author: 1CHARLES R. JONES, Judge.

text:
    Helen BARROW v. NORWEST MORTGAGE CORPORATION, nka, Wells Fargo Home Mortgage, Inc., and Mervin Jefferson and Loriner G. Rideau and Civil Sheriff, Parish Of Orleans.
    No. 2002-CA-1935.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2003.

      Patrick D. Breeden, New Orleans, LA, for PlaintiffAppellant.
    Paul R. Valteau, Jr., Civil Sheriff, Peter C. Rizzo, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS Jr.).
   1CHARLES R. JONES, Judge.

The plaintifPappellant, Helen Barrow, appeals the March 1, 2002, judgment of the district court granting the appellee, Civil Sheriff Paul Valteau, an exception of no right of action, thus dismissing the suit as it pertains to Sheriff Valteau. We affirm.

The following facts are taken from the briefs of the parties. This Court recognizes that there are four separate suits in Civil District Court for the Parish of Orleans as it pertains to this matter. Ms. Barrow has only provided us with the record from Barrow v. Norwest, et al, CDC # 2000-6851. Therefore, we make no assumptions as to the truth of the stated facts because the record on appeal is incomplete for verification.

In 1992, John Davis, Sr. was granted a mortgage on 7331 Chadbourne Drive in New Orleans that was recorded. Mr. Davis died in 1998. That same year Nor-west Mortgage Corporation (hereinafter “Norwest”) filed a petition for Executory Process against the subject property. The petition for Executory Process was filed as a result of The Succession of John Davis, Sr., CDC # 2000-680, wherein Steven Davis and John Davis were recognized as lathe heirs. According to the appellant, Steven and John Davis renounced the ownership of the property and the appellant, Helen Barrow, filed a petition to enjoin the seizure and sale claiming that she was owner of the property.

A Writ of Seizure and Sale was issued on November 18, 1998 and recorded under La. R.S. 13:3888, “Filing of notice of seizure; effect of subsequent acts and cancellation of notice”. A curator was appointed and subsequently served with the Notice of Seizure. In December 1999, the curator filed a Note of Evidence and the sheriffs sale was set for November 11,'1999. On January 14, 2000, Ms. Barrow was placed into possession of Mr. Davis’ estate and the subject property. The possession was registered in the conveyance office on January 25, 2000.

The sale was rescheduled twice, once by request of Ms. Barrow and a second time after Ms. Barrow filed for bankruptcy. Ms. Barrow filed a Petition for Injunction and TRO on February 1, 2000. The district court denied the TRO and a hearing on the Preliminary Injunction was scheduled for February 8, 2000. The sheriffs sale took place on February 3, 2000. Lori-ner Rideau and Mervin Jefferson purchased the subject property. Although they are named as defendants in the instant case, they are not the subjects of this appeal.

The judgment that Ms. Barrow appeals is dated March 1, 2002, and arises out of the fourth suit filed in this matter precipitated by the above facts. The following facts are pertinent as it relates to this appeal. On May 5, 2000, Ms. Barrow filed a “Petition” against Norwest, Ms. Rideau and Mr. Jefferson for return of the property, annulment of the sale, and damages. Norwest filed an Answer on October 16, 2000. On March 29, 2001, Ms. Rideau and Mr. Jefferson filed exceptions of No Right of Action and Res Judicata along with their Answer. After a July 16, 2001 hearing the district 13court denied their exceptions. On November 28, 2001, Ms. Barrow filed a Motion to Compel Sheriff Valteau to answer discovery. On January 11, 2002, Sheriff Valteau filed exceptions of No Right of Action and No Cause of Action. The judgment of March 1, 2002 grants the exception of no right of action in favor of Sheriff Valteau and thus dismisses him from the suit. It is from this action that Ms. Barrow takes the instant appeal.

On appeal, Ms. Barrow raises four assignments of error. Her assignments or error refer to the March 1, 2002 judgment, and she argues that these assignments of error are a direct result of the district court having granted the exception of no right of action. She argues that the district court erred in finding that she did not have a right of action against Sheriff Val-teau, and that the law and Constitution guaranteed to her a right to have a hearing before the sale of the subject property. She further argues that Sheriff Valteau did not have immunity from suit, and that the amendments to La. C.C.P. art. 2752 made the law unconstitutional since it deprived her of the TRO which she prayed for. However, we are of the opinion that the sole issue on appeal is whether the district court erred in finding that Ms. Barrow did not have a right of action against Sheriff Valteau.

Our colleagues in the Second Circuit in Succession of Ewing, 34,413 (La.App. 2 Cir. 3/2/01), 781 So.2d 885, stated that:

The peremptory exception of no right of action tests whether the plaintiff has the capacity or legal interest in judicially enforcing the right asserted. La. C.C.P. art. 927 A(5); Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The essential function of this exception is 14to provide a threshold device which terminates suits brought by one who has no interest in enforcing judicially the right asserted. Id.; Alco Collections Inc. v. Poirier, 95-2582 (La.App. 1 Cir. 9/27/96), 680 So.2d 735, writ denied, 96-2628 (La.12/13/96), 692 So.2d 1067. Simply put, this exception tests whether this plaintiff, as a matter of law, has an interest and capacity to enforce the claim sued on. Id.; Greenbriar Nursing Home Inc. v. Pilley, 93-2059 (La.5/23/94), 637 So.2d 429.

The Civil Sheriff for the Parish of Orleans is the law enforcement officer of the civil district court for the parish of Orleans. La. Constitution Art. 5 § 27 reads, in pertinent part, that:

In each parish a sheriff shall be elected for a term of four years. He shall be the chief law enforcement officer in the parish, except as otherwise provided by this constitution, and shall execute court orders and process, (emphasis added)

Louisiana Code of Civ. Pro. art. 321 states that:

The sheriff is the executive officer of the district court. He shall serve citations, summons, subpoenas, notices, and other process, and shall execute writs, mandates, orders, and judgments directed to him by the district courts, the courts of appeal, and the supreme court, (emphasis added)

In the Petition filed by Ms. Barrow praying for the return of the property to her, annulment of the sale of the property and damages , she alleges that:

The sale by the Civil Sheriff, who knew about the petition for an injunction and knew that Barrow had a right to a hearing and same was not held not withstanding the fact that the Civil Sheriff had this knowledge, thereby depriving Barrow of her property in violation of the laws of the State of Louisiana and the Constitution of Louisiana and the United States since no due process of law was granted since Barrow was deprived of her property | Rbefore a hearing was held. Federal National Mortgage Association v. O’Donnel, 446 So.2d 395 (5th Cir.1984).

The allegation that Sheriff Valteau “knew” of the pending petition for injunction did not result in a constitutional deprivation of Ms. Barrow’s rights, nor does it give Ms. Barrow the capacity or legal interest to judicially enforce the alleged right she asserted. Further, paragraph 25 of her petition states that:

The acts of the Civil Sheriff evidences bad faith since it is “state action” that deprived Barrow of her prayed for hearing after being put on notice of the request for same and due to this fact defendant Sheriff is liable to plaintiff Barrow for all actual damages, attorney fees, and cost [sic] as are Norwest, Jefferson and Rideau, individually, jointly severaly [sic] and in solido.

Again, the Sheriffs alleged “bad faith” does not make him the proper person to file suit against for the return of the property in question. Further, a review of the record and assessment of the oral arguments reveals that Sheriff Valteau has no legal authority to set a hearing date nor could he personally stop a sale unless instructed to do so by the district court. Sheriff Valteau stopped the sale twice pri- or to February 3, 2000, once per Ms. Barrow’s request. It is very possible that Ms. Barrow could have delayed the sale again had she made a proper request. However, whether the sale could have been stopped by alternative means is a moot issue as it relates to Sheriff Valteau. Ms. Barrow cannot sue the Sheriff for administering his [(¡ministerial duties under La. Const. Art. 5 § 27 and La.Code of Civ. Pro. art. 321.

