source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    SUCCESSION OF Mrs. Marie Louise Schmidt Landry DE FRENEUSE, Widow by First Marriage of Col. Hughes Jules de la Vergne, and Widow by Second Marriage of Henry J. Landry de Freneuse.
    No. 2002-CA-1807.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 30, 2002.
    Ashley L. Belleau, Pierre V. Miller II, Patrick, Miller, Burnside & Belleau, L.L.C., New Orleans, LA, and David R.M. Williams, Metairie, LA, for Schmidt de la Vergne, et al.

      George F. Riess, Law Offices of George F. Riess, LLC, New Orleans, LA, for Hughes de la Vergne and Charles E. de la Vergne, Jr.
    David S.*Bland, Julie M. Araujo, King, LeBlanc & Bland, L.L.P., New Orleans, LA, for Katherine Rault, et al.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge TERRI F. LOVE).
   ON MOTION TO DISMISS APPEAL AND MOTION FOR LEAVE TO FILE PETITIONS FOR INTERVENTION

TERRI F. LOVE, Judge.

A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A final judgment may be rendered by either a trial court or an appellate court, and a judgment by an appellate court that decides the merits of the case is a final judgment, regardless of whether the case reached the appellate court on appeal or on supervisory writs. Tolis v. Board of Supervisors of Louisiana State Univ., 95-1529 p. 2 (La.10/16/95), 660 So.2d 1206.

In this case this Court addressed the merits of the appellants’ claims in writ 2002-C-0104. When the Supreme Court denied the appellants’ writ, the judgment of this Court became final. La. C.C.P. 2166(D). Therefore appellants’ instant appeal is barred by res judicata and is dismissed.

As for the motions for leave to file a petition for intervention by Charles E. de la Vergne, Jr. and Hughes de la Vergne, trustees when this Court denied the writ but now attempting to intervene as beneficiaries, the motions are denied as one may intervene only in a “pending action,” and final judgment has been rendered in this case. See La. C.C.P. art. 1091.

APPEAL DISMISSED; MOTION FOR INTERVENTION DENIED.


author: JOAN BERNARD ARMSTRONG, Judge.

text:
    PLAQUEMINES PARISH LAW ENFORCEMENT DISTRICT, v. B.F. CARVIN CONSTRUCTION COMPANY, INC.
    No. 2002-C-1296.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 30, 2002.
    Lloyd N. Shields, James A. Oswald, Shields Mott Lund L.L.P., New Orleans, LA, for B.F. Carvin Construction Company, Inc.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III).
   JOAN BERNARD ARMSTRONG, Judge.

On May 8, 2002 B.F. Carvin Construction Company, Inc. (“Carvin”) filed, in the 29th Judicial District Court for St. Charles Parish, an action against Plaquemines Parish Law Enforcement District (“PPLED”) challenging an arbitration panel’s discovery order. On May 14, 2002, the PPLED filed, in the 25th Judicial District Court for Plaquemines Parish, an action against Car-vin for enforcement of the same arbitration panel discovery order.

Carvin filed an exception of lis pendens in the 25th JDC action on the ground that the 29th JDC action was filed some days earlier. The trial court overruled Carvin’s exception and Carvin brings the present writ application as to that ruling.

Actions against a political subdivision must be brought in' the judicial district where the political subdivision is located. La. R.S. 13:5104. Therefore, the PPLED could be sued only in the 25th JDC. Consequently, the suit filed earlier in the 29th JDC could not be a basis for an exception of Us pendens. The writ application is denied.

WRIT DENIED.


author:
      WILLIAM H. BYRNES, III, Chief Judge.
      b McKAY, J.,

text:
    Ethel BROWN on Behalf of Craig BROWN v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2002-C-0812.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 30, 2002.
    Richard P. Ieyoub, Attorney General, Gregory G. D’Angelo, Special Assistant Attorney General, Panzeea & D’Angelo, Me-tairie, LA, for Defendant/Relator.
    Cheryl Ann McAnespy-Smith, Cheryl Ann McAnespy-Smith, PLC, Harvey, LA, for Plaintiff/Respondent.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MAX N. TOBIAS JR.)
   WILLIAM H. BYRNES, III, Chief Judge.

In this medical malpractice claim, this Court exercises its supervisory jurisdiction to review the legal issue of prescription raised by the State of Louisiana, Department of Health and Hospitals (“State”).

On July 17, 1998, Craig Brown, a seriously handicapped resident of Metropolitan Developmental Center, sustained significant burns while in their care. Three months later, on October 19, 1998, Ethel Brown filed suit in civil district court on behalf of her son Craig Brown, and on October 26 and 28, 1998, personal service was made on the defendants. The plaintiff agreed to an indefinite extension of time for the State to reply, as a professional courtesy to allow for a full investigation of the cause of Mr. Brown’ injuries. On June 28, 2000, nearly two years after the alleged malpractice, the plaintiff notified the Commissioner of Administration and requested that a medical review panel be convened to address her allegations. On November 28, 2000, the State filed its exception of prematurity and a year later, on November 27, 2001, filed its exception of prescription. After a hearing on the motions on February 20, 2002, the trial court ^rendered its February 21, 2002 judgment finding that the suit was premature because it was filed before the medical review panel issued its opinion; however, the suit was not prescribed or otherwise subject to dismissal because it was timely filed.

The State argues that the plaintiffs claim was prescribed pursuant to La. R.S. 9:5628 because more than twelve months had transpired between the alleged acts of malpractice and the filing of her request for a medical review panel with the Louisiana Commissioner of Administration. The trial court found the civil suit was premature but did not dismiss it. Consequently, the suit in civil district court remains pending.

The issue is whether the trial court erred in finding that the plaintiffs claim was not prescribed pursuant to La. R.S. 9:5628, which provides that medical malpractice actions must be filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; or in any event, within a period of three years from the date of the alleged act, omission or neglect even as to claims filed within one year from the date of such discovery at the latest. La. R.S. 9:5628. Before a claim of malpractice can be filed in the district courts, however, it must first be reviewed by a state medical review panel. La. R.S. 40:1299.39.1. The running of prescription is suspended during the medical review process until ninety days following notification of the claimant by certified mail of the issuance of the medical review panel’s opinion. La. R.S. 40:1299.39.1.

In LeBreton v. Rabito, 97-2221 (La.07/08/98), 714 So.2d 1226, Ms. LeBreton filed a suit in medical malpractice in district court against Drs. Rabito, Breaux, and Krefft within one year of the death of her father and also filed a ^request with the Patient’s Compensation Fund Oversight Board for a medical review panel. The doctors interposed dilatory exceptions of prematurity, and the trial court granted the exceptions and dismissed the suit without prejudice. Subsequently, the medical review panel issued its opinion and notified Ms. LeBreton; approximately five months later, Ms. LeBreton filed suit for wrongful death in civil district court against the doctors named in the original suit. The doctors filed peremptory exceptions of prescription, alleging that Ms. LeBreton’s wrongful death claim was prescribed on its face. Ms. LeBreton conceded that for her claim to survive, she must be allowed to use both the period of interruption and the period of suspension combined. The Louisiana Supreme Court held that La. R.S. 40:1299.47(A)(2)(a), the specific statutory-provision providing for the suspension of prescription in the context of medical malpractice, must be applied alone, not complementary to La. C.C. art. 3472, the more general codal article that addresses interruption of prescription. LeBreton, 97-2221 at p. 9, 714 So.2d at 1230. The action, therefore, was prescribed.

Distinguishing LeBreton from the present case, the trial court agreed with the plaintiff that the original petition filed in a court of law, albeit prematurely, interrupted prescription. The plaintiff maintains that the facts in the present case are distinguishable from those in LeBreton because in that case, and in Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), which LeBreton overruled, the plaintiffs received an unfavorable decision from the medical review panel after dismissal of their suits. In contrast, the district court case remains pending in the present case.

In Baham v. Medical Center of Louisiana at New Orleans, 2000-2022 (La.App. 4 Cir. 7/11/01), 792 So.2d 85, 88, this Court interpreted LeBreton as | ¿holding that a premature medical malpractice suit does not interrupt or suspend prescription, based on the rejection of Hernandez, supra.

In Geiger v. State, 2001-2206 (La.04/12/02), 815 So.2d 80, *4-*5, the Louisiana Supreme Court clarified the scope of LeBreton as follows:

In LeBreton, prescription began to run on August 20, 1991, the plaintiff filed suit on August 18, 1992, and filed her panel request on August 19, 1992. The suit was dismissed on an exception of prematurity, but the plaintiff did not refile her suit until approximately five months after she was notified of the panel’s opinion. The defendants filed an exception of prescription in the second suit, alleging that it was prescribed on its face. The trial court denied the exception and the [F]ourth [Cjircuit agreed, but this court reversed. This court noted that filing suit interrupts prescription under La. C.C. art. 3462[FN5], whereas filing a panel request suspends prescription under La. R.S. 40:1299.47(A)(2)(a). Interruption causes a new prescriptive period to commence after the period of interruption. Such is not the case with suspension; rather, the time which preceded the suspension is added to the time which follows it. Regarding statutory construction, the court explained that, when two statutes deal with the same subject matter, they should be harmonized, and if there is a conflict, the statute specifically directed to the issue must prevail as an exception to the general rule. The court said that medical malpractice cases are governed by special rules, one of which is that the filing of a panel request only suspends prescription, and that this special prescription rule conflicts with the general Civil Code articles 3466 and 3472. Indeed, the court found that if these Code articles were applied, the prescription and suspension provisions of the Medical Malpractice Act would be written out. Regarding the impact of such a conflict in medical malpractice cases, the court stated:
If we let this ruling stand, we will condone and encourage the technique of unnecessarily prolonging malpractice litigation by a lesser standard. The party who improperly files a premature medical malpractice suit without first filing the claim with the board for a medical review panel, and whose suit is subsequently dismissed without prejudice, gains an additional year in prescription in addition to the suspended time provided by the Medical Malpractice Act, within which to file suit anew.

