author: | JOLLEY, Judge.

text:
    Timolin JOHNSON, Plaintiff-Appellee v. JOHNSON CONTROLS, INC., Defendant-Appellant.
    No. 38,495-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Rehearing Denied June 17, 2004.

      Onebane Law Firm by Frank H. Spru-iell, Jr., Shreveport, for Appellant.
    Caldwell & Caldwell by James D. Caldwell, Tallulah, for Appellee.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   | JOLLEY, Judge.

After claimant Timolin Johnson (“Johnson”) developed symptoms of carpal tunnel syndrome (“CTS”), she requested compensation benefits and medical treatment from her employer, Johnson Controls, Inc. (“Johnson Controls”), but was refused. She filed a disputed claim for compensation, and after a trial, the Office of Workers’ Compensation (“OWC”), Judge Glynn Yoisin, District 1W , awarded her weekly benefits, medical expenses, penalties and attorney fees. Johnson Controls now appeals. Johnson has answered the appeal seeking an increase in the award of attorney fees. For the following reasons, we affirm in part, reverse in part and deny an increase in attorney fees.

Facts

Johnson Controls operates a factory in Shreveport where it assembles truck seats for General Motors. On November 16, 1999, the claimant, who was 34 years old at the time, commenced employment with Johnson Controls, and after a two-week orientation and training period, she began working on the assembly line. In that capacity, Johnson performed various jobs that required the repetitive and strenuous use of her hands over the course of her eight-hour shift. At trial, she testified that after she commenced work for Johnson Controls, she began to have pain in her hands and numbness at night. She said that she had previously worked on an assembly line but had never held employment where she had to do repetitive work like she did at Johnson Controls. She also said that she had never previously been treated for hand or wrist pain and there is no medical | {.evidence in the record to suggest that she had any similar pain prior to working for Johnson Controls. Her husband, Lionel, confirmed that her complaints of pain commenced only after she went to work for Johnson Controls.

Johnson first complained to a Johnson Controls employee, Elaine Mack, of wrist and hand pain on or about February 29, 2000. Johnson’s medical records reflect that she first complained to a doctor, Dr. Wendy McBride Moses, on April 24, 2000, that she had “pain in her hands and numbness at night” and that she “has had these symptoms for the past six months.” Johnson did not deny telling Dr. Moses that she had been having pain for six months but said that she had no complaints of pain prior to working on the assembly line. The doctor’s report indicates that Johnson “works at the plant at General Motors and repeatedly is pulling down air guns for the past year.” Johnson denied saying this to the doctor. The doctor diagnosed her with “musculoskeletal pain of bilateral wrists and left scapula” and prescribed an anti-inflammatory medication.

Over the summer, Johnson continued to work but testified that she was working in pain. Johnson returned to see Dr. Moses on September 27, 2000, with continued complaints of pain in her hands “for the past year.” Johnson denied saying that the pain had been ongoing for a year. At the trial, she consistently attributed her pain as secondary to her work at Johnson Controls. The doctor again diagnosed Johnson with musculoskeletal pain and prescribed a muscle relaxant and another anti-inflammatory medication. On a November 2000 visit, Johnson complained 13of a cyst on one hand, for which Dr. Moses referred her to an orthopedic surgeon, Dr. John Knight.

Dr. Knight examined Johnson on November 16, 2000. His report reflects that Johnson gave him “a six month history of numbness, tingling and pain in both hands.” Dr. Knight performed two types of tests on Johnson to determine if she had CTS. The doctor performed “NPT” or neu-ropsychological tests on her and reported “negative at the median nerve at both wrists” and “negative at the ulnar nerve at both elbows.” He also performed a “Phalen’s” test that also gave negative results. Dr. Knight’s impression of Johnson’s condition was “cumulative trauma disorder both hands secondary to work at Johnson Controls.” Dr. Knight’s records also noted that the cyst on Johnson’s hand was “most likely secondary to this patient’s work.” Dr. Knight ordered electrodiag-nostic testing of Johnson’s wrists and told her to take frequent breaks and rest her hands at work. He also directed that if the symptoms continued, she may need permanent restrictions. Johnson Controls did not receive this report from Dr. Knight and did not know that Johnson had seen him.

On November 29, 2000, Dr. Benjamin Nguyen performed electrodiagnostic tests on Johnson, and his report stated:

Findings are consistent with mild bilateral median sensory neuropathy across the wrist (carpal tunnel syndrome) with no evidence of denervation of the thenar muscle (sic) was seen bilaterally.

Again, there is no indication that Johnson Controls received a copy of this report.

| ¿On December 22, 2000, Johnson went to see Dr. James Dossey, an occupational medicine specialist. Johnson gave Dr. Dossey a history of numbness and tingling in her right hand that had developed over the last month. Dr. Dossey performed two tests on Johnson’s wrists, a Tinel’s test and a Phalen’s test, to determine if she had CTS: Dr. Dossey stated that Johnson only had complaints of numbness with the Phalen’s test and that this numbness did not extend out into the hand or up the arm on the right. Dr. Dossey further explained that this would not be considered a positive test for CTS. He admitted, however, that the tests are not completely specific and sensitive. '■ The doctor reviewed Dr. Nguyen’s electrodiagnostic tests and observed that the findings were on the outer limit of normal. Dr. Dossey said that he would defer to a neurologist in interpreting these tests, but said that he would dispute a diagnosis of CTS made solely on the basis of neurological testing. He attributed her pain to soreness and gave her splints to wear. Johnson saw Dr. Dossey again on January 11, 2001, and Johnson reported some improvement with only occasional shooting pain on the back of her right hand and no further numbness or pain in the arm. The doctor opined that this shooting pain was not a finding associated with CTS. His report from that date reflects:

Arm pain, I doubt there is any carpal tunnel syndrome or other nerve entrapment. In fact, she is having minimal symptoms and normal exam; however, because of her body stature, I think she needs to strengthen her arms in order to tolerate the work that she has chosen.

In his subsequent, January 28, 2001, report, Dr. Dossey stated:

She does not appear to have a work related disease or injury. She simply has arm pain. She feels like it is due to straining in |fisome parts of her job. I still am of the belief that she would benefit from a conditioning exercise program if she chooses to continue with this occupation.

Johnson was off work beginning in early January for 30 days for a reason unrelated to her medical condition. Notably, on subsequent visits with physicians, she made no complaints of hand or wrist pain.

In early May 2001, Johnson saw the physical therapist at work with complaints of pain in her hands. The employer sent Johnson to see Dr. Donald DeLoach, a general surgeon who practiced in the area of emergency medicine. Dr. DeLoach said that during his career he had worked for a year in occupational medicine and had treated “probably not over half a dozen” patients for “true” CTS during that year.

Dr. DeLoach’s report indicated that Johnson had negative Tinel’s tests on both hands but had “a little pain in the right thenar area when the median nerve area is tapped.” The doctor recommended that Johnson take ibuprofen and undergo additional lab work, which Johnson failed to do. The doctor’s report indicated that his diagnosis of Johnson was “bilateral hand and wrist pain of nonspecific origin, not necessarily work related,” and he did not restrict Johnson’s work activities. Johnson Controls relied on his report in handling Johnson’s case.

On May 11, 2001, Johnson saw Dr. Knight again. That day, Dr. Knight gave Johnson a letter addressed “to whom it may concern” stating that Johnson had CTS and that it was his opinion that her condition was work-related. Dr. Knight also gave her a letter excusing her from work from May 11, 2001, until May 14, 2001. The May 11, 2001, report from Dr. | (¡Knight was the first report the employer received from Dr. Knight. Until this time, Johnson had not missed any time from work due to hand or wrist pain. Johnson returned to work on May 14th but was told that there was no work for her, and she was off work the next week. Dr. Knight was not deposed for this case, nor did he testify at trial.

On May 14, 2001, Johnson filed a report of injury, LDOL 1007, stating that the repetitive use of her hands and wrists had resulted in strains. On May 21, 2001, Johnson returned to work under a new schedule giving her frequent 15-minute breaks during which she was supposed to do odd jobs around the plant but refrain from regular work. However, Dr. Knight wanted her to take one 15-minute break each hour with no use of her hands during the break, and on May 29, 2001, he wrote her a note to that effect. Johnson took the note to her supervisor and learned that Johnson Controls had no work for her under those restrictions, so she went home. On May 31, 2001, Dr. Knight wrote Johnson another note excusing her from work “indefinitely” from that day forward, which recommendation Johnson Controls was aware.

Dr. Knight closed his practice on June 30, 2001, and transferred Johnson’s care to another doctor, Dr. Paul Davis. Prior to seeing Dr. Davis, Johnson had a hysterectomy on July 9, 2001. Although she was not working for Johnson Controls during this time, the surgery would have prevented her from working until she was released to full activity on August 24, 2001. Johnson Controls was not aware of this surgery or recuperation period.

|70n July 20, 2001, Johnson saw Dr. Davis for her complaints of hand and wrist pain. His report from that date indicates that Johnson had been wearing splints at night and that she reported her symptoms had improved significantly over the last couple of months. The report diagnosed Johnson with “mild” CTS with resolving symptoms. Dr. Davis wrote in the report that:

I feel that the patient can make an attempt to try to go back to work, but I have cautioned her that she should be careful about trying to take occasional breaks and try to break up the repetitive nature of her work and try to avoid certain motions that I have shown her that may aggravate her CT. I have also instructed her to continue wearing her splints when she is not at work.

However, Johnson did not attempt to return to work; she testified that this was “because I wasn’t released.” She explained that the doctor did not give her any kind of a note releasing her to work, nor did he communicate to her that he had released her to work. At trial, she said that the doctor did not do a Phalen’s test or a Tinel’s test, that she did not tell Dr. Davis that her condition had significantly improved and that the doctor’s statement that she could make an attempt to go back to work was a “lie.”

