author: | .PER CURIAM.

text:
    In re Jean Marie LACOBEE.
    No. 2003-B-2010.
    Supreme Court of Louisiana.
    Feb. 20, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Robert Samuel Kennedy, Jr., Deputy Disciplinary Counsel, for applicant.
    Porteous, Hainkel & Johnson, William A. Porteous, III, Sanford A. Kowal, Jean Marie Lacobee, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

This disciplinary matter arises from two consolidated sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jean Marie Lacobee, an attorney licensed to practice law in Louisiana but currently on interim suspension. In re: Lacobee, 02-2597 (La.10/30/02), 831 So.2d 835.

UNDERLYING FACTS AND PROCEDURAL HISTORY

00-DB-090

The Graves Matter

On March 29,1999, Betty J. Graves paid respondent $550 to handle two separate legal matters. In the first matter, Ms. Graves sought to recover profits she allegedly lost when a stock sale was not promptly executed by the transfer agent. In the second matter, Ms. Graves sought to recover sums allegedly owed her by a gardener whom she formerly employed. After undertaking the representation of Ms. Graves, respondent failed to make any appreciable progress toward the completion of her legal matters. Ms. Graves discharged respondent on April 30, 1999 and requested a refund of the unearned portion of the legal fee she paid. Respondent did not comply with this request until August 2000, when she refunded $87.50 to Ms. Graves.

12The Williamson Matter

Beverly Williamson retained respondent to file a Chapter 7 bankruptcy proceeding. In December 1998, Ms. Williamson paid respondent $500 to handle the bankruptcy, plus $175 for court costs. Respondent filed the bankruptcy petition in March 1999. It was subsequently determined that all of Ms. Williamson’s assets — the most significant of which was a herd of dairy cattle — were not listed on the bankruptcy schedules, necessitating the filing of amended schedules. In April 1999, Ms. Williamson paid respondent an additional $450 for preparing and filing the amended schedules. Respondent was discharged by Ms. Williamson in May 1999, before the bankruptcy proceeding was concluded; however, respondent refused to account for the legal fee she was paid or to refund any unearned portion.

In addition to the bankruptcy matter, Ms. Williamson also requested that respondent handle an intrafamily adoption proceeding on her behalf. Ms. Williamson paid respondent $1,000 to handle the adoption, plus $200 for court costs. Ms. Williamson terminated this representation at the same time she terminated the representation in the bankruptcy matter. Although respondent did not complete the adoption before she was discharged, she refused to account for the legal fee she was paid or to refund any unearned portion.

00-DB-1S1

The Dorsett Matter

In February 1998, Charles I. Dorsett, Ph.D., a mathematics professor at Louisiana Tech University, filed an employment discrimination suit against the university. Charles Dorsett v. Louisiana Tech University, et al., No. 98-0210 on the docket of the United States District Court for the Western District of Louisiana. At |3this time, Dr. Dorsett was not represented by counsel. Dr. Dorsett subsequently visited several attorneys in an attempt to obtain representation on a contingency fee basis. In late June or early July 1998, Dr. Dor-sett and his wife met with respondent, and she agreed to accept the representation on a one-third contingency fee basis, with a minimum fee of $5,000. Dr. Dorsett paid respondent $5,000 by check dated July 16, 1998; however, respondent did not deposit this sum into her client trust account. Furthermore, respondent failed to obtain a written, signed contingency fee agreement from Dr. Dorsett.

In July 1999, Dr. Dorsett paid respondent $2,500 to be applied towards the costs and expenses of the litigation. Respondent did not deposit this sum into her client trust account. In December 1999, Dr. Dorsett paid respondent an additional $500 to cover costs. Thereafter, despite the fact that respondent had agreed to handle the matter on a contingency fee basis, she made repeated demands of Dr. Dorsett for payment of additional sums. When Dr. Dorsett refused to pay these additional sums, respondent withdrew from the representation in May 2000. Respondent failed to account for the legal fees she was paid or to promptly return Dr. Dorsett’s file, despite his requests that she do so. Dr. Dorsett subsequently filed a complaint against respondent with the ODC.

On August 22, 2000, respondent was personally served with a subpoena compelling her appearance before the ODC on September 12, 2000 to provide sworn testimony concerning the Dorsett matter. Respondent appeared at the appointed date and time and requested a continuance to obtain counsel.

\ ¿Formal Charges

On July 19, 2000, the ODC filed two counts of formal charges against respondent in 00-DB-090, alleging that her conduct in the Graves and Williamson matters violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.8 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.15 (safekeeping property of clients or third persons), 1.16 (termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

On October 24, 2000, the ODC filed one count of formal charges against respondent in 00-DB-131, alleging that her conduct in the Dorsett matter violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.5, 1.15, 1.16, 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(c), and 8.4(g) (failure to cooperate with the ODC in its investigation).

The two sets of formal charges were consolidated by order of the hearing committee chair on November 1, 2000. Respondent answered both sets of formal charges and denied any misconduct in connection with her handling of the client matters at issue. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Recommendation

After reviewing the evidence presented at the hearing, the hearing committee made the following factual findings and legal conclusions:

\ñThe Graves Matter

The committee found that Betty Graves retained respondent in 1999 to handle a claim for lost profits on a stock transaction and to locate a yard man who had failed to do work for which he had been paid in advance No hourly billing rate was discussed; however, Ms. Graves paid respondent the sum of $550 as the combined fee for handling both matters. In order to investigate the stock matter, respondent contacted a more experienced attorney, who advised her that it would be fruitless to pursue the profits lost in the transaction. Respondent performed computer research in an attempt to locate Ms. Graves’ yard man, which was unsuccessful.

After she was discharged, respondent provided Ms. Graves with an accounting showing her work performed in the matter. In the statement of services rendered, respondent gave her client credit for paying $500 in legal fees when Ms. Graves had actually deposited $550, and respondent billed total charges of $412.50. Respondent refunded $87.50 to Ms. Graves. However, the committee felt that respondent performed little, if any, work that benefitted Ms. Graves, and billed her excessively for what work she did perform. For example, respondent charged one hour at $150 per hour for her telephone consultation with another lawyer, when that lawyer testified the conversation lasted approximately three to twelve minutes. In addition, respondent billed one hour for her unsuccessful computer research, and billed one-third of an hour for preparing the accounting. The committee concluded that respondent attempted to fabricate a statement of services rendered in order to justify retention of the funds deposited by Ms. Graves. Accordingly, the committee found respondent violated Rule 1.5 in billing and retaining an unreasonable fee which was grossly in excess of the value of the services rendered,to the client, and violated Rule 1.15 by failing to properly account to her client for funds advanced by the client.

