author: JjPETERS, J.

text:
    Roger D. CLARK v. Beau C. McNABB and Shelter Mutual Insurance Company.
    No. 2004-0005.
    Court of Appeal of Louisiana, Third Circuit.
    May 19, 2004.

      John T. Bennett, Marksville, LA, for PlaintiffyAppellee, Roger D. Clark.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellant, Shelter Mutual Insurance Company.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   JjPETERS, J.

This litigation arises from a March 31, 2001 motor vehicle accident, wherein Beau C. McNabb totaled a 2000 Toyota Tacoma truck owned by Roger D. Clark and insured for property damage by Shelter Mutual Insurance Company (Shelter Mutual). Shelter Mutual now appeals a trial court judgment rendered against it, awarding Mr. Clark $12,855.00 in damages. For the following reasons, we affirm the trial court’s judgment.

Mr. Clark contacted Shelter Mutual concerning settlement of his property damage claim immediately after the accident. In anticipation of settling his claim, and in order to protect the salvage value, Mr. Clark stored the vehicle in his garage. On April 3, 2001, he consulted the National Automobile Dealers Association Official Used Car Guide (NADA Guide) and the Kelley Blue Book in an effort to determine the value of his Toyota at the time of the accident. These reference books established that, on March 31, 2001, a similarly equipped 2000 Toyota driven 23,000 miles had an actual cash value between $22,650.00 (NADA Guide) and $23,000.00 (Kelley Blue Book).

After receiving notice of the property damage claim, Kathy Boudreaux, a senior field adjuster for Shelter Mutual, went to Mr. Clark’s house and inspected the wrecked vehicle. Because the odometer was destroyed in the accident, she obtained the vehicle’s mileage estimate from Mr. Clark (21,500 miles). She then used CCC Information Services (CCC) to conduct a local market evaluation of the vehicle’s cash value. Based on the information provided by Ms. Boudreaux, CCC established the Toyota’s actual cash value at $20,600.00.

|aThe specific negotiation process that followed is disputed. Ms. Boudreaux testified that Mr. Clark rejected her offer of $19,600.00, and based on that rejection, Shelter Mutual unconditionally tendered $17,540.00. Ms. Boudreaux explained that this amount represented the CCC value less the deductible and less the salvage value. Soon thereafter, Shelter Mutual unconditionally tendered an additional $855.00. The sum of these two tenders, $18,395.00, represented the actual cash value of the vehicle less the deductible and salvage value. According to Ms. Bou-dreaux, Mr. Clark left Shelter Mutual with no other option because he refused to transfer the Toyota’s title to Shelter Mutual in exchange for payment of its salvage value.

Mr. Clark testified that he rejected Ms. Boudreaux’s offer as being too low, and he offered to settle the entire matter for $22,000.00, or the Kelley Blue Book value less the deductible. According to Mr. Clark, at no time did Shelter Mutual offer to settle the claim for the actual cash value of the vehicle less the deductible; and he never transferred the title because he was never paid the salvage value. On May 1, 2001, after deciding that any further attempt to settle the dispute would be unsuccessful, Mr. Clark instituted this suit.

At trial, Henry D. Smith, a Lena, Louisiana automobile salvage dealer, testified on behalf of Shelter Mutual concerning the salvage value of the Toyota. Mr. Smith, who was recognized by the trial court as an expert in evaluating vehicle damage, estimated the salvage value to be $3,350.00. Mr. Smith performed his evaluation in April of 2002.

At the conclusion of the trial, the trial court rendered judgment in favor of Mr. Clark. The total judgment represented an award of $3,355.00 as a balance due under Isthe policy for the property damage; $3,000.00 in general damages; $2,500.00 in statutory penalties; and $4,000.00 in attorney fees. The trial court also ordered Mr. Clark to transfer the title of the Toyota to Shelter Mutual and to allow Shelter Mutual to retrieve the salvage at his residence. Shelter Mutual timely appealed the judgment.

OPINION

Within days after the accident, Shelter Mutual had investigated the claim and determined that Mr. Clark’s 2000 Toyota Tacoma was a total loss. The record does not establish the date that Ms. Boudreaux inspected the vehicle, but all of the settlement negotiations occurred between that date and the day that Mr. Clark filed suit, May 1, 2001. Within that time period, Shelter Mutual unconditionally tendered $18,395.00, which represented the undisputed amount of the claim.

On appeal, Shelter Mutual argues that it could do no more toward settlement because Mr. Clark refused to transfer the title in exchange for payment of salvage value. In doing so, Shelter Mutual asserts that the trial court erred in determining that Mr. Clark had agreed to release the title. This is a factual determination made by the trial court and is subject to a manifest error analysis. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Ms. Boudreaux testified that she initially gave Mr. Clark the choice of accepting $19,600.00 in full settlement or accepting $17,540.00 and retaining the wrecked vehicle for its salvage value. She explained that she based the $2,060.00 salvage value assigned to Mr. Clark’s vehicle on a contract Shelter Mutual had with a Monroe, Louisiana salvage buyer, who purchased all of Shelter Mutual’s wrecked vehicles for ten percent of the actual cash value. She further explained that after Mr. Clark rejected this offer, Shelter Mutual unconditionally tendered $17,540.00, and |4later unconditionally tendered an additional $855.00. The second amount was tendered after her branch manager suggested that she attempt to find another vehicle in the area comparable to Mr. Clark’s vehicle. She increased the unconditional offer based on her additional research. However, Ms. Boudreaux acknowledged that after Mr. Clark rejected her initial offer, she made no further effort to settle the salvage. In other words, she simply responded as if the matter was completely settled.

Mr. Clark testified that he rejected the $19,600.00 offer and countered by offering to settle for $22,000.00 with Shelter Mutual taking the salvage. Although he did not transfer title to the salvage, at no time did he refuse to transfer the title to Shelter Mutual. Simply stated, he and Shelter Mutual never reached an agreement on its value. In fact, Mr. Clark testified that he made it clear to Shelter Mutual, through his conversations with Ms. Boudreaux, that he had no desire to retain the salvage and wanted that issue settled as well. Considering the record as a whole, we find no manifest error in the trial court’s conclusion that Mr. Clark had not refused to transfer title to the wrecked automobile in exchange for payment of its salvage value.

Shelter Mutual also asserts that the trial court erred “in failing to consider that Louisiana law does not require an insurance company to use exclusively the NANA Guide or Kelley Blue Book in estimating the actual cash value of a vehicle.” It further asserts that, assuming the proper use of the NADA Guide, the trial court erred in failing. to reduce the award for excessive mileage. We find no merit in either of these assertions.

Whether a NADA Guide or a Kelley Blue Book valuation is superior to another calculation is a question of fact that must be examined on a case-by-case basis. Although the Louisiana Supreme Court noted the “industry-wide” use of the NAPA Guide in State Farm Mut. Auto Ins. Co. v. Berthelot, 98-1011 (La.4/13/99), 732 So.2d 1230, this court, in Hayes v. Allstate Ins. Co., 99-1558 (La.App. 3 Cir. 3/1/00), 758 So.2d 900, writ denied, 00-1587 (La.8/31/00), 766 So.2d 1280, held that a trial court is not always required to use the NADA Guide value. This court also noted with interest:

La.R.S. 32:702(11), located within the Chapter entitled “Vehicle Certificate of Title Law” provides that “The term ‘total loss’ means a motor vehicle which has sustained damages equivalent to seventy-five percent or more of the market value as determined by the most current National Automobile Dealers Association Handbook.”

Id. at 904.

Additionally, other circuits have supported the contention that the valuation method used by the trial court is a question of fact. Bonner v. Louisiana Indem. Co., 607 So.2d 915 (La.App. 2 Cir.1992), (accepting a valuation made without using the NADA Guide); Brown v. Morgan, 449 So.2d 606 (La.App. 1 Cir.1984), (accepting a valuation higher than the NADA Guide); Usand v. New Orleans Pub. Serv., Inc., 438 So.2d 258 (La.App. 4 Cir.1983), (adjusting the value given by the NADA Guide).

