999 through February 2001, net revenues of $69,499.17 exceeded the operating expenses of $62,606.79. We reach the latter figure by taking $41,442.87, which is what plaintiffs state are the operating expenses for February of 2000 through February of 2001, and adding $21,163.92, which is reached by deducting the workover expenses supported by invoices from the “operating expenses” reported on the operating statements for May of 1999 through January of 2000.

It is also important not to examine the unit net revenue in isolation. Defendants aver that actions taken by O’Neal and his representatives impaired their ability to sell the gas that was produced and which would have yielded income from the well. A mineral lessor is obligated to refrain from disturbing the lessee’s possession and to perform the contract in good faith. La. R.S. 31:119. Interference with the mineral lessee’s rights would not excuse the performance of the lessee, but would only delay such performance. In re WRT Energy Corp., 202 B.R. 579 (Bankr.W.D.La.1996).

On May 15, 2000, the O’Neals’ attorney, David Klotz, wrote to Genesis Crude Oil, which was transporting the condensate from the well, that the lease had expired and that Genesis was no longer to go onto the property. On that same date, Klotz wrote a letter to Precision Pipeline, the gas gatherer, stating that the lease had expired and that Precision was to have no contractual dealings with Pace regarding the OW-2. O’Neal’s March 16, 2000, affidavit was attached to each letter. On May 22, 2000, Precision wrote to Pace that due to Klotz’s letter concerning the cancellation of the lease, it would shut-in Pace’s interconnect into Precision’s gathering system.

After receiving the letter from Precision, Pace rented a gas compressor from Lion Services, repiped the system, and started selling gas to Sonat Southern Natural Gas. On July 25, 2000, Klotz wrote to Lion Services to inform them that the lease had been cancelled and to demand that Lion Services remove their compressor. A copy of O’Neal’s affidavit was attached to the letter. The production records show no gas production for the month (June) after the letters to Genesis and Precision, gas production for July, then no gas production for the month (August) after the letter to Lion Services.

The effects of the O’Neals’ interference continued as the reports through June of 2002 show zero natural gas production. Dzurik testified that other companies are not comfortable about leasing him equipment until the lease issue is settled. Dzurik has paid Sonat not to remove the tap in the event that Dzurik will be able to sell the gas.

Revenues from gas production presumably would have been greater had O’Neal and his associates not interfered with the lessor’s ability to produce the well. Based upon our review of this record, we cannot conclude that the trial court was clearly wrong in finding that the 1985 lease remained in effect.

Royalties

Finally, we consider the O’Neals’ contention that they are entitled to damages of double the amount of royalties and attorney fees as a result of Pace’s failure to timely pay royalties, as well as Sundance’s late payment of royalties for the months of January through April 1999.

When a mineral lessor seeks relief for the failure of the lessee to make timely or proper payment of royalties, he must give his lessee written notice of such failure as a prerequisite to a judicial demand for damages or dissolution of the lease. La. R.S. 31:137. The lessee shall then have 30 days after receiving the required notice to pay the royalties due or to respond by stating in writing a reasonable cause for nonpayment. La. R.S. 31:138. If the lessee pays the royalties due, and the original failure to pay was either fraudulent or willful and without reasonable grounds, the court may award as damages double the amount of royalties due. La. R.S. 31:139. If the lessee fails to pay the royalties due, or fails to inform the lessor of a reasonable cause for failing to pay in response to the required notice, then the court may award as damages double the amount of royalties due. La. R.S. 31:140. The use of the word “may” indicates that an award of damages of double the royalties is within the court’s great discretion. See, Fuller v. Franks Petroleum, Inc., 501 So.2d 1024 (La.App. 2d Cir.1987); Wegman v. Central Transmission, Inc., 499 So.2d 436 (La.App. 2d Cir.1986), writ denied, 503 So.2d 478 (La.1987).

Ben O’Neal sent an undated letter to William Roseberry, President of Sun-dance, in which he wrote, “After repeated telephone demands made during the months of December 1998, January 1999 and February 1999, for my royalties from the above-referenced well you have sent me a check for the production month of November 1998 which I received during March 1999.” He continued that due to Sundance’s failure to respond to the demand for payment within 30 days, he would seek a remedy under La. R.S. 31:140. This letter was apparently sent to Roseberry in March of 1999.

This letter does not constitute the written demand required by La. R.S. 31:137. We note the Comment to La. R.S. 31:137, which states, in part:

Article 137 contemplates that at any time there has been a nonpayment of royalties, the lessor must notify the lessee. It is not intended that this notice be a demand for performance as in the case of the traditional default under the Civil Code. The lessor may not desire performance. The device of notice, then, is merely to inform the lessee that he has not paid royalties deemed by the lessor to be due.

The letter was neither a desire for performance nor used to inform Sundance that it has not paid royalties. In fact, the letter indicates that the royalty payment for November 1998 had already been received; O’Neal was merely informing Sun-dance that it was received more than 30 days after telephoned demands for payment.

Moreover, La. R.S. 31:138 sets forth the response required of the lessee upon receiving the written demand:

The lessee shall have thirty days after receipt of the required notice within which to pay the royalties due or to respond by stating in writing a reasonable cause for nonpayment. The payment or nonpayment of the royalties or stating or failing to state a reasonable cause for nonpayment within this period has the following effect on the remedies of dissolution and damages.

Obviously, Sundance could not respond as such because it had already responded to telephoned demands for payment. Accordingly, the penalty provisions of La. R.S. 31:139 were not triggered, and the remedy of double the amount of royalties due and attorney fees was not available. In any event, even if the letter was in compliance with La. R.S. 31:137, we cannot conclude that the trial court abused its discretion in denying plaintiffs’ claims.

Pace assumed operations effective May 1,1999. Dzurik Interests took over operations in April 2001. The record reflects that in July 1999, Pace paid $1,089 in royalties to each of the O’Neals for May 1999’s production from the OW-2. Apparently, this was the only royalty payment made by Pace to the O’Neals. Ben O’Neal cashed his check, but his sister did not cash her check. In May of 2001, Dzurik sent royalty checks for $5,106 to Webb and for $3,926 to Ben O’Neal. The checks were for royalties owed by Pace for the period of May 1999 through August 2000.

The O’Neals argue that because the March 1999 letter to Sundance gave notice that the lease was in default for the failure to pay past-due royalties within 30 days, it was unnecessary for them to make subsequent written demands upon Pace for payment of past-due royalties. We disagree. As noted above, Sundance never received the required written demand. Thus, in order for Pace to be subject to the penalty provisions, it would have had to have received written demand, which is not the case, as plaintiffs are attempting to rely on the insufficient letter to Sundance. Accordingly, the trial court did not err in denying the O’Neals’ claims for attorney fees and double the amount of past-due royalties based upon Pace’s failure to pay royalties.

DECREE

At appellants’ costs, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

BROWN, J., would grant rehearing.

      . The District Manager for the Office of Conservation testified that O’Neal No. 1 was under a compliance order to plug after the trial. He added that Sundance plugged O’Neal No. 3 in August of 1997.

      . Ronald Loftin, a pumper, testified that the tank on the OW-2 has the capacity to hold 210 barrels of condensate.

      . Not included is the $883.16 charge for 1998 taxes that were not paid.

      . Measuring operating expenses by deducting workover expenses supported by invoices from the total expenses listed on the operating statements.