U The Williamson Matter

In November 1998, Beverly Williamson retained respondent to handle her Chapter 7 bankruptcy. Respondent agreed to handle the matter for $500 plus court costs. Respondent filed the initial bankruptcy pleadings; however, the schedules were incomplete as they failed to disclose Ms. Williamson’s sale of 150 head of dairy cows. The committee found no evidence that respondent either intentionally or negligently failed to include this information in the bankruptcy schedules, as prior to the initial bankruptcy filing, Ms. Williamson had not provided respondent any information concerning the cows. The bankruptcy trustee subsequently initiated an investigation to determine whether the failure to list the cows as assets of the bankruptcy estate constituted bankruptcy fraud. The trustee determined that Ms. Williamson was not guilty of bankruptcy fraud and allowed her to amend her schedules. Respondent obtained the necessary information from Ms. Williamson and filed the amended schedules on or about April 28, 1999. Respondent charged Ms. Williamson an additional fee (in addition to the flat fee initially agreed upon) for filing the amended schedules, which additional fees the committee found were reasonable. Therefore, the committee found no clear and convincing evidence that respondent violated the Rules of Professional Conduct in connection with her handling of the bankruptcy matter.

Ms. Williamson also retained respondent to handle her husband’s adoption of her two children from a prior marriage. Ms. Williamson paid a fee of $1,000 plus $200 in court costs for the adoption matter. Ms. Williamson discharged respondent in May 1999, at which time respondent had not completed the adoption proceedings. Respondent has failed to account to Ms. Williamson for the $1,000 fee and the $200 in court costs since being discharged, in violation of Rules 1.5, 1.15, and 1.16 of the Rules of Professional Conduct.

\nThe Dorsett Matter

Respondent agreed to accept the representation of Dr. Dorsett based upon a modified contingency fee arrangement which provided for a “minimum fee” of $5,000, to be credited against a one-third contingency fee in the event of a successful outcome. Although a contingency fee agreement was prepared, no agreement was ever signed by the parties, in violation of Rule 1.5.

Pursuant to their verbal contingency fee agreement, Dr. Dorsett paid respondent $5,000 by check dated ‘July 16, 1998. Although the $5,000 was not deposited into respondent’s client trust account, the committee found the ODC failed to show by clear and convincing evidence that this payment represented anything other than a “minimum fee” which could appropriately be deposited into respondent’s operating account. However, the committee did find clear and convincing evidence that the $2,500 check Dr. Dorsett gave respondent in July 1999 was not part of a “minimum fee” and should have been deposited into a client trust account. The evidence is clear that the $2,500 check was to cover litigation expenses, such as taking depositions and for other expenses. Respondent deposited the $2,500 check into her personal account, in violation of Rule 1.15.

Respondent withdrew from the representation of Dr. Dorsett in May 2000, but did not provide Dr. Dorsett an accounting for the funds which were given her for purposes of covering the costs of the litigation. The committee found such conduct violated Rule 1.16(d). After her withdrawal from Dr. Dorsett’s case, respondent failed to promptly provide Dr. Dorsett his file despite repeated requests to do so and despite the fact that the federal court had given Dr. Dorsett only thirty days to obtain new counsel. Respondent delayed the return of Dr. Dorsett’s file materials and conditioned return of the materials upon payment of a charge for copying the file. The committee [^agreed it is permissible for an attorney to require a client to pay for duplication of his or her file, but noted that in this case, respondent had previously received $2,500 for expenses from Dr. Dorsett. There is no indication that any of said amount had been applied to expenses of the litigation, and presumably these funds were available to cover the cost of copying Dr. Dorsett’s file. Accordingly, the committee found respondent’s delay in returning the file constitutes a violation of Rule 1.16(d).

In connection with Dr. Dorsett’s complaint, the ODC issued a subpoena which was served on respondent on August 22, 2000 to compel her attendance at a sworn statement scheduled for September 12, 2000. Respondent traveled to Baton Rouge from Shreveport on that date and appeared at the Office of Disciplinary Counsel at the appropriate time, but asked for a continuance to obtain counsel. When Disciplinary Counsel refused the request for a continuance and advised respondent that it would be necessary for her to give a sworn statement on that date, she refused to proceed. Under the circumstances, the committee found respondent’s actions did not constitute a failure to cooperate with the ODC in its investigation.

Turning to the issue of the appropriate discipline for respondent’s misconduct, the committee determined that the ABA’s Standards for Imposing Lawyer Sanctions support a baseline sanction of suspension. As mitigating factors, the committee recognized respondent’s inexperience in the practice of law (admitted 1997) and her medical condition (ADHD). However, the committee felt the mitigating factors are greatly outweighed by the aggravating factors present, including pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and indifference to making ^restitution. Under these circumstances, the committee recommended that respondent be suspended from the practice of law for two years.

Respondent and the ODC both filed objections to the hearing committee’s recommendation.

Disciplinary Board Recommendation

In the Graves matter, the board agreed respondent violated Rule 1.5 by charging an unreasonable fee to Ms. Graves, and violated Rules 1.5(f) and 1.16(d) by her failure to promptly deliver the funds actually due her client, by her failure to place disputed funds in trust, and by her failure to provide a prompt accounting. The board also found that respondent engaged in dishonest conduct in violation of Rule 8.4(c) by charging her client an unreasonable fee and retaining the bulk of the funds advanced by the client based upon a fabricated bill. However, like the committee, the board declined to find a violation of Rules 1.3 and 1.4, noting respondent was discharged by Ms. Graves after only one month.

As to the Williamson matter, the board found respondent violated Rules 1.5(f)(6) and 1.16(d) by failing to refund an unearned fee, failing to place disputed funds in trust, and failing to provide an accounting. Like the committee, the board did not find a violation of Rule 8.4(c), observing there was no clear and convincing proof of dishonest conduct.

In the Dorsett matter, the board found respondent violated Rule 1.5 by entering into a contingency fee agreement without obtaining a signed written contract and violated Rule 1.15(a) by failing to place an advance deposit for costs into a trust account, resulting in a conversion of those funds. Upon termination, her acts in failing to promptly release the file, forcing Dr. Dorsett to pay copy costs by mailing the file |into him “cash on delivery,” and failing to return the unused funds violated Rule 1.16(d). However, the board found no clear and convincing proof that respondent acted dishonestly in violation of Rule 8.4(c). Finally, the board adopted the reasoning of the committee in its determination that respondent did not fail to cooperate with the ODC.

