author: J^FITZSIMMONS, J. |, PETTIGREW, J.,

text:
    Michael GRANT v. Mayor George GRACE and City Council of St. Gabriel, La.
    No. 2002 CA 2098.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Victor Woods, Baton Rouge, Counsel for Plaintiff/Appellee.
    L. Phillip Canova, Jr., Louis W. Dela-haye, Thomas C. Delahaye, Plaquemine, Counsel for Defendant/Appellant City of St. Gabriel.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

The City of Gabriel (City) appeals the grant of a summary judgment in favor of Michael Grant (Grant), declaring Grant wrongfully terminated on May 25, 2002. Following a review of the facts and law, this court affirms.

Grant was hired as a law enforcement peace officer for the St. Gabriel Police Department on May 17, 2001. His qualifications for the position of a peace officer were subject to the statutory requisites of La. R.S. 40:2405. That provision states in pertinent part:

A. (1) Notwithstanding any other provision to the contrary, any person who begins employment as a peace officer in Louisiana subsequent to January 1, 1986, must successfully complete a certified training program approved by the council and successfully pass a council-approved comprehensive examination within one calendar year from the date of initial employment. Any person who fails to comply with this requirement shall be prohibited from exercising the authority of a peace officer; however, such persons shall not be prohibited from performing administrative duties. (Emphasis added.)

As of May 23, 2002, Grant had not satisfied the requirements of the mandatory training program. The chief of police of St. Gabriel recommended that Grant be placed in an administrative position until his completion of the training. The city council of St. Gabriel (Council) voted unanimously to terminate Grant’s employment.

At issue in this .appeal is the degree to which La. R.S. 33:423, entitled “Duties of marshal”, impedes the authority of the council to deny Grant an administrative position. Pursuant to an excerpt from La. R.S. 33:423 A, the “marshal shall be the chief of police and shall be ex officio a constable.... [H]e shall make recommendations to the mayor and board of aider-men for appointment of police personnel, for the promotion of officers, to effect disciplinary action, and |3for dismissal of police personnel... .” The recent first circuit case, Lee v. Grimmer, 99-2196 (La.App. 1 Cir. 12/22/00), 775 So.2d 1223, involved a termination of a police officer by the board of aldermen without a formal recommendation by the chief of police. In Lee, this court reviewed the legislative evolution of the municipal arm of authority empowered to dismiss police personnel. It was observed that prior to the amendments of La. R.S. 33:401 and 33:402 in 1985, the mayor and board of aldermen had been explicitly vested with the power to remove police employees for misconduct or neglect of duty pursuant to La. R.S. 33:401 A(31). Additionally, prior to a 1990 amendment to La. R.S. 33:423, the marshal had not been statutorily enabled with the power to make recommendations to the mayor and board of aldermen for the promotion, discipline, and dismissal of police employees. Scrutinizing the current version of La. R.S. 33:423, this court interpreted the word “shall” as “mandating a recommendation by the chief of police as a prerequisite to action by the mayor and board of aldermen with respect to the termination of police personnel.” Lee, 99-2196 at p. 7, 775 So.2d at 1228.

In another previous case, Thibodeaux v. Hernandez, 97-602 (La.App. 3 Cir.10/29/97), 702 So.2d 1157, the third circuit addressed a comparable dismissal. Thibo-deaux was terminated by the board of aldermen for his failure to attend the police academy, notwithstanding the refusal of the chief of police to make a recommendation for Thibodeaux’s dismissal. The court held that the board of alderman and mayor lacked the authority to unilaterally terminate Officer Thibodeaux’s employment without the contingent recommendation of the chief of police. Thibodeaux, 97-602, at p. 6, 702 So.2d at 1159. The board of aldermen ]4was thus precluded from disciplining or dismissing the officer in the absence of a recommendation made by the chief of police.

The facts surrounding the instant termination of Grant contain a factual distinction because the St. Gabriel chief of police recommended a transfer to an administrative position. See La. R.S. 40:2405. The City responded that there existed no budgeted position for an officer whose role would be limited to administrative duties. Specifically, the allocation of positions for officers in the 2002-2003 St. Gabriel budget was reduced from seven to six officers, and no new position was created for an administrative officer.

We recognize the council’s duty, as the governing authority in the operation of the municipality, to adopt a viable monetary budget. See La. R.S. 39:1301 — 39:1315. A recommendation by the chief of police to create new peace officer positions without adequate funding in the budget would contravene and impinge on the public duty and fiscal responsibility of the council to legislate a sound budget. Nor do we interpret the provisions of La. R.S. 33:423 to extend such unchecked power to the chief of police. However, in the instant case, the termination of Grant is based on the peace officer’s failure to complete the mandatory training course. In such a circumstance, where the employee’s position has already been established and the officer has assumed employee status within the department, the state legislature has expressly vested the authority and discretion in the chief of police to transfer the peace officer to administrative duties. It has, moreover, divested the council of its authority to terminate a police officer without the prior recommendation of the chief of police. As such, the council exceeded its authority when it ignored the recommendation of the chief of police and unilaterally terminated Grant.

IsThe judgment of the trial court is affirmed. Costs in the sum of $1,853.92 are assessed to the City of St. Gabriel.

AFFIRMED.

PETTIGREW, J., Dissents, and Assigns Reasons.

|, PETTIGREW, J.,

dissenting.

I agree with the majority that the use of the word “shall” in La. R.S. 33:423 mandates that a recommendation be made by the police chief to the St. Gabriel City Council for appointment of police personnel, promotion of officers, to effect discipline, and/or for dismissal of police personnel. However, the statute only requires a recommendation. Nothing in the statute says the police chief shall have the final authority to fire, hire, effect discipline, or dismiss police personnel. That authority and power is still vested with the Council.

In the case at hand, the police chief made a recommendation of administrative duty. The Council did not accept that recommendation and chose instead to terminate. The contract of employment that the appellant had was with the municipality. Grant breached same by violating La. R.S. 40:2405. To terminate him due to this violation was the choice of the Council.

The majority is constrained by the law of this circuit as held in Lee v. Grimmer, 99-2196 (La.App. 1 Cir. 12/22/00), 775 So.2d 1223. Although I also respectfully disagree with the holding in Lee, I, in particular, feel the instant case is distinguishable from Lee. In Lee, the police chief made no initial recommendation. In the instant case, the police chief did make a recommendation. However, the Council chose not to follow it, which, I believe, was within their authority to do. I therefore respectfully dissent from the majority and would reverse the trial court.

      . Louisiana Revised Statute 40:2405 was amended by Acts 2001, 2nd Ex.Sess., No. 8, § 2, eff. Oct. 16, 2001. Section A remained unchanged.

      . It is not disputed that St. Gabriel qualifies as a municipality governed by the provisions of La. R.S. 33:321 etseq.

      . After the proceeding had begun, the chief of police recommended a suspension.

      . 1990 La. Acts, No. 568, § 1.


source: Caselaw Access Project

author: LMcCLENDON, J.

license: Public Domain

text:
    Richard HUNDLEY v. BISSO PROPERTIES and Louisiana Workers’ Compensation Corporation.
    No. 2002 CA 2110.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Cassandra Krebs, Covington, Counsel for PlaintiffiAppellant Richard Hundley.
    Frank E. Brown, III, Baton Rouge, Counsel for Defendants/Appellees Louisiana Workers’ Compensation Corporation and Bisso Properties.
    Before: FOIL, McCLENDON, and KLINE, J.J.

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

   LMcCLENDON, J.

