author: h COOKS, Judge.

text:
    John C. SHAMBURGER v. RIBBECK CONSTRUCTION COMPANY.
    No. 02-1488.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Scott J. Pias, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, John C. Shamburger.
    Mark A. Ackal, Lafayette, LA, for Defendant/Appellee, Ribbeck Construction Corporation.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   h COOKS, Judge.

The plaintiff appeals the judgment of the Office of Workers’ Compensation finding that he did not meet his burden of proving he suffered injury arising out of a work-related accident. For the following reasons, we affirm.

FACTS

In this workers’ compensation case, the plaintiff, John C. Shamburger, alleges injury arising from his employment with Rib-beck Construction Corporation. Shambur-ger was a carpenter hired by Ribbeck to work on a project it had at the Welsh High School. On August 21, 2001, he arrived at work and began installing kick plates on numerous doors at the school. He asserted about four or five hours into his shift that evening, he stood up from where he was working and walked over to his supervisor, Brent Doucet, to inquire as to his next work duty. Shamburger was talking with Doucet when he had a sudden attack and was knocked to his knees by intense back, leg and groin pain. Ultimately, it was determined that Shamburger suffered from a “blown disk.”

Shamburger eventually filed a workers’ compensation claim, which the employer opposed on the grounds no accident occurred while he was in the course and scope of his employment. The workers’ compensation judge (WCJ) held this was an unwitnessed accident and found there was evidence which discredited or cast serious doubt upon Shamburger’s version of the incident. The WCJ gave the following oral reasons for discounting his story:

After Mr. Shamburger and Mr. Doucet discussed where the next kick plates would be installed, the claimant put his hands on his knees, went to the floor, and when asked if he was okay, he responded, “It’s happened before,” he would be okay. He requested medication from his lunch box, took his medication, and after a while he left the job site.
|2On the date of the alleged incident, the claimant was under the care of a doctor and was, in fact, taking medication. Mr. Shamburger’s testimony is simply not corroborated by circumstances immediately following the alleged incident.
For these reasons, the Court finds that the plaintiff has failed to carry his burden of proof; therefore, he is not entitled to workers’ compensation benefits.

Plaintiff appealed the WCJ’s judgment contending it was error to hold that this was an unwitnessed accident and benefits, penalties and attorney fees should have been awarded.

ANALYSIS

To establish entitlement to workers’ compensation benefits, a claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Ceasar v. Crispy Cajun Restaurant, 94-30 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, writ denied, 94-2736 (La.1/16/95), 648 So.2d 931.

In determining whether or not a claimant has discharged his burden of proof, the trier of fact should accept as true a witness’ uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion upon the reliability of that testimony. Watkins v. Asphalt Assocs., Inc., 96-249 (La.App. 3 Cir. 12/4/96), 685 So.2d 393. The worker’s testimony standing alone may be sufficient to discharge this burden of proof, provided that two elements are satisfied: (1) no other evidence discredits or casts serious doubt on the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Har- bert Int’l Inc., 593 So.2d 357 (La.1992); Dore v. Sydran Food Services II, L.P., 01-728 (La.App. 3 Cir. 10/31/01), 799 So.2d 825. Louisiana courts have interpreted the work-related accident requirement liberally, but the liberal construction of -the statute does not relax the worker’s burden of proof. Id.

Workers’ compensation judges’ findings are subject to the same standard of review as those of a district court judge. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. Whether claimant met his burden of proof is a factual determination not to be disturbed on review unless clearly wrong or manifestly erroneous. Bruno, 593 So.2d 357. The issue before us is whether the testimony and evidence contained in the record establishes a reasonable factual basis for the WCJ’s findings and that the findings were not clearly wrong/manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987).

Shamburger argues the testimony of Blaine Doueet and Billy Stark establishes this was not an unwitnessed accident and that he was entitled to workers’ compensation benefits. Doueet gave the following testimony regarding the incident in question:

A. On that night, Mr. Shamburger had the position of installing some kick plates on some doors. We had a 'little staging area in the hallway where we had the blueprints and materials. I was working in the immediate area so Mr. Shamburger approached and asked where we were going to work at next, what area we’ll be working in next. So we discussed it very briefly a couple of minutes.
During that time Mr. Shamburger just kind of reached down with both hands, kind of on his knees and looked very distressed. He didn’t have a tool belt on. We were standing there.
Q. You were just standing face to face with him?
A. Face to face. So we had a little staging area there where we talked about the plans, and he immediately put his hands on his knees. J^And I said, “John, are you okay?” He said, ‘Yeah, it’s my back. It’s okay.” And it looked like he was getting progressively worse, so-he kind of went down to all knees. He was on all fours.
The other carpenter, Billy Stark, was in the area, so me and Billy were right there and provided attention to him. And we both consoled him and said, “Can we do anything? Are you okay? Did you get hurt? What happened here?” And he said, “No, its going to be okay. It has happened before. I need you to go get my medicine out of my lunch box.” At about that time he said — Billy went to retrieve the medicine.
Q. Did you ask him during this event, did you say, John, did something happen? Did you do something to hurt yourself?
A. Yeah, you have to ask him what happened.
Q. And what did he say?
A. “It’s ■ a previous ailment. I know how to deal with it. I will be okay.” Evidently, he had medicine for it.

Billy Stark also was employed by Ribbeck for the job at Welsh High School. Stark testified he did not see Shamburger fall to the ground, but at one point did see him down on one knee. After he fell to his knees, Shamburger asked Stark to retrieve medication from Shamburger’s lunch box and give it to him. Stark testified that Shamburger complained of leg and back pain on numerous occasions prior to the incident. Stark also stated from the first day he saw him, Shamburger appeared to be in pain.

La.R.S. 28:1021(1) requires that an accident involve an actual, identifiable, precipitous event which directly produces symptoms at the time of the injury which is “more than a gradual deterioration or progressive deterioration.” There is no testimony in the record which identified a work-related “precipitous event” which caused the alleged injury. The only specific “events” Shamburger mentioned in his testimony were the general installing of kick plates throughout the day and a “little | .^problem” that occurred in the storeroom “moving things.” Shamburger was not engaged in either of these activities when he fell to his knees in front of Brent Doucet. Based on the record, we find the WCJ did not err in finding Sham-burger failed to discharge his burden of proving any “unexpected, or unforseen actual, identifiable, precipitous event happening suddenly or violently.”

We also find the evidence supports the WCJ’s finding that Shamburger failed to sustain his burden of proving that a compensable accident occurred. Shambur-ger testified he experienced pain at his previous job before working for Ribbeck. He admitted he had been “fighting the pain for four or five months” before the incident in question. Shamburger had been working for Ribbeck approximately three weeks before August 21, 2001. Approximately two weeks before the incident, Shamburger saw his family doctor complaining of pain in his left hip that extended down his left leg. He stated this pain began before he went to work for Ribbeck. According to Shamburger, his leg and back problems would sometimes flare up even in periods of inactivity. He began receiving treatment and taking medication for his leg and back problems before he accepted employment with Ribbeck. Shamburger testified the morning of August 21, 2001, he visited Dr. David Dobbins, and was given a cortisone shot in his left hip.

The medical records revealed complaints of lower back pain beginning as early as 1980. In 1988, Dr. Dobbins treated Sham-burger for lower back pain which traveled into his left buttock and down his left leg. Shamburger was diagnosed by Dr. Dobbins as having lumbar strain with sciatica. He was referred to Dr. Nathan Cohen, an orthopedic surgeon, who he saw in June of 1988.. Shamburger testified he has had back pain “off and on all of my life.” He stated this did include lower back pain. | r,Shamburger also admitted in the months before he was employed by Ribbeck, he had suffered from “back pain in both sides of [his] low back.”

If the evidence establishes only the possibility that a work event produced the disability or leaves the question open to speculation, then the claimant fails to meet the burden of proof. Matthews v. Ron Williams Const., 2001-1122 (La.App. 3 Cir. 2/6/02), 815 So.2d 933; Cook v. Dewey Rusk Flooring, 93-1643 (La.App. 3 Cir. 8/10/94), 642 So.2d 234, writ denied, 94-2804 (La.1/13/95), 648 So.2d 1343. The WCJ noted that on the date of the alleged accident, Shamburger was under the care of a physician and taking medication. Therefore, she concluded his problems did not result from a job accident, but were a continuation of longstanding problems. We find no manifest error in this conclusion.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: I,SYLVIA R. COOKS, Judge.

license: Public Domain

text:
    Kenneth WOODS v. Debra M. HOLZHAUER, Louisiana Farm Bureau Mutual Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 02-1349.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    George W. Healy, IV, George W. Healy and Associates, Gulfport, MS, for Plaintiff/Appellant, Debra M. Holzhauer.
    William C. Rowe, The Rowe Law Firm, Baton Rouge, LA, for Defendant/Appellee, Louisiana Farm Bureau Mutual Insurance. Company.
    David Hughes, Hughes and LeFleur, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   I,SYLVIA R. COOKS, Judge.

