author: STEWART, J.

text:
    Shane Michael JOHNSON, Plaintiff-Appellant v. FELICIANA FORENSIC FACILITY, et al., Defendants-Appellees.
    No. 37,921-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Thomas K. Brocato, Rodney M. Raba-lais, for Plaintiff-Appellant.
    Shane Michael Johnson, Pro se.
    Usry, Weeks & Matthews by T. Allen Usry, John F. Weeks, II, New Orleans, Fred Schroeder, for Defendant-Appellee Charles L. Cook.
    Charles C. Foti, Jr., Attorney General, Dohh Kelley R. Day, Henry M. Bernstein, Assistant Attorneys General, for Defendants-Appellees.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

Shane Michael Johnson (“Johnson”) appeals the trial court’s grant of the motion for summary judgment by the defendant, Ouachita Parish Sheriff Chuck Cook (“Sheriff Cook”). Finding no merit in the plaintiffs claims, we affirm.

FACTS

While he was incarcerated at Wade Correctional Center (“Wade”), Johnson filed suit against Sheriff Chuck Cook on January 29, 1998, alleging injuries as the result of a beating by other inmates while placed in the general population by Sheriff Cook. Johnson claims to have a mental disability, and that one of his doctors warned jail personnel that he would be in danger if housed in the general population.

Johnson was represented by counsel until June 1, 2001, when the trial judge signed an order allowing counsel to withdraw. While Johnson was unrepresented by counsel, Sheriff Cook filed a motion for summary judgment. The return of service for Sheriff Cook’s motion for summary judgment was served on Betty Hayes at Wade. The hearing on the motion for summary judgment was set for November 7, 2001, but no one appeared, and the court continued the matter without a date. On May 17, 2002, attorney Thomas K. Brocato (“Brocato”) enrolled as counsel for Johnson. On August 17, 2002, the trial judge reset Sheriff Cook’s motion for summary judgment for September 13, 2002, on motion by Brocato. Again, no one appeared at the scheduled hearing on the motion for summary judgment, but the judge granted the motion. No written or oral reasons are in the trial court’s record. No one submitted a formal judgment, and the | atrial judge prepared and signed a judgment on March 19, 2003. This appeal ensued.

DISCUSSION

Proper Service

The gist of the plaintiffs assignments of error is that neither Johnson nor his former counsel was properly served. The defendant concedes that evidence of service did not initially fully comply with La. C.C.P. art. 1235.1 because it lacked an affidavit that the service of paper was thereafter made on Johnson himself. However, we find that the appellate record has been supplemented in a manner that moots that the plaintiffs assignments of error.

Specifically, the plaintiff contends that his new counsel was not separately served with the motion for summary judgment after he enrolled in the case. However, the record does reflect that Johnson was properly served with the motion while he was unrepresented by counsel on October 29, 2001. Moreover, the record has been supplemented with an affidavit of the defendant’s counsel in conformity with La. C.C.P. art. 1313(B) attesting that a copy of the motion and all of its supporting papers were forwarded to counsel for the plaintiff in January 2002 in response to his request, even before he had formally enrolled as Johnson’s counsel. Since no hearing had been set at that time, service by mail was entirely adequate.

Although Johnson complains of a lack of evidence of proper service of the motion and order which refixed the motion for summary judgment for hearing on September 13, 2002, the record has also been supplemented with a return on service already in the record of the district court which shows that on August 23, 2002, these documents were served on Brocato at his office in Alexandria. Any problem caused Johnson by the fact that his counsel was suspended from the practice of law at the time of service and the hearing is not a matter for the defendant, but rather Mr. Brocato’s malpractice insurer. Consequently, we find that any defect in the service has been cured by the supplementation to the record, and the judgment rendered is valid.

CONCLUSION

Based on the foregoing, we affirm the decision of the trial court granting the defendant’s motion for summary judgment.

AFFIRMED.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Michael E. TWARDZIK v. ORLEANS PARISH SCHOOL BOARD.
    No. 2003-CA-1807.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2004.

      Donesia D. Turner, Yolanda Y. Grin-stead, New Orleans, LA, for Defendant/Appellant, Orleans Parish School Board.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

This is an appeal from a trial court judgment rendered in favor of the plaintiff, Michael E. Twardzik, and against the Orleans Parish School Board following a trial on the plaintiffs petition for a writ of mandamus.

Mr. Twardzik interviewed for a position as Network Support Technician with the Orleans Parish School Board, but he did not get the job. He later submitted a public records request to Cynthia R. Williams, the Executive Director of Board Operations for the Orleans Parish School Board. Mr. Twardzik sought his interview file, as well as the cumulative summary for the selection procedure. In addition, Mr. Twardzik asked to review any correspondence from Col. Alphonse G. Davis, Chief Executive Officer for the Orleans Parish Public Schools, regarding any recommendation for the network support technician position. In the same letter, Mr. Twardzik requested the selection committee’s interview file and any related correspondence relative to the advertised position of Personal Computer Technician.

In response, Ms. Williams wrote Mr. Twardzik, stating that the documents were not in her physical custody, but were in the control of Col. Davis, and that she directed the request to him. Shortly thereafter, Mr. Twardzik wrote a letter to Ms. Clare Jupiter, an attorney for the Orleans Parish School Board, informing her that he was faxing another public records request. He also sent a letter to Dr. James Lloyd, Compliance Officer for New Orleans Public Schools, submitting a second request for the same documents.

Mr. Twardzik eventually filed a petition for a writ of mandamus, pro se, seeking to command the Custodian of Records for the Orleans Parish School Board to produce the records, and seeking attorney’s fees, penalties, and interest.

In response to the writ of mandamus, the trial court signed an order stating, “the Orleans Parish School Board [is to] produce the documents requested ... or appear to show cause why they should not be produced ... If documents are produced costs, attorney fees, penalty and interest will be heard ...”

The Orleans Parish School Board filed a Motion and Memorandum in Opposition to Writ of Mandamus, stating that it had conducted a diligent search and had been unable to find the records. Thus, the school board argued that Mr. Twardzik sought documents that did not exist. However in an attempt to amicably resolve the matter, the school board produced all public records with regard to the pertinent interview files conducted during that time. Mr. Twardzik then agreed that the documents produced to the Court complied with his request.