On August 1, 2001, the Johnson Controls human resources manager, Ms. Karen McDonald, sent Johnson a letter stating that the employer had received Dr. Davis’ July 20, 2001, report releasing her to return to work. The letter informed Johnson that the employer, pursuant to the employee handbook, now considered that Johnson had resigned from her job since she had not appeared at work for three consecutive working days and had goffered no explanation. The company also noted that her benefits had been terminated.

Johnson continued to have pain in her hands and wrists so on August 17, 2001, she saw Dr. Sigurd Sandzen, an orthopedic hand surgeon. The history section of the doctor’s report states that Johnson said that her pain commenced on or about September 11, 2000; Johnson denied that this was accurate. Dr. Sandzen’s examination of Johnson revealed a positive Tinel’s test for CTS, and a Phalen’s test produced “slight hypesthesia and dysesthesia” in some of the fingers on Johnson’s right and left hands. Dr. Sandzen recommended that Johnson return to “whatever job activity she can tolerate” with 10 to 15 minutes off each hour and without repetitive motions, or, if she was unable to return to work with those conditions, to obtain a permanent partial impairment rating. She returned to see Dr. Sandzen on August 28, 2001, with her condition “essentially unchanged”; the doctor gave her a steroid injection in the right wrist and prescribed medication.. On September 7, 2001, Johnson returned to the doctor with “distinct improvement” after the injection; the report from this date says that “surgery is not considered at this time, particularly since she is improving.... ” Johnson did not thereafter return to see Dr. Sandzen, stating she could not afford to return. The trial in this matter commenced. The judgment 19awarded Johnson weekly benefits of $293.33 per week commencing May 10, 2001, with a suspension from July 9, 2001, through August 24, 2001, and further awarded Johnson medical expens'es of $668.00. In addition, the OWC imposed penalties on Johnson Controls in the amount of $2,000.00 for unpaid benefits, $2,000.00 for unpaid medical expenses and $2,000.00 for failure to authorize medical treatment. Finally, the OWC awarded Johnson $10,000.00 in attorney fees. From this judgment, Johnson Controls now appeals, which appeal Johnson answered.

Discussion

Standard of Appeal

Generally, whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the judge. Harris v. Coushatta Indus. Sand, Inc., 31,977 (La.App.2d Cir.06/16/99), 741 So.2d 143. Factual findings in worker’s compensation cases are subject to the manifest error rule. Hoy v. Gilbert, 98-1565 (La.03/02/99), 754 So.2d 207; Harris, supra. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Graham v. Georgia-Pacific Corp., 26,165 (La.App.2d Cir.09/23/94), 643 So.2d 352. The manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely | inupon written reports, records or depositions. Bruno v. Harbert Intern., Inc., 593 So.2d 357 (La.1992); Harris v. Casino Magic, 38,137 (La.App.2d Cir.01/28/04), 865 So.2d 301.

Here, as explained, the OWC judge who presided over the trial was not the same OWC judge who ultimately rendered the final judgment. For that reason Johnson Controls argues that the normal rule of manifest error ought not to be given its usual weight in reviewing the trial judge’s conclusion of fact.

Initially, we note that La. C.C.P. art.1911 provides for every final judgment to be signed by “the judge” except as otherwise provided by law. This article, which applies to workers’ compensation cases as well as ordinary civil actions, means that a judgment is invalid unless it is signed by the judge who heard the trial of the case. Under these circumstances, La. R.S. 13:4209 A applies, which states:

A. In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all of the testimony is in writing. If it is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo.

This statute is considered applicable to judges in workers’ compensation proceedings, as well. See Andrus v. Crowley Laundry & Dry Cleaners, 2003-571 (La.App. 3rd Cir.11/05/03), 858 So.2d 802. On this record, we find no defect in the judgment or the OWC’s jurisdiction in this matter.

| n However, when the trial judge does not see and hear the witnesses, his conclusions of fact cannot carry the usual weight of the general manifest error rule. See Allstate Ins. Co. v. Shemwell, 142 So.2d 866 (La.App. 2nd Cir.1962); Smith v. West Calcasieu-Cameron Hosp., 251 So.2d 810 (La.App. 3rd Cir.1971); Terrell v. American Auto. Ins. Co., 125 So.2d 189 (La.App. 3rd Cir.1960); Boudreaux v. Moreau, 73 So.2d 192 (La.App.Orleans 1954). Aware of these authorities, this court may assign less weight than usual to the OWC’s finding of fact concerning the credibility of those witnesses which testified at the trial of the matter. See, Smith, supra. Thus, technically, Johnson Controls is correct as to that issue. However, we note that in this case, the medical evidence, which was relied upon heavily by the OWC, was not presented as live testimony but through depositions and medical reports. Therefore, the original OWC judge had no greater ability to evaluate the witnesses and evidence than the OWC that ultimately considered it and rendered the final judgment; therefore, the assessment of those witnesses and evidence will be given the normal weight in our review of this matter.

Johnson’s Disability

Johnson Controls also argues on appeal that Johnson does not have CTS, and that the OWC’s findings to that effect supporting its award of benefits were in error. We disagree.

Generally, an injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. |ia23:1031. Specifically, La. R.S. 23:1031.1 governs workers’ compensation claims for occupational disease such as CTS. La. R.S. 23:1031.1 provides, in part:

D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence.

In other words, where an employee worked for an employer for less than twelve months, there is a rebuttable statutory presumption that her employment did not cause her occupational disease. However, that presumption can be overcome if she proves by a preponderance of the evidence that the disease was contracted during her employment, specifically proving that there is a disability which is related to an employment-related disease, the disease was contracted during the course of employment, and the disease is a result of the work performed. Ball v. Wendy’s Intern. Inc., 36,922 (La.App.2d Cir.03/05/03), 839 So.2d 1208, writ denied, 2003-0978 (La.05/30/03), 845 So.2d 1056. In making such a determination, it is proper for the OWC to consider medical reports admitted into evidence or expert testimony in finding that a claimant has an occupational disease. Fite v. Louisiana Title Company, 2002-2607 (La.06/27/03), 852 So.2d 983.

| ^Initially, we note that the trial court erred in failing to apply the presumption stated in La. R.S. 23:1031.1(D) in favor of Johnson Controls. Here, Johnson was diagnosed with CTS exactly a year after her employment with Johnson Controls commenced. However, as the record clearly shows, Johnson’s symptoms manifested well within the initial twelve month period of her employment, which would trigger the statutory presumption in favor of Johnson Controls. See Jackson v. Conagra Poultry Co., 02-492 (La.App. 3rd Cir.03/05/03), 839 So.2d 1079, writ denied 2003-0986 (La.05/30/03), 845 So.2d 1054; Davies, supra. With this presumption in place, it was incumbent on Johnson to prove by a preponderance of the evidence that her CTS was contracted during her employment. Despite its failure to apply the statutory presumption in favor of the employer, the OWC still concluded that Johnson had CTS and that it was caused by her employment at Johnson Controls. Even though it erred in failing to consider the presumption in favor of Johnson Controls, we cannot say that the OWC’s final determination on this particular issue was in error.

First, based on the medical evidence, we find no manifest error in the OWC’s conclusion that Johnson suffers from CTS, as most of the physicians who examined her characterized her condition as CTS. Both Dr. Knight and Dr. Nguyen found symptoms of carpal tunnel in their various examinations of Johnson. Dr. Nguyen characterized Johnson’s condition as mild based upon objective electrodiag-nostic testing. Dr. Knight did not opine about the severity of the condition, although his diagnosis ultimately | uled him to restrict Johnson from working indefinitely. Dr. Davis also described Johnson’s condition as mild carpal tunnel with resolving symptoms, and Dr. Sandzen found some evidence of CTS as well.

Although Drs. Dossey and De-Loach opined that Johnson’s condition was not CTS, the factfinder’s findings in favor of Johnson on this issue are reasonable in light of the record reviewed in its entirety; moreover, as discussed, such a credibility determination is within the factfinder’s realm. The factfinder is not precluded from making determinations regarding the credibility of witnesses and respect should be given to those conclusions. Mosley v. Pennzoil Quaker State, 37,199 (La.App.2d Cir.07/23/03), 850 So.2d 1100, writ denied, 2003-2412 (La.11/21/03), 860 So.2d 553. Here, in its written reasons for judgment, the OWC judge gave detailed reasons for discounting the medical opinions of Drs. Dossey and DeLoach. Such a determination was within the OWC judge’s reasonable discretion and was not in error.

Next, we find no error in the OWC’s conclusion that Johnson carried her burden of proving that her employment caused her condition. Notably, although Johnson’s symptoms did manifest early in her employment, she was not disabled and taken off work until approximately 19 months later. Johnson testified that she suffered no similar pains prior to commencing work on the assembly line and that she had never been treated for similar pain prior to employment with Johnson Controls. Her husband corroborated this testimony. Significantly, Johnson was only 34 years old when she began work at Johnson Controls, but most significantly, there was no 11Bmedical evidence to show that Johnson had complaints of similar pain prior to her employment at Johnson Controls. In fact, Dr. Dossey stated that he could not say that Johnson’s condition pre-dated her employment with Johnson Controls. The employer argues that the histories given by Johnson to Dr. Moses and Dr. Knight show that her condition predates her work on the assembly line. Although the histories are somewhat inconsistent, such is not sufficient to conclude that the OWC was manifestly erroneous in finding a causal link between assembly line work and injury. A worker is not required to relate her history to a doctor with mathematical precision and the imprecise histories given are insufficient to show manifest error when the overall ten- or of Johnson’s complaints of pain as portrayed in her medical records related the onset of symptoms to her work. Because there is no medical evidence showing complaints of similar pain prior to Johnson’s work for Johnson Controls (whereas, on the other hand, there existed medical evidence connecting her condition to her employment with Johnson Controls), we will not disturb the OWC’s findings. On the record as a whole, we find no error in the award of indemnity benefits to Johnson.