STATEMENT OF THE CASE

This appeal presents an issue of first impression in our circuit: Whether an injured party can recover under an economic only uninsured motorist policy when the tortfeasor’s insurance is sufficient to cover the injured party’s ecomonic loss but insufficient to cover the total damages sustained. Two other circuits have already considered this issue. See Butler v. Allen, 00-1726 (La.App. 1 Cir. 9/28/01), 808 So.2d 746, writ denied, 01-2924 (La.2/1/02), 808 So.2d 331and Dunn v. Terry, 36-064 (La. App. 2 Cir. 6/19/02); 821 So.2d 714, writ denied, 02-1981 (La.10/25/02), 827 So.2d 1156.

STATEMENT OF THE FACTS

On February 24, 1999, Debra M. Hol-zhauer failed to yield the right of way causing an intersectional collision with Kenneth Woods. Mr. Woods sued Ms. Holzhauer, her insurer, Louisiana Farm Bureau Mutual Insurance Company (Louisiana Farm Bureau) and his own insurer, State Farm Mutual Automobile Insurance Company (State Farm) under the uninsured motorist provision. In addition to general damages, which Woods estimated between $8,000 and $15,000, he incurred medical expenses in the amount of $5,691.00 and lost wages in the amount of $9,460.50.

Ms. Holzhauer’s policy with Louisiana Farm Bureau provided bodily injury liability limits of $10,000 per person and $20,000 per accident. Mr. Woods’ uninsured motorist policy with State Farm provided medical payments coverage in the amount of $5,000 and economic-only uninsured motorist coverage in the amount of $10,000 per person and $20,000 per accident.

Mr. Woods settled with Ms. Holzhauer and Louisiana Farm Bureau for its policy limit of $10,000. His own insurer, State Farm, paid Mr. Woods $5,000 under the medical payments coverage of the policy. Mr. Woods filed a Motion for | ?,Summary Judgment alleging State Farm’s economic-only uninsured motorist coverage should be applied to his claim for the balance of medical expenses and the entirety of his lost wages claim of $9,460.50. He argues the $10,000 obtained in settlement from Louisiana Farm Bureau is only sufficient to compensate him for his general damages. State Farm contends under the economic-only uninsured motorist coverage of its policy, it is only obligated to reimburse Mr. Woods for economic loss which exceeds the available bodily injury liability limits of the underlying policy issued by Louisiana Farm Bureau. The trial court ruled in favor of State Farm. For the reasons assigned below, we reverse the judgment of the trial court.

LAW AND ARGUMENT

An uninsured motorist, as defined in La.R.S. 22:1406(D)(2)(b), includes a motorist whose insurance is insufficient to cover the damages suffered by the insured party. This statute provides in relevant part:

For the purposes of this coverage the term uninsured motor vehicle shall ... be deemed to include an insured, motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurer or as determined by final adjudication.

(Emphasis added.)

In 1997, the statute governing uninsured motorist coverage was amended to allow an economic-only uninsured motorist coverage. La.R.S. 22:1406(D)(l)(a)(i) provides in relevant part:

Insurers may also make available, at a reduced premium, the coverage provided under this Subsection with an exclusion for all noneconomic loss. This coverage shall be known as “economic-only” uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state.

(Emphasis added.)

I/The legislative policy underlying this additional choice to the uninsured motorist coverage was discussed in Butler v. Allen, 2000-1726 (La.App. 1 Cir. 9/28/01); 808 So.2d 746, writ denied, 01-2924 (La.2/1/02); 808 So.2d 331, as follows:

The declared legislative intent of 1997 Acts, No. 1476, known as the “Omnibus Premium Reduction Act of 1997,” was to achieve a significant reduction in the premium rates for motor vehicle insurance. The legislature intended a direct cost savings to citizens of Louisiana. The obvious reason for the lower cost of EO UM coverage is that fewer damages are covered by that type of insurance than the non-economic losses, e.g., pain and suffering, recoverable under the standard UM coverage for bodily injury. Thus, the EO UM coverage provision is meant to provide insurance coverage at a reduced rate to protect persons from suffering economic hardship in the event the tortfeasor is uninsured or underin-sured.

Id. at 749.

Under an economic only uninsured motorist policy an insured may not recover for “pain, suffering, inconvenience, mental anguish, and other noneconomic damages.” By reducing the potential risk to economic loss only, insurance companies were able to lower the cost of premiums and thereby make policies more affordable. In exchange for a lower premium, the insured assumes the risk he may not be fully compensated for his injury if the general damages exceed the limits of the tortfeasor’s underlying policy. State Farm takes the position, however, Mr.Woods is not entitled to recover for lost wages under his economic loss only uninsured motorist policy if Ms. Holzhauer’s policy is sufficient to cover his claim for economic loss regardless of whether the total damages suffered exceeds the Louisiana Farm Bureau policy. State Farm argues Mr. Woods’ lost wages of $9,460.50 was fully compensated from the proceeds of the settlement with Louisiana Farm Bureau and State Farm seeks to obtain a credit against the proceeds of the settlement with Louisiana Farm Bureau. State Farm argues it is only liable if Mr. Woods’ lost wages exceeded the Louisiana Farm Bureau limit of $10,000. A similar argument was rejected in Dunn v. Terry, 36-064 (La.App. 2 Cir. 6/19/02); 821 So.2d 714.

In Dunn, John Terry lost control of his vehicle and crashed into a tree injuring his passenger, Catherine Dunn. Ms. Dunn and her parents sued Mr. Terry and his parents. The Dunns also sued State Farm as their uninsured motorist carrier. The Dunns had three policies with State Farm. One was an uninsured motorist policy with a $10,000 per person coverage and medical payment coverage of $1,000. The other two policies were economic-only uninsured motorist policies. Each policy provided economic-only coverage in the amount of $50,000 per person and medical expenses in the amount of $5,000. The Dunns settled with Mr. Terry’s insurer for the policy limits of $25,000 and State Farm paid $10,000 and $1,000 under the uninsured motorist policy and $3,652.15 under one of the economic-only uninsured motorist policies. The parties agreed the Dunns total economic loss was $39,652.15.

State Farm argued its payment of $14,652.15 together with the $25,000 settlement with the tortfeasor’s insurer, fully compensated the Dunns. In other words, State Farm sought to apply the entire $25,000 settlement as a credit against the total economic loss of $39,652.15 suffered by Ms. Dunn. The appellate court rejected this approach, stating:

When an insurer elects to sell economic-only UM insurance, the insurer agrees to bear the risk of economic loss to its insured. Allowing the insurer to avoid a portion of this risk by automatically allocating the entirety of a settlement between the insured and a tort-feasor as a economic loss would be contrary to the policies embodied in La.R.S. 22:1406 and would allow the insurer to collect a premium for covering a risk that the insurer could then avoid when the risk was realized.

Id. at 721.

In Dunn, the general damages suffered by Ms. Dunn were not specified. The appellate court remanded for a determination by the trial court of the total damages suffered by the injured party, specifying that portion constituting general damages and that portion constituting economic loss. This determination, the appellate court held, must be made by the finder of fact or by agreement between all the parties. The Dunn court further instructed “the ratio of these economic damages to the whole damage award must be decided [and] ... then be applied to the amount paid by the tort-feasor to figure how much of the economic damages have been satisfied.” Dunn v. Terry at p. 721. The rationale for this approach, the court explained, is supported by the legislative purpose. It noted:

The legislature’s goal of promoting full recovery by innocent victims would be subverted if the economic-only uninsured motorist insurer were to receive credit for all amounts paid for economic and noneconomic damages for bodily injuries. Likewise, the legislative aim to reduce insurance rates would be supplanted if this insurer received no credit for the portion of the amount paid that was attributable to economic damages for bodily injury. To strike a balance between these concerns, the economic-only uninsured motorist insurer should get credit for the economic damages paid for bodily injury.

Id. at 721.

Butler v. Allen, 2000-1726 (La.App. 1 Cir. 9/28/01); 808 So.2d 746, writ denied, 01-2924 (La.2/1/02); 808 So.2d 331, presented a slightly different situation. In that case, the general damages suffered by the plaintiff exceeded the underlying policy limits and the settlement with the tortfea-sor clearly covered only her bodily injuries.