The trial court subsequently issued a judgment in favor of Mr. Twardzik and against the Orleans Parish School Board, awarding him $3,762.50, which included lost wages, court costs, and attorney’s fees. The trial court also rendered judgment in favor of the school board, awarding it $218.00 from Mr. Twardzik for duplication of public records.

The Orleans Parish School Board appeals, arguing that the trial court erred in casting only the public body in judgment for damages, attorney fees, and court costs in a suit brought pursuant to the Louisiana Public Records Act. The school board asserts that La. R.S. 44:35 E provides that the custodian shall be personally liable for the requester’s damages and shall be liable in solido with the public body for the payment of the requester’s attorney fees and other costs of litigation in certain circumstances. It also argues that Mr. Twardzik offered no evidence at trial that he incurred attorney fees and/or court costs. Last, the school board contends the trial court erred in awarding lost wages in a suit for mandamus.

According to the trial court’s written judgment, a hearing was held in this matter. The trial court, however, verified that the testimony and argument of counsel at the hearing were not recorded and transcribed. Thus, in the absence of both written reasons for judgment and a transcript from the hearing, we cannot ascertain the basis of the trial court’s ruling.

The Orleans Parish School Board alleges that it turned over all of the records in its possession to Mr. Twardzik and satisfied his request. The record contains the scheduling sheets for Mr. Twardzik on the day he interviewed for the position, which the school board turned over to him. Apparently, the other documents requested by Mr. Twardzik did not exist and the school board satisfied his request for the public records in its possession. Nothing in the record indicates otherwise.

The trial court judgment awarded Mr. Twardzik $3,762.50, “representing lost wages, court costs and attorneys fee’s (sic).” In the absence of reasons for judgment and/or the trial transcript, we cannot determine if or how the trial court apportioned the total damage award. Nevertheless, in order for Mr. Twardzik to obtain actual damages the trial court had to have found that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the public records request. See La. R.S. 44:35 E(l). The record contains no evidence that the Custodian of Records for the Orleans Parish School Board acted unreasonably or was arbitrary and capricious in handling Mr. Twardzik’s request for public records. Also, nothing in the record supports the trial court’s award to Mr. Twardzik for lost wages. This case was strictly a suit for mandamus and the issue of lost wages was never before the trial court. Finally, the record indicates that Mr. Twardzik filed his petition pro se and wrote three letters to officials at the Orleans Parish School Board requesting the public documents. The record does not support a finding that he was entitled to attorney’s fees.

Accordingly, for the reasons stated herein, the judgment of the trial court in favor of Michael Twardzik, awarding him $3,762.20 in his suit for mandamus, is reversed.

REVERSED.

      . The Orleans Parish School Board initially filed an application for supervisory writ to seek review of the trial court's judgment. The time periods for taking a writ and a suspen-sive appeal had expired, but not the time limit for taking a devolutive appeal. Thus, the writ application was converted to a devolutive appeal. Mr. Twardzik filed neither an opposition to the writ nor a response to the appeal.

      . The petition specifically names the Orleans Parish School Board as the defendant. However, the prayer at the end of the petition refers to the defendant as the Custodian of Records for the Orleans Parish School Board.

      . La. R.S. 44:35 E provides:
      E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.
      (2) The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester's attorney fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian.


author: MAX N. TOBIAS, JR., Judge.

text:
    Vanessa WILLIAMS v. Gerald P. WEBRE and Webre Law Firm, A.P.L.C.
    No. 2004-CA-0032.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2004.

      Alfred B. Shapiro, Shapiro & Shapiro, L.L.C., Baton Rouge, LA, for Plaintiff/Appellant.
    David S. Daly, Allen & Gooch, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

This appeal arises out of the trial court’s granting of an exception of peremption in a legal malpractice action, dismissing the plaintiffs suit. For the following reasons, we affirm.

The plaintiff/appellant, Vanessa Williams (“Williams”), entered into a contingency fee contract for legal services with the defendants/appellees, Gerald P. Webre and Webre Law Firm, A Professional Law Corporation (collectively hereinafter “We-bre”), for representation in connection with an accident that occurred on 19 September 1996. Williams alleged that while working as a security guard at the Holiday Inn Crown Plaza Hotel in New Orleans, she fell over a decorative flower planter in the hotel in the area of the “Expresso Deli” and sustained injuries. On 17 September 1997, Webre filed a suit on Williams’ behalf against Holiday Inn Worldwide (“Holiday Inn”). On 1 June 1998, Williams amended her petition to substitute Bristol Hotel Company (“Bristol”) for Holiday Inn and supplemented the petition to include as defendants Ernest E. Verges (‘Verges”), the architect for the Expresso Deli, and Gulf South Construction Co., of Mississippi (“Gulf South”), the contractor for the construction of the Expresso Deli.

On 11 May 2000, Bristol filed a motion for summary judgment, contending that it was immune to tort suit by Williams because it was Williams’ statutory employer. The trial court granted the motion on 20 June 2001, dismissing Williams’ suit against Bristol.

Thereafter, Verges filed an exception of prescription, arguing that the initial suit against Holiday Inn did not interrupt prescription. The trial court denied the exception, but this court reversed the trial court on an application for supervisory writs by Verges and dismissed all claims against him. Williams v. Holiday Inn Worldwide, 02-0762 (La.App. 4 Cir. 5/15/02), 816 So.2d 998. The Louisiana Supreme Court denied supervisory writs. Williams v. Holiday Inn Worldwide, 02-1875, 02-1906, 02-1983, 02-2116 (La.10/14/02), 827 So.2d 426, 827 So.2d 427, 827 So.2d 428, 827 So.2d 408.

On 30 January 2003, Williams filed the present malpractice suit against Webre, who in turn filed exceptions of peremption and no cause of action on 25 June 2003, arguing that Williams’ claim was perempt-ed by virtue of La. R.S. 9:5605. On 20 August 2003, Williams amended her petition, raising the constitutionality of La. R.S. 9:5605 and requesting service on the Louisiana Attorney General. The trial court heard the exceptions on 26 September 2003 and rendered judgment on 7 October 2003 in favor of Webre finding that Williams’ claims were perempted by L. R.S. 9:5605 and dismissing the suit with prejudice. The trial court did not address the constitutionality of La. R.S. 9:5605. The record on appeal does not reflect that any evidence or testimony was presented to the trial court at the 26 September 2003 trial of the exceptions.