This is an appeal from a workers’ compensation action upholding a decision to reduce a claimant’s benefits by an amount equal to wages claimant could have earned pursuant to an alleged job offer, which did not result in employment. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On January 3, 1997, claimant, Richard Hundley, was working as a carpenter for the defendant/employer, Bisso Properties, repairing a swimming pool enclosure, when he fell approximately twelve to fifteen feet and landed on a concrete surface. Mr. Hundley was knocked unconscious and suffered a concussion. Mr. Hundley asserted that this accident resulted in neck and back pain, contusions, and severe headaches. In addition to his other injuries, Mr. Hundley was subsequently diagnosed with post-concussive syndrome and continued to experience debilitating headaches. Accordingly, Mr. Hundley was receiving supplemental earnings benefits.

Over the ensuing years, Mr. Hundley cooperated with the payor of workers’ compensation, the Louisiana Workers’ Compensation Corporation (LWCC), in their rehabilitative efforts. However, because of the narcotic medications prescribed for Mr. Hundley, his ability to drive was limited. In July of 2001, Mr. Hundley received correspondence from Work Enterprises, Inc. (WE) indicating that WE had jobs available for work at claimant’s home assembling and/or packaging bath salts, Mardi Gras and other party favors, for a maximum of thirty hours per week at $5.15 per hour. Mr. Hundley was asked to telephone the company by July 23, 2001 if interested in a position with the company. Prior to the deadline, Mr. Hundley called WE and expressed an interest in the work. At that time, Mr. Hundley was told by the company representative, Jeff Arceneaux, that an application package would |3be mailed to him. Mr. Hundley’s physician approved the jobs involving assembly and/or paekag-ing of party favors, but would not approve work with bath salts, fearing the aromatic nature of the product would aggravate his headaches.

Mr. Hundley claimed he received no further direct communication from WE. LWCC claimed it received information from WE that an application package was sent to Mr. Hundley, but that he failed to return the package. Based on this information, LWCC reduced Mr. Hundley’s workers’ compensation benefit by an amount equal to thirty hours per week at $5.15 per hour, effective August 1, 2001.

A disputed claim for compensation was filed by Mr. Hundley on October 17, 2001, seeking reinstatement of full benefits. A hearing was held before the Office of Workers’ Compensation (OWC) on May 16, 2002. Mr. Hundley’s accident and injury were not disputed. Following testimony by the claimant, the adjuster for LWCC, Kelly Streva, and a vocational rehabilitation counselor, John Russell Pleune, the OWC judge rendered judgment in favor of the employer and the LWCC, upholding the reduction of benefits.

Mr. Hundley appealed and on appeal asserts that: (1) the OWC judge did not properly consider the evidence or apply the law regarding his entitlement to and amount of supplemental earnings benefits, and (2) the OWC judge erred in refusing to award penalties and attorney fees for LWCC having arbitrarily, capriciously, and without benefit of investigation, reduced his supplemental earnings benefits.

CLAW AND ANALYSIS

Reduction of Benefits

In the instant case, Mr. Hund-ley’s entitlement to supplemental earnings benefits was not contested; only the defendants’ right to reduce the benefits was at issue. Defendants/appellees contend that Mr. Hundley’s benefits were properly reduced under LSA-R.S. 23:1221(3)(c)(i).

Under LSA-R.S. 23:1221(3)(c)(i), once the right to supplemental earnings benefits has been established, or is undisputed as in the instant case, the claimant is entitled to collect the amount provided in LSA-R.S. 23:1221(3), which incorporates a reduction for actual wages or wages that could be earned by the claimant. In order to defeat or reduce a claimant’s right to supplemental earnings benefits, it must be shown: (1) that a suitable job exists within a claimant’s physical capabilities and the parties’ community or reasonable geographic region; (2) the amount of wages a claimant could expect to earn at that job; and (3) that an actual position was available for that particular job at the time the claimant received notification of the job’s existence. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 10-11 (La.7/1/97), 696 So.2d 551, 557.

The claimant/appellant in the instant case, Mr. Hundley, contends defendants failed to show that the job at issue was actually available and further asserts, in the alternative, that there was no showing as to the number of hours that would have actually been worked. Mr. Hundley alleges the LWCC was attempting to purchase a job offer from WE, inferring that the “position” offered by WE could not be considered “employment” within the meaning of LSA-R.S. 23:1221(3).

Oral reasons were given by the OWC judge at the close of the hearing indicating that she found the reduction of Mr. Hund-ley’s supplemental | Rearnings benefits appropriate because, even though he did not receive the information from WE as promised, he had the opportunity to call either WE, Mr. Pleune, Ms. Streva, or his attorney to inquire about non-receipt of the documents. The OWC judge further stated that the telephone conversation between Mr. Hundley and Mr. Arceneaux “was something just short of an offer of employment,” but she did not find that Mr. Hundley refused the employment. The OWC judge reasoned that Mr. Hundley had an obligation to find out why he did not receive the application “when so much time had passed.” In upholding the reduction of benefits, the OWC judge accepted the defendants’ position that the amount of reduction was correct; i.e., the $5.15 per hour WE would have paid for thirty hours of work per week.

On appeal, the factual findings of an OWC judge are subject to the same standard of review as in other eases; i.e., a trial court’s finding of fact may not be set aside on appeal unless there is no reasonable factual basis for the finding and the finding is clearly wrong (manifestly erroneous). See Bolton v. B E & K Construction, 2001-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. See also Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35, citing Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

Of interest in this case is Exhibit C-2, which is a letter to LWCC representative Jill Leonard from WE. This letter appears to document a | ^contractual arrangement between LWCC and WE whereby WE agreed to “immediately begin to help Mr. Hundley return to gainful employment” when “we receive the first payment.” The payment schedule set out in the letter was as follows:

The payment installments will be as follows:

• $3,000.00 due upon receipt of this agreement
• $3,000.00 due when client accepts job offer
• $3,000.00 due 30 days after client accepts job offer
• $3,000.00 due 60 days after client accepts job offer
• $1,000.00 due 90 days after client accepts job offer

Additional conditions contained in the LWCC/WE letter agreement included the following:

1. Receipt of the first payment will activate [WE’s] program.
2. Payments will cease to be due if [WE] discontinues services or employment of the client, refuses to accept the client, if the client refuses employment, or if the client settles. Final payment will be calculated on a per diem rate for the applicable installment period.
3. The training program will last ten months.
4. Upon certification by [WE] of successful completion of the training program, the client shall become an employee of [WE], on an “at will” basis, subject to all policies and procedures of [WE], with hours, work schedules, job duties and responsibilities as may be assigned from time to time by [WE], in its sole discretion, taking into account, inter alia, market demand for products of [WE], profitability and other business factors.

The LWCC claims adjuster, Kelly Stre-va, admitted at the hearing of this matter that LWCC had paid WE $6,000.00 in fees for the company to undertake its attempt to “employ” Mr. Hundley. The letter further referred to the undertaking with respect to Mr. Hundley as “services or employment,” giving the impression that the preliminary ten-month training program might be more like a rehabilitative program than actual employment, particularly when the provisions of the letter go on to describe WE’s relationship with |7Mr. Hundley after the ten-month training program as an “at will” employment and with work to be assigned in WE’s sole discretion.

Nevertheless, the decision of the OWC turned on its view that since Mr. Hundley was informed of the existence of a possible available position with WE, he had the obligation to further contact WE when the application package did not arrive as promised. Because we decide that such a conclusion by the OWC judge, under the particular facts of this case was in error, we find it unnecessary to rule on the validity of the WE “position” as “employment.”

Mr. Hundley acknowledged at the OWC hearing that he received the initial informational letter from WE in July of 2001. Mr. Hundley testified that he did call WE, as requested, prior to July 28, 2001, and expressed an interest in a job and was told an application package would be mailed to him. Mr. Hundley also acknowledged that his physician had approved several of the jobs that WE described. However, Mr. Hundley testified that he never received any further correspondence or contact from WE; this testimony was not refuted at the OWC trial.