      . This figure does not include the Energy Wireline invoice for $2395 for a perforation that was not listed on the operating statement.


source: Caselaw Access Project

author: JjLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Wade D. SCHINDLER v. ORLEANS REGIONAL SECURITY.
    No. 2003-CA-0522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 2003.

      Joseph G. Albe, New Orleans, LA, for Plaintif&'Appellee Wade D. Schindler.
    Jeffrey J. Warrens, Baton Rouge, LA, for Defendant/Appellant Regional Security Institute, Inc. and Louisiana Workers’ Compensation Corporation.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

The defendants, Orleans Regional Security Institute, Inc. (ORSI), and the Louisiana Workers’ Compensation Corporation (LWCC), appeal from a judgment of the Office of Workers’ Compensation awarding the plaintiff/claimant, Wade D. Schindler , medical benefits, penalties, and attorney fees. Schindler has answered the appeal.

FACTUAL AND PROCEDURAL HISTORY

Schindler, the president and sole officer and employee of ORSI, was involved in an automobile accident on May 29, 1997. At the time, Schindler was a guest passenger in an Isuzu Trooper driven by Peggy Ogden, a client of ORSI. Ogden was traveling northbound on North Carrollton Avenue at the intersection of Esplanade Avenue when she suddenly swerved to avoid colliding with a vehicle driven by Lorraine Young, who had run the red light at Esplanade Avenue. The front of Young’s vehicle struck the passenger side rear corner of Ogden’s Isuzu, but the damage to the vehicles was very minimal. Nonetheless, as a result, Schindler was tossed about the vehicle and injured.

Schindler filed a disputed claim for compensation with the Office of Workers’ Compensation on August 23, 2000, alleging that he was in the course and scope of his employment with ORSI at the time of the accident. He also alleged that he injured both his left shoulder and left eye and sought past medical expenses and expenses for future eye surgery. The LWCC received notice of the disputed claim on October 24, 2000, and filed its answer denying the claim on December 5, 2000.

At the three-day trial on the merits, the LWCC argued that Schindler was neither within the course and scope of his employment at the time of the accident nor sustained any injuries. Alternatively, it argued that in the event the workers’ compensation judge found that Schindler was injured while within the course and scope of his employment, its liability for non-emergency medical expenses was limited to $750.00 per health care provider pursuant to La. R.S. 23:1142 B.

Following the trial, the workers’ compensation judge concluded that Schindler was within the course and scope of his employment during the May 29, 1997 accident and injured his left eye and/or tear duct, but not his left shoulder. She rendered judgment in favor of Schindler and awarded him all reasonable and necessary medical expenses associated with his left eye injury, including future surgery, finding the $750.00 cap pursuant to La. R.S. 23:1142 B inapplicable because the LWCC denied the claim. The workers’ compensation judge also awarded Schindler a penalty of $2,000.00 and attorney fees in the amount of $15,000.00, finding that the LWCC failed to pay the medical expenses related to the eye injury and did not reasonably controvert the eye injury claim.

After filing its appeal brief, the LWCC waived two of its five assignments of error, conceding that Schindler sustained an injury to his left eye in the May 29, 1997 accident while within the course and scope of his employment with ORSI. Thus, the LWCC asserts the following three assignments of error: 1) the workers’ compensation judge failed to apply the $750.00 cap set forth in La. R.S. 23:1142 B to the medical expenses incurred by Schindler prior to the LWCC being notified of the claim; 2) the workers’ compensation judge erred in concluding that the LWCC failed to reasonably controvert Schindler’s claim and awarding him penalties and attorney fees; and 3) the workers’ compensation judge erred in awarding excessive attorney fees. Schindler answers the appeal, arguing the workers’ compensation judge erred in finding that the accident did not aggravate his pre-existing left shoulder injury, and seeks an increase in attorney fees.

STANDARD OF REVIEW

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error — clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 97-0688 at p. 4, 704 So.2d at 1164. Where two permissible views of the evidence exist, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 96-2840 at p. 8, 696 So.2d at 556.

APPLICABLE LAW AND DISCUSSION

Left Shoulder Injury

At the outset, we address the issue of whether the workers’ compensation judge erred in determining that the work-related accident did not aggravate Schindler’s pre-existing left shoulder injury. Schindler contends that his testimony along with the deposition testimony of Ronald J. French, M.D., an orthopedic surgeon, which was introduced at trial, were sufficient to prove that the work-related accident aggravated his left shoulder injury.

An injured employee is entitled to receive benefits for an injury that arises out of and in the course and scope of his employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Quinones v. USF & G, 93-1648, p. 6 (La.1/14/94), 630 So.2d 1303, 1306-07. An employee’s pre-existing condition does not disqualify his claim if the work related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Doucet v. Baker Hughes Production Tools, 93-3087, p. 3 (La.3/11/94), 635 So.2d 166, 167. An employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. Id.

The evidence in the record reflects that on April 10, 1997, Schindler had severe left shoulder pain and went to the Department of Veterans Affairs Medical Center (VA Hospital) where Rudolph Buckley, M.D., examined him. Schindler complained to Dr. Buckley that his left shoulder was “getting caught” when he raised his left elbow and that he had been experiencing an increase in pain over the last year. Dr. Buckley x-rayed the shoulder, which revealed a degenerative joint disease of the acromion (outer end of the shoulder blade). Possible diagnoses included shoulder impingement, a tear in the anterior part of the capsule of the shoulder and/or bursitis and/or a tear in the rotator cuff. Schindler returned to the VA Hospital on May 13, 1997 with the same complaints. Dr. Buckley ordered a magnetic resonance imaging (MRI) test, but the procedure was aborted due to Schindler’s complaint of claustrophobia. Dr. Buckley then noted that he wanted to schedule Schindler for diagnostic arthroscopy because he was unable to undergo the MRI. Schindler went to see Dr. Buckley again on June 3, 1997, five days after the car accident, but he never mentioned the accident nor complained of re-injuring his left shoulder. Dr. Buckley opined that Schindler, more likely than not, had torn his left rotator cuff prior to May 29, 1997, and as a result of degenerative changes, would have required a shaving of the end or tip of the shoulder blade even without any additional alleged trauma.

The following week, on June 11, 1997, Schindler went to see George R. Cary, Jr., M. D., an orthopedic surgeon, and gave him the following history, as reflected in Dr. Cary’s notes:

The patient stated that while as a passenger in the front seat of an automobile, without a seat belt, his car was hit from the rear while moving. The patient was thrown in an oblique and transverse fashion about the passenger compartment striking his left shoulder on unknown objects and injuring his neck and back. The patient noted immediate dizziness, nausea and swelling in the region of the left eye.
* * *
Past history reveals limited motion of the left shoulder, secondary to an old injury with pain in the left shoulder hurting over a period of three years. The patient engages in water aerobics which has caused worsening of the condition and somewhat stiffening of the condition.

Shortly thereafter, Dr. Cary referred Schindler to his associate, Ronald J. French, M.D., an orthopedic surgeon who specialized in shoulder injuries. After examining Schindler on July 25, 1997, Dr. French opined that he had sustained a partial or complete tear of the rotator cuff at the time of the motor vehicle accident. A subsequent MRI test verified a tear of the rotator cuff. Schindler underwent arthroscopic surgery by Dr. French on December 23, 1997. Schindler recovered well from the surgery, but required several months of physical therapy.