La. R.S. 9:5605 states:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and per-emptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

Williams argues that the trial court erred in sustaining the exception of per-emption for the following reasons: the application of La. R.S. 9:5605 to the facts of this case violates (1) La. Const. Art. I, § 22; (2) Williams’ due process rights under La. Const. Art. I, § 2 and the Fourteenth Amendment to the U.S. Constitution; and (3) Williams’ U.S. Constitution First Amendment right to petition for redress of grievances.

An action for legal malpractice is governed by La. R.S. 9:5605. The enactment of the statute, as amended, set the prescriptive period for all legal malpractice claims at one year from the date of the wrongful act, omission, or neglect, or its discovery, coupled with a three year per-emptive period from the date of the wrongful act, omission, or neglect. In Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, the Supreme Court gave a definitive interpretation of the three year limitation in legal malpractice actions. The Court held that the statute must be applied as written because “[t]he Legislature was particularly clear in wording La. R.S. 9:5605 so as to leave no doubt of its intent.” Id., p. 6, 701 So.2d at 1295. Thus, the applicable time limitations on legal malpractice actions are one year from the alleged act, omission, or neglect, or one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, and in no event more than at least three years from the date of the alleged act, omission, or neglect. Id.

The Court further concluded that “[t]he Legislature was aware of the pitfalls of this statute but decided, within its prerogative, to put a three-year absolute limit on a person’s right to sue for legal malpractice, just as it would be within its prerogative to not allow legal malpractice actions at all.” Id., p. 10, 701 So.2d at 1297. It expressly recognized “the perceived inequities of this statute,” but held that the date of the negligent act itself, not the judgment giving definitive effect to that act, triggers the one year and three year periods. Id., p. 7, 701 So.2d at 1296. While recognizing the possibility that “a person’s claim may be extinguished before he realizes the full extent of his damages,” the Court held that the establishment of a peremptive statute of limitations is “exclusively a legislative prerogative.” Id., pp. 8-9, 701 So.2d at 1296. Additionally, the Court rejected the argument that a malpractice claim might be dismissed as premature because the determination of the underlying cause in which the wrongful act allegedly occurred was not definitive by judgment. Id., p. 7, 701 So.2d at 1296.

In the case at bar, the “act, omission, or neglect” complained of is Webre’s failure to untimely naming Verges and Gulf South as defendants. That omission or neglect occurred on 19 September 1997, one year from the date of the accident. Under La. R.S. 9:5605, as interpreted by the Supreme Court, any malpractice suit against Webre had to be filed by 19 September 2000, three years from the date of the wrongful act. Williams’ malpractice action was not filed until 30 January 2003, more than 28 months too late. We find no manifest error in the trial court’s ruling that Williams’ claim is perempted.

“Statutes are presumed constitutional, and the burden of proving that an act of the legislature is unconstitutional is upon the party attacking the act. Moore v. Roemer, 567 So.2d 75, 78 (La.1990). The power of the legislature is plenary, and a party challenging a statute’s constitutionality must articulate a particular constitutional provision that limits the legislature’s powers. Chamberlain v. State, Through DOTD, 624 So.2d 874 (La.1993)” Soloco, Inc. v. Dupree, 97-1256, p. 3 (La.1/21/98), 707 So.2d 12, 14.

In the case at bar, Williams alleges that the peremptive period of La. R.S. 9:5605 denied her due process of law, reasonable access to the courts, and the right to petition for a redress of grievances in violation of both the U.S. and Louisiana constitutions. The record is totally devoid of any proof or evidence of how Williams was denied due process of law, the right of access to the courts, or the right to petition for a redress of grievances. Absent proof or evidence, the constitutional attack fails as a matter of law. See Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242; Kennedy v. Macaluso, 99-3016 (La.App. 1 Cir. 2/16/01), 791 So.2d 697; Turnbull v. Thensted, 99-0025 (La.App. 4 Cir. 3/1/00), 757 So.2d 145. In reaching this conclusion, a further analysis of the constitutionality of La. R.S. 9:5605 is unnecessary.

For the foregoing reasons, we find no manifest error in the trial court’s granting of the exception of peremption. We further find the constitutional argument without merit. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . La. Const. Art. I, § 22 provides: "All courts shall be open and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."


author: MAX N. TOBIAS, JR., Judge. h JONES, J.,

text:
    Gregory T. BENNETT/Ava M. Thomas v. Yvonne HUGHES.
    No. 2003-CA-1727.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2004.

      Valerie M. Briggs, Schafer & Schafer, New Orleans, LA, for Plaintiff/Appellee.
    Kara Williams, New Orleans, LA, for Defendant/Appellant.
    Yvonne L. Hughes, New Orleans, LA, in Proper Person, Defendant/Appellant.
    (Court Composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge Pro Tempore MOON LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

On or about 19 September 2002, Gregory T. Bennett (“Bennett”), acting as mandatary for Ava Moody Thomas (“Thomas”), entered into a bond for deed agreement (“bond for deed”) with Yvonne Hughes (“Hughes”) to sell a home located in New Orleans, Louisiana. Under the terms of the bond for deed, Hughes made a down payment in the amount of $5,000.00 and agreed to make a second payment of $20,000.00 prior to 2 January 2003. Hughes was allowed to move into the house, but was also further obligated to pay $1,327.46 per month until 1 October 2004, at which time a balloon payment for the remainder of the purchase price of the home would be due. According to the bond for deed, Hughes as the purchaser was to be responsible for paying the state and local ad valorem taxes on the property as well as maintaining flood insurance on the house.

The bond for deed provided that should Hughes default, notice of her default was to be mailed to her via certified mail. She would then have forty-five days from the date of the mailing of the notice to cure any alleged default. Pursuant to the bond for deed, as well as La. R.S. 9:2945, Thomas as owner of the property (through Bennett) would have the right to dissolution of the bond for deed should Hughes fail to remedy the default within the forty-five days.