Plaintiff, Edith Butler, was riding as a guest passenger in a vehicle driven by Charles Powell and was injured in a rear-end collision caused by the defendant, Jacquelyn D. Allen. As a result of the accident, Ms. Butler sustained medical expenses of $4,658.76 in addition to general damages. Plaintiff sued Ms. Allen and her insurer, USAgencies. She also sued USA-gencies in its capacity as the uninsured motorist carrier for Charles Powell. Before trial, plaintiff settled with USAgencies as insurer for Ms. Allen for the policy limits of $10,000. Although the amount of general damages was not specified, the trial court found Ms. Butler had “extensive injuries”, including bulging disks, and the $10,000 she received in settlement was | (¡insufficient to cover her general damages. USAgencies, in its capacity as insurer of Mr. Powell, refused to pay her medical expenses under the economiconly uninsured motorist policy arguing her economic loss of $4,658.76 did not exceed the underlying policy limits and therefore the economic-only uninsured motorist coverage did not apply. The trial court rejected USAgencies argument and the appellate court affirmed, stating:

The USAgencies liability policy clearly provided coverage that was “less than the amount of damages suffered” by plaintiff. Plaintiff should thus be allowed to recover her medical expenses, which are economic losses expressly included in the definition of economic losses on USAgencies’ own form. Had Powell had standard UM coverage, plaintiff would have been able to recover additional damages for pain and suffering. But because Powell paid reduced premiums, USAgencies is spared that expense.
The legislative goals are met by this interpretation of Revised Statute 22:1406: Powell enjoyed the benefits of a lower premium; USAgencies will pay less to an insured than it would have had Powell had standard UM policy; and plaintiff, the innocent victim, will be covered by insurance, though the coverage is reduced in scope. We thus find the trial court’s interpretation of the statute to be legally correct.

Id. at p. 750.

In the present case, the general damages are estimated between $3,000 and $15,000. Additionally, Mr. Woods incurred medical expenses in the amount of $5,691.00 and lost wages in the amount of $9,460.50. In the aggregate, damages suffered by Mr. Woods range from approximately $18,000 to $30,000. Since the amount of coverage available under the Louisiana Farm Bureau policy is “less than the amount of damages suffered by an insured,” the State Farm policy would apply. However, we are unable to tell what portion, if any, of the $10,000 settlement with Louisiana Farm Bureau is attributable to economic loss and what portion is attributable to bodily injury. We remand for this determination.

DECREE

We find an injured party can recover under an economic-only uninsured 17motorist policy when the tortfeasor’s underlying insurance is sufficient to cover the injured party’s economic loss but insufficient to cover the total damages sustained. However, State Farm is entitled to a credit on that portion, if any, of the settlement with Louisiana Farm Bureau which represents economic loss.

REVERSED AND REMANDED.


author: |.SAUNDERS, J.

text:
    Perry CROCHET v. CHARLES HOLSTON, INC.
    No. WCW 02-1257.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Thomas Allen Filo, Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Respondent, Perry Crochet.
    Jeffrey John Warrens, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Applicant, Louisiana Workers’ Compensation Corporation, W.H. Holdings, Inc. d/b/a Perf 0 Log, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   |.SAUNDERS, J.

Defendants assert that the only issues to be addressed at the trial of this matter are the alleged failure to pay medical bills and medical mileage. Therefore, they applied for supervisory writ to review the judgment on their exception of prescription in an attempt to avoid the expense and delay of a trial on the matter. We granted supervisory writs to review the workers’ compensation court’s denial of defendants’ exception of prescription with respect to unpaid medical bills. We affirm the ruling of the Workers’ Compensation Judge (“WCJ”).

FACTS

The facts in this matter appear to be undisputed. The plaintiff, Perry Crochet, contends that on August 11, 1995, he sustained an injury in the course and scope of his employment with Perf-O-Log, Inc. Louisiana Workers’ Compensation Corporation (“LWCC”) paid medical expenses to, or on behalf of, Mr. Crochet through May 27, 1998. No further requests for payment were forwarded to LWCC until November of 2001. On or after November 19, 2001, LWCC made four additional payments of medical benefits related to Mr. Crochet’s August 11, 1995 injury for medical bills incurred after May 27, 1998, and during the statutory three-year prescriptive period. Based on this lapse of more than three years between payment of medical expenses by LWCC, the defendants argue that the three-year prescriptive period provided by La.R.S. 23:1209(0 has ran, and they are under no further obligation to pay Mr. Crochet’s medical expenses.

After a hearing the WCJ denied the exception by written judgment dated October 9, 2002. Upon request for written reasons for judgment, the WCJ orally stated:

Payment of the medical bills in this case has not prescribed. The claimant had treatment within the three-year period. The defendant paid | ¿for the medical visits. It has not prescribed.

The defendants assert that the WCJ committed legal error by declaring that Mr. Crochet’s claim for medical benefits and medical mileage had not prescribed.

DISCUSSION

The applicable prescriptive period for benefits under the workers’ compensation statutes is provided in La.R.S. 23:1209. Paragraph (C) of section 1209 deals specifically with the payment of medical benefits. Paragraph (C) provides:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

La.R.S. 23:1209(C) (emphasis added).

The unique facts of this case appear to present a question of first impression within our jurisdiction. The majority of cases addressing this particular subsection of section 1209 have questioned what specific types of payments interrupt the three-year prescriptive period. We have not found another case specifically addressing the factual situation we are presented with here, where additional medical expenses are incurred during the three-year prescriptive period following a payment of medical benefits and are voluntarily paid more than three years after the last preceding payment of medical benefits.

We first note that the rules of statutory interpretation are clear and well established.

The starting point for interpretation of any statute must be the language of the statute itself; when the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be \ applied as written and its letter shall not be disregarded in search of the intent of the legislature. LSA C.C. art. 9; Barrilleaux v. NPC, Inc., 98-0728 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, 1064, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672. (Emphasis added).

Lawson v. City of New Orleans, 99-2767 (La.App. 4 Cir. 7/12/00), 774 So.2d 163, 166.

The defendants maintain that the case of Bellard v. Grey Wolf Drilling, 98-0651 (La.App. 3 Cir. 12/9/98), 722 So.2d 1171, unit denied, 99-0059 (La.3/12/99), 739 So.2d 202, a prior case decided by this court, is controlling in this matter. While we agree that Grey Wolf presents the correct interpretation of La.R.S. 23:1209(C), and that it provides a very detailed and accurate analysis of the application of the prescriptive period for medical benefits as provided by the appropriate workers’ compensation law, Grey Wolf does not address the very specific issue before this court, nor does our decision in this matter in any way undermine the validity of the Grey Wolf opinion.

The Grey Wolf case does not address the application of section 1209(C) in an instance such as this one, where three years have passed since the last payment of medical benefits and the employer then voluntarily pays additional medical benefits after the three-year prescriptive period has run. Our holding in Grey Wolf merely states that nothing other than payments for medical benefits serves to interrupt the three-year prescriptive period provided by 1209(C).

When read in conjunction with the first sentence of that paragraph, it is clear that when medical benefits have been paid, the time limitation for making additional claims for medical benefits is three years from the last payment of medical benefits. As the statute is written, nothing other than payments of medical benefits interrupts the three year prescription provided in the second sentence of paragraph C.

Id. at 1173.

|/This circuit has routinely held that nothing but the payment of medical benefits can interrupt the prescriptive period for medical benefits. See Dequeant v. City of Jennings, 01-0141 (La.App. 3 Cir. 5/2/01), 784 So.2d 860. Until recently there has been a split within the circuits on this issue. In Boquet v. Tetra Techs., Inc., 02-1634 (La.2/25/03), 839 So.2d 13, the supreme court settled the split among the circuits on this issue and accepted our analysis of 1209(C)’s prescriptive period. The supreme court found the language of La.R.S. 23:1209(C) to be clear and unambiguous, stating:

The plain language of these provisions leads to the inescapable conclusion that when medical benefits have been paid, the time limitation for making additional claims for medical benefits is three years from the last payment of medical benefits. Because the legislature chose to qualify the three-year period with the last payment of “medical” benefits, instead of simply the last payment of “benefits,” we are constrained to find that only defendants’ payment of medical benefits serves to interrupt the three-year prescriptive period established in La. R.S. 23:1209(C).

Boquet, 839 So.2d at 17-18.

Chief Justice Calogero authored a concurrence to the Boquet opinion, however, recognizing that the 1985 amendment of 1209(C) is poorly drafted legislation, which likely does not accurately reflect the intent of the legislature. In his concurrence Chief Justice Calogero stated:

[T]he only policy § 1209(C) furthers is one that encourages the injured employee who is drawing weekly indemnity benefits to incur unnecessary medical expenses for the purpose of keeping his claim for medical expenses alive. See Levatino [v. Domengeaux & Wright, P.L.C.], 593 So.2d [721], 724 [ (La.App. 1 Cir.1991) ]- Section 1209(C) needlessly operates in this case to deny a validly injured worker expense reimbursements for medical treatment received after a three-year period where the worker did not, often for commendable reasons, seek treatment from a physician.

Boquet, 839 So.2d at 18-19.

The defendants also rely heavily on the supreme court case of Lima v. Schmidt, 595 So.2d 624 (La.1992), as support for their argument that after three years of non-payment the prescriptive period of 1209(C) has accrued and it may not be interrupted. We first note that in Lima the supreme court was specifically addressing the one-year prescriptive period for delictual actions provided by La.Civ. Code art. 3492. Article 3492 provides:

Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

The language used in 1209(C) is substantially different from the language in article 3492 in that 1209(C) provides for the running of prescription from the date of a payment, rather than the date of incident or accident. Therefore, unlike article 3492 where the prescriptive period start date is fixed in time and begins to run from the date of incident, once medical benefits have been paid to an employee the prescriptive period in La.R.S. 23:1209(C) resets every time a subsequent payment of medical benefits is made until such time as the statutory prescriptive period runs uninterrupted. As the supreme court stated in Lima, “we observe that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted.” Lima, 595 So.2d at 629.