LeBreton at p. 8, 714 So.2d at 1230. The court found that this determination comported with the rationale for suspension espoused by French doctrinal writers, specifically that suspension is a measure of equity invented through regard for persons who are not in a | sposition to interrupt prescription, such as medical malpractice plaintiffs who, by statute, may not commence their suit until they present their complaint to a state medical review panel. Id. at p. 9-10, 714 So.2d at 1230-31 (quoting 1 Marcel Planiol & George Ripert, Traite Elementaire de Droit Civil, No. 2698 (12th ed.1939), reprinted in 1 Marcel Planiol & George Ripert, Treatise on the Civil Law, part 2 at 594 (La.St.L.Trans. 1959)). Therefore, the court concluded that there is no need for the general rules of interruption to combine with suspension “to synergistically benefit the plaintiff.” Id. at p. 10, 714 So.2d at 1231.

In a later medical malpractice case, this court directly applied the rule of LeBreton to hold that the plaintiffs premature suit did not interrupt prescription. See Washington v. Fustok, 01-1601, p. 1 (La.9/21/01), 797 So.2d 56, 56. The majority noted that the panel request was filed more than one year from the date of the alleged malpractice, and therefore the filing of the panel request did not act to suspend the accrual of prescription. Id.

LeBreton is not limited to the specific attempt of that plaintiff to combine the period of time for interruption of prescription with the period of time of suspension of prevention by combining the relevant general and specific code articles. In the present case, the plaintiffs reliance on a line of older cases that predate LeBreton is misplaced in light of Geiger, supra, citing Washington, supra.

In the present case, the plaintiff argues that the analysis and decision in LeBreton do not apply to her because she filed suit for malpractice immediately upon discovering the injuries to her son, served defendants with the suit, granted an indefinite extension of time for defendants to file their answer so they could fully investigate the situation, only to face motions for prematurity and prescription instead of an expected answer. The State objects to the Court considering the affidavit on this issue attached to the plaintiffs response because it was not presented to the trial court. There is no other indication in the record why the plaintiff waited nearly two years after the date of the alleged malpractice to file her | firequest for a medical review panel. This issue, however, is immaterial to the analysis of the present case in light of Geiger and Washington.

The trial court erred in denying the State’s exception of prescription. The pending premature civil suit did not interrupt prescription when the plaintiffs request for a medical malpractice panel was filed more than one year from the date of the alleged malpractice.

Accordingly, the trial court’s judgment is reversed, and the State’s exception of prescription is granted.

WRIT GRANTED; REVERSED; EXCEPTION OF PRESCRIPTION GRANTED.

ARMSTRONG, J., dissents for the reasons assigned by J. McKAY.

McKAY, J., dissents.

b McKAY, J.,

dissents.

I respectfully dissent from the majority’s decision to grant this writ and would affirm the trial court’s denial of the relator’s exception of prescription.

According to Civil Code Article 3462, prescription is interrupted by the filing of a suit in a court of competent jurisdiction and venue. In the instant case, the plaintiff filed suit in a court of competent jurisdiction and venue within one year of the alleged wrongdoing. Accordingly, prescription should be interrupted.

      . This is the same reasoning put forth by Chief Justice Calogero in his dissents in LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226 and Geiger v. State, 2001-2206 (La. 4/12/02), 815 So.2d 80.


author: | PATRICIA RIVET MURRAY, Judge. I, PLOTKIN, J.,

text:
    John M. BERNARD and Sonia Motlagh Bernard v. IBERIA BANK.
    No. 2001-CA-2234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 30, 2002.

      Martin L. Broussard, Jr., Kevin K. Gip-son, Broussard & Associates, New Orleans, LA, Counsel for Plaintiffs/Appellants.
    Craig A. Ryan, Onebane Law Firm, Lafayette, LA, Counsel for Defendant/Appel-lee.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY).
   | PATRICIA RIVET MURRAY, Judge.

The plaintiffs, John and Sonia Bernard, appeal the trial court’s granting of a motion for summary judgment in favor of the defendant, IBERIABANK. For the reasons that follow, we affirm.

The issue raised by the motion for summary judgment was whether the defendant’s predecessor, Jefferson Savings and Loan, had forgiven a portion of the principal due on a promissory note executed by the plaintiffs in 1984.

In November of 1984, the plaintiffs obtained a loan from Jefferson Savings and Loan to purchase a condominium unit on Greenspoint Drive in New Orleans, Louisiana. The principal amount of the loan was $47,600.00, with the terms providing for 180 payments of $610.11 at an interest rate of 13.25 per cent. In late 1990, the plaintiffs sent Jefferson Savings and Loan a “Request for Indulgence in Interest Rate Collected on Mortgage Loan.” Jefferson Savings and Loan agreed to reduce the interest rate to 7.0 per cent. The plaintiffs further requested an additional reduction in their monthly payments. On October 31, 1990, Jefferson Savings and Loan agreed to a reduction in the monthly payments to $400.00 per month, effective August of 1990. The plaintiffs made payments every month in the amount of $400.00 until the expiration of the term of the original mortgage, i.e. December 19, 1999. During this period, Jefferson Savings and Loan was merged | ¡.into IBERIA-BANK. Upon payment of the last monthly payment, the plaintiffs requested that IBERIABANK execute a cancellation of the mortgage. The bank refused to cancel the mortgage, informing the plaintiffs that there was an unpaid balance of $12,029.12.

The plaintiffs filed a petition for declaratory judgment seeking to have their loan declared as satisfied in full and to have the court order IBERIABANK to cancel the mortgage on the property. The defendant answered the petition and filed a reconven-tional demand, alleging that plaintiffs still owed on the balance and demanding that IBERIABANK’s mortgage be recognized. The plaintiffs answered, contending that the original loan had been forgiven and a new loan agreement created when the bank’s predecessor had agreed to the monthly payments of $400.00. IBERIA-BANK then filed its motion for summary judgment, alleging that there were no genuine issues of material fact and that it was entitled to a judgment, as a matter of law, that plaintiffs were responsible for the balance due on the original loan. After a hearing on February 23, 2001, the trial court rendered its written judgment on April 20, 2001, granting IBERIABANK a money judgment against the plaintiffs for the balance due on the original promissory note and recognizing the bank’s mortgage interest in the property.

On appeal, the plaintiffs argue that the trial court erred in granting the motion for summary judgment, as the defendant did not meet its burden of proving that there were no genuine issues of material fact. The plaintiffs contend that there were genuine issues of material fact concerning the intent of the defendant’s predecessor, Jefferson Savings and Loan, to forgive the original loan and create a new loan. The plaintiffs assert that a new credit agreement was created when Jefferson Savings and Loan agreed to accept monthly payments in the amount of $400.00.

| sLa. R.S. 6:1122 requires that credit agreements be in writing. The statute provides that “[a] debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” La. R.S. 6:1123 states:

A. The following actions shall not give rise to a claim that a new credit agreement is created, unless the agreement satisfies the requirements of R.S. 6:1122:
$ ‡ ‡ $
(3) The agreement of a creditor to take or not to take a certain action, such as entering into a new credit agreement, forbearing from exercising remedies under a prior credit agreement, or extending installments due under a prior credit agreement.
B. A credit agreement shall not be implied form the relationship, fiduciary or otherwise, of the creditor or the debtor.

The plaintiffs argue that the letter by which Jefferson Savings and Loan agreed to the monthly payments of $400 constituted a new credit application. The plaintiffs contend that the letter, on its face, meets two of the requirements: it is in writing and is signed by both the creditor and the debtor. The plaintiffs then suggest that parol evidence can be used to show that there was consideration and to explain the relevant terms and conditions. The plaintiffs specifically note that Jefferson Savings and Loan provided them with a payment book for $400.00 a month and that Jefferson, and later IBERIABANK, accepted the payments.

The plaintiffs’ argument fails, however, because the law is clear that parol evidence is not admissible to show a prior or contemporaneous agreement varying the terms of a written contract. La. C.C. article 1848. The meaning and intent of the parties to a written agreement is determined from within the four corners of the document, and its terms cannot be explained or contradicted by extrinsic evidence. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 748. A writing cannot qualify as a credit agreement if parol evidence must be received in order to establish that status. The written agreement must be perfect and complete within | ¿itself. Fleming Irr. v. Pioneer Bank & Trust, 27,262, p. 5 (La.App. 2 Cir. 8/23/95), 661 So.2d 1035, 1038.

In an analogous case, Whitney Nat. Bank v. Rockwell, 94-3049, p. 13 (La.10/16/95), 661 So.2d 1325, 1332, the Louisiana Supreme Court held:

The alleged oral agreement by the Bank to require interest-only payments for a period of time and then to amortize the payments over a period of years was clearly an agreement to forbear repayment and to make financial accommodations that constituted a credit agreement under the statute which could not be enforced in an action or reconventional demand for damages unless the agreement was in writing.
The alleged acceptance by the Bank of interest payments for three years was simply the forbearing from exercising remedies under the prior credit agreement, an action which under La.Rev. Stat. 6:1123 A(3) did not give rise to a claim that a new credit agreement was thereby created.