Medical Bills

Additionally, Johnson Controls argues that it should not be responsible for Johnson’s unpaid medical bills of $668.00 because it never received written notice of these bills. Johnson counters that no requirement exists for written demand and also that her employer knew Johnson had seen these doctors and had access, by law, to her records and bills. The |1firecord reveals no evidence that the claimant gave the employer written notice of the bills; even the claimant’s disputed claim for compensation only stated “no medical treatment has been authorized.” La. R.S. 23:1201(E) provides that, “Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” However, this section is part of a penalty statute, and the 60-day provision is a trigger for penalties, not to the employer’s ultimate liability for medical expenses. Therefore, we find no error in the OWC’s award for the amount of the unpaid medical bills as part of its judgment, even without written demand for payment.

Penalties and Attorney Fees

Finally, Johnson Controls maintains that the OWC erred in assessing it with penalties and attorney fees, and we agree. The determination of whether an employer should be cast with penalties and attorney fees is a question of fact for the OWC judge, whose findings shall not be disturbed on appeal absent manifest error. Taylor v. Garrett, 28,729 (La.App.2d Cir.10/30/96), 682 So.2d 831. In this instance, such an error occurred.

In the case sub judice, Johnson alleges that her employer failed to pay benefits, which would be governed by La. R.S. 23:1201(F). Pursuant to that statute, an employee has the burden of proving his entitlement to statutory penalties for the employer’s failure to timely pay workers’ compensation benefits. Bolton v. Mike Fleming Constr., 36,521 (La.App.2d Cir.12/11/02), 833 So.2d 1177. To reasonably controvert a workers compensation claim so as to avoid imposition of penalties and attorney fees, |17the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id. To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General Motors Corp., 36,339 (La.App.2d Cir.09/18/02), 828 So.2d 150. The court must determine whether the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Feild, supra. Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Bolton, supra.

Here, Johnson Controls had the opinion of at least two physicians, Drs. Dossey and DeLoach, who found no evidence of CTS after examining Johnson. Further, the employer had no detailed reports from either Dr. Knight or Dr. Nguyen and was clearly not frivolous in relying only on those reports it had, particularly in the face of incomplete or no information from Johnson’s other physicians. There is no showing that the employer dealt with Johnson in less than good faith, so the OWC was manifestly erroneous in awarding penalties and attorney fees. Moreover, for that reason, Johnson’s demand on appeal for additional attorney fees is denied.

| ^Conclusion

The judgment of the Office of Workers Compensation is affirmed in its award of indemnity benefits and medical expenses but is reversed with respect to the three $2,000.00 penalties and the $10,000.00 attorney fee award. Costs of this appeal are assessed equally to Timolin Johnson and Johnson Controls, Inc.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

      . SeeLa. R.S. 23:1310.5(F).

      . This matter was tried before Judge Rosa Whitlock. The OWC took the matter under advisement, but Judge Whitlock left the OWC prior to rendering a judgment. Written reasons for judgment included in this record reveal the following procedure for assignment of this case to a new judge:

        Trial on‘the merits was held on November 1, 2002, before Judge Rosa C. Whitlock. On April 10, 2003, Chief Judge Sheral Rel-iar sent the file to Judge Pamela-Moses Laramore to render judgment. Later, on June 18, 2003, Judge Sheral Kellar sent the file to Judge Glynn F. Voisin to render judgment. On June 18, 2003, Judge Voisin held a telephone status conference with all parties to confirm all parties agreed to allow Judge Voisin to render judgment. All parties agreed, and Judge Voisin allowed the parties (5) five days to submit post-trial briefs. Judge Voisin rendered judgment on July 23, 2003.

      . Notably, in this case the OWC judge gave extremely thorough and thoughtful written reasons for judgment.

      . Acts 2001, No. 1189, § 1, at the end of subsec. D, substituted "a preponderance” for "an overwhelming preponderance”; the amendment applies retroactively. Davies v. Johnson Controls, Inc., 36,498 (La.App.2d Cir. 10/23/02), 830 So.2d 462, writ denied, 2002-2855 (La.01/31/03), 836 So.2d 70.

      . $166.00 to the Louisiana Hand and Upper Extremity Institute (Dr. Knight); $90.00 to Dr. Davis and $412.00 to Mid-South Ortho-paedics (Dr. Sandzen).


source: Caselaw Access Project

author: bDREW, J.

license: Public Domain

text:
    Amber C. RAWLS and Steven R. Rawls, Plaintiffs-Appellees, v. CITY OF BASTROP, Louisiana, Defendant-Appellant.
    No. 38,449-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Rehearing Denied June 17, 2004.

      Dawn Hendrix Mims, for Appellant.
    Rankin, Yeldell & Katz by: Stephen J. Katz, for Appellees.
    Before STEWART, GASKINS and DREW, JJ.
   bDREW, J.

In this property damage case, the plaintiffs, Amber and Steven Rawls, filed suit against the City of Bastrop, alleging their vehicle was damaged by paint overspray from the negligent painting of a municipal building. The trial court found the City liable and awarded damages, penalties, and attorney fees. On appeal, the City argues that the trial court erred by awarding inappropriate damages, and in awarding penalties and attorney fees. For the following reasons, we affirm the damage award, but reverse the award of penalties and attorney fees.

FACTS

In April 2002, the plaintiffs’ black Mitsubishi Montero accidentally received specks of white paint overspray while parked in a City of Bastrop parking lot. The over-spray came from a City employee who was painting a building. As a result,- Mrs. Rawls testified that the City requested the Montero be taken to Detail Masters to try to remove the overspray, but that Detail Masters “just couldn’t get most of it off.” Subsequently, the plaintiffs obtained four estimates for repainting their vehicle, one from Hopkins Chevrolet, one from Ruston Ford, one from Casey Marus Body Shop, and one from Ryan Chevrolet. The City then asked the plaintiffs to take the vehicle back to Ryan Chevrolet, where James Spires, the assistant body shop manager for Ryan Chevrolet, applied lacquer thinner to a spot on the right fender of the vehicle in an attempt to remove the white paint. At trial, Spires testified that the vehicle had two coats of paint — a base coat and a clear coat. Spires testified that the overspray did not penetrate the clear coat. When asked if applying the lacquer thinner to the fender and then ^polishing it removed the overspray, he stated: “As far as I know it did. I mean I think it did.” However, Mrs. Rawls testified that the white paint was still on the vehicle. Furthermore, the parties stipulated at trial that if Mr. Rawls was called, his testimony on the facts would essentially be the same as Mrs. Rawls’ testimony. The parties also stipulated that the City and its self-insured fund made no tender of any amount of money to the Rawlses subsequent to the accident.

The testimony of Casey Marus, the owner and operator of Casey Marus Body Shop, also conflicted with that of Mr. Spires. Mr. Marus testified that he attempted to remove the white specks of paint from the Montero using both a fast-evaporating lacquer thinner, as well as a wax and grease remover that evaporated more slowly. However, these chemicals did not remove the spots. He then tried a “heavy duty compound” that removed a few specks, but Mr. Marus concluded that it would take a lot of machine compounding to remove more than a few specks, and, even then, the compounding might not remove all of the overspray. Additionally, he stated that heavy machine compounding would cut down on the clear coat on the vehicle which would leave it without a lot of ultraviolet protection. Mr. Marus had made an initial estimate of $2,895.50 for repainting the vehicle, and at trial he testified that although the cost of materials had subsequently increased, the additional cost at the time of trial would not be over $100 to $150 more. The time for repairs would be five to six working days if nothing went wrong during the process.

|3On cross-examination, Mr. Marus was asked if he checked the Montero to see if the white paint had penetrated the clear coat to the black paint. Mr. Marus indicated that it had been “some time ago” that he had looked at the vehicle, and that he could not remember.

In addition to Mrs. Rawls, Mr. Marus, and Mr. Spires, the only other witness to testify was Bob Chandler, who was retained by Risk Management, Inc., to investigate and assist in the adjusting of the plaintiffs’ vehicle on behalf of the City. Essentially, Mr. Chandler testified that he sent the plaintiffs to Ryan Chevrolet to see if the vehicle could be cleaned, and that after they took the vehicle to Ryan Chevrolet, Mrs. Rawls called him and told him that they wanted to have the vehicle painted. Chandler indicated that Ryan Chevrolet would charge a little over $600 to clean the vehicle, and it was his position that the cleaning would take care of the problem. When asked why he did not tender that amount to the plaintiffs, he indicated that Mrs. Rawls had made it clear that she would not accept it. Chandler also indicated that he made no unconditional tender to Mrs. Rawls in any amount.

After hearing the testimony of the witnesses, as well as receiving documentary evidence including photographs of the ve-hide and various estimates, the trial court stated that it was clear the City was liable for the damage done to the vehicle. The court stated that it found the testimony of Mr. Marus to be most credible. The court also indicated that it did not find Mr. Spires’ testimony concerning removal of the spots to be credible. Accordingly, the court awarded damages in the amount of Mr. Marus’ ^estimate of $2,895.53, plus an additional $150 to cover the increased costs of materials. The court also awarded $500 for the plaintiffs’ inconvenience, which the court indicated would likely include the future inconvenience of being without their vehicle for several days during repainting. Finally, the court awarded penalties in the amount of $500 and attorney fees in the amount of $1,000. In this regard, the court stated that it saw no reason to make a distinction between the City, which is self-insured, and any other company. The court stated:

The obligation still arises to adjust these things fairly and in a timely manner and it’s clear [the Rawlses] repeatedly gave a number of estimates and tried to work this thing out to no resolution.

Finally, the court awarded Mr. Marus an expert witness fee in the amount of $52.50.

DISCUSSION

The City’s first issue on appeal concerns whether the damages awarded by the trial court are appropriate. It is correctly noted by the City that the primary objective in a case involving property damage is to restore the property, as nearly as possible, to its state immediately preceding the damage. The City argues that the overspray could have been repaired by cleaning and waxing the Montero, as offered by the City.