In addition to this distinction, however, we recognize no prescription problem under this set of facts. We do not see this as a matter of interrupting prescription after it has run. As we read 1209(C), the last sentence applies to each individual expense rather than all medical expenses as a group. Mr. Crochet received medical benefits | ¿from LWCC until May 27, 1998. Within the three-year statutory prescription period provided by 1209(C) Mr. Crochet received additional medical treatment for his injuries arising from the August 11, 1995 work-related injury.

Under the facts of this case the last payment for medical expenses on Mr. Crochet’s behalf was made on May 27, 1998. Under our reading of 1209(C), if Mr. Crochet had incurred expenses before May 27, 1998, had incurred no other expenses for three years, and failed to reach an agreement on payment or file a formal claim, those expenses would have prescribed. If he incurred expenses before May 27, 1998, incurred additional expenses within three years from May 27, 1998, failed to make a claim for the old or new medical expenses within three years from May 27, 1998, and failed to reach an agreement on payment, the medical expenses incurred prior to the payment on May 27 would still have prescribed. As with the present matter, however, the later expenses, if agreed to by the parties or if the employee filed a formal claim within three years from the time they were incurred, would not have prescribed.

Since the November 2001 payments were for medical expenses incurred within the statutory prescriptive period, they now become the last medical payments for the purpose of calculating prescription under 1209(C). Based on the above analysis, we find that the language of La.R.S. 23:1209(C) is clear and unambiguous. As stated in the statute, “this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.” LWCC voluntarily made payments to, or on behalf of, Mr. Crochet in November of 2001 for medical expenses incurred less than three years after the LWCC’s May 27, 1998 payment of medical benefits. Those payments are clearly the “last payment of medical benefits” by |7LWCC. Therefore, Mr. Crochet’s claims for medical benefits submitted within three years of those payments have not prescribed.

DECREE

For the reasons stated above we affirm the ruling of the workers’ compensation judge and deny writs. We assign all costs of this writ to the defendants.

WRIT DENIED.


author: LPETERS, J.

text:
    STATE of Louisiana v. Norman P. JEAN.
    No. CW 02-1261.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    Norman P. Jean, Angola, LA, Pro Se DefendanVApplicant.
    Robert Richard Bryant, Jr., District Attorney, Lake Charles, LA, For Respondent, State of Louisiana.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   LPETERS, J.

Norman P. Jean seeks supervisory writs from a judgment of the trial court denying his request for a copy of his criminal file in the possession of the Office of District Attorney of the Fourteenth Judicial District (district attorney). For the following reasons, we grant Mr. Jean’s writ application and remand this matter to the trial court for further proceedings consistent with this opinion.

In April of 1995, Mr. Jean was convicted of second degree murder, a violation of La.R.S. 14:30.1. After the trial court sentenced Mr. Jean to the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence, he appealed that sentence to this court. This court affirmed Mr. Jean’s conviction and sentence in an unpublished opinion. State v. Jean, 95-885 (La.App. 3 Cir. 5/1/96). He has remained in prison since his conviction.

Although Mr. Jean has unsuccessfully sought post-conviction relief on more than one occasion since his conviction, the issue before this court has no direct relation to his post-conviction efforts. Specifically, Mr. Jean is attempting to obtain a free copy, or at least a copy at a reduced rate, of the district attorney’s file in his criminal case under the provisions of the Louisiana Public Records Law, La.R.S. 44:31 et seq.

On June 17, 1999, he filed a mandamus action, asserting that he had requested a copy of his criminal file from the district attorney and that the district attorney had agreed to provide a copy if he would pay a $1.25 per-page fee for the cost of reproduction. In his pleading, Mr. Jean asserted that his purpose in attempting to obtain a copy of the file was “in order to do a thorough investigation into his arrest and his pre-trial and trial to see if there are any errors that may assist him in |aobtain[ing] some relief.” Mr. Jean’s request for relief in this pleading is vague in that he acknowledges that the district attorney had already agreed to provide him with a copy of the file. While Mr. Jean requested that the district attorney “be required to provide the requested records without any further delay,” he did not specifically assert that he was attempting to obtain the file without paying the cost of its reproduction.

The trial court denied this request without a hearing by issuing a written judgment on July 12, 1999. In that judgment, the trial court stated that “[Mr. Jean] has failed to specify the documents wanted from the District Attorney’s file. Furthermore, [Mr. Jean] has not paid the funds required, nor has he requested a hearing, as required by LSA-C.Cr.P. Art. 822.” Mr. Jean did not appeal this judgment.

On January 23, 2002, Mr. Jean filed a pleading entitled “MOTION TO COMPEL PRODUCTION OF DOCUMENTS ” wherein he requested that the trial court order the district attorney to provide him with an itemized list of the documents in his prosecution file and to inform him of a specific price for a copy of the complete file. By written judgment dated February 25, 2002, issued again without a hearing, the trial court ordered the clerk of court to provide Mr. Jean, at no cost, with the following documents associated with his criminal prosecution: the transcript and minutes of the guilty plea colloquy, the minute entry of Mr. Jean’s sentencing hearing, a copy of the grand jury indictment, and a copy of the sentencing transcript. The trial court denied the production of any other documents on the basis that Mr. Jean had made no showing of a particularized need for them.

Mr. Jean did not appeal this judgment. Instead, on April 24, 2002, he filed a pleading asking the trial court to reconsider its February 25, 2002 judgment. In this 1 ¿pleading, Mr. Jean suggested that the trial court misconstrued his prior motion and again requested that the district attorney be ordered to provide him with an itemized list of the documents in his criminal file and a specific price for a copy of his complete file. The trial court responded to this pleading by rendering a judgment, again without a hearing, similar in language to the February 25, 2002 judgment. The trial court signed this judgment on May 1, 2002, and it was filed of record on May 13, 2002. Mr. Jean did not appeal this judgment.

Mr. Jean next filed, on June 26, 2002, a pleading entitled “Motion For Production Of District Attorney’s Files.” In this pleading, Mr. Jean requested that the trial court order the district attorney to provide him with a copy of its entire file relative to his prosecution. However, the pleading does not request that the trial court order the district attorney to reproduce the file at no cost. On July 19, 2002, without a hearing, the trial court issued the following judgment:

On June 26, 2002, Petitioner, Norman Jean, filed a pro se Motion for Production of District Attorney’s Files with this Court. The motion is premised on LSA-R.S. 44:31. Petitioner’s case has been adjudicated to completion, as such Petitioner’s request is GRANTED. Petitioner is entitled to a copy [of] the files and arrest records which the District Attorney of Calcasieu Parish has regarding the above enumerated matter.
Petitioner also requests information regarding the make up of grand juries in Calcasieu Parish since 1984. This information is part of a public record and as such Petitioner’s request is GRANTED.

The district attorney did not appeal this judgment. Instead, in a letter dated August 19, 2002, a representative of the district attorney’s office wrote to Mr. Jean, informing him that the total cost of reproduction of his file would be $1,125.00 and requesting payment of that amount.

The district attorney’s letter prompted Mr. Jean to file the pleading which is the basis of the matter now before us. In this September 12, 2002 pleading, Mr. Jean | ¡requested that the district attorney be ordered to make the prosecution file available to him at a reduced rate. Without a hearing, and in response to this pleading, the trial court issued an order on September 19, 2002, similar in content to the judgments of February 25 and May 1, 2002. Again, the trial court- specifically stated in its judgment that Mr. Jean had failed to establish a particularized need for the district attorney’s file and, therefore, was not entitled to the production of the file. In addition, the trial court reiterated Mr. Jean’s entitlement, at no cost, to the documents specifically enumerated in the January 25, 2002 judgment. This writ application followed the issuance of the September 19, 2002 judgment.

OPINION

Mr. Jean bases his request on the Louisiana Public Records Law, La.R.S. 44:31 et seq. Louisiana Revised Statutes 44:31 provides:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce, or obtain a reproduction of any public record.
(2) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

However, the Louisiana Public Records Law establishes additional requirements for a person who has been incarcerated for a felony conviction to take advantage of its provisions.

For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3. Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record |fito determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3.

La.R.S. 44:31.1.

Mr. Jean is in custody following a felony conviction and has exhausted his appellate remedies.

We first note that this is a civil action and not a criminal action. Thus, the judgments of July 12, 1999, February 25, 2002, May 1, 2002, and July 19, 2002, were all appealable final judgments. La.Code Civ.P. art. 1841. However, neither Mr. Jean nor the district attorney appealed any of these judgments. The only effort at modifying these judgments was Mr. Jean’s motion for reconsideration of the February 25, 2002 judgment, which can only be interpreted as a motion for new trial. That motion was not timely filed. La.Code Civ.P. art.1974. However, the district attorney did not object to this untimely filing.