Mr. Hundley’s benefit check for the August 1, 2001 through August 31, 2001 time period, which was dated September 5, 2001, reflected a reduction of benefits based on WE wages for a thirty-hour work week. Mr. Hundley filed a claim disputing the reduction of his benefits in October, 2001. Afterwards, WE mailed a letter, on November 28, 2001, to Mr. Hundley’s attorney with a job offer to Mr. Hundley, which expired, by the | gterms of the letter, on November 30, 2001; this letter was not received by Mr. Hundley’s attorney until some time in December, 2001.

Ordinarily we might agree with the finding of the OWC judge that a claimant has a responsibility to follow-up on non-receipt of a promised job application package. However, in the instant case, less than two weeks had elapsed between the time Mr. Hundley contacted WE (prior to July 23, 2001) and the date on which defendants reduced the amount of his workers’ compensation benefits (August 1, 2001). Under the facts of this case, we do not think a reasonable amount of time was allowed for said follow-up. Therefore, we conclude that defendants did not bear their burden to prove that an actual position was available for that particular job at the time the claimant received notification of the job’s existence.

Since we find that defendants failed to establish there was an actual job available to the claimant prior to the reduction of his benefits, we conclude that the OWC erred in finding the claimant’s benefits were properly reduced. We further find that Mr. Hundley’s benefits should be reinstated to the full amount of supplemental earnings benefits, retroactive to August 1, 2001.

Penalties and Attorney Fees

Mr. Hundley contends that the failure of Ms. Streva, the LWCC adjuster, to investigate the circumstances of the WE job availability rendered 19the LWCC arbitrary and capricious in reducing his benefits, and thus entitled him to statutory penalties, attorney fees, and interest, citing Hall v. McDonald Insulation, 537 So.2d 328, 331 (La.App. 1 Cir.1988).

Ms. Streva admitted in her trial testimony that she did not undertake any investigation prior to reducing Mr. Hundley’s compensation benefits. Ms. Streva merely assumed that after the first letter was sent to Mr. Hundley that he refused employment with WE, reasoning that WE would have notified her otherwise. It was not until November of 2001, after litigation began, that Ms. Streva received a faxed copy of handwritten notes from WE, indicating the extent of WE’s contacts with Mr. Hundley. Ms. Streva testified that Mr. Hundley’s benefits should not have been reduced if he did not receive the application package, but admitted that she did not make any inquiry before reducing his benefits as to whether he had in fact received the application package.

An employer must adequately investigate a workers’ compensation claim, and the crucial inquiry in determining whether to assess attorney fees is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action. Brister v. Sears Authorized Retail Dealer, 99-945, pp. 13-14 (La.App. 3 Cir. 12/8/99), 753 So.2d 871, 879-80, writ denied, 2000-0077 (La.2/25/00), 755 So.2d 887. See also Killett v. Sanderson Farms, 2001-0277, p. 12 (La.App. 1 Cir. 5/10/02), 818 So.2d 853, 863.

We believe under the circumstances of this case, the LWCC acted arbitrarily and capriciously in reducing Mr. Hundley’s benefits without the benefit of any investigation and based upon the pure speculation of the adjuster.

|inMr. Hundley has sought penalties and attorney fees; however, only attorney fees can be awarded pursuant to LSA-R.S. 23:1201.2. Although LSA-R.S. 23:1201 provides for penalties and attorney fees when the insurer failed to commence the payment of benefits in a timely fashion, this case is governed by LSA-R.S. 23:1201.2, which covers instances where benefits had been timely paid but were discontinued or reduced. See Insurance Co. of North America v. Labit, 99-2448, pp. 2-3 (La.App. 1 Cir. 11/15/00), 772 So.2d 385, 387, quoting Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41.

Therefore, we find that Mr. Hundley is entitled to collect attorney fees for the prosecution of this proceeding for the reinstatement of his workers’ compensation benefits in the amount of $3,500.00.

Claim for Interest

In brief to this court, Mr. Hundley additionally seeks “all appropriate interest assessed to the defendants.” A workers’ compensation claimant is entitled to legal interest on past workers’ compensation benefits from the due date of each payment, until paid, and on penalties and attorney fees from the date of judicial demand until paid. Kirn v. East Jefferson Hospital, 96-0838, p. 12 (La.App. 1 Cir. 2/14/97), 691 So.2d 127, 134; Thibodeaux v. Aetna Casualty and Surety Company, 454 So.2d 1141, 1146 (La.App. 1 Cir.1984).

Therefore, in the instant case, Mr. Hundley is entitled to recover legal interest from August 1, 2001 on the difference between the amount of [ T ¶workers’ compensation he received and the amount he should have received and on each due date thereafter on which the full amount of supplemental earnings benefits were not remitted to Mr. Hundley, until paid. Mr. Hundley is further entitled to recover interest on the amount of attorney fees awarded from the date of judicial demand, October 17, 2001, until paid.

CONCLUSION

For the reasons assigned herein the judgment of the OWC is reversed, and judgment is hereby rendered in favor of the claimant, Richard Hundley, against defendants/appellees, Bisso Properties and Louisiana Workers’ Compensation Corporation, ordering defendants/appellees to reinstate Mr. Hundley’s workers’ compensation benefits to the full amount of supplemental earnings benefits, retroactive to August 1, 2001, and ordering defendant/ap-pellees to pay to Richard Hundley all unpaid benefits with legal interest on the amounts owed from the date due until paid. Judgment is further rendered in favor of Richard Hundley for attorney fees in the amount of $3,500.00, with legal interest thereon from October 17, 2001 until paid. All costs of these proceedings are to be borne by defendants/appellees, Bisso Properties and Louisiana Workers’ Compensation Corporation.

REVERSED AND RENDERED.

      . Prior to the reduction, claimant had received $1,328.53 per month in benefits. This amount was reduced to $872.43 per month.

      . We note the argument that WE is a "sham” employer has previously been asserted, but there has been no prior direct ruling by the courts on this issue. See Doucet v. Crowley Mfg., 2002-1065 (La.App. 3 Cir. 3/19/03), 846 So.2d 875. Although in Kaiser v. Western-Southern Ins. Co., 2001-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52, a WE position was noted as being among four positions that were available to the claimant justifying a reduction in supplemental earnings benefits, the validity of the WE position was not an issue before the court and was not discussed therein.

      . No WE representative testified either personally, by affidavit, or by deposition. Although the November 2001 letter was in evidence, it was written three months after Mr. Hundley’s benefits had been reduced and the offer of a job expressed therein expired before the letter reached its addressee. No similar copy of the job offer letter that was supposedly mailed to Mr. Hundley at the end of July 2001 was submitted into evidence.

      . Supplemental earnings benefits are calculated as sixty-six and two-thirds percent of the difference between the average monthly wages at the time of injury and the average monthly wages the employee is able to earn in any month thereafter pursuant to LSA-R.S. 23:1221(3). Where the employer fails to prove that the employee was offered a job or one was available to him that he was physically capable of performing, the amount of wages the employee is able to earn is considered as zero. Spencer v. Gaylord Container Corp., 96-1230, p. 8 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 824.

      . LSA-R.S. 23:1201.2 provides:
      Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.


author: jjgCLAIBORNE, J.

text:
    Cecilia Zakrzewski DAIGLE v. Marcia VANDERPOOL.
    No. 2002 CA 2005.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Daniel Caruso, New Orleans, Counsel for Plaintiff-Appellant, Cecilia Zakrzewski Daigle.
    Brent Rhodes, Houma, Counsel for Defendant-Appellee, Marcia Vanderpool.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   jjgCLAIBORNE, J.