An appellate court cannot disturb the factual findings of the trial court in the absence of manifest error; when testimony on an issue conflicts, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Hope v. City of Shreveport, 37,759 (La.App.2d Cir.12/17/03), 862 So.2d 1139. In this matter, there is no manifest error in the trial court’s factual findings, and the |Btrial court’s evaluations of credibility will not be disturbed.

The City’s second issue on appeal is whether the trial court erroneously awarded penalties and attorney fees. On this issue, the City argues that it is a member of the Louisiana Municipal Association Risk Management Agency (“LMARMA”) and part of a self-insurance fund. The City further argues that there is a distinct difference between a regular insurance company and the LMARMA. In support of this argument, the City cites the provisions of La. R.S. 33:1345, which state in pertinent part that an interlocal risk management agency is not an insurance company or an insurer under the laws of Louisiana, and that the development and administration by such agency of one or more group self-insurance funds shall not constitute doing insurance business.

In opposition to this argument, the plaintiffs assert that the record in this matter does not reflect that the City is anything other than a self-insured entity. They also argue that the trial court did not indicate that the City was an insurance company, but that the court simply likened the City to any other self-insured company, and that because of the untimely manner in which the City satisfied its liability in this case, the court concluded it was appropriate to sanction the City as though it were an insurance company. In this regard, the plaintiffs argue that the duties of good faith and fair dealing incumbent upon insurers pursuant to the provisions of La. R.S. 22:658 and 22:1220 should also apply to self-insurers. In support of this position, the plaintiffs cite the dissenting opinion in Hebard v. Dillon, 97-0221 (La.App. 4th Cir.9/3/97), 699 So.2d 497. The author of the dissenting opinion found no valid legal, social, or economic reasons for applying one rule to an insurer and a different rule to a self-insurer dealing with a claimant. The dissenting judge stated that the damage and penalty provisions imposed by La. R.S. 22:1220 are intended to serve as an economic deterrent for the purpose of modifying behavior in adjusting tort claims. The purpose was to provide a legal and economic incentive to all insurers and self-insurers against unfair settlement practices when dealing with claimants. Additionally, the dissenting judge saw potential violations of the constitutional concepts of equal protection and fundamental fairness in having separate penalty rules for insurers and self-insurers dealing with claimants. Thus, he interpreted the statutory provisions to mean that the legislature intended to include all types of risk bearers, including self-insurers, under the provisions of La. R.S. 22:1220.

At the outset, we note that the plaintiffs are correct in stating that the record before us does not indicate that the City is a member of LMARMA, but simply that the City is self-insured. Nevertheless, after reviewing the statutory provisions at issue, we agree with the majority opinion in He-bard, supra, and not with the dissenting opinion.

The provisions of La. R.S. 22:1220 state in pertinent part:

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
Jl* * *
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

The above-quoted provisions are found in Part 26 of Chapter 1 of the Louisiana Insurance Code. Part 26, entitled “Unfair Trade Practices,” is designed to regulate the trade practices in the business of insurance, in accordance with federal law, by defining or providing for the determination of all acts, methods, and practices which constitute unfair methods of competition and unfair or deceptive acts and practices in this state, and to prohibit the same. La. R.S. 22:1211. Part 26 defines “insurer” to mean:

... any person, reciprocal exchange, interinsurer, Lloyds insurer, fraternal benefit society, industrial and burial insurer, or any insurer that markets under the Home Service Marketing distribution method and issues a majority of its policies on a weekly or monthly basis, or any other legal entity engaged in the business of insurance, including insurance agents, insurance brokers, surplus lines brokers, and insurance solicitors. Insurer shall also mean medical service plans, hospital service plans, health maintenance organizations, and prepaid limited health care service plans. For purposes of this Part, these foregoing entities shall be deemed to be engaged in the business of insurance.

La. R.S. 22:1212(C).

As we held in Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App.2d Cir.9/22/99), 742 So.2d 746, statutes requiring timely payment of claims and imposing a duty of good faith and fair dealing are penal in nature and, therefore, must be strictly construed. Even without the definition of 1 ¿‘insurer” quoted above, a strict interpretation of the word “insurer” would not include the City in the instant case. The City did not insure the plaintiffs, and does not insure any tort claimant on a claim against the City. Furthermore, the above-quoted definition of “insurer” plainly shows that the legislature intended to include only those entities engaged in the business of insurance; the City is not in the insurance business. Accordingly, the City is not an “insurer” for purposes of La. R.S. 22:1220.

Because the penal provisions of this statute must be strictly construed, they cannot be applied by analogy to the City when the City does not fall within the plain reading of the words of the statute. Thibodeaux v. Stapp Towing Co., 96-1514 (La.App. 3d Cir.8/27/97), 702 So.2d 693. Moreover, because the City is not an insurer, we also find inapplicable the penalty and attorney fee provisions of La. R.S. 22:658. Finally, we note that the question of whether or not self-insured governmental entities should be subject to penalties with respect to settling claims is a question that addresses itself to the legislature, not the judiciary.

CONCLUSION

For the reasons set forth above, that portion of the trial court’s judgment assessing damages is hereby affirmed, but that portion of the trial court’s judgment assessing penalties and attorney fees is hereby reversed. Each party is to bear its own costs.

DECREE

The judgment is AFFIRMED in part and REVERSED in part.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.


author: | t STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Joel Lee JUNE, Appellant.
    No. 38,440-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Louisiana Appellate Project by Pamela S. Moran, Indigent Defender Office by Alan J. Golden, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   | t STEWART, J.

The state charged the defendant, Joel Lee June (“June”), with two counts of aggravated rape, a violation of La. R.S. 14:42 punishable by imprisonment for life without benefits, but agreed to accept his guilty pleas to the attempts thereof. The court sentenced June to serve 24 years at hard labor, without benefits, on each count and ordered the sentences to be served concurrently. Following the denial of his timely motion for reconsideration, defendant argues the sentences are excessive. For the following reasons, we affirm.

FACTS

The record shows that at some time between June 1999 and April 2000, June, then age 42, engaged in vaginal and anal intercourse with two female children, who at all times pertinent were under the age of 12. The defendant perpetrated these acts while the victims were staying at his home with his daughter. He made a partial confession in which he admitted attempting anal and vaginal intercourse with both victims. However, the victim, E.W., said that the defendant penetrated her anus; the victim, T.W., said the defendant penetrated her anus and vagina.

The defendant pled guilty to two counts of attempted aggravated rape and was sentenced to two sentences of 24 years at hard labor with benefits. Following the imposition of the concurrent sentences, this appeal ensued.

DISCUSSION

Excessive Sentence

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show Lthat the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). Here, although the trial court’s articulation of its reasons for the sentences is minimal, the record shows an adequate factual basis for the sentences imposed.

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

| oPrior to imposing concurrent sentences, the court considered a sentencing memo which had been submitted by the defense, the facts of the case, the defendant’s age, and his lack of prior criminal history. The sentencing memo noted the reduction in the charges pursuant to the plea bargain, and emphasized the defense contention that the attempted acts were not completed. However, in light of the victims’ statements, it appears defendant committed the offenses originally charged. Thus, he obtained a great benefit from his plea bargain.

On this record, we do not find constitutional error. June sexually abused two very young children and received a substantial benefit from the reduction of the charges through his plea bargain. The sentence imposed on each count is less than half of the maximum which could have been imposed. The court granted lenience by directing the sentences to be served concurrently, even though two victims were involved. The sentences imposed are lawful. Considering the defendant’s record and the totality of the circumstances of this case, we find the sentences imposed are neither grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of these sentences. They are not constitutionally excessive.

CONCLUSION

Based on the foregoing, the convictions and sentences are affirmed.

AFFIRMED.


author: | RASKINS, J.

text:
    RISK MANAGEMENT SERVICES, Plaintiff-Appellant v. Brandon ASHLEY, Defendant-Appellee. Brandon Ashley, Plaintiff-Appellee v. Ashley’s Floor Service and Risk Management Services, Defendants-Appellants.
    Nos. 38,431-CA, 38,432-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2004.

      Crawford & Anzelmo, by Donald Anzel-mo, Monroe, for Appellants, Risk Management Services and Ashley’s Floor Service.
    Fischer & McMahon by Mark K. Man-no, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   | RASKINS, J.

In these consolidated worker’s compensation cases, the employer and its insurer appeal an adverse judgment awarding benefits to a claimant asserting a knee injury. Additionally, they complain of the ruling of the worker’s compensation judge (WCJ) that the claimant did not forfeit his compensation rights by committing fraud. We affirm in part, reverse in part, and remand.

FACTS

Brandon Ashley, the claimant, was self-employed, installing floors for Ashley’s Floor Service. On July 6, 2001, he allegedly tripped over his tool box and injured his left knee while unloading scraps out of his truck into a dumpster. He received treatment for this injury for several months and had arthroscopic surgery.

Risk Management Services, the self-insurer for Ashley’s Floor Service, paid $9,533.72 in compensation benefits and $12,673.71 in medical expenses to/or on behalf of the claimant through the end of 2001. However, in November 2001, the insurer had a videographer follow the claimant for several days and record his activities; he was seen at several of his uncle’s work sites. Thereafter, the claimant reported in an employee’s monthly report of earnings that he had not worked for any employer and that he had received no earnings during November 2001. In December 2001, the insurer terminated the claimant’s benefits, asserting that he had made false statements and was committing fraud.

ROn April 17, 2002, Risk Management Services filed a disputed claim for compensation with the Office of Worker’s Compensation (OWC). It asserted that the claimant had forfeited the right to benefits by making false statements and representations in furtherance of a compensation claim, under La. R.S. 23:1208. (This claim is the basis of No. 38,431-WCA.) The claimant submitted an answer on June 10, 2002.

On June 20, 2002, the claimant filed a disputed claim with OWC, asserting his injury. (This claim is the basis for No. 38,432-WCA.) Named as defendants were Ashley’s Floor Service and Risk Management Services.