We need not address the issue of whether the trial court is limited to the use of the NADA Guide, and because the trial court did not use the NADA Guide in its assessment, we find no merit in this assignment of error. In valuing the vehicle at $22,750.00, the trial court specifically stated that it placed the value “somewhere in between the NADA [Guide] value and the Kelley [Blue Book value].” Thus, the trial court did not limit itself to the NADA Guide and, instead, valued the vehicle based on its own assessment of the evidence presented.

|fiThe assignment addressing the excessive mileage issue arises from conflicting testimony concerning the mileage registered by the truck at the time of the accident. Because the odometer was destroyed in the accident, Mr. Clark estimated the vehicle’s mileage as 21,500 miles. Ms. Boudreaux related this mileage estimation to CCC for use in its valuation of the vehicle. However, Mr. Smith testified that when he examined the vehicle, he observed an oil change sticker that placed the next oil change at 31,000 miles. Considering that the oil should be changed every 3,000 miles, Mr. Smith concluded that, at the time of the accident, the vehicle had at least 28,000 miles on it.

Shelter Mutual asserts that even if the trial court were to use the NADA Guide, the reference book provides for a $175.00 deduction for this higher mileage. In its oral reasons for judgment, the trial court did not comment concerning the mileage issue and, considering that the trial court did not use the NADA Guide in valuing the vehicle, we find this assignment to be without merit.

Additionally, Shelter Mutual argues that the trial court erred in concluding that Mr. Clark was due any additional payment under its policy. In rejecting this argument, we note that the trial court calculated this additional payment totally on the evidence presented by Shelter Mutual. Ms. Boudreaux testified that the $18,395.00 unconditional tender represented the actual cash value of Mr. Clark’s Toyota less the $1,000.00 deductible and less the salvage value. Mr. Smith, Shelter Mutual’s own witness, testified that Mr. Clark’s Toyota had a salvage value of $3,350.00. The trial court simply added these three amounts to reach the actual cash value of the vehicle, |7$22,750.00. Shelter Mutual cannot be allowed to complain, when the judgment rendered against it is based on its own evidence.

Shelter Mutual also argues on appeal that Mr. Clark is not the owner of the wrecked vehicle and, therefore, cannot recover the salvage value. This issue arises from Mr. Clark’s effort to avoid paying sales taxes on a replacement vehicle.

On May 10, 2001, or less than two months after the accident and only nine days after filing suit, Mr. Clark negotiated the purchase of a new vehicle from All Star Toyota in Alexandria, Louisiana. As a part of the purchase, Mr. Clark executed the section on the back of the title to the wrecked 2000 Toyota entitled “ASSIGNMENT OF TITLE BY REGISTERED OWNER,” purporting to transfer the title to All Star Toyota. Contemporaneous with this action by Mr. Clark, a representative of All Star Toyota accepted the vehicle by signing the same section- as the buyer. Notably, on that same day and in another section on the title entitled “FIRST RE-ASSIGNMENT BY LICENSED DEALER,” the representative of All Star Toyota signed and purportedly transferred the vehicle to another entity described as “Shelter Ins. Co.” This purported transfer contains no corresponding appearance by the named buyer.

Shelter Mutual asserts that by transferring title to All Star Toyota, Mr. Clark ceased to be the owner of the wrecked Toyota and was no longer entitled to recover salvage value because he could not transfer title to Shelter Mutual. At trial, Mr. Clark explained that he assigned the title to All Star Toyota in order to save sales tax on a replacement vehicle, that both All Star Toyota and Shelter Mutual were aware of his intent, and that the dealership immediately assigned the vehicle back to Shelter | RMutuaI. According to Mr. Clark, the assignment did not occur until it was clear that he and Shelter Mutual could not reach an agreement and that he needed the replacement vehicle. The trial court obviously accepted this explanation as fact, and we find no manifest error in that determination. Rosell, 549 So.2d 840.

All Star Toyota is a party needed for a just adjudication of the proceedings as defined by La.Code Civ.P. art. 641(2)(b). Shelter Mutual could have raised this issue at the trial through a peremptory exception pursuant to La.Code Civ.P. art. 927(A)(3), but, instead, has only raised the exception in its brief on appeal. We decline to supply the exception on our own motion pursuant to La.Code Civ.P. art. 927(B), as Shelter Mutual’s rights are protected by the language of the judgment which provides in part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Roger Clark, release the title to the 2000 Toyota Tacoma to defendant, Shelter Mutual Insurance Company, and that defendant, Shelter Mutual Insurance Company, be allowed to retrieve the salvage at the plaintiffs residence, upon payment of the amount of $3,355.00 for vehicle damage (the court having determined that the actual cash value of the 2000 Toyota Tacoma being $22,750.00 less the deductible of $1,000.00 less the credit owed to Shelter Mutual Insurance Company in the amount of $18,395.00 for property damage payments already made), together with legal interest thereon from the date of judicial demand until paid.

The trial court clearly contemplated Mr. Clark transferring a valid title contemporaneous with Shelter Mutual’s payment of the balance due under the property damage provisions of the policy. Shelter Mutual is not obligated to pay that portion of the judgment unless, and until, Mr. Clark provides a clear title. Thus, we find no merit in this argument.

19Shelter Mutual also contends that the trial court erred in finding that it was arbitrary and capricious in adjusting the property damage claim and in awarding general damages, penalties, and attorney fees.

Louisiana Revised Statutes 22:1220(A) provides:

An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.

The statute governing the payment of a property damage claim on an automobile is La.R.S. 22:658, which provides in pertinent part that the insurer “shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proof of loss from the insured or any party in interest.” La.R.S. 22:658(A). When an insurer fails to pay the claim within thirty days, and when the failure to pay is found to be arbitrary and capricious, the insurer shall be subject to a penalty “of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater ... together with all reasonable attorney fees ... or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.”

Additionally, La.R.S. 22:1220(B)(5) includes as a breach of one of the duties of good faith and fair dealing the failure “to pay any amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.” Recoverable damages for violation of this duty. are set forth in La.R.S. |in22:1220(C), which provides in pertinent part that “[i]n addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.”

In the matter now before us, Shelter Mutual timely tendered a significant portion of the vehicle’s value, but failed to pay the salvage value within thirty or sixty days from receipt of satisfactory proof of loss. In concluding that Shelter Mutual was arbitrary and capricious in adjusting the claim, the trial court stated that Mr. Clark had immediately performed research on the value of the vehicle and, within a week after the accident, had provided Shelter Mutual with a “valid and credible estimate.” The trial court also concluded that Shelter Mutual’s actions thereafter constituted nothing more than an effort to reduce its costs at the expense of Mr. Clark.

In Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 5 (La.1/19/00), 753 So.2d 170, 173, the supreme court stated:

The determination that an insurer’s handling of a claim is arbitrary and capricious is a factual finding which may not be disturbed unless manifestly erroneous. Brinston v. Automotive Cas. Ins. Co., 96-1982 (La.App. 4 Cir. 12/3/97), 703 So.2d 813, 816; Marcel v. Allstate Ins. Co., 536 So.2d 632 (La.App. 1 Cir.1988), writ denied, 539 So.2d 631 (La.1989). We have described an insurer’s actions as “arbitrary and capricious” when its willful refusal of a claim is not based on a good faith defense, Louisiana Maintenance Servs., Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993), or is unreasonable or without probable cause, Darby v. Safeco Ins. Co., 545 So.2d 1022, 1029 (La.1989). However, where the insurer has legitimate doubts about coverage, the insurer has the right to litigate these questionable claims without being subjected to damages and penalties. Darby, supra. But, where an insurer is found to have acted arbitrarily, capriciously, or without probable cause, the insurer shall be liable for damages as a result of the breach, and may be liable for penalties not to exceed two times the damages or five thousand dollars, whichever is greater. La.R.S. 22:1220, subd. A and C.

InWe agree with the trial court’s finding that Shelter Mutual was arbitrary and ea-pricious in adjusting the claim. Shelter Mutual timely began the investigation of the loss and timely made a partial tender of $18,395.00. What Shelter Mutual did not do was timely complete the investigation of the loss.

As did the trial court, this court questions whether Shelter Mutual used CCC to properly adjust the claim or simply to reduce its exposure. Ms. Boudreaux suggested that Shelter Mutual used CCC because it investigated the “local market” as opposed to the national market research used by the NADA Guide. When compared to the NADA Guide values, CCC not only started with a base value less than the NADA Guide, but consistently used lower estimates of various optional equipment. It is highly questionable whether a Louisiana vehicle is worth so much less than similar vehicles within other states.

Additionally, Ms. Boudreaux’s testimony raises questions concerning her intent in adjusting this claim on behalf of Shelter Mutual. She noted that one of the vehicles used by CCC for its analysis had a list price of $22,250.00 but that the seller would “take” $20,000.00. Mr. Clark was entitled to the full value of his vehicle and was not required to take less. Additionally, when Mr. Clark expressed dissatisfaction with the original $17,540.00 offer, Ms. Boudreaux immediately found comparable vehicles which justified increasing the settlement offer by $855.00.