This is an appeal by the plaintiff, Cecilia Daigle, from a judgment of the trial court in favor of the defendant, Marcia Vander-pool, finding that the lease éntered into between them on June 26, 1992, was valid only with regard to the primary term of ten years and that, at the expiration of the ten-year period on June 26, 2002, it was no longer valid. The judgment also decreed that Cecilia Daigle had no other right to remain on the premises owned by Marcia Vanderpool. The defendant has answered the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The property presently owned by Marcia Vanderpool is located at 3395 Highway 316 in Terrebonne Parish in Gray, Louisiana. Before Ms. Vanderpool and her former husband, Daniel Vanderpool, purchased the property in 1992, it was comprised of two separate, adjacent tracts of land, one of which has been called the “home site” throughout these proceedings and one of which has been called the “pasture site.” The home site was owned by Donald Waguespack, and the pasture site was owned by his mother-in-law, Cecilia Daigle.

On March 20, 1992, Donald Waguespack sold the home site to Daniel and Marcia Vanderpool by an act of cash sale for the price of $95,000.00. On that date, there were three buildings on the home site: the main house into which the Vanderpools moved after purchasing the property, a smaller house behind the main house which Cecilia Daigle occupied, and a small barn. Donald Waguespack testified at trial that he had given Ms. Daigle permission to put her house on his property in 1974. However, no declaration was ever recorded in the public records stating that she owned the house separate from the land, and when the land was sold to the Vander-pools, nothing was done to preserve Ms. Daigle’s separate ownership 13of the house. The act of sale transferred to the Vander-pools ownership of the land “[tjogether with all buildings and improvements thereon and all rights, ways, privileges and servitudes thereunto belonging or in anywise appertaining.”

Donald Waguespack testified that he would not have sold his property to the Vanderpools unless Ms. Daigle could continue living in her house on the land for the rest of her life. He testified that he had an agreement to that effect with the Vanderpools and that it was a condition of the sale. Ms. Vanderpool admitted that she had a “gentleman’s agreement” with Mr. Waguespack to allow Ms. Daigle to continue living in the smaller house behind the main house. She stated that she felt sorry for Ms. Daigle because Ms. Daigle wanted to stay on the property and was afraid that after her daughter and son-in-law sold the property and moved away, she would be put in a rest home. Ms. Vander-pool testified that Ms. Daigle seemed very upset about the possibility of being put into a rest home, and out of kindness, she agreed to allow Ms. Daigle to continue to live on the property. Ms. Vanderpool denied that this agreement was a condition of Mr. Waguespack’s sale of the home site to her and her husband or that the sale of the home site was in any way contingent upon her allowing Ms. Daigle to remain on the property. The act of cash sale mentions nothing about such an agreement or lease in favor of Ms. Daigle, nor does it purport to create a usufruct, right of use, or right of habitation in her favor.

While Mr. Waguespack testified that Ms. Vanderpool agreed Ms. Daigle could remain living in the house for the rest of her life, Ms. Vanderpool testified that, at the time she purchased the home site from him, they did not agree on a particular period of time for Ms. Daigle to remain on |4the property. She stated her intent was to allow Ms. Daigle to stay there as long as she was able to care for herself.

On June 26, 1992, Ms. Daigle sold the pasture site to the Vanderpools by an act of cash sale for the price of $12,000.00. At the time of the sale, the pasture site was an undeveloped tract of pastureland located adjacent to the home site. It appears there may have been a dilapidated barn on the pasture site, but the sale included only the real estate and expressly excluded the improvements. Like the previous sale of the home site, the act of sale of the pasture site mentions nothing about a lease or agreement allowing Ms. Daigle to remain on the property as a condition of the sale, nor does it purport to create a usufruct, right of use, or right of habitation in her favor.

On the same day as the sale of the pasture site, Ms. Vanderpool and Ms. Dai-gle entered into a lease, whereby Ms. Dai-gle became the lessee of the house she was already occupying, plus an area around it of one hundred feet by one hundred feet. The lease was for a term of “ten (10) years with ten (10) ten (10) year options effective as of the date of the execution of this Lease,” and it provided for a payment of one dollar for the first ten-year term and one dollar for every renewal thereafter. At the trial Ms. Vanderpool testified that, at the time she signed the lease, she believed that she alone could exercise the renewal options. She also testified that she understood the lease to mean that Ms. Daigle could remain on the property for a period of ten years or until her death, whichever occurred first, and that if Ms. Daigle were still alive after ten years, then it would be Ms. Vanderpool’s decision whether to renew the lease. Ms. Daigle testified she thought she |Bwas given the right to stay in the house as long as she wished.

From 1992 until January 2002, Ms. Dai-gle has lived in the house behind the Van-derpools’ house. After Ms. Vanderpool divorced her husband and purchased his share of the property, she decided to sell the property, which includes both the home site and the pasture site. She testified, however, that none of the prospective buyers wanted to purchase the property, because Ms. Daigle refuses to vacate the premises. Ms. Vanderpool also testified that Ms. Daigle’s health has seriously deteriorated over the course of the past ten years and that visitors to Ms. Daigle’s home have interfered with Ms. Vander-pool’s use and enjoyment of her property.

On January 25, 2002, Ms. Vanderpool filed a petition in the City Court of Houma to evict Ms. Daigle from the house on the grounds of nonpayment of rent and an invalid lease. In response, Ms. Daigle filed a petition for declaratory judgment in the 32nd Judicial District Court for the Parish of Terrebonne, seeking a determination of the validity of her lease. Pursuant to an agreement reached between the parties, the district court judge rendered a consent judgment prohibiting Ms. Vander-pool from pursuing any matters in the eviction suit in the City Court of Houma for a period of ninety days. During that ninety-day period, a trial on the merits was held in the declaratory judgment action, and the judge ruled in favor of Ms. Vanderpool, finding that the lease would no longer be valid after June 26, 2002. From that judgment, Ms. Daigle appeals, urging the following assignments of error:

1. The district court erred in not recognizing that, at the time Mr. Waguespack sold the home site to the Vanderpools, he obtained a valid oral lease in favor of Ms. Daigle which would allow her to remain in her home until her death.
|fi2. The district court erred in not finding that the written lease was given for valid consideration other than cash, namely, in exchange or as a substitute for the prior oral lease.
3. The district court erred in not finding that the written lease gave Ms. Daigle the option to renew.
4. The district court erred in finding the written lease to be invalid after June 26, 2002.

LAW AND ANALYSIS

In its oral reasons for judgment, the trial court noted that there was no evidence that would indicate that the sale price in either sale is disproportionate to the value of the property, requiring additional consideration, such as the use by Ms. Daigle of the house on the property sold by Mr. Waguespack to Ms. Vander-pool. The court did not consider the parol evidence and noted the witnesses had contradictory memories and differing understandings of the oral discussions.

In her first assignment of error, Ms. Daigle argues the district court erred in not recognizing that, at the time Mr. Waguespack sold the home site to the Vanderpools, he obtained a valid oral lease in favor of Ms. Daigle which would allow her to remain in her home until her death.

While we agree with the manner in which the district court handled this case, we will briefly address Ms. Daigle’s argument concerning the existence of a valid oral lease. The essential elements of a lease are the thing, the price, and the consent. La. Civ.Code art. 2670. The price should be certain and determinate, and should consist of money. However, it may consist in a certain quantity of commodities, or even in a portion of the fruits yielded by the thing leased. La. Civ.Code art. 2671.