As to the cause of Schindler’s shoulder injury, Dr. French referred back to Schindler’s medical records from the VA Hospital in which Dr. Buckley noted that Schindler had a positive impingement sign and some degeneration at the acromioclavicular (AC) joint, but had good rotator cuff strength. Dr. French concluded that these physical findings were consistent with degenerative arthritis of the shoulder and degeneration of the rotator cuff tendon, which would have predisposed Schindler to further injury. Dr. French opined that due to the weakened condition of Schindler’s rotator cuff, a motor vehicle accident with relatively low impact could have caused the rotator cuff tear.

When questioned about the force necessary to aggravate Schindler’s pre-existing left shoulder condition, Dr. French testified either a direct blow to the shoulder or some forced abduction of the shoulder would have been needed. He described the force as “[a]nything that either pushes the acromion down or pushes the rotator cuff up.” Dr. French explained that had Schindler experienced such trauma to the shoulder sufficient to cause further tearing or a tear to an already inflamed tendon, he would have felt severe pain immediately, not days later.

At the request of State Farm Mutual Automobile Insurance Company, Timothy Finney, M. D., another orthopedic surgeon, examined Schindler in December 1997. Dr. Finney opined that Schindler’s significant pre-existing left shoulder pathology and subjective complaints prior to May 1997 made it impossible to determine that the vehicular accident caused the left shoulder injury seen on the arthroscopy. Dr. Finney specifically noted the fact that Dr. Buckley wanted Schindler to undergo arthroscopic surgery at the VA Hospital prior to the May 1997 accident.

Notwithstanding Dr. French’s deposition testimony and Schindler’s testimony that he could no longer lift anything after the accident, Schindler admitted on cross-examination that the impact between the two vehicles was slight and he could not recall whether he struck his shoulder on anything during the accident. He also acknowledged that he experienced no left shoulder discomfort immediately after the accident and did not complain about an aggravation to his pre-existing shoulder injury until several weeks later.

The workers’ compensation judge determined that Schindler did not satisfy his burden of proving that he injured or aggravated a pre-existing injury to his left shoulder. After considering the evidence in the record, we find Schindler did not prove by a preponderance of the evidence that he was in good health prior to the accident and commencing with the accident the disabling symptoms of his left shoulder appeared. To the contrary, the medical evidence clearly indicates that Schindler’s left shoulder injury was causing him pain for more than a year prior to the accident, and based on his complaints, Dr. Buckley proceeded with diagnostic testing and intended to schedule arthroscopic surgery prior to the vehicular accident. In view of the medical evidence, as well as Schindler’s own testimony that the vehicular impact was minimal and he felt no pain to his left shoulder immediately following the accident, we cannot say that the trial court erred in concluding that the accident did not cause an aggravation to his pre-existing left shoulder injury.

Medical Expenses

We now address the issue of whether the trial court erred in determining that the $750.00 limit set forth in La. R.S. 23:1142 B was not applicable to medical expenses incurred by Schindler prior to the LWCC being notified of the claim.

An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. La. R.S. 23:1203 A. The right to reimbursement for medical expenses is separate and distinct from the right to compensation. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 9 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 19. Whether a claimant is entitled to medical benefits is a question of fact, and the fact finder’s resolution of that issue may not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Id.

To recover medical expenses under La. R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Montana v. City of New Orleans, 95-1701, p. 9 (La.App. 4 Cir. 6/5/96), 682 So.2d 239, 245, writ denied 96-2981 (La.1/31/97), 687 So.2d 412. An injured employee is not entitled to recover for medical expenses where he or she fails to substantiate a claim. Starks v. Universal Life Insurance Company, 95-1003, p. 5 (La.App. 1 Cir. 12/15/95), 666 So.2d 387, 391, writ denied 96-0113 (La.3/8/96), 669 So.2d 400. Nonetheless, when a claimant alleges that he incurred medical expenses and a bill supports that allegation, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of that item in the judgment. See Augustus v. St. Mary Parish School Board, 95-2498, p. 15 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1155.

On appeal, the LWCC does not contest the workers’ compensation judge’s finding that Schindler injured his left eye and/or tear duct in the accident. Rather, it argues that its liability for the nonemergency medical expenses related to the left eye injury incurred by Schindler prior to the date it received notice of the claim is limited to $750.00 per health care provider pursuant to La. R.S. 23:1142 B. Schindler counters that the $750.00 limit is not applicable because the LWCC denied the claim, citing the exception set forth in La. R.S. 23:1142 E.

|inLa. R.S. 23:1142 provides, in part:

B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

Under the exception set forth in La. R.S. 23:1142 E, when an employer or insurer has denied that a claimant’s injury is compensable, the statutory cap does not apply. See Bolton v. Tulane University, 99-0970, p. 9 (La.App. 4 Cir. 3/1/00), 755 So.2d 1003, 1009.

At trial, Schindler introduced into evidence his medical records and bills from Robert J. Cangelosi, Sr., M.D., of Greater New Orleans Eye Physicians, who treated his eye injury from the date of the accident through March 2000. He also submitted into evidence documentation from Tulane University Medical Center, indicating Peter R. Kastl, M.D., an ophthalmologist, and Kyle V. Acosta, M.D., an ophthalmic plastic and reconstructive surgeon, examined him in July 1999 and April 2000, respectively. In addition, Schindler introduced invoices and receipts for expenses incurred in replacing his eyeglasses and undergoing diagnostic tests related to his eye injury.

In finding that the $750.00 limit did not apply in this ease, the workers’ compensation judge noted in her reasons for judgment that Schindler did not file a disputed claim for compensation until years after the accident and, thus, did not seek prior authorization for medical treatment. Nonetheless, because the LWCC denied the claim after receiving notice of it, the judge presumed that it would have denied the claim had it received notice earlier. We find the workers’ compensation judge’s conclusion does not necessarily follow.

Recently, in Daniels v. Keller Supply, Inc., 2002-2767, p. 1 (La.App. 4 Cir. 8/6/03), 854 So.2d 416, we held that an employer’s liability for medical expenses incurred by the claimant/employee prior to the employer’s denial of the claim was limited to the $750.00 cap set forth in La. R.S. 23:1142 B. In that case, Daniels, an employee of Keller Supply, was injured in a work-related accident on October 5, 2000, and returned to work several weeks after the accident. Nearly a year later, after Daniels left Keller Supply and went to work for its competitor, he filed a disputed claim for compensation with the Office of Workers’ Compensation on September 28, 2001, alleging that he injured his back in the October 5, 2000 accident and that Keller Supply failed to authorize medical treatment. Keller Supply received notice of the claim on December 20, 2001, and filed an answer on January 3, 2002, denying that Daniels sustained any injury or disability in the accident. Following trial, the workers’ compensation judge awarded Daniels all medical expenses related to the injury. We disagreed and amended the judgment, in part, finding that Keller Supply was entitled to the statutory cap on liability for unapproved non-emergency medical treatment rendered to Daniels prior to January 3, 2002, the date it filed its answer denying the claim. We concluded that even though Keller Supply knew of the work-related accident and sent Daniels to its company physicians for treatment for pain following the accident, pursuant to La. R.S. 23:1142 B, Daniels’ treating physician, Dr. Seltzer, could incur no more than a total of $750.00 in non-emergency diagnostic testing or treatment without the mutual consent of Keller Supply and Daniels. Because Dr. Seltzer did not receive prior approval from Keller Supply, its liability for medical expenses incurred prior to January 3, 2003, was limited to $750.00. Once Keller Supply denied the claim, however, Dr. Seltzer was not obligated to obtain its approval to treat Daniels, and Keller Supply was liable for the medical expenses incurred after January 3, 2002.