In determining the appropriate sanction, the board found respondent’s actions were knowing for the most part. It found her pattern of refusal to place disputed funds in trust, to provide proper accountings, and to refund unearned fees caused actual damage not only to her clients, but also to the public and to the profession. The board determined the baseline sanction for this misconduct is a suspension from the practice of law.

The board adopted the aggravating factors cited by the hearing committee, and agreed that the record supports the mitigating factors of inexperience in the practice of law and personal problems (respondent’s ADHD). The board specifically noted that much of respondent’s misconduct can be attributed to her inexperience, incompetence (not only with respect to the legal matters she handled, but particularly with respect to fees, billing, and the business of running a law office), and ignorance of her ethical obligations regarding the handling of client funds and funds in dispute. However, the board concluded that ignorance of the disciplinary rules is not a defense, and the discipline imposed in this matter should be designed to protect the public.

In determining an appropriate sanction, the board primarily relied upon Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), particularly considering respondent’s conversion of the costs advanced by Dr. Dorsett. Applying Hinrichs, the board noted there is no evidence that respondent was acting in bad faith relative to her failure to maintain a proper client trust account, and the amount of money involved was not great. Nevertheless, the board felt respondent’s conduct |, exhibited a “high degree of negligence” which warrants a three-year suspension, particularly considering the “padding” of the Graves bill and her refusal to place disputed funds in trust, to provide proper accountings to her clients, and to return unearned fees. However, in light of respondent’s inexperience, the board determined it is appropriate to defer one year of the suspension.

Accordingly, the board recommended that respondent be suspended from the practice of law for three years, with one year deferred. The board also recommended that respondent refund any unearned fees due to Dr. Dorsett, Ms. Graves, and Ms. Williamson. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

Respondent and the ODC both filed objections to the disciplinary board’s recommendation. The case was then docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

Based on our review of the record, we conclude the factual findings of the hearing committee are supported by the record. The evidence demonstrates respondent has refused to place disputed funds in trust, to provide proper accountings, and to refund unearned fees. She acted dishonestly in the Graves matter [12by fabricating a bill and converted funds in the Dorsett matter. These actions constitute violations of the Rules of Professional Conduct which warrant discipline. Accordingly, we now turn to a determination of the appropriate sanction.

The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760. So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La.1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s conduct caused actual harm to her clients by depriving them of their funds and delaying resolution of their legal matters. The baseline sanction for such misconduct ranges from a lengthy suspension to disbarment. See, e.g., In re: Brown-Singh, 01-0669 (La.4/27/01), 789 So.2d 1256 (three-year suspension imposed on attorney charged with several professional violations, including failing to account for and return unearned legal fees and commingling funds); Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986) (setting forth the range of discipline in conversion cases).

We find several mitigating factors are present, including respondent’s personal and emotional problems, her general lack of a selfish motive, and her inexperience in the practice of law at the time of the misconduct. Although these factors do not 1 13excuse her conduct, we find they are significant in determining the sanction to be imposed.

Considering the facts of this case, we find the appropriate sanction for respondent’s misconduct is a three-year suspension from the practice of law. In light of the mitigating factors, we will defer one year of the suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Jean Marie Lacobee, Louisiana Bar Roll number 25319, be suspended from the practice of law in Louisiana for a period of three years, with one year of this suspension deferred. This suspension shall be retroactive to October 30, 2002, the date of respondent’s interim suspension. It is further ordered that respondent make full restitution to her clients of any unearned legal fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Indeed, the committee noted the ODC should have granted the continuance, given that no "exigent circumstances” then existed which required the denial of a short continuance of the sworn statement.

      . The disciplinary board also recommended that respondent be placed on supervised probation for a period of two years, with specified conditions. However, conditions of reinstatement, along with any other relevant factors, may be addressed if and when respondent applies for reinstatement. See In re: Welcome, 02-2662 (La. 1/24/03), 840 So.2d 519; In re: Harris, 99-1828 (La.9/17/99), 745 So.2d 1172.


source: Caselaw Access Project

author: | tKIMBALL, Justice.

license: Public Domain

text:
    Donald REESE and Verna Nabonne on Behalf of her Minor Child, James J. Nabonne v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Louisiana State Penitentiary.
    No. 2003-C-1615.
    Supreme Court of Louisiana.
    Feb. 20, 2004.

      McGlynn, Glisson & Koch, John G. Alíe-lo, Benjamin P. Mouton, Baton Rouge, for applicant.
    Charles C. Foti, Jr., Attorney General, Oats & Hudson, Lafayette, Andrew Benton, Robin L. Jones, Clifton O. Bingham, Jr., Special Assistant Attorneys General, for respondent.
   | tKIMBALL, Justice.

In this case, we are asked to determine whether timely-filed survival and wrongful death actions by an illegitimate child interrupts prescription for the filing of a cumu-lated filiation action. For the following reasons, we hold that the bare allegations of the timely-filed original petition, while not artfully drafted, give fair notice to the defendants of the plaintiffs attempt to set forth a cause of action for filiation. Consequently, the first supplemental and amending petition relates back to the original petition as it arises out of the same factual situation set forth in the original petition.

FACTS AND PROCEDURAL HISTORY

On April 30, 2000, James Williams, Jr. died while serving as an inmate at the Louisiana State Penitentiary at Angola. Thereafter, on April 4, 2001, Donald Reese and Verna Nabonne, on behalf of her minor child, James J. Nabonne, filed a petition for damages against the State of Louisiana, Department of Public Safety and Corrections and the Louisiana State Penitentiary (“defendants”) asserting claims for survival and wrongful death as the decedent’s surviving children. In response, on February 27, 2002, defendants filed a peremptory exception raising the objection of |2no right of action claiming that the plaintiffs were without a legal right of action to institute the suit because they were not the legitimate children of the decedent and they failed either to show filiation in accordance with La. Civ. Code art. 203 or to timely file a filiation action in accordance with La. Civ.Code art. 209.