On 23 April 2003, Escrow Services, Inc. (“Escrow Services”), the company retained to handle the administration of the bond for deed, mailed a notice of default to Hughes on the grounds that she had failed to pay the 2003 property tax levied by the City of New Orleans, which had been due on 30 January 2003, and that she further had failed to provide proof of flood insurance for the property. The notice of default was mailed by certified mail, return receipt requested, to Hughes at her home address. In the notice of default, Hughes was advised that the bond for deed would be cancelled forty-five days following the date of the letter if she did not remit a check in the amount of $1,832.73, which was the amount required to satisfy the tax bill and to secure flood insurance.

On 9 June 2003, Bennett mailed Hughes a notice of eviction and executed a cancellation of the bond for deed on 10 June 2003. On 12 June 2003, Bennett filed the cancellation of the bond for deed with the custodian of notarial records for the Parish of Orleans as required by La. R.S. 9:2945. The notice was correspondingly registered in the conveyance office of Orleans Parish. Bennett then filed a rule for possession of the property with the Second City Court of the City of New Orleans on 23 June 2003 and a hearing date was set by the court for 26 June 2003.

Hughes filed numerous exceptions to the rule for possession, including exceptions of insufficiency of service and citation, lack of procedural capacity, no right of action, improper summary proceeding, prematurity, vagueness, and lack of subject matter jurisdiction. The exceptions were set for hearing by consent on 29 July 2003 and the rule for possession was also set for that same day.

On 14 July 2003, Hughes filed an amended answer and a reconventional demand against Thomas, Bennett, Escrow Services, an employee of Escrow Services, and Fairbanks Capital Corporation, Inc., which was alleged to be the mortgage holder for the property. In her answer, Hughes re-asserted her exceptions previously pled and added exceptions of failure to join an indispensable party and no cause of action. She further alleged in her re-conventional demand that Bennett and Thomas breached the bond for deed agreement by failing to have the property inspected and/or treated for termites and by failing to replace or repair broken tiles in the kitchen as well as damaged trellises on the patio. She alleged that she attempted to remit payment to Escrow Services in May 2003, but that it refused to accept her checks and further that Bennett and Thomas illegally cancelled the bond for deed, ostensibly because they were attempting to negotiate a higher sale price for the property with an unknown party. She prayed for damages in the amount of $78,000.00, which includes return of her down payment, expenses for the bond for deed, increase in the value of the property, moving expenses and relocation costs associated with both moving into and out of the property, real estate taxes, improvements to the property, attorneys’ fees, and other unspecified costs and expenses. She further prayed for a temporary restraining order and preliminary injunction to prevent her eviction from the property.

Following the hearing on the rule for possession on 29 July 2003, judgment was rendered in favor of Bennett and Thomas. Hughes was ordered to vacate the premises within twenty-four hours. See La. C.C.P. art. 4733. A judgment on Hughes’ exceptions was signed on 1 August 2003 overruling all of her exceptions for “reasons orally assigned.” In the same judgment, the court noted Hughes’ intention to lodge an appeal of the judgment and Hughes was ordered to post a bond of $1,300.00 on the first day of each month until her appeal was adjudicated so that she might remain in the house. The trial court further ordered that Hughes’ recon-ventional demand be severed and that she file same in the Civil District Court for the Parish of Orleans.

Hughes assigns six errors. Essentially, the main thrust of Hughes’ assignments of error is that the trial court lacked subject matter jurisdiction over the claims brought by Bennett and Thomas and the reconven-tional demand of Hughes. Further, Hughes asserts that the trial court erred in overruling the exceptions to Bennett’s petition that she raised and, finally, that the trial court erred in granting Bennett’s request for an eviction.

We first address the jurisdictional arguments raised by Hughes. Hughes asserts that the Second City Court erred in hearing the case because it lacks subject matter jurisdiction over cases involving ti-tie disputes arising out of bond for deed contracts. Hughes argues that the dispute between Bennett and herself is one concerning ownership of the property in question, and not one of mere occupancy. We disagree.

Hughes is correct that a city court has no subject matter jurisdiction over “a case involving title to immovable property.” La. C.C.P. art. 4847(A)(1). However, La. R.S. 9:2941 defines a bond for deed as “a contract to sell real property in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941 (emphasis added). Further, the bond for deed agreement between Thomas and Hughes states:

It is clearly understood and agreed that this Agreement is not a sale, transfer or conveyance but only a written Agreement to sell, transfer, and convey property in the future; provided all terms, conditions, payments and obligations set forth herein are fully, completely and timely met by Purchaser.

Under the terms of the bond for deed between Hughes and Thomas, as well as under the statutory definition of a bond for deed, title is not delivered to the purchaser until the conditions of the contract have been satisfied and full payment has been made by the purchaser. It is undisputed that in this matter, the term of the bond for deed had not expired and there were still significant terms to be fulfilled by Hughes, most significantly a large balloon payment to be made in October 2004. Therefore, while Hughes seeks to categorize this dispute as one for title or ownership, it is clearly and merely one for occupancy of the property, which Bennett’s rule for possession appropriately addressed.

Next, Hughes contends that even if Bennett’s action was properly pled before the city court as an eviction, the amount of the dispute removes it from the proper jurisdiction of the city court under the code of civil procedure. La. C.C.P. art. 4844 provides:

A. A parish court or city court shall have jurisdiction, concurrent with the district court, over suits by owners [7and landlords for the possession of leased premises as follows:
(1) When the lease is by the day and the daily rental is one hundred fifty dollars or less.
(2) When the lease is by the week and the weekly rental is five hundred dollars or less.
(3) When the lease is by the month and the monthly rental is three thousand dollars or less.
(4) When the lease is by the year and the annual rental is thirty-six thousand dollars or less.
(5) When the suit is to evict an occupant as defined by Article 4704, if the annual value of the right of occupancy does not exceed the amount in dispute to which the jurisdiction of the court is limited by Articles 4842 and 4843 or as to the amounts set forth in Subparagraphs (3) and (4) of this Paragraph.