The pleading filed by Mr. Jean on June 26, 2002, sought the same relief that had previously been denied in the judgments of July 12, 1999, and February 25, 2002. The district attorney filed no objection. The trial court’s July 19, 2002 judgment granted Mr. Jean the relief that he had previously been denied. Therefore, we are faced with conflicting final judgments in the same civil action. However, the final, definitive judgment concerning Mr. Jean’s right to use the Louisiana Public Records Law to achieve his objective is the judgment of July 19, 2002. Therefore, we will not consider any judgment rendered prior to the July 19 judgment in this writ application.

For the purposes of this review, it is important to note exactly what the judgment of September 19, 2002, provides. The pertinent language of that judgment 17provides as follows:

Petitioner, Norman Jean, has filed a Motion [to] request [a] free copy of the District Attorney’s file regarding the above entitled matter and a motion to proceed in forma pauperis;
In accordance with State ex rel. Simmons v. State, 647 So.2d 1094 (La.12/16/94), IT IS HEREBY ORDERED that the Clerk of Court for the Parish of Calcasieu, State of Louisiana, provide petitioner with a copy of the following documents, at no cost:
1. Transcript and minutes of Guilty Plea Colloquy (Boykin);
2. District Court minute entry of his sentencing hearing;
3. Bill of Information charging petitioner with this crime.
Pursuant to Bernard v. Criminal Dist. Court Section J, 653 So.2d 1174 (La. 1995), the court is not required to grant a motion for production of a document other than a copy of transcript of the Boykin proceeding unless the motion establishes that the [document] will support a particularized need for the sentencing transcript. Petitioner has not established such a particularized need for copies of the District Attorney’s file regarding the above entitled matter.
THEREFORE, IT IS ORDERED that petitioner’s request for production of the above listed document is DENIED.
IT IS FURTHER ORDERED that the petitioner’s motion to proceed in for-ma pauperis be GRANTED.

This judgment attempts to place restrictions on Mr. Jean’s request by imposing the particularized-need requirement of La. R.S. 44:31.1. However, the July 19, 2002 judgment, which is the basis for Mr. Jean’s request for a reduced fee, places no restrictions on his access to the prosecution file. As previously stated, that judgment is a final judgment and, regardless of its correctness, cannot now be modified by the trial court.

Mr. Jean has been consistently granted pauper status throughout this litigation. The district attorney does not question Mr. Jean’s right to the entire file, with or without a showing of particularized need, but argues that there exists no authority for requiring it to reproduce the file without the payment of the cost of the reproduction, |seven assuming Mr. Jean’s pauper status. We disagree. There is statutory authority for Mr. Jean’s request in La.R.S. 44:32(C)(l)(a), which provides:

For all public records, except public records of state agencies, it shall be the duty of the custodian of such public records to provide copies to persons so requesting. The custodian may establish and collect reasonable fees for making copies of public records. Copies of records may be furnished without charge or at a reduced charge to indigent citizens of this state.

(Emphasis added.)

Thus, this statute is permissive rather than mandatory in the trial court’s consideration of a reduced charge to indigent citizens.

The first circuit, in State ex rel. McKnight v. State, 98-2258, p. 1 (La.App. 1 Cir. 12/3/98), 742 So.2d 894, 895, noted that an inmate proceeding under the Louisiana Public Records Law “should be prepared to pay the regular service fees for copies of the documents,” if he is successful. See also State ex rel. Nash v. State, 604 So.2d 1054 (La.App. 1 Cir.1992). Thus, normally the question to be answered is whether the trial court abused its discretion in refusing to grant relief under La.R.S. 44:32(C)(l)(a).

We cannot address that issue at this time because we find that the trial court has yet to address that issue. We find it necessary to grant the supervisory writ and remand the matter to the trial court to consider whether Mr. Jean is entitled to relief under La.R.S. 44:32(C)(l)(a) in light of its July 19, 2002 judgment giving him unrestricted access to the district attorney’s file, without regard to the particularized-need requirement of La.R.S. 44:31.1.

DISPOSITION

For the foregoing reasons, we grant Mr. Jean’s supervisory writ application and remand this matter for the trial court to determine whether Mr. Jean is entitled to | flrelief under La.R.S. 44:32(C)(l)(a).

WRIT GRANTED AND REMANDED WITH INSTRUCTIONS.


author: It DECUIR, Judge. _jjAMY, J.,

text:
    Karl D. CONRAD v. CITY OF NEW IBERIA.
    No. CA 03-0121.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      John Blackwell, Attorney at Law, New Iberia, LA, for Plaintiff/Appellee, Karl D. Conrad.
    J. Scott Thomas, Baton Rouge, LA, for Defendant/Appellant, City of New Iberia.

      Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   It DECUIR, Judge.

In this slip and fall case, the City of New Iberia appeals a judgment of the trial court finding it hable for damages sustained by Karl Conrad. For the reasons that follow, we affirm the judgment of the trial court.

FACTS

Karl Conrad lives at 112 Dalton Drive in New Iberia. Dalton Drive is a two-lane concrete city street which is drained by catch basins and drain pipes underneath the neutral ground. There are no sidewalks on Dalton Drive. The front of Conrad’s property is completely blocked by hedges, trees, ground cover and an iron mailbox, leaving the driveway as the only means of ingress and egress. As a result, Conrad was immediately aware when, in March or April of 2000, the street in front of his driveway began to sink causing rainwater to accumulate. The water would stand the full width of his driveway at a depth of two to three inches. Even when the water evaporated, dirt and silt would remain leaving the area slippery.

On June 14, 2000, Conrad went in person to the City of New Iberia’s maintenance facility and reported the problem. Later that day, Kim Sheppard, a city employee went to inspect the problem. He recommended that a catch basin be installed. Sheppard’s supervisor, Mark Delcam-bre, refused to approve the recommendation noting in his records that the problem was “nuisance water-no action needed.”

Two weeks later, Conrad returned to the facility to report the problem, and a catch basin was approved by Joe Boles, Director of Public Works for the City of New Iberia. Mr. Boles testified, however, that the job was placed on a low priority list. No evidence was introduced to establish how jobs are ranked or that there actually was such a ranking procedure.

|2On August 1, 2000, Conrad was returning to his home from the home of a sick neighbor. Stepping in the standing water at the foot of his driveway, he slipped and fell sustaining serious injuries. Conrad filed suit to recover for his injuries. After trial on the merits, the trial judge rendered judgment awarding $150,000.00 in general damages, $30,355.99 in medical expenses and apportioning fault 90% to the City of New Iberia and 10% to Conrad. The City of New Iberia lodged this appeal.

LIABILITY

The City of New Iberia contends that the trial court erred in finding that the defect created an unreasonable risk of harm and that the City of New Iberia had a reasonable opportunity to remedy the defect. We disagree.

As noted by the trial court:
In order for the City of New Iberia to be found liable for his injuries, plaintiff must prove that 1) the thing which caused the damage was in the custody of the defendant; 2) the thing contained a defect which created an unreasonable risk of harm to the plaintiff; 3) the defective condition of the thing caused the plaintiffs injuries; and [4]) defendant had actual or constructive notice of this defective condition and had a reasonable opportunity to remedy the defect, and failed to do so. Maxwell v. Board of Trustees for State Colleges & Universities, [96-1207 (La.App. 3 Cir. 3/19/97), 692 So.2d 641, writ denied, 97-0996 (La.6/13/97) ], 695 So.2d 987; Odom v. State, Dept. of Transp. and Development, [96-1605 (La.App. 3 Cir. 9/25/96) ], 688 So.2d 1082 [writ denied 96-2574 (La.1/24/97), 686 So.2d 858].

The City of New Iberia asserts error with regard to elements three and four. Appellate review of a trial court’s factual findings is limited by the manifest error rule. Stobart v. State, Through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

With regard to the existence of a defect that constituted an unreasonable risk of harm, the trial court noted that the City of New Iberia, through its employees, recognized the existence of the defect and issued an order for its repair. The City of New Iberia argues that even if a defect exists, the property owner only owes a duty lato keep the premises in a safe condition for use in a manner consistent with the purposes for which it is intended. Amest v. City of Breaux Bridge, 01-1034 (La.App. 8 Cir. 12/12/01), 801 So.2d 582. The City argues that Dalton Drive is a city street intended for vehicular traffic and was safe for its intended purpose. The trial court however, specifically noted the lack of sidewalks on Dalton Drive and the fact that Conrad had no other means of ingress or egress which would avoid the water or remaining silt. We note that the unreasonable character of a defect must be decided on the particular facts and circumstances of each case. Boddie v. State, 27,313 (La.App. 2 Cir. 9/27/95), 661 So.2d 617. After carefully reviewing the evidence in this case, we find no manifest error in the trial court’s determination that a defect existed which constituted an unreasonable risk of harm.