In November 2002, the two claims were consolidated. Counsel for the claimant withdrew, and the claimant proceeded in proper person.

Trial was held on August 15, 2003. The insurer presented the testimony of Clifford Lee Cutchall, Jr., the claimant’s uncle. An installer of ceramic tiles and hardwood floors, he testified that he had worked with the claimant on several occasions. The insurer had videotaped the claimant at some of these work sites on November 21, 28, and 29, 2001. (The parties stipulated that the surveillance videotapes were accurate.) According to his uncle, after he was hurt, the claimant would come to job sites and do minor tasks, like cutting boards, without compensation. The uncle testified that the claimant could not get down on the floor to do the installation work and sometimes walked with a limp. Then, in December 2001, the uncle began paying the claimant for his assistance because he was able to do some installation work. On December 7, 2001, he paid his nephew $130 and on December 14, 2001, he paid him $150.

RThe claimant testified. He reviewed his earning reports to the insurer that showed no earnings from the beginning of August 2001 to the end of November 2001. He also testified that he returned a check for $1,600 to the insurer because its representative told him they were denying his claim. He stated that he was still wearing his knee brace. He was shown a videotape in which he was seen first at his uncle’s job site without crutches and a knee brace but then using both later that same day going to a doctor’s appointment. When he returned to the job site later that day, he was still wearing the knee brace but he did not use the crutches.

At the conclusion of trial, the WCJ ruled in the claimant’s favor. He found that the activities that the claimant was shown performing on the tapes were minor, like a “gofer.” He also found credible the witnesses’ testimony that (1) the claimant was not performing the actual flooring work and (2) he was just “hanging out” with his friends because he was bored. Consequently, the WCJ found that the claimant did not make any false statements with the intent of obtaining worker’s compensation benefits. He ruled that cessation of supplemental earnings benefits (SEBs) was improper. Accordingly, the claimant was owed the check for $1,600 that he previously returned. The WCJ stated that the claimant was still entitled to benefits and medical benefits but expressed uncertainty as to whether he needed to file another claim. The insurer protested that the claimant had not presented any evidence of his continuing entitlement to these benefits.

Judgment was signed on August 20, 2003. As to the insurer’s claims against the claimant alleging forfeiture due to fraud, the WCJ ruled in favor Rof the claimant. As to the claimant’s request for continuing benefits, the WCJ ruled in favor of the claimant. It ordered reissuance to the claimant of the $1,600 compensation check, plus continuing SEBs and medical treatment.

The employer and its insurer appeal.

FORFEITURE OF BENEFITS

The appellants claim that the WCJ committed manifest error in finding that the claimant did not commit fraud. They argue that the testimony of the claimant and his uncle was inconsistent and unbelievable and that the WCJ’s credibility call in their favor was tainted by his alleged failure to read contradictory testimony in their depositions.

The claimant, represented by counsel on appeal, asserts that much of the conflict in the depositions and the trial testimony related to the witnesses’ definition of “work,” as opposed to that of appellants’ counsel. Both witnesses maintained that the claimant’s activities were small tasks like cutting boards and throwing away trash and did not involve actual floor installation. The claimant characterized his actions as “piddling.”

Forfeiture of benefits for misrepresentation is governed by La. R.S. 23:1208, which provides in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
|RE. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7; Gilcrease v. Wal-Mart Stores, Inc., 36,523 (La.App.2d Cir.12/11/02), 843 So.2d 415. All three requirements must be present before a penalty will be imposed. Louisiana Workers’ Compensation Corporation v. Gray, 35,198 (La.App.2d Cir.10/31/01), 799 So.2d 820; Gilcrease, supra.

Whether a worker’s compensation claimant has forfeited his right to benefits by making a false statement for the purpose of obtaining benefits is a question of fact that will not be disturbed on appeal absent manifest error. Bossier Electric v. Cubley, 35,852 (La.App.2d Cir.6/14/02), 821 So.2d 685. Because forfeiture is a harsh remedy, “statutory forfeiture must be strictly construed.” Wise v. J.E. Merit Constructors, Inc., 1997-0684 (La.1/21/98), 707 So.2d 1214; Gilcrease, supra.

Although the appellants allege that the claimant was able to work, none of the evidence demonstrated that he was able to crawl, a necessary ability in laying floors. Our review of the videotapes reveals that, at some points, the claimant appeared to be limping; however, at other times, he walked without any apparent problems. As shown on the videotapes, his activities seemed to consist of cutting boards and carrying equipment and |fitrash to and from trucks. The evidence supports the WCJ’s finding that the claimant’s efforts were minor and amounted only to being a “gofer” and “hanging out” with his friends. Also, the evidence does not show that the claimant received any compensation from his uncle for his assistance before December 2001. See Mitchell v. Brown Builders, Inc., 35,022 (La.App.2d Cir.8/22/01), 793 So.2d 508, writ denied, 2001-2649 (La.12/14/01), 804 So.2d 636. There, we affirmed the trial court’s refusal to order forfeiture when the claimant denied engaging in any employment or self-employment since his accident although he occasionally worked without pay at his mother’s snow cone stand.

The appellants assert that the trial testimony of the claimant and his uncle are in diametric contradiction to their deposition testimony as to whether the claimant “worked” for his uncle in November 2001. However, review of the record indicates genuine confusion on the witnesses’ part as to what was being included in the definition of “work.” We find no basis for rejecting the trial court’s credibility call as clearly wrong.

Based upon our review of the record, we cannot say that the WCJ was clearly wrong in finding that the claimant did not violate the statute and that forfeiture was therefore not warranted. This assignment of error lacks merit.

SUPPLEMENTAL EARNINGS BENEFITS AND MEDICAL TREATMENT

As to the award of SEBs and medical treatment to the claimant in the judgment, the appellants assert that the WCJ erred in not allowing them to defend against the claimant’s claims for these benefits. The claimant points out the vagueness of the WCJ’s oral ruling in which he indicated that the [7only benefits owed were the ones represented by the check the claimant returned and that the claimant might need to file another form for additional benefits. The WCJ directed counsel for the employer and its insurer to prepare a judgment; this judgment, which the WCJ signed, gave the claimant “continuing supplemental earnings benefits and medical treatment.” The claimant concedes that remand to the lower court may be necessary to clarify the amount of SEBs awarded, but not his entitlement to SEBs.

Appeal lies from the judgment itself, not the reasons for judgment. Louisiana Workers’ Compensation Corporation v. Gray, 34,731 (La.App.2d Cir.5/9/01), 786 So.2d 310.

Findings regarding whether a worker’s compensation claimant is entitled to SEBs are factual in nature. Therefore, the manifest error/clearly wrong standard applies on appeal. Under this standard, the reviewing court may reverse only if it finds that no reasonable factual bases exist for those findings which are clearly wrong or manifestly erroneous. Payne v. Lawn Lourd Lawn Service, 35,491 (La.App.2d Cir.12/5/01), 803 So.2d 321.

The record reveals a complete lack of evidence on the issue of the claimant’s entitlement to SEBs and medical benefits. Since there is no reasonable factual basis for an award of continuing SEBs and medical benefits to the claimant and the appellants were not given an opportunity to oppose them, the portion of the judgment awarding them must be reversed. | sThis includes the claimant’s entitlement to the $1,600 check. Therefore, we remand for further proceedings on these issues.

CONCLUSION

As to No. 38,431-WCA, the portion of the judgment dismissing the claim of forfeiture of benefits under La. R.S. 23:1208 is affirmed. As to No. 38,432-WCA, we reverse the portion of the judgment continuing supplemental earning benefits and medical treatment and ordering reissuance of the $1,600 check; that matter is remanded for further proceedings on these issues.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . According to the records admitted .into evidence, the claimant received temporary total disability (TTD) payments covering the period from July 10, 2001 until December 6, 2001. At that time, the records indicate a conversion from TTD payments to supplemental earnings benefits (SEB) payments.

      . The record is unclear as to exactly what payments were included in this check. On remand, this matter should be litigated fully.


author: hPEATROSS, J.,

text:
    In re MEDICAL MALPRACTICE OF Francis KIRKINDOLL, Plaintiffs-Applicants.
    No. 39,007-CW.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 2004.
    Jeffrey L. Little, Shreveport, for Applicants.
    Watson, Blanche, Wilson & Posner by Peter T. Dazzio, Baton Rouge, Kristie H. Haydel, for Respondents.
    Before GASKINS, PEATROSS & MOORE, JJ.
   Lin the medical malpractice complaint of Francis Kirkindoll, applicant seeks review of a denial of its motion to rescind an ex parte order allowing a six-month extension of a medical review panel. The essential facts are undisputed.

An attorney panel chairman for the medical review panel was appointed in December 2002. Defendants Willis-Knighton Medical Center and Dr. Farquhar filed a motion to extend the life of the medical review panel on December 15, 2003, shortly before the 12-month statutory deadline would dissolve the panel. Included in the motion was a request that an order to show cause be issued to Kirkindoll as to why the motion should not be granted. Instead of signing an order to show cause, the trial court instead granted an ex parte order extending the medical review panel for an additional six months.

The applicant filed a motion to rescind the ex parte order, which was denied in a judgment rendered March 8, 2004. The applicant filed notice of intention to apply for supervisory writ on April 7, 2004, and now seeks supervisory writ of that denial. In response to the writ application, defendants filed a motion to dismiss alleging that the writ application was untimely.

| y.The applicant alleges the correct interpretation of the statute governing medical review panels is that an extension cannot be granted ex parte, arguing a contradictory hearing is required for good cause to be shown. The applicant further contends the extension was granted without showing of good cause. Thus, the applicant argues the trial court erred in granting the extension.

A medical review panel is required for this medical malpractice complaint, and that panel has 12 months before dissolution to render an opinion. La. R.S. 40:1299.47. However, “either party may petition a court of competent jurisdiction for an order extending the twelve month period provided in this Subsection for good cause shown.” Id. at B(l)(b).