Because a bond for deed is not a lease, subparagraph (5) of article 4844 necessarily applies to the case sub judiee. Further, we note that article 4843 of the Code of Civil Procedure provided, in pertinent part, that the jurisdiction of the city court in New Orleans is concurrent with the district court in cases where the amount in dispute or amount of the property involved does not exceed $20,000.00. (The jurisdictional amount has subsequently been increased to $25,000.00, but the change is neither retroactive nor applicable to this case.) We also find that Hughes satisfies the broad definition of “occupant” found in article 4704. What is crucial to the determination of proper jurisdiction, therefore,is a computation of the “annual value of the right of occupancy” for the house occupied by Hughes pursuant to the bond for deed.

Is At the hearing on the rule for possession filed by Bennett, extensive oral argument was presented by both sides regarding the correct valuation of the “right of occupancy.” Bennett argued, and the trial judge accepted, the use of the monthly payment due under the bond for deed in the amount of $1,327.46 as the monthly value of the right of occupancy, and that the corresponding annual value of the-right of occupancy is twelve times that amount, or $15,929.52. Hughes objects to this determination, and argues that the value of the right of occupancy ought to include the $25,000.00 down payment she was required to make under the bond for deed contract, as well as the amount she was responsible for in taxes and insurance. Failure to pay any of those amounts would have resulted in her eviction from the property pursuant to the bond for deed agreement, and thus should be included in the court’s computation of jurisdictional amount.

No case directly on point exists that states clear instructions on how to determine the annual value of the right of occupancy for purposes of eviction pursuant .to a bond for deed contract. We note that in cases where the annual value of the right of occupancy has been in dispute, the courts have consistently held that .the jurisdiction of a city .court may be determined by the fair rental value of the premises. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La. App. 1 Cir. 9/24/99), 754 So.2d 1057 (In an action to evict an occupant of a property, the jurisdiction of a parish or city court is determined solely by the rent paid by the occupant or the fair rental value of the property); Veillon v. Veillon, 517 So.2d 941 (La.App. 3 Cir.1987) (City court had jurisdiction over eviction action where fair rental value of property was $300.00 per month, despite occupant’s argument that annual value of the right of occupancy exceeded the jurisdictional amount of $10,000.00 where property valued at more than $30,000.00); Golden v. Pesson, 166 So.2d 282 (La.App. 3 Cir.1964) (City court had jurisdiction of the eviction action where the monthly rent under month-to-month lease was less than $1,000.00, and the lessor had the obligation to repurchase unsold products, alleged to be valued in excess of $1,000.00). Although we agree with Hughes that a bond'for deed is not a lease as a matter of law, we do note that the action filed by Bennett was solely a rule for possession, and did not involve any additional issues of title or breach of contract.

We are mindful, however, that a bond for deed contract differs from a lease agreement.- Under a bond for deed contract, the owner of the property frequently divests himself of the financial obligation of maintaining the property and the purchaser assumes the responsibility of making payments to satisfy any mortgage as well as to satisfy the tax and insurance burdens on the property. In the present matter, Hughes was responsible not only 'for monthly payments to satisfy the mortgage, but also for procuring flood insur-anee and paying the property taxes on the property.

Given the nature of a bond for deed contract, we look not only to the fair rental value of the property, but also to those other amounts Hughes was required to pay in the property owner’s place and stead to maintain occupancy of the property. Because the record reflects that the monthly amount paid by Hughes to retain possession of the property was $1,327.46, which also corresponds closely to the amount due each month from Thomas under the mortgage on the property, we do not find that the trial court erred in using that figure as part of the basis for the fair rental value of the right of occupancy. Given the unique nature of a bond for deed contract, we also look to the amount required to satisfy the insurance requirements and property taxes of the property, which the record reveals to be [ ^approximately $1,832.73 per annum. Inclusion of this amount, however, only results in an annual value of occupancy of $17,762.25, which is clearly within the jurisdictional amount of $20,000.00 of the Second City Court. Although Hughes argues that her down payments equaling $25,000.00 should be considered in the computation of the annual value of the right of occupancy, we disagree. The $25,000.00 down payment constituted a term of the contract for the bond for deed and does not correspond to any real “value of occupancy” intrinsic to the property. It was merely a term of the contract agreed to by Hughes and Thomas as a step in transferring the title to the property to Hughes and did not bear on any encumbrance of the property in favor of any third party that could potentially affect title to the property. Further, it in no way reflects the fair rental value of the property, or the amount required to maintain occupancy of the property for any individual other than Hughes. Thus, although we find that the trial court erred in failing to consider the debts on the property (i.e., taxes and insurance) for which Hughes became responsible under the bond for deed, we find that the error was de facto harmless.

Hughes next asserts that the trial court erred in failing to transfer the eviction action, as well as her reconventional demand, to the district court on the grounds that the reconventional demand exceeds the jurisdictional limits of the city court thereby compelling transfer of the entire matter. La. C.C.P. art. 4845(B) provides, in pertinent part, that where “a compulsory reconventional demand exceeds the jurisdiction of a parish or city court, ... the court shall transfer the entire action to a court of proper jurisdiction.” Thus, the question is whether the reconventional demand filed by Hughes constitutes a compulsory reconventional demand.

A reconventional demand is “compulsory” if it “arises out of the transaction or occurrence that is the subject matter of the principal action.” La. C.C.P. art. 1061(B). Hughes asserts that her recon-ventional demand arises out of the same transaction or occurrence as the eviction action instituted by Bennett: the bond for deed. Bennett counters that the recon-ventional demand deals with the cancellation of the bond for deed as well as a claim for unlawful eviction from the property. Because the rule for eviction had not yet been heard, Bennett argues that any cause of action for unlawful eviction was premature and had not yet accrued; therefore, the reconventional demand could not have arisen from the same transaction or occurrence, because as Hughes had not yet been evicted from the property. Further, Hughes’ prayer for injunctive relief relating to the eviction action was essentially ruled upon by the trial court when judgment was rendered in favor of Bennett and Thomas.

Hughes also maintains that the trial court erred in refusing to hear her exceptions at the hearing on 29 July 2003. The entirety of the argument in support of this assignment of error is that Hughes filed exceptions “which were not properly and completely considered by the lower court before the judge summarily ruled each and every one [sic] without comment....” We note that Hughes’ brief does not contain any specific argument relating to this assignment of error; rather it refers the court to the memorandum filed in support of the exceptions in the trial court. Rule 2-12.4 of the Uniform Rules of the Courts of Appeal provides, in pertinent part, that “[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Therefore, we are not required to address Hughes’ assignment of error regarding her exceptions and may consider it abandoned.