The City next argues that the trial court erred in finding that it had a reasonable opportunity to correct the defect. The trial court was faced with evidence that a crew was working in the area a short time before the accident, testimony regarding the City of New Iberia’s alleged priority system, and the repair of the defect shortly after the accident. Striking the balance between this contradictory evidence is the primary purview of the trial court. Accordingly, after careful consideration of the evidence presented, we find no manifest error in the trial court’s determination that the City of New Iberia had a reasonable opportunity to remedy the defect.

ALLOCATION OF FAULT

The trial court concluded that the City of New Iberia was ninety percent at fault, and plaintiff, Karl Conrad, was ten percent at fault. The City of New Iberia contends this allocation of fault was erroneous.

Causation and apportionment of fault are questions of fact, and the fact finder’s determinations should not be overturned absent a showing of manifest error. _|^Williams v. Allstate, 599 So.2d 478 (La.App. 3 Cir.1992). We are further mandated to view the evidence in the light most favorably supporting the trial court judgment. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s determination is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

In determining percentages of fault cast, if any, the trier of fact should consider both the nature of the conduct of each party and the extent of the causal relation between the conduct and the damages claimed. Tenpenny v. Ringuet, 95-1036 (La.App. 3 Cir. 3/6/96), 670 So.2d 644, writ denied, 96-0880 (La.5/17/96), 673 So.2d 612. After reviewing the record, we find no manifest error by the trial court in its allocation of fault.

MEDICAL EXPENSES

The City of New Iberia contends the trial court erred in awarding $30,355.99 in medical expenses where some of that expense was paid by medicare. We disagree.

The City of New Iberia argues that this court should not follow the precedent set in its previous finding in Brannon v. Shelter Mut. Ins. Co., 520 So.2d 984 (La.App. 3 Cir.1988), because the law has evolved since that date and the second and fourth circuits have declined to follow it. See Suhor v. Lagasse, 00-1628 (La.App. 4 Cir. 9/13/00), 770 So.2d 422; Terrell v. Nando, M.D., 33-242 (La.App. 2 Cir. 5/10/00), 759 So.2d 1026. This court recently had an opportunity to address the evolution of the law in this area and emphatically stated, “In Brannon v. Shelter Mut. Ins. Co., 520 So.2d 984 (La.App. 3 Cir.1987), we held the collateral source rule applies to Medicare payments. We find the appellant’s argument clearly supported by the jurisprudence and order the award for medical expenses increased to |K$6,617.08.” True man v. City of Alexandria, 01-1130, p. 8 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, 1026, writ granted, 02-2166 (La.11/15/02), 829 So.2d 410. Accordingly, we find no error in the trial court’s award of medical expenses in this case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, the City of New Iberia.

AFFIRMED.

AMY, J., dissents and assigns written reasons.

_jjAMY, J.,

dissenting.

I respectfully dissent from the majority decision, as I find a reversal is required. My review of the record indicates that the plaintiff failed to prove the presence of a defect creating an unreasonable risk of harm. Even in the presence of a defect, the unreasonable risk of harm analysis “requires a ‘balance of the intended benefit of the thing with its potential for harm and the cost of prevention.’ ” McGuire v. New Orleans City Park Imp. Ass’n., 02-1401, p. 7 (La.1/14/03), 835 So.2d 416, 421, quoting, Pitre v. Louisiana Tech Univ., 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585. See also Boyle v. Board of Super’rs, 96-1158 (La.1/14/97), 685 So.2d 1080; Maxwell v. Board of Trustees, 96-1207 (La.App. 3 Cir. 3/19/97), 692 So.2d 641, writ denied, 97-0996 (La.6/13/97), 695 So.2d 987. According to the record, the specific type of pooling of water complained of in this case is common throughout the City. This particular puddle was not found to be out of the ordinary by City employees. Nor was it found to be an emergency. Furthermore, according to McGuire, we must consider the condition’s “obviousness” and “appar-entness.” Of particular importance given the facts of this case, is the supreme court’s statement in McGuire, 02-1401, p. 7; 835 So.2d at 421 that: “If the facts demonstrate that the complained of condition was obvious to all, the condition is not unreasonably dangerous and the defendant owes no duty to the plaintiff.” The plaintiffs awareness of the condition in the instant matter is undisputed. Having considered the record in fight of the supreme | ^court’s instruction as to the unreasonable risk of harm analysis, I conclude that the imposition of liability against the City was manifestly erroneous.


author: 11 EZELL, Judge.

text:
    Larry N. PRESTRIDGE v. Gary ELLIOTT.
    No. 03-94.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      William M. Ford, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, Larry N. Prestridge.
    Randal Bryan Tannehill, Tannehill & Sylvester, Pineville, LA, for Defendant/Ap-pellee Gary Elliott.

      Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   11 EZELL, Judge.

The case presents the question of whether Gary Elliott is liable to Larry Prestridge for foundation problems in Prestridge’s new home. Finding the parties did not enter into a contract, the trial court held that Elliott was not responsible for the foundation problems in Prestridge’s home. Prestridge appeals.

FACTS

Elliott is a residential builder in the Pineville area, and Prestridge is a real estate agent. The two became acquaintances when Prestridge began selling homes built by Elliott. Prestridge decided he wanted to build a house on some family property, so he approached Elliott about helping him. Elliott agreed to help Pres-tridge.

Prestridge and his teenage daughter moved into the house on December 21, 1999. Less than six months after moving into the home, Prestridge started noticing problems in his house; the interior doors would not stay open, the door inside of the garage leading into the house started dragging, the laminate started coming apart, the front door would not open, and hairline cracks began appearing on the outside as well as the inside of the house. As the months went by these cracks became larger and larger. Other problems also got worse. The bricks on the outside of the house started separating, the sheet-rock was separating in all the rooms, the interior doors would not close unless propped open, and the track of the electric garage door came loose from the .wall.

Initially, Prestridge called Elliott about the problems, who did come by the house, but he did not correct anything. Pres-tridge then wrote a letter to Elliott on December 18, 2000, about the problems in the home. However, Prestridge testified that he got no response. Prestridge wrote another letter on June 1, 2001, notifying | ^Elliott about the cost to repair the home. Subsequently, Prestridge’s attorney also mailed a letter by certified mail to Elliott on August 22, 2001.

Prestridge then filed suit against Elliott on September 5, 2001. He amended the petition to also name Gary Elliott Construction, Inc., as an additional defendant. Elliott denied liability on the basis that there was no contract between the parties in addition to claiming he did not receive any money for work as a general contractor- on the job. Elliott filed a reconven-tional demand alleging his entitlement to general contractor fees and all costs of construction which Prestridge had yet to reimburse.

After trial, the trial court found that there was no contract between the parties and that Elliott had simply allowed Pres-tridge to use his accounts with various suppliers to secure materials at his contractors’ cost. Prestridge then filed the present appeal.

CONTRACT

Prestridge first argues that the trial court erred in finding that there was no contract between him and Elliott. Pres-tridge argues that even if Elliott only built the house as a “ftiend,” there was still a contract between the two parties.

“A .contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La.Civ. Code art.1906. There are four necessary elements for a valid contract: capacity, consent, lawful cause, and object. La.Civ. Code arts.1918, 1927, 1966, 1971. Furthermore, “[a] contract is formed by the consent of the parties established through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” La.Civ. Code art.1927.

| .-¡There is no dispute that there is no written contract between the parties. Therefore, the question is whether there was an oral contract in which. Elliott agreed to build a home for Prestridge.

Louisiana Civil Code Article 1846 regarding the proof for oral contracts provides:

When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.

The first circuit discussed the burden of proof requirements of Article 1846 in Pennington Const., Inc. v. R.A. Eagle Corp., 94-575, p. 5 (La.App. 1 Cir. 3/3/95), 652 So.2d 637, 639 (citations omitted) as follows:

To meet the burden of proof of an oral contract by a witness and other corroborating circumstances, a party may serve as his own witness and the “other corroborating circumstances” may be general and need not prove every detail of the plaintiffs case. However, the corroborating circumstances that are required must come from a source other than the plaintiff. Whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact. Our review of factual conclusions is limited to a review of the entire record to determine if those conclusions are clearly wrong.

Prestridge testified that he and Elliott discussed building a home for Prestridge on more than one occasion. Prestridge stated that they came to an agreement that Elliott would build him a home for $75,000. Prestridge explained that Elliott supplied all of the labor and materials, including the subcontractors, and paid for them.

In support of his claim that the parties had a contract, Prestridge introduced into evidence the building permit application for the home which Gary Elliott applied for as the contractor, listing Larry Pres-tridge as the owner. The total cost on the Lpermit was listed at $70,000. Also introduced into evidence was the ledger that Elliott’s wife kept during the project showing the expenses that they incurred on the job which totaled $83,175.49. Elliott’s wife, Charlene, testified that the cost included builder’s risk insurance and liability insurance, which was confirmed by the ledger introduced into evidence. A waiver of liens was also introduced into evidence. It was signed on December 14, 1999, by Gary Elliott as the general contractor in addition to other subcontractors. A termite certificate also indicated that Gary Elliott was the general contractor on the job. Prestridge also introduced checks payable to Gary Elliott Construction, Inc.