In the present case, the document upon which the plaintiffs rely is insufficient to establish the existence of a new credit agreement. Although the letter is in writing and is signed by both the debtor and creditor, it does not recite the consideration or the relevant terms of the alleged new credit agreement. At best, the letter represents the granting of an indulgence by Jefferson Savings and Loan and the bank’s willingness to make financial accommodations under the original credit agreement.

. As the plaintiffs were unable to meet their burden of proof at the hearing on the motion for summary judgment and would be unable to meet their burden of proof at trial, the trial court did not err in granting the defendant’s motion. The defendant produced the documentation concerning the original promissory note and mortgage, as well as the payments made by the plaintiffs. The documentation supports the defendant’s argument that a balance was still due under the original promissory note.

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

PLÓTKIN, J., concurs in part, dissents in part with reasons.

I, PLOTKIN, J.,

Concurs in Part, Dissents in Part with Reasons.

For the reasons stated below, I concur with the majority to the extent that the petition for declaratory judgment, filed by John and Sonia Bernard (“Bernards”) was properly dismissed on summary judgment. I respectfully dissent, however, from the holding of the majority affirming summary judgment in favor of Iberiabank on its reconventional demand whereby that holding was based on the proposition that a request for reduction in monthly payments was invalid pursuant to Title 9, sections 1122 and 1123 of the Louisiana Revised Statutes.

As recounted, in part, by the majority, this case involves the validity of an agreement to forbear the exercise of remedies under a prior credit agreement between the Bernards and Jefferson Savings and Loan (“Jefferson”), whose suceessor-in-in-terest is Iberiabank. The agreement is evidenced by two documents. • The first document is a letter, dated October 25, 1990, (“the October document”) wherein the Bernards requested Jefferson to “re-considere [sic] your decision and adjuste [sic] our monthly notes to at least, at least [sic] $400.00 a month.” On that letter, Jefferson, in a handwritten note dated October 31,1990, and signed by the representative, stated: “OK, board, $400 per month.” The second document, dated November 6, 1990, (“the November document”) purported to reduce the interest rate to 7.00% (not mentioning the original rate of |213.25%). The November document also contained this additional language: “I/we understand and agree that our granting of this request will not operate as a novation of my/our existing obligation, nor will it in any manner modify or change my/our present contract or mortgage.”

The summary judgment filed by Iberia-bank seeks a money judgment and recognition of its mortgage, thereby seeking a dismissal of plaintiffs petition for declaratory judgment and a judgment as a matter of law on its own demand. The trial court granted Iberiabank’s motion. The majority affirms, reasoning that subsequent agreement to forbear the exercise of remedies under the prior agreement, though written and signed by both parties, did not properly recite terms or consideration and was invalid under sections 6:1122 and 1123.

I concur with the majority opinion as it relates to the trial court’s disposition of the Bernards’ petition for declaratory judgment. Sections 6:1122 and 1123 clearly require that, in order for a debtor to maintain an action on the forbearance of exercising remedies under a prior credit agreement, the agreement (1) must be in writing; (2) must express consideration; (3) must set forth relevant terms and conditions; and (4) must be signed by the creditor and debtor. La. R.S. 6:1122 & 1123. Although the agreement is evidenced by two documents that are both signed by both parties, neither document expresses consideration nor spells out the terms and conditions. Therefore, the trial court was correct in dismissing plaintiffs petition for declaratory judgment.

I dissent with the majority opinion as it relates to the trial court’s disposition of Iberiabank’s reconventional demand. The requirements of sections 6:1122 and 1123 do not apply to this claim and the language of the two documents evidencing the agreement are ambiguous and therefore create genuine issues of material fact with regard to the intent of the parties.

| sFirst of all, the requirements of section 6:1122 and 1123 do not apply to the Ber-nards’ defenses to the reconventional demand of Iberiabank. The language of sections 6:1122 and 1123 apply only to actions on a credit agreement by a debtor: they do not apply to a defense to a claim asserted by a creditor. La. R.S. 6:1122 (“A debtor shall not maintain an action on a credit agreement_”); La. R.S. 6:1123 (“The following actions do not give rise to a claim that a new credit agreement is created.... ”). In addition, the purpose behind the statute supports this contention, as it is concerned with the liability of financial institutions and not with the enforcement of those institution’s claims against debtors. See Whitney Nat’l Bank v. Rockwell, 94-3049, p.8 (La.10/16/95), 661 So.2d 1325, 1330 (“The primary purpose of the statute was to establish certainty as to the contractual liability of financial institutions.”).

Further, the Louisiana Supreme Court recognized the validity of the proposition that sections 6:1122 and 1123 were limited to debtor’s claims on credit agreements and did not apply to a debtor’s defense to a creditor’s claim on such credit agreements:

As to equitable defenses such as equitable estoppel, waiver, partial performance or bad faith, one court has held that the credit agreement statute only bars a borrower from maintaining an action based on an oral credit agreement, and does not necessarily bar the defenses in a suit by the lender. See Brenowitz v. Central Nat’l Bank, 597 So.2d 340 (Fla.Ct.App.2d Cist.1992), interpreting the Florida statute, which, like the Louisiana statute, was patterned after the Minnesota statute.

Whitney, 94-3049 at p. 10, 661 So.2d at 1331. Therefore, while sections 6:1122 and 1123 bar the Bernard’s petition for declaratory judgment, they do not apply to preclude their defense to the reconventional demand of Iberiabank.

As the Bernard’s are not bound to the requirements of sections 1122 and 1123 in asserting a defense to Iberiabank’s recon-ventional demand, a review of the documents upon which the forbearance is allegedly based indicates the presence of Lgenuine issues of material fact regarding the intent of the parties. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law, and summary judgment is appropriate. Peterson v. Schimek, 98-1712, p.5 (La.3/2/99), 729 So.2d 1024, 1029; Brown v. Drillers, Inc., 93-1019, p. - (La.1/14/94), 630 So.2d 741, 750. However, when a contract is determined to be ambiguous, an issue of fact exists, and the matter is not ripe for summary judgment. Lankford v. Koch Gateway Pipeline Co., 98-0719, p.3 (La.6/5/98), 713 So.2d 464, 465-66; Total Minatome Corp. v. Union Texas Products Corp. 33,433, p.6 (La.App. 2 Cir. 8/23/00), 766 So.2d 685, 690.

The intentions of the parties cannot be determined by the text of the two documents. On the one hand the October document purports to reduce the Bernard’s monthly payments to $400 per month. The November document simply reduces the interest to 7.00%. Notwithstanding these changes, the November document states that these changes are not changes and the agreement: does not constitute a novation.

It is unclear whether the parties intended the monthly payments to be reduced to $400.00 per month, or whether the payments would be reduced to reflect the reduction in interest rate from 13.25% to 7.00%. It is also unclear whether the payment reduction entailed an extension of the original term of the mortgage such that the entire amount of the original loan would be repaid or whether the original term was unchanged and difference was simply forgiven. Finally, it is unclear whether the “no modification of our original agreement” clause contained in the November document serves to render forbearance completely voluntary and unenforceable on the part of Iberiabank, preserving a right by Iberiabank to demand a balloon payment of the balance of the original | ¡Joan amount at the end of the term, or whether the clause is relevant on to preserve the date of the original agreement for purposes of mortgage priority.

Because these material issues cannot be determined by the text of the agreements, they are not properly determinable on a motion for summary judgment. I therefore dissent from the majority opinion affirming summary judgment as to Iberia-bank’s reconventional demand.


author: SAUNDERS, Judge.

text:
    Morris Miller WILLSON v. UNOPENED SUCCESSION OF Elbert DAVIS, et al.
    No. 02-0475.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2002.
    Rehearing Denied Dec. 11, 2002.

      William L. Koerber, Jack Hendrix McLemore Jr., Attorney at Law, Vidalia, LA, for, Rebecca Calvert Meng, Emily Moore Calvert, Calvert Company.
    Henry James Lossin Sr., Attorney at Law, Virgil Russell Purvis Jr., Smith, Tal-iaferro, Seibert, Jonesville, LA, John Clay Hamilton, Hamilton & Carroll, Oak Grove, LA, for John W. Davis, Sidney L. Davis, Joseph E. Davis, Patricia Ann Davis Giam-anco, Elbert Davis.
    Josiah William Seibert III, Attorney at Law, Vidalia, LA, for Morris Miller Will-son.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

The appellants, Morris Miller Willson Jr. and Bridget Pecanty Willson, appeal the ruling of the trial court sustaining the Calvert Family’s peremptory exception of liberative prescription and granting the Davis Heirs’ motion to strike affirmative defense and evidence by the appellants asserting possession of the parcel of land in question.

FACTS AND PROCEDURAL HISTORY

In March of 1999, the Willsons filed a “Petition for Declaratory Judgment and Executory Relief’ against the defendants: Unopened Succession of Elbert Davis, Patricia Ann Davis Giamanco (a/k/a Patricia Davis Wilkes), Sidney L. Davis, John W. Davis, Joseph E. Davis (hereinafter the “Davis Heirs”); and the Calvert Company, Emily Moore Calvert and Rebecca Calvert Meng, as co-executors of the Succession of Samuel H. Calvert Jr. and John Randolf Calvert (hereinafter the “Calvert Family”). In this petition, the Willsons asserted superior title and claim to the disputed property, consisting of approximately 206.77 acres and described as the Northeast Quarter of Section 15, Township 7 North, Range 7 East, Concordia Paris, Louisiana (NE/4, Section 15, T7N-R7E).