In the instant case, Schindler filed his disputed claim for compensation more than three years after the work-related accident. As a result, the LWCC was unaware that Schindler had injured his eye and was being treated by several ophthalmologists. During that three-year period, Schindler incurred thousands of dollars in medical expenses related to his eye injury. To cast the LWCC in judgment for the full amount of those medical expenses when it was never notified of the claim is unjust. Thus, following the holding in Daniels, supra, pursuant to La. R.S. 23:1142 B, the LWCC’s liability for medical expenses for nonemergency diagnostic testing or treatment of Schindler’s left eye injury that were incurred prior to December 5, 2000, is limited to $750.00 for each health care provider. The LWCC, however, is not entitled to the statutory cap on liability for any unapproved nonemergency medical treatment rendered after it denied the claim.

Penalties and Attorney Fees

We next address whether the workers’ compensation judge erred in awarding Schindler a penalty of $2,000.00 and $15,000.00 in attorney fees for the LWCC’s refusal to pay medical benefits associated with the eye injury and its failure to reasonably controvert the eye injury claim pursuant to La. R.S. 23:1201 F(2).

A workers’ compensation judge’s award of penalties and attorney fees under La. R.S. 23:1201 is a factual determination and should not be disturbed on appeal unless clearly wrong. Fortenberry v. Bard, 2001-2195, p. 13 (La.App. 4 Cir. 10/16/02), 830 So.2d 1025, 1034, writ denied 2002-2797, 2002-2877 (La.2/14/03), 836 So.2d 119, 120.

La. R.S. 23:1201 E provides that medical benefits shall be paid within sixty days after the employer or insurer receives written notice thereof. Furthermore, the penalty provision, La. R.S. 23:1201 F, provides, in part:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
* * *
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

La. R.S. 23:1201 F is penal in nature and, therefore, must be strictly construed. See Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. An award of attorney fees in a workers’ compensation case is intended to discourage indifference and undesirable conduct by employers and insurers. Id. The burden of proving entitlement to a penalty is on the claimant. Fortenberry, 2001-2195 at p. 14, 830 So.2d at 1035.

The LWCC argues that the workers’ compensation judge erred in concluding that it did not reasonably controvert Schindler’s eye injury claim. It argues that Peggy Ogden, the driver of the vehicle in which Schindler was a passenger, gave statements to the insurance companies and testified in several depositions that Schindler was not thrown about the interior of the vehicle and did not sustain any injury in the accident. Ogden’s testimony alone provided a sufficient basis to controvert the claim, the LWCC contends.

In assessing the penalty, the workers’ compensation judge concluded that, initially, the LWCC was justified in denying the claim based on Ogden’s testimony. Eventually, however, Ogden’s credibility came into question. The workers’ compensation judge noted in her reasons for judgment:

This OWC Court found one fact to [be] irrefutable. No matter what claimant said, defendant’s main witness Peggy Ogden would almost swear upon her last breath that claimant was lying. Even when evidence was presented to Peggy Ogden that she was wrong, Peggy Ogden was eager to explain it away at trial. (However, getting the deposition of Peggy Ogden and her eventual trial testimony was a monumental event, which included a threat of contempt proceedings and Peggy Ogden eventually only appearing at trial with her private attorney present.)
Peggy Ogden was a pleasant person but not a credible witness.
Could the attorneys and adjuster [have] been convinced at the beginning of their involvement (albeit very late notice) of this workers’ compensation claim that Peggy Ogden was a reliable witness? Yes. However, at some point in time, a bell should have been sounding off that their main witness had major credibility problems.

After reviewing the evidence in the record, we cannot say the workers’ compensation judge erred in assessing a $2,000.00 penalty against the LWCC and awarding Schindler attorney fees for failing to reasonably controvert the claim. Ogden’s initial statement to State Farm Mutual Automobile Insurance Company’s adjustor shortly after the accident differed significantly from her later depositions and trial testimony. At one point she acknowledged that Schindler had told her shortly after the accident that he had injured his eye, then later denied it. She also contradicted herself on specific times, dates, and other facts regarding the accident. Ogden’s inconsistent statements and equivocation at trial clearly support the workers’ compensation judge’s finding that Ogden was not a credible witness and the LWCC should not have relied on her testimony to reasonably controvert Schindler’s claim.

Finally, the LWCC argues that the $15,000.00 award of attorney fees is excessive. Schindler, on the other hand, seeks an increase in the award. Although an award of $15,000.00 in attorney fees in a case such as this appears high, we cannot say that the workers’ compensation judge was clearly wrong in making the award. Also, no basis exists in this appeal for increasing the attorney fees. Thus, we decline to disturb the award.

CONCLUSION

Accordingly, for the reasons stated herein, the judgment of the Office of Workers’ Compensation is amended, in part, to reflect that pursuant to La. R.S. 23:1142 B, the LWCC’s liability for medical expenses for nonemergency diagnostic testing or treatment of Schindler’s left eye injury incurred prior to December 5, 2000, is limited to $750.00 for each health care provider. In all other respects the judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Schindler, an adjunct professor of criminal justice at Tulane University and a former officer with the New Orleans Police Department, formed and incorporated ORSI, a private security consulting firm in 1980.

      . Schindler filed a civil suit for damages against Young and her insurer, State Farm Mutual Automobile Insurance Company, on April 21, 1998. Because Young and State Farm are alleged tortfeasors who are solidarity bound to some extent with ORSI, the employer, the timely filed suit against the tort-feasors interrupted prescription as to the subsequent claim against ORSI for workers’ compensation benefits as long as the suit was still pending. See Williams v. Sewerage & Water Board of New Orleans, 611 So.2d 1383 (La.1993).

      . The Louisiana Supreme Court granted writs in 2000-0922 (La.5/26/00), 762 So.2d 626 and 2000-0932 (La.5/26/00), 762 So.2d 627. On a joint motion of the parties, the Court dismissed both writ applications on October 10, 2000.


author: TERRI F. LOVE, Judge.

text:
    Sandra R. SIMMONS v. ASSOCIATED HOSPITAL SERVICES, INC.
    No. 2003-CA-0768.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 2003.

      Sandra R. Simmons, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Jeffrey J. Warrens, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MOON LANDRIEU).
   TERRI F. LOVE, Judge.

Plaintiff Sandra Simmons appeals, pro se, the trial court’s ruling that she failed to prove her injury was a work-related accident. Defendants, Associated Hospital Services, Inc. and Louisiana Workers’ Compensation Corporation appeal the judgment in so far as civil penalties were not assessed against Simmons for willful misrepresentation. We affirm the judgment of the trial court for the following reasons.

FACTS AND PROCEDURAL HISTORY

On March 16, 2001, Sandra Simmons (“Simmons”) contends she suffered a slip and fall after she clocked out of work and was returning to her workstation. At the time of the accident, Simmons was employed as a “sheet runner” by Associated Hospital Services (“AHS”). AHS processes soiled laundry from local hospitals and medical facilities and Simmons’ primary duty was to run clean sheets through a large machine press. On March 16, 2001, Simmons contends that she was feeling ill and nauseous from the stench of soiled sheets in the plant. After informing her supervisor that she was feeling ill, Simmons contends that her supervisor advised her to clock out of work, return to her workstation and wait for him there so that he may speak with her. Simmons clocked out of work and was returning to her workstation when she slipped on a piece of plastic wrap. Claimant filed a claim with the Louisiana Workers’ Compensation Corporation (“LWCC”). On March 19, 2001, Simmons was informed that AHS terminated her employment.