The most telling aspect of the adjustment process, establishing Shelter Mutual’s arbitrary and capricious actions, involves its evaluation of the salvage. | ¶ ^Initially, Ms. Boudreaux did not obtain a salvage value estimate. Rather, she relied on Shelter Mutual’s contract with the Monroe salvage yard and arbitrarily assigned a ten percent value to the salvage. Had she further investigated the claim by, immediately, obtaining an estimate from Mr. Smith, she would have had the amounts before her to negotiate in good faith. In fact, she would have satisfied Mr. Clark’s settlement request.

Concerning the award of penalties and attorney fees, the supreme court in Calogero, 753 So.2d 170, 174, explained:

We have previously recognized the close relationship between the conduct prohibited in La.R.S. 22:658, subd. A(l) and the conduct prohibited in La.R.S. 22:1220, subd. B(5). Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 192, n. 14. In fact, the conduct prohibited is virtually identical, i.e., failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious or without probable cause. The primary difference is that under La.R.S. 22:658, subd. A(l), the insurer must pay the claim within 30 days of receiving satisfactory proof of loss, rather than the longer 60-day period allowed under La.R.S. 22:1220, subd. B(5).
[UJnlike penalties under La.R.S. 22:1220, subd. C, penalties and attorney fees under La.R.S. 22:658, subd. B(l) are mandatory, rather than discretionary, where a breach of La.R.S. 22:658, subd. B(l) has occurred.

The supreme court went on to explain that “where La.R.S. 22:1220 provides the greater penalty, La.R.S. 22:1220 supercedes La. R.S. 22:658 such that [the plaintiff] cannot recover penalties under both statutes.” Id. However, because La.R.S. 22:1220 does not provide for attorney fees, the plaintiff is entitled to recover attorney fees under La.R.S. 22:658 for [defendant’s] arbitrary and capricious. behavior Id. While Mr. Clark was entitled to a larger penalty under La.R.S. 22:1220, he has not 113appealed or answered Shelter Mutual’s appeal seeking an increase in the award. Therefore, we affirm the trial court’s statutory penalty award of $2,500.00, and the award of attorney fees under La.R.S. 22:658.

Finally, we address the general damage award. In making this award, the trial court stated that this award would compensate Mr. Clark for the “anxiety and inconvenience” he suffered as a result of Shelter Mutual’s actions and for the storage costs associated with the vehicle remaining in his garage during the litigation. The trial court did not differentiate between the two elements of damages in its award. Shelter Mutual challenges the entire award, asserting that such damages are not available under the terms of its policy.

In the section governing property damage coverage, the Shelter Mutual policy provides:

We will pay for direct and accidental loss to the described auto caused by collision between it and another object or by its upset. But we will pay only for the amount of each loss above the deductible stated in the Declarations. You do not pay your deductible if the collision is with another auto insured by us, as we pay it.

Additionally, the policy imposes on Mr. Clark the duty to “[t]ake reasonable steps after loss to protect the vehicle and its equipment from further loss.” In exchange for its insured’s protection of the vehicle and its equipment, Shelter Mutual agrees to “pay reasonable expensefs] incurred in providing that protection.”

The policy provisions relied upon by Shelter Mutual are clearly applicable when the insurer is not arbitrary and capricious in adjusting the claim. Breach of the duty imposed by La.R.S. 22:1220(A) such that the insurer is found to be arbitrary and capricious renders the insurer “liable for any damages, foreseeable or not, that are a direct consequence of its failure to perform.” Williams v. Louisiana Indem. Co., 26,887, p. 3 (La.App. 2 Cir. 6/21/95), 658 So.2d 739, 742. There is no question that Mr. Clark suffered anxiety and mental anguish as well as inconvenience associated with his required storage of the wrecked vehicle. While he performed as required under the policy, Shelter Mutual failed in that regard. We find no abuse of discretion in the trial court’s award.

DISPOSITION

We affirm the trial court judgment in all respects. We assess all costs to Shelter Mutual Insurance Company.

AFFIRMED.

      . This offer was based on the CCC estimate less the deductible of $1,000.00.

      . The addition contains a $5.00 error. That is explained by the fact that the trial court, in its reasons for judgment, cited Mr. Smith’s estimate as $3,355.00 instead of $3,350.00.

      . We are not called upon to consider whether Mr. Clark violated the tax laws of this state by using the vehicle as an offset against the payment of sales taxes or whether Shelter Mutual is entitled to a credit for the sales tax saved as those issues are not properly before us.

      . Shelter Mutual does not assert that it did not receive satisfactory proof of loss.

      . The NADA Guide actual cash value base was $19,950.00 (which included air conditioning) while the CCC actual cash value base was $17,875.00 (which did not include air conditioning). Examples of other differences include the assignment by CCC of no value to the SR5 Trim Package ($550.00 by NADA Guide), a CCC $75.00 value to the TRD Off-Road Package ($700.00 by NADA Guide), and a CCC $100.00 value to the power windows ($175.00 by NADA Guide). Other optional equipment was similarly undervalued compared to the NADA Guide and Kelley Blue Book.

      . The sum. of the amount tendered ($18,-395.00), the deductible ($1,000.00), and the salvage value ($3,350.00) is $22,745.00. Mr. Clark testified that he would have settled the claim for $22,000.00 with Shelter Mutual taking the salvage.


source: Caselaw Access Project

author: | THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Richard McDANIEL v. Dana Maureen Vestal McDANIEL.
    No. 2003-1763.
    Court of Appeal of Louisiana, Third Circuit.
    May 19, 2004.

      Ralph W. Kennedy, Alexandria, LA, for Plaintiff/Appellant, Richard McDaniel.
    Kathy F. Meyers, Platte, LA, for Defendant/Appellee, Dana Maureen Vestal McDaniel.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD , Judges. .

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   | THIBODEAUX, Chief Judge.

In this child support case, Richard McDaniel (Richard), appeals the trial court’s finding that he is voluntarily underemployed. The trial court denied a motion to reduce his child support payments. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

Richard asserts that the trial court erred in failing to find that his former wife, Dana Maureen Vestal McDaniel (Dana), entered into a tacit agreement to reduce his child support obligation when she accepted less support than that to which she was entitled according to the original child support judgment. He further asserts that the trial court erred in finding that he was voluntarily underemployed and, therefore, not entitled to a judgment reducing the amount of his child support obligation.

II.

FACTS

Richard and Dana were married on December 26, 1992, in Evangeline Parish, Louisiana. Of that marriage, two children were born. The family moved to Houston, Texas where Richard, an electrician, was employed. They lived in Houston for several years until Dana moved with the children back to Evangeline Parish. In the meantime, Richard continued working in Houston, visiting with his family on weekends, his days off, and some holidays. In Houston he earned $17.00 per hour. His yearly salary ranged from $50,000.00 to $60,000.00. In July 2000, Dana filed a petition for divorce and, on December 14, 2000, she was granted a divorce. In connection with the divorce, the parties agreed that Richard would pay $1,000.00 per Lmonth for the support of their two minor children.

Richard lost his job in Houston and moved back to Evangeline Parish. He was able to find employment with Calpine, a subcontractor doing construction work for a California company, CLECO, in Eunice, where he earned $30.00 per hour. This was his employer when he made his last child support payment. The amount of his child support, $1,000.00 per month, was based on the $30.00 per hour wages he earned while working for Calpine and was agreed to by the parties by consent decree. In July 2002, Richard’s job with Calpine ended when he was laid off. On July 30, 2002, he filed a rule to decrease child support. Thereafter, his child support was reduced to $948.00 per month also by agreement with Dana.

By October 2002, Richard told Dana that he could not pay the $948.00 monthly child support and would reduce the amount to $500.00. Eventually, Richard went back to work for his former employer in Houston, but was laid off after three months. He presently works in Louisiana and earns $17.00 per hour in wages. Richard asserted that his wages are no different than the wages he earned working in Houston. He earned more money in Houston because he worked more hours there than he does in his Louisiana job.

Dana filed a rule for contempt against Richard because he unilaterally decreased the amount of child support payments to $500.00 due to his voluntary reduction in employment. Richard claims that by accepting the decreased amount of child support, Dana agreed to the reduction. He also countered Dana’s contempt rule by requesting that his child support be reduced due to the decrease in his income. The trial court found there was a change in Richard’s circumstances, but that it was voluntary. Consequently, the trial court denied Richard’s motion to reduce the child support amount, found him in contempt of court for decreasing the amount of child |3support, rendered judgment in favor of Dana for the arrearages resulting from the decrease, and ordered Richard to pay attorney fees. It is from this judgment that Richard appeals.