Elliott testified that cost of the home was an issue for Prestridge, so he told Prestridge that he would do the inside wood work for free. Elliott stated that Prestridge had his own electrician but admitted he hired the other subcontractors including those who poured the slab, framed the house, installed the drywall, did the painting, and installed the roof. Elliott testified that he was doing this as a favor to Prestridge and that no money went into his pocket as a profit.

In written reasons for judgment the trial court explained its reasons for finding that no contract existed as follows (emphasis supplied):

After careful consideration of the testimony of the parties, a review of the memorandums filed by counsel and the applicable law, the court finds the most likely explanation for this unfortunate circumstance is that it is simply a misunderstanding. The court finds that the plaintiff was unable to meet his burden of proof and that what happened here simply was that the defendant, Mr. Elliott, agreed to help the plaintiff build a house and in fact there was no traditional contract. The court finds the defendant, Mr. Elliott, simply allowed Mr. Prestridge to use his accounts with various suppliers to secure materials at his contractors [sic] cost. In summary the plaintiff was not able to prove that he contracted with the defendant to build the home in question.

lRThe trial court itself recognized that there was an agreement between Elliott and Prestridge to help Prestridge build his home. While this may not have been a traditional contract in the sense that Elliott would not make a profit, the evidence is clear that there was an oral contract between the parties that Elliott would help Prestridge build a home in the $70,000 price range, satisfying all requirements necessary for the formation of a contract. Article 1910 of the Louisiana Civil Code recognizes a gratuitous contract “when one party obligates himself towards another for the benefit of the latter, without obtaining any advantage in return.” The trial court erred in failing to acknowledge this fact.

As noted by the first circuit in Townsend v. Urie, 00-730 (La.App. 1 Cir. 5/11/01), 800 So.2d 11, writ denied, 01-1678 (La.9/21/01), 797 So.2d 674, the cause of a gratuitous contract is the mere generosity or liberality of the giver. Therefore, while this may not have been a traditional, onerous contract to build a home, it was a gratuitous contract to build a home. We agree with the trial court that Elliott agreed to help Prestridge build a home and find that the facts clearly establish that there was a contract between the parties.

LIABILITY

Prestridge asserted a claim under the New Home Warranty Act (NHWA), La.R.S. 9:3141, et seq. His primary claim is that his home has suffered a differential settlement of the foundation, commonly referred to as a cracked slab. Pursuant to La.R.S. 9:3150, Louisiana jurisprudence has held that the NHWA is the exclusive remedy when the cause of action arises from construction defects, violations of the building code, or poor workmanship. Thorn v. Caskey, 32,310 (La.App. 2 Cir. 9/22/99), 745 So.2d 653; Sowers v. Dixie Shell Homes of Am., Inc., 33,390 (La.App. 2 Cir. 5/15/00), 762 So.2d 186, writ denied, 00-1770 (La.9/22/00), 768 So.2d 1286. | (¡Physical damage to the foundation systems and footings is a “major structural defect” pursuant to La.R.S. 9:3143(5)(a) which is covered by the NHWA. Although, we find that there was a contract between Prestridge and Elliott, it is clear that the NHWA provides the exclusive remedy for Prestridge.

In addition to his personal observations of the defects in the home and the pictures introduced into evidence showing these defects, Prestridge introduced the testimony of Richard Primeaux, a professional engineer who inspected the home on May 19, 2001.

Primeaux observed a differential settlement of the foundation around the front, west, and rear walls. He testified that the soil is a highly expansive clay that expands when it gets wet and shrinks when it dries. He further explained that without an adequate foundation to resist these pressures, it will move up and down, starting to crack the house, which is what he found occurred in Prestridge’s home. After viewing recent photographs, Primeaux stated that there is a lot more cracking and a more severe separation of the brick since his visit to the home.

Primeaux opined that a foundation was not provided that would resist the movement of that soil type. He explained that different types of designs are used on this expansive clay. It was his experience that the waffle-type slab is the most effective. Primeaux testified that even with piers placed underneath the foundation before the house was built, which is what Elliott testified was done, a waffle-type slab would have prevented the problem.

In order to repair the problem, Pri-meaux recommended underpinning the perimeter of the house with drill piers and drilling a twelve-to-sixteen-inch hole, ten feet below the bottom of the footing, putting a three-foot square cap on the top of the drill pier and letting it cure out. He would then jack the house off of that and put | ./permanent steel or concrete piers between the pier that was poured and the bottom of the footing. However, he stated that the entire house would now have to be underpinned since the damage is worse. He initially estimated twenty-one piers but now estimates it will take thirty-eight piers which would cost around $14,000.

N.J. Bonnette, a licensed contractor who performs house leveling, testified that he conducts the type of work that Primeaux suggested for correcting the Prestridge home defects. After viewing the house, Bonnette agreed that the house had a cracked slab. His original estimate to repair the home was $7,400, but he stated that with continued deterioration the cost would be higher now. He did think $14,000 was reasonable for the installation of thirty-eight piers.

James Moreau, a painting contractor, testified that it would cost $2,987 to repair the damage inside. It had been ten months since his estimate, so it would be an additional $700 to $1,000 to repair now. Moreau stated that he would do the work inside once the house was back in position.

No evidence was offered by Elliott to suggest that the problems with the home were caused by something other than a foundation problem. The NHWA in La. R.S. 9:3144(B)(18) does provide that:

Unless the parties otherwise agree in writing, the builder’s warranty shall exclude the following items:
Any loss or damage to a home caused by soil conditions or soil movement if the home is constructed on land owned by the initial purchaser and the builder obtains a written waiver from the initial purchaser for any loss or damage caused by soil conditions or soil movement.

There is no evidence of a written waiver in the record. Therefore, the builder’s warranty under the NHWA did cover the damage in this case. We find that Prestridge established that Elliott breached the warranty to provide a home free from a major Estructural defect in the home’s foundation. Accordingly, Pres-tridge is entitled to recover from Elliott under the NHWA.

The NHWA provides that an owner has a cause of action against the builder “for actual damages, including attorney fees and court costs, arising out of the violation.” La.R.S. 9:3149. Prestridge is entitled to actual damages, including attorney fees and court costs. Prestridge established that it would take $14,000 to repair the foundation, $3,687 to repair and paint the inside of the home, and that he already spent $45 to repair a door. There is no doubt that Prestridge has established that he is entitled to $18,032 for the costs to repair the defects in the home. This was uncontroverted.

Prestridge also claims that he is entitled to mental anguish damages in the amount of $7,500. Following McGee v. Yazoo & M.V.R. Co., 206 La. 121, 19 So.2d 21 (1944), this court held that “[mjental anguish is considered an actual or compensatory damage.” Eubanks v. State, Dept. of Transp. and Dev., 620 So.2d 954, 958 (La.App. 3 Cir.), writs denied, 629 So.2d 351, 353 (La.1993).

Prestridge stated that he had been planning for several years to build a home on his family property for himself and his teenage daughter. However, Prestridge testified that his daughter, who designed her own room, is now embarrassed to bring any of her friends over. Prestridge also stated that he too is embarrassed of the home and does not want anyone to come over and see it in its present condition.

We find that Prestridge has proven he is entitled to mental anguish damages. This was supposed to be a home which would be a source of comfort for him and his daughter which is now a source of distress. We agree that an award of $7,500 is reasonable under the circumstances.

|flPrestridge has also requested an award of attorney fees which are permissible under the NHWA. The Louisiana Supreme Court has set forth factors to be considered in determining the reasonableness of attorney fees in Rivet v. State, Dept. of Transp. and Dev., 96-145, pp. 11-12 (La.9/5/96), 680 So.2d 1154, 1161:

(1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge.

Furthermore, where the record fails to disclose the exact amount of time the plaintiffs attorney spent preparing the case, the trial court may fix the amount of attorney fees based on the record. Voitier v. Church Point Wholesale Beverage Co., 99-1777 (La.App. 3 Cir 4/5/00), 760 So.2d 451, writ denied, 00-1920 (La.9/29/00), 770 So.2d 350.

It is obvious that Prestridge’s attorney spent time preparing the case for trial. Several experts testified, in addition to the introduction of documents that were procured to support his position. Additionally, there was also the work on appeal which has proven successful for Prestridge. Based on the record, we find that an award of $9,000 as attorney fees is appropriate.

In addition to the above requests, Pres-tridge has requested that expert witness fees be taxed as court costs. Expert witnesses are entitled to be compensated for their services in an amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La.R.S. 13:3666.

Factors to be considered by the court in setting an expert witness fee include:

time spent testifying, time spent in preparatory work for trial, time spend away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the | ^complexity of the problem addressed by the expert and awards to experts in similar cases.

Hammock ex rel. Thompson v. Louisiana State Univ., 34,086, p. 11 (La.App. 2 Cir. 11/1/00), 772 So.2d 306, 314 (citation omitted).

Three experts testified on behalf of Prestridge at trial: an engineer, a house-leveling contractor, and a painting contractor. These experts stated that they visited Prestridge’s home in order to assess the damage and estimate the costs to repair. Primeaux, the engineer, also presented a report which cost $250 and included the inspection and his recommendations for repairing the foundation. We find that an appropriate witness fee for the engineer would be $500, with an assessment of $250 each to the two contractors.

For the reasons discussed in this opinion, the judgment of the trial court is reversed and judgment is rendered in favor of Larry Prestridge against Gary Elliott. Prestridge is awarded $18,032 as costs to repair the defect in addition to $7,500 in mental anguish damages. Attorney fees in the amount of $9,000 is awarded. Court costs in the trial court and in the appellate court are assessed against Gary Elliott including expert witness fees of $1,000.

REVERSED AND RENDERED.


author: hEZELL, Judge.

text:
    REGENCY CONSTRUCTION, INC. v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. CW 03-313.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Edward C. Abell Jr., Brent Gerard Son-nier, Onebane, Bernard, Torian, Lafayette, LA, Douglas Alfred Kewley, Gardner & Kewley, Metairie, LA, for Plaintiff/Applicant, Regency Construction, Inc.
    Patrick Manning Wartelle, Roy, Bivins, Judice, & Henke, Lafayette, LA, for Defendant/Respondent, Lafayette City-Parish Consolidated Government.
    David Carlyle Voss, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for In-tervenor/Respondent, Omni Construction, LLC.
    George Andrew Veazey, Jeansonne & Remondet, Lafayette, LA, for Interve-nor/Respondent, Young’s General Contracting, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

Regency Construction, Inc. sought a supervisory writ in this court from a judgment which dismissed its claims against the Lafayette City-Parish Consolidated Government (LCG) contesting the refusal of the LCG to award it a contract for tree and debris removal associated with lingering damage caused by Hurricane Lili in early October 2002. We granted the writ for the purpose of calling the case up for full briefing, argument, and an opinion.

FACTS

Hurricane Lili struck southern Louisiana on October 3, 2002, causing major damage to southwest Louisiana. President Bush declared much of the state a federal disaster area. Effective October 11, 2002, at the request of the Louisiana State Licensing Board for Contractors and pursuant to Executive Order MJF 02-49, Governor Foster temporarily suspended the statutory requirements for contractor licensing to allow the State’s political subdivisions to contract with unlicensed contractors for services to assist in debris cleanup related to Hurricane Lili. The order expired by its own terms on November 1, 2002. By Emergency Ordinance Number 0-300-2002, the LCG also declared a local emergency authorizing all necessary contractual services with reference to tree and storm debris removal from private property in accordance with the Federal Emergency Management Agency Guidelines. The ordinance was signed by the council president on November 15, 2002.

In preparation for letting the contract at issue out, LCG officials contacted the Louisiana State Licensing Board for Contractors. The Board initially told the LCG that unlicensed bidders could bid on the project as long as they promptly applied for a Louisiana license within a certain time frame because federal money was partially funding the project. The LCG sent out “Notice to Bidders” of the debris removal | ¡.project. Subsequently, the Board told the LCG that the contractor had to have a Louisiana license, but an unlicensed contractor could apply for and pass the licensing exam in early 2003 and qualify. As a result of this new information, the LCG issued an addendum to the bid package regarding this licensing information.

Regency was one of the five companies which submitted bids. Three of the five bidders, including Regency, had a contractor’s license. However, the bid of one of those three companies possessing a contractor’s license, Omni Construction, L.L.C., was deemed fatally non-responsive because the company omitted from its bid the required addendum certifying its license status.

The lowest bidder was J.I.L. Tree Service. On December 23, 2002, the LCG sent notice to J.I.L. that it was the lowest bidder. However, that company did not possess a Louisiana contractor’s license. In January 2003, the Louisiana State Licensing Board for Contractors reversed its position on the licensing issue and notified the LCG that it would take legal action if the municipality allowed an unlicensed contractor to perform the job. J.I.L. then voluntarily withdrew its bid.

On January 27, 2003, the LCG rejected all bids stating “errors and confusion surrounding the issues and the laws of the State Licensing Board for Contractors” as just cause for the rejection. On February 7, 2003, Regency instituted suit seeking an award of the contract as the lowest licensed bidder. Omni and another bidder, Young General, intervened in the suit.

A hearing was held on February 20, 2003. The trial court dismissed the claims and awarded LCG attorney’s fees of $8,050 against Regency. Regency seeks supervisory writs in this court.

I ¿LOUISIANA PUBLIC BID LAW

Regency asserts several assignments of error concerning the trial court’s ruling and the application of the Louisiana Public Bid Law. However, the main issue concerns whether the LCG had the ability to reject all bids once it accepted the bid by J.I.L., or was it required to consider the merits of the bid of the lowest responsible bidder, which Regency claims to be.

Louisiana’s Public Bid Law, La.R.S. 38:2211-2261, applies to contracts for public works and to purchases of materials and supplies when certain monetary “thresholds” are met. The LCG argues that the Public Bid Law does not apply to the facts of this case. It is obvious that this contract to remove hurricane debris is not a purchase so the issue is whether it is a contract for a public work.

In 1991, the Louisiana Legislature amended La.R.S. 38:2211 to add the definition of a “public work” among other changes. “Public work” is now defined as “the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.” Prior to this amendment, the Louisiana Supreme Court in Wallace Stevens, Inc. v. Lafourche Parish Hosp. Dist. No. 3, 323 So.2d 794, 796 (La.1975), defined a “public work” as a “building, physical improvement, or other fixed construction.”

The notice to bidders provided that the contract was for tree removal from private property due to Hurricane Lili in addition to removal of broken branches, trees, and stumps endangering LCG properties, rights of way, and easements. Clearly, this contract is not a public work contract subject to the provisions of the Public Bid Law. Not only is this not a contract to do some type of construction on public property but it also involves performing work on private property. Therefore, the trial court was correct in dismissing the claims of Regency.

|4Since we are upholding the trial court’s decision that the LCG did not violate the Public Bid Law, we also find that the trial court was correct in finding that the LCG was entitled to attorney’s fees as the prevailing defendant pursuant to La.R.S. 38:2220.4(B)(1). Furthermore, we find that the LCG is entitled to attorney’s fees for the work in preparation of defending Regency’s writ application in the amount of $1,500.

For the foregoing reasons, Regency Construction, Inc.’s application for supervisory writ is denied. Attorney’s fees are awarded to the LCG in the amount of $1,500 and assessed to Regency Construetion. Costs are also assessed against Regency Construction, Inc.

WRIT DENIED.


author: L SULLIVAN, Judge.

text:
    STATE of Louisiana in the Interest of D.T.
    No. 03-166.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    L. Antoinette Beard, Lafayette, LA, for Plaintiff/Appellant, State of Louisiana, Department of Social Services.
    Sharon Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana, Office of Community Services.
    Edward J. Milligan, Jr., Lafayette, LA, for Defendant/Appellee, J. F.
    Marcus Anthony Allen, Sr., Lafayette, LA, for Defendant/Appellee, D. T.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   L SULLIVAN, Judge.

On December 2, 2002, at a review hearing for D.T., the subject of this litigation, the trial court sua sponte partially vacated its February 13, 2002 judgment, which approved D.T.’s mother’s surrender and terminated D.T.’s alleged father’s parental rights. The December 2, 2002 order, which was reduced to writing and signed by the trial court on December 16, 2002, vacated only that portion of the judgment which terminated D.T.’s alleged father’s parental rights. The State appeals.

Article 1951 of the Code of Civil Procedure allows a trial court to amend a final judgment:

(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

In Alliance for Good Government, Inc. v. Jefferson Alliance for Good Government, Inc., 96-309, pp. 5-6, (La.App. 5 Cir. 10/16/96), 683 So.2d 836, 838, the fifth circuit reviewed the application of Article 1951:

[A] judgment may be amended by a trial court where the judgment takes nothing away from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448 (La.1978); Hebert v. Melco Steel, Inc., 552 So.2d 1326 (La.App. 5 Cir.1989).
As a general rule, a final judgment is not subject to substantive amendment by the trial judge on his own motion or motion of any party. In such an event, the proper recourse is a timely application for new trial or a timely appeal. Villaume, supra; Hebert, supra. The district court may grant a limited or unlimited new trial, but until it does, it cannot modify its previous judgment as to substance. Hebert, supra.

Recently, in Bourgeois v. Kost, 02-2785, p. 8 (La.5/20/03), 846 So.2d 692, 2003 WL 21152851 the supreme court noted that the “Code of Civil Procedure provides only a limited means of correcting errors of substance in a final judgment.” Finding the trial court’s modification of a final judgment to have been without authority, the court held that the amended judgment was an absolute nullity.

| j.The December 16, 2002 judgment, which substantively changed the terms of the February 13, 2002 judgment, was not authorized by the Code of Civil Procedure. Accordingly, the trial court’s order vacating the February 13, 2002 judgment is reversed, the December 16, 2002 judgment is set aside, and the original judgment of February 13, 2002, is reinstated.

REVERSED.