Decree

For the reasons stated herein, we affirm the judgment of the district court dismissing Sheriff Valteau as a defendant by granting his preemptory exception of no right of action. All costs to be assessed to Helen Barrow.

AFFIRMED.

      . The original petition CDC# 98-17500; Succession of Davis, CDC# 2000-680; Petition for Injunction, CDC# 2000-1607 and Barrow v. Norwest, et al, CDC# 2000-6851.

      . Another judgment erroneously stating that Ms. Barrow has "no cause of action” against Sheriff Valteau was signed on March 18, 2002 and an Order to Vacate the March 18, 2002 judgment was signed on March 25, 2002.

      . On March 15, 2002 Ms. Barrow’s Motion for a Suspensive Appeal was denied because the district court judge reasoned that the suit was still pending. On April 2,2002, the district court judge outright denied Ms. Barrow’s second Motion for a suspensive appeal. On May 2, 2002, Ms. Barrow’s Motion for an Appeal was denied a third time. Ms. Barrow sought writs from this court whereby we granted the writ finding that the district court had no right not to sign Ms. Barrow’s Order for an appeal.

      . We must note that in oral argument, Ms. Barrow's counsel stated several times that he did not seek damages from Sheriff Valteau and the Sheriff in turn invited Ms. Barrow to withdraw her claim for damages which Ms. Barrow failed to accept.


source: Caselaw Access Project

license: Public Domain

text:
    Lynn Eric WILLIAMS, Jr. v. Michael BARNES.
    No. 2002-CA-2132.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2003.
    Ronald J. Landry, La Place, LA, for Plaintiff/Appellant.
    John A. Leslie, Blake G. Arata, Jr., Rome, Arata & Baxley, L.L.C. New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS Jr.).
   1CHARLES R. JONES, Judge.

Appellant, Lynn Eric Williams, Jr., appeals the judgment of the district court dismissing his Petition for Nullity and denying his Motion for New Trial. Following a review of the record, we reverse and remand.

Facts and Procedural History

This appeal arises out of a judgment of default entered by the Civil District Court for the Parish of Orleans against the Appellant, Mr. Lynn Eric Williams . Michael Barnes, the Appellee, filed suit against Mr. Williams for injuries he sustained as a result of a physical assault. Since the sheriff was unable to serve Mr. Williams, Mr. Edward Martina was appointed as a special process server. Mr. Martina personally served Mr. Williams with process at 1704 Chantilly Drive in LaPlace, Louisiana. After legal delays, Mr. Barnes was awarded damages by preliminary default judgment, which was confirmed on April 5, 1999. A judgment-debtor rule was served on Mr. Williams at 1704 Chantilly Drive. Mr. Lynn Eric Williams, Sr., father of the Appellant, filed an Action of Nullity seeking annulment of the judgment for lack of service of process. As a result, the judgment | ?was amended to reflect the birth date and social security number of Mr. Williams, Jr. Thereafter, Mr. Williams, Jr., filed a Petition for Nullity alleging lack of service of process. In response, Mr. Barnes filed an Exception of Res Judicata, asserting that proper service was executed against Mr. Williams, Jr. The Petition for Nullity was dismissed, and the exception was granted. Subsequently, Mr. Williams, Jr., filed a Motion for New Trial, which was denied. It is from these judgments that Mr. Williams, Jr., appeals.

Res Judicata

In his first assignment of error, Mr. Williams, Jr., argues that the district court erred by granting the Peremptory Exception of Res Judicata filed by Mr. Barnes in response to Mr. Williams, Jr.’s, Petition for Nullity. Mr. Williams, Jr., argues that his Petition for Nullity involved different parties and different issues from the Petition for Nullity filed by his father, and therefore is not subject to res judicata. Mr. Barnes argues that the parties are the same, as Mr. Williams, Jr., was always the defendant, and that the issues raised and resolved in both petitions involved the correct identity of the defendant in default. Therefore, Mr. Barnes argues, res judicata should be invoked.

The pertinent provisions of La. R.S. 13:4231, the article addressing Res Judica-ta, states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
1. If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. ...
3. A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action | ^between them with respect to any issue actually litigated and determined if its determination was essential to that judgment.

“Under the res judicata doctrine, ‘the formula derived in Louisiana jurisprudence states there must be identity in the two suits as to the thing demanded, the demand must be founded on the same cause of action, and the demand must be between the same parties.’ ” Berrigan v. Deutsch, Kerrigan & Stiles, LLP, 2002-0612, p. 5 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, 167, citing, Cuccia v. Jefferson Parish School Board, 613 So.2d 1141, 1142 (La.App. 5th Cir.1993).

The issue in the first Action of Nullity involved the identity of the defendant in default. The determination was made by the district court as to the proper defendant in default. The instant Petition for Nullity raises the same issue, the correct identity of the defendant in default. Thus, the issues are the same.

The district court factually determined in the first Petition for Nullity that Mr. Williams, Jr., was served with service of process and was the defendant in default. However, it was Mr. Williams, Sr., who initially appeared. Therefore, the same parties were not before the district court in that first Petition for Nullity. Although Mr. Williams, Jr., was the party cast in default, and the district court amended the judgment to reflect the birth date and social security number of Mr. Williams, Jr., he was not before the district court, and there was no need to afford him the opportunity to defend himself. The parties in the first Petition for Nullity were Mr. Barnes and Mr. Williams, Sr., and the parties in the instant Petition for Nullity are Mr. Barnes and Mr. Williams, Jr. The parties are not the same.

^Considering that the parties are not the same in both actions, the district court erred in dismissing Mr. Williams, Jr.’s Petition for Nullity and granting Mr. Barnes’ Exception of Res Judicata.

Motion for New Trial

In his second assignment of error, Mr. Williams, Jr., argues that the district court erred by denying his Motion for New Trial based on his Petition for Nullity. He argues that the two nullity actions involved different parties and different causes of action, and therefore the judgment was contrary to the law and evidence entitling him to a new trial. Mr. Barnes argues that the district court was correct in denying the Motion for New Trial because no new issues were raised in the Petition for Nullity filed by Mr. Lynn Eric Williams, Jr.

La. C.C.P. art.l972(l) provides:

A new trial shall be granted, upon contradictory motion of any party, in the following cases: (1) When the verdict or judgment appears clearly contrary to the law and the evidence.

As previously discussed, the parties in both nullity actions are not the same. Therefore, the judgment granting the Exception of Res Judicata and dismissing the Petition for Nullity was contrary to the law and the evidence, and the Motion for New Trial was improperly denied.

| &Decree

For the reasons stated herein, the judgment of the district court dismissing the Petition for Nullity filed by Lynn Eric Williams, Jr., denying his Motion for New Trial, and granting the Exception of Res Judicata filed by Michael Barnes is hereby reversed, and the matter is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The petition filed by Mr. Michael Barnes did not indicate whether the defendant was Mr. Lynn Eric Williams, Sr. or Mr. Lynn Eric Williams, Jr.


author: 2FOIL, J. 1KLINE, J.,

text:
    Cleo DAVIS v. CIPPRIANI’S ITALIAN RESTAURANT
    No. 2002 CA 1144.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 9, 2003.

      Fhtcher Bell, Baton Rouge, for Appehee Plaintiff Cleo Davis.
    Michael McKay, Douglas Cochran, Baton Rouge, for Appellants Defendants Cip-priani’s Restaurant, et al.
    Before: FOIL, McCLENDON and KLINE,  JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   2FOIL, J.