In spite of the shortcomings of Hughes’ brief, we do note that the trial court entertained substantial argument on the exceptions of lack of subject matter jurisdiction, no cause of action, and improper use of a summary proceeding. Further, the court entertained testimony from Bennett regarding the circumstances of the bond for deed agreement, and Hughes was given the opportunity to cross-examine him. Any question regarding his status in the litigation could have been raised and addressed by Hughes at the hearing, as she was afforded a full and meaningful opportunity to present evidence and argument in support of her exceptions and opposition to the eviction. Hughes was given ample opportunity to raise with specificity and present evidence on her exceptions at the hearing. She did not, and we find that the extensive oral argument presented by both Hughes and counsel for Thomas and Bennett at the hearing subsumed all of the exceptions lodged by Hughes.

Finally, Hughes asserts that the trial court improperly granted the rule for possession by Bennett on the grounds that Bennett and Thomas failed to satisfy their burden of proof as to cancellation of the bond for deed and, again, that the court lacked jurisdiction over the matter. La. R.S. 9:2945 provides, in pertinent part, the proper procedure for cancellation of a bond for deed:

If the buyer under a bond for deed contract shall fail to make the payments in accordance with its terms and conditions, the seller, at his option, may have the bond for deed cancelled by proper registry in the conveyance records, provided he has first caused the escrow agent to serve notice upon the buyer, by registered or certified mail, return receipt requested, at his last known address, that unless payment is made as provided in the bond for deed within forty-five days from the mailing date of the notice, the bond for deed shall be cancelled.
", return receipt requested,” following "by registered or certified mail.”

Tbe record contains copies of the bond for deed, the memorandum of the bond for deed with power of attorney, the cancellation of the bond for deed and special mortgage, the receipt for recordation of the cancellation of the bond for deed, and a notice of default addressed to Hughes dated 23 April 2003, along with a postal receipt stamped by the U.S. Postal Service evidencing that the letter was mailed via certified mail, return receipt requested. Therefore, Bennett and Thomas presented sufficient evidence that the statutory requirements for cancellation of a bond for deed were met. At that point, the burden shifted to Hughes to demonstrate that she either did not default on the bond for deed or that she satisfied the default within forty-five days of the mailing of the letter, which would have been no later than 7 June 2003. A careful review of the record and transcript of the hearing reveals that she failed to rebut the plaintiffs case. No documentary evidence was introduced into evidence by Hughes, not even the only referenced documentation that Hughes apparently brought to the hearing, a certified check dated 13 June 2003, a date after cancellation was filed as required by La. R.S. 9:2945. Further, although Hughes argued at the hearing that she paid the property taxes directly to the city at the direction of Escrow Services, she offered no evidence of payment or any correspondence from Escrow Services directing her to do so. In short, even if Hughes had a bona fide defense to the eviction proceeding, her failure to introduce any evidence in support of her position necessitated a judgment in favor of the plaintiff.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

JONES, J., dissents with reasons.

h JONES, J.,

dissents with reasons.

This Court establishes a new rule as it relates to the computation of the annual fair rental value of property for purposes of ascertaining jurisdiction in cases involving bond for deed sales of real property. The determination for me is arbitrary at best and does nothing more than work to the prejudice of the Appellant. For these reasons, I respectfully dissent.

      . The record reveals that Thomas, for purposes of the bond for deed to Hughes, granted Bennett her power of attorney. The special power of attorney executed by Thomas and Bennett authorizes Bennett to "direct, instruct, authorize and permit AGENT [Bennett] to sell and deliver the hereinafter described real estate, and/or all of PRINCIPAL'S [Thomas’s] right, title, and interest therein, with warranty of title and with sub-rogation of all actions of warranty, unto any person, firm or corporation or association, or such price and on such terms and conditions as AGENT may deem proper, to pay and discharge any and all charges, expenses and encumbrances in connection therewith, and to receive and receipt of the selling price.”

      . The monthly payment amount equaled Thomas’ monthly mortgage payment on the property plus a $25.00 per month fee for the escrow agent.

      . We note that the amended answer filed by Hughes was not properly verified pursuant to La. C.C.P. art. 4735, which provides, in pertinent part, that ''[a]n appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises,....” Although Hughes is technically not entitled to a suspensive appeal of the judgment of eviction, the deficiency of her pleadings has not been raised by Bennett and Thomas and we decline to dismiss her appeal on those grounds.

      . The exception of failure to join an indispensable party is based on the assertion that Thomas, as owner of the property, should have been named as a plaintiff in the eviction action. Insofar as the case, as originally filed, was captioned Gregory T. Bennett/Ava M. Thomas v. Yvonne Hughes, we note that this exception is without merit.

      . La. C.C.P. art. 4704 defines "occupant” as "includ[ing] a sharecropper; half hand; day laborer; former owner; and any person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant, except a mineral lessee, owner of a mineral servitude, or a lessee of the owner.”

      . Although we disagree with Hughes that her down payments equaling $25,000.00 should be considered in the computation of the value of the right of occupancy, we note that pursuant to Louisiana law, she is entitled to recover that amount from Thomas should the bond for deed be cancelled. Berthelot v. Le Investment, L.L.C., 2002-2054 (La.App. 4 Cir. 1/21/04), 866 So.2d 877, citing, Montz v. Theard, 2001-0768 (La.App. 1 Cir. 2/27/02), 818 So.2d 181.

      . This statute was modified in 1999, by Acts 1999, No. 517, § 1, which, in the first sentence inserted "or certified" following "serve notice upon the buyer, by registered” and inserted

      . We note that even had a copy of this check been introduced into evidence, it would not be sufficient to cure the default, as it was issued after the forty-five day window available to Hughes to remedy the default.


author: [ ¶ TERRI F. LOVE, Judge.

text:
    Barbara MONTGOMERY v. ORLEANS PARISH SCHOOL BOARD.
    No. 2003-CA-1943.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.