The judge had the authority to issue a six-month extension of the medical review panel for good cause. La. C.C.P. arts. 194-195 list actions in which a judge may sign orders and judgments in chambers. It does not specifically reference the extension of a medical review panel as one of those actions. However, La. C.C.P. art. 194(7) provides that, in addition to those previously listed, “any other order or judgment not specifically required by law to be signed in open court” may be signed by the district judge in chambers. The language of R.S. 40:1299.47 does not explicitly state that an order for extension must be signed in open court. The trial court correctly interpreted this language as to allow an ex parte order for extension.

This court has previously ruled that a contradictory hearing is not “demanded in every situation requiring ‘good cause.’ ” Grantham v. Dawson, 27,798 (La.App.2d Cir.1/24/96), 666 So.2d 1241. In Grant-ham, this court stated further that “the law is replete with instances, including this court’s own rules, where requiring a contradictory hearing before issuing an order based upon ‘good cause’ would be impractical and quite absurd.” Id. Thus, a contradictory hearing was not required to show good cause.

In the motion for extension, defendants stated that all parties had been contacted about the extension request. Furthermore, it was alleged that the panel had yet to be fully formed. Applicant concedes that, as of May 6, 2004, he had not been informed of the selection of the final panel member. The motion to extend was based on this lack of a formed panel, the need for time to prepare and submit evidence to the review panel when formed and for the panel to render an opinion. The trial court determined that these grounds constituted adequate grounds for good cause, and this court sees no reason to overrule that decision.

As to the motion to dismiss based on alleged untimely filing of the writ application, URCA Rules 4-3 provides, in pertinent part:

The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the appellate court. The return date in civil cases shall not exceed 30 days from the date of notice, as provided in La. C.C.P. art.1914.

The judgment on the appeal of the motion to rescind the ex parte order was rendered March 8, 2004, and was mailed to the parties, as required by La. C.C.P. art. 1914, on March 10, 2004. The applicant filed notice of intention to apply for supervisory writ on April 7, 2004. The judge immediately set a return date of May 7, 2004, an action clearly within the judge’s discretion allowed by URCA |3Rule 4-2. Thus, the application for supervisory writ filed May 6, 2004, was timely.

We hold that the six-month extension of the life of the medical review panel was granted in accordance with La. R.S. 40:1299.47.

WRIT DENIED.

PEATROSS, J., dissented and filed a statement.

hPEATROSS, J.,

dissenting.

The trial court should have conducted a contradictory hearing in this case.


author: CARLSON, J., EASLEY, J.,

text:
    GREENLINE EQUIPMENT COMPANY, INC. and Perma Septic Tank Company, Inc. v. COVINGTON COUNTY BANK, a Mississippi Banking Corporation, Jack H. Hayes, Jr. and Glen Eavenson d/b/a Covington Steel Company.
    No. 1999-CA-01753-SCT.
    Supreme Court of Mississippi.
    May 30, 2002.
    Rehearing Denied June 10, 2004.

      Brett Woods Robinson, Norman Gene Hortman, Jr., Laurel, S. Robert Hammond, Jr., Hattiesburg, attorneys for appellants.
    David Shoemake, Forrest W. String-fellow, Jackson, Gregory Moreau Johnston, Oxford, George Thomas Sullivan, Collins, attorneys for appellees.
    Before McRAE, P.J., DIAZ and CARLSON, JJ.
   CARLSON, J.,

for the Court.

¶ 1. We have before us today a case which the trial court characterized as containing “the second-most convoluted set of facts ever known to Mississippi jurisprudence.” Notwithstanding being confronted with a difficult case, the trial judge, in his original Findings of Fact and Conclusions of Law, stated that “[wjhile tempted to simply cut this Gordian knot with the judicial sword and make everything go away, this [trial court] has attempted to untie the same.” Although the trial court meticulously considered the record before it and eventually entered the original and then amended findings of fact and conclusions of law, and the original and then amended final judgment in this case, this Court is constrained, as a matter of law, to hold that the trial court did commit error in at least one instance. This finding is made by the Court, acknowledging that it has the advantage of cool and calm reflection based admittedly on a cold record, and affording great deference to the learned trial judge who was “there on the scene”, who “smelled the smoke of battle”, and who “sensed the interpersonal dynamics between the lawyers and the witnesses and himself.” See Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983).

STATEMENT OF THE CASE

¶ 2. This appeal is taken from a final judgment entered in the Circuit Court of Covington County, Mississippi, one of several trial courts which dealt with the parties on the subject matter of this litigation. The life of this protracted civil action commenced on May 26, 1989, when Covington County Bank (Bank) filed its complaint against Glen Eavenson (Eavenson), doing business as Covington Steel Company (Covington Steel), Greenline Equipment Company, Inc. (Greenline), Perma Septic Tank Company, Inc. (Perma Septic), Louis W. Harper, Sr., and Western Surety Company. Sheriff Harper and his bonding company, Western Surety Company, were later dismissed as parties. The focus of this case is a Model 690B John Deere excavator (backhoe), in which the Bank claimed a security interest as a result of Eavenson’s execution of a promissory note and related UCC-1 financial statements. In its suit, the Bank in essence claimed that certain parties had wrongly converted the excavator to the Bank’s detriment and caused the Bank to suffer monetary damages in excess of $60,000. From May 26, 1989, until May 5, 1998 (a period of almost four years), the various parties filed pleadings, which included answers and amended answers, answers and defenses, cross-claims, motions and revised motions, and third-party complaints. Along the way, in addition to the Bank’s claims, the following claims also surfaced: Eavenson’s cross-complaint against Greenline and Perma Septic; Perma Septic’s counterclaim against the Bank and Greenline; and, Greenline’s third-party complaint against its lawyer.

¶ 3. After a five-day non-jury trial between December 1, 1993, and February 2, 1994, the trial court took this case under advisement for subsequent ruling. In the end, the circuit court ruled, inter alia, that both Greenline and Perma Septic had wrongfully converted the subject excavator to the detriment of the Bank, thereby causing both Greenline and Perma Septic to be jointly and severally liable to the Bank for monetary damages in the amount of $35,070.72; that Perma Septic was not entitled to indemnification on its counterclaim against Greenline, nor entitled to relief on its counter-claim against the Bank; that Eavenson could not maintain his claims against Greenline and Perma Septic; and, that the applicable statute of limitations had run, thereby causing Greenline to take nothing on its third-party complaint against its lawyer for legal malpractice. The trial court’s findings of fact and conclusions of law were filed on September 8, 1998, and its final corrected findings of fact and conclusions of law were filed on November 24, 1998. The trial court’s final judgment was filed on September 10, 1999, and its amended final judgment was filed on September 28, 1999. The Order Denying Motion to Set Aside Final Judgment was filed on October 15, 1999. Based on these actions of the trial court, Greenline and Perma Septic have appealed to this Court for relief. Eaven-son (Covington Steel) has also raised issues on this appeal, claiming that the trial court improperly dismissed his claims against Greenline and Perma Septic.

FACTS

¶ 4. On January 2, 1985, Glen Eavenson, doing business as Covington Steel Company, borrowed $30,037.50 from the Coving-ton County Bank. Eavenson used a Model 690B John Deere excavator (backhoe) as collateral for this loan. The pertinent documents reveal that this loan was actually a renewal of a previous loan made in 1984, and was not for the purchase of the exea-vator. Eavenson signed a promissory note, security agreement, disclosure statement, and a UCC-1 statement in favor of the Bank. The Bank, in turn, filed the UCC-1 in the office of the Chancery Clerk of Covington County, Mississippi on January 11,1985. The note on the loan became due and payable on January 2,1986.

¶ 5. On June 18, 1985, Eavenson bought a used engine from Greenline, and Eaven-son’s employees installed the engine in the excavator. While working in Lowndes County, Eavenson and a couple of his employees noticed a “fuel knock” and, therefore, on October 21, 1985, Eavenson sent the excavator to the Greenline shop in Columbus for repairs. Disputes arose as to whether or not certain repair work had been authorized. Greenline billed Coving-ton Steel (Eavenson) $8,784.33 for the total cost of the repairs; however, Covington Steel failed to remit any payment on this bill.

¶ 6. On January 20, 1986, Greenline’s attorney, Jack H. Hayes, Jr. (Hayes), sent a letter to Covington Steel stating that because it had failed to pay for the repairs, Greenline had a mechanic’s lien on the excavator and would commence legal action to foreclose on the lien if payment still was not forthcoming. Eventually Hayes, in representing Greenline, filed a mechanic’s lien suit in Covington County Circuit Court on March 12, 1986, but later dismissed that suit. Another mechanic’s lien suit was filed by Hayes, on behalf of Greenline, in the Circuit Court of Lowndes County on March 28, 1986. In this suit, Greenline requested that a monetary judgment be awarded against Covington Steel (Eavenson) for the amount of the mechanic’s bill ($8,802.77), as well as attorney’s fees and costs, and that the excavator, which was still in the possession of Green-line, be sold by order of the court to generate the money to satisfy the judgment. In its complaint, Greenline alleged that the defendant, Covington Steel, was a Mississippi corporation which could be served with process through its agent, Ea-venson. As it turned out, Covington Steel was not a Mississippi corporation and the properly named defendant should have been Eavenson, doing business as Coving-ton Steel.

¶ 7. On May 6, 1986, Hayes filed a request for entry of default against Coving-ton Steel and received a clerk’s default. On May 13, 1986, the Circuit Court of Lowndes County entered a default judgment in favor of Greenline and against Covington Steel in the amount of $8,802.77 and all costs, and further ordered, based on the mechanic’s lien, that the Sheriff of Lowndes County sell the excavator at public auction to satisfy Greenline’s monetary judgment against Covington Steel. The sheriff conducted a public auction on May 30, 1986, and Perma Septic purchased the excavator for $9,500.00. On June 21, 1986, Hayes mailed Eavenson a check in the amount of $352.72, representing the excess over and above the amount of the mechanic’s lien and related costs.