III.

LAW AND DISCUSSION

Louisiana Revised Statutes 9:311(A) provides:

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

Richard claims that his circumstances have changed because he no longer earns the $50,000.00 to $60,000.00 per year he earned when he worked for the company in Houston, Texas or when he worked for Calpine and earned $30.00 per hour. Dana claims that Richard’s earning capacity is higher than his present salary reflects and that he chose not to earn more money by declining employment that paid more money per year.

The trial court relied on La.R.S. 9:315.9 (2000) which provided as follows:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. The amount of the basic child support obligation ^obtained by use of this Section shall not exceed that amount which the party paying support would have owed had no determination of the other party’s earning income potential been made.

Louisiana Revised Statutes 9:315.9 was reenacted by Acts 2001, No. 1082, § 1 without its last paragraph as La.R.S. 9:315.11. Thus, the issue that the trial court faced was whether or not Richard’s reduction in salary is due to his voluntary underemployment. As we noted above, the trial court concluded that Richard was voluntarily underemployed. We agree.

Under La.R.S. 9:315, income includes potential income of a voluntarily unemployed or underemployed party. Thus, if a party is voluntarily unemployed or underemployed, child support must be based on a determination of his or her income earning potential. La.R.S. 9:315.11. Whether a party is voluntarily under/unemployed with respect to calculating child support is a question of good faith of the party to be cast with paying the child support obligation. Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175. If the obligor party is absolutely unemployable or incapable of being employed, or if the circumstances resulting in his under/unemployment arise through no fault of the obligor party, then that party is not deemed to be voluntarily under/unemployed. Id. The trial court, however, has wide discretion in determining the credibility of the witness; whether the obligor spouse is in good faith in ending or reducing his income is a factual determination which will not be disturbed absent an abuse of discretion. Havener v. Havener, 29,785 (La.App. 2 Cir. 08/20/97), 700 So.2d 533. Further, “[t]he trial court’s conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error.” Romans v. Romans, 01-587, p. 3 (La.App. 3 Cir. 10/31/01), 799 So.2d 810, 812. (citations omitted).

Considering the above principles in light of the facts elicited at the | shearing, we find no manifest error in the trial court’s determination that Richard is voluntarily underemployed. Richard testified that the hourly wages he earns working in Louisiana and for Zachary in Houston, Texas are the same. He explained that the reason he earned a higher yearly income working in Texas was because he worked more hours — ten to fifteen hours per day, sometimes seven days per week. He now works only forty hours per week and earns approximately $36,000.00 per year. During his marriage he managed to find employment that allowed him to earn fifty to sixty thousand dollars per year. Since he began working in Louisiana, he had the opportunity to return to Texas for his previous employer, Zachary, where his brother now works and has worked for approximately ten years. The job with Zachary would have allowed him to earn a higher yearly salary than his Louisiana job. However, Richard testified that he declined that job offer because he did not want to work the hours the Texas company required that would allow him to earn $50,000.00-$60,000.00 per year and because he needed to be in Louisiana to assist his disabled father. With respect to assisting his disabled father, Richard testified that his father can drive himself and only needs help doing outside yard work. Essentially Richard’s explanation is that he just does not want to work the hours necessary to earn more money. He does not claim that he is incapable of earning more money. We find no error in the trial court’s factual determinations regarding this issue or in its decision not to reduce the amount of Richard’s child support obligation based on his lower yearly salary.

Richard further asserts that regardless of his income potential, Dana agreed to the reduction of child support by accepting payment of $500.00 per month instead of the $948.00 he was required to pay. To support his position, Richard cites Pellerin v. Pellerin, 01-1877 (La.App. 4 Cir. 10/23/02), 832 So.2d 988, writ not considered, 02-2903 (La.2/7/03), 836 So.2d 83. In Pellerin, the trial court found that the mother tacitly agreed to a reduction in the child support obligation owed by the father. The parties obtained a 1996 consent judgment of child support to be paid by the father. Subsequently, the mother obtained a 1997 judgment of child support to which she was entitled even while that judgment was on appeal. The 1997 child support judgment was an increase in the amount the father was ordered to pay in 1996. However, the mother’s former counsel continually sought enforcement of the 1996 child support consent judgment. Thus, in Pellerin, the mother did more than merely accept the reduced child support obligation when she was entitled to receive more. She, through her attorney, actively sought enforcement of the child support judgment with the lower amount. Therefore, the court’s holding in Pellerin, that the mother agreed to a lower child support obligation by her acceptance of such is not dispositive of the issue presented in this case.

In the present case, Dana accepted the $500.00 child support payments although she was at least entitled to receive $948.00 per month. At the same time, she sought enforcement of the child support judgment awarding her the higher amount. The general rule in Louisiana is that an alimony or child support judgment remains in effect until it is modified or terminated by the court. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). “The law does not want to encourage those owing alimony or child support to become involved in ‘self-help’ by making their own determinations as to when they have satisfied their alimony or child support obligations by some method other than payment in accordance with the court order.” Mizell v. Mizell, 37,004, p. 7 (La.App. 2 Cir. 3/7/03), 839 So.2d 1222, 1227. (citations omitted). The only exception to this general rule is where the evidence shows that the parties have clearly agreed to waive or otherwise modify the |7court-ordered payments. Id. More importantly, mere acquiescence in the obligor’s failure to pay the full amount of support is not a waiver. Weldon v. Weldon, 98-1173 (La.App. 3 Cir. 2/3/99), 737 So.2d 812. Not only did Dana not acquiesce in Richard’s failure to pay the full amount to which she was entitled, she brought legal action to remedy the situation. Thus, the trial court’s judgment that Richard is in contempt of court for his failure to pay the full amount of his child support obligation is not erroneous.

Attorney Fees

In her reply brief to Richard’s appellate brief, Dana asks this court to award additional attorney fees to compensate her counsel for work done on the present appeal. However, she did not file an answer or a separate appeal requesting such relief. “Failure to file an answer pursuant to La.Code Civ.P. art. 2133 precludes this court from awarding additional attorney fees.” LaSalle v. LaSalle, 03-293, p. 3 (La.App. 3 Cir. 10/1/03), 856 So.2d 142, 144.

IV.

CONCLUSION

For the above reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against appellant, Richard McDaniel.

AFFIRMED.

      . The substance of La.R.S. 9:315.9 is now located in La.R.S. 9:315.11 applicable to actions concerning child support filed after August 15, 2001, and provides:
      If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.
      The original action for child support in the present case was filed in December 2000.


author: | ROLAND L. BELSOME, Judge.

text:
    Sheldon FLEMING v. LOUISIANA PSYCHIATRIC COMPANY, INC. d/b/a Depaul Hospital.
    Nos. 2003-CA-1761, 2003-CA-2157.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.
    Rehearing Denied Aug. 13, 2004.

      Sheldon Fleming, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Guy C. Curry, Rene’ A. Curry, Jr., Christoffer C. Friend, Terese M. Bennett, Curry & Friend, PLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   | ROLAND L. BELSOME, Judge.

This appeal arises out of a medical malpractice claim. The trial court granted a Motion for Summary Judgment in favor of the defendant, dismissing the plaintiffs action with prejudice. For the reasons assigned, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On December 23, 1997, plaintiff/appellant, Sheldon Fleming (“Fleming”), filed a medical malpractice complaint against defendant/appellee, University Healthcare System, L.C., d/b/a DePaul/Tulane Behavioral Health Center, f/k/a Louisiana Psychiatric Company, Inc., d/b/a Columbia DePaul Hospital (“DePaul”), for alleged medical malpractice stemming from Fleming’s hospitalization from December 4, 1996 thorough December 20,1996. Specifically, Fleming’s action maintained that he was held against his will at DePaul for sixteen (16) days.

On August 29, 2001, the Medical Review Panel convened and determined that the evidence did not support the conclusion that DePaul failed to meet the applicable standard of care as charged. The panel further found that DePaul’s conduct was not a factor in causing any injuries and related damages allegedly sustained by Fleming. The panel made the following findings:

121) The evidence showed adequate reasons for Fleming’s hospitalization;
2) Fleming had a history of mental illness;
3) Fleming was refusing to take his required medications; and
4) Both the physician’s emergency certificate and the coroner’s emergency . certificate describe sufficient reasons for an involuntary admission.