      Andrew W. Horstmyer, New Orleans, LA, for PlaintiffiAppellee.
    William D. Aaron, Jr., Brian E. Sevin, Sr., Alejandro E. Gomez, Goins Aaron, P.L.C., and Donesia D. Turner, Bryan & Jupiter, APLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   [ ¶ TERRI F. LOVE, Judge.

The Orleans Parish School Board seeks review of the worker’s compensation judge’s judgment which awarded Ms. Montgomery compensation benefits and attorney fees and penalties in the amount of $10,000.00 and ordered defendant to “credit back” Ms. Montgomery’s vacation and leave time. We affirm in part and reverse in part the worker’s compensation judge’s ruling for the following reasons.

FACTS AND PROCEDURAL HISTORY

The claimant, Barbara Montgomery, filed a workers’ compensation claim for injuries sustained when she slipped and fell while on the job as a teacher employed by the Orleans Parish School Board (“School Board”) at Sherwood Forest Elementary School on January 19, 2001. Ms. Montgomery sustained injuries to her neck and shoulder, and in a related incident, injury to her knee as well as psychological trauma. Ms. Montgomery underwent surgery on her shoulder on October 4, 2001. On July 8, 2002, a second surgery was recommended by her neurosurgeon, Dr. Bryant George. Ms. Montgomery was evaluated by Dr. Gregory Dowd, another neurosurgeon, at the request of the School Board on April 24, 2003. Dr. Dowd informed the School Board that he |2agreed with Dr. George’s recommendation for a second surgery. However, at the time of the hearing, Ms. Montgomery was awaiting approval from the School Board for the second surgery.

During the period that Ms. Montgomery was unable to work, she was receiving payment from her employer. In an administrative error, the School Board did not pay Ms. Montgomery from the Worker’s Compensation fund, but compensated her through vacation and sick leave. In addition to paying her from the incorrect fund, the School Board paid Ms. Montgomery her full salary, not the lesser amount required under the Worker’s Compensation scheme.

After a hearing on a claim for benefits on June 4, 2003, the workers’ compensation judge rendered a written judgment on June 24, 2003, which provided:

IT IS ORDERED, ADJUDGED AND DECREED that:
1. Employer approve and pay for the neck surgery and all concomitant treatment ordered by Bryant George, MD, claimant’s treating neurosurgeon;
2. Reinstate Claimant’s vacation and sick leave to the amounts of each she had accumulated on the date of her injury, January 19, 2001;
3. Begin paying Claimant her workers’ compensation benefits, based on an average weekly wage of $1,091.00, giving Claimant the option to use the reinstated vacation and sick leave to supplement her workers’ compensation benefits, as is contemplated in LSA-RS 17:1201(D)(1);
4. Approve and pay for an initial evaluation of Claimant’s knee and groin injuries she received while participating in a required functional capacity evaluation, by her choice of orthopedic surgeon;
5. Approve and pay for an initial course of psychological counseling with a treating psychologist of Claimant’s choice;
6. Pay the outstanding medical bill to Gulf Coast Anesthesia of $1,320.00;
7. Pay the outstanding medical bill to Tulane Medical Center of $34.00;
8. Pay to Claimant and her attorney, a penalty in the amount of $2,000.00 and concomitant attorney fees in the amount of $2,000.00 for failing to timely pay the Gulf Coast Anesthesia bill;
9. Pay to Claimant and her attorney, a penalty in the amount of $2,000.00 and concomitant attorney fees in the amount of $2,000.00 for failing to timely pay the Tulane Medical Center bill;
10.Pay to Claimant and her attorney, a penalty in the amount of $1,000.00 and concomitant attorney fees in the amount of $1,000.00 for failing to timely authorize the surgery ordered by Dr. George.

The School Board lodges this appeal.

DISCUSSION

On appeal, the School Board asserts two assignments of error: (1) the trial court erred when it ordered the defendant to “credit back” Ms. Montgomery’s sick and vacation leave without requiring Ms. Montgomery to pay back the sums that were paid to her in excess of her benefit due to a clerical error, which came directly out of her leave and vacation time; and (2) the trial court erred when it ordered the defendant to pay penalties and attorney fees of $10,000.00 for failing to authorize surgery and pay medical bills that totaled $1400.00.

Standard of Review

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error or clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 97-0688, p. 4, 704 So.2d at 1164. Where two permissible views of the evidence exist, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 96-2840, p. 8, 696 So.2d at 556.

FIRST ASSIGNMENT OF ERROR

The School Board contends if they are required to “credit back” Ms. Montgomery’s sick and vacation leave, then Ms. Montgomery should be required to reimburse the School Board for the excess sums paid from the sick and vacation leave accounts.

In Thomas-Young v. Allen Parish School Bd., 2000-1491, p. 6 (La.App. 3 Cir. 3/8/01), 780 So.2d 1273, 1277, the Third Circuit found that the amount of $850.62 paid to the claimant represented temporary total disability (TTD) benefits the School Board owed her as a result of her lower salary following deductions taken for hiring substitute teachers and held that the School Board was not entitled to a credit against the salary reductions it was ordered to repay the claimant. However, the School Board was entitled to a credit in the amount of $850.62 against its TTD obligation. The Third Circuit also affirmed the workers’ compensation judge’s ruling ordering the return of sick leave to the claimant without allowing the School Board a credit for the monetary value of the fifteen days of extended sick leave granted to her by the superintendent, stating that “[t]o give the School Board a credit for the additional fifteen days of sick leave granted to Young would, in effect, allow it a credit for compensation benefits it owed her, in violation of La. R.S. 23:1206.” Thomas-Young, 2000-1491, p. 11, 780 So .2d at 1280.

In Hollingsworth v. East Baton Rouge School Bd., 94-0518 (La.App. 1 Cir. 12/15/95), 666 So.2d 376, the First Circuit amended the judgment in favor of an injured teacher by awarding the full amount of TTD benefits without a reduction for sabbatical leave pay allowed by the workers’ compensation judge. In doing so, the court noted that requiring the claimant to use sabbatical leave for recuperation from a work-related injury violated La. R.S. 23:1206 and 23:1163. The Hollingsworth court further stated that it would be prohibited by La.R.S. 23:1163 and contrary to the policy of the Workers’ Compensation Act to allow deductions from an injured teacher’s benefits to cover the cost of hiring substitutes. Hollingsworth, 94-0518, p. 12, 666 So.2d at 382, n. 12.