The “gentleman’s agreement” which Ms. Vanderpool admitted she made with Mr. Waguespack when he sold the home site to her, could not have been a valid oral lease, because there was no price. There certainly |7was no price consisting of money. While the price need not be in money but may consist of other considerations, it must be readily ascertainable and determinable from facts or circumstances not within the control of the parties. Willis v. Ventrella, 95-1669 (La.App. 1st Cir.4/4/96), 674 So.2d 991, 994, writ denied, 96-1937 (La.11/1/96), 681 So.2d 1266. Ms. Daigle argues that the consideration for the lease was Mr. Wag-uespack’s sale of the home site to Ms. Vanderpool and the fact that he would not have sold the property unless Ms. Daigle could continue living there for the rest of her life. We reject this argument. If that was a condition of the Waguespack sale, then it should have been included in the act of sale. Moreover, a stipulation pour autrui should be in writing. Hertz Equipment Rental Corp. v. Homer Knost Construction Co., 273 So.2d 685, 688 (La.App. 1st Cir.1973); see also DePaul Hospital v. Mutual Life Insurance Co. of New York, 487 So.2d 143, 146 (La.App. 4th Cir.1986), writ denied, 492 So.2d 1218 (La.1986); Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295 (La.App. 4th Cir.3/19/97), 692 So.2d 1203, 1206; Homer Nat. Bank v. Tri-District Development Corp., 534 So.2d 154, 157 (La.App. 3d Cir.1988), writ denied, 536 So.2d 1236 (La.1989). This would appear to be particularly true when the underlying agreement deals with real estate and is itself in writing. There was no such stipulation included in the Wag-uespack sale, and testimonial evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. La. Civ.Code art. 1848. Accordingly, there was no valid oral lease in favor of Ms. Daigle, because there was no price. Her first assignment of error is without merit. There is nothing in either act of sale concerning an oral agreement or lease |«in favor of Ms. Daigle, and neither act of sale purports to create any type of usufruct, right of use, or right of habitation in her favor. Therefore, the district court was only concerned with the rights Ms. Daigle might possess under the written lease she executed with Ms. Van-derpool on June 26,1992.

In her second assignment of error, Ms. Daigle asserts the district court erred in not finding that the written lease was given for valid consideration other than cash, namely, in exchange or as a substitute for the prior oral lease. As we find that there was no valid oral lease and that Ms. Vanderpool was not bound thereby, the written lease could not have been given in exchange or as a substitute for it, and Ms. Vanderpool’s non-existent obligations could not have served as consideration for the written lease. This assignment of error is without merit.

In her third and fourth assignments of error, Ms. Daigle argues the district court erred in not finding that the written lease gave her the option to renew and in finding the written lease to be invalid after June 26, 2002. Although the district court found the written lease to be valid with respect to its initial ten-year term, the court found that, due to the lack of consideration and the testimony of Ms. Vanderpool concerning her intent when she signed the lease, it was invalid after June 26, 2002.

Under our law, consideration for a lease must be serious and must not be out of all proportion with the value of the thing. This is a general principle of the civil law, as old as the civil law itself, and it is different from the common law, under which the slightest consideration is sufficient to support any obligation. Murray v. Barnhart, 117 La. 1023, 1030, 42 So. 489, 491 (1906). The consideration of one dollar per year by itself is not a serious consideration as rent. Myers v. Burke, 189 So. 482, 483 (La.App. 1st Cir.1939). Therefore, the consideration of one dollar for a ten-year term 19is certainly not serious consideration, and the district court did not err in finding the lease to be invalid after June 26, 2002.

In her answer to Ms. Daigle’s appeal, Ms. Vanderpool asserts that the appeal is frivolous in nature and without any viable support under the law. She requests that sanctions be imposed against Ms. Daigle, and she seeks to be reimbursed for the attorney’s fees and costs she incurred in defending the appeal. We do not find Ms. Daigle’s appeal to be frivolous, and therefore, we decline to impose sanctions against her or award attorney’s fees to Ms. Vanderpool.

Ms. Vanderpool also asserts in her answer that she is entitled to rent in the amount of $600.00 per month from June 27, 2002, the date the lease became invalid, until the date of this court’s judgment. Ms. Vanderpool’s claim for rent is in the nature of a reconventional demand, which must be filed in the trial court and cannot be asserted for the first time on appeal. The claim is, therefore, denied.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. We deny Ms. Vanderpool’s demands for sanctions, attorney’s fees, and rent. All costs of this appeal are assessed to plaintiff, Cecilia Daigle.

AFFIRMED.

      . The court found the lease to be gratuitous and lacking in consideration, but gave effect to the initial term of ten years, because of Ms. Vanderpool's admission. That particular ruling is not before us, because it was not appealed. Ms. Vanderpool acknowledges that, although she disagrees with the ruling, an appeal would be fruitless, because it became moot on June 26, 2002, when the ten-year term expired.

      . The jurisprudential requirement of a writing has been questioned on the grounds that it is based on dicta in the supreme court case of Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971), and followed in Arrow Trucking Co. v. Continental Insurance Company, 465 So.2d 691, 698 (La.1985). See dicta in Wall v. First National Bank of Shreveport, 482 So.2d 865 (La.App. 2d Cir.1986).


author: LKLINE, J.

text:
    Edwina PENN v. OPTIONS, INC. and Louisiana Workers’ Compensation Corporation.
    Nos. 2002 CA 1987, 2002 CA 1988.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Edwina Penn, Hammond, Counsel for Plaintiff/Appellant Pro Se.
    Frank E. Brown, III, Baton Rouge, Counsel for Defendants/Appellees Options, Inc. and Louisiana Workers’ Compensation Corporation.
    Before: FOIL, McCLENDON, and KLINE , JJ.

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

   LKLINE, J.

Appellant, Edwina Penn, appeals the decision of the workers’ compensation judge (“WCJ”) dismissing her claim against ap-pellees, Options, Inc. (“Options”), and its carrier, Louisiana Workers’ Compensation Corporation (“LWCC”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Edwina Penn, was employed by Options where she served as a licensed nursing assistant, working with clients who were handicapped and who had special needs. On February 1, 2000, while in the course and scope of her employment, Ms. Penn was attacked by a client and suffered injury to her neck. Ms. Penn received medical treatment approved and paid for by Options for the injury to her neck. She ultimately returned to work. She asserts that she also suffered injury to her right knee as a result of that attack and that her right knee injury was aggravated on February 16, 2000 when she was required to kneel down during training to perform a CPR test. Options denies that such an incident occurred on February 16, 2000.

On December 5, 2000, Ms. Penn filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”), alleging injury to her right knee due to a work-related accident on February 16, 2000 where she knelt down on the floor during training. On December 6, 2000, Ms. Penn filed a separate disputed claim for compensation form with the OWC alleging a cervical strain, on February 1, 2000, whereby a patient attacked her and grabbed her around her neck. She asserted that no wage benefits had been paid, no choice of orthopaedic physician was allowed, and that she was disabled. In both claims, attorney’s fees and penalties were requested, the latter due to her other knee injury not being acknowledged. Both claims were consolidated by order dated March 19, 2001. Due to claimant’s failure to appear for a properly noticed conference or for trial, her claim was dismissed without prejudice on March 15, 2002, only to be reinstated upon a showing of good cause within thirty days of that order. On April 4, 2002, claimant filed a motion and order to reinstate, which was signed by the WCJ.

13A trial on the merits was held on May 29, 2002. On June 5, 2002, the WCJ rendered and signed a judgment stating the following:

Upon consideration of the evidence the Court concludes as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the employee has failed to meet her burden of proof in proving an accident with injury to her right knee occurred during the course of her employment with the employer, allegedly occurring on or about February 16, 2000 thus dismissing this aspect of her claim with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the employee has failed to carry her burden in proving the necessity of ongoing treatment with respect to her February 1, 2000 cervical strain occurring during the course of her employment with Defendant herein, thus dismissing her claim for continued benefits without prejudice.

Claimant appeals this judgment.

LAW AND DISCUSSION

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

In order for a claimant to be entitled to recover workers’ compensation benefits, she must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’s 1 ¿testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Jackson v. Savant Insurance Company, 96-1424, p. 3 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180. See also Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

In workers’ compensation cases, disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident, and the symptoms of the disability appear after the accident and continue to manifest themselves. This presumption is available when sufficient medical evidence is introduced to show a reasonable possibility of a causal connection between the disability and the work-related accident, or that the nature of the accident raises a natural inference that such a causal connection exists. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, 807, writs denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350. Thus, where there is proof of an accident and a following disability, without an intervening cause, it is presumed that the accident caused the disability. Jackson, 694 So.2d at 1180. Moreover, the fact that a claimant does not realize or diagnose the full extent of his injury immediately after an accident should not bar him from recovery. Middleton v. International Maintenance, 95-0238, pp. 6-7 (La.App. 1 Cir. 10/6/95), 671 So.2d 420, 424, writ denied, 95-2682 (La.1/12/96), 667 So.2d 523.

Thus, in determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus upon the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Bruno, 593 So.2d at 361. The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of | Rproof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Id.

In the instant case, in dispute was whether the claimant suffered compensa-ble workers’ compensation injuries to her right knee as a result of a February 16, 2002 incident when she knelt down during training, and also whether the claimant’s cervical strain resulting from the February 1, 2002 incident, when she was attacked by a client, necessitates ongoing treatment. The OWC judge concluded that the claimant failed to satisfy her burden of proof in each instance.

Ms. Penn argues in her brief that she injured her knee while fighting off her client as he attacked her on February 1, 2000 and that she re-injured her knee when she was required to kneel down to perform a CPR test on February 16, 2000. Options denies that Ms. Penn injured her right knee while in the course and scope of her employment. Options does not contest that Ms. Penn injured her neck, but contends that she does not require further treatment.

The record reflects that Ms. Penn worked for Options in several capacities over time, including working as a licensed nursing assistant. According to the testimony of Ms. Penn, she primarily worked with handicapped clients or persons with special needs. In February of 2000, she picked up a fourteen-year-old-male client from school. She was driving him home when he grabbed her by the neck and started choking her from behind. This occurred three times before she could find a place to pull over on the side of the road. When she went to retrieve the keys from the ignition, he pulled her hair. She then used an office phone to contact her supervisor. She also contacted his brother and told him to call the client’s mother. Once the supervisor arrived at the scene, they all proceeded to the Ghent’s home. Once Ms. Penn was there, the client later attacked her again, choking her until she could break lose. Ms. Penn received approved medical treatment for her neck injuries.

According to the medical records of Ms. Penn introduced jointly into evidence, she first received treatment for her injury, as a result of the attack, at North Oaks Health System, with Dr. Mark S. Daunis, on February 8, 2000. Ms. |6Penn complained of soreness and stiffness of her neck, having reported being choked by a patient from behind on her right side. Physical therapy/rehabilitation was prescribed three times a week. Dr. Daunis diagnosed Ms. Penn as having a cervical spine sprain. Muscle relaxers were prescribed. She then returned on February 15, 2000, where she reported pain at the base of the skull and a knot on the right side of her neck. She experienced pain when she moved her head quickly. On March 23, 2000, Ms. Penn’s next visit, she had knots on the right side of her neck but also stated that her neck was doing better. She requested more muscle relaxers. On March 31, 2000, she stated her neck was feeling much better, and the knots were smaller but the neck still “catches” sometimes. At this time, Dr. Daunis ordered Ms. Penn to undergo an MRI due to her cervical strain. Ms. Penn did not return to Dr. Daunis to have the MRI test performed or anytime thereafter. There was no indication in the medical records of her treatment by Dr. Dauntis that Ms. Penn injured her knee during the February 1, 2000 attack.

Ms. Penn later was treated by Dr. Mark J. Hontas. Ms. Penn testified that she sought treatment by Dr. Hontas as a result of her having injured her right knee during training. The medical report suggests that Ms. Penn’s initial visit was on June 19, 2000. The report does not indicate that she was treated at that time because there are no results of any examinations. The date of injury is stated as February 1, 2000 and the described injury was “cervical.” The next visit to Dr. Hon-tas was July 5, 2000. Here, Ms. Penn described the alleged incident of February 16, 2000 where she had to get down on her knees to do the CPR test and could not get up. She described that her right knee swelled afterwards and so did the left knee. In Dr. Honta’s report, he indicated that Ms. Penn stated that she had a history of knee pain but said that she had been able to walk. At that time, both knees were hurting and swelling. She had not been back to work. X-ray results showed that she had some degenerative changes in her knees bilaterally and had some swelling. Dr. Hontas’ impression was that Ms. Penn suffered with inflammation with underlying degenerative joint disease of the knees. He injected both knees and gave her something for pain. He advised |7that she continue taking ibuprofen and indicated he would see her in two to three weeks. Ms. Penn never returned to see Dr. Hon-tas.

Ms. Penn testified that she later went to the emergency room of Lallie Kemp Hospital for her neck and knee. The medical records from Lallie Kemp Hospital indicate that on April 7, 2000, Ms. Penn had with symptoms of arthritis. She had swelling of her hands and mild swelling of her knees. Her next visit was on August 21, 2000, where she suffered with cellulitis and osteoarthritis. On September 7, 2000, she had a yearly exam. Subsequent visits ensued, but none seemed to evidence that she received treatment for the cervical strain or the right knee injury she allegedly suffered as a result of the incident complained of in the instant case.

Options presented the testimony of Andrew Davis, the senior claims representative who handled Ms. Penn’s file. Mr. Davis indicated that he made contact with the employer and the medical providers. He also attempted to make contact with Ms. Penn’s attorney of record and was unable to obtain a statement. He concluded that there was no accident regarding Ms. Penn’s injuring her right knee. He indicated that he did not have any medical records or any history to corroborate her claim that she had injured her right knee. Also, when he did contact the office of Dr. Dauntis, he was informed that Ms. Penn had not continued her treatment regarding her neck, and it was concluded that Ms. Penn had discharged herself.

After a thorough review of the record, we find that the WCJ had a reasonable basis upon which to determine that Ms. Penn failed to satisfy her burden of proving that she suffered a work-related knee injury and that she continued to suffer with cervical strain symptoms in her neck that necessitated ongoing treatment and rendered her disabled. No evidence in the record supports Ms. Penn’s assertion that she injured her right knee during the course and scope of her employment. When Ms. Penn visited Dr. Dauntis due to injury she sustained as a result of the February 1, 2000 attack, she did not appear to ever complain of her knee being injured; she complained only about her neck. It was mentioned four to five months later during a visit to see Dr. Hontas, yet even |son the records of her initial visit, only reference to “cervical” injury was noted. Ms. Penn’s visits to Lallie Kemp some time after the initial incident indicate a number of medical concerns and conditions, none of which allude to the cervical strain Ms. Penn suffered as a result of the February 1, 2000 incident. The medical records provide a reasonable basis for Options’ proposition that Ms. Penn’s complaints regarding her right knee are due to a history of arthritis and an underlying degenerative joint disease, as described by Dr. Hontas, as opposed to a work-related injury. Based upon a complete review of the record, we cannot say that the WCJ was manifestly erroneous or clearly wrong in its finding.

CONCLUSION

For the foregoing reasons, we affirm the decision of the workers’ compensation judge. All costs of this appeal are assessed to the appellant, Edwina Penn.

AFFIRMED.


author: J^FITZSIMMONS, J.

text:
    Mavis Elise Smith JONES v. UNITED RESOURCE GROUP, Joseph Lucio, Floyd Russo and Mary Lee Dixon.
    No. 2002 CA 2186.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Linda S. Melancon, Prairieville, Counsel for PlaintiffiAppellant Mavis Elise Smith Jones.
    Penrose C. St. Amant, Gonzales, Counsel for Defendant/Appellee Floyd Russo.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

On October 6, 2000, plaintiff, Ms. Mavis Elise Smith Jones, filed suit for rescission of a sale of an immovable based on lesion beyond moiety. La. C.C. art. 2589. The named defendants pertinent to this appeal are: United Resource Group, Inc. (URG); Joseph Lucio, individually and as CEO of URG; and Floyd Russo. After a hearing on various pre-trial motions and exceptions concerning Ms. Jones and Mr. Russo, the trial court ruled in favor of Mr. Russo. We affirm in part, reverse in part, and remand.