Defendants AHS and LWCC maintain that Simmons never informed her supervisor that she was feeling ill. AHS claims that Simmons was upset that Simmons’ significant other, who was a co-employee, was sent home for disciplinary reasons. Simmons approached the supervisor who informed her to go back to work. AHS contends that in an act of subordination, Simmons decided to leave work and was informed if she clocked out, she was not to return. Based on this action, on March 19, 2003, AHS terminated Simmons’ employment. AHS alleges that Simmons’ injury was fabricated and is evidenced by the various inconsistent statements made by Simmons as it relates to the cause of the accident.

At the workers’ compensation hearing, AHS’ Production Manager Myles Peters testified, that immediately after Simmons’ alleged slip, she informed Peters that a cart hit her as she headed back to her workstation after clocking out. AHS admitted into evidence the ambulance report sheet, which indicated that Simmons informed the ambulance attendants that she tripped over a low railing as she headed back to her workstation after clocking out. However, Simmons testified that she fell on an approximate 8-inch by 10-inch ball of wrapping plastic as she headed back to her workstation. The workers’ compensation judge held that Simmons failed to prove, by a preponderance of the evidence presented, that she did suffer a slip and fall in the course and scope of her employment. The workers’ compensation judge also held that AHS and LWCC failed to carry their burden of proof in establishing that Simmons made willful misrepresentations in an effort to obtain workers’ compensation benefits. From this decision, Simmons, AHS and LWCC appeal.

LAW AND DISCUSSION

On appeal, in one assignment of error Simmons alleges that the workers’ compensation court erred in finding that she did not carry her burden of proof in establishing that she suffered a slip and fall sufficient to satisfy compensation pursuant to Louisiana Workers’ Compensation Act. Further, AHS and LWCC, allege the workers’ compensation court erred in finding that AHS and LWCC failed to carry the burden of proof required to establish that Simmons willfully violated La. R.S. 23:1208. La. R.S. 23:1208(A) provides in pertinent part:

It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

First Assignment of Error

The standard for review in workers’ compensation cases is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s findings of fact unless they are clearly wrong in light of the record reviewed in its entirety. Matthews v. Taylor Temporary, Inc., 97-1718, p. 1 (La.App. 4 Cir. 12/12/01), 707 So.2d 1021, 1022, citing Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. Further, “[t]he trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.” Bruno v. Harbert Int’l., Inc., 593 So.2d 357, 361 (La.1992). The employee in a workers’ compensation case has the burden of proving that an accident occurred in the course and scope of his employment, that the accident caused his injury, and that the injury caused his disability. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 823 (La.App. 2 Cir.), writ denied, 536 So.2d 1200 (La.1988); Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985). It is by a preponderance of the evidence that the worker/claimant must prove the accident occurred. Bruno, 593 So.2d at 361. The burden that both the employee and employer bear in establishing whether compensation benefits are due was described by the court in Joffrion v. Bryant, 98-1439, p. 4 (La.App. 3 Cir. 4/14/99), 732 So.2d 767, 770. The court stated:

Initially, the employee must prove by a preponderance of the evidence that due to a workplace injury, he or she is unable to earn at least ninety percent of the wages earned prior to the injury. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161. Once the employee satisfies that initial burden, in order to defeat the employee’s claim for supplemental earnings benefits (“SEBs”) the employer must demonstrate, by a preponderance of the evidence “that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.” 97-0688 at p. 8; 704 So.2d at 1166. However it is only after the employee carries his initial burden of establishing entitlement to SEBs that the burden shifts to the employer. See Smith v. Hamp Enterprises, Inc., 95-2343 (La.App. 4 Cir. 4/17/96), 673 So.2d 267.

At the trial on the merits, Simmons testified that she was not aware what happened when she fell. She contends that she “blacked out” upon her slip and fall and cannot remember the events surrounding the accident. On cross-examination Simmons testifies:

Q: Right. Now when you fell, you said, you didn’t see anything? You just fell?
A: No. I didn’t.
Q: At the time that occurred, you are telling us you have no clue why you just fell?
A: I have no clue.

During cross-examination, Simmons was asked about the recorded statement that she gave Darren Evans, the insurance company agent, in which she was asked, “ ‘Was it thereafter you had fallen?” And he is referring to the plastic.’ ” Simmons answered, “ ‘I really don’t know because I had got blurry and I was in pain. I couldn’t get up. I couldn’t move at no time until the ambulance came.’ ” Then, when questioned about the Workers’ Compensation Questionnaire, Simmons was asked:

Q: So in this document you wrote that you slipped on wrapping paper, then over the yellow railing. Now | syour testimony today is you are not sure?
A: I don’t remember.
Q: So you don’t remember whether—
A: I said, I don’t remember. It’s been too long.

Simmons also testified that she was aware that the 8 inch by 10 inch ball of plastic on the floor of the plant caused her to fall because she tried to cushion her fall by holding on to the railings she allegedly slid underneath. On several occasions, Simmons testified that she simply could not remember certain events surrounding the injury in question. Simmons made various inconsistent statements in her workers’ compensation questionnaire, and again in her testimony at the trial on the merits. Simmons, as well as AHS and LWCC, established that the cause of such inconsistencies might be based on the fact that Simmons was medicated when these accounts were taken. Simmons was once again presented with her recorded statement on cross-examination:

Q: Can you explain that entry for me? (referring to the inconsistencies)
A: Yes. Mr. Warrens, at the time of my injury on the job, I don’t know what I said at the time because I didn’t even know I was going to be getting al of these questions asked at me, while I’m injured and hurt at the time... .At the time everything, all these questions was asked of me, I wasn’t even at right — I was at a mental state at that time; so at that time I was going through mental stress, mental anguish, and everything else you can name at that time ...

On re-direct examination Simmons testified as to her mental state on the morning the questionnaire was answered.

Q: First of all, what medication were you on that morning ma'am? .
A: I was taking Tylenols, Ibuprofens at that time.
Q: Those are prescribed by the doctors at Methodist?
A: Methodist prescribed me Vicodin.
Q: Did you experience any difficulty when giving this statement, ma'am? Any difficulty giving this statement at all?
|fiA: He was rushing through it and speaking at the time I’m trying to speak. He was overtalking me, rushing through it; and, like I said, at that time I wasn’t even — I was not at the state of mind and body, you know, to function.

After reviewing all the evidence and taking into account all testimony given, the workers’ compensation court held that,

“[djespite the testimony to the contrary, it is possible that claimant did actually slip and fall after she punched out ... However, the possibility of a slip and fall does not rise to the level that claimant carried her burden that she did suffer a slip and fall.”

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness Search Term End. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036. Reasonable credibility evaluations and fae-tual inferences should be determined by the trial court and under the manifest error standard of review, should not be disturbed upon review where conflict exists in the testimony or the facts. Blair v. Wal-Mart Stores, Inc., 2001-2211, p. 8 (La.App. 4 Cir. 5/15/02), 818 So.2d 1042, 1049. We may not disturb the findings of fact below, regardless of our own view of the evidence, so long as those findings are reasonable. Angulo v. ATM Painters and Constr., Inc., 98-2363 (La.App. 4 Cir. 5/5/99), 733 So.2d 1222 citing Brock v. Morton Goldberg Auction Galleries, Inc., 95-1324 (La.App. 4 Cir. 3/14/96), 671 So.2d 1008, 1012. Where there are two permissible views of evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1164. Because determination of the existence of a work-related injury is question of fact involving credibility of witnesses, determination of the trial judge, who had opportunity to observe and hear the witnesses, is given great weight on review. State v. Richardson, 459 So.2d 31 (La.App. 1 Cir. 1984). In the present case, the trial court judge had an opportunity to observe the witnesses and hear them during their testimony and after a careful review of the record, we cannot say that the worker’s compensation judge’s findings of fact and evaluations of the conflicting testimony as to Simmons’ disability were unreasonable. Thus, we do not find that workers’ compensation court was manifestly erroneous or clearly wrong in its factual finding on this issue. Therefore, the worker’s compensation judge’s finding for the defendant-appellees is affirmed.

Second Assignment of Error

AHS and LWCC contend that the Simmons’ inconsistent statements regarding the cause of her injury are sufficient to carry the burden of proof that Simmons willfully made false representations. AHS and LWCC argue that the factual evidence mandates a finding that Simmons fabricated this claim and repetitively violated LSA-R.S. 23:1208 by making varying inconsistent statements and providing false testimony. In so far as civil penalties apply, La. R.S. 23:1208(D) provides:

In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

To prove fraud under the statute, the employer must prove, by a preponderance of the evidence, that the employee willfully made a false statement or representation for the purpose of obtaining any benefit payment. Thompson Packers, Inc. v. Downey 2001-2550 (La.App. 1 Cir. 11/8/02), 835 So.2d 774, 776. Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, the fact or cause sought to be proved is “more probable than not.” Id. citing Ross v. Premier Imports, 96-2577 (La.App. 1 Cir. 11/7/97), 704 So.2d 17, 20, writ denied, 97-3035 (La.2/13/98), 709 So.2d 750. The appellate court should not disturb the trial court’s credibility determinations and reasonable inferences of fact upon review. Id. The appellate court’s role is to determine whether the workers’ compensation judge’s findings were reasonable in light of the record viewed in its entirety.

In addressing whether the court erred in determining that AHS and LWCC did not meet their burden of proof, this court held that if the inconsistencies and discrepancies are such that a reasonable fact finder could believe that they were accidental or unintentional or were due to poor memory, confusion or inadvertence, then such may not be viewed as being made for the sole purpose of obtaining workers’ compensation benefits, and therefore, not in violation of La. R.S. 23:1208. Rhone v. Boh Brothers, 2001-0270, p. 6 (La.App. 4 Cir. 12/12/01), 804 So.2d 764 at 768. La. R.S. 23:1208(A) provides:

It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

In so far as it pertains to civil penalties to be levied against any person who willfully makes a false representation or payment for the purpose of obtaining any Workers’ Compensation benefit or payment, La. R.S. 23:1208(D) provides in pertinent part:

... any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution.

(Emphasis added)

AHS and LWCC argue that, upon a showing that Simmons willfully violated La. R.S. 23:1208, the law mandates that civil penalties be assessed. In Rhone, Boh Brothers argued that La. R.S. 23:1208 “mandates the awarding of civil penalties by employing the mandatory “shall.” However, this court held that La. R.S. 23:1208 employs the term “may,” not “shall,” thus, the awarding of civil penalties lies within the discretion of the workers’ compensation judge. We continue to interpret the statute as such.

In the present case, AHS’ and LWCC’s burden of proof was to establish, by a preponderance of the evidence, that claimant willfully misrepresented facts in an effort to obtain Workers’ Compensation benefits. Although, at the trial on the merits, AHS and LWCC presented evidence that Simmons provided conflicting versions as to the events surrounding her injury, defendants did not demonstrate how Simmons provided willful misrepresentations. AHS established that it is possible that Simmons was injured in a manner other than what she can recall, however, this finding is not sufficient to establish willful misrepresentation.

CONCLUSION

Therefore, for the foregoing reasons, we affirm the judgment of the workers’ compensation court.


author: MICHAEL E. KIRBY, Judge.

text:
    BENEFICIAL LOUISIANA, INC. v. Herman WILSON, Sr.
    No. 2003-CA-0981.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 2003.

      Gregory M. Eaton, Bartley P. Bourgeois, Law Offices of Gregory M. Eaton, Baton Rouge, LA, for PlaintiffiAppellee.
    David S. Bland, Scott D. Brownell, Bryan J. de Tray, King, LeBlanc and Bland, L.L.P., New Orleans, LA, for De-fendanVAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

J. Ray McDermott, Inc. (“McDermott”) appeals a judgment from the First City Court of the City of New Orleans ordering it to garnish the wages of its employee, Herman Wilson, Sr. (“Mr.Wilson”).

FACTS AND PROCEDURAL HISTORY

Beneficial Louisiana, Inc. (“Beneficial”) obtained a judgment against Mr. Wilson in Franklin City Court on March 13, 2002, arising out of Mr. Wilson’s non-payment of a promissory note. On April 24, 2002, Beneficial filed a Petition to Make Judgment Executory and for Garnishment naming McDermott as garnishee in the First City Court of Orleans Parish.

In its answer to garnishment interrogatories, McDermott asserted that Mr. Wilson was a seaman; thus, his wages were exempt from garnishment under federal law, citing 46 U.S.C.A. § 11109.

Beneficial filed an Opposition to Seaman Exemption of Garnishment, asserting that McDermott had the burden of proving the seaman status exemption by a preponder-anee of the evidence, and that until such time as that was proven, the garnishment remained outstanding, requiring McDer-mott to seize all of Mr. Wilson’s non-exempt wages. In conjunction therewith, Beneficial propounded supplemental seaman garnishment interrogatories on McDermott. In its answer to those interrogatories, McDermott stated that Mr. Wilson typically discharged his duties as a structural welder on derrick barges in the Gulf of Mexico, but from time to time he performed work on land at one of the company’s fabrication yards. McDermott then referred to a summary of Mr. Wilson’s assignment dates at each workstation for the last twelve months, which it had attached as Exhibit A to its answer to supplemental garnishment interrogatories.

The Court below rendered a garnishment judgment on July 26, 2002. Upon McDermott’s failure to comply with that judgment, Beneficial filed a Motion and Memorandum for Garnishment Accounting against McDermott on November 22, 2002. McDermott opposed the motion, continuing to assert that because Mr. Wilson was a seaman under federal law, all of his wages were exempt from garnishment.

Following a hearing, the trial court rendered judgment on March 11, 2003, in favor of Beneficial and against McDermott, as garnishee, for the amount prayed for, along with attorney’s fees. This timely appeal followed.

DISCUSSION

In its sole assignment-, of error, McDermott asserts that the trial court erred in allowing the garnishment of a seaman’s wages in violation of 46 U.S.C.A. § 11109. That statute provides as follows:

46 USCA § 11109. Attachment of wages

(a) Wages due or accruing to a master or seaman are not subject to attachment or arrestment from any court, except for an order of a court about the payment by a master or seaman of any part of the master’s or seaman’s wages for the support and maintenance of the spouse or minor children of the master or seaman, or both. A payment of wages to a master or seaman is valid, notwithstanding any prior sale or assignment of wages or any attachment, encumbrance, or arrestment of the wages.
(b) An assignment or sale of wages or salvage made before the payment of wages does not bind the party making it, except allotments authorized by section 10315 of this title.
(c) This section applies to an individual employed on a fishing vessel or any fish processing vessel.

46 U.S.C.A. § 11109

A seaman is defined, for purposes of the wage protection statute, as “an individual (except scientific personnel, a sailing school instructor, or a sailing school student) engaged or employed in any capacity on board a vessel.” 46 U.S.C.A. § 10101.

McDermott submits that Mr. Wilson clearly meets that definition as it has submitted documentation showing that Mr. Wilson spent 78.6% of his time working aboard derrick barges during the year immediately preceding its receipt of Beneficial’s supplemental garnishment interrogatories. In addition to meeting the definition of seaman found in Title 46, McDermott submits that Mr. Wilson also meets the Jones Act test for seaman status. A Jones Act seaman is a person who: (1) contributes to the function of a vessel or to the accomplishment of its mission; and (2) has a connection to a vessel in navigation or an identifiable group of such vessels that is substantial in terms of both duration and nature. Harbor Tug & Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 1540, 137 L.Ed.2d 800 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995).

McDermott further submits that once a maritime worker is found to have seaman status, that status is not lost merely because some of the worker’s duties are performed on land. Chandris, 515 U.S. at 360-361, 115 S.Ct. at 2186 (1995)(seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore). Aguilar v. Standard Oil Co. of N.J. 318 U.S. 724, 732, 63 S.Ct. 930, 87 L.Ed. 1107 (1943)(when seaman’s duties carry him ashore, shipowner’s obligation to furnish maintenance and cure is neither terminated nor narrowed).

In sum, McDermott argues that because admiralty law clearly extends the benefits and protections owed to a seaman when the seaman is injured onshore in the course of his employment, the protection against garnishment of a seaman’s wages should likewise be extended regardless of the fact that some of the seaman’s work is performed onshore. Finally, McDermott suggests that allowing the trial court’s judgment to stand would create logistical and accounting difficulties for employers who would then be required to determine what amounts of a seaman’s wages are derived from onshore versus offshore work.

Beneficial, on the other hand, takes the position that any wages Mr. Wilson earned while doing work on land were not exempt from garnishment under the seaman exemption and, thus, were subject to seizure. Beneficial cited no statutory or jurisprudential authority in support of this argument to either the trial court or to this court. Beneficial claims that because the trial court determined that the wages Mr. Wilson earned while working on McDer-mott’s land-based fabrication yard were subject to seizure, the trial court must have determined that Mr. Wilson was not a seaman. On appeal, Beneficial urges this court to uphold that finding and to allow the garnishment judgment rendered in its favor to stand.

As correctly stated by counsel for Beneficial at the February 27, 2003, hearing, “[t]he question of law hinges on whether Mr. Wilson is a seaman or not.” Our application of the law regarding seaman status to the facts of Mr. Wilson’s employment at McDermott leads us to the inevitable conclusion that Mr. Wilson was a seaman. McDermott alleged in its garnishment answer that Mr. Wilson was a “Structural Welder Level 1 ‘Seaman’ ” whose wages were exempt from garnishment by 46 U.S.C.A. § 11109. It later answered supplemental garnishment interrogatories stating that Mr. Wilson typically discharged his duties on derrick barges in the Gulf of Mexico, but from time to time he worked on land. McDermott provided evidence showing that during the past year, 78.6% of Mr. Wilson’s time, or 187 out of 238 days, had been spent working aboard a derrick barge. We find that McDermott met its burden of proving that Mr. Wilson was a seaman. Beneficial failed to produce any evidence to the contrary. Moreover, counsel for Beneficial admitted during the February 27, 2003 hearing that it believed McDermott’s assertion that Mr. Wilson was permanently employed on a vessel. We conclude that Mr. Wilson was a seaman. Inasmuch as the trial court found otherwise, which we imply from its having rendered judgment in favor of Beneficial, such finding was in error.

We further agree with McDermott’s proposition that once seaman status has been determined favorably to a maritime worker, that status is not lost simply because a part of that worker’s duties were performed on land. To hold otherwise would create an uncertain rule of law that would invite arbitrariness and inconsistency. As mentioned previously, Beneficial has offered no authority for its argument that the seaman exemption should apply only to those wages earned while that seaman was actually on board a vessel. In addition, the statute already provides exclusions from the exemption of a seaman’s wages from garnishment, i.e., for the support and maintenance of the spouse or minor children of the seaman. If Congress did not intend to exempt from garnishment the wages earned by a seaman while that seaman was not physically on board a vessel, it would have provided an exclusion from exemption for that as well.

Having found Mr. Wilson to be a seaman, we conclude that all of his wages were exempt from garnishment under 46 U.S.C.A. § 11109. See e.g. X-L Finance Co. v. Bonvillion, 257 La. 899, 244 So.2d 826 (1971). Accordingly, the trial court erred in rendering judgment against McDermott as garnishee.

CONCLUSION

For the foregoing reasons, Beneficial Louisiana Inc.’s garnishment against J. Ray McDermott, Inc., garnishee and employer of Herman Wilson, Jr., is vacated and dismissed.

JUDGMENT REVERSED, GARNISHMENT VACATED AND DISMISSED.

      . Title 46 is entitled Public Welfare and Assistance.


author: WILLIAMS, J.

text:
    Succession of Eli BROWN, Sr.
    No. 37,740-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Dele A. Adebamiji, Baton Rouge, for Appellant, Carrie Brown Singleton.
    Michael E. Kramer, Winnsboro, for Ap-pellees, Rebecca Brown Singleton, Eli Brown, Jr., Frances, Brown Henry, Sarah, Brown Norwood, Marria, Brown Fields, Fannie, Brown Thomas, Howard, Ray Brown, Calvin Brown, and John Wade Brown.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

The plaintiff, Carrie Brown Singleton, appeals a judgment dismissing her suit with prejudice for failure to serve the defendants within the 60-day period set by a prior judgment sustaining an exception of improper service. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 11, 2001, the plaintiff filed a petition to be recognized as a co-owner in indivisión of succession property. Plaintiff alleged that she was one of the children of the decedent, Eli Brown, Sr., who died intestate on October 27, 1985, and that the succession of Eli Brown, Sr., while recognizing the defendants as the heirs of the decedent, had omitted her as an heir. In her petition, plaintiff requested that the defendants be served through their counsel of record, Michael E. Kramer (“Kramer”).

On October 30, 2001, Kramer filed an exception of improper service, which asserted that while he had been counsel of record in a previous suit that was dismissed by the trial court, he was not an attorney of record in the instant proceeding and the defendants could not be served through him.

The plaintiff did not make an appearance at the hearing on the exception. On December 5, 2001, the trial court signed a judgment sustaining the exception of improper service and allowing the plaintiff 60 days from the date the judgment was signed to effect proper service upon all the defendants. The court ruled that failure to comply with the court’s order would result in immediate dismissal of the suit with prejudice. The record reflects that notice of judgment was mailed to plaintiffs counsel on the same day.

Subsequently, Kramer filed a motion to dismiss asserting that more than 60 days had elapsed since the trial court’s December 5, 2001 judgment and that service on defendants individually had not been effected by plaintiff. The trial court signed the accompanying order dismissing plaintiffs petition with prejudice at her costs. The record reflects that notice of the filing of the motion and order of dismissal was mailed to plaintiff via certified mail approximately one year later, on March 7, 2003.