The Willsons claim that they can trace their title through a series of transfers beginning in 1858. Included in their list of deeds is a Sheriffs Tax Deed transferring property from the estate of T.H. Thornhill to T.H. Johnson dated July 6, 1912. The dispute over this parcel stems directly from the land description included in the tax deed. The tax deed purports to convey to T.H. Johnson the following property for non-payment of 1909, 1910, and 1911 taxes: “All of Section 15 in Black Lake, except NE1/4, containing 206.77 acres, more or less, situated in Concordia Parish, Louisiana.” The Sheriffs deed conveying the property of Thornhill in 1912 expressly | ¡.less and excepted the NE1/4 of Section 15; however, the Willsons claim that there is no such exception in the 1911 Concordia Parish Assessment Rolls, which described the Estate of T.H. Thornhill as “Section 15 in Black Lake, T.7R.7.”

In April of 1999, the defendants, the Davis Heirs, filed their Answer to the Will-sons’ petition and asserted superior title to the Willsons, as well as the alternative pleadings of ten and thirty year possession of the property in dispute. In June of 1999, the Calvert Family answered the Willsons’ petition and claimed their title and ownership of the disputed property is good, valid, and marketable, and in all respects superior to all other claims of title and ownership. The Calvert Family also asserts actual and corporeal possession of the disputed property.

In January of 2000, the Calvert Family filed a petition against the Willsons entitled “Reconventional Demand for Declaratory Judgment and Executory Relief,” asserting superior title and ownership title to the disputed property than either the Will-sons or the Davis Heirs. They also asserted civil and corporeal possession of said property in excess of sixty-five years without interruption. Through this reconven-tional demand the Calvert Family sought judgment declaring absolute ownership of the disputed property as well as the right to absolute possession of said property. In addition to their reconventional demand, the Calvert Family filed a number of exceptions to the Willsons’ petition. The trial court sustained their peremptory exception of ten years liberative prescription.

In their amended answer to the Calvert Family’s Reconventional Demand, the Willsons assert, for the first time, an affirmative defense claiming they have exercised corporeal and civil possession of the disputed property for more than thirty years. In response to this amended answer by the Willsons, the Davis Heirs filed a “Motion to ^Strike Affirmative Defense” specifically seeking to strike the defense of possession found in the Willsons’ amended answer. The Davis Heirs claim that that the Willsons initiated a petitory action with their original petition and are precluded from claiming possession of the property in dispute. The trial court sustained their Motion to Strike.

Following the judgment of the trial court, the Willsons filed a Motion and Order for Appeal on February 4, 2002.

DISCUSSION

The issues to be resolved on appeal are (1) the applicable prescriptive period for reformation of a tax deed, and (2) admissibility of evidence of possession on the part of the appellants, the Willsons.

10 YEAR LIBERATIVE PRESCRIPTION

The Willsons assert that the trial court’s reason for sustaining the peremptory exception of ten years liberative prescription is not supported by precedent. While we find no jurisprudence specifically applying the ten year liberative prescription period to tax deeds, for the reasons presented below we agree with the Calvert Family that a tax deed falls within the scope of instruments covered by article 3499 of the Louisiana Civil Code.

The Willsons’ attempt to correct the alleged error in the 1912 tax deed would clearly constitute the reformation of an instrument. “That action, sometimes called an action for reformation of a deed, seeks to correct the mutual error or mistake that occurred in the preparation of the instrument. The property description is changed to describe the property which the vendor intended to sell and which the vendee intended to purchase.” Mitchell v. Clark, 448 So.2d 681, 685 (La.1984) (citing Brulatour v. Teche Sugar Co., 209 La. 717, 25 So.2d 444 (1946); Waller v. Colvin, 151 La. 765, 92 So. 328 (1922)).

The Willsons base their arguments against application of La.Civ.Code art. 3499 on their assertion that a tax sale is not a consensual contract, but rather an adjudication in which property of a tax debtor is sold by a tax collector in an involuntary manner to an adjudicatee. We find no support for the Willson’s contention that “consensuality” is a requirement for an instrument designated as a personal action, falling within the ten year prescriptive period of article 3499. As with jurisprudence addressing reformation of other types of deeds, the Willsons’ proposed change in the tax deed would constitute the reformation of an instrument subject to the ten year prescriptive period of La. Civ.Code art. 3499. Article 3499 provides that, “[ujnless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

The law of reformation of instruments is clear and well settled. Deeds, such as the tax deed in the present case, are personal instruments subject to article 3499’s ten year prescriptive period. In Aguirs v. Holt, 232 La. 1026, 95 So.2d 644, 645-646 (1957), a case concerning the reformation of a deed, the Louisiana Supreme Court stated:

The law respecting reformation of instruments is well settled here and elsewhere. It is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. See Ober v. Williams, 213 La. 568, 35 So.2d 219, citing 45 Am.Jur.Sec. 45 et seq. It is a personal action, even when applied to real estate (see Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183), in which the burden is on the one seeking reformation to establish the mutual error and mistake by clear and convincing proof, parol evidence being admissible for this purpose. Waller v. Colvin, 151 La. 765, 92 So. 328; Smith v. Chappell, 177 La. 311, 148 So. 242; Fair v. Williams, 187 La. 953, 175 So. 631 and Southwest Gas Producing Co. v. Hattie Brothers, 230 La. 339, 88 So.2d 649.

We also find no merit to the Willsons’ contention that a tax deed is not a type | Rof instrument included within the scope of article 3499. They claim that article 3499 is only applicable for reformation of consensual contracts where mutual mistake is involved. They further argue that a tax deed is not a “mutual contract” and, therefore, not within the purview of article 3499. This is where we find the appellants’ key misconception of the law involving reformation of instruments. It would appear that the Willsons have confused mutuality of mistake, a requirement for reformation of instruments, for what they call consen-suality of the agreement, which is not a requirement for either reformation of instruments or the application of the ten year prescriptive period of article 3499.

We first note that we do not find any language in the statute or in jurisprudence stating that reformation requires that the instrument to be reformed be consensual in nature. In support of their argument, the Willsons cite Walker v. Jim Austin Motor Co., 162 So.2d 135 (La.App. 1 Cir. 1964), writ denied, 246 La. 354, 164 So.2d 353, and Robert Investment Co., Inc. v. Eastbank, Inc., 496 So.2d 465 (La.App. 1 Cir.1986). The Willsons’ proposition is not supported by any of the cases cited in their brief. Both of the above cases state that clear proof of mutual error or mistake is required for reformation of an instrument. Neither case mentions a need for a consensual or mutual contract. In fact, both of these cases clearly cite jurisprudence finding that reformation of an instrument, including a deed, is a personal action and subject to the ten year prescriptive period of article 3499.

The Willsons next argue that a tax deed is not a consensual contract, but an adjudication in which property of a tax debtor is sold by the tax collector in an involuntary manner to an adjudicatee. In support of this claim, the Willsons cite Whitfield v. Jones, 270 So.2d 153 (La.App. 1 Cir.1972), writ denied, 272 So.2d 376 (La.1973), and Kallenberg v. Klause, 162 So.2d 73 (La. App. 4 Cir.1964). We find nothing in either of these cases to support the appellants’ contention that a tax deed is not consensual and therefore not within the scope of article 3499.

We agree with the Calvert Family’s argument that there must be an applicable prescriptive period to apply for the reformation of tax deeds. The Willsons blindly state that the ten year period designated by article 3499 is inapplicable to tax deeds, yet they make no suggestion of the appropriate prescriptive period to use. In fact, they claim that reformation of a tax deed is a ministerial act which the court may effect on its own. They cite Brown v. Tauzin, 163 So. 764 (La.App. 2 Cir.1935), rev’d, 185 La. 86, 168 So. 502 (1936), as support for this proposition. As with prior case law cited by the Willsons, Brown does not stand for the proposition that they assert. Brown specifically involved a contested tax deed where the description in the deed corresponded to an entirely different parcel of land than the one for which taxes were due, making the tax deed a nullity. There is nothing in the Bromi opinion, however, that supports the Will-sons’ contention that a tax deed is strictly a ministerial action and, therefore, not subject to any statutory prescriptive period.

We also agree with the Calvert Family’s statement that the equity principles for which the ten year prescriptive period were designed apply to tax deeds. These principles of equity are in place to protect the buyer as well as the seller in conveyances of immovable property, whether that conveyance be by traditional deed or a sheriffs tax deed. The tax deed, like other deeds for immovable property, results in the valid transfer of ownership to the buyer. The consensual nature of such transfers is not the relevant factor. It is the stability of such transfers of property at stake and it is in the best interest of both sellers and buyers in transfers of this nature 17to follow the universal and consistent rules governing the challenge and modification of deeds.

Even if the Willsons were to present an alternative prescriptive period, the longest period provided by the Louisiana Civil Code is thirty years. Even with this extended prescriptive period, the appellants have exceeded the time allowed for reformation. The prescriptive period runs from the time of the conveyance of the deed, or the time when the error in the deed was known or should have been known. The deed was conveyed in 1912 and yet neither the appellants, nor their predecessors in interest, made any move to correct the alleged error in the deed’s language until 1999. It is clear on the face of the deed that the parcel of land conveyed by the tax deed is different than the description of land found in the assessment record. The appellants, or their predecessors in interest, should have known immediately of the alleged error in the description of the land.