PROCEDURAL BACKGROUND

In her pleadings, Ms. Jones alleged that URG and Mr. Lucio acted in bad faith in connection with a dation en paiement, or giving in payment, of her property to URG. See La. C.C. art. 2655, et seq. Initially in her petition, she alleged that she did not understand the document was a dation, and believed that she had signed a re-finance of the note. Secondly, she attacked the transfer as lesionary, claiming that the property was worth more than $200,000.00. She further alleged that the property was sold by URG to Mr. Russo “solely to avoid a claim of lesion” by Ms. Jones. Ms. Jones prayed for rescission of the property transfer and injunctive relief, prohibiting sale of the property. Subsequently, she requested the filing of a notice of lis pendens in the parish records. See La. C.C.P. art. 3751, et seq. A temporary restraining order was issued and the notice of lis pendens filed. Later in the proceedings, she filed a motion for a hearing on her request for a preliminary injunction. See La. C.C.P. art. 3601, et. seq.

Mr. Russo filed a rule to dissolve the temporary restraining order, for cancellation of the notice of lis pendens, and for damages. Mr. Russo also filed peremptory exceptions, including objections of no cause of action and of no right of action. In his filings, Mr. Russo’s essential argument rested on Louisiana Civil Code article 2594. Mr. Russo asserted that, regardless of any showing of bad faith, [3the claim for lesion against him, a third party purchaser, was prohibited by law. See La. C.C. art. 2594. Later, Mr. Russo filed a rule for eviction to have Ms. Jones removed from the property in question, as she had agreed in writing.

A hearing was held on February 13, 2002. Among the issues discussed were the Russo rules, Mr. Russo’s peremptory exceptions of no cause of action and of no right of action, and Ms. Jones’ request for a preliminary injunction. At the hearing, Mr. Lucio appeared without counsel. The trial court decided to take evidence and hear argument from Mr. Russo and Ms. Jones, but hold the matter open and allow Mr. Lucio time to retain counsel and present any argument or evidence at a second hearing on February 22. At the end of the hearing, the rule for eviction was continued to the hearing on February 22, 2002.

Counsel for Ms. Jones, Mr. Russo, and Mr. Lucio appeared at the hearing on February 22. Mr. Lucio submitted evidence on the corporate status of URG in its home state, as did Ms. Jones. During the hearing, the trial court also discussed with counsel its prior denial of Ms. Jones’ claim of a settlement agreement, and reminded the parties of its finding that the alleged settlement was not read into the record or reduced to writing and signed by the parties. Near the end of the hearing, the trial court orally granted Mr. Russo’s exception of no cause of action. The trial court believed that Ms. Jones had no claim against the third party purchaser, Mr. Russo, and thus, no claim against the property. For those reasons, the court orally denied injunctive relief and ordered cancellation of the lis pendens.

Finally, the rule for eviction was argued. When counsel for Ms. Jones was Lasked if she wished to respond to the Russo argument, she responded, “No, Your Honor, I would just ask for a reasonable amount of time for her to vacate the premises.”

The trial court signed a judgment on March 5, 2002. The judgment dissolved the temporary restraining order, denied the request for a preliminary injunction, ordered cancellation of the lis pendens, ordered Ms. Jones to vacate the premises, and denied Ms. Jones’ rule for enforcement of a settlement agreement.

RELEVANT FACTS

According to the record, Ms. Jones owned an undetermined interest in approximately two acres that she inherited from her mother. The property was subject to a mortgage executed by Ms. Jones in April of 1998. The mortgage secured a noté in the amount of $48,000.00. Admittedly, no payments on the mortgage were ever made by Ms. Jones. At the February 13th hearing, Ms. Jones also admitted that, contrary to her allegations, she understood the transaction with URG was not a re-finance. She also admitted that she agreed to the dation because the property had been seized by the sheriff and was proceeding to foreclosure. Although Ms. Jones testified that she felt she had no room to negotiate, she admitted that she did negotiate the amount of cash to be paid to her from $5000.00 to $10,000.00, and for free occupancy until she vacated the property in October of 2000. Ms. Jones also admitted that, after the first notice of seizure, she tried .to refinance or sell the property, but had no success other than the offer by URG. On July IS, 2000, she executed the dation en paiement, or giving in payment, of the property to URG, in exchange for forgiveness of the debt of $48,000.00, and any interest, fees, commissions, and penalties, plus $10,000.00 to her. In the dation document, she also agreed to vacate the property by October 13, 2000. At the | ¡^February 13th hearing, both Mr. Russo and Ms. Jones testified that they did not get along and did not want to deal with each other directly.

On the same day the dation was executed in July of 2000, URG sold the property to Mr. Russo for $48,000.00. Evidence from the first hearing showed that Mr. Russo’s money had been used by URG to acquire Ms. Jones’ mortgage and to pay her $10,000.00. On September 20, 2000, Mr. Russo agreed to sell 6.9 acres, including a building, where he ran a business, for $1,000,000.00. The property included the interest in the two acres forpierly owned by Ms. Jones. However, various conditions of sale were not met, and the sale was never completed.

PRELIMINARY INJUNCTION

Ms. Jones assigned error to the denial of her request for preliminary injunction. She asserts that she proved irreparable harm and that she would likely prevail on the merits of the lesion claim.

For the issuance of a preliminary injunction, Ms. Jones had to prove that irreparable loss would otherwise result and make a prima facie showing that she would prevail on the merits of her action for lesion beyond moiety. See La. C.C.P. art. 3601; Malek v. Yekani-Fard, 451 So.2d 669, 673 (La.App. 1 Cir.1984). A “prima facie case” is one in which a showing is made “[sjufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary, West 7th ed.1999, p. 1209. Issuance or denial of a preliminary injunction lies within the trial court’s discretion. Palama v. Livaudais, 179 La. 201, 153 So. 691, 692 (1934); Seafood Restaurant Services, Inc. v. Bonanno, 95-0058, p. 7 (La.App. 1 Cir. 11/9/95), 665 So.2d 56, 61.

After a thorough review of the record, we see no manifest error and find that the denial of the request for preliminary injunction was correct. Ms. Jones, on the brink of foreclosure, admitted her debt and knowingly executed a dation en paiement in exchange for forgiveness of the debt of $48,000.00, plus almost four Lyears of interest, penalties, and fees or commissions, and an additional $10,000.00 paid to her. To prevail on her action for rescission and return of the property based on lesion, Ms. Jones had the burden to prove, by clear and convincing evidence, that the price given was less than one-half of the “fair market value” of the property at the time of the transfer. La. C.C. art. 2589; Webb v. State, Department of Transportation & Development, 470 So.2d 994, 996 (La.App. 1 Cir.), writ denied, 476 So.2d 357 (La.1985). However, without calculation of the interest, penalties, and any included fees, Ms. Jones failed to prove the total transfer price. In addition, under the particular facts here, the trial court could have reasonably found that the price in the contract for the failed sale for 6.9 acres was not sufficiently indicative of the value of Ms. Jones’ as yet undetermined interest in approximately two acres. Thus, the record supports a conclusion that the evidence was not sufficient to establish that the estimated price paid for an uncertain interest in about two acres was less than half of the property’s fair market value at the time of the transfer. All of these facts spawn too much speculation. However, if the facts prove to be more determinative on her suit in chief, her remedy could follow. At this time, based on these findings, we see no abuse in a determination that Ms. Jones failed to prove that she would prevail on the merits of the action for lesion. Thus, we affirm the denial of the preliminary injunction.

LIS PENDENS

Apparently, the trial court can-celled the notice of lis pendens based solely on its belief that Civil Code article 2594 barred an action for rescission and return of the property against Mr. Russo, regardless of any showing of bad faith. Ms. Jones assigned error to that cancellation. Essentially, she argues a bad faith third party purchaser is not shielded from a suit for rescission by article 2594. Asserting that a rescission and return of the property to Ms. Jones would affect the title to the property, she asks that the notice of lis pendens be reinstated.

[7The recordation of a notice of lis pendens alerts third parties to pending litigation affecting title to immovable property and binds them to the outcome of the litigation. See La. C.C.P. arts. 3751-52; Whitney National Bank v. McCrossen, 93-2160, pp. 3-4 (La.App. 4 Cir. 3/29/94), 635 So.2d 401, 403, unit denied, 94-1108 (La.7/1/94), 639 So.2d 1164. As such, the validity of the notice of a potential defect does not rest on the merits of the litigation. Whitney National Bank, 93-2160 at p. 3, 635 So.2d at 403. “When judgment is rendered ... against the party who filed the notice ..., the judgment shall order the cancellation of the notice .... ” La. C.C.P. art. 3753. Thus, in the interest of justice and to protect the stability of titles in the public record, the notice in most cases should remain until judgment or some binding resolution that removes the property from the suit. See Whitney National Bank, 93-2160 at pp. 2-4, 635 So.2d at 403-04.

Initially, we note that Ms. Jones’ failure to prove that she would likely prevail on the merits of the action for rescission based on lesion is not determinative of the validity of the cancellation of the notice of lis pendens. The issue then becomes whether Ms. Jones sufficiently alleged facts that would affect the title to the property.

“The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable.” La. C.C. art. 2589. In other words, the vendor may bring an action against his vendee. An action for return of the property based on lesion cannot be brought against a “third person who bought the immovable from the original buyer.” La. C.C. art. 2594. Thus, resolution of the arguments between Ms. Jones and Mr. Russo rests on whether Mr. Russo is a “third person” under Civil Code article 2594.

“Legislation is a solemn expression of legislative will.” La. C.C. art. 2. In article 2594 of our Civil Code, the legislature adopted a jurisprudential rule. See 8La. C.C. art. 2594, Revision Comments-1993 (a), citing Evergreen Plantation, Inc. v. Zunamon, 319 So.2d 543 (La.App. 2 Cir. 1975). Article 2594’s Revision Comments-1993 (a) notes that although the article is new, “[i]t does not change the law.” Further proof of the legislative intention is found in the comments to Civil Code article 2589. Article 2589’s Revision Comments-1993 (c) also cites Evergreen Plantation, Inc. v. Zunamon, 319 So.2d 543 (La.App. 2 Cir.1975), and states that: “An action in lesion cannot be exercised against a third-party purchaser unless fraud or bad faith is proven.”

Citing Morgan v. O’Bannon & Julien, 125 La. 367, 51 So. 293 (1910) and other cases, the second circuit in Evergreen Plantation, Inc., 319 So.2d at 546, reiterated the jurisprudential “rule that an action in lesion beyond moiety cannot succeed against a third party purchaser unless fraud or bad faith is proved.” (Emphasis added.) After a review of the record, the second circuit found no evidence of bad faith or fraud, and considered the subsequent purchasers of the property to be in good faith. Therefore, the court found that the action based on lesion could not be “successfully pursued against” the subsequent vendees or third party purchasers. Evergreen Plantation, Inc., 319 So.2d at 547.

In Morgan, the supreme court recognized the jurisprudential rule that “lesion does not extend to third persons buying in good faith from the vendee.” Morgan, 51 So. at 294 (emphasis added). After reviewing the facts, the court found that a subsequent vendee’s knowledge that the original sale was for an inadequate price did not equal bad faith. “That knowledge of itself is not sufficient to render an owner, who is an innocent third person, liable to an action of lesion in a purchase of property .Id.

Based on our review of the leading jurisprudence, the purpose of the jurisprudential rule was to implement the provisions of article 2589, while protecting those persons who purchased in good faith from the vendee accused of [9lesion. Under the rule, taking the property from an innocent second vendee, a true “third person” to the lesionary transaction, was barred. However, by removing that protection if bad faith or fraud was proved, the court prevented the original vendee from conspiring with another, a subsequent vendee, to defeat impermissibly the remedy of rescission and return of the property.

From our review of the applicable article, including its comments, and cited jurisprudence, we find that the legislature intended to adopt all facets of the jurisprudential rule. The term “third person” was intended to mean a second vendee who acted in good faith. If fraud or bad faith is proven, the second vendee is not a true “third person” to the lesionary transfer. The protection of article 2594 is not available.

Based on our interpretation of the term “third person” in article 2594, an action for rescission based on lesion may not be brought against the subsequent vendee, unless fraud or bad faith is proved. Here, the subsequent vendee is Mr. Russo. If bad faith or fraud is proven, the court could order the rescission of the dation and the title to the property would be affected. Therefore, the cancellation before judgment was in error. The notice of lis pen-dens is ordered to be reinstated on the public record.

INTERLOCUTORY RULING ON SETTLEMENT AGREEMENT

Lastly, Ms. Jones assigned error to the trial court’s denial of her motion to enforce a settlement agreement, “when that matter was not, and had never been, formally before the court.” However, from our review of this record, we see no reversible error.

On July 16, 2001, Ms. Jones filed a motion to enforce a settlement agreement, or alternatively, a motion for a hearing on the request for preliminary injunction. The show cause hearing was set for August 13, 2001. The record contains no minutes from the hearing or evidence that the hearing was continued or |incancelled. Neither does the record contain any evidence of a written compromise signed by Mr. Russo or of a settlement “recited in open court .... ” La. C.C. art. 3071. In discussions with counsel during the hearing on February 22, 2002, the trial court stated that: “we had a rule on the settlement agreement of whether it was a settlement or not, and it was decided that it was not because it was not done in open court or in writing.” Although Ms. Jones’ counsel was present, she did not object to the discussion or raising of that issue. Her counsel did not deny that a prior ruling was made after a hearing. Subsequently, in the judgment now on appeal, the trial court reiterated that Ms. Jones’ rule to enforce a settlement agreement was previously heard and decided adversely to plaintiff. However, the court noted that no formal judgment had been signed. In the next paragraph of the judgment, the trial court formally denied the rule to enforce.

Based on the evidence and showing made, we see no error based on the court’s inclusion of a prior oral interlocutory ruling in a subsequently signed judgment. Nor does the record before us support a finding that the trial court erred in its prior denial of the motion to enforce.

For these reasons, we affirm the denial of the preliminary injunction and inclusion in the judgment of the prior ruling on the motion to enforce a settlement agreement. We reverse the cancellation of the lis pen-dens. We order that it be reinstated in the parish records. We remand the case to the court below for further proceedings consistent with this opinion. The costs are assessed equally to plaintiff-appellant, Ms. Jones, and defendant-appellee, Mr. Russo.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . At both February hearings, Ms. Jones argued that URG was not in good standing in its state of incorporation at the time of both sales. It is also unclear from the record whether Mr. Lucio was acting for URG or a similarly named corporation, United Resources Group, Inc. However, the trial court did not issue specific rulings on the corporate questions and those issues are not on appeal.

      . Although the minutes and the transcript of the February 22nd hearing show that the trial court granted Mr. Russo’s peremptory exception raising the objection of no cause of action, the record contains no signed judgment to that effect. Thus, from the only judgment before us, it appears that Mr. Russo is still a party to the suit.

      .Evidence submitted at the February 13th hearing raised potential title problems that might affect her share of ownership in the property. These problems predated the sale by Ms. Jones to URG.