In this workers’ compensation matter, defendants, Cippriani’s Italian Restaurant and its insurer, the Louisiana Restaurant Association Self Insurers Fund (LRASIF), appeal a ruhng by the workers’ compensation judge in favor of plaintiff claimant, Cleo Davis. The judgment awarded recovery of supplemental earnings benefits at her temporary total disability rate from the date she last received indemnity benefits, through trial and continuing. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On October 21, 1999, the claimant, Cleo Davis, filed a disputed claim form with OWC, claiming entitlement to workers’ compensation benefits. She alleged that on April 12, 1995, while in the course and scope of her employment at Cippriani’s Italian Restaurant, she injured her neck lifting a heavy pot of red gravy. She asserted that the workers’ compensation carrier for Cippriani’s, LRASIF, wrongfully terminated indemnity benefits on May 12, 1999, following her recovery from surgery. The employer filed an answer generally denying the claim, and the matter ultimately proceeded to a trial on the merits. The workers’ compensation judge, Pamela Moses-Laramore, found that the claimant met her burden of proof that she could not return to her pre-injury wage. The WCJ further found that the employer failed to sustain its burden of proving that the claimant was employable at ninety percent of her pre-injury wage. As such, the WCJ concluded that the claimant is entitled to supplemental earnings benefits. This appeal by the employer and its insurer followed.

DISCUSSION

Appellants allege that the WCJ erred in finding that claimant met her burden of proof entitling her to supplemental earnings benefits. They further contend that the WCJ erred in finding that they failed to satisfy their burden of proof that claimant was physically able to perform a job available to her in her community.

13Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. 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 factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in fight 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 v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556.

An employee who is not entitled to receive either temporary total or permanent total disability may be eligible to receive supplemental earnings benefits. To recover SEBs, an employee must prove he has been injured in a work-related accident, which rendered him disabled from earning ninety percent or more of his former earnings. La. R.S. 23:1221(8). Whether plaintiffs injury prevents him from obtaining employment earning ninety percent of his pre-injury wages is a question of fact and, as such, we may not disturb the WCJ’s finding on this issue absent manifest error.

Once the employee’s burden is met, the burden shifts to the employer who, in order to preclude an award of SEBs, must prove by a preponderance of the evidence that the employee is physically able to perform work that was offered to him or that was available in the employee’s or employer’s community or a reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal Works, Inc., 696 So.2d at 556.

An employer may discharge the burden of proving job availability by establishing, at a minimum, the following, by competent evidence: (1) the existence of a suitable job within |claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region; (2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and, (3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Id. at 557.

Here, the parties stipulated that claimant was employed by Cippriani’s Restaurant on the date of her injury, April 12, 1995. Claimant was injured in the course and scope of her employment. Her average weekly wage at the time of her injury was $125.08. TTD benefits were paid from the date of the accident until May 12, 1999, at the weekly rate of $83.35. The issues to be decided at trial were the nature and extent of claimant’s disability past May 12, 1999, and her entitlement to any further benefits.

A review of the testimony at trial indicates that a vocational rehabilitation counselor reviewed a report by claimant’s treating physician as to her physical limitations. The counselor then provided claimant with a fist of job opportunities within claimant’s capabilities. Claimant testified that she applied for many of these jobs, but to no avail. She was either told there were no openings or never got a response to her application. Claimant maintained that she could not perform any of the jobs anyway because she is in constant pain. Claimant testified she is in more pain now than before her surgical fusion in 1997.

The evidence supports the WCJ’s finding that claimant met her burden of proof that she could not return to work at her pre-injury wage. The WCJ further found that the defendants failed to meet their burden of proving that claimant is employable at ninety percent of her pre-injury wage based on a timing consideration. The counselor was unable to show that the job opportunities were still open at the time claimant’s treating physician signed-off on them. We find the evidence supports this conclusion. The WCJ stated that, in the future, the counselor should first get the physician to sign-off on certain types of jobs. Then, the counselor should ascertain | Rwhether certain particular jobs are open and available. At that time, a list of job openings should be provided to claimant. In light of the evidence presented in the record, we cannot say that the WCJ’s findings were manifestly erroneous or clearly wrong. Accordingly, we decline to disturb her ruling.

CONCLUSION

For the foregoing reasons, the decision of the workers’ compensation judge is affirmed. Costs of the appeal are assessed to defendants appellants.

AFFIRMED.

KLINE, J., concurs for reasons assigned.

1KLINE, J.,

Concurring.

I agree that under the particular facts the claimant is entitled to the additional benefits awarded. However, we should note that this case has redefined the role of the vocational rehabilitation expert in discharging the employer’s burden established in Banks v. Industrial Roofing and Sheet Metal Works, Inc. supra.


author: 2CLENDON, J.

text:
    SUCCESSION OF Betty Kinchen BANKSTON.
    No. 2002 CA 0548.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 9, 2003.

      Deborah M. Henson, New Orleans, Laurie Rolling Hagan, Metairie, Counsel for Appellant Jeannette Rose Kinchen Perry.
    Joseph H. Simpson, Amite, In Proper Person and Attorney for William Paul Simpson, Appellees.
    Before: FOIL, McCLENDON and KLINE , JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2CLENDON, J.

The issues raised on appeal in this succession case are whether the trial court erred in granting summary judgment on the issue of the reasonableness of a contingency fee contract and in denying summary judgment on the issue of the exces-siveness of the contract. For the following reasons, we reverse in part and affirm in part.

Betty Kinchen Bankston died on May 20, 2000. On July 6, 2000, on behalf of Elston Sidney Bankston, attorney Keith Rowe filed a petition to probate Betty Kinchen Bankston’s statutory will dated November 16, 1996. By order dated July 3, 2000, the trial court executed the will and appointed Elston Bankston the dative testamentary executor of the Succession of Betty Kinchen Bankston.

On August 2, 2000, attorney Joseph Simpson, on behalf of numerous other heirs, filed a petition to annul the statutory will, asserting that the signature of the deceased was forged and, alternatively, the testator signed with the aid of others or was of unsound mind when the testament was signed. He also asserted that the witnesses did not actually see the testatrix sign the will. By that pleading, he sought injunctive relief and the appointment of a new dative testamentary executor.

On September 11, 2000, a second group of heirs represented by another law firm filed a petition to annul the statutory will, asserting that the deceased did not sign the will and, alternatively, that the testator signed with the aid of others or was of unsound mind when the testament was signed. They also asserted that the witnesses did not actually see the testatrix sign |3the will. These heirs also sought injunctive relief and the appointment of a new dative testamentary executor.

Subsequently, Keith Rowe on behalf of Elston Bankston and numerous other heirs, including some represented by Joseph Simpson, filed a petition for possession, asserting the invalidity of the will and moving the court to place them in possession of the succession. The trial court rendered a judgment placing these heirs in possession that same day. The trial court also rendered judgment amending the judgment of possession to give the law firm of Simpson & Simpson an undivided one-third interest of the succession interest held by thirty-four of the heirs, including Jeanette Rose Kinchen Perry. Additionally, Rowe and Simpson filed a petition to pay debts and charges of the succession and to transfer funds of the succession.

On August 17, 2001, Jeanette Perry filed a petition to annul the amended judgment of possession and for the return of the legal fees set for the law firm of Simpson & Simpson by a contingency fee contract at one-third of the value of the succession. On September 21, 2001, Simpson and Simpson filed a motion for extension to file responsive pleadings. On September 26, 2001, Simpson and Simpson answered Perry’s petition.

On October 5, 2001, Simpson & Simpson filed a motion for summary judgment, seeking a determination that the contingency fee contract was enforceable and seeking the dismissal of Perry’s action. On November 14, 2001, Jeanette Perry responded by filing a motion for partial summary judgment, seeking a determination by the trial court that the amended judgment of possession was null pursuant to LSA-C.C.P. art.2004 and that the contingency fee contract violated Rule 1.5 of the Rules of Professional |4Conduct as it was unreasonably excessive. Therein, she asserted that the estate was valued in excess of $2,400,000, and the fee would, therefore, be approximately $600,000. On December 3, 2001, Simpson & Simpson filed a motion to substitute original affidavits for copies previously introduced which the trial court granted.

After hearing the cross-motions, the trial court granted partial summary judgment in favor of Jeanette Perry, declaring the amended judgment of possession to be null. However, the trial court denied Perry’s motion for summary judgment as to the excessiveness of the fee. The trial court also granted summary judgment in favor of Simpson & Simpson, finding the contingency fee contract enforceable. Perry appeals, contending the trial court erred in granting summary judgment in favor of Simpson & Simpson and in denying her motion for summary judgment on the issue of the excessiveness of the contingency fee contract.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, writs denied, 97-3055 and 97-3062 (La.2/13/98), 709 So.2d 753, 754. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the ease. Sandidge v. Sandidge, 2000-2157, p. 3 (La.App. 1 Cir. 12/28/01), 804 So.2d 912, 914.

After recognizing that the parties did not dispute the validity of the contingency fee contract, the trial judge determined that the contract was enforceable. The appellees assert that the court does not have the authority to review the reasonableness of a contingency fee contract once the contract is found to be valid. We reject this assertion. It is well settled that a prohibition against unreasonable attorney fees exists, and it cannot be abrogated by a valid contingency fee contract. Succession of Cloud, 530 So.2d 1146, 1150 (La.1988); Central Progressive Bank v. Bradley, 502 So.2d 1017, 1017 (La.1987); Northshore Ins. Agency, Inc. v. Farris, 634 So.2d 867, 871 (La.App. 1 Cir.1993). Irrespective of the contractual arrangement between the client and the attorney, the courts have the right to review these contracts to determine whether the fee is excessive. State of Louisiana, Through DOTD v. Williamson, 597 So.2d 439, 441 (La.1992). Specifically, under Rule 1.5(a) of the Rules of Professional Conduct, an attorney fee, whether contingent or otherwise, must be "reasonable." See Thibaut v. Smith & Loveless, Inc., 517 So.2d 222, 225 (La.App. 1 Cir.1987). Pursuant to Rule 1.5, factors to be considered in determining the reasonableness of a fee include:

(1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
|fi(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

An analysis of the factors pertinent to a determination of reasonableness is extremely fact intensive. At issue ultimately is the reasonable value of the services rendered and value received by the client. This is an inquiry that requires credibility determinations and the resolution of factual disputes. However, it is not the trial court’s function on a motion for summary judgment to determine or even inquire into the merits of the disputed factual issues that are presented. Lexington House v. Gleason, 98-1818, p.6 (La.App. 3 Cir. 3/31/99); 733 So.2d 123, 126, writ denied, 99-1290 (La.6/25/99), 746 So.2d 603. Issues of credibility have no place in summary judgment procedure. Carriere v. State, Dept. of Soc. Servs., 97-1305, p. 4 (La.App. 3 Cir. 3/6/98), 708 So.2d 822, 824, writ denied, 98-0958 (La.5/29/98), 720 So.2d 335.

Herein, the evidence before the trial court on the cross-motions for summary judgment sufficiently raises a disputed issue regarding the reasonableness of the fee charged by Simpson & Simpson. Therefore, we conclude that the trial court erred in granting summary judgment in favor of Simpson & Simpson and preventing a full evidentiary hearing on all issues.

Based on the entire record on the cross-motions for summary judgment, we are convinced that a very close analysis of the factors enumerated in Rule 1.5 of the Rules of Professional Conduct is required to determine the reasonableness of this fee. The record reflects that the services rendered by the Simpson firm required no more than thirty hours of work and consisted mainly of filing a petition to annul the will, hiring a |7handwriting expert who analyzed the will and reported that the signature might be a forgery, and communicating this finding to attorney Keith Rowe who represented Elston Bankston. Most of the work necessary to handle this ultimately uncontested, intestate succession was performed by attorney Keith Rowe. Furthermore, the Simpson law firm limited its risk, as a clause in the contingency fee contract provided that “[i]f the handwriting expert cannot testify that the will is a forgery, suit will be discontinued.” Yet, the fee sought under the contingency fee contract was one-third of an estate represented to be valued at more than $2,400,000.

We acknowledge that the trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Gulf Wide Towing v. F.E. Wright (U.K), 554 So.2d 1347, 1354 (La.App. 1 Cir.1989). We also recognize that great societal importance rests with the contingency fee contract as it promotes the distribution of needed legal services by making legal services available to those without means to afford legal representation and by reducing the risk of financial loss to clients. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 105 (La.1978). Furthermore, in assessing the reasonableness of a fee, limiting consideration to the attorney’s investment of time and skill, the importance of the case, and other readily identifiable factors, does an injustice to the attorney. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1978). Therefore, all factors set forth under Rule 1.5 must be considered.

For the foregoing reasons, the trial court’s grant of summary judgment in favor of Simpson & Simpson is reversed. In all other respects, the [¿judgment is af-r firmed. This case is remanded for further proceedings consistent with this opinion. Costs on appeal are assessed against Joseph Simpson and William Simpson.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . Subsequently, this petition was voluntarily dismissed pursuant to a motion filed by counsel for this group of heirs.

      . Keith Rowe was initially named as a defendant in this action; however, he was ultimately dismissed on joint motion of Rowe and Perry.

      . The fee received by Keith Rowe is not at issue.

      . It is undisputed that Simpson has already received more that $40,000 in attorney fees for assets already distributed.


author: 2KLINE, J.

text:
    Robert M. JOHNSON, Joseph J. Johnson, Jr. Husband of/and Mary H. Johnson v. THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF NEW ORLEANS; Sts. Peter and Paul Parish; Archbishop Frances B. Schulte; and Father Michael Fraser.
    No. 2002 CA 0429.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 9, 2003.

      Harry T. Widmann, Metairie, Counsel for Appellant Robert M. Johnson, Joseph J. Johnson, Jr., and Mary H. Johnson.
    Don M. Richard, Metairie, Counsel for Appellee Archdiocese of New Orleans, Sts. Peter/Paul Parish, and Archbishop Francis B. Schulte.
    Henry W. Kinney, Tara E. Clement, New Orleans, Counsel for Appellee Father Michael Fraser.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2KLINE, J.

This is an appeal from a judgment maintaining the defendants’ peremptory exception raising the objection of prescription. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

According to plaintiffs’ petition and appellate brief, Robert M. Johnson and his parents, Joseph and Mary Johnson, were members of Sts. Peter and Paul Church in Pearl River, Louisiana, in St. Tammany Parish. At the time of their membership, which had extended over several years, Father Michael Fraser was the priest officiating at the church. In the late spring or early summer of the year 1991, when Robert was seventeen years old, his parents were having family difficulties, which included disagreements between Robert and his parents. Father Fraser offered to advise and assist the Johnson family members during their difficult times. Father Fraser offered to take Robert out of his family home to spend time at Father Fraser’s home, owned by the church, because it would provide a cooling off period for the family. The petition alleges that Robert’s parents accepted the offer and allowed Robert to spend at least one night, with permission to possibly spend additional time, with Father Fraser at his home. While at Father Fraser’s home, Robert and his parents allege that Father Fraser sexually abused Robert. Robert was returned home the following morning.

On April 1, 1998, approximately seven years after the alleged incident, Robert and his parents filed suit against the Archdiocese of New Orleans and Sts. Peter and Paul Parish, Archbishop Francis B. Schulte, and Father Michael Fraser. On August 18, 1998, the Archdiocese and Sts. Peter and Paul Parish filed exceptions of prescription, no cause of action, and lack of subject matter jurisdiction. On August 27, 1998 Archbishop Schulte joined in these exceptions. Subsequently on November 9, 1998, Father Fraser filed exceptions of prescription and no cause of action. All of defendants’ exceptions were heard on October 29, 2001. On November 2, 2001, the trial court issued a judgment granting the exception of prescription and pretermitting the remaining exceptions.

IsThe basis for defendants’ exception of prescription was that Robert and his parents filed their suit more than one year after the alleged sexual assault occurred. The parties focused their arguments on the meaning of “caretaker” in La. C.C. art. 3469, to which art. 3496.1 specifically refers, in an attempt to determine whether plaintiffs could avail themselves of the three-year prescriptive period and of the subsequently enacted ten-year prescriptive period. The trial court, in oral reasons for judgment, determined that Father Fraser was not a caretaker legally obligated to care for Robert.

The plaintiffs assign as error:

1. The Trial Court erred as a matter of law by concluding that Michael Fraser was not a caretaker and thus the claim of Robert Johnson was untimely.
2. The Court below erred as a matter of law by finding that contra non valen-tum did not apply to the claims of Joseph and Mary Johnson for intentional infliction of emotional distress and breach of fiduciary duty.

LAW AND DISCUSSION

PRESCRIPTIVE PERIODS

Robert M. Johnson was born February 21, 1974 and attained majority on February 21, 1992. The alleged tort or injury took place in the late spring or early summer of 1991 when he was seventeen years old. Louisiana Civil Code articles 3492, 3467, and 3468 provide as follows:

Art. 3492. Delictual actions
Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage. Art. 3467. Persons against whom prescription runs
Prescription runs against all persons unless exception is established by legislation.
Art. 3468. Incompetents
Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.

| ¿The Legislature thus provided that a prescriptive period of one year is applicable and the action would have prescribed in the spring or early summer of 1992, unless there was a suspension of prescription and subsequent enactments which would allow the suit filed April 1, 1998 to be timely.

Louisiana Civil Code article 3469 did suspend prescription for certain classes of relationships including minors during their minority, to wit:

Art. 3469. Suspension of prescription
Prescription is suspended as between: the spouses during marriage, parents and children during minority, tutors and minors during tutorship, and curators and interdicts during interdiction, and caretakers and minors during minority.
A “caretaker” means a person legally obhgated to provide or secure adequate care for a child, including a tutor, guardian, or legal custodian.
Acts 1982, No. 187, § 1, eff. Jan. 1, 1983. Amended by Acts 1988, No. 676, § 1. (Emphasis supplied.)

At the time of the alleged sexual assault in 1991, La. C.C. art. 3496.1 provided as follows:

An action by a person against a parent or caretaker for the infliction of abuse during minority is subject to a liberative prescription of three years. This prescription commences to run from the day the person attains majority. (Emphasis supplied.)

Louisiana Civil Code article 3496.1 was amended by Act 322 of 1992, and provides a three-year prescriptive period for an action against a person for “abuse of a minor.”

An action against a person for abuse of a minor is subject to a liberative prescriptive period of three years. This prescription commences to run from the day the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches the age of majority. This prescriptive period shall be subject to any exception of preemption provided by law. (Emphasis supplied.)

In 1993, La. C.C. art. 3498.1 was enacted, effective June 25, 1993, to provide for a ten-year prescriptive period for an action against a person for “sexual abuse of a minor.” Louisiana Civil Code article 3498.1, redesignated as La. R.S. 9:2800.9 by the Louisiana State Law Institute, is also pertinent:

A. An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical | finjury or scarring, is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse has the same meaning as provided in Louisiana Children’s Code Article 603(1). This prescriptive period shall be subject to any exception of preemption provided by law. (Emphasis supplied.)

Defendants contend that, at the time of the alleged act of sexual abuse, the general liberative prescriptive period of one year was in effect. It was extended to three years by virtue of La. C.C. art. 3496.1, but only in the case of “an action by a person against a parent or caretaker for infliction of abuse during minority.” Defendants argue that Michael Fraser was not a caretaker of Robert on that given night and, as a result, Robert’s action was subject to a liberative prescriptive period of one year, and therefore was prescribed at the time of filing the instant action.

Plaintiffs contend that, within the framework of legislative enactments, the alleged tort of 1991 could still be viable under a 1998 filing because the tortfeasor was a caretaker and the three-year prescriptive period was applicable under La. C.C. art. 3496.1. Plaintiffs reason that the three-year period from attainment of majority had not run when the Legislature enacted, in 1993, by amendment to La. C.C. art. 3496.1, a ten-year prescriptive period for actions against persons for sexual abuse of a minor. The ten-year period would then be retroactive to causes of action that were not then prescribed.

To reiterate, the viability of this cause of action depends upon whether Father Fraser can be classified or determined to be a caretaker. If he were not a caretaker, the three-year period would not apply and the cause of action would have prescribed prior to the 1993 amendment.

| ¿CARETAKER STATUS

Louisiana Civil Code article 3469 affords us a definition of “caretaker” as “a person legally obligated to provide or secure adequate care for a child, including a tutor, guardian, or legal custodian.”

The trial court concluded that “Fraser does not meet the definition of a caretaker.... He has no legal obligation to care for the plaintiff, Robert Johnson, nor was he legally recognized as the plaintiffs tutor or guardian. Additionally, Father Fraser was not the plaintiffs legal custodian.” The trial court concluded that the definition of “caretaker” contemplates a type of permanency to the relationship, which did not exist in this situation.

It is the present task to examine the nature of the relationship between the minor and the alleged tortfeasor and, then, to determine whether a caretaker relationship existed as plaintiffs contend. In making that inquiry, we must be mindful not only of the legislative enactment of the definition in La. C.C. art. 3469, but also of the general rules of interpretation provided in the La. C.C. arts. 9-13. In accordance, we charge ourselves that the words of a law must be given their generally prevailing meaning and that when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. We must maintain the integrity of the “caretaker” concept and use caution in broadening a “caregiver” relationship into a “caretaker” relationship.

Society abhors the abuse of a minor by anyone, and more particularly by one in authority over a minor. In response to a social evil, it is acknowledged that the Legislature did, in 1993, extend the prescriptive period to ten years from the minor’s attainment of majority for the causes of action involving sexual abuse of minors and physical abuse resulting in permanent impairment. The Legislature has thus moved from one-year to three-year to ten-year prescriptive periods for certain abuses of a minor. Additionally, the classification of the authority has been expanded from “parent” to “parent or caretaker” to “a person.” There is a manifest legislative intent to consistently broaden the opportunities for minors to sue their abusers whenever and by whomever the abuse occurs. See L.V. v. Liberto, 612 So.2d 812, 814 n. 2 (La.App. 1 Cir.1992). In addition to the codal definition and rules of interpretation, we have afforded jurisprudential guidance relative to the definition of “caretaker” status.

This court expressed, in L.V. v. Liberto, 612 So.2d at 815 that the definition of “caretaker” cannot depend alone upon determining how one is legally obligated to the minor. It must also depend upon the nature of the relationship between the minor and the caretaker.

To reiterate, La. C.C. art. 3469 defines “caretaker” as a person legally obligated to provide adequate care for a child, including a tutor, guardian, or legal custodian. In seeking a definition of “caretaker”, this court in L.V. v. Liberto, 612 So.2d at 815, concluded that a grammatical reading of the entire sentence indicates that the “including” clause of La. C.C. art. 3469 is an illustrative list. The court, reciting the Civil Code articles on “Obligations in General,” further found that “legally obligated” was not necessarily confined to a court order. Louisiana Civil Code article 1756 states that an obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee.

We must inquire about the attributes of a “caretaker” relationship. The status of a “caretaker” necessarily entails an entrustment. It is the yielding of some responsibility and the accepting of that responsibility. That transfer of responsibility may be one legally mandated such as found in curatorships, tutorships, or foster-parent relationships, but there may be volunteer transfers that characterize the entrustment. A usual attribute of a “caretaker” relationship involves an obligation to provide sustenance or adequate shelter and care in a custodial setting for a period of time. The trial court, in denying a finding of caretaker status, was concerned not only about a lack of legal relationship, but also the fact that the definition of a “caretaker” contemplates a type of permanency to such a relationship. We are mindful that caretaker status is more encompassing than the relationship between a teacher or school and a child in a typical nonresidential setting. See L.V. v. Liberto, 612 So.2d at 815.

In this case, there was an entrustment to Father Fraser for the care of the minor for at least one night, and perhaps more, because of the difficulties in the parent's home. The length of the authorized stay may be in dispute, but it is undisputed that the day following the alleged abuse, the minor was returned to his parents. This entrustment was to be, not at catechism class, at the church proper, or in an educational setting, but in a custodial setting in the privacy of Father Fraser's home.

A significant concern is the temporal aspect of the entrustment in classifying the relationship between the minor and the alleged tortfeasor. Defendants contend that an overnight visit in the home of the alleged tortfeasor is contrary to a reasoned definition of “caretaker” status and would lead to absurd and undesirable social consequences.

However, the temporal aspect of the entrustment and the status of the parties should be examined together. It is apparent that there existed a special relationship among the minor, his parents, and their priest. The minor and his parents were in need, and their long-time spiritual advisor and confidant was one on whom they depended and relied. The temporal aspect of the overnight stay must be considered in light of a longer sustained trust and care undertaken by Father Fraser to this minor and his family. The shelter and food provided in this one night in privacy is only one important aspect of the relationship between the parties. Father Fraser’s spiritual guidance and care assumed the authority of the Church and Deity. It was the very reason for the entrustment, but it provided the custodial opportunity for the alleged abuse.

An authority figure and a concomitant dependency are significant factors found in “caretaker” relationships. If “caretaker” status requires an extended period of providing physical shelter and physical care, then Father Fraser is not a caretaker. If long-term relationship of providing emotional and spiritual guidance, which leads to an entrustment for a limited time of shelter and physical care, then we may consider Father Fraser as an obligor and a caretaker. It is not known whether the custodial entrustment would have been longer, but for, the alleged abusive incidents on the first night.

| ¡¡There is another aspect of this relationship that should be considered; the sustenance provided by Father Fraser for the spiritual life and emotional well being of this family has the real capacity to create a dependency. A rationale for the increase of a prescriptive period from one to three and then to ten years is that those who become dependent upon caretakers and others experience a reluctance to disclose the abuse inflicted by those on whom they are dependent.

In essence, then, there are significant compelling attributes of a “caretaker” status found in the relationship between Father Fraser and this minor. The spiritual nourishment and emotional care was not temporary, but spanned the years. It was an encompassing relationship that led to a custodial entrustment, for a limited time, at Father Fraser’s home, which afforded him temporary physical authority and responsibility as well. The nature of the relationship created for the minor a dependency upon an authority figure. To reiterate, it is this very kind of dependency that makes minors, who are abused, either reluctant or emotionally incapable of disclosing the abuse. The broadened interpretation of “caretakers,” the extension of the prescriptive periods, and the social purpose reflected in the legislation and jurisprudence are compatible with a finding that Father Fraser was a caretaker under the totality of these particular circumstances.

It is then concluded that Robert M. Johnson’s cause of action is not prescribed.

THE PARENTS CAUSE OF ACTION

The parents’ derivative claims of loss of consortium likewise have not prescribed. The remaining claims of the parents are remanded to the trial court for determination of the remaining exceptions and issues related thereto. This court will not preclude the applicability of contra non valen-tum prior to a determination of the facts.

^CONCLUSION

The judgment of the trial court granting defendants’ exception of prescription is reversed as it pertains to Robert Johnson, reversed as it pertains to the parents, and remanded for further proceedings. Costs of this appeal are assessed against Father Michael Fraser, Archbishop Schulte, and the Archdiocese of New Orleans, Sts. Peter and Paul Parish.

REVERSED AND REMANDED.

      . When law modifies duration of a prescription, either to lengthen it or shorten it, prescriptions already accrued are not disturbed by it, but those which are running are affected by the change. The Legislature is without the authority to revive a prescribed claim. See Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518, p. 14 (La.9/5/01), 795 So.2d 1153, 1164; Bouterie v. Crane, 616 So.2d 657, 664 n. 15 (La.1993); Hall v. Hall, 516 So.2d 119, 120 (La.1987).

      . This consideration of the totality of the relationship in this cause does not mean that ministers, priests, teachers, counselors, and advisors in their usual particular relationships with minors are to be deemed "caretakers,” nor does it mean that chaperons for an overnight social visit by minors are reasonably classified as "caretakers.”


author: 2McClendon, J.

text:
    Donald GONZALES v. JACOBS ENGINEERING GROUP, INC.
    No. 2002 CA 0507.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 9, 2003.

      Jack Patrick Harris, Baton Rouge, Counsel for Appellant Donald Gonzales.
    Kirk L. Landry, Baton Rouge, Counsel for Appellee Jacobs Engineering Group, Inc.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2McClendon, J.

This appeal arises from an action for workers’ compensation that was denied. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In March of 1997, Donald Gonzales, a mechanic’s helper, was working at the Pioneer Chemical plant in St. Gabriel, Louisiana, for J.E. Merit Constructors, a subsidiary of Jacobs Engineering Group, Inc. (hereinafter “employer”). Mr. Gonzales alleged that on Friday, March 21, 1997, he was summoned by his supervisor, Ronnie Little, to help some other workers lift the cover off of a conveyor belt located on the plant’s dock, alongside the Mississippi River. There was a crane that ran on a rail near the conveyor belt and as plaintiff positioned himself to lift the cover, other workers yelled at him that the crane was approaching his position. Immediately thereafter, plaintiff either fell or sat down on or near the approaching crane’s rail. A co-worker, Troy Johnson, pulled plaintiff out of harm’s way. No accident report was filed at the time by the employer.

On or about March 31, 1997, plaintiff was terminated from his employment. Ronnie Little testified that the company needed a mechanic rather than a mechanic’s helper for the position occupied by plaintiff and that plaintiff was fired for this reason.

Plaintiff sought medical treatment the Monday following his termination with his family physician, Dr. Caro, and thereafter with Dr. John Re'aux, complaining of a head injury, neck, back, and arm pain.

On May 20, 1997, plaintiff filed a claim for workers’ compensation with the Office of Workers’ Compensation Administration (hereinafter “OWC”). A hearing was held before an OWC judge on April 15, 1998, and |3the matter was taken under advisement. On July 7, 1999, while the case was under advisement, plaintiff filed a “Motion for Contradictory Hearing Pursuant to La R.S. 23:1310.8.” As the original OWC judge had been transferred to another district, a second OWC judge heard argument on this motion on July 23, 1999; a ruling was made that the matter should be referred to the original OWC judge, who had not yet rendered judgment on the original claim for compensation.

Judgment was signed on January 31, 2000 by the first OWC judge, denying plaintiffs claims. Plaintiff then appealed this judgment and on appeal asserts the following assignments of error:

(1) The [OWC] committed manifest error and was clearly wrong in failing to consider the contradictory motion filed by the claimant pursuant to La. R.S. 23:1013.8A(1) submitting the neuropsy-chological [evaluation of Dr. Wm. Drew Gouvier, establishing trauma induced brain injury.
(2) The [OWC] committed manifest error, and was clearly wrong in its finding, that claimant failed to prove that he was involved in an accident.
(3) The [OWC] committed manifest error, and was clearly wrong, in failing to award temporary total disability or, in the alternative, supplemental earnings benefits, inclusive of medical bills.

DISCUSSION AND ANALYSIS

Entitlement to Workers’ Compensation

An employee who receives personal injury by accident arising out of and in the course of his employment shall be paid compensation, if not otherwise eliminated from by the workers’ compensation provisions, by his employer in the amounts, on the conditions, and as designated by LSA-R.S. |423:1021 et seq. See LSA-R.S. 23:1031. “Accident” means “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 which is more than simply a gradual deterioration or progressive degeneration.” LSA-R.S. 23:1021(1) (emphasis added).

The employee who claims a right to collect workers’ compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Catchot v. RAMCO Construction, 2000-1922, pp. 2-3 (La.App. 1 Cir. 11/14/01), 818 So.2d 105, 107, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

In the instant case, the OWC judge found that Mr. Gonzales did not establish that he had suffered an injury as a result of the incident that occurred on March 21, 1997; his written reasons on this point were as follows:

Even if this Court had found that Gonzales had a work-related accident on March 21, 1997, which it specifically does not, the Court finds that Gonzales suffered no injury which was disabling. He finished the day and even worked one hour overtime without visible sign [or] symptom of injury. He denied to his supervisor and one other employee that he was hurt. He sought no medical treatment until after he was laid off. The only diagnostic testing ever done of his head in this whole proceeding was completely negative.