On March 25, 2002, Donald Reese and Verna Nabonne, on behalf of her minor child James J. Nabonne, filed a first supplemental and amending petition alleging their formal acknowledgment, or alternatively, their informal acknowledgment by James Williams, Jr. On May 3, 2002, following an April 1, 2002 hearing, the trial court issued a judgment dismissing the defendants’ exception as to Verna Na-bonne on behalf of her minor child James J. Nabonne, and sustaining the defendants’ exception as to Donald Reese. The First Circuit Court of Appeal affirmed the district court’s judgment with one judge dissenting. See Reese v. State of Louisiana, Dept. of Pub. Safety & Corr., 02-1429 (La.App. 1 Cir. 5/9/03), 845 So.2d 620.

On the application of plaintiff, Donald Reese, we granted certiorari to review the correctness of the district court’s judgment granting the peremptory exception of no right of action. Reese v. State of Louisiana, Dept. of Pub. Safety & Corr., 03-1615 (La.10/17/03), 855 So.2d 744.

LAW AND DISCUSSION

Axiomatic under our system of law is that an action can only be brought by a person having a real and actual interest that he/she asserts. La. C. C.P. art. 681. The function of the exception of no right of action is to determine whether the plaintiff Isbelongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C. C.P. art. 927; Industrial Cos., Inc. v. Durbin, 02-0665, p. 12 (La.1/28/03), 837 So.2d 1207 (citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888). The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Id. (citing Benoit v. Allstate Ins., 00-0424, p. 10 (La.11/28/00), 773 So.2d 702, 708). Further, evidence is admissible on the trial of an exception of no right of action to “support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.” La. C. C.P. art. 931.

In this case, the right of a survival action under La. Civ.Code art. 2315.1 and a wrongful death action under La. Civ.Code art. 2315.2 is afforded to several exclusive categories of survivors listed in those articles, the primary category of which under both articles includes “children” of the decedent. By filing a peremptory exception of no right of action, defendants contend that Donald Reese does not belong to any of the exclusive categories of survivors listed under La. Civ.Code arts. 2315.1 and 2315.2, and, therefore, has no right to bring survival and wrongful death actions arising from the death of James Williams, Jr.

Prior to the decision of the United States Supreme Court in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), wrongful death and survival actions were not available to illegitimate children. However, under the rationale of Levy, it is the biological relationship and dependency that is determinative of the child’s rights in these cases and not the classification (i.e., legitimate or illegitimate) pinto which the child is placed by the statutory law of the state. Warren v. Richard, 296 So.2d 813 (La.1974).

Following the Levy decision, the legislature has sought to delineate and limit the circumstances under which an illegitimate child may assert and prove filiation. See 1981 Acts 720. In furtherance of this aim, La. Civ.Code art. 3556(8) was amended to define the term “children” to include “those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law.” 1981 Acts 720. La. Civ.Code art. 208, as amended by 1981 Acts 720, provides:

In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209. (emphasis added).

Louisiana Civ.Code art. 209(B), as amended by 1984 Acts 810 provides the requirements for proof of filiation as follows:

A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

La. Civ.Code art. 209(C) provides a limitation on the time for bringing a filiation action as follows:

The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages, (emphasis added).

The purposes of 1981 Acts 720 and 1984 Acts 810 amending and reenacting Articles 208 and 209, respectively, expressly stated therein are to provide for proof | Rof filiation by children or on their behalf; to provide a procedure and time limitations for proceedings to establish filiation; to provide for the method and standard of proof in such actions; and to provide that the failure to institute timely such a proceeding shall bar the claims of the persons covered by the Act. According to the Comments to Article 209, “[i]nformally acknowledged children do have to comply with this article.” La. Civ.Code art. 209, Comments (a). In this case, if Donald Reese cannot establish paternity, then he has no right of action to assert claims for survival and wrongful death damages.

Under Article 209(C), the general rule is that a child must bring an action for filiation within one year of reaching the age of majority. Thomas v. Sister of Charity of the Incarnate Word Shreveport, 97-1443, p. 3 (La.7/8/98), 713 So.2d 466, 467. However, if the child is a minor at the time of his/her alleged parent’s death, the child must bring the action within one year of the alleged parent’s death, regardless of the child’s age. Id. Thereafter, the child may not establish filiation after the occurrence of either of these events — one year from majority or one year from the death of the alleged parent. Id. However, Article 209(C) provides an exception as to when a filiation action may be brought for the sole purpose of establishing the right to recover damages under Article 2315. Id. at pp. 3-4, 713 So.2d at 467-8. Thus, the purpose of this exception appears to be to allow the child who is over the age of nineteen at the time of the alleged parent’s death to bring a filiation action, but only for the purposes of establishing the right to recover survival or wrongful death damages and not for any other purpose such as recovering succession rights. Id. Importantly for the case at hand, Article 209(C) also provides that a petition for damages under La. Civ.Code art. 2315 and a petition for filiation may be filed in the same proceeding at the same time.

| (¡In this case, Donald Reese claimed in his original petition for damages to be a surviving child of the deceased, James Williams, Jr. Reese argues that the original petition, by alleging paternity, sufficiently includes a cumulated filiation action and that his first supplemental and amending petition, which he contends simply clarified the factual issues of filiation, relates back under La. C. C.P. art. 1153 because the additional facts contained therein arise out of the same conduct, transaction or occurrence attempted to be set forth in the original petition. In opposition, the defendants allege that there are no allegations in Reese’s original petition that distinguish it from a petition a legitimate child might file and, consequently, the first supplemental and amending petition cannot relate back to the original petition.

La. C. C.P. art. 1153 provides for the relation back of amendments as follows:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading, (emphasis added).

Pursuant to this article, so long as a comparison of the amended petition to the original petition shows that the original petition gave fair notice of the factual situation out of which the amended petition arises, the amended petition will relate back to the date of the filing of the original petition and prescription with regard to the amendment is interrupted as of the filing date of the original petition. Giroir v. South Louisiana Med. Ctr., 475 So.2d 1040 (La.1985). Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and supplemental party, amendment should be allowed and excepted from the interests intended to be protected by the prescriptive statutes. Baker v. Payne & Keller of Louisiana, Inc., 390 So.2d 1272, 1275 (La.1980); Tate, J., Amendment of Pleadings in Louisiana, 43 TuLL.Rev. 211, 234 (1969). The essence of interruption of prescription is notice. Gunter v. Plauche, 439 So.2d 437, 440 (La.1983). Thus, the question before this court is whether the allegations of the plaintiffs petition sufficiently put the defendants on notice that a filiation action was at issue in this case.