On February 5, 2003, the plaintiff filed another petition seeking to be recognized as a co-owner in indivisión of the succession property and requesting service upon Kramer as attorney of record. Kramer filed an exception of improper service. Kramer again asserted that he was not an attorney of record in the proceedings before the trial court and that the plaintiff was required to personally serve each of the defendants with the petition. Kramer also filed a motion for payment of attorney fees and costs, asserting that plaintiffs filing of “the exact same petition” following dismissal constituted “an abuse of process, harassment, and frivolous attempt to obtain what has already been denied.”

On March 6, 2003, the defendants’ motion to dismiss and request for sanctions came for hearing. The trial court considered the exception of improper service and the motion for payment of attorney fees and costs. Kramer was present, but the plaintiffs attorney was not present, initially. The trial court granted the exception of improper service and also ordered the plaintiff to pay $500 in attorney fees as well as costs. However, the plaintiffs attorney appeared shortly thereafter and the trial court withdrew the award of sanctions, but maintained its decision on the exception. The plaintiff appeals the judgment of dismissal.

DISCUSSION

The plaintiff contends the court erred in dismissing her suit with prejudice due to insufficiency of service of process. Plaintiff argues that the provisions of LSA-C.C.P. art. 932 do not mandate that the trial court dismiss this case with prejudice, and that such a dismissal is “contrary to law, excessive as punishment, abuse of discretion and too harsh which all combine to deprive plaintiff of her constitutionally protected property rights.” In their brief, the defendants argue that at the time plaintiff filed the petition to be recognized as an owner, Kramer was not, and had never been, an attorney of record in the succession proceeding. They argue that under LSA-C.C.P. arts. 1312 and 1314, the plaintiff was required to personally serve each individual defendant with the original petition in order to proceed with her claim of co-ownership.

Insufficiency of service of process is a declinatory exception. LSA-C.C.P. art. 925(A)(2). The function of the declinatory exception is to decline the jurisdiction of the court. LSA-C.C.P. art. 923. When the grounds of the objections pleaded in a declinatory exception may be removed by amendment of the petition or other action of the plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; if the grounds cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed. LSA-C.C.P. art. 932.

While it is true that Article 932 does not require an action to be dismissed with prejudice when a plaintiff fails to comply with an order requiring removal of the objection pleaded in the declinatory exception, neither does Article 932 mandate that the dismissal be without prejudice. In Richardson v. O’Neal, 30,599 (La.App.2d Cir.5/13/98), 716 So.2d 26, the appellees had filed a declinatory exception of insufficiency of citation and service of process in response to an inmate’s action seeking in-junctive relief. The trial court sustained the exception, and gave the plaintiff fifteen days to cure the defect or the suit would be dismissed with prejudice. The plaintiff failed to properly serve the appellees within the time allowed, and the court subsequently dismissed the plaintiffs claims against the appellees with prejudice. On appeal, the plaintiff argued that the trial court abused its discretion and committed reversible error by dismissing the lawsuit with prejudice. Although recognizing that the sanction of dismissal is a drastic remedy, this Court observed that a trial court’s decision to dismiss a case with or without prejudice is reviewed on appeal pursuant to abuse of discretion and manifest error standard. We noted that the plaintiff was present at the hearing on the appellees’ declinatory exception, and that the trial judge, in accordance with LSA-C.C.P. art. 932, had allowed the plaintiff the opportunity to remove the grounds for the objections, but the plaintiff had failed to comply with the order, despite the trial court’s specific warning that the suit would be dismissed with prejudice if she failed to comply. We then affirmed the trial court’s dismissal of the plaintiffs suit with prejudice.

Here, as in Richardson, the trial court, in accordance with LSA-C.C.P. art. 932, allowed the plaintiff the opportunity to remove the grounds for the objections raised in the exception, but she failed to heed the trial court’s clear warning that her suit would be dismissed with prejudice if she failed to comply. Although plaintiff was not present at the hearing on the declina-tory exception, notice of the judgment was mailed to her attorney of record on that same day, and she was given 60 days to comply with the court’s order. The record does not reflect that the plaintiff properly served defendants in compliance with the court’s order. Under these circumstances, as in Richardson, supra, we find no abuse of discretion by the trial court in dismissing the lawsuit with prejudice.

In reaching this finding, we are aware of the Fifth Circuit’s decision in Spears v. Parish of Jefferson, 00-332 (La.App. 5th Cir.10/18/00), 772 So.2d 747, which, citing Richardson, supra, expressed serious reservations about whether a judgment dismissing a suit with prejudice is ever proper in the context of a declinatory exception. Nevertheless, we have no such reservations in this context when the plaintiff has specifically been warned by the trial court that failure to remove the grounds of the objection, when such grounds could be removed, will result in a dismissal with prejudice. In such cases, the ability to avoid the dismissal with prejudice lies in the hands of the plaintiff, and if the plaintiff elects to disregard the court’s warning, then plaintiff does so at his or her peril.

An analogy may be drawn to an involuntary dismissal following a plaintiffs failure to appear on the day set for trial. In such a case, the trial court determines whether the judgment of dismissal shall be with or without prejudice. LSA-C.C.P. art. 1672(A)(1). In deciding whether the dismissal will be with or without prejudice, a trial court is afforded great discretion. Pisani v. Pierre, 00-0340, 00-0341 (La.App. 3d Cir.10/11/00), 771 So.2d 773. In this instance also, the plaintiff can take action to avoid a dismissal with prejudice, if the plaintiff chooses to act.

We also observe that plaintiffs counsel states in brief to this court that in July 1994, Singleton and another plaintiff filed a “Petition to be Declared Co-owners and Indivisión of Succession Property” that eventually “fizzled out” and that the defendants filed a motion for abandonment that was granted with prejudice on December 29, 1998. According to plaintiffs counsel, following a motion filed by appellant in February 1999, the lower court eventually amended the judgment of dismissal with prejudice to one without prejudice. These events may have contributed to the trial court’s decision to dismiss with prejudice in the instant matter.

Finally, we reject the plaintiffs due process argument which is based on the assertion that neither she nor her counsel received notice that the defendants had filed a motion to dismiss, and that neither she nor her counsel was informed of the judge’s order of dismissal. However, failure to send notice of the judgment of dismissal did not make the judgment a nullity, but simply prevented the appellate delays on the judgment from running; thus Singleton’s appeal, taken over a year later, still was timely. Furthermore, as far as notice of the dismissal motion itself is concerned, the provisions of LSA-C.C.P. art. 963 allow the ex parte granting of a written motion when it is one to which the mover is clearly entitled. Here, the trial court gave the plaintiff a fixed time within which to serve the defendants or suffer dismissal with prejudice. On the face of the record, such service was not made within the time allowed; thus, no supporting proof was necessary for the court to grant the defendants’ written motion. The order requested was one to which the defendants were clearly entitled, and plaintiff has offered nothing in her appellate brief that would suggest otherwise.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the plaintiff, Carrie Brown Singleton.

AFFIRMED.

      . The defendants named in the petition were Rebecca Brown Singleton, Eli Brown, Jr., Frances Brown Berry, Sarah Brown Nor-wood, Marria Brown Fields, Fannie Brown Thomas, Howard Ray Brown and Calvin Brown.

      . Although both the motion and order were filed on April 2, 2002, the motion and order obviously had been presented to the trial court prior to filing because the order was signed on March 25, 2002.

      . An exception to the requirement of dismissal occurs when an action has been brought in a court of improper jurisdiction or venue; in such cases, Article 932 allows a court to transfer the action to a proper court in the interest of justice.