Fleming filed a Petition for Medical Malpractice on December 3, 2001. On February 4, 2002, DePaul filed a Motion for Summary Judgment, arguing that based on the record and on the affidavits submitted, no genuine issues of material fact existed. On May 12, 2003, the trial court granted DePaul’s Motion for Summary Judgment, dismissing Fleming’s action with prejudice. Fleming has filed this timely appeal in proper person.

ARGUMENT

There are no specific assignments of error presented in this appeal. Fleming argues, however, that he was brought to DePaul Hospital due to an illegal Request and Order for Protective Custody. Particularly, Fleming asserts that the two people responsible for the order being issued were his ex-wife and her companion. As to the allegations against DePaul, Fleming submits that: 1) DePaul took advantage of an opportunity to collect on his medicare insurance; 2) DePaul lied to him; 3) De-Paul did not post patient rights; and 4) the illegal detainment interrupted his life, and he was damaged thereby.

In opposition to this appeal, DePaul maintains that the evidence submitted to the trial court in support of the Motion for Summary Judgment clearly indicates that there was no deviation from the applicable standards of care, treatment and hospitalization rendered to Fleming. Specifically, DePaul contends that Fleming 13was properly admitted to the hospital by virtue of an Order for Protective Custody; he was then evaluated by two physicians, after which the appropriate Physician’s Emergency Certificate and Coroner’s Emergency Certificate were issued authorizing his admission for treatment; and, following a successful course of care and treatment, he was discharged within fifteen (15) days of admission by Emergency Certificate, as required by law.

In support of the Motion for Summary Judgment, DePaul submitted the following to the trial court:

1) Affidavit of Dudley M. Smith, Jr., M.D., psychiatrist on the medical review panel;
2) Medical Review Panel Opinion;
3) Affidavit of William J. Paradine, R.N., employed by DePaul. Attached to the affidavit are copies of all Patient Rights documents provided to Fleming;
4) Affidavit of Carolyn Wiley, L.C.S.W., employed by DePaul. Attached to the affidavit is a copy of the Patient Rights information posted at DePaul;
5) Affidavit of Gwen Doherty, R.H.I.A., employed by DePaul. Attached to the affidavit is the following:
a. Request and Order for Protective Custody;
b. Physician’s Emergency Certificate prepared by the examining psychiatrist, C.R. Freed, M.D.;
c. Flemings’ medical records while at DePaul.

LAW AND DISCUSSION

Appellate courts review a summary judgment de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is ^appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2).

Pursuant to La. C.C.P. art. 966, the initial burden of proof remains on the mover to show that no genuine issue of material fact exists. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Oakley v. Thebault, 96-0937 (La. App. 4 Cir. 11/13/96), 684 So.2d 488. If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La. App. 4 Cir. 9/10/97), 699 So.2d 895. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 967.

After a thorough review of the record, we find that DePaul’s Motion for Summary Judgment was well documented. We further find that Fleming failed to refute any of the evidence submitted in support of the Motion for Summary Judgment.

DePaul adhered to all legal requirements concerning a patient presented to the hospital pursuant to a Order for Protective Custody. Specifically, La. R.S. 28:51 required DePaul to receive Fleming. The statute states in pertinent part:

LA. The director of a treatment facility, subject to the availability of suitable accommodations, shall receive for observation, diagnosis, care, and treatment, any person whose admission is authorized under any of the procedures provided for in R.S. 28:52 through R.S. 28:54 [which includes R:S. 28:53.2- — an Order for Protective Custody] and R.S. 28:64. (Emphasis Supplied).

Within twelve hours of his admission, Fleming was examined by Psychiatrist, C.R. Freed, M.D. In connection with that examination, Dr. Freed prepared a Physician’s Emergency Certificate, wherein he indicated that Fleming was dangerous to himself and others, gravely disabled, and in need of immediate psychiatric treatment. La. R.S. 28:53, regarding admission by Emergency Certificate, provides in pertinent part, as follows:

A(l) A mentally ill person or a person suffering from substance abuse may be admitted and detained at a treatment facility for observation, diagnosis, and treatment for a period not to exceed fifteen days under an emergency certificate.
B(l) Any physician or psychologist may execute an emergency certificate only after an actual examination of a person alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate care and treatment in a treatment facility because the examining physician or psychologist determines the person to be dangerous to self or others or to be gravely disabled. Failure to conduct an examination prior to the execution of the certificate will be evidence of gross negligence. (3) ... The certificate shall be dated and executed under the penalty of perjury, but need not be notarized. The certificate shall be valid for seventy-two hours and shall be delivered to the director of the treatment facility where the person is to be further evaluated and treated.
F. An emergency certificate shall constitute legal authority to transport a patient to a treatment facility and shall permit the director of such treatment facility to detain the patient for diagnosis and treatment for a period not to exceed fifteen days ...
G(l) Upon admission of any person by emergency certificate to a treatment facility, the director of the treatment facility shall | ^immediately notify the coroner of the parish in which the treatment facility is located of the admission.... (2) Within seventy-two hours of admission, the person shall be independently examined by the coroner or his deputy who shall execute an emergency certificate, pursuant to Subsection B, which shall be a necessary precondition to the person’s continued confinement....
(5) If, from his examination, the coroner concludes that the person is not a proper subject for emergency admission, then the person shall not be further detained in the treatment facility and shall be discharged by the director forthwith.
I. Every patient admitted by emergency certificate shall be informed in writing at the time of his admission of the procedures of requesting release from the treatment facility, the availability of counsel, information about the mental health advocacy service, the rights enumerated in R.S. 28:171 and the rules and regulations applicable to or concerning his conduct while a patient in the treatment facility... .In addition, a copy of the information mentioned in this Subsection must be posted in any area where patients are confined and treated.

From a review of the record, we find no evidence of any violation of Fleming’s patient rights. According to the affidavit of Gwen Doherty, Fleming was informed in writing of the procedures for requesting release from the facility, the availability of counsel, and information about the mental health advocacy service. Ms. Doherty also attested to the fact that Fleming refused to read and/or sign the written documentation. The affidavit of Mary Jo Day indicates that all of the patient rights information was posted on the floor where Fleming was confined and receiving treatment. Nurse, William J. Paradine, further stated, by affidavit, that he personally provided Fleming with written documentation enumerating his rights as set forth in La. R.S. 28:171. The fact that Fleming was provided with a written explanation of his rights was further corroborated by the affidavit of Carolyn Wiley, LCSW.

|7It must be noted that the only evidence presented by Fleming to support the contention that he was not informed of his patient rights is the affidavit of Norman Dixon, Jr. (“Dixon”), a former employee of DePaul. Dixon, who is also a personal acquaintance of Fleming, states that he was assigned to be with Fleming some of the time that Fleming was a patient at DePaul; and during that time, there were no patient rights posted in the unit where Fleming was a patient. Dixon does indicate, however, that he advised Fleming to contact an attorney to inquire about his release from DePaul. Fleming has presented no other relevant evidence in opposition to this summary judgment.

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

1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... within the involved medical specialty; 2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and 3) that, as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. La. R.S. 9:2794(A). Pierre-Ancar v. Browne-McHardy Clinic, 00-2409 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, 348.

There are certain medical malpractice cases, such as the amputation of the wrong limb or leaving a sponge in the patient’s body, in which expert testimony is not necessary to establish a breach in the standard of care by a physician. Pfiffner v. Correa, 94-0992 (La.10/17/94) 643 So.2d 1228. However, the instant case does not involve an act of obvious negligence. Fleming offered no expert testimony to establish the applicable standard of care, whether that standard of care was 1 «breached, and whether that breach resulted in any injuries to Fleming. Edwards v. Raines, 35,284 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184, 1187. Accordingly, Fleming has failed to carry his requisite burden of proof.

After a de novo review of the record, we find that DePaul set forth ample evidence to satisfy their burden of proof for summary judgment. The documents presented in support of the motion clearly demonstrate that that there is no factual support for Fleming’s claim for medical malpractice. Moreover, we find that Fleming failed to produce any factual support sufficient to establish that he will be able to prove at trial the applicable standard of care, a breach thereof or causation. In these circumstances, summary judgment in favor of DePaul is appropriate.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of the Motion for Summary Judgment in favor of DePaul.

AFFIRMED.


author: | T SAUNDERS, Judge.

text:
    Darlene TURNER, et al. v. DR. X, et al.
    No. 04-0038.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 2004.

      William L. Goode, The Goode Law Firm, Lafayette, LA, for Defendant/Appellee Sera H. Russell, III.
    Margareta M. Lahme, Attorney at Law, Lafayette, LA, for Intervenor/Appellant Judith Zoble Gardner.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   | T SAUNDERS, Judge.

Intervenor, Judith Gardner, appeals the judgment of the trial court awarding her $4,300.00 in attorney fees. We affirm as amended.

FACTS

Darlene Turner contracted with interve-nor, Judith Gardner, formerly of the Glenn Armentor Law Corporation, to represent her in a medical malpractice action. Ms. Gardner was subsequently disbarred and could not continue to represent Ms. Turner. Ms. Gardner referred Ms. Turner to Mr. Sera Russell. Mr. Russell handled the malpractice claim until a settlement was reached and Ms. Turner dismissed her suit. As a result of the settlement of Ms. Turner’s claim, Mr. Russell collected a total of $160,000.00 in attorney fees based on a contingency fee agreement with Ms. Turner. During her handling of the action Ms. Gardner hired Dr. Harry Rein, M.D/ J.D., to help her with the case. On September 25, 1998, Dr. Rein filed a petition of intervention seeking attorney fees and expenses for his work on Ms. Turner’s case. A hearing was held on Dr. Rein’s intervention on August 16, 1999, and he was awarded $10,000.00 in attorney fees for his work on the malpractice claim. Following the resolution of Dr. Rein’s intervention, Ms. Gardner filed a petition of intervention seeking a portion of the attorney fees collected by Mr. Russell from Ms. Turner’s case.

Following Ms. Gardner’s intervention, Mr. Russell filed declinatory and peremptory exceptions arguing that Ms. Gardner’s petition for intervention was filed too late, as the attorney fees collected by him had been disbursed from his trust account to himself and Dr. Rein. The trial court granted Mr. Russell’s exceptions and dismissed Ms. Gardner’s petition for intervention. In Turner v. Dr. X, 01-292 (La.App. 3 Cir. 6/6/01), 787 So.2d 622, we reversed the trial court’s ruling and Rremanded the matter for a hearing on the merits.

A hearing on Ms. Gardner’s petition for intervention was held on January 31, 2002. The trial judge issued his ruling on the day of the hearing and signed a judgment based on that ruling on March 19, 2002. The trial court held that there was no agreement to a fifty-fifty split of attorney fees between the parties, but that Ms. Gardner was entitled to attorney fees on a quantum meruit basis. He awarded Ms. Gardner $5,000.00 in attorney fees, minus $700.00 advanced to Ms. Gardner by Mr. Russell for the work she performed on Ms. Turner’s case.

DISCUSSION

Ms. Gardner claims the trial court erred in failing to find that an agreement existed between herself and Mr. Russell to split the attorney fees from the Turner case fifty-fifty. She also contends that the trial court erred in failing to award damages based on the doctrine of detrimental reliance and in ordering her to pay one-quarter of the costs of trial. Ms. Gardner also argues that the trial court’s award of only $5,000.00 for attorney fees on a quantum meruit basis was an abuse of discretion.

The standard of review for courts of appeal is well established. In Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989), the supreme court stated:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Additionally, the supreme court has recognized the great discretion awarded a trial court’s findings of fact. In Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1111 (La.1990) (citations omitted), the court further noted:

^Louisiana's three-tiered court system allocates the fact finding function to the trial courts. Due to that allocation and the trial court’s opportunity to evaluate live witnesses or to evaluate a mixture of deposition and live testimony, great deference is accorded to the trial court’s factual findings. Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. Consequently, on appellate review the trial court’s reasonable factual findings, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed.

In its reasons for judgment the trial court expressly stated: “In considering the surrounding facts and the demeanor of the witnesses on the witness stand, I find that Mr. Russell’s testimony is credible and Ms. Gardner’s is not. Therefore, I find there was no contract.” This is precisely the type of credibility determination for which the factfinder is given such great discretion, and that cannot be overturned on appeal absent clear and manifest error. Following our review of the record, we find no such showing of manifest error in this case. Ms. Gardner offered no proof of the alleged agreement other than her own testimony, which was contradicted by Mr. Russell and Mr. Charles Brandt, the other two individuals allegedly participating in the fee splitting agreement. The trial court chose to credit the testimony of Mr. Russell and Mr. Brandt over the testimony of Ms. Gardner. We cannot say it was manifestly erroneous in doing so. We affirm the trial court’s finding that there was no agreement between the parties to split fees.

Despite its finding that there was no agreement to split fees, the trial court found that it was clear that Ms. Gardner did perform services for Ms. Turner, from which Ms. Turner benefitted, and for which Ms. Gardner is entitled to be compensated on a quantum meruit basis. The trial court noted that a number of factors are to be considered when determining a reasonable amount of compensation for an attorney’s work on a case, citing skill and experience, whether Ms. Gardner |4had ever handled a medical malpractice case, and whether the matter limited her from handling other cases. We note there are a number of other factors to consider in determining a reasonable amount to award Ms. Gardner for her work on this matter including the time and labor required, the difficulty of the issue, the skill required to perform the services, and the fee customarily charged for similar legal services, to name but a few.

It is clear from the record that Ms. Gardner spent a great deal of time meeting with Ms. Turner in preliminary interviews and consultations. Ms. Gardner also conducted the initial investigation of the matter, compiled extensive notes, performed a complete and thorough review of Ms. Turner’s medical records, and investigated the effects of the drug methotrexate prior to her disbarment and referral of the case to Mr. Russell. Following her referral of the matter to Mr. Russell, Ms. Gardner claims she continued to work on the case as a paralegal at the request of both Mr. Russell and Ms. Turner. Mr. Russell did not contest this claim at trial. Mr. Russell also did not dispute the validity of the affidavit submitted by Ms. Gardner indicating the number of hours she spent on the Turner case, both as an attorney and as a paralegal. In that affidavit Ms. Gardner states that she spent 151.1 hours working as an attorney on the Turner case with an hourly billing rate of $125.00, and 22.3 hours working as a paralegal with an hourly billing rate of $25.00.

The hourly rates quoted by Ms. Gardner are reasonable and, based on the work hours claimed by Ms. Gardner in her affidavit, she would be entitled to $19,445.00. Even taking into consideration her relative inexperience with medical malpractice actions, we find an award of $5,000.00 in attorney fees based on quantum meruit to be unreasonable and an abuse of the trial court’s discretion. Based on our review of |sthe record, the minimum reasonable attorney fee award for Ms. Gardner’s work on the Turner matter is $15,000.00. We amend the trial court’s judgment granting attorney fees to Ms. Gardner based on quantum meruit and award her $15,000.00.

Ms. Gardner also claims that the trial court’s assignment of one quarter of the trial costs to her was an abuse of discretion. The trial court has great discretion in awarding costs and may render a judgment for costs against any party in an amount it considers equitable. La. Code Civ.P. art.1920. We find no abuse of discretion in the trial court’s assignment of costs in this matter.

Finally, Ms. Gardner contends that she is entitled to damages based on the doctrine of detrimental reliance. She claims her restitution payments were based upon recovery of the fees in the three cases taken over by Mr. Russell and Mr. Brandt. She alleges that Mr. Russell refused to pay her the money she was owed in attorney fees from the Turner case, knowing that she would be imprisoned for failing to make her first restitution payment.

In Nicholas v. Allstate Ins. Co., 99-2522, p. 22 (La.8/31/00), 765 So.2d 1017, 1031, the supreme court reiterated the necessary requirements for a finding of detrimental reliance: “In Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 25, and cases cited therein, we recognized three elements required for the application of detrimental reliance: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance.”

Ms. Gardner simply cannot show detrimental reliance in this situation. Her restitution schedule was imposed by the court. Furthermore, she cannot show that she “changed her position to her detriment” based on any reliance from Mr. Russell that |fishe would receive attorney fees from the Turner matter. She was required to pay restitution as a result of her criminal conviction, and she would have had to pay restitution regardless of receiving money for her work on the Turner case. The trial court’s denial of damages based on the theory of detrimental reliance is affirmed.

DECREE

We affirm the trial court’s ruling that there was no agreement between Mr. Russell and Ms. Gardner to split the attorney fees obtained from the settlement of Ms. Turner’s case. We find the trial court’s award of $5,000.00 for attorney fees based on quantum meruit was an abuse of discretion and increase the award to $15,000.00, minus the $700.00 advanced to Ms. Gardner by Mr. Russell. All costs of this appeal are cast to Mr. Russell.

AFFIRMED AS AMENDED.


author: It SULLIVAN, Judge.

text:
    STATE of Louisiana v. Todd DURIO.
    No. 2003-1673.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 2004.

      Robert Richard Bryant, Jr., District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for State of Louisiana.
    Kenota Pulliam Johnson, Louisiana Appellate Project, Shreveport, LA, for Defendant/Appellant Todd Durio.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   It SULLIVAN, Judge.

Defendant, Todd Durio, pled guilty to operating a vehicle while intoxicated (OWI), third offense, in violation of La.R.S. 14:98. Defendant was sentenced to five years at hard labor, with all but thirty days suspended. The thirty days were imposed without benefit of parole, probation, or suspension of sentence, with credit for time served. Additionally, Defendant was sentenced to fifty-nine months of home incarceration, sixty hours of community service, as well as a fine of $2,000, plus court costs, with various other conditions. At the time of the guilty plea, Defendant reserved his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s denial of a motion to quash one of the predicate offenses. It is from this ruling that Defendant now appeals.

Facts

Defendant was arrested on March 27, 2002, after he lost control of his vehicle and drove into a ditch on Paul White Road in Calcasieu Parish. He pled guilty to OWI, third offense.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent and that the minutes of sentencing require correction.

First, the trial court ordered Defendant to pay a $2,000 fine, plus court costs, as a condition of probation pursuant to a “payout schedule that will be overseen by [Defendant’s] probation officer.” However, the record does not indicate that the trial court ever established a payment schedule to be overseen by the probation officer. Thus, we find that the trial court erred in failing to establish a payment plan for the fine and costs payable as a condition of probation. See State v. Reynolds, 99-1847 La.App. 3 Cir. 6/7/00), 772 So.2d 128, and State v. Fontenot, 01-540 (La. App. 3 Cir. 11/7/01), 799 So.2d 1255. Accordingly, we will remand the case with instructions that the trial court establish a payment plan for the fine and costs ordered as a condition of probation.

Second, the trial court ordered Defendant to pay a one-time fee of $250 to the “Traumatic Head Injury Fund” pursuant to La.R.S. 46:2633, which provides in part:

A. There is hereby established a special fund in the state treasury to be known as the Traumatic Head and Spinal Cord Injury Trust Fund which shall consist of monies collected from an additional fee imposed on all motor vehicle violations for driving under the influence, reckless operation, and speeding in this state. In addition, the legislature may make annual appropriations to the trust fund for the purpose set forth in this Chapter to the extent that state general funds are available.
B. (l)(a) Beginning January 1, 1994, in addition to all fines, fees, costs, and punishment prescribed by law, there shall be imposed an additional fee of twenty-five dollars on driving under the influence offenses, five dollars on reckless driving operation offenses, and five dollars on speeding offenses.
(b) Beginning July 1, 2000, the additional fees imposed pursuant to Subpar-agraph (a) of this Paragraph shall be as follows:
(v) A fee of one hundred dollars on third convictions of operating a vehicle while intoxicated offenses.
(vi) A fee of two hundred fifty dollars on fourth or subsequent convictions of operating a vehicle while intoxicated offenses.

Although Defendant was originally charged with OWI, fourth offense, the bill was amended to OWI, third offense. Defendant pled guilty to OWI, third offense. Given that La.R.S. 46:2633(B)(l)(b)(v) provides for a fee of $100 for a third offense conviction, we find that the trial court erred in ordering Defendant to pay $250. Since the statute offers no discretion as to the amount assessed, we will amend the assessed fee to $100.

IsFinally, we find that the minutes of sentencing need correcting. The minutes indicate that the trial court gave Defendant credit for time served since March 27, 2003. The transcript of sentencing, however, indicates that the trial court gave Defendant credit for time served since the date of his arrest, March 27, 2002. Since the transcript prevails, the trial court is instructed on remand to amend the minutes to conform with the transcript.

Assignment of Error

In his sole assignment of error, Defendant argues that the trial court erred in denying his motion to quash the use of a 1996 OWI conviction in St. Landry Parish as a predicate offense to his current OWI, third offense, conviction.

Defendant argues that the State failed to prove that the plea of guilty to the St. Landry Parish charge was made knowingly, intelligently, and voluntarily because he was not represented by counsel on the day he pled guilty to the offense. For this reason, Defendant asserts that the St. Landry Parish judge had a heightened responsibility to determine whether he understood the rights he was relinquishing when he waived the right to counsel before the court accepted his guilty plea.

In the present case, Defendant was originally charged with OWI, fourth offense, and careless operation of a vehicle. The State alleged that Defendant had three prior OWI convictions: one in Calcasieu Parish on August 3, 1995; one in Karnes City, Texas, on October 3, 1995; and one in St. Landry Parish on February 29,1996. Defendant moved to quash the Texas conviction and the St. Landry Parish conviction, although he admitted to the conviction in Calcasieu Parish. At the hearing on the motion to quash, the State conceded that it could not sufficiently establish the Texas conviction as a predicate offense, and the trial court denied the Lmotion as to the St. Landry Parish conviction. Following the hearing, the State amended the bill of information to delete the Texas predicate offense, charging Defendant with OWI, third offense, to which Defendant entered a Crosby plea of guilty on September 3, 2003.

Regarding the St. Landry Parish guilty plea, Defendant contends that his court-appointed attorney failed to appear in court and that the trial court accepted his guilty plea without determining his ‘literacy, competency, understanding and volition” and without inquiring about his “age, education, work history, or background.”

In State v. Strain, 585 So.2d 540, 542-44 (La.1991) (citations omitted) (footnotes omitted) (emphasis added), the supreme court stated:

The right to counsel may be waived, but the accused must know of the right and intentionally relinquish the right. Waiver of the right to counsel, in order to be valid, must be made knowingly, understandingly and intelligently. A defendant may waive his right to counsel “if he knows what he is doing and his choice is made with eyes open”.
... The principal function of a lawyer for an accused who desires to plead guilty is to assist him in deciding whether to go to trial, and the judge who accepts an uncounseled guilty plea must satisfy himself that the accused knows and understands that by his waiver of counsel he is giving up his right to this assistance. The critical issue on review of the waiver is whether the accused understood the waiver. What the accused understood is determined in terms of the entire record and not just by certain magic words used by the judge.
When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial judge should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The judge should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include the age, education, experience, background, competency and conduct of the accused, as well as the nature, complexity and seriousness of the charge. The nature of the self-representation to be undertaken is also significant, since a layman obviously can more easily understand from a brief explanation by the judge the significance of a guilty plea than he can the significance of |sdefending himself in a felony trial, with the latent dangers and pitfalls attendant thereto. Determining the defendant’s understanding of his waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial.

The record of the St. Landry Parish guilty plea indicates that Defendant was represented by counsel, but for an unknown reason, his attorney did not appear for the hearing. The following colloquy took place after the trial court was informed that Defendant’s counsel was not present:

THE COURT: Mr. Bourgeois had initially been appointed to represent the defendant in this matter. Mr. Durio, I am assuming that you want to proceed this morning even though Mr. Bourgeois is not available, is that correct sir?
MR. DURIO: Yes, Your Honor.
THE COURT: Mr. Durio, basically as I appreciate it what you’re here to do this morning is to presumably enter a plea to the Bill that has been filed by the District Attorney charging you with First Offense DWI. Do you understand that?
MR. DURIO: Yes, sir.
THE COURT: All right. And basically I inquired of you earlier, indicating that Mr. Bourgeois had previously been appointed by the Court to represent you in this matter, and that he’s not available at this time and that you’re waiving his assistance, is that correct?
MR. DURIO: Yes, sir.
THE COURT: Okay. In addition, what I need to do — I’m going to go over a couple of things with you, but because the — particularly because the attorney is not here, I’m obligated to kind of basically advise you of your rights. And so, I am going to spend just a couple of minutes doing that this morning and if you don’t understand anything at all that I tell you I need for you to stop me. Okay?
MR. DURIO: Yes, sir.
InTHE COURT: All right basically I want you to understand first of all, that you do not have to enter a plea of guilty today. You have a right to go to trial on the matter, and should you elect to go to trial then there are other rights that flow therefrom. For example, I would require Mr. Bourgeois to continue to represent you in this matter, so you would have the representation of an attorney if you went to trial. Also, if you went to trial you would be entitled to rely upon the presumption granted to you by the law of innocence, which means that you could require the State to prove their case against you. You could not — you would not be forced to take the stand, although you could take the stand and testify if you so desired. You don’t even have to call witnesses, you can simply make ... the State prove their case should you go to trial. Also if you went to trial you would be entitled to, either you or your attorney, to traverse or to cross examine the witnesses submitted by the State and you would also be entitled to call your own witnesses, and if you can’t get them here then the Court can subpoena them for you. Do you understand that these are some of the rights that you have if you went to trial?
MR. DURIO: Yes, sir.
THE COURT: Okay. And do you also understand that by entering a plea of guilty today you are going to be waiving your right to a trial, and you are also going to be waiving all of these rights that I just discussed with you?
MR. DURIO: Yes, sir.
THE COURT: I also need for you to understand that you need to be made aware of the fact that there are certain types of offenses that can stack up against an individual, and DWI is one of those offenses. There’s first offense DWI, second, third, and fourth offense, and you can reach the point to where you get enough of these DWI offenses stacked up against you to where it becomes a felony. Do you understand that?
MR. DURIO: Yes, sir.
THE COURT: And of course if you reach the point to where the number of times that you are charged with DWI reaches the felony stage, then in that case, then of course you would be entitled to a trial by jury. Do you understand that?
MR. DURIO: Yes, sir.
THE COURT: Okay. Do you — at this time considering what I’ve told you, do you still wish to go ahead and enter your — the plea that you have considered entering today?
|7MR. DURIO: Yes, sir.
THE COURT: All right. With that in mind, ... the Court is satisfied that the defendant is entering into his plea freely and with full knowledge of what he is doing. I’m going to read the Bill of Information and after I’ve read it I’ll ask you how do you wish to plead, guilty or not guilty.

Defendant also signed a waiver of rights form that stated: “I am not represented by an attorney in this case, and I’ve been informed of my rights to representation and free representation if I am indigent, and I hereby expressly waive or give up my right to representation by an attorney in this case.”

In his appellate brief, Defendant cites State v. Sammon, 582 So.2d 360 (La.App. 2 Cir.1991), in support of his position that the trial court failed to make an appropriate inquiry into whether he knowingly and intelligently waived his right to counsel. However, we find Sammon distinguishable because in that case “[njeither these minutes nor any other evidence in this record indicate that [the defendant] was represented by counsel at trial, advised of his right to counsel or waived that right.” Id. at 363. Thus, the issue in Sammon was whether the defendant was advised of his rights, not whether his responses indicated that he understood his right to waive representation.

In the present case, Defendant pled guilty in St. Landry Parish to OWI, first offense, a misdemeanor, and had been represented by counsel until the day of the plea. The issue is whether Defendant understood the rights that he was relinquishing when he waived his right to counsel in the plea colloquy. As noted above, the standard of inquiry depends on the circumstances of the case and the stage of the proceedings. As the second circuit concluded in State v. Snider, 30,568, p. 4 (La.App. 2 Cir. 10/21/97), 707 So.2d 1262, 1264, writ denied, 97-3025 (La.2/13/98), 709 So.2d 748, the phrase “on the record” as used by the supreme court in Strain, 585 So.2d 540, “means ‘in’ the entire record” (not just in the plea colloquy) in determining whether the defendant knowingly and intelligently waived his right to counsel.

In State v. Theriot, 00-870 (La.App. 5 Cir. 1/30/01), 782 So.2d 1078, the fifth circuit found that the record supported a knowing and intelligent waiver, even though the trial court did not inquire into the defendant’s background and competency. The court stated:

The circumstances surrounding the instant predicate plea are similar to the facts of State v. Barron, 32-960 (La.App. 2 Cir. 4/5/00), 758 So.2d 965, 967-968 since in Barron, the trial judge did not specifically inquire into defendant’s literacy and competency in accepting an uncounselled DWI plea. Nevertheless, the court found a review of the transcript as a whole showed that the waiver of counsel was free and voluntary. Similar to Barron, Defendant in the instant case was advised by the court of his Boykin rights; Defendant, although not specifically informed of the right to counsel in the colloquy, nevertheless acknowledged his right to counsel on the waiver form; the trial judge asked whether any threats had been made; and the waiver form further recited Defendant’s acknowledgment that no promises had been made. As in Barron, Defendant herein did not ask questions or express hesitation during the colloquy. Further, Defendant acknowledged on the waiver form he had no further questions, and in the colloquy he understood the Boykin waiver.

Id. at 1083 (emphasis added).

At the time of the St. Landry Parish guilty plea, Defendant had already pled guilty to two prior charges of operating a vehicle while intoxicated, indicating that he was familiar with the procedure. The record shows that Defendant chose not to be represented by counsel when he pled guilty in Karnes City, Texas. The record of the 1995 Calcasieu Parish guilty plea indicates that Defendant was represented by counsel and that the Calcasieu Parish district court judge did inquire into his age and 13education. See State v. Potts, 32,252, p. 4 (La.App. 2 Cir. 8/18/99), 747 So.2d 106, 109, where the court concluded that the defendant’s prior conviction for OWI supported the State’s contention that “the defendant was aware of court procedures and the consequences of pleading guilty” when he entered the plea at issue there.

Additionally, the record of the St. Landry Parish District Court indicates that Defendant was initially represented by counsel for three offenses in that parish: OWI, second offense; driving with a suspended license; and improper lane usage. Defendant was then billed the day before the guilty plea with OWI and driving with a suspended license. However, Defendant pled guilty to only OWI, first offense. Therefore, it appears from the record that the State conferred with either Defendant or his counsel prior to the plea.

The St. Landry Parish district court judge advised Defendant that he did not have to enter a plea on that day since counsel was not available. On three separate occasions, the judge in St. Landry Parish asked Defendant if he desired to proceed even though his counsel was not present. Defendant answered each time, ‘Tes, sir.” As the colloquy demonstrates, the trial court then proceeded to thoroughly advise Defendant of the rights he was giving up by pleading guilty, including that the offense could be used as an enhancement at a later time.

Furthermore, it appears from the record that the hearing was scheduled primarily so that Defendant could enter a guilty plea and be sentenced. Finally, either before or after the hearing, Defendant signed a waiver indicating that he understood the rights he was giving up by pleading guilty and that he waived his right to counsel. It could be inferred, from the totality of the circumstances at the time of the St. |inLandry Parish plea, that Defendant was acting with advice of counsel and knew the offense to which he pled as well as the rights that he gave up.

In State v. Stevison, 97-3122, p. 1 (La.10/30/98), 721 So.2d 843, 844, the supreme court affirmed the validity of a predicate offense, finding that “the totality of the circumstances surrounding the 1994 guilty plea demonstrate[d] a valid waiver of the defendant’s right to counsel.” In Stevison, the defendant was not represented by counsel, and when he expressed hesitation, the trial court asked a defense attorney present in the court room to advise him. After discussing the matter with the attorney, the defendant informed the court that he wished to waive counsel and handed the court a signed plea of guilty form and waiver of constitutional rights. The trial court then accepted the defendant’s plea without further inquiry into whether he had the capacity to waive his right to counsel. The supreme court stated:

Although Strain observed that “[f]actors bearing on the validity of [the waiver] include the age, education, experience, background, competency and conduct of the accused,” id., 585 So.2d at 543, we did not thereby establish inflexible criteria or a magic word formula for determining the voluntariness of a waiver. The inquiry into the validity of the accused’s waiver of counsel must take into account the totality of the circumstances in each case.

Id. at 844-45 (emphasis added).

Upon review of the record, we find that the totality of the circumstances indicates that Defendant knowingly and intelligently waived his right to counsel when he pled guilty to the offense in St. Landry Parish on February 29, 1996. In addition to the advice given by the judge in the colloquy and the acknowledgments on the waiver of rights form, the record shows that Defendant was represented by counsel through some of the proceedings in St. Landry Parish and that, at the time of that plea, Defendant was familiar with the procedure, as he had entered two previous OWI lnpleas, one of which was entered with counsel present. The Defendant’s two pri- or pleas and the fact that he was represented by counsel at some point in the proceedings distinguish this case from State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, in which we disallowed for enhancement the first of two predicate offenses in which the defendant was apparently never represented by counsel. Finding no error in the denial of the motion to quash the St. Landry Parish predicate offense, we affirm Defendant’s conviction of OWI, third offense.

Decree

For the above reasons, Defendant’s conviction for OWI, third offense, is affirmed. However, the case is remanded with instructions that the trial court establish a payment plan for the fine and costs ordered as a condition of probation. On remand, the trial court should also order that the minutes of sentencing be amended to correctly reflect that Defendant is to receive credit for time served since March 27, 2002. Finally, we amend the fee imposed pursuant to La.R.S. 46:2633 to $100, the amount specified by La.R.S. 46:2633(B)(l)(b)(v) for a third offense OWI conviction.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

      . Following the guilty plea, Defendant was sentenced to thirty days in the parish jail, suspended, a fine of $125, plus costs, and six months of supervised probation.