In the present case, Ms. Montgomery received her full salary for one and one-half years following the accident. However, the monies received came from her accumulated vacation and sick leave, not from the workers’ compensation account. As the Hollingsworth Court noted, requiring Ms. Montgomery to use vacation and sick leave for recuperation from a work-related injury would be in violation of La. R.S. 23:1206 and La. R.S. 23:1163. The School Board acknowledged that the payments made from Ms. Montgomery’s accrued leave were an administrative, error and that Ms. Montgomery should have been paid workers compensation benefits from the workers compensation account. The workers compensation judge correctly determined that Ms. Montgomery was entitled to have her accrued leave “credited back.”

The School Board cites to La. R.S. 17:1201(D) in support of its argument that it should receive a monetary credit for the accrued leave “credited back” to the Ms. Montgomery. Under this statute, the claimant has the option of using her accrued leave to supplement her worker compensation benefits. However, in the case'at bar, Ms. Montgomery was never given such an option. The defendant contends that it was a clerical error that resulted in the use of claimant’s accrued leave and thus it should not be penalized for its error., In the cases cited above, the employers knew that the claimants were entitled to workers compensation benefits and used other methods for payment to the claimant. In the case at bar, defendant’s use of claimant’s accumulated leave to pay for salary in lieu of workers compensation benefits was purely a clerical error and the School Board should not be penalized for its error. Thus, the workers compensation judge erred when it denied the School Board’s request for a credit of the monies paid to the claimant.

SECOND ASSIGNMENT OF ERROR

The School Board also contends that the trial courts judgment awarding penalties and attorney fees is erroneous. The School Board argues that the amount of penalties and attorney fees is excessive in comparison to the actual amount of the medical bills. The penalty provision of La. R.S. 23:1201 provides, in part:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claims ... (Emphasis added).

Further, when an employer refuses to authorize medical treatment that is reasonable and necessary, penalties and fees are warranted. An employer may escape liability for its failure to provide medical benefits if: 1) its nonpayment stemmed from conditions over which the employer had no control, or 2) the employer reasonably controverted the employee’s right to such medical benefits. Warren v. Maddox Hauling, 2002-733, p. 5 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, 1086-87.

Awards of attorney’s fees in a workers’ compensation case are penal in nature and are intended to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. Although the benefits provisions in the workers’ compensation act are to be liberally construed, penal statutes are to be strictly construed. Id., p. 9, 737 So.2d at 46. In Fontenot v. Reddell Vidrine Water District, 2002-0439, 2002-0442, 2002-0478, p. 18 (La.1/14/03), 836 So.2d 14, 27, the Louisiana Supreme Court interpreted the penalty provision of La. R.S. 23:1201(F) to allow for multiple penalties for multiple violations regarding indemnity and medical benefits claims. The actual amount of the medical bills is not relevant to the penalties and attorney fees assessed. The relevant issue is the delay in the payment of the medical bills.

In Gross v. Maison Blanche, Inc., 98-2341, p. 5 (La.App. 4 Cir. 4/21/99), 732 So.2d 147, 150, this Court upheld an award for penalties and attorney fees for the refusal to authorize medical treatment which was reasonable and necessary, recognizing that an employer must demonstrate that reasonable efforts were made to ascertain the worker’s exact condition before denying benefits, and that employers have an ongoing duty to review medical reports concerning disability.

In the present case, the trial court is authorized to enforce multiple penalties for multiple violations that explain the amount of penalties and attorney fees. Ms. Montgomery’s medical bills were incurred in October of 2001 and remained unpaid through the date of the hearing, June 4, 2002. Under La. R.S. 23:1201, Ms. Montgomery was entitled to the maximum amount of penalties for the School Board’s failure to pay two medical bills timely. In addition, Ms. Montgomery was entitled to the penalties and attorney fees for the School Board’s failure to timely authorize the second surgery. Ms. Montgomery and the School Board were informed of the need for a second surgery by Dr. George, the plaintiffs neurosurgeon, on July 8, 2002. The School Board did not request a second opinion until April 24, 2003 when it had Ms. Montgomery examined by Dr. Gregory Dowd, the neurosurgeon selected by the School Board for an independent evaluation. Although Dr. Dowd agreed with Dr. George’s assessment that a second surgery was needed, approval for the surgery had not been given by the School Board at the time of the hearing on June 4, 2003.

Ms. Montgomery met her burden of showing that the treatment was reasonable and necessary. The School Board did not explain its nonpayment stemmed from conditions over which the employer had no control, nor did they controvert the employee’s right to medical benefits. The delay in obtaining the |flsecond opinion and/or approval for surgery was unreasonable. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the judgment of the workers’ compensation judge.

AFFIRMED IN PART, REVERSED IN PART.

      . La.R.S. 23:1206 provides, "Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.”

      . La.R.S. 23:1163(A) provides: It shall be unlawful for any employer, or his agent or representative, to collect from any of his employees directly or indirectly either by way of deduction from the employee's wages, salary, compensation, or otherwise, any amount whatever, or to demand, request, or accept any amount from any employee, either for the purpose of paying the premium in whole or in part on any liability or compensation insurance of any kind whatever on behalf of any employee or to reimburse such employer in whole or in part for any premium on any insurance against any liability whatever to any employee or for the purpose of the employer carrying any such insurance for the employer's own account, or to demand or request of any employee to make any payment or contribution for any such purpose to any other person. This statute was held to prohibit "all employers, whether insured or self-insured, from receiving any indirect payment by an employee toward the cost of worker's compensation benefits.” Bryant v. New Orleans Public Serv., Inc., 414 So.2d 322, 323 (La.1982).

      . La. R.S. 17:1201(D) provides: "(1) Any member of the teaching staff in the public schools who is injured or disabled while acting in his official capacity shall be entitled to weekly wage benefits under the worker's compensation law of the state of Louisiana and/or to sick leave benefits under Subpart B of Part X of this Chapter, