author: RGAIDRY, J. | ^OWNING, J.,

text:
    STATE of Louisiana v. Louis JONES.
    No. 2001 KA 0908.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Walter Reed, District Attorney, Coving-ton, By Dorothy Pendergast, Attorney for the State, Metairie, Counsel for Plaintiff/Appellee State of Louisiana.
    Frederick Kroenke, Baton Rouge, Counsel for Defendant/Appellant Louis Jones.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   RGAIDRY, J.

The defendant, Louis Jones, was charged by bill of information with possession of cocaine, in violation of LSA-R.S. 40:967(C). The defendant initially pled not guilty. After a hearing, the defendant’s motion to suppress evidence was denied. The defendant later withdrew his not guilty plea and entered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976). The defendant stipulated to a multiple offender bill of information and was adjudicated a second felony offender. The defendant was sentenced to seven (7) years imprisonment at hard labor to be served without the benefit of probation or suspension of sentence. He now appeals, urging as his sole assignment of error that the trial court erred in denying his motion to suppress. For the following reasons, we affirm.

FACTS

On the night of April 30, 2001, Agent Denise Smith of the Louisiana State Probation and Paróle Department noticed the defendant and another black male coming out of the back door of Gloria’s Lounge in Slidell, Louisiana. According to Smith, the defendant and the other male completed a hand-to-hand exchange, while walking very close together. Smith was accompanied by Agent Mike Phelps and Agent Robert Hall. Smith informed Phelps of her observations and of the fact that she recognized the defendant as being under the supervision of the probation and parole office.

Smith exited her vehicle and approached the 'defendant and the other male as they were walking. Smith inquired, “Hey, dude, what’s your name?” The defendant kept walking and ignored Smith’s inquiry. Smith then stated, “Hey, dude, I asked you what your name was.” Phelps approached the other male who was walking with the defendant and began talking to him. Smith continued to follow the defendant. The defendant eventually replied by Istelling Smith that his name was John Smith and continued to walk away. Agent Smith did not believe that the defendant’s name was John Smith and she stated, “Hey, dude, wait a minute, I want to talk to you.” The defendant then began to walk at a faster pace in a sideways direction away from the agent. Smith then stated, “Hey, dude, you don’t want to run, I just want to ask you something.” The defendant then started to run away from Smith.

Smith ran after the defendant and, according to her testimony, was able to keep up with the defendant because he kept putting his hands in and out of his pants pockets. When they ran into a lighted area, Smith saw the defendant drop some shiny items out of his pocket. At this point, Hall was coming up behind Smith, who continued to run after the defendant. The defendant jumped over a ditch, and Smith attempted to jump over the same ditch. She, however, landed in the middle of the mud-filled ditch. Smith cursed as she fell into the ditch and the defendant, as he turned around to look at her, collided with a tree.

At that point, Smith pulled out her weapon and the other agents helped her out of the ditch and helped her place the defendant in handcuffs. The agents went back to the lighted area where Smith saw the defendant drop some shiny items out of his pocket. Smith recovered a small tinfoil packet containing a rock-like substance suspected to be crack-cocaine. The defendant was arrested and ultimately pled guilty to possession of cocaine.

ASSIGNMENT OF ERROR NUMBER ONE

In his sole assignment of error, the defendant contends that the trial court erred in denying his motion to suppress the evidence. The defendant argues that Agent Smith did not have the authority to stop him because the facts did not provide probable cause to believe that a crime was being committed. He submits that, under the circumstances, it was reasonable to |4believe that the hand-to-hand exchange consisted of non-criminal activity. He further states that there is no evidence of reasonable suspicion, reasonable cause, or an emergency situation that would justify Smith’s actions.

The Fourth Amendment to the United States Constitution and Article I, section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La.Code Crim. Proc. art. 703(A). A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Mims, 98-2572, p. 3 (La.App. 4th Cir.9/22/99), 752 So.2d 192, 193-94.

Parole officers are granted powers of arrest and detention of parolees under LSA-R.S. 15:574.8 (as amended by 2001 La. Acts No. 608, § 1) as follows:

A. Incidental to the supervision of parolees, parole officers shall be deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables and police officers have in their respective jurisdictions. They have all the immunities and matters of defense now available or hereafter made available to sheriffs, constables and police officers in any suit brought against them in consequence of acts done in the course of their employment.
B. If a parole officer has reasonable cause to believe that a parolee has violated or is attempting to violate a condition of his parole and that an emergency exists, so that awaiting action by the board under R.S. 15:574.7 would create an undue risk to the public or to the parolee, such parole officer may arrest the parolee without a warrant or may authorize any peace officer to do so. The authorization may be in writing or oral, but if not written, shall be subsequently confirmed by a written statement. The written authorization or subsequent confirmation shall set forth that, in the judgment of the parole officer, the person to be arrested has violated or was attempting to violate a condition of | Shis parole. The parolee arrested hereunder, if detained, shall be held in a local jail, state prison, or other detention facility, pending action by the board. Immediately after such arrest and detention, the parole officer concerned shall notify the chief probation and parole officer and submit a written report of the reason for the arrest. After consideration of the written report, the chief probation and parole officer shall, with all practicable speed, make a preliminary determination, and shall either order the parolee’s release from detention or proceed promptly in accordance with R.S. 15:574.7.

See also La.Code Crim. Proc. art. 899(B). Parolees and probationers have a reduced expectation of privacy and do not have the same freedom from governmental intrusion into their affairs as does the ordinary citizen. See State v. Malone, 403 So.2d 1234, 1238-39 (La.1981).

Reasonable cause for detention has been said to be something less than probable cause and is to be assessed according to the totality of the facts and circumstances known to the police officer, from which in retrospect it can be determined whether an infringement on the individual’s right to freedom from governmental interference was constitutionally permissible. See State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Belton recognizes that flight, nervousness, or a startled response to the sight of a police officer is, of itself, insufficient to justify an investigatory stop, but nevertheless may be “highly suspicious,” and may be considered along with other facts and circumstances in the reasonable cause inquiry. Belton, 441 So.2d at 1198. The officer’s experience “on the street” also may be considered in assessing whether he made reasonable inferences from the facts at hand. State v. Meyers, 520 So.2d 842, 845 (La.App. 3rd Cir.1987).

In the instant case, the record reflects that the defendant was in fact on parole. The defendant was first seen exiting the back door of a bar, Gloria’s Lounge, during the late evening hours. Gloria’s Lounge was located in an | fiarea of high drug activity and the parole officers were accustomed to observing drug transactions and effecting arrests in that area. Agent Smith witnessed the defendant making a hand-to-hand exchange with another male while they were walking close to one another. She also recognized the defendant as being under the supervision of the parole and probation office. The defendant ignored the officer’s request to talk to him and continued walking. He began to walk sideways before running away from the officer. While running, the defendant was placing his hands in and out of his pants pockets. The officer then witnessed the defendant drop a shiny item out of his pocket. Smith eventually detained the defendant with the help of other agents, and walked back to the area where she saw the defendant drop something shiny from his pocket. She recovered and opened the tin foil packet and it contained a rock-like substance suspected to be crack-cocaine. The defendant was then arrested.

Smith had a particularized suspicion based on articulable facts, and not merely a generalized suspicion or hunch, that the defendant was violating the conditions of his parole and was involved in illegal activity. Furthermore, the level of suspicion at the time of the arrest exceeded the requirements of reasonable cause and was sufficient to form probable cause to believe that the defendant was engaged in illegal activity. The above circumstances constituted an emergency situation such that awaiting action by the parole board would have created an undue risk to the public and/or the parolee. The undue risks of this urgent situation included the imminent danger of the destruction of evidence, the need to prevent the defendant’s escape, and the possibility of a violent confrontation that could cause injury to the officers and the public. We find, under the facts and circumstances of |7the instant case, Agent Smith had the authority under LSA-R.S. 15:574.8(B) to arrest the defendant.

Moreover, under LSA-R.S. 15:574.8(A), Agent Smith had the authority to act as a law enforcement officer. It is well settled that if property is abandoned without any prior unlawful intrusion into the citizen’s right to be free from governmental interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy, and, thus, no violation of a person’s custodial rights. State v. Nelson, 95-1202, pp. 3-4 (La.App. 1st Cir.4/30/96), 674 So.2d 329, 332; LSA-R.S. 15:574.8. Thus, the defendant’s reduced expectation of privacy as a parolee was further diminished to no expectation of privacy, as he abandoned the property without any prior unlawful intrusion into his rights.

In the instant case, the defendant was not “actually stopped” before he abandoned the property since he did not submit to the parole officer’s show of authority and was not physically contacted until he was detained and arrested. See State v. Tucker, 626 So.2d 707, 712 (La.1993) (citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). While the Fourth Amendment protects individuals from actual stops, Article 1, § 5 of the Louisiana Constitution also protects individuals from “imminent actual stops.” State v. Tucker, 626 So.2d at 712. In determining whether an “actual stop” of an individual is “imminent,” the focus must be on the degree of certainty that the individual will be “actually stopped” as a result of the police encounter. This degree of certainty may be ascertained by examining the extent of police force employed in attempting the stop. It is only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an “actual stop” of the | ¡individual is “imminent.” Although non-exhaustive, the following factors may be useful in assessing the extent of police force employed and determining whether that force was virtually certain to result in an “actual stop” of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. State v. Tucker, 626 So.2d at 712-13.

The facts of the instant case clearly reveal that neither an actual nor imminent actual stop took place before the defendant abandoned the evidence. The defendant was not surrounded at the time that Smith attempted to stop and question him. She did not draw her weapon until after the defendant had abandoned the evidence and jumped across a ditch. In fact, when Smith landed in the ditch, it appears the defendant would have escaped had he not collided with a tree. The level of force used by Agent Smith did not provide a significant degree of certainty that an actual stop of the defendant would result. Therefore, the evidence was legally seized. At the time of the arrest there was not only reasonable cause, but also probable cause to believe that the defendant had violated a condition of his parole and committed criminal activity. We do not find that the trial court erred in denying the defendant’s motion to suppress the evidence. This assignment of error is without merit.

^CONCLUSION

For the reasons set forth in this opinion, we affirm the conviction and sentence of the defendant, Louis Jones.

CONVICTION AND SENTENCE AFFIRMED.

DOWNING, J., concurs and assigns reasons.

| ^OWNING, J.,

concurs and assigns reasons.

I concur in the result. I believe Officer Smith made a proper arrest pursuant to her “powers with respect to criminal matters” under La. R.S. 15:574.8A. Any reliance on La. R.S. 15:574.8B is misplaced. The major thrust of section A involves law enforcement and criminal violations, as we have here. The major thrust of section B involves parole violations.

I am particularly bothered by the specific terms of section B, which require the existence of an “emergency” and “undue risk to the public or the parolee.” While the situation before us may meet the Black’s Law Dictionary definition of an emergency, I do not see a risk to the public or the defendant. The majority cites no law for the conclusions it draws in this regard, and these conclusions are a stretch, if they can be reached at all. But since the arrest was perfectly proper under Officer Smith’s authority pursuant to La. R.S. 15:574.8A, the result is correct and I concur.


source: Caselaw Access Project

author: LGAIDRY, J. |-i KUHN, Judge,

license: Public Domain

text:
    Emmett SPOONER I v. EAST BATON ROUGE PARISH SHERIFF DEPARTMENT, Deputy D. Pennington and Warden Joseph Sabella.
    No. 2001 CA 2663.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      J. Courtney Wilson, New Orleans, Counsel for Plaintiff/Appellant Emmett Spoon-er.
    Megan Coogan Foco, Baton Rouge, Counsel for Defendants/Appellees Sheriff Elmer B. Litchfield, Warden Sabella and Dy. Dennis Pennington.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   LGAIDRY, J.

In this ease, plaintiff, Emmett Spooner I, appeals the July 10, 2001 judgment of the 19th Judicial District Court dismissing his suit with prejudice for failure to exhaust administrative remedies. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Emmett Spooner I, a prisoner in the East Baton Rouge Parish Prison, filed suit against the East Baton Rouge Parish Sheriffs Department, Deputy D. Pennington, and Warden Joseph Sabella for damages resulting from an alleged assault and battery committed by Deputy Pennington. The defendants filed an exception of failure to exhaust the administrative remedies of the Corrections Administrative Remedy Procedure (CARP), LSA-R.S. 15:1171-1179, which was granted. The trial court then dismissed plaintiffs suit with prejudice.

Plaintiff asserts on appeal that under the recent Louisiana Supreme Court decision in Pope v. State of Louisiana, 99-2559 (La.6/29/01), 792 So.2d 713, the CARP is unconstitutional as applied to tort suits, and thus the district court erred in dismissing his suit under an unconstitutional statute.

DISCUSSION

Initially, we note that the plaintiff did not assert the unconstitutionality of LSA-R.S. 15:1171-1179 at the trial court level. While the general rule is that a litigant cannot raise the unconstitutionality of a statute or ordinance unless its unconstitutionality is specially pleaded and the grounds particularized, several exceptions to this rule have been recognized, including situations where a statute attempts to limit the constitutional power of the courts to review cases, or where the statute has 13been declared unconstitutional in another case, or where the statute applicable to a specific case becomes effective after the appeal is lodged in the higher court. Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 599 (1971). Since the statute at issue in this case has since been declared unconstitutional in another case, the plaintiff may raise the unconstitutionality of the statute for the first time on appeal.

In Pope, the Louisiana Supreme Court declared the CARP, LSA-R.S. 15:1171-1179, to be unconstitutional to the extent it allowed the Department of Corrections to exercise original jurisdiction in tort actions. Pope, 99-2559 at p. 13, 792 So.2d at 721. Pope involved a former inmate who brought a personal injury action against the Department of Corrections in district court, alleging he was seriously injured while incarcerated. Although the inmate had not first submitted his claim to the warden as required by the administrative remedy procedure adopted by the Department of Corrections under the CARP, he claimed the procedure was unconstitutional as applied to his personal injury action because it divested the district courts of original jurisdiction over a civil matter. On review, the Louisiana Supreme Court found that “the DOC officials in the administrative remedy procedure adopted pursuant to LSA-R.S. 15:1711[sic], who take cognizance of a tort claim by an offender at the inception of the action, try the claim, and pass judgment on the law and the facts of the action, clearly are exercising original jurisdiction, to the exclusion of the district courts.” Pope, 99-2559 at p. 9, 792 So.2d at 718. Furthermore, the court found that the judicial review provisions contained in LSA-R.S. 15:1177 prevent the district courts |4from exercising the original jurisdiction functions of finding facts in the first instance and then applying the law to the facts. Pope, 99-2559 at p. 10, 792 So.2d at 719. The court held that the CARP violated article V, § 16(A) of the Louisiana Constitution, which provides that “a district court shall have original jurisdiction of all civil and criminal matters,” by allowing the Department of Corrections to exercise original jurisdiction in tort actions. Pope, 99-2559 at p. 11, 792 So.2d at 719.

In this appeal, the plaintiff claims that under Pope, the CARP procedure adopted by the East Baton Rouge Parish Prison is not the proper vehicle for bringing his tort suit, and therefore his suit should not have been dismissed for failure to follow the procedure.

The defendants respond that this case is distinguishable from Pope because the administrative remedy procedures adopted by sheriffs under the CARP do not divest the district courts of original jurisdiction in tort suits as the Department of Corrections’ procedures do, and thus do not violate article V, § 16(A) of the Louisiana Constitution. The basis of this assertion is the defendants’ belief that the administrative remedy procedures that may be adopted by sheriffs under § 1171 are different from those that may be adopted by the Department of Corrections under the statute. LSA-R.S. 15:1171 provides, in pertinent part:

A. The Department of Public Safety and Corrections and each sheriff may adopt an administrative remedy procedure at each of their adult and juvenile institutions, including private prison facilities.
B. The department or sheriff may also adopt, in accordance with the Administrative Procedure Act, administrative remedy procedures for receiving, hearing, and disposing of any and all complaints and grievances by adult or juvenile offenders against ... the department or any officials or employees thereof ... or a sheriff, his deputies, or ^employees, which arise while an offender is within the custody or under the supervision of the department ... or a sheriff. Such complaints and grievances include but are not limited to any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes. (Footnote omitted)

The defendants assert that under § 1171, two types of procedures are authorized: § 1171(A) procedures, which are adopted in accordance with the Civil Rights of Institutionalized Persons Act, 42 USC 1997e, and § 1171(B) procedures, which are adopted in accordance with the Administrative Procedure Act. It is the defendants’ contention that a sheriff may not adopt § 1171(B) procedures, and further that only § 1171(B) procedures divest the district court of its original jurisdiction, therefore a sheriffs administrative remedy procedure adopted under the CARP would not be unconstitutional.

The defendants’ assertion that a sheriff may not adopt § 1171(B) administrative remedy procedures is clearly contrary to the language of the statute; § 1171(B) provides that the Department of Corrections or a sheriff may adopt administrative remedy procedures in accordance with the Administrative Procedure Act.

Defendants base their contention that only § 1171(B) procedures divest the district court of original jurisdiction on their interpretation of the judicial review provisions of LSA-R.S. 15:1177 as applying only to the Department of Corrections’ administrative decisions. LSA-R.S. 15:1177 provides, in pertinent part:

A. Any offender who is aggrieved by an adverse decision by the Department of Corrections or a contractor operating a private prison facility rendered pursuant to any administrative remedy procedure under this Part may, within | ¿thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court or, if the offender is in the physical custody of the sheriff, in the district court having jurisdiction in the parish in which the sheriff is located, in the manner hereinafter provided.

The defendants aver that there is no provision for judicial review of a decision under a sheriffs administrative remedy procedure because the statute provides only for review of “an adverse decision by the Department of Public Safety and Corrections or a contractor operating a private prison facility.” LSA-R.S. 15:1177(A). The defendants argue that while § 1177 does mention inmates in the custody of the sheriff, it does not provide for judicial review of sheriffs’ procedures; it only provides the venue for judicial review of the Department of Correction’s decisions regarding inmates housed in a parish prison. The defendants provide no support for this interpretation, which if carried to its logical conclusion seems to imply that some inmates housed in parish prisons are governed by the Department of Corrections’ administrative remedy procedure and others in the same facility are governed by the Parish Prison’s procedure. We believe that the statute, while clumsily phrased, does provide for judicial review of an adverse decision “rendered pursuant to any administrative remedy procedure under [the CARP],” including procedures adopted by sheriffs. LSA-R.S. 15:1177(A) (emphasis added).

CONCLUSION

Since we find that the East Baton Rouge Parish Prison’s administrative remedy procedure is not distinguishable from the procedure at issue in Pope, the procedure is unconstitutional as applied to tort suits, and it was error for the district court to dismiss plaintiffs suit for failure to follow |7the unconstitutional procedure. Accordingly, the July 10, 2001 judgment is reversed and the case is remanded to the district court in its original jurisdiction. Assessment of costs of this appeal shall await final determination of the merits.

REVERSED AND REMANDED.

KUHN, J., concurs with reasons.

|-i KUHN, Judge,

concurring with additional reasons.

Pope v. State of Louisiana, 99-2559 (La.6/29/01), 792 So.2d 713, should not be interpreted to provide a basis for a tort suit each time a prisoner complains about being lawfully restrained by a deputy. Upon remand of this matter, the trial court should determine whether Spooner’s allegations regarding the attack by Deputy Pennington are frivolous. Effective use of the judicial screening process set forth in La. R.S. 15:1188 can ensure that our trial courts will not be unnecessarily burdened with claims that should still be resolved under the Corrections Administrative Remedy Procedure, La. R.S. 15:1171 et seq.

      . The defendant did not object to the unconstitutionality of the statute being raised for the first time on appeal; however, we will address the issue sua sponte.

      . LSA-R.S. 15:1177 provides for judicial review by the district courts of administrative decisions. This judicial review is confined to oral argument based upon the record of the administrative proceeding, although the district court may order that additional evidence be taken. Furthermore, the district court may reverse or modify the decision only for the limited reasons provided by the statute.

      . The Pope court did recognize that the Legislature could enact screening procedures for prisoner tort suits so long as the administrative agency did not exercise original jurisdiction. Pope, 99-2559 at p. 12, 792 So.2d at 720. Such screening procedures are not at issue here.

      . Subsequent to the Pope decision, the Legislature amended LSA-R.S. 15:1177(A) to exclude from judicial review decisions relative to delictual actions for injury or damages. See Acts 2002, 1st Ex.Sess., No. 89, § 2, eff. April 18, 2002.


author: | ¡DOWNING, J. I t LANIER, J., | t FITZSIMMONS, Judge,

text:
    Robert W. WEBB v. Alberta C. WEBB.
    No. 2001 CA 1577.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Writ Denied March 14, 2003.

      Richard D. McShan, Amite, Counsel for PlaintiffiAppellee Robert W. Webb.
    Clifton T. Speed, Greensburg, Counsel for Defendant/Appellant Estate of Alberta C. Webb.
    Before: FOGG, FITZSIMMONS, DOWNING, LANIER and KLINE, JJ.

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

      . The Honorable William F. Kline, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡DOWNING, J.

Plaintiff/appellee, Robert Wayne Webb (Wayne), filed this action against his aunt, defendant/appellant, Alberta Courtney Webb (Alberta), asserting he was entitled to ownership of 83.21 acres of land owned by Alberta. His claim was based on an alleged oral agreement that he would take care of her and the property in exchange for receiving the property through Alberta’s will. Alternatively, Wayne claimed reimbursement for all labor performed by him “from 1981 to the present date in addition to reimbursement for all cost [sic] and expenses spent by him, inclusive of the $9,500.00 for the purchase of a certain 5.02 acres .... ” Alberta filed a cross-claim for the eviction of Wayne and his wife from the premises. Prior to trial, the court ordered Wayne and his wife to vacate the controverted property, with the exception of the 5.02 acre tract for which it stated that the rule to evict was “overruled at this time and until the ownership dispute involving said property can be determined.”

Alberta filed a peremptory exception raising the objection of no cause of action alleging that a promise of a legacy was not enforceable while she was alive. The trial court overruled the exception because “a promise to make a disposition mortis causa is enforceable against the promisor’s estate when the formal disposition is not made.” See LSA-C.C. art.1967, comment (f). This cause of action was premature when filed because an action for reimbursement for services rendered when there is a breach of the promise to pay for services (labor) by a disposition mortis causa of property is enforceable against the promisor’s estate. Wayne’s petition stated a cause of action, however, the cause of action was premature when filed because Alberta was still alive; she did not die until after the |3final judgment in the trial court. The dilatory exception raising the objection of prematurity was waived when it was not pleaded prior to, or in, the answer. LSA-C.C.P. art. 928A.

Following trial, the court awarded the following: a lifetime usufruct of the 5.02 acres in favor of Wayne; $85,500.00 to be paid to Wayne for services he provided Alberta from 1981 through 1999; $9,500.00 payment of money to Wayne for the purchase of 5.02 acres in Alberta’s name; and the right to maintain the notice of lis pendens filed by Wayne against the land owned by Alberta, which notice would remain in effect until the money judgment was paid. The court ordered that the monetary judgment was not executory until the death of Alberta.

On appeal, Alberta assigns as error:

(1) The court’s award of a lifetime usu-fruct of the 5.02 acres and the court’s failure to evict Wayne and his wife from that tract;
(2) The court’s failure to order cancellation of the lis pendens notice;
(3) The court’s award of $85,500.00 compensation for services/labor performed from 1981 to 1999;
(4) The court’s failure to grant defendant’s peremptory exception raising the objection of liberative prescription for any claim; and
(5) The court’s award of $9,500.00 in compensation for the purchase price of the 5.02 acres, and its failure to require Wayne to account for the receipt of a $1,000.00 payment purportedly made to Alberta for a right-of-way.

OWNERSHIP OF THE PROPERTY

In his reasons for judgment, the trial judge stated “Robert Webb did not present adequate evidence to show an ownership right in the disputed property.” Pursuant to this factual finding, judgment was rendered as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the Plaintiff, Robert Wayne Webb, does not have any ownership interest in the property at issue.

1¿Wayne did not appeal or answer the appeal. This judgment is res judicata. LSA-R.S. 13:4231.

The ownership of the property is not at issue in this appeal. Prior to her death, Alberta was the owner of the property.

COMPENSATION

The court found factually that Wayne had “performed work for defendant on the property disputed over the last twenty years.” The court then awarded as compensation $85,500.00 and a lifetime usu-fruct on the 5.02 acre tract. The court did not cite any legal basis for this ruling.

The Usufruct

In his reasons for judgment, the trial judge stated Wayne “was entitled to compensation for work performed for” Alberta and “[a]s compensation this court awards to plaintiff [Wayne] the lifetime usufruct of the 5.02 acre tract.” Judgment was rendered accordingly.

A usufruct is a real right that may be established by a juridical act, either inter vivos or mortis causa, or by operation of the law. LSA-C.C. art. 544. Wayne did not allege or prove the creation of a usu-fruct by a juridical act. There is no legal basis for a court to create a usufruct as, or for, compensation. The establishment, ex proprio motu, of a usufruct in favor of Wayne was legal error. The portion of the judgment granting the usufruct is reversed.

Because Wayne and his wife, Charlotte Durbin Webb, have no legal basis for the occupancy of the 5.02 acres, the trial court should have ordered their eviction.

This assignment of error has merit.

The Monetary Compensation

The nature of the relationship between Wayne and Alberta determines whether or not he has a legal basis to claim compensation. If Wayne has a legal | Sbasis to claim compensation, then the evidence must be reviewed to see if he proved his entitlement to compensation.

In his oral reason for judgment, the trial judge stated the following:

So, no matter what it says, I don’t find that, the fact that a Will was done, olo-graphic or statutory, gives Mr. Webb any ownership rights in the property. I do not think that there was a donation. I do not think that there was a contract.
I don’t think there’s any doubt that he performed services for twenty years on the property. I don’t think there’s any doubt that he cut the grass, he planted the hay. I’m not a farmer so all the things that he’s testified he did, I have no doubt that he did it. I have no doubt that he loved her. I have no doubt that Mr. Webb cared for Mrs. Alberta, watched over her, and all of that. I also have no doubt, and I say this as an aside that Mrs. Alberta is not the sticking point in this case. I think, quite frankly, she’s being used up to a point, and that’s quite sad. So, I want that record to complete that. We’ve been here a long time, so let me get to the bottom line. I think Mr. Webb is entitled to some compensation for the work that he did from 1981 through 1999. (Emphasis added.)

In his written reasons for judgment, the trial judge stated, “[hjowever, plaintiff produced nine witnesses that showed he was entitled to compensation for work he performed for defendant on the property disputed over the last twenty years.” Wayne was awarded $85,500.00.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. art.1906. An obligation is a legal relationship whereby a person, called an obligor, is bound to render a performance in favor of another, called the obligee. Performance may consist of giving, doing, or not doing something. LSA-C.C. art. 1756. An obligation cannot exist without a lawful cause. LSA-C.C. art.1966. Cause is the reason why a party obligates himself. LSA-C.C.. art.1967. Article 1967 also provides as follows:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. |f; Reliance on a gratuitous promise made without required formalities is not reasonable. (Emphasis added.)

A promise to make a disposition mortis causa is enforceable against the promisor’s estate when the formal disposition is not made. See Revision Comment — 1984, paragraph (f) for Article 1967. Thus, when a person promises to make a donation mortis causa in return for a promise to render services (perform labor), there is an agreement between two parties that creates reciprocal obligations and this agreement is a contract.

Although Wayne did not expressly plead alternate relief in quasi-contract, he asserted that “he is entitled to reimbursement for all labor performed by him ... and expenses ....” See LSA-C.C.P. arts. 854 and 862. Obligations arising without agreement for which the law has provided an equitable remedy pursuant to Title V of the Louisiana Civil Code are based on the concept of quasi-contract. Louisiana Civil Code articles 2298-2305 address enrichment without cause and a commensurate obligation on the part of the enriched person to compensate for the other party’s impoverishment. Actions based on unjust enrichment have been codified in LSA-C.C. art. 2298, as follows:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered. (Emphasis added.)

To recover under a theory of unjust enrichment, a plaintiff is required to demonstrate: (1) an enrichment to the defendant; (2) an impoverishment sustained |7by the plaintiff; (3) a connection between the enrichment and resulting impoverishment; (4) the absence of justification or legal cause for the enrichment and the impoverishment; and (5) the lack of any other remedy at law or lack of a contrary rule of law. See City Financial Corporation v. Bonnie, 99-2127, pp. 3-4 (La.App. 1 Cir 5/12/00), 762 So.2d 167, 169, writ denied, 2000-1619 (La.8/31/00), 766 So.2d 1283. Pursuant to LSA-C.C. art. 2298, an action for unjust enrichment is permitted only to fill a void in the law where no express remedy or rule is provided. Louisiana National Bank of Baton Rouge v. Belello, 577 So.2d 1099, 1102 (La.App. 1 Cir.1991). A remedy at law or an applicable rule of law vitiates the utilization of an action based on unjust enrichment. See Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569, 575 (La.1989).

Where there is a gratuitous performance of services, the law “declares a contrary rule” to wit:

Recovery through the application of the doctrine of unjust enrichment, which is based upon the concept that the person enriched must return to the person at whose instance he was enriched that which served to enrich him, is defeated and does not apply in the event the services, which would normally give rise to an obligation to pay, are rendered gratuitously. In the presence of a gratuitous intent on the part of the party performing the services, circumstances which would otherwise give rise to a quasi-contractual obligation to pay for the services rendered, give rise merely to an imperfect obligation incapable of enforcement in a court of law. (Citations omitted.)

Martin v. Bozeman, 173 So.2d 382, 387 (La.App. 1 Cir.1965). See LSA-C.C. arts. 1909 and 1910 for definitions of gratuitous and onerous.

Wayne had the burden of proving the nature of the obligation (equitable or conventional) that ivas owed to him by Alberta and his entitlement to recover money as a result of the obligation. LSA-C.C. art. 1831. Because the asserted value of his claim is more than $500.00, he must prove his entitlement “by at least one witness and other corroborating circumstances.” LSA-C.C. art. 1846.

R The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the factfin-der, and (2) the appellate court must further determine the record establishes the finding is not manifestly erroneous (clearly wrong). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Sistler, 558 So.2d at 1112; Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1998).

Wayne testified he was claiming an interest in the 83.21 acres of land because in 1991 Alberta told him that “[i]f I stayed there, took care of her, that she would will me the place.” This is a promise to perform services in return for a donation mortis causa.

Immediately after this testimony, Wayne denied he was “doing this as part of a contractual relationship” and stated he was not “doing it to receive the land” and that Alberta “was like a mother to me.” This indicates that the services were performed gratuitously.

The trial court found as a fact that there was no contract between the parties. This factual finding formed the basis for the trial court judgment that Wayne had no ownership interest in the property. A review of the record shows this factual finding is not manifestly erroneous.

The trial court judge did not specifically rule on whether the relationship between Wayne and Alberta was gratuitous or onerous or whether their 19relationship created an obligation for which the law provides an equitable remedy. In this posture, it is arguable that the manifest error rule does not apply and we can decide these issues de novo. However, even if we assume for the sake of argument that the relationship created an obligation for which there is an equitable remedy and the work was not gratuitously done, Wayne cannot prevail.

Pursuant to LSA-C.C. art. 2298, “[t]he amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.” (Emphasis added.)

Charlie Blades, who was qualified as an expert in farming operations, opined that the cost of maintaining grounds comparable to Alberta’s land amounted to approximately $10,000.00 per year, including the cost of fuel and equipment. Wayne testified that he spent approximately $8,000.00 to $9,000.00 per year on the property; however, he failed to produce any documentation of expenses on behalf of Alberta’s property. He has not met his burden of demonstrating that he incurred said expenses. Further, he was simultaneously managing his separate adjacent 150 acres of land using much of the same equipment.

Wayne failed as a matter of fact and law to prove that he was entitled “to compensation for the maintenance services that he provided.” He was allowed to live on Alberta’s property rent free; he was allowed to use Alberta’s land and equipment for his farming and cattle operations rent free; and he was allowed to dispose of Alberta’s cattle and did not account for them. Wayne had the burden of proving the obligation (equitable or conventional) upon which he claimed recovery and he had the burden of proving the amount of any recovery to which he was entitled.

There is no evidence in the record to show Wayne’s impoverishment and .Alberta’s enrichment because of the amenities given to Wayne in return for the services he performed. It is impossible to determine from the record before us who | Tnwas impoverished the most, who was enriched the most, or which amount was the lesser. The trial court’s factual finding to the contrary is manifestly erroneous.

This assignment of error has merit.

REIMBURSEMENT OF $9,500.00

The trial court awarded Wayne the sum of $9,500.00 as reimbursement for his payment of the purchase price of the 5.02 acre tract sold to Alberta. The evidence supports Wayne’s assertion that the money he advanced in 1993 was not intended to be a donation to Alberta. Wayne anticipated becoming the beneficiary of the property at Alberta’s death. At trial, Alberta did not recall that the 5.02 acres had been purchased in her name. (Alberta was 93 years old at the time of the trial.)

The sums advanced by Wayne to purchase the property in Alberta’s name constitute a loan. Pursuant to LSA-C.C. art. 2910, a “loan for consumption is an agreement by which one person delivers to another a certain quantity of things which are consumed by the use, under the obligation, by the borrower, to return to him as much of the same kind and quality.”

In her answer, Alberta asserts that this claim “is prescribed by the liberative prescription provided for by the Louisiana Civil Code.” An action on money lent is subject to a liberative prescription of three years. LSA-C.C. art. 3494(3). Louisiana Civil Code article 3495, thereafter, states in relevant part, “This prescription commences to run from the day payment is exigible.” Wayne’s loan became exigible as of the 1993 date that the loan and act of sale transpired. No legal action was filed until 1999; therefore, the claim has prescribed. The peremptory exception raising the objection of prescription is sustained. The judgment of the trial court awarding Wayne the sum of $9,500.00 is reversed.

This assignment of error has merit.

11 NOTICE OF LIS PENDENS

Finally, we address the issue of the validity of the notice of lis pendens

filed by Wayne on the 83 acre tract of land. The purpose of a lis pendens recording is to give effective notice to third parties of ongoing litigation affecting title to real property. LSA-C.C.P. art. 3751. The notice is not concerned with the merits of the litigation; nor is it a lien. Whitney National Bank v. McCrossen, 93-2160, p. 3 (La.App. 4 Cir. 3/29/94), 635 So.2d 401, 403, writ denied, 94-1108 (La.7/1/94), 639 So.2d 1164. Additionally, LSA-C.C.P. art. 3753 provides, in part: “When judgment is rendered in the action or proceeding against the party who filed the notice of the pendency thereof, the judgment shall order the cancellation of the notice at the expense of the party who filed it, and as part of the costs of the action or proceeding.” The trial court judgment determined that Wayne has no ownership interest in the property. Wayne did not appeal, or answer the appeal of, that determination and it is res judicata. LSA-R.S. 13:4231. In accordance with LSA-C.C.P. art. 3753, we remand the matter to the trial court for further action consistent with this opinion and the directive of that statute.

This assignment of error has merit.

ALBERTA’S CLAIM FOR REIMBURSEMENT

Alberta asserts the trial court erred by failing to make Wayne “account for the $1,000.00 payment” allegedly given to Wayne for a right-of-way across Alberta’s 5.02 tract of land. This issue was not raised in Alberta’s cross-claim or answer and was not ruled on by the trial court. Further, there is insufficient evidence in the record to act upon it. Accordingly, we decline to adjudicate this issue because it is not properly before us.

This assignment of error is not considered.

| ^DECREE

For the foregoing reasons, (1) the judgment of the trial court awarding Wayne a lifetime usufruct is reversed and Charlotte Durbin Webb is hereby evicted from the 5.02 acres at issue; (2) the judgment awarding Wayne compensation in the amount of $85,500.00 is reversed and judgment is rendered in favor of Alberta dismissing this claim with prejudice; (3) the judgment awarding Wayne $9,500.00 for the loan of the purchase price for the 5.02 acres of land is reversed and judgment is rendered in favor of Alberta sustaining her peremptory exception raising the objection of prescription and dismissing this claim with prejudice; and (4) the judgment in favor of Wayne maintaining the notice of lis pendens is reversed and this issue is remanded to the trial court to cancel the notice in accordance with the law and the views expressed herein. Wayne is cast for all costs of these proceedings.

REVERSED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

LANIER, J., concurs and assigns reasons.

I t LANIER, J.,

concurring.

I agree with the majority’s result on the assignment of error pertaining to Wayne’s $9,500.00 reimbursement claim. However, I do not agree with the majority’s rationale for the result. In all other respects, I agree with the opinion.

FITZSIMMONS, J., dissents in part and assigns reasons.

| t FITZSIMMONS, Judge,

dissenting, in part, with reasons.

I respectfully dissent from the majority’s reversal of the court’s determination that Wayne was entitled to some compensation for the work that he had performed on behalf of Alberta Webb. An award should be granted on the basis of unjust enrichment.

The court found factually that Wayne had “performed work for defendant on the property disputed over the last twenty years.” This finding was premised on the testimony of nine witnesses who “showed that [Wayne] was entitled to compensa-tion_” A court of appeal may not reverse factual findings by the trial court, even though convinced that had it been sitting as the trier of fact, it would have probably weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). My review of the record does not reveal the absence of a reasonable factual basis for the court’s finding or that it is clearly wrong. Ly v. State, Department of Public Safety and Corrections, 633 So.2d 197, 204 (La.App. 1st Cir.1993), writ denied, 93-3134 (La.2/25/94), 634 So.2d 835.

Finding no manifest error in the court’s determination that Wayne’s efforts were not gratuitous, one turns to the legal foundation for remuneration. Although Wayne did not expressly plead alternate relief in quasi-contract, he asserted that “he is entitled to reimbursement for all labor performed by him ... and expenses .In Louisiana, fact-pleading determines the character of the claim or defense, as opposed to a system based on the “theory of the case.” No special pleading of a quasi-contract action is required to recover as long as the acts alleged |3are sufficient to provide fair notice of the remedy sought. Kibbe v. Lege, 604 So.2d 1366, 1371 (La.App. 3rd Cir.), writs denied, 606 So.2d 540 and 541 (La.1992). The court is obligated to construe allegations of fact under any theory of law that grants relief to the pleader. La. C.C.P. arts. 854, 891, 1003, 1004; Cox v. W.M. Reroman & Co., Inc., 298 So.2d 848, 855 (La.1974); see also Paxton v. Ballard, 289 So.2d 85, 87 (La.1974).

Obligations arising without agreement for which the law has provided an equitable remedy pursuant to Title V of the Louisiana Civil Code are based on the concept of quasi-contract. As is pointed out in the majority opinion, La. C.C. arts. 2298-2305 address enrichment without cause, also identified as “actio de in rem verso,” and a commensurate obligation on the part of the enriched person to compensate for the other party’s impoverishment.

To recover under a theory of unjust enrichment, a plaintiff is required to demonstrate: (1) an enrichment to the defendant, (2) an impoverishment sustained by the plaintiff, (3) a connection between the enrichment and resulting impoverishment, (4) the absence of justification or legal cause for the enrichment and the impoverishment, and (5) the lack of any other remedy at law. See City Financial Corporation v. Bonnie, 99-2127, pp. 3-4 (La.App. 1 Cir 5/12/00), 762 So.2d 167, 169, writ denied, 2000-1619 (La.8/30/00), 766 So.2d 1283. Pursuant to La. C.C. art. 2298, an action for unjust enrichment is permitted only to fill a void in the law where no express remedy is provided. Louisiana National Bank of Baton Rouge v. Belello, 577 So.2d 1099, 1102 (La.App. 1st Cir.1991). A remedy at law vitiates the utilization of an action based on unjust enrichment. Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569, 575 (La.1989).

In the instant case, the first three criteria of enrichment, impoverishment and a connection between the two, are easily satisfied. See Kibbe, 604 So.2d at 1372. The fourth element is also substantiated because there existed no enforceable contract or juridical act between Mrs. Webb and Wayne. Notwithstanding a verbal agreement between the parties, Mrs. Webb was under no legal requirement to transfer her property to Wayne. Finally, there is no other viable remedy at law available to Wayne to attain the subject property pursuant to the terms of his verbal understanding with Mrs. Webb. Thus, the characteristics of this relationship fall within the gap for which no express remedy has been provided and for which the doctrine of unjust enrichment has been enacted. Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1st Cir.), writ denied, 526 So.2d 1112 (La.1988).3

Personal actions sounding in quasi-contracts are subject to a liberative prescription of ten years, unless otherwise expressly enumerated by legislature. La. C.C. art. 3499. Moreover, the cause of action in in rem verso arises on the date that the person seeking recovery has been compelled to discharge the obligation which formed the basis for the unjust enrichment claim. Minyard v. Curtis, 251 La. 624, 205 So.2d 422, 433 (1967). In the case sub judice, the court found that Wayne had provided services that benefited Mrs. Webb between 1981 and 1999, and it awarded $85,000.00 for Wayne’s labor. Wayne’s suit was filed on November 19, 1999; therefore, the court erred in failing to hold that any claims for compensation prior to November 19, 1989 had prescribed. Moreover, there is uneontrovert-ed testimony in the record that Wayne was unable to perform any |4services on the litigated premises for a period of at least one year, or more, between 1992 and the beginning of 1994 when he was imprisoned (or on a work release program) for tax fraud. Accordingly, his claim for compensation is reduced to entail a nine-year period of time.

The amount of compensation due is determined by the degree to which one party has been enriched or the other party has been impoverished, whichever is the lesser figure. La. C.C. art. 2298. Charlie Blades, who was qualified as an expert in farming operations, opined that the cost of maintaining grounds comparable to Mrs. Webb’s land amounted to approximately $10,000.00 per year, including the cost of fuel and equipment. Wayne testified that he spent approximately $8,000.00 to $9,000.00 per year on the property; however, he failed to produce any documentation of expenses on behalf of Mrs. Webb’s property. He has not met his burden to demonstrate that he incurred said expenses. Moreover, he was simultaneously managing his separate adjacent 150 acres of land using much of the same equipment.

Accordingly, it is respectfully submitted that Wayne bore his burden of demonstrating that he is entitled to compensation for the maintenance services that he provided. However, the evidence reveals that such an award should be granted at a significantly lower sum in the range of $2,600.00 per year for the nine years that he maintained the property, or a total sum of $23,400.00. This court should concomitantly reverse that portion of the judgment that renders the monetary judgment subject to the suspensive condition of the death of Mrs. Webb.

It is for these reasons that I respectfully dissent in part.

      . Wayne died October 1, 2002. Charlotte Durbin Jeansonne Webb, the testamentary executrix of his succession, has been substituted herein as the plaintiff/appellee.

      . Alberta died on February 26, 2002. Artem-us Ward Courtney, the testamentary executor of her succession, has been substituted herein as the defendanVappellant.

      . Actio de in rem verso is derived from a Latin term that signifies an action related to property used for the defendant's benefit. Jeffrey L. Oakes, Article 2298. The Codification of the Principle Forbidding TJnjnst Enrichment, and the Elimination of Quantum Meruit as a Basis for Recovery in Louisiana, 56 La. L.Rev. 873, n. 4, citing Ballentine's Law Dictionary.

      . "Quantum meruit,” a term based on common law has been compared to the equitable doctrine of unjust enrichment. Salley v. Colonial Marine Industries, Inc., 95-2215, p. 19 (La.App. 4 Cir. 9/11/96), 680 So.2d 1242, 1252. A discussion of the distinguishing, and sometimes confused, factors between these two legal premises is found in Morphy, Makofsky & Masson, Inc., 538 So.2d at 574-575.


author: | .DOWNING, J.

text:
    Allen FABRE v. ICF KAISER INTERNATIONAL.
    No. 2001 CA 2734.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Daniel Becnel, LaPlace, Counsel for Plaintiff/Appellee Allen Fabre.
    Philip J. Borne, New Orleans, Counsel for Defendant/Appellant ICF Kaiser International.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   | .DOWNING, J.

An employer and its insurer appeal a judgment from a workers’ compensation tribunal awarding the reinstatement of benefits for a former employee allowing additional back surgery and psychiatric counseling and awarding attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Allen Fabre filed for workers’ compensation benefits against his employer ICF Kaiser International (ICF). Fabre claims he suffered an on the job injury to his back on March 28, 1995, when he fell from a pipe rack while working at the Shell plant in Norco. He alleged that he was injured when jerked to a sudden stop by his safety harness after losing his balance and falling. He first declined medical treatment, assuming that the pain was nothing more than a pulled muscle. Fabre continued working in spite of the pain, but three months later, he finally went to see his family physician, Dr. Montegut, about pains in his groin area. He did not tell the doctor about the accident at that time. A few months later, he returned to Dr. Mon-tegut because the groin pain had spread to his lower back, and at this time he mentioned the fall. Dr. Montegut sent him to an orthopedic surgeon who in turn referred him to physical therapy. When therapy became too painful, he was referred to an orthopedic surgeon.

Eventually, on March 6, 1996, after seeing two neurosurgeons, Dr. Dzung Dinh of the Tulane Medical Center performed an anterior laparoscopic interbody fusion on his back. Dr. Dinh recommended that Fabre consult with a pain management specialist and a psychiatrist.

|sThe pain was better immediately following the surgery, but not so much better that he could return to work. Fabre began to wear a support brace and saw Dr. Edna Doyle for physical therapy. On February 26, 1997, Dr. Doyle noted that Fabre said that a couple of days before Mardi Gras he was standing on an ice chest that wobbled, and he slipped off. Later the pain returned full force and he had to cease the physical therapy. ICF requested he see Dr. John Schuhmacher, another neurosurgeon. On June 2, 1999, Dr. Schuhmacher recommended a package of discography, facet blocks, a psychological pain evaluation, and external bracing. On November 9, 1999, Fabre went back to Tulane and was seen by Dr. Donald Dietz. Dr. Dietz requested a “thin-cut CT scan” and noted that the pain was consistent with pseudoarthrosis at the level of the fusion previously performed. Fabre returned to Dr. Schuhmacher on April 3, 2000 to see if he agreed with Dr. Dietz. Dr. Schuhmacher felt that if Fabre did not have the surgery, he should be able to return to sedentary light occupations and recommended a neuropsychological pain evaluation before surgical intervention.

Due to the conflict of opinion, ICF requested an IME, which was performed on June 22, 2000, by another neurosurgeon, Dr. Anthony Ioppolo. Dr. Ioppolo agreed with Dr. Schuhmacher’s opinion on the use of external bracing instead of surgery.

Previously, on May 8-9, 2000, a surveillance tape was filmed of Fabre’s activities and the adjuster dispersed them to Fa-bre’s treating physicians, including the IME doctor. On August 11, 2000, Dr. Ioppolo said that after viewing the tape, Fabre appeared to have unrestricted movement, indicative of the fact that he was not having a great deal of pain or activity restriction. Thus, he would not consider Fabre to be a surgical candidate.

| ¿Fabre’s benefits were terminated. On July 31, 2000, Fabre filed a Disputed Claim for Compensation, alleging that giving the surveillance tape to the IME constituted an unethical contact with his physician.

The matter was heard May 9, 2001, and judgment was signed June 14, 2001. The WCJ ruled in favor of Fabre and against ICF, finding that Fabre (1) was injured on the job, (2) was entitled to have his benefits reinstated, (3) was entitled to have the recommended surgery, (4) was entitled to have the recommended psychiatric treatment, and (5) the termination of his benefits was arbitrary and capricious, entitling him to $3,000 in attorney fees.

ICF appealed alleging that the WCJ erred (1) by finding that Fabre established an on-the-job accident, (2) by failing to find that Fabre willfully misrepresented facts to obtain benefits, and (3) in disregarding Dr. Ioppolo’s opinion and finding instead finding that Fabre met the burden to demonstrate the need for additional surgery.

DISCUSSION

On The Job Injury

The WCJ found that Fabre sustained an injury in the course and scope of his employment after hearing his testimony concerning how the accident happened. Fabre testified that he lost his balance and fell from a pipe rack. Although he was hitched to a safety harness, the harness caught on the monitoring gauges, and he was jerked to a stop. Then finding a foothold, he climbed down from the pipe rack. The accident itself was not witnessed, but a Shell employee came by as he was climbing down and helped him to the ground. Fabre testified that he reported the incident to the supervisor and that he later made a written report.

An accident is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or [¿without human fault, and directly producing at the time objective findings of an injury.” LSA-R.S. 23:1021(1). The determination of whether an accident occurred is to be construed from the worker’s perspective. Notably, however, the claimant’s burden of proof is not relaxed, for he must still establish a work-related accident by a preponderance of the evidence. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846, p. 6 (La.App. 1 Cir. 2/18/00),. 763 So.2d 683, 688. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id.

Thus, in determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of his employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Id.

In the instant case the WCJ accepted Fabre’s version of events and found that his testimony was not contradicted. The WCJ also stated that if Fabre’s employer really wanted to oppose the factual occurrence of this accident, a representative from ICF would have appeared and contested it.

The only evidence introduced by the defense to cast doubt on Fabre’s version of the accident was his failure to seek medical treatment with Dr. Montegut until three months after the accident, and his continued work. The WCJ specifically found Fabre’s reasons for continuing to work credible. He testified that he had previously been laid off and that with four children, he needed his job, so he worked in pain. Fabre testified that at the time of the [^accident, he did not realize how badly he was injured. The WCJ also found Fa-bre’s explanation as to why he did not immediately go the doctor credible.

WCJ determinations as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations that will not be disturbed upon review in the absence of manifest error. Haws, 98-2846 at p. 6, 763 So.2d at 688. Moreover, an employee should not be barred from recovery because he did not realize or diagnose the full extent of his injury immediately after it happened. Id. Finding no manifest error, we will not disturb the WCJ finding that an on the job injury occurred.

This assignment of error is without merit.

Willfully Misrepresenting Facts To Obtain Compensation

ICF alleges that Fabre misrepresented his prior medical history and subsequent accident to his treating physicians and this misrepresentation constitutes fraud under LSA-R.S. 23:1208 which provides:

A. 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.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In asserting that Fabre forfeited his entitlement to benefits under this statute, the appellants refer this court to Fabre’s failure to inform his treating physician with accurate medical history. ICF contends that Fabre failed to make any mention of his back injury during the first visit to his doctor and that was three months after the alleged accident. Not until nearly six months after the alleged accident did he complain to the doctor of his back hurting. |7 Fabre also failed to report that previously he had fallen off of an ice chest at a Mardi Gras parade.

With respect to this issue, the WCJ stated in pertinent part that Fabre testified that following the accident he first developed a pain in his groin area, and he was concerned it was cancer, prompting his first visit to the doctor. Dr. Montegut evaluated his groin pain and did not mention any back pain, “so the Court does see where it might raise a question in the adjuster’s mind.” It was not until the pain spread to his back that he began to relate the two. At that time he went back to Dr. Montegut with back pain. Dr. Montegut ordered x-rays that showed some possible problems at the L5-S1 area of his back and referred him to Dr. Binder. The WCJ said another area that probably gave the adjuster some concern was an item in Dr. Montegut’s notes concerning his complaint about low back pain he had been having on and off for five years that increased with lifting, and with still no mention of the accident. The WCJ noted that he also had a prior back sprain in April 1992, but that was years before the accident. The WCJ concluded, “in my mind, this is not enough to question the occurrence of the accident.” The adjuster testified that she terminated benefits based on Dr. Montegut’s notations. The WCJ said, “it is easy to understand, someone developing pain in an area other than their back and being concerned about it being cancer or something different.” It did not surprise the WCJ that there were no notes in Dr. Montegut’s records on the back pain when he was there for a cancer scare incident, especially since at the very next visit he returned and was treated for back pain. The WCJ stated that just because Dr. Montegut’s records say that he has had low back pain off and on for five years does not mean he specifically withheld information. He testified that he has had back strains off and on before and that he went to a chiropractor three years pearlier. The WCJ found that Fabre was not making a deliberate misrepresentation.

ICF also alleged that Fabre’s account of how the accident occurred was contradictory. He told some doctors he fell from the pipe rack, and told others that he slipped from the pipe rack and told still others that he was injured while climbing down from the pipe rack. The WCJ found that these statements were not materially inconsistent and that the history he gave the doctors was very consistent with his testimony. The WCJ found “that is not enough to deny [the] claim” pursuant to LSA-R.S. 23:1208. We agree.

Louisiana Revised Statute 23:1208 requires the following elements to establish a false representation justifying forfeiture of benefits: (1) a false statement or representation, (2) made willfully and deliberately, and (3) made for the purpose of obtaining workers’ compensation benefits. This broadly worded statute encompasses statements made to anyone and all three requirements must be met before a claimant can be penalized. Short v. Gaylord Chemical Corp., 98-0606, p. 10 (La.App. 1 Cir. 4/1/99), 731 So.2d 493, 499.

Our review of the record supports the WCJ’s decision, and we find no manifest error in the WCJ’s determination that recovery is not precluded by LSA-R.S. 23:1208. All of the doctors describe how the accident occurred a little bit differently, but in general, they all reported that it occurred on a pipe rack. The WCJ specifically found that the evidence “overwhelmingly supports” Fabre’s position that he had a work related injury. Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Haws, 98-2846 at p. 5, 763 So.2d at 688. Here we see no manifest error. Thus, the second assignment of error is without merit.

| aDemonstrating the Need for Additional Surgery

ICF alleges that the WCJ erred in disregarding the opinion of Dr. Ioppolo, the independent medical examiner, and in finding that Fabre sustained his burden of proof that he needed additional surgery on his back.

Pursuant to LSA-R.S. 23:1123, if a dispute arises as to the employee’s condition, the WCJ is allowed to order an independent medical examination by an impartial doctor. The statute further provides that the report of the IME doctor shall be “prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.” LSA-R.S. 23:1123. However, even prima facie evidence may be overcome with other credible evidence. Although the legislature has accorded significant weight to the testimony of a court appointed IME physician, that testimony is not conclusive. The WCJ must still evaluate the 'witnesses and reach an ultimate decision in the matter. Brasseaux v. Abbeville General Hospital, 97-1062, p. 5 (La.App. 3 Cir. 3/18/98), 710 So.2d 340, 343, writ granted in part, reversed in part, 98-1066 (La.6/5/98), 720 So.2d 673.

The WCJ found that Fabre had one successful disc surgery but he developed pseudoarthrosis. His Tulane Medical Center neurosurgeon, Dr. Donald Dietz, thought it could be corrected with another surgery. The employer chosen neurosurgeon, Dr. John Schuhmacher, gave a second opinion, recommending that he be supplied with facet block injections at the L5-S1 level to determine whether that was the generator for the pain. This was not done. Dr. Dietz asked as early as November 1999 to repeat an MRI to determine if surgery was needed. In December 1999, the bone scan | inshowed pseudoarthrosis at the L5-S1 level. And at this time, based upon the bone scan and Fabre’s progressive complaints and continued back, left leg and groin pain, Dr. Dietz began to recommend a type of surgery performed from the front and the back that is more stabilizing than the first surgery that resulted in pseudoarthrosis.

The WCJ explained that on April 3, 2000, Fabre was sent back to Dr. Schuh-macher who noted that he was showing signs of depression because of the constant back pain and again recommended a psychiatric evaluation. Dr. Schuhmacher did not recommend surgery at this time although he did not disagree that Fabre had pseudoarthrosis and that it was painful. Dr. Schuhmacher wanted to try bracing first. He also said that if Fabre did not have the surgery, he could probably return to light duty or sedentary work, but if he did undergo surgery, it would take him about a year to recover. Dr. Ioppolo agreed with Dr. Schuhmacher. The WCJ found that as of July 2000, neither of these doctors stated Fabre should not have the surgery, just that they would try other measures first. The WCJ found that this indicated that surgery was a reasonable and necessary choice and, just because one doctor might try something else before performing surgery, that is not enough to say that they disagree with Dr. Dietz, the treating physician.

Surveillance Video

Surveillance tapes were recorded of Fabre’s activities on May 8th, 9th, and June 5, 2000, and sent to all of his treating physicians, including the IME physician prior to his report, without the consent of Fabre’s attorney. ICF alleges that it was an error for the WCJ to disregard the IME report even if “tainted” by the tapes.

The WCJ found that the adjuster’s action made the IME report of no value because it had been tainted by consideration of the tapes, since an IME |nis supposed to be unbiased. The WCJ held that a proper way of handling the tapes would have been to bring them to the WCJ’s attention and then set up a deposition so that claimant and claimant’s attorney could be present while the doctor viewed the video; thereby ensuring the doctor’s evaluation was “an even playing field.”

We agree with the WCJ who stated that for the adjuster to take it upon herself to send the IME doctor a surveillance video and then ask him to look at the tape to see if it changes his mind “is beyond the parameters of what they are able to do. They are not to have any contact with an independent medical examiner.” After Dr. Ioppolo viewed the tapes he sent a letter stating that Fabre had unrestricted movement, and that the tapes demonstrating him bending, lifting and pushing a cart, unloading and loading a car, and walking. He felt that this activity was not indicative of someone having a great deal of pain and, thus, Fabre would not be a surgical candidate. The WCJ ruled that this tainted report would not be considered in her decision. The WCJ found that, in her opinion, there was nothing in the tapes to dispute his injury. The WCJ found that after three days of video, the only significant activity filmed was Fabre pushing a grocery cart, which any three year old can do and loading the bags into the back of the truck one at a time. The WCJ noted that Fabre sat on the tailgate to arrange the groceries instead of stretching across the rear of the truck. He also picked up an empty aquarium, and later leaned over to connect a trailer hitch to his pickup. The WCJ commented that hitch seemed to be a ball type attachment and the video did not show that he had to pull or strain to hitch the trailer.

We find no manifest error in this determination. The weight given to the opinion of the IME can vary in accordance with the various factors that a trial judge utilizes in evaluating the testimony of any other witness. Thus, |12the weight can be lesser or greater depending on the type of examination the doctor performs and his opportunity to observe the patient and his review of other physicians examinations. Brasseaux, 97-1062 at p. 6, 710 So.2d at 343.

A finding of whether a particular medical treatment is necessary is a factual determination and will not be reversed in the absence of manifest error. Alleman v. Fruit of the Loom-Crowley, 96-1246, pp. 5-6 (La.App. 3 Cir. 3/5/97), 692 So.2d 485, 488. The question on review is not whether the trier of fact was right or wrong but whether the conclusion was reasonable. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. Based on the testimony and the records in evidence, we find that the WCJ did not err in finding Fabre to have a second surgery on his back was a reasonable and necessary medical procedure. The evidence showed he responded well after the first surgery and his condition was improving until the development of pseudoarthrosis. The WCJ was not manifestly erroneous in finding that Fabre suffered chronic pain for six years since his work-related accident and was entitled to treatment necessary to relieve the pain he suffers as a result of his disability.

Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the decision of the workers’ compensation judge.

AFFIRMED.

      . On October 26, 2000, ICF filed an Answer denying that allegation. On April 11, 2000, ICF filed for leave of court to supplement its Answer to dispute among other things, whether Fabre sustained an accident while working for ICF; whether his back injury was due to a work related injury; whether he was capable of working; .whether the surgery recommended by Dr. Dietz was necessary; whether Fabre made false statements for the purpose of obtaining workers’ compensation; and whether ICF was entitled to restitution. On April 18, 2001 the WCJ denied the motion.

      . Pseudoarthrosis is defined as the nonheal-ing of fusion bone.

      . The successful disc surgery was performed by Dr. Dzung Dinh who replaced Dr. Dietz at the Tulane Medical Center.


text:
    Carolyn Asbury GOETZMAN v. Wallace Roland GOETZMAN, Sr.
    No. 2001 CA 2620.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Alan S. Fishbein, Baton Rouge, Counsel for Plaintiff/Appellee Carolyn Asbury Goetzman.
    Amy E. Counce, Baton Rouge, Counsel for Defendant/Appellant Wallace Roland Goetzman, Sr.

      Before: KUHN, DOWNING and GAIDRY, JJ.
   | .DOWNING, J.

The sole issue in this appeal concerns whether the community property pension benefits apportionment formula under Sims v. Sims (the Sims formula) should apply to pension benefits that increased substantially in value through increased union contributions to the pension plan made after the community terminated. The trial court ruled that the Sims formula was the appropriate framework for determining the respective spouses’ portions of Wallace Roland Goetzman, Sr.’s monthly pension benefits that were increased under one plan from $50.00 per service year at the time the community was terminated to $74.00 per service year at the time of the Goetzmans’ partition trial. For reasons that follow, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Wallace Roland Goetzman, Sr. and Carolyn Asbury Goetzman married on January 30, 1971. By judgment of separation of property signed April 27, 1998, the community of acquets and gains previously existing between the parties was terminated retroactive to the date of filing, May 2, 1996. The Goetzmans obtained a judgment of divorce on March 31,1999.

The Goetzmans partitioned most of their community property by agreement. The only items of community property still at issue are three union pension plans in Mr. Goetzman’s name. These partition matters came on for hearing on October 27, 2000. The trial court took the matters under advisement and issued written reasons on December 6, 2000. The judgment and three qualified domestic relations orders were signed on February 28, 2001. Therein, the trial court concluded that Ms. Goetzman was entitled to receive a portion of Mr. Goetzman’s retirement in accordance with the ^formula set forth in Sims. After the trial court denied Mr. Goetz-man’s motion for new trial, he appealed contending in one assignment of error that the trial court erred in applying the Sims formula to the three pension plans.

DISCUSSION

Mr. Goetzman is an electrician and a member of the International Brotherhood of Electrical Workers labor union, which controls and operates his pension plans. Through collective bargaining, the union has incrementally increased its members’ retirement benefits three times between the date of termination of the community and the date of trial in at least one of the plans. Accordingly, at the time of the trial for partition, pension benefits had increased in that plan from $50.00 per year of service (at the date of the termination of the community of acquets and gains) to $74.00 per year of service. For example, if a union member retired in 1996 after 20 years of service, he would receive a pension benefit of $1,000.00 per month (20 years x $50.00/service year = $1,000.00/ month). If he retired in 2000 after 20 years of service, his pension benefit would be $1,480.00/month (20 years x $74.00/ser-viee year = $1,480.00/month).

Mr. Goetzman argues that since the increased pension values occurred after the termination of the community, Mrs. Goetzman should not be entitled to share in the increased value. Particularly, he argues that since the union increased the pension value and the increase does not result from any growth in the fund value nor from the effort, skill, or industry of either spouse, the increase in value was not attributable to the community. He argues that Mrs. Goetzman should only receive the value of her share of the Upension benefits employing the $50.00/service year amount applicable when the community terminated. In so arguing, Mr. Goetzman suggests that the Louisiana Supreme Court did not contemplate this circumstance when it issued its opinion in Sims. He asserts that this court should apply by analogy the supreme court’s holding in Hare v. Hodgins, 586 So.2d 118 (La.1991), to adjust the Sims formula “to more accurately reflect the community and separate components of the pension benefit.”

The Hare court recognized that in some cases the Sims formula may not always accurately reflect the relative community and separate components of a particular pension plan, such as when there have been post-divorce increases to the pensions benefits not resulting “from a foundation provided by prior community earnings.” Hare, 586 So.2d at 127-128. In these cases, partitioning court should inquire “whether a substantial post-community increase is due to personal effort or achievement after the termination of the community that has little or no relationship with the prior community.” Hare, 586 So.2d at 128. The court then listed the considerations to be weighed in making the determination whether the increments were due purely to personal merit. These include: 1) whether the increment represents a fairly substantial increase in the employee’s post-community earnings; 2) whether the increment is due to a non-personal factor, such as cost-of-living raises; and 3) whether the increment is attributable to the employee’s meritorious individual efforts or achievements. Id.

The Hare court also observed, however, that when such an increase “results from nonpersonal elements such as longevity raises, cost-of-living raises, forfeitures by terminated employees, and investment returns, the community should participate in that gain.” Id. “Drawing the line in this |Bmanner,” the court observed, “is consistent with the codal scheme for classification of property as community or separate, is fair, and is consistent with the reasonable expectations of the parties.” Id.

Here, Mr. Goetzman concedes that the pension plan increases were not attributable to his personal industry after divorce. And in its written reasons, the trial court found that the pensions increased in value only because he continued to work and because the union increased the benefit level. Mr. Goetzman concedes also that Hare is not directly on point and does not directly control our review. He argues, however, that the union pension plan is different from other pension plans in that credit is accrued by hours worked rather than actual salary, i.e., that a newly hired electrician would earn the same retirement credit per hour as an electrician, such as he, with 35 years service. Given these differences, he asserts that Mrs. Goetzman should not benefit from post-community increase in pension benefits, even though the increase was not attributable to his effort, skill or industry.

We acknowledge that because of “great variations in pension plans and communal situations no one method can accomplish justice in every case.” Hare, 586 So.2d at 127. We also acknowledge there may be “unusual cases in which a substantial part of the increased retirement benefits earned by an employee spouse after divorce will not result from a foundation provided by prior community earnings.” Hare, 586 So.2d at 127-128. In these cases, courts should employ reasonable alternatives and adjustments to accomplish an appropriate distribution in an equitable manner. Hare, 586 So.2d at 127. But, as the Hare court directed, cases of | fidoubt are to be resolved in favor of the community and against the employee’s spouse’s separate estate or subsequent marital community. Hare, 586 So.2d at 128.

Here, however, the record reflects that increases in the pension plan’s annual service amount were in no way unusual or extraordinary. They were regular and expected. Between 1981 and the trial date, the service amount was increased at least twelve times. We therefore conclude that such increases result from elements similar to longevity raises, cost-of-living raises, forfeitures by terminated employees, and investment returns in which gain the community should participate. See Hare, 586 So.2d at 128. See also Lupberger v. Lupberger, 00-2571, pp. 6-7 (La.App. 4 Cir. 12/05/01), 805 So.2d 264, 269, writ denied, 2002-0653 (La.5/24/02), 816 So.2d 308, where the court concluded that the addition of fifteen and one-half fictitious years of employer contributions should not be added to the denominator of the Sims formula to the detriment of the nonem-ployee spouse’s interest. The Lupberger court adopted reasoning from California jurisprudence that the fictitious years were “merely a means, of several available, by which an employer effects the enhancement of compensation through pension benefits to the employee” and found no error where the trial court employed the Sims formula to calculate the proportionate share of the spouses. Lupberger, 00-2571 at pp. 6-7, 805 So.2d at 269. We find this reasoning also persuasive when applied to the facts of the matter before us.

The burden is on Mr. Goetzman to prove that his is such an unusual case that he is entitled to an increased apportionment under the Sims |7formula. Hare, 586 So.2d at 128. Mr. Goetzman has failed to make such a showing.

Accordingly, we conclude that Mr. Goetzman has failed to demonstrate an entitlement to an upward adjustment in his proportionate share of his pensions based on increases provided by his union. This assignment of error is without merit.

DECREE

For reasons stated, the judgment of the trial court is affirmed. Costs are taxed to Mr. Wallace Roland Goetzman, Sr.

AFFIRMED.

      . 358 So.2d 919 (La.1978).

      . We are mindful that "termination of the community does not have the effect of freezing the value of each spouse's undivided interest in the community assets,” Hare v. Hodgins, 586 So.2d 118, 121 (La.1991), and that, "[e]ach spouse continues to be a co-owner of the assets until they are partitioned and, as such, is entitled to benefit from any appreciation in their value.” Id. The issue before us involves whether the increases at issue are properly attributable to the community.

      . The record reflects that for every 1600 hours of pension credit, the member receives one year of creditable service under the pension plan.

      . The pension fund administrator testified that benefits were increased once a year if actuarially reasonable.

      . In re Marriage of Lehman, 18 Cal.4th 169, 74 Cal.Rptr.2d 825, 955 P.2d 451 (1998).