(2) EVIDENCE OF POSSESSION BY APPELLANTS

The Willsons’ second assignment of error is that the trial court erred in sustaining the Davis Heirs’ Motion to Strike their affirmative defense of corporeal and civil possession of the disputed property for thirty years prior to bringing this action. According to the trial court’s reasons for judgment, the Willsons admitted in their petition that they were not in possession of the disputed tract and their action is therefore truly a petitory action. The court held that under La.Code Civ.P. art. 3657(2), the appellants were precluded from asserting possession of the disputed property. We find no such admission in the Willsons’ petition. A party’s failure to specifically assert possession of the disputed property in a petition is not necessarily a stipulation by that party that they are not in possession of the property. The | sWi]lsons argue that their inability to allege and prove acts of possession by them and/or their predecessors in title at a trial on the merits will cause irreparable harm. We agree.

The Davis Heirs believe that since the Willsons only claimed ownership in their original petition, and not possession, their action is properly classified as petitory in nature. They argue, therefore, that the trial court did not err in sustaining their Motion to Strike the Willsons’ affirmative defense of possession. They also claim that the Willsons have unequivocally and undeniably asserted ownership to the disputed property by virtue of superior title and that they assert their ownership to be derived and based upon title, not possession. As a result, the Davis Heirs claim that the Willsons are precluded from asserting any allegation of possession as a basis for ownership to the disputed tract.

In our analysis of this issue, we must take.notice of the import placed by the legislature on keeping petitory and posses-sory actions separate. La.Code Civ.P. art. 3657 states that:

The plaintiff may not cumulate the peti-tory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the posses-sory action is abated. When, except as provided in Article 3661(l)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.
If, before executory judgment in a pos-sessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possesso-ry action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.

The key to determining whether an action is petitory in nature is determining who is in current possession of the disputed property. In Lafourche Realty Co., Inc. v. Duard Eymard Co., Inc., 93-1278 (La.App. 1 Cir. 6/24/94); 638 So.2d 1138, writ denied, 94-1991 (La.11/11/94); 644 So.2d 390, the court enumerated three different actions through which a party can assert ownership or possession of real property.

Chapter I of Title II of the Code of Civil Procedure, is entitled “Actions to Determine Ownership or Possession”, and provides for three different actions through which one can assert ownership or possession of real property. La. C.C.P. art. 3651 provides for petitory actions, which are actions brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership. La.C.C.P. art. 3654 provides that “the issue of ownership of.immovable property or of a real right therein is presented in an action for a declaratory judgment....” A plaintiff who is in possession of the property at issue can bring an action for declaratory judgment, thereby raising issues of possession and ownership in the same action. Liner v. Terrebonne Parish Sch. Bd., 519 So.2d 777 (La.App. 1st Cir.1987), writ denied, 521 So.2d 1173 (La.1988), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). Finally, La.C.C.P. art. 3655 provides for possessory actions.

Id. at 1139.

Even if we agree with the Davis Heirs and the trial court that the appellants’ petition designates this action as petitory in nature, wre do not agree that a petitory action precludes any and all evidence of possession on the part of the plaintiff. Mere evidence of possession does not, in all cases, result in the invalid cumulation of petitory and possessory actions as prohibited by La.Code Civ.P. art. 3657. When a plaintiff brings a petitory action jurisprudence clearly states that the first question to be addressed is possession of the disputed property. Because the definition of a petitory action is an action by one claiming ownership against one in possession, it is necessary to determine who is in possession before a claim can be made as to whether this is in fact a petitory action or just an action for a declaratory judgment. We find no such determination of current possession made by the trial court.

1 ^Determination of who has possession of the property determines the burden of proof the plaintiff must meet. “To satisfy [this] burden, the [plaintiff is] required to prove an unbroken chain of record title or that [he] acquired title by prescription.” Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974) (emphasis added). Asserting title through thirty years acquisitive prescription is a different matter than presenting evidence of current possession of disputed property in a petitory action. The jurisprudence is clear that the former is precluded, where the latter is a valid means of asserting ownership in a petitory action under La.Code Civ.P. art. 3653 which provides as follows:

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.

We do not believe that sufficient evidence has been heard on the issue of current possession to determine that the Willsons’ petition is petitory in nature. Additionally, for the reasons stated above, evidence of ownership through acquisitive prescription is permitted under article 3653 of the Louisiana Code of Civil Procedure. We find that the appellants should be allowed to amend their petition to allege acquisitive prescription of thirty years and the trial court shall hold a hearing on the matter of possession of the property.

Since we agree that the Willsons’ ability to reform the deed in question has prescribed, they are no longer able to trace ownership directly through title. They are now left only with the argument of acquisitive prescription. We find, therefore, that this matter must be remanded to the district court for a determination of who is in Inpossession of the disputed tract of land. If the plaintiff is asserting that they have acquired title through thirty years possession, they must be allowed to present this argument. This issue of possession can only be determined on the merits, and therefore the trial court erred in sustaining the appellee’s Motion to Strike the Willsons’ affirmative defense of thirty years possession of the property in question.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed in part and remanded in part for further ruling not inconsistent with this decision. The appellants are entitled to amend their petition to include their argument of acquisitive prescription through 30 years possession. All costs of this appeal are to be divided equally between the Willsons and the Davis Heirs.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.


author: LDECUIR, Judge.

text:
    Janelle TOUCHET v. MURPHES OF FLORIDA, INC.
    No. 02-0632.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2002.
    Rehearing Denied Dec. 11, 2002.

      M. Blake Monrose, Hurlburt, Privat & Monrose, Lafayette, LA, for Murphes of Florida, Inc.
    Michael B. Miller, Attorney at Law, Crowley, LA for Janelle Touchet.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   LDECUIR, Judge.

Janelle Touchet, the claimant in this workers’ compensation suit, filed the instant appeal, contesting the decision of the hearing officer. The employer, Murphco of Florida, Inc. (incorrectly referred to in the caption of this suit as “Murphes”), and its insurer, Fireman’s Fund Insurance Company, answered the appeal. Both sides have raised several issues for our review. We amend in part and, as amended, affirm.

Touchet was employed as a housekeeper at the Jennings Holiday Inn, which is owned by Murphco. Touchet contends that she injured her back on November 1, 1999, while cleaning one of the rooms in the hotel. As she was making the bed in the room, she felt a pulling sensation in her shoulder. Touchet continued working that day, but she sought emergency medical treatment on the following day. On November 9, Murphco referred her to Dr. Mark Clawson, a general practitioner in Jennings.

Dr. Clawson’s office notes for November 9 indicate that Touchet complained initially of right shoulder and lower back pain. He found evidence of muscle spasm and prescribed medication and physical therapy. Touchet continued seeing Dr. Clawson for several weeks, and in late December, he ordered diagnostic testing. Before the testing was done, however, Dr. Clawson released Touchet to light duty work and specifically approved a position Murphco offered to her as a hostess for the Holiday Inn restaurant. Dr. Clawson noted that he had spoken to a Murphco representative about the position; he believed the position would fit within the light duty restrictions he imposed.

Subsequently, Touchet submitted to the testing ordered by Dr. Clawson. X-rays, two MRIs, and a CT scan were done. Mild to moderate degenerative changes with spurring were revealed. A moderate disc herniation at the L5-S1 level was noted, but no significant impingements on the nerve roots were shown. Dr. Clawson | ¡.discussed the test results with Touchet. While she was still complaining of pain in mid-January, he felt she could perform light duty work. He noted that she declined the light duty position offered to her because her attorney told her she should not go back to work.

Murphco then discontinued workers’ compensation benefits, and this suit followed. At some point prior to filing suit, Touchet requested approval from the employer to see an orthopedic surgeon, Dr. Dale Bernauer. In February, Touchet changed attorneys, and when suit was filed, her new counsel requested approval for Touchet to see Dr. John Cobb, also an orthopedic surgeon. The parties eventually agreed in a stipulated judgment that Touchet would see Dr. Cobb, but due to canceled appointments, and possibly also due to Touchet’s writ application to this court concerning that stipulated judgment, she did not see Dr. Cobb until March 26, 2001. He diagnosed a disc herniation and recommended a fusion of the L5-S1 level. The surgery was not approved by the insurer, and Touchet has not seen Dr. Cobb again.

The insurer then sent Touchet to see Dr. Gregory Gidman. Dr. Gidman agreed that the previous MRIs. showed a herniation at the L5-S1 level, but he described the herniation as small and did not believe there was any resulting nerve root compression. He recommended further tests, home and physical therapy, exercise, and weight loss.

The case then proceeded to trial. The court determined that Touchet was injured in the course and scope of her employment with Holiday Inn and was entitled to benefits from the time of injury until released by Dr. Clawson, with benefits to be reinstated from the date of Dr. Cobb’s diagnosis. The court noted that Touchet did not respond to the employer's offer of light duty employment in January 2000. The record also shows that Touchet did not seek further medical care (except for one [¡¡emergency room visit in August 2000) or continue with therapy until she saw Dr. Cobb in March 2001. Judgment was rendered in Touchet’s favor awarding benefits from November 1, 1999 through December 27, 1999, and from March 26, 2001 until a court appointed independent medical examination is conducted, with further benefits to be determined later. The court declined to find the employer and insurer arbitrary and capricious in the handling of this claim, but did assess a statutory $250.00 penalty for the employer’s failure to provide Touchet with a copy of Dr. Clawson’s report within thirty days of her requesting same. The court denied the employer and insurer’s motion for sanctions against Touchet for reissuing subpoenas which had previously been quashed by the court.

In this appeal, Touchet contends the hearing officer erred in failing to award benefits for the period between Dr. Clawson’s release and Dr. Cobb’s assessment. We disagree. There is medical evidence showing that Touchet could perform light duty work during this time, yet she made no attempt to work and there is no contrary medical evidence indicating she could not work.

We also find no merit to Touchet’s contention that penalties and attorney’s fees should be awarded due to the “defendant’s numerous violations of the Workers’ Compensation Act.” Touchet first complains of the insurer’s failure to guarantee medical treatment, suggesting that she had three appointments with Dr. Bernauer, all of which had to be canceled because the insurer would not approve the visit. The only evidence of this is Touchet’s self-serving testimony which the hearing officer found unconvincing. There is no evidence of when Touchet may have first requested to see Dr. Bernauer, but she had diagnostic testing with Dr. Clawson in January of 2000, and her new attorney requested approval to see Dr. Cobb on February 4, 2000. The delay in seeing Dr. Cobb is likewise undocumented. Dr. Cobb’s office record |4shows that Touchet canceled one appointment and the insurer canceled a second appointment before she finally saw him in March 2001. We do not find these facts demonstrate an arbitrary refusal to guarantee medical treatment.

Touchet further contends the defendants violated the compensation act by failing to pay medical bills and failing to properly pay weekly benefits. The record shows that weekly benefits were paid until Dr. Clawson released Touchet to return to work. The hearing officer did not fault the defendants for failing to resume the payment of benefits upon Dr. Cobb’s evaluation because of the conflicting medical evidence available at that time. We find no error in this conclusion.

Concerning the medical bills, Tou-chet argues the hearing officer should have ordered the defendants to pay all outstanding medical bills in the judgment rendered in Touchet’s favor. Specifically, Touchet lists five bills which she contends have not been paid. One of those bills is a $108.00 charge from Dr. Cobb, which Plaintiffs Exhibit # 1 shows conclusively was paid by Fireman’s Fund. The defendants suggest that Touchet has the burden of proving the bills have-not been paid, while Touchet argues that payment is an affirmative defense that must be proved by the defendants.

Our review of the record indicates the payment of medical bills was technically at issue based on the pleadings. However, it is also apparent that neither the court nor opposing counsel regarded the payment of medical bills to be at issue at the hearing. While a handful of bills were introduced into evidence, no evidence was adduced on the question of whether those bills remain outstanding. Therefore, we will amend the hearing officer’s judgment to order the payment of the only three bills which are evidenced in the record (American 'Legion Hospital’s ehargé of $141.60, Thrifty Way Pharmacy’s list of prescriptions in the amount of $355.99, and The Schumacher Group’s $155.00 fee), if and only if those bills have not already been paid by the | ^defendants. We will remand this matter for the limited purpose of presenting evidence on this issue in the event the attorneys are unable to agree on whether these bills have been paid.

Finally, Touchet asserts the defendants violated the compensation act by failing to provide medical reports within thirty days of her request for same and by secretly discussing her medical treatment with a treating physician, violations of. La. R.S. 23:1125 and 23:1127, respectively. While we find no evidence in the record indicating that the defendants violated Section 1127, we affirm the hearing officer’s finding concerning Section 1125. The hearing officer awarded the statutory penalty of $250.00 for the defendant’s delay in providing the medical report, but Touchet contends that she is also entitled to attorney’s fees under the statute. We agree. Section 1125 specifically states that attorney’s fees shall be awarded, although in this case the report does not appear to have been the subject of any pleadings or court proceedings and was produced, albeit delinquently, in response to counsel’s one written request. The record contains no evidence of further requests. Accordingly, we award $250.00 in legal fees for the violation of Section 1125. See Frantz v. Southern Scrap Material Co., 97-1581 (La. App. 3 Cir. 4/22/98), 714 So.2d 750, writ denied, 98-2126 (La.11/13/98), 730 So.2d 937.

In their answer to the appeal, the defendants raise several issues. First, they contend the hearing officer erred in finding that Touchet sustained a work related injury. They argue the evidence was insufficient to prove that an accident occurred; they point out that co-workers did not verify Touchet’s story and no one, not even Touchet’s family, corroborated her testimony. The hearing officer made a factual finding that a compensable injury occurred, and we will not disturb that finding in the absence of manifest error: Our review of the medical evidence, including histories |fiand reports, and the plaintiffs testimony, reveals no manifest error in the factual conclusion that a work related accident occurred. Accordingly, Touchet was entitled to compensation benefits as a result of her injury, and the hearing officer properly awarded same.

The defendants next contend the hearing officer erred in reinstating benefits upon Dr. Cobb’s diagnosis of a herniated disc and surgery recommendation. We disagree. Dr. Cobb examined Touchet and considered two sets of diagnostic films in reaching his conclusion that Touchet was unable to work at the time he saw her. Dr. Gidman, the defendants’ doctor, agreed with the objective diagnosis of a herniated disc, but he opined that alternatives to surgery were available. Given this evidence, we find no error in the hearing officer’s conclusion that Touchet was entitled to have benefits reinstated.

The remaining issues raised by the defendants are likewise governed by the manifest error standard of review. The hearing officer determined that Touehet’s counsel should not be sanctioned for sending out additional subpoenas to the out-of-state custodian of records for Fireman’s Fund and Murphco when previously issued identical subpoenas had been quashed pursuant to a protective order. In denying the request for sanctions, the hearing officer stated, “Claimant’s explanation for reissuing the subpoenas [is] plausible and accepted by the court as reasonable.” The explanation presented to the court was that counsel was unsure whether a company representative would attend the trial, but if one did, he wanted to be sure the records were brought to court. While another court may disagree with the reasonableness of counsel’s explanation, we do not find manifest error in the hearing officer’s factual evaluation and credibility determination in this instance. Similarly, we find no error [7in the factual conclusion that the defendants must be penalized under La.R.S. 28:1125 for their delinquency in responding to Touchet’s written request for medical reports.

For the foregoing reasons, the judgment of the hearing officer is amended to award Janelle Touchet $250.00 in attorney’s fees for the violation of La. R.S. 23:1125 and is further amended to order the payment of the three medical bills described herein, if those bills have not been previously paid by the defendants. The hearing officer is instructed to take evidence on the limited issue of medical bills should the need arise. In all other respects, the judgment of the hearing officer is affirmed. Costs of the appeal are assessed to the defendants.

AFFIRMED AS AMENDED.


author: | THIBODEAUX, Judge.

text:
    Iris MILLER v. Eric D. CLOUT, III, Baker Hughes Oilfield Operations, Inc. and National Union Fire Insurance Company.
    No. 02-540.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2002.
    Rehearing Denied Dec. 11, 2002.

      Randal L. Menard, Hill, Beyer & Me-nard, Lafayette, LA, Counsel for Defendants/Appellees, Eric Clout, III, Baker Hughes Oilfield Operations, Inc. and National Union Fire Insurance Company.
    Rusty Galloway, Galloway & Jefcoat, L.L.P., Lafayette, LA, Counsel for Plaintiff/Appellant, Iris Miller.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR and JIMMIE C. PETERS, Judges.
   | THIBODEAUX, Judge.

In this personal injury case involving a rear-end vehicular collision where liability for causing the accident was stipulated, the plaintiff, Iris Miller, who was sixty-three years old at the time of trial, appeals the judgment of the trial court pursuant to a jury verdict. Ms. Miller contends the jury abused its discretion by failing to award the full amount of her past medical expenses of $17,689.37 as stipulated by the parties and instead awarding only $865.95. Ms. Miller further contends that the trial court abused its discretion in failing to award any amount for future medical expenses and in awarding $2,500.00 general damages.

For the following reasons, we find that the jury abused its discretion in its award of $865.95 for Ms. Miller’s past medical expenses and amend to increase her award to $17,689.37, the amount stipulated by the parties. We affirm the jury’s decision not to award Ms. Miller any amount for future medical expenses and amend its award of general damages to increase this amount from $2,500.00 to $75,000.00.

I.

ISSUES

The issues in this case involve damages. We must decide whether the jury erred in failing to award to Ms. Miller the full amount of her past medical bill and in refusing to award any amount for her future medical expenses. Ms. Miller also claims that the amount awarded to her by the jury for general damages, $2,500.00, is abusively low.

JiL

FACTS

There is no dispute that at approximately noon on Saturday, August 15, 1998, Ms. Miller and Eric Clout were involved in a motor vehicle accident. As Ms. Miller waited to turn left in the left turning lane at the intersection of Pinhook and Verot School Road in Lafayette, Louisiana, Clout, while in the course and scope of his employment with Baker Hughes Oilfield Operations (Baker Hughes), struck Ms. Miller from behind. The parties stipulated at trial that Baker Hughes, through its employee, Clout, was at fault in causing the accident.

Ms. Miller was taken from the scene of the accident by ambulance to Lafayette General Medical Center where she was treated and released. The night of the accident, Miller testified that she woke up in “excruciating pain.” She called the emergency room at Lafayette General and was told to call her regular doctor in the morning. During the five days after the accident, Ms. Miller testified that she suffered from terrible pain in her head, neck, shoulders and arms. Ms. Miller described the pain as occurring mostly on her left side. She also stated that the pain was so intense that she was barely able to move from her bed, that she was unable to eat very much or take baths. To alleviate the pain Ms. Miller took over-the-counter pain medication she had in her home.

One month after the accident on September 15, 1998, Ms. Miller went to Dr. Lyons, an internist and her regular physician, because of her continued pain. Ms. Miller did not explain the reason for her delay in seeing Dr. Lyons. On October 6 and 8, 1998, Ms. Miller went to the office of Dr. Narinder Gupta, an anesthesiologist and a doctor she was seeing for pain prior to the August 15, 1998 accident. She did not see the doctor on those days and did not relate to his staff that |sshe had been in a car accident two months earlier. Ms. Miller saw Dr. Gupta on October 15, 1998. On that date she told Dr. Gupta about her accident. Dr. Gupta testified that Ms. Miller presented with complaints of left neck and shoulder pain, headache, and tingling in her left arm as well as pain in her lower back.

Dr. Gupta’s examination revealed that Ms. Miller had unequal pelvic levels, compromised lumbar range of motion, parethe-sia of the left arm, markedly restricted cervical range of motion, palpable tenderness and exquisite spasm of her trapezium and scapulae bilaterally. Dr. Gupta also found that Ms. Miller’s rhomboid muscles were involved in causing her problems on both the right and left side of her back, but that the problems were greater on the left side. He also found that Ms. Miller’s neck muscle problems were greater on the left. Ms. Miller suffered from decreased abduction and extension of her left and right arms, with greater problems on thé left and tenderness on both sides of her back due to problems with her sacroiliac joint. Dr. Gupta recommended that Ms. Miller receive trigger point injections.

Dr. Gupta saw Ms. Miller five more times in October, 1998. In all, after the accident, Ms. Miller saw Dr. Gupta seventy-nine times from October 15, 1998 through May 2001. Dr. Gupta testified that initially a patient with serious pain should have treatment two to three times per week to break the pain cycle. An MRI ordered on October 26, 1999, came back normal although Ms. Miller continued to complain about numbness and tingling in her arms. Dr. Gupta testified that just because Ms. Miller’s test came back negative does not mean she is not experiencing pain. Although Ms. Miller had a stroke six months after the accident, Dr. Gupta said that the treatment he administered to her during the seventy-nine visits was related to the motor vehicle accident of August 15,1998.

|4On August 5, 1999, Ms. Miller filed a petition seeking damages from the defendants for the injuries she suffered as a result of the accident of August 15, 1998. This matter was tried before a jury on October 15, 16, and 17, 2001. At the conclusion of trial, the jury rendered a judgment awarding general damages in the amount of $2,500.00, past medical expenses in the amount of $865.95, and no future damages. From this judgment, Ms. Miller filed the present appeal.

III.

LAW AND DISCUSSION

Ms. Miller contends that the damages awarded to her by the trial court are abusively low, and that the failure to award any amount for future medical expenses was not justified.

The standard for an appellate court’s review of damages was well established in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Suffice it to say, we will not disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s discretion. After carefully reviewing the record, we find that the trial court abused its discretion in failing to award Ms. Miller the full amount of her past medical expenses and in assessing general damages.

Dr. Gupta, Ms. Miller’s treating physician, clearly testified that before the August 15, 1998 accident, the majority of Ms. Miller’s complaints involved the right side of her body. After the accident, Ms. Miller’s complaints and problems involved the left side of her body. A treating physician’s testimony should be accorded more weight and probative value than that of a physician who has only seen the injured party for purposes of rendering expert testimony concerning the party’s 15condition. Pereira v. Louisiana Coca-Cola Bottling Co., 620 So.2d 315 (La.App. 4th Cir.), writ denied, 629 So.2d 414 (La.1993) and Streeter v. Sears, Roebuck & Co., Inc., 533 So.2d 54 (La.App. 3rd Cir. 1988), unit denied, 536 So.2d 1255 (La. 1989). For an expert opinion to be valid and to merit much weight, it must be based on facts that are substantiated by the record. Pereira, 620 So.2d at 318 and Russ v. Jones, 580 So.2d 1098 (La.App. 4th Cir.1991). “The trial court’s determination of an expert’s credibility is entitled to great weight and should not be overturned absent manifest error.” Id.

The defendants’ presented the testimony of Dr. Douglas Bernard, a specialist in orthopedic surgery who saw Ms. Miller at the defendants’ request, to rebut the opinion of Dr. Gupta that the motor vehicle accident caused and/or aggravated the pain Ms. Miller suffered. After an examination, Dr. Bernard felt that Ms. Miller’s neck, upper extremities and joints were normal. Dr. Bernard also found mild crepitus, or a “crunching noise,” when Ms. Miller’s right shoulder was moved. Dr. Bernard testified that Ms. Miller’s complaints of pain were diffuse. Dr. Bernard’s ultimate opinion regarding Ms. Miller’s condition was that she suffered from carpal tunnel syndrome which is a condition that is not caused by a one-time traumatic accident unless the wrist is fractured in the accident. Dr. Bernard explained that carpal tunnel syndrome is a condition that develops over time. Dr. Bernard had no opinion as to the cause of her pain in her neck and back as he explained carpal tunnel syndrome usually does not affect those areas of the body. Although it is clear that Ms. Miller treated with Dr. Gupta for an extensive amount of time, Dr. Bernard barely recalled reviewing Dr. Gupta’s medical records with respect to his diagnosis and treatment of Ms. Miller.

IfiDr. Bernard further testified that if a patient he saw prior to an accident came to him after an accident and essentially had the same complaints, he would not attribute the post-accident problems to the accident. However, in the present case, Dr. Gupta testified that Ms. Miller’s complaints of pain were not the same pre-accident. On cross examination, Dr. Bernard testified that he did not mean to imply that Ms. Miller was not injured in the August 15, 1998 accident, only that the accident did not cause radiculopathy or “radiating pain down her arm or leg ... caused by some kind of disc” problem. Dr. Bernard also admitted that MRIs are only eighty-five percent accurate. Dr. Gupta suggested that Ms. Miller undergo more testing that could more clearly reveal her problem. However, Ms. Miller was unable to do so because she was undergoing coumadin therapy which precluded conducting an EMG.

As expected, there was conflicting medical expert testimony. It is clear that the jury did not give much weight to the testimony of Ms. Miller’s treating physician. We find manifestly erroneous the jury’s decision to give Dr. Bernard’s testimony greater weight than Dr. Gupta’s. Dr. Bernard, the defendants’ witness, saw Ms. Miller one time at the request of the defendants for purposes of rendering expert testimony concerning Ms. Miller’s condition. At trial, Dr. Bernard admitted that he could not recall the medical records he reviewed. He testified that he “thought she did see Dr. Gupta.” If Dr. Bernard actually reviewed Ms. Miller’s medical history, he would have known that not only was she seen by Dr. Gupta, but that he had been her treating physician for several years. Dr. Bernard also would have known that Ms. Miller’s complaints of pain to Dr. Gupta were different after the accident. Thus, we further find that the jury’s failure to award Ms. Miller the entire amount of her past medical expenses of $17,689.37 was an abuse of discretion. Likewise, we find that the jury’s award of $2,500.00 in general damages is abusively low.

|7Pr. Gupta and Ms. Miller testified about the excruciating pain she has endured since the accident. Dr. Gupta further testified that he found no reason to doubt Ms. Miller’s complaints of pain, and that she was a believable patient. We find nothing in the record that contradicts Dr. Gupta and Ms. Miller’s testimony about her pain. Therefore, we increase the amount of the general damages award to $75,000.00 to reflect the pain and suffering Ms. Miller has endured as revealed by the record.

“Future medical expenses by their nature are incapable of precise measurement. Thus, much discretion shall be left to the trial court for the reasonable assessment of those damages.” Knabel v. Lewis, 00-1464, p. 4 (La.App. 1 Cir. 9/28/01); 809 So.2d 314, 317, writ denied, 01-2892 (La.3/8/02); 811 So.2d 886; La. Code Civ.P. art.1999. In Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992), the supreme court addressed the issue of future medical expenses and stated:

When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required.

“When the need for future medical care has been demonstrated but cost is not susceptible of determination, the court may make a reasonable award.” Gagnard v. Zurich American Ins. Co./Assur. Co. of America, 02-19 (La.App. 3 Cir. 6/12/02); 819 So.2d 489, 495, citing Cole v. State ex rel. Dept. of Transp. & Dev., 99-912 (La. App. 3 Cir. 12/22/99); 755 So.2d 315, writ denied, 00-0199 (La.4/7/00); 759 So.2d 766.

Dr. Gupta testified that Ms. Miller’s pain was chronic. Dr. Gupta took into consideration Ms. Miller’s age when he opined that she will continue to have pain problems with her back, shoulders and arms. Dr. Gupta concluded that Ms. Miller would continue to need pain management therapy — trigger point injections, Cheat application, and medication — for the rest of her life. Dr. Gupta estimated the cost of such therapy to be $300.00^450.00 per month. We find that the whole of medical testimony produced sufficient evidence of the need for future medical care for the rest of Ms. Miller’s life. However, although Dr. Gupta testified regarding the cost per month of Ms. Miller’s future medical care, it is speculative to predict Ms. Miller’s lifespan. Damages for future medical expenses are special damages, which can be established to a reasonable mathematical certainty or with relative certainty, though not necessarily precisely. Wainwright v. Fontenot, 00-0492 (La. 10/17/00); 774 So.2d 70. The record does not reflect evidence of Ms. Miller’s life expectancy; thus, it would be mere speculation to assess the cost of Ms. Miller’s future medical care. Further, we cannot take judicial notice, pursuant to La.Code Evid. arts. 201 and 202, of the United States Department of Labor Life Expectancy Chart because a person’s life expectancy involves factors other than mere age that can be disputed. In Veazey v. State Farm Mutual Auto Ins., 587 So.2d 5, 8 (La.App. 3 Cir.1991), we said “An award for future medical expenses cannot be based on mere speculation of the jury.” Therefore, the jury did not err in failing to award Ms. Miller future medical expense damages.

IV.

CONCLUSION

For the reasons assigned, we affirm the trial court’s judgment insofar as it denied the plaintiff, Iris Miller, damages for future medical expenses, awarded her general damages and past medical expense damages. However, we amend and recast the trial court judgment so as to increase the quantum of the general damages and past medical expenses awards in favor of Iris Miller and against the defendants, Baker Hughes Oilfield Operations, Inc. and its insurer, National Union Fire Insurance 1 flCompany, to $75,000.00 and $17,689.37, respectively. Finally, it is ordered that costs in this case, both at the trial court level and on appeal, are to be borne by the defendants, Baker Hughes Oilfield Operations, Inc. and its insurer, National Union Fire Insurance Company.

AMENDED IN PART, REVERSED IN PART, AND RENDERED.


author: liPETERS, J.

text:
    Toby ARMENTOR v. ARROW PEST CONTROL.
    No. 02-0533.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2002.
    Rehearing Denied Dec. 11, 2002.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/AppellanVAppel-lee, Toby Armentor.
    John Nickerson Chappuis, Voorhies & Labbé, Lafayette, LA, for Defendant/Appellant/Appellee, Arrow Pest Control.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   liPETERS, J.

Toby Armentor filed a claim for workers’ compensation benefits, asserting that he sustained injuries to his neck and back while in the course of his employment with Arrow Pest Control (Arrow). Armentor and Arrow stipulated that Armentor did in fact sustain a work injury on May 6, 1998, and that Armentor is currently temporarily, totally disabled. Additionally, the parties stipulated that Arrow has paid Armentor weekly benefits following the accident with the exception that benefits were terminated on June 29, 2000, and reinstated on February 23, 2001.

Armentor’s claim was heard on July 18, 2001, on various issues related to the payment of indemnity and medical benefits and penalties and attorney fees. The workers’ compensation judge increased the weekly compensation rate, awarded penalties for the underpayment of indemnity benefits, held that Arrow reasonably controverted its failure to immediately authorize neck surgery, awarded Armentor a penalty of $250.00 for Arrow’s failure to send him a copy of all physician reports, awarded penalties of $2,000.00 for Arrow’s failure to authorize a prescription for Pax-il, awarded $5,000.00 in attorney fees regarding the underpayment of indemnity benefits, and awarded $2,000.00 in attorney fees regarding the failure to authorize the prescription for Paxil. Both Armentor and Arrow have appealed this judgment.

Armentor contends that the workers’ compensation judge erred in failing to award penalties for Arrow’s failure to timely authorize neck surgery, failure to timely pay mileage, and failure to authorize physical therapy. Regarding the delay in authorizing neck surgery, the workers’ compensation judge found as follows:

Dr. Thomas Butaud was initially examined [sic] the claimant as the defendant’s choice of orthopedist. Dr. Butaud later refused to examine the claimant indicating he was giving up his practice related to the treating of back injuries, and he would therefore no longer examine or treat the claimant for that type of injury. Defendant attempted to change its choice of physician several times. Ultimately, the court allowed l2claimant to be examined by defendant’s next choice of orthopedist, Dr. Lynn Foret. After the court order, the claimant failed to attend the initial examination of Dr. Foret, because the examination was scheduled for two consecutive days and clarification was needed on whether Dr. Foret could examine claimant’s neck and back. The Court ordered an examination of only the claimant’s neck. After Dr. Foret agreed that neck surgery was reasonable and necessary, neck surgery was authorized. In light of the circumstances, this portion of the claim was reasonably controverted.

The record supports the denial of penalties for the delay in authorizing neck surgery because, through no fault of its own, Arrow had difficulty securing an examination with its choice of physician. In fact, Armentor stipulated at trial that he failed to attend independent medical examinations scheduled with Dr. James Perry, an orthopedic surgeon, and with Dr. Foret, although he eventually submitted to an examination by Dr. Foret. We find no manifest error in the workers’ compensation judge’s denial of penalties in this regard.

The judgment is silent on the issue of penalties and attorney fees regarding mileage reimbursement, which silence is tantamount to a rejection of the claim. See Johnson v. Transerve, 01-1170 (La.App. 3 Cir. 2/27/02), 809 So.2d 1179. However, the record reflects that these expenses were not timely paid. Additionally, as we appreciate the trial stipulation by Arrow’s attorney, he was under the impression that Arrow’s third-party insurance administrator was taking care of the claim. This lack of administrative coordination provides no safe haven for Arrow, and the workers’ compensation judge erred in failing to award penalties and attorney fees in this regard. Due to the length of the delay, we assess a penalty of $2,000.00. Additionally, we award attorney fees of $1,000.00.

Concerning the failure to authorize further physical therapy, Arrow’s attorney stipulated the following at the hearing: “The adjuster did receive the request and ^denied the physical therapy on the basis of Mr. Armentor having received 52 treatments with no improvement and also a failure to attend independent medical examinations that had been scheduled in the past by the employer.” The record contains a letter from Hebert & Thibodeaux Physical Therapy dated January 13, 2000, to Armentor’s attorney, to the effect that attempts to obtain approval for Armentor’s physical therapy had been rejected. Importantly, the record also contains an office note of December 29, 1999, by Ar-mentor’s treating orthopedist, Dr. Dale Bernauer, that provides: “He states that he feels physical therapy is no longer helping decrease his pain.” Dr. Bernauer did not indicate in his office note of that date that Armentor should pursue further physical therapy but recommended neck surgery. The workers’ compensation judge failed to find that Armentor was entitled to further physical therapy, and that finding is not manifestly erroneous. Thus, concomitantly, the workers’ compensation judge was not manifestly erroneous in failing to award penalties in that regard.

Arrow contends on appeal that the workers’ compensation judge erred in awarding penalties and attorney fees for its failure to authorize Paxil. In so holding, the workers’ compensation judge stated: “Defendant’s choice of physician, Dr. Butaud, wrote a prescription of Paxel [sic]. This drug was not authorized, nor did defendant reasonably controvert why it faked to authorize the drug.”

We note that the workers’ compensation judge erred factually in finding that Arrow’s choice of physician, Dr. Butaud, had prescribed the Paxil. In fact, the record reveals that Armentor’s choice of orthopedist, Dr. Bernauer, prescribed the Paxil, stating: “People with chronic pain are very often depressed and need to be treated for this condition.” (Armentor even concedes in brief that Dr. Bernauer prescribed the RPaxil.) Importantly, following the issuance of this prescription, Arrow repeatedly attempted to have Armentor seen by its choice of physician, which attempts proved unfruitful for some time through no fault of Arrow’s, effectively eviscerating Arrow’s entitlement to have the information necessary for it to take a position on the validity of the claim. Moreover, the requirement of La.R.S. 23:1021(7)(c) and (d) that a mental injury or illness be diagnosed by a licensed psychiatrist or psychologist provided Arrow with grounds to reasonably controvert the diagnosis and treatment of depression by an orthopedist. Thus, we find that the workers’ compensation judge erred in awarding penalties of $2,000.00 and attorney fees of $2,000.00 for Arrow’s failure to authorize the Paxil prescription.

Finally, Armentor contends that the workers’ compensation judge erred in the amount of the attorney fees awarded. Having reversed the $2,000.00 award of attorney fees regarding the Paxil prescription and having awarded $1,000.00 for the failure to timely pay mileage reimbursements, we find no abuse of discretion in the amount of the attorney fee award. See generally Duhon v. Trend Servs., Inc., 01-1194 (La.App. 3 Cir. 3/6/02), 809 So.2d 1222. We do note that the workers’ compensation judge assessed a penalty of $250.00 for Arrow’s failure to send Armentor a copy of certain physician reports pursuant to La.R.S. 23:1125 but failed to award reasonable attorney fees as required by the statute. Arrow conceded in its post-trial brief that Armentor is entitled to a penalty and attorney fees in this regard. Accordingly, we assess attorney fees of $250.00 for Arrow’s failure to comply with La.R.S. 23:1125. We additionally award $750.00 in attorney fees for work done on appeal.

1 .DISPOSITION

For the foregoing reasons, we reverse the workers’ compensation judge’s failure to award penalties and attorney fees for Arrow’s failure to timely pay mileage reimbursement, and we assess penalties of $2,000.00 and attorney fees of $1,000.00 in that regard. Additionally, we reverse the workers’ compensation judge’s award of penalties and attorney fees for Arrow’s failure to authorize the Paxil prescription. Further, we assess attorney fees of $250.00 for Arrow’s failure to timely supply Armentor with a copy of certain physician reports. Also, we assess $750.00 in attorney fees for work done on appeal. We otherwise affirm the judgment below in all respects. Finally, we assess fifty percent of the costs of this appeal to Toby Armentor and fifty percent of the costs to Arrow Pest Control.

REVERSED IN PART; AFFIRMED IN PART; RENDERED IN PART.

      . We note that we do not at this juncture consider whether this case would fall within the perimeters of La.R.S. 23:1021(c) and (d). Rather, we find only that the statutory provisions certainly provided a reasonable ground for controverting the diagnosis and treatment of depression by an orthopedist.