The court’s inquiry begins by examining the allegations made in the original petition to determine whether a cause of action for filiation was set forth or was attempted to be set forth therein. La. C. C.P. art. 1153. Thus, the focus is on what the plaintiff has included in his original petition, not what was omitted. Further, during this inquiry, the court should keep in mind the general rule that pleadings should be construed in such a manner as to achieve substantial justice. La. C. C.P. art. 865; Katz v. Katz, 412 So.2d 1291, 1293 (La.1982). Harsh, technical rules of pleadings are not favored in Louisiana in order to arrive at the truth and avoid miscarriages of justice. La. C. C.P. art. 854; Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297, 302 (La.1973).

The original petition identifies the decedent and alleged tort victim, James Williams, Jr., and identifies the plaintiffs as Donald Reese, a major resident and domiciliary of Orleans Parish and a minor child named James J. Nabonne, also a resident and domiciliary of Orleans Parish. In paragraph two of the original petition it states “Petitioners, Donald Reese and James J. Nabonne, are the surviving children of James Williams, Jr., who died on April 30, 2000.” Paragraph thirteen of the plaintiffs’ petition provides “Petitioners, as the sole surviving children of James Williams, Jr., specifically assert and plead the survival action provided for in La. Civ.Code art. 2315.1.” Also, in paragraph fourteen, they allege the wrongful death of their father, James Williams, Jr.

Defendants and the lower courts rely on this court’s decision in Thomas, supra, to assert that these allegations were insufficient to put the defendants on notice that | ^filiation was an issue in this case, and, consequently, the action for filiation by Reese is untimely. In Thomas, a single illegitimate child of the decedent filed a timely wrongful death and survival action and filiation action. 97-1443, at p. 1, 713 So.2d at 466. Later, more than a year after the decedent’s death, four other illegitimate children of the decedent filed a supplemental and amending petition for wrongful death and survivorship and filiation. Id. The Thomas court held that a timely-filed original petition by one illegitimate child would not give fair notice of the factual circumstances as to four other illegitimate children reasoning that a person reading the original, timely-filed petition by one illegitimate child would be subject to surprise by the filing of a later, untimely petition by four other illegitimate children. Id. at p. 5-6, at 468-69. However, the Thomas court specifically noted that had the four illegitimate children filed their action for filiation timely but not their wrongful death action, they could have invoked the “relation back” doctrine of La. C. C.P. art. 1153 to take advantage of a timely wrongful death action filed by any other illegitimate (or legitimate) children of the decedent. Id. at p. 5, at 468. Thus, the Thomas decision turned on the fact that the four illegitimate children who filed untimely were not named at all in any timely-filed petition.

Defendants and the First Circuit Court of Appeal also seek to distinguish Lewis v. Transocean Terminal Operators, Inc., 02-0152 (La.App. 4 Cir. 12/11/02), 834 So.2d 1180 from the case at hand. In Lewis, seven illegitimate minor children filed a wrongful death and survival action and, a few months later, the same seven children filed a petition to initiate the succession of their deceased father. In this succession petition, the children did not expressly state that they were the illegitimate children]^ the deceased, but they did assert that the deceased was not married and all of their names were listed with last names other than the deceased. A year later, the seven children amended their petition in the succession proceeding to explicitly seek filiation to the deceased. Thereafter, in the wrongful death and survival action, the trial court granted Transocean’s exception, of no right of action, implicitly finding that the filiation action was not timely raised. The Fourth Circuit Court of Appeal reversed finding that the amended petition explicitly seeking filiation related back to the timely filed original petition in the succession proceeding, specifically finding that while the original petition did not expressly state that the seven minor children were the illegitimate children of the decedent, it did list the seven minor children by name, with last names different from that of decedent, and stated that they were the minor children of decedent, who was not married. Thus, the Lewis court concluded that “[a]nyone who read the original petition and accompanying affidavits initiating the succession proceeding would have fair notice of the factual situation out of which the supplemental and amended petition, explicitly seeking filiation, arises.” Lewis, 02-0152, at p. 4, 834 So.2d at 1183. In distinguishing Lewis from the matter at hand, the First Circuit Court of Appeal particularly noted that the Lewis children “at least alleged that their father was not married.”

In the present case, Donald Reese was named in the timely-filed original petition. In that original petition, Donald Reese identified James Williams, Jr. as his father and himself and James J. Nabonne, both with different last names from the decedent, as his sole surviving children. The only distinction between these allegations in Donald Reese’s original petition and those of the plaintiffs in Lewis is that nowhere in Reese’s original petition does it state the marital status of the decedent. While the First Circuit Court of Appeal’s decision turned on that 11(ldistinction, we find the marital status of the decedent at his time of death is not necessarily determinative of a child’s status as a legitimate or illegitimate heir. Accordingly, we hold that the bare allegations in Donald Reese’s original petition, while not artfully drafted, show an attempt to set forth a filiation action and were sufficient to put the defendants on notice that such was at issue in this case. Further, unlike the illegitimate children who filed untimely and were not named at all in any timely-filed pleading in the Thomas case, Donald Reese was named as the surviving child of the decedent in the timely-filed original petition. Thus, Donald Reese’s amending petition added neither new parties nor causes of action. Consequently, the amending petition created no surprise or prejudice to the defendants and merely clarified these factual issues; therefore, the amended petition relates back to the filing of the original petition.

CONCLUSION

Construing the pleadings to create substantial justice, we hold that the bare allegations of the timely-filed original petition, while not artfully drafted, give fair notice to the defendants of the plaintiffs attempt to set forth a cause of action for filiation. Consequently, the first supplemental and amending petition relates back to the original petition as it arises out of the same factual situation set forth in the original petition.

DECREE

For the foregoing reasons, the judgment of the court of appeal affirming the trial court’s sustaining of the defendants’ exception of no cause of action is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

VICTORY, J., concurs.

      . At the hearing, Verna Nabonne, on behalf of her minor child, James J. Nabonne, produced proof of decedent’s acknowledgment of James J. Nabonne in the form of a baptismal certificate.

      . Although in this case, the supplemental and amending petition was filed prior to the hearing on the exception of no right of action, La. C. Civ. Pro. art. 934 provides that "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” (emphasis added).

      . The Lewis decision was handed down seven months after the trial court granted the defendants' exception of no right of action regarding the claims of Donald Reese. Thus, the trial court did not consider the Lewis case in reaching its decision in the case at hand.


author: | .COOKS, Judge.

text:
    Debra HAYES v. Kerry CLARK.
    No. 03-272.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Rehearing Denied March 10, 2004.

      James A. Bolen, Bolen, Parker & Brenner, Ltd., Alexandria, LA, for Defendant/Appellant, Kerry Clark.
    Payne Williams, Williams Family Law Firm, Natchitoches, LA, for PlaintiffiAp-pellee, Debra Hayes.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY H. EZELL, Judges.
   | .COOKS, Judge.

STATEMENT OF THE CASE

This case arises out of an automobile accident in Natchitoches, Louisiana on the evening of November 17, 2000. Kerry Clark was driving on Whitfield Drive. As he approached the intersection of Whitfield Drive and East Fifth Street, he dropped a pair of side shields for glasses. He looked down to search for the side shields, ran a stop sign located at this intersection, and crashed into Debra Hayes. The impact of the collision pushed Ms. Hayes’ vehicle across the intersection. Mr. Clark’s vehicle spun almost 360 degrees and rolled onto the passenger side. Mr. Clark was not injured in the accident, but his vehicle was totaled. Mr. Clark admitted to running the stop sign and received a traffic ticket. Ms. Hayes suffered knee and back injury and was immediately taken to the hospital by her son. Ms. Hayes sued Kerry Clark and his insurer, Zurich American Insurance Company.

Ms. Hayes filed a Partial Motion for Summary Judgment on the issue of liability. Judge Eric Harrington granted the Plaintiffs motion on the basis that the sole cause of the accident was the negligence of Mr. Clark in failing to stop at the stop sign. The case was presented to the jury-on the issue of damages. The jury awarded damages totaling $175,875.88 to Ms. Hayes. Mr. Clark files this appeal asserting the following assignments of error:

1. The trial court erred in granting the P1a.nf.iffs Partial Motion for Summary Judgment and removing the issue of liability from the jury’s consideration.
2. The trial court erred in the jury charge given regarding Plantiff s burden of proving future medical expenses.
3. The trial court erred in approving the jury verdict form listing eleven categories of damages.
4. The jury’s damage award to Plantiff was excessive and not supported by the evidence.

|3For the reasons assigned below, we affirm the decision of the trial court.

ASSIGNMENT OF ERROR NUMBER ONE

Mr. Clark contends the trial court erred in granting the Plantiffs Partial Motion for Summary Judgment. An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991); La.Code Civ.P. art. 966(B). A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material facts, and the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Mr. Clark contends summary judgment was not proper in this case because there was a genuine issue of material fact as to whether Ms. Hayes was comparatively at fault. Mr. Clark contends Ms. Hayes admitted observing Mr. Clark pull up to the stop sign and she was negligent in failing to apply her brakes to avoid the accident.

Ms. Hayes testified she was traveling-home on East Fifth Street after visiting her grandmother at the Natchitoches Parish Hospital. She was traveling twenty miles an hour when she approached the intersection of East Fifth Street and Whitfield Drive. She stated there is a house located on the corner which blocks the view of the intersection by approaching drivers. When Ms. Hayes saw Mr. Clark’s vehicle, he was approaching the stop sign. She assumed he was going to stop and she proceeded forward into the intersection. We find the trial judge was correct in concluding the sole cause of the accident was the failure of Mr. Clark to stop at the stop sign.

The duty of a motorist when approaching a stop sign is mandated in La.R.S. 32:123 which provides in relevant part:

A. Preferential right of way at an intersection may be indicated by stop |4signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.

When a motorist is confronted with a stop sign at an intersection, it is his duty to come to a complete stop, to observe traffic, and to make certain that the way is clear before proceeding. Coleman v. Rabon, 561 So.2d 897 (La.App. 2 Cir.1990), writ denied, 567 So.2d 617(La.); Vallery v. State Through Dept. of Transp. and Dev., 480 So.2d 818 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1350 (La.1986). Mr. Clark admitted he was looking down to search for a pair of side shields for glassés and failed to stop at the stop sign. He further testified he never applied his brakes prior to impact and received a traffic citation following the accident.

A similar factual situation was presented in Cormier v. Álbear, 99-1206 (La.App. 3 Cir. 2/02/00), 758 So.2d 250. The Plantiff was traveling on Highway 90 near New Iberia. When he approached the intersection of Highway 90 and Louisiana Highway 675, a tractor-trailer driven by the defendant appeared in front of him, giving him only 1 to 1.5 seconds to react. He struck the tractor-trailer near the back tires. The driver of the tractor-trailer stopped at the stop sign and flashing red light, checked for approaching traffic but failed to see the Plantiff s vehicle. He attempted to cross the intersection and drove his tractor-trailer out in front of the Plantiff s vehicle. The driver of the tractor-trailer asserted the Plantiff was equally at fault in causing ■ the accident. The trial court granted the Plantiff s. Partial Motion for Summary Judgment on the issue of liability finding the driver of the tractor-trailer solely at fault in failing |Bto observe the Plaintiffs vehicle and proceeding across the interséction when it was unsafe to do so. In affirming the decision of the trial court, this court stated:

The evidence here shows that Mr. Cormier exercised the proper degree of care when approaching the intersection. He stated that he was driving the speed limit when the tractor-trailer appeared before him, allowing him only enough time to apply his brakes and duck. Mr. Albear stated that he simply did not see the approaching vehicle. Although there is some disagreement over the speed at which the tractor-trailer entered the intersection, it is insufficient to attribute fault to Mr. Cormier. Under these circumstances, we find that there is no genuine issue of material fact regarding Mr. Albear’s sole responsibility for causing the accident and injuries.

Id. at p. 9, 255.

In the present case, we find the trial court was correct in concluding the sole cause of the accident was the failure of Mr. Clark to stop at the stop sign. Accordingly, we find this assignment of error without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Mr. Clark contends the trial court erred in giving the jury a charge regarding an award of future medical expenses. He contends the Plantiff presented no medical evidence to support the $4,000 award by the jury for future medical expenses. The trial judge in charging the jury stated:

A plaintiff may also have a right to recover for the cost of future medical treatment and these damages should not be denied because it is impossible to establish exactly the nature and extent of the treatment and the cost of that treatment that will be required. The .fact that the cost of future medical treatment if reasonably proved cannot be precisely calculated is not a reason to deny the claim.

To recover damages for future medical expenses, the Plantiff must show it is more probable than not that future medical expenses will be incurred. Medical testimony is required to support an award of future medical expenses. Clavier v. Roberts, 00-1666 (La.App. 3 Cir. 4/4/01),783 So.2d 599 writ denied, 01-1662 (La.9/21/01), 797 So.2d 672. We find the medical testimony supports the jury award of [fifuture medical expenses. Dr. Baer Rambach, an orthopedist who treated Ms. Hayes, testified she would require future medical treatment. Dr. Sudar Tanga, an anesthesiologist and pain management specialist, testified if Ms. Hayes continued to experience back pain, she would have to use a TNS unit or may have to undergo a discogram. He recommended she continue daily medication and exercise. Dr. Robert Holladay, an orthopedic surgeon, treated Ms. Hayes from September 19, 2001 until the trial on September 13, 2002. ■ He recommended that Ms. Hayes return for further treatment in three months. Dr. Goodman, an orthopedic surgeon, performed an independent medical examination of Ms. Hayes at the request of the Defendants. Dr. Goodman testified Ms. Hayes would suffer chronic back problems as a result of the accident for an indefinite period of time.

We find there is sufficient medical testimony to support an award of future medical expenses and the trial court did not err in giving the charge to the jury regarding this element of damages. Accordingly, we find this assignment of error without merit.

ASSIGNMENT OF ERROR NUMBER THREE

The jury verdict form given by the trial court listed eleven categories of damages: Past Medical Expenses, Future Medical Expenses, Past Mental and Emotional Anguish, Future Mental and Emotional Anguish, Past Physical Pain and Suffering, Future Physical Pain and Suffering, Past Loss of Enjoyment of Life, Future Loss of Enjoyment of Life, Disability, Past Loss of Income and Future Loss of Income. The Defendant claims the general damage award was excessive because the elements of damages were duplicative and overlapping. We have examined the jury verdict form and find the categories listed ■ are all compensable and are not duplicative. The Defendant, particularly, objects to the award for loss of enjoyment of life. This court in Harper v. Falrig Offshore, Inc., 00-694 (La.App. 3 Cir. 12/20/00), 776 So.2d 620, writs denied, 01-751, 792 So.2d 735, 01-816 (La.5/11/01), 792 So.2d 737. recognized that loss of enjoyment of life is a separate compensable element of general damages apart from physical or emotional pain and suffering. The evidence at trial supports a finding that the injuries Ms. Hayes sustained in the automobile accident had a detrimental effect on her lifestyle and forced her to give up or curtail activities she had engaged in prior to the accident. Shirley Bordelon, Ms. Hayes’ employer, testified Ms. Hayes is a dedicated and honest employee and prior to her accident had no-problems performing any of her job duties as a picture framer. Since the accident, Ms. Hayes has been unable to lift heavy objects, cut heavy molding or lift heavy pieces of glass. The evidence supported a finding that Ms. Hayes social and economic lifestyle was dramatically altered as a result of the accident. We find the jury award of $10,000 for past and future loss of enjoyment of life entirely appropriate.

ASSIGNMENT OF ERROR NUMBER FOUR

The Defendant contends the general damage award to Ms. Hayes of $135,000 is excessive and not supported by the evidence. We disagree. The evidence presented at trial indicates Ms. Hayes had never had back problems prior to the accident. Following the accident, Ms. Hayes missed several of her son’s basketball and football games during his senior year because she was unable to sit on the bleachers for long periods of time. She had concerns regarding her ability to fully perform her duties at work and concerns regarding the development of future back problems. Ms. Hayes also testified she was concerned that she would be unable to obtain health insurance from a new insurance company because of her current back problems. She continues to suffer from chronic back pain which has required her to curtail several of her activities. The physicians testified that Ms. Hayes’ back and left sacroiliac joint pain would continue for an indefinite period of time and possibly for the rest of her life and she would require future medical treatment. We find the general damage award to Ms. | sHayes was reasonable and appropriate. Accordingly, we find this assignment of error without merit.

DECREE

Based on the foregoing review of the evidence, we affirm the decision of the trial court and assess all costs of this appeal to the Defendants.

AFFIRMED.


author: JjEDWIN A. LOMBARD, Judge.

text:
    Michael KAUFMAN, IV v. FISHERY PRODUCTS OF LOUISIANA, INC.
    No. 2003-CA-0523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2003.

      Robert W. “Doc” Booksh, Jr., John B. Fox, Citizens Law Center, New Orleans, LA, Counsel for Plaintiff/Appellant.
    Leon A. Aucoin, Law Offices Of Leon A. Aucoin, Covington, LA, Counsel for Defendant/Appellee.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD.
   JjEDWIN A. LOMBARD, Judge.

This appeal concerns the Office of Workers’ Compensation Court’s ruling that requires an injured worker to pay his employer a credit for volunteer work performed while receiving supplemental earnings benefits, and to participate in' vocational rehabilitation following workplace accident that occurred fourteen years ago. For the reasons that follow, we affirm the ruling issued by the lower court, vacate the portion of the judgment that awards defendant an indeterminate credit, and remand for the Workers’ Compensation Court to determine a specific amount to be paid by Mr. Kaufman constituting the credit owed to his employer for the paper route delivery services.

FACTS AND PROCEDURAL HISTORY

In 1989, Mr. Kaufman suffered a workplace accident during the course and scope of his employment by defendant. Mr. Kaufman fell when a forklift malfunctioned and dropped him. He hit his back and fell on his feet with his heels compressing his buttocks. At the time of the accident, Mr. Kaufman weighed 380 pounds. He injured his back, his Achilles tendon, the soles of the heels and both knees.

li>Mr. Kaufman’s average weekly wage had been $300.00, which resulted in temporary total disability (“TTD”) payments of $201.00 per week. The precipitating event for the instant suit was the reduction of payments to Mr. Kaufman from the TTD amount to $390.56 per month for supplemental earnings benefits (“SEB”). This SEB rate assumes that Mr. Kaufman is able to earn approximately $5.25 per hour for 32 hours per week.

The matter was heard before Workers’ Compensation Judge (“ALJ”) Thompson on August 29, 2002. The injury and its occurrence during the course and scope of employment were stipulated, as was the payment history detailed above. The ALJ issued judgment and reasons on October 1, 2002 finding that Kaufman was not entitled to TTD after November 1, 2001 and was not totally and permanently disabled. The ALJ did, however, award SEB benefits at the previous TTD rate of $201.00 per week because of Mr. Kaufman’s substantial pain (he cannot take pain medication due to kidney problems). Thus, the ALJ determined that his SEB benefits should be calculated at a zero wage base; i.e., he has no earning capacity at this time due to the pain. The ALJ further ruled that such payments were to include interest from the date of each installment’s due date. The ALJ also awarded to defendant a credit for the times Kaufman worked on his wife’s paper route at the amount he would have been paid for the route. The court never stated the amount of the credit, when the credit started, or when it ended.

Kaufman moved for a new trial because: (1) the court awarded a credit when he had never earned any actual monies (he had volunteered to assist his estranged wife); and (2) the court ordered him to participate in vocational rehabilitation, which is inconsistent with the AL J’s finding that he cannot work due to substantial pain. The motion for new trial was denied and this appeal followed.

|sThe defendant answered the appeal and contended that the ALJ erred in ruling that: (1) Kaufman was entitled to SEBs from November 1, 2001 forward at the TTD rate; (2) defendant failed to prove Kaufman’s post-injury earning capacity; and (3) a credit was owed without specifying the amount of such credit due to defendant.

ANALYSIS

Mr. Kaufman claims that the reduction to the SEB rate is erroneous for three reasons: (1) he is in need of knee replacement surgery; thus, he should continue to receive TTD because he has not reached maximum medical cure; (2) if, however, he is found not entitled to receive TTD, then he should be found totally and permanently disabled under Comeaux v. City of Crowley, 2001-0032 (La.7/3/01), 793 So.2d 1215; and (3) if not found to be entitled to TTD or total and permanent disability payments, then he should receive SEBs with a zero wage base solely by reason of substantial pain. Gaspard v. St. Paul Fire & Marine Ins. Co., 483 So.2d 1037 (La.App. 3rd Cir.1985); La. R.S. 23:1221(3) (c) (ii).

Concerning Mr. Kaufman’s claim that he has not achieved maximum medical cure (because of the need for knee surgery) and thus should continue to receive TTD benefits, the medical experts testimony does not support that contention. Until and unless Mr. Kaufman should lose a considerable amount of weight (approximately 150 pounds, at least), he is not a candidate for knee surgery and is therefore considered to be at maximum medical improvement. Temporary total disability payments are not indicated under the circumstances presented.

Regarding Mr. Kaufman’s next assertion that, if he is not entitled to receive TTDs, at least he is entitled to permanent and total disability benefits, pursuant to | ¿Comeaux. The distinctions in the referenced case, however, render it inapposite to the instant factual scenario.

The court in Comeaux noted:

The [lower] Court’s finding of permanent total disability was based on clear and convincing evidence including, but not specifically limited to, claimant’s age, lack of education and previous work history coupled with the medical reports and the report of the vocational rehabilitation expert.... In this case, the claimant is a fifty year old male with an eight or ninth grade education. While claimant’s treating physician has placed severe restrictions on his ability to work, a vocational rehabilitation expert testified that claimant is vocational unemployable in any occupation.

Comeaux, 2001-0032 at 5, 793 So.2d at 1218.

Unlike Mr. Comeaux who had participated in vocational rehabilitation for 52 weeks, Mr. Kaufman has never received vocational rehabilitation. As the above quote reflects, the court in Comeaux relied upon the rehabilitation report, in part, to determine that the claimant was permanently and totally disabled. Without such rehabilitation efforts, as recently ordered by the ALJ, Mr. Kaufman is not entitled to the finding of permanent and total disability at this juncture.

Mr. Kaufman also asserts that he is entitled to a calculation of SEBs based upon zero wages because of his substantial pain. The ALJ awarded Mr. Kaufman his previous rate of benefits, even though the ALJ called them SEBs rather than TTDs. Due to the interest award, Kaufman is financially in the same place he was previous to the suit. Additionally, based upon the videos showing Mr. Kaufman assisting in the paper route deliveries, his assertion that he cannot earn any wages whatsoever is without support. Therefore, the ruling by the ALJ for the calculation of SEBs is not erroneous.

Moreover, although Mr. Kaufman argues that he should not have to pay back monies potentially earned when he never actually earned anything from ^assisting with the paper route, the ruling by the ALJ is reasonable. If Mr. Kaufman could perform a job, albeit with limited ability, he reasonably could have earned some money for that performance, and it is not manifest error for the ALJ to have awarded the credit to defendant for the monies that could have been potentially earned by Mr. Kaufman’s labor.

Mr. Kaufman argues further that the order requiring his participation in vocational rehabilitation is inconsistent with the ALJ’s determination that he is incapable of working due to substantial pain. The ruling makes sense, however, under the actual circumstances presented; i.e., the video tapes of Mr. Kaufman working. Moreover, with rehabilitation, Mr. Kaufman will either be able to find some employment that he can perform or, like Mr. Comeaux, he may receive a report that he is unemployable and therefore entitled to receive permanent and total disability benefits in the future.

Concerning the defendant’s arguments, the credit owed by Mr. Kaufman cannot be computed by this court by reference to this record. It is necessary for the Workers’ Compensation Court to take testimony and order a specific sum based upon the evidence. No provision was made in the order at issue for the parties to determine an amount for the defendant’s credit; thus, we are remanding the matter for the ALJ’s calculation of the credit owed defendant.

The issue of whether defendant proved Kaufman’s post-injury earning potential is resolved by reference to the statute. Subsection (ii) states that for purposes of subsection (i) [figuring what the subtraction is from the weekly earnings], if claimant proves by clear and convincing evidence that due to substantial pain, he or she cannot work, that claimant shall be deemed incapable of performing such employment. Based on the ALJ’s award of SEBs at the TTD rate 1 fidue to substantial pain, it is apparent that Kaufman proved he cannot work due to his pain and his inability to take medication for same. If the rehabilitation helps him manage his pain or lose weight so that he can have the knee surgery, perhaps in the future he will be able to work.

Furthermore, the ALJ’s ruling is consistent with the jurisprudence in this area. In Comeaux, the claimant worked toward his GED, which activity was deemed to constitute appropriate vocational rehabilitation. Kaufman has made no such effort in the instant case. In Gaspard, the court ruled that due to the claimant’s substantial pain, she was not able to engage in employment consistently, thus was not totally and permanently disabled, but she was entitled to SEBs with a zero wage base.

CONCLUSION

Therefore, for the foregoing reasons, the lower court’s judgment is affirmed in part as to the issues raised except for the computation of the credit owed defendant. For the latter calculation, we vacate that aspect of the judgment that ordered a credit without specifying the amount, and remand for the ALJ to determine a specific amount that Mr. Kaufman owes his employer for the monies he might have earned by assisting in the paper route.

AFFIRMED IN PART; VACATED IN PART; REMANDED.