On appeal, the factual findings of an OWC judge are subject to the same standard of review as in other cases; i.e., a trial court’s finding of fact may not be set aside on appeal unless there is no reasonable factual basis for the finding and the finding is clearly wrong (manifestly erroneous). See Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35; McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. See also Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35, citing Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

At the trial of this matter, the plaintiff, Donald Gonzales testified that on the date in question, Friday, March 21, 1997, while going about his work duties around 8:30 a.m., he was asked by his supervisor to report to the “dock” to help lift a cover off a conveyor belt. Along -with other workers, Mr. Gonzales positioned himself near the conveyor cover, but when the order to lift was given, he stated that he did not lift, because someone had “hollered.” As he turned to see what the alarm was about, Mr. Gonzales stated that his body did a “45 degree pivot with [his] feet, and [he] turned the top part of [his] body.” It was then that Mr. Gonzales said he saw the crane counterweight, which he claims hit him in the head within a second and jerked his neck back. Mr. Gonzales further testified that he was immediately knocked off balance and felt like he was going to fall. He stated, “I did not resist the fall. I just went down ... in that position... .1 was scared [sic] to hit my head, so I remember with my left hand, hitting my hat to keep my hat on my head, and I hit the ground.” Mr. Gonzales testified that he was disoriented and felt himself being jerked clear of the crane. Although, plaintiff testified that the crane was “swinging” when it hit him, other | fiwitnesses testified that the crane was mechanically incapable of both “swinging” and moving (either forward or backward) simultaneously.

Mr. Gonzales reported that immediately after the incident, he went and sat down in the supervisor’s office, but no one came and asked him if he was injured. Later that morning, he was asked to work past his usual 11:00 a.m. quitting time. Mr. Gonzales said that he agreed to work longer, but told his supervisor that he was not going to order lunch because he was nauseated. Mr. Gonzales left work around 12:00 p.m. and testified that he developed a headache. Over the weekend, Mr. Gonzales was not scheduled to work; he testified that during this time his neck was stiff and that he could feel a lump on his lower neck “on the spine.”

Mr. Gonzales testified that when he returned to work the following Monday (March 24, 1997), his neck was “real stiff” and he felt tired and fearful. Mr. Gonzales said he attempted to talk to Ronnie Little about his injury when he went to work on Tuesday, but their conversation was interrupted by a telephone call to Mr. Little. Mr. Gonzales continued to work that week, and on Thursday, he testified that he attended a safety meeting, during which he asked Ronnie Little if they were going to discuss his accident or whether it was a secret. Mr. Gonzales testified that he was told that it had been taken care of. After being off work the next few days (Friday, Saturday, and Sunday), Mr. Gonzales returned to work on Monday (March 31, 1997) and was fired by Mr. Little, who told him they no longer needed his services. Mr. Gonzales stated his headaches were “still prevalent because [he] was still taking Tylenol to help [him.]” However, it was not until Monday (April 7, 1997), one week after his termination by the defendant/employer, that plaintiff sought treatment from his family 17physician, Dr. Caro. Later, on April 17, 1997, plaintiff was referred to Dr. John Re'aux, by his attorney.

Troy Johnson, one of plaintiffs co-workers, testified that he was on the dock with plaintiff on the day of the incident, and called out to plaintiff because the crane was moving toward plaintiff. Mr. Johnson testified that he saw plaintiff seemingly just sit down on the rail. When plaintiff did not appear to move out of the path of the approaching crane, Mr. Johnson stated that he grabbed plaintiffs arm and pulled him out of harm’s way. Mr. Johnson did not think that the crane hit plaintiff. Mr. Johnson recalled asking whether plaintiff was hurt, but never inquired as to what caused plaintiff to sit down on the rail. Although Mr. Johnson did not testify as to what plaintiff said immediately after the accident, Mr. Johnson did say that when he talked to plaintiff the next day, plaintiff did not indicate that he had been hurt.

Another of plaintiffs co-workers, Freddie Hebert, testified that plaintiff was his mechanic’s helper in the mechanic shop at the chemical plant. Although Mr. Hebert did not witness the incident on the dock, when plaintiff returned to the mechanic’s shop, Mr. Hebert testified that plaintiff exclaimed to him that he had almost been killed. Mr. Hebert stated that plaintiff related the incident to him as occurring when the crane “shov[ed] [plaintiff] down between the conveyor belt and the crane.” Plaintiff complained to Mr. Hebert that Mr. Johnson was the only one who had asked if he was hurt. Since plaintiff appeared to Mr. Hebert to be “in a shock” and preoccupied, Mr. Hebert testified that he gave plaintiff only light assignments over the next few days. On the Monday following the incident, Mr. Hebert asked plaintiff if he felt bad and needed to go home; plaintiff responded negatively and said he would work. Mr. Hebert further testified |sthat he observed that plaintiff continued to look worried and nervous pri- or to his termination, and that plaintiff had complained to him about his arm and neck being stiff.

Ronnie Little, plaintiffs supervisor, testified that he was present at the time of the incident, and saw plaintiff sit down on the rail as the crane approached his position. Mr. Little stated that he saw Mr. Johnson pull plaintiff to safety and heard Mr. Johnson ask plaintiff whether he was okay. Mr. Little said that plaintiff responded, “Yes.” It did not appear to Mr. Little that plaintiff had been struck by the crane; however, he admitted he could not be sure. Mr. Little also testified that plaintiff did not ask him for medical treatment, and that if he had, it would not have been denied.

Plaintiffs wife, Mrs. Viola Gonzales, testified that when plaintiff returned home from work on the day in question, he almost fell down getting out of his truck and that he was very pale. Plaintiff reported to her that he had almost been killed by a crane at work. He refused to go to the doctor, so Mrs. Gonzales gave plaintiff Tylenol for his headache. In the following days, Mrs. Gonzales reported that plaintiff complained to her of continuing headaches, pain in his arms and neck, numbness in his hands, and difficulty sleeping. Further, Mrs. Gonzales testified that plaintiff developed difficulty thinking and that she did not trust him to drive their children in a vehicle.

The deposition of Dr. John Re‘aux was admitted into evidence. Dr. Re'aux testified when plaintiff first visited him, he related that he received a frontal head impact by a crane, but that he was wearing a “helmet.” Dr. Re'aux listed ten different areas in which he found plaintiff was suffering symptoms: upper back pain between shoulder blades just below neck; pain in right and left upper extremities; neck pain; nightly arm pain with numbness in hands; middle back pain; lower back pain; headaches; digestive | fldisorders with loss of appetite, nausea and diarrhea; insomnia; and depression. Dr. Re'aux also found plaintiff was suffering from extreme nervousness, mental dullness, eye strain, and blurred vision. However, Dr. Re'aux admitted that he did not perform any diagnostic tests and that plaintiffs prior brain CAT scan, performed before plaintiff saw Dr. Re'aux, was essentially negative, other than showing mild sinusitis. Nevertheless, Dr. Re'aux testified that he found “objective” symptoms, but was able to relate only plaintiffs subjective reports of pain in that regard. Dr. Re'aux found plaintiff was disabled from employment because of his pain, but that at the time of trial, plaintiff had improved to an “intermediate zone” such that if he showed further improvement, “soon he might be able to — to do something.” Dr. Re'aux felt plaintiff should be evaluated by a neuropsychologist regarding his mental functioning, and noted that he had suffered adult onset of asthma, which is indicative of stress, and that plaintiff was on anxiety/depression medications, BuSpar and Prozac.