¶ 8. Two days later, on June 23, 1986, Eavenson notified Covington County Bank of the Sheriffs sale of the excavator. On July 9,1986, the Bank notified Hayes of its perfected security interest in the excavator, and then in August, 1986, the Bank likewise informed Perma Septic of its lien on the excavator. On September 17, 1986, Eavenson (Covington Steel) filed a motion to set aside Greenline’s default judgment, alleging as grounds, lack of process or notice and insufficiency of process. On December 11, 1986, the Bank filed a re-plevin action against Perma Septic in the Lowndes County Circuit Court; however, Perma Septic was not served with process in the replevin action until December 18, 1986, two (2) days after Perma Septic had sold the excavator to C & C Equipment Company (C & C) for the sum of $25,000.

¶ 9. On January 5, 1987, C & C sold the excavator to the City of McComb for the sum of $34,000. On March 31, 1987, a hearing was held in Lowndes County Circuit Court on Covington Steel’s motion to set aside Greenline’s default judgment, and at the conclusion of the hearing, that court ruled that Greenline’s default judgment (which had led to the Sheriffs sale of the excavator) should be set aside. This ruling by the Lowndes County Circuit Court was evidenced by its order dated April 3, 1987. On April 10, 1987, the Cov-ington County Bank filed a replevin action against the City of McComb in the Circuit Court of Pike County. In August of 1987, Eavenson filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern District of Mississippi. In the bankruptcy documents filed in court, Eavenson listed Greenline’s claim as a disputed claim and the Bank’s claim as a secured claim. An agreed judgment was entered in the bankruptcy proceeding on January 15, 1988, and this judgment lifted the stay on the excavator and allowed the Bank to recover the excavator. On May 23, 1988, the Lowndes County Circuit Court dismissed the mechanic’s lien suit on the clerk’s motion, for want of prosecution. On September 9, 1988, the Bankruptcy Court discharged Eavenson from his debt to the Bank. On May 26, 1989, in the Circuit Court of Covington County, the Bank instituted the suit which is the basis of this appeal. On July 21, 1989, the Pike County Circuit Court ordered the return of the excavator to the Bank in the replev-in action. Finally, on October 24, 1989, the Bank sold the subject excavator at a public sale to Freddy Rogers Construction for the sum of $14,500.

DISCUSSION

¶ 10. Due to the number of parties, as well as the number of issues presented in this appeal, the issues have been arranged categorically by the parties raising them.

I. GREENLINE EQUIPMENT COMPANY, INC.

A. WHETHER THE CIRCUIT COURT OF COVINGTON COUNTY ERRED WHEN IT HELD THAT GREENLINE IS LIABLE FOR CONVERSION.

¶ 11. Greenline argues that the circuit court erred when it found that Greenline converted the property of Cov-ington County Bank when it sold the excavator in the execution sale. Specifically, Greenline asserts that (1) any knowledge it possessed of the Bank’s lien did not satisfy the statutory requirements of Miss.Code Ann. § 75-9-M01, and (2) that Greenline could not have converted the Bank’s property because at the time the excavator was sold at the sheriffs sale, the excavator still belonged to Glenn Eavenson d/b/a Coving-ton Steel Company. We agree.

¶ 12. A “conversion requires an intent to exercise dominion or control over goods which is inconsistent with the true owner’s rights.” Walker v. Brown, 501 So.2d 358, 361 (Miss.1987). The trial judge relied heavily on this Court’s decision in Miss. Motor Fin., Inc. v. Thomas, 246 Miss. 14, 149 So.2d 20 (1963). In that case, the appellee filed an action to enforce a mechanic’s lien on an automobile he had repaired. The justice of the peace entered an order for an execution sale, and thereafter the appellee purchased the car at the execution sale. Thus, unlike the case presently before us, the mechanic never relinquished control of the automobile he repaired. Mississippi Motor Finance, Inc., in turn, filed an action for conversion alleging that the sale was void because appellee failed to name it as a party. The chancery court ordered that the automobile be resold with the mechanic’s lien to have priority over the finance company in the distribution of the proceeds, and the finance company appealed to this Court.

¶ 13. This Court agreed that the finance company was a necessary party, and consequently, that its rights were not affected by a proceeding to which it had not been made a party. Id. at 23, 149 So.2d 20. However, we also said that “this does not mean that the appellee, who purchased the automobile at the sale made under the judgment of the justice of the peace court, became liable in an action for conversion for the unpaid balance of the purchase price of the automobile evidenced by the appellant’s conditional sales contract”. Id. (emphasis added). In Thomas we went on to state:

There is no conversion until the title of the lawful owner is made known and resisted or the purchaser exercises dominion over the property by use, sale, or otherwise.
... To make out a conversion, there must be proof of a wrongful possession, or the exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized and injurious use, or of a wrongful detention after demand. (Internal citations omitted.) Action of tort ... cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself, or to deprive the rightful owner of it, or destroyed the property. In Lee Tung v. Burkhart, 59 Or. 194, 195, 116 P. 1066, the Court held that in order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiff’s rights, or else a withholding of the possession under a claim of right or title inconsistent with that of plaintiff.

149 So.2d at 23. We also noted that “there is no evidence in the record of any lack of good faith on the part of the appellee in the prosecution of his claim in the justice of the peace court for the enforcement of his lien, or in his belief, though mistaken, that he owned the property as the result of his purchase of the automobile at the execution sale.” Id. at 24.

¶ 14. Turning to the case, sub judice, both Greenline and the Bank agree that Greenline was notified on July 9, 1986, of the Bank’s claimed lien. The default judgment was taken on May 13, 1986. The excavator was sold on May 30, 1986. Thus, according to both Greenline’s and the Bank’s time lines, Greenline was notified of the lien after the sale and after possession of the excavator had passed from Greenline to Perma Septic. Therefore, the Bank concludes that Greenline not only converted the excavator when it sold it at the execution sale, but that Greenline “further compounded that conversion by failing to restore possession of the property after having been notified of the lien.” The Bank cites several cases to-support this claim. However, in each of these cases the defendants were made aware of another’s claim to the subject property while the defendants were in control or in possession of such property. Conversely, at the time Greenline received the notice of the Bank’s lien the excavator was already in the possession of Perma Septic. Additionally, at the time of the sheriff’s sale, the excavator was still the property of Glen Eavenson d/b/a Coving-ton Steel Co., and not the property of the Bank, which at that point, could only claim a security interest or right to ownership, as opposed to actual ownership or title. Accordingly, the Court is constrained, as a matter of law, to find that it was error for the trial judge to hold Greenline liable for conversion.

B. WHETHER THE CIRCUIT COURT ERRED IN AWARDING DAMAGES TO COVINGTON COUNTY BANK.

¶ 15. As discussed in the immediately preceding section, the trial court erred in holding Greenline liable for conversion; therefore, the award of damages against Greenline and in favor of the Bank on its conversion claim must also be reversed.

C. WHETHER THE CIRCUIT COURT OF COVINGTON COUNTY ERRED WHEN IT HELD THAT THE STATUTE OF LIMITATIONS HAD EXPIRED ON GREENLINE EQUIPMENT COMPANY, INC.’S LEGAL MALPRACTICE CLAIM AGAINST ITS ATTORNEY.

1.

¶ 16. The application of a statute of limitations is a question of law to which a de novo standard applies. Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001) citing ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

2.

¶ 17. “[T]he statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer.” Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994). We firmly believe that inasmuch as the Court has reversed the judgment against Greenline, there is no need to discuss the statute of limitations issue on Greenline’s legal malpractice claim against its attorney, since the conversion claim against Greenline is what prompted Greenline to file its legal malpractice claim against its attorney by way of a third-party complaint. But suffice it to state that based on the record before the trial court, that court’s findings that the statute of limitations commenced running at least by December 16, 1986, and that Greenline’s malpractice claim against its attorney was barred by the then-applicable six-year statute of limitations are amply supported by the record. Accordingly, the trial court’s finding in that regard is affirmed.

D.WHETHER THE CIRCUIT COURT OF COVINGTON COUNTY ERRED WHEN IT HELD THAT THE STATUTE OF LIMITATIONS HAD EXPIRED ON GREENLINE EQUIPMENT COMPANY, INC.’S INDEMNITY CLAIM AGAINST ITS ATTORNEY.

¶ 18. Greenline next asserts that the trial judge erred in finding that its claim for indemnity against its attorney was barred by the statute of limitations. Again, based on our previous finding on the conversion claim against Greenline, we find this issue to be without merit. Upon a review of the record, which includes the original and amended findings of fact and conclusions of law, and the original and amended final judgments, we find that because Greenline’s third-party complaint was based entirely on the alleged legal malpractice of its attorney, it was not necessary for the trial court to specifically address the indemnity issue raised by Greenline. Any right for monetary recovery that Greenline possessed arose out of its attorney’s liability for alleged malpractice. The final amended order of the trial court clearly dismissed the third-party complaint with prejudice. Because we are reversing and rendering the judgment of the trial court, there is no loss by Green-line, and thus, nothing for which to be indemnified.

II. PERMA SEPTIC TANK COMPANY, INC.

A. WHETHER PERMA SEPTIC WAS GUILTY OF CONVERSION BECAUSE ITS POSSESSION OF THE SUBJECT PROPERTY AT ALL TIMES WAS PURSUANT TO AN ORDER OF THE CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI.

¶ 19. Pursuant to M.R.A.P. 28(i), Perma Septic, in its brief, adopted certain portions of Greenline’s brief.