After a thorough evaluation of the record presented to this court on review, we are unable to say the OWC judge committed manifest error in finding that plaintiff did not suffer an injury as a result of the March 21,1997 incident. Plaintiff bore the burden of proving that he was injured in an “actual, identifiable, precipitous event” that “directly produced] at the time objective findings of an injury.” None of plaintiffs co-workers testified that plaintiff reported having suffered an injury 1 ^immediately after the accident. Plaintiff initially expressed concern only over nearly being killed and at only having been asked by one co-worker if he had been injured. None of plaintiffs co-workers testified that plaintiff reported to them that he was struck in the head by the crane. In fact, the two witnesses who testified and who witnessed the incident related that plaintiff denied being injured immediately after the incident. Of plaintiffs co-workers, only Freddie Hebert testified that plaintiff complained to him of his arm and neck being stiff, in days subsequent to the incident. Plaintiffs wife was the only witness who corroborated plaintiffs testimony that he experienced physical symptoms on the day of the accident.

Although plaintiff claims he asked his supervisor to be sent to “first aid” on several occasions, the supervisor denied such requests had been made. The trial court obviously placed great emphasis on the fact that plaintiff did not seek medical attention on his own until April 7, 1997, after the termination of his employment and some seventeen days after the alleged accident.

In this case, there are two permissible views of the evidence; i.e., either plaintiff suffered an injury as a result of the crane incident or he did not. The OWC judge found plaintiffs report of being struck in the head by the crane “implausible” and “not credible,” stating, “Claimant has failed to establish by a preponderance of the evidence that he was injured in an actual, identifiable event which directly produced at the time objective findings of an injury.” (Emphasis added.) Further, even if this court found that the lower court erred in failing to find that the act of being jerked from the conveyor belt was an actual, identifiable event, we are unable to say the OWC committed manifest error in finding that the second prong of this inquiry; i.e., which “directly pro-duc[ed] at the time objective findings of an injury,” had been met. The factfinder’s choice between two permissible views of the evidence cannot be manifestly erroneous; therefore, the Indecision of the OWC should be affirmed. Consequently, we conclude that plaintiff/appellant’s second and third assignments of error are without merit.

Denial of Motion to Submit Additional Evidence

In his remaining assignment of error, plaintiff/appellant contends the OWC judge erred in failing to consider the medical report of Dr. William Drew Gouvier, prepared and submitted after the matter was taken under advisement. In support of his argument, plaintiff cites LSA-R.S. 23:1310.8, which provides, in pertinent part, as follows:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123.... [Emphasis added.]

Because LSA-R.S. 23:1310.8 specifically governs continuing authority to modify former findings or orders, we do not believe it relevant to the instant case. When plaintiffs motion was filed in the OWC proceeding, the OWC judge had the case under advisement following the trial; no findings, orders, or judgments had as yet been rendered.

Looking at the substance of plaintiffs motion presented to the OWC, it is clear that plaintiff was attempting to submit additional evidence to the trier of fact following the conclusion of the trial. The admission of evidence before the OWC is governed by LSA-R.S. 23:1317, which provides, in pertinent part:

A. If an answer has been filed within the delays allowed by law or granted by the workers’ compensation judge, or if no | ^judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the workers’ compensation judge shall hear the evidence that may be presented by each party. Each party shall have the right to be present at any hearing or to appear through an attorney. The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

It is evident from LSA-R.S. 23:1317 that the OWC judge is bound to hear the evidence of the parties that is offered during the hearing of the matter or during any continuance of that hearing. However, the jurisprudence reveals that the admissibility of evidence sought to be submitted subsequent to the conclusion of the hearing of the matter is subject to the discretion of the OWC judge. In the case of Brooks v. Leggett & Platt, Inc., 94-0617, p. 4 (La.App. 1 Cir. 11/9/95), 665 So.2d 432, 434, the claimant was allowed to take a doctor’s deposition subsequent to the trial of the matter, which was thereafter admitted into evidence by the OWC judge. The employer assigned the admission of this deposition as error on appeal, and this court found that there had been no abuse of discretion by the OWC judge since the doctor had been scheduled to testify at the trial but was called to the hospital because of a family illness. In so holding, this court cited LSA-R.S. 23:1317 and recognized that the statute gives an OWC judge “great discretion in deciding whether to receive or refuse offered testimony of witnesses.” We further stated in Brooks that, “If an unfair advantage to one party or unfair prejudice to another party would be created by a hearing officer’s decision to hold open a record, it is possible 11sthat an abuse of discretion would be found.” Brooks v. Leggett & Platt, Inc., 94-0617 at pp. 3-4, 665 So.2d at 434.

In the case currently before this court, the plaintiff knew prior to the OWC trial that the report of a neuropsychologist was recommended by his treating physician, Dr. Re'aux, who so stated in his deposition taken on August 26, 1997, nearly eight months prior to the trial before the OWC. Plaintiff had ample opportunity to obtain an evaluation by a neuropsychol-ogist during that time. Further, no attempt to introduce this additional evidence was made until July 7, 1999, more than a year after the trial had taken place. Had this report been allowed into evidence at such a late date, it clearly would have been unfair prejudice to the other party. Under these circumstances, we find no abuse of discretion in the failure of the OWC judge to refuse to consider this additional evidence.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this proceeding are to be borne by plaintiffi'ap-pellant herein, Donald Gonzales.

AFFIRMED.

      . The issue of plaintiff's termination from his employment is not before this court.

      . By means of this motion, plaintiff sought to introduce the report of Dr. William Drew Gouvier, Ph.D., a neuropsychologist, on the issue of plaintiff’s injury.

      . Although not directly addressed, the judgment of the OWC judge implicitly rejects plaintiff's request to submit the additional evidence contained in Dr. Gouvier’s report. When a judgment is silent as to a claim or demand, it is presumed that the trier of fact denied the relief sought. Caro v. Caro, 95-0173, p. 7 (La.App. 1 Cir. 10/6/95), 671 So.2d 516, 520; Prevost v. Jobbers Oil Transport Company, 95-0224, p. 7 n. 3 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, 405 n. 3, writ denied, 96-0440 (La.4/8/96), 671 So.2d 336.

      . Mr. Gonzales admitted that he was wearing a hard hat at the time of the incident.

      . On cross-examination, Mr. Hebert admitted that he too had been fired shortly after plaintiff and that he was maintaining an action against the employer as well and was also represented by the same attorney as plaintiff.

      . In LeBlanc v. Cajun Painting, Inc., 94-1609, p. 9 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, 806, writs denied, 95-1655, 95-1706 (La.10/27/95), 661 So.2d 1349, 1350, this court explained that LSA-R.S. 23:1310.8 applies to the continuing jurisdiction of the OWC and "allows any party to apply for a modification when a change in conditions has occurred. This continuing jurisdiction appears similar to the continuing jurisdiction the trial court retains over child custody, child support, and alimony." This position is in accord with the views expressed herein. In order to seek modification, there must first be a former finding or order in place. No ruling had been made in the instant case at the time of plaintiff's motion.

      . We note that, even if considered, this report does not have significant evidentiary value bearing on the decisive issue for the trier of fact; i.e. whether plaintiff suffered an injury that produced objective findings at the time of the March 21, 1997 incident. Dr. Gouvier related in his report that plaintiff had suffered a head injury at the age of sixteen as a result of a car accident, after which he had been unconscious for two days. Although Dr. Gou-vier found at the time of his examination that plaintiff suffered from diminished left-hemisphere functioning, Dr. Gouvier indicated, "It cannot be stated with absolute certainty that the most recent accident resulted in [plaintiff’s] current left-hemisphere deficits.” Nevertheless, Dr. Gouvier went on to state that there was a high degree of probability the deficits were related to the current incident, based on plaintiff’s reports of symptoms following the incident that were not present prior to the incident. The trier of fact’s finding of a lack of credibility on the part of plaintiff would obviously influence his conclusion as to the value of Dr. Gouvier's report, since the doctor’s opinion hinges to a great degree on the historical account of the plaintiff. Thus, we do not believe the admission of this additional evidence would have changed the outcome of the OWC judge's factual findings.