¶ 20. Perma Septic argues that the circuit court erred by holding it hable for conversion. Specifically, Perma Septic argues that it was an innocent purchaser, and in so doing, Perma Septic draws our attention to the following passages from 30 Am.Jur. 2D, Executions and Enforcement of Judgments:

§ 586 — Generally.
The purchaser at an execution sale is generally entitled to be returned to status quo, so far as possible, where an execution sale is set aside because of an irregularity in or invalidity of the proceedings ....
* * *
§ 588 — Obligation of execution debtor.
To the extent that the execution purchaser is entitled to reimbursement, the purchaser is generally held entitled to be subrogated to the execution creditor’s rights....
§ 590 — Extent of reimbursement.
When an execution sale is null and void, resulting in the execution purchaser of the realty obtaining no title to the property, the execution purchaser is entitled in an amount equal to all sums advanced to the sheriff as a result of the null and void sale....
* * *
§ 489 — Expenditures by purchaser.
The right of an execution purchaser, under proper circumstances, to restitution or reimbursement, is generally held to extend not only to payments of the purchase price, but also to expenditures for the discharge of an encumbrance against the property, such as the lien of a prior judgment or execution, as well as for taxes and assessments....

Accordingly, Perma Septic asserts that it is entitled to be placed in status quo. Per-ma Septic claims that it is entitled to $15,276.76 from Greenline which represents the purchase price and expenses. Perma Septic further asserts that the Bank is indebted to it in the amount of Perma Septic’s purchase price and the improvements to the property.

1.

¶21. We first address whether Perma Septic was liable to the Bank for conversion of the excavator. Perma Septic argues that it is shielded from liability because the circuit court only set aside the default judgment and never set aside the sheriffs sale. It argues that it had the right to treat the property as its own until it was tendered its purchase price and reasonable repairs. Essentially, Perma Septic asserts that it was a bona fide purchaser at the sheriffs sale, believed it acquired a valid title at the sale, and had no knowledge of an alleged infirmity of the title until after the purchase price was paid and its improvements had already been made to the excavator. Further, Perma Septic claims that it had no actual knowledge of an infirmity of the title until the order setting aside the default judgment was made. At the time that order was entered, Perma Septic no longer had possession of the excavator.

¶ 22. Whether Perma Septic was a bona fide purchaser at the sheriffs sale is not relevant to this issue.

A claim for conversion may be maintained where the defendant exercises dominion or control over property in a manner inconsistent with the Plaintiffs rights in the property. See. LaBarre v. Gold, 520 So.2d 1327, 1330 (Miss.1987); Masonite Corp. v. Williamson, 404 So.2d 565, 567 (Miss.1981). Where one acquires possession of the property in a lawful manner, as did defendant in the present case, his refusal to relinquish possession or control over the property after a demand by Plaintiff gives rise to the action.

Nat’l Benefit Adm’rs, Inc. v. Miss. Methodist Hosp. & Rehab. Ctr., Inc., 748 F.Supp. 459, 466 (S.D.Miss.1990) (emphasis added). As the Bank further notes, the Fifth Circuit Court of Appeals has recognized a similar rule:

... Although the mere purchase of personal property in good faith from a person who has no right to sell it is not a conversion, a conversion nevertheless occurs when the title of the lawful owner is made known and resisted or the purchaser exercises dominion over the property by use, sale, or possession.

Textile Supplies, Inc. v. Garrett, 687 F.2d 123, 128 (5th Cir.1982) (emphasis added).

¶23. The Bank correctly states that David Ashmore of Perma Septic testified that he knew of the Bank’s lien in August of 1986 while the excavator was in Perma Septic’s possession. Perma Septic’s attorney was furnished with a copy of the motion to set aside the default judgment filed by Eavenson by a letter dated September 18, 1986 from Hayes, Greenline’s attorney. The Bank, through its attorney in Columbus, filed a complaint in replevin against Perma Septic on December 11, 1986, while the excavator was still in the possession of Perma Septic. The testimony offered establishes that Perma Septic had knowledge of the claims of both Eavenson and the Bank during the time that Perma Septic had possession of the excavator.

¶ 24. The Bank additionally notes that Perma Septic’s Ray Gore testified that he intentionally refused to restore possession of the excavator to Eavenson, the Bank, or the court. Perma Septic’s David Ashmore testified that when he negotiated the sale of the excavator to C & C, he advised C & C and even placed a notation on the bill of sale that in the event possession of the excavator was later ordered to be either in the Bank or Eavenson, Perma Septic would stand behind the title. Accordingly, Perma Septic’s assignment of error is without merit.

2.

¶ 25. We next address whether Perma Septic is entitled to indemnity from Greenline and hold that, on the facts of this particular case, it is not.

¶ 26. Greenline argues, and we agree, that “[ujnder the common law, a wrongdoer is not entitled to compel contribution from a joint tortfeasor. This is in accord with the doctrine that if tortfeasors are in pari delicto, no indemnity is due to one held separately liable.” Sneed v. Ford Motor Co., 735 So.2d 306, 308 (Miss.1999). As discussed, Perma Septic is liable for conversion, and consistent with our holding in Sneed, Perma Septic is separately liable, and therefore, not entitled to indemnity from Greenline. Accordingly, this assignment of error is without merit.

3.

¶ 27. We next address Perma Septic’s argument that it is entitled to a judgment or offset against the Bank for its purchase price and repairs. Perma Septic asserts that it is undisputed that it invested a purchase price of $9,500.00 and repairs of $5,776.76, for a total of $15,276.76. Perma Septic further states that through advertising and sale efforts, it was able to conclude a sale of the backhoe to C & C for the sum of $25,000.00, thereby obtaining a profit of $9,723.24. However, as a result of the Bank’s replevin, Perma Septic chose to repay C & C its .purchase price of $25,000.00.

¶ 28. While Perma Septic did offer, via David Ashmore, a list of the repairs it asserts it made, there is nothing to indicate Perma Septic established that these repairs were reasonable and necessary. Further, Perma Septic has presented a lengthy and detailed argument as to why it should not be held liable to the Bank, yet it presents no citation to any legal authority as to why the Bank should be held liable to it by way of damages or an offset.

4.

¶ 29. Since we have found that Perma Septic is liable for conversion of the excavator, it naturally follows that Perma Septic is liable to the Bank for damages. Per-ma Septic has provided us with no basis for its claim of an offset, nor did Perma Septic establish that the repairs were reasonable and necessary. When considering the entire record in this case, and the applicable case law, this Court concludes that the trial court’s award of damages against Perma Septic in the amount of $35,070.72 for conversion of the excavator was proper and is beyond the authority of this Court to disturb.

III. GLEN EAVENSON

A. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT GLEN EAVENSON’S DEBT TO THE BANK WAS DISCHARGED BY THE BANKRUPTCY PROCEEDING, THEREBY CAUSING EAVEN-SON TO BE DISMISSED AS A DEFENDANT IN THIS CASE.

¶ 30. Eavenson had filed an answer and cross-complaint against Green-line and Perma Septic in the case, sub judice. The trial court ruled that absent evidence of Eavenson’s reaffirmation of his debt to the Bank, Eavenson should be dismissed as a party, with the dismissal including any cross-claims asserted by Ea-venson. It is Eavenson’s position that the pleading of a discharge in bankruptcy is an affirmative defense and a personal defense. He concludes that he did not raise this affirmative defense, and further admitted that he owed the Bank, and consequently, the circuit judge erred in dismissing him from this case. We disagree.

¶ 31. Eavenson filed for bankruptcy after the conversion; therefore, Eavenson’s cause of action became property of the bankruptcy estate. Accordingly, the bankruptcy trustee, and not Eavenson, was the only party who could pursue the claims. Notwithstanding Eavenson’s assertions to the contrary, there is simply no evidence presented of a reaffirmation of the debt. Additionally, under bankruptcy law, when a petition for bankruptcy is filed, that petition creates an estate. 11 U.S.C. § 541. Under § 541, all property of the debtor becomes a part of the estate, including causes of action belonging to the debtor at the time the case is commenced. 11 U.S.C. § 541.10; Billingham v. Wynn & Wynn, P.C., (In re Rothwell), 159 B.R. 374, 377 (Bankr.D.Mass.1993); see 4 Collier on Bankruptcy, at 74-3, 74-4 (2002). Eavenson had no standing to pursue this action on his own behalf. Consequently, this assignment of error is without merit.

B. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT GLEN EAVENSON CANNOT MAINTAIN A SUIT AGAINST GREENLINE AND PERMA SEPTIC BECAUSE HE WAS REQUIRED TO FILE A COMPULSORY COUNTERCLAIM PURSUANT TO MISS. R. CIV. P. 13(A) AT THE TIME HE FILED HIS MOTION TO SET ASIDE THE DEFAULT JUDGMENT.

¶ 32. Because of the ruling in Section III.A., above, the Court determines that there is no reason to address this assignment of error.

CONCLUSION

¶ 83. Greenline is not liable to the Bank for conversion of the excavator; therefore, the trial court’s judgment for conversion and award of damages against Greenline and in favor of the Bank is reversed and rendered. Greenline’s legal malpractice claim against its former lawyer was barred by the then-applicable statute of limitations; therefore, the trial court is affirmed on this issue. Greenline’s indemnity claim is without merit. The trial court’s judgment for conversion and award of damages against Perma Septic and in favor of the Bank is affirmed. Perma Septic is not entitled to indemnity against Greenline nor entitled to a judgment or offset against the Bank. The trial court did not err in dismissing Eavenson as a defendant and disallowing Eavenson’s claims against Green-line and Perma Septic.

¶ 34. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PITTMAN, C.J., McRAE AND SMITH, P.JJ, COBB, DIAZ AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. WALLER, J., NOT PARTICIPATING.

EASLEY, J.,

concurring in part and dissenting in part:

¶ 35. I concur solely with the majority’s determination that Greenline’s malpractice claim against its attorney, Jack H. Hayes, Jr., is barred by the applicable statute of limitations. The trial court found that the then applicable six-year statute of limitations commenced running by December 16, 1986, the date Perma Septic sold the excavator in question. Therefore, I concur in the affirmance of the trial court’s finding that the applicable statute of limitations had run, thereby causing Greenline’s third-party complaint against its lawyer for legal malpractice to fail.

¶ 36. I respectfully dissent as to all other issues addressed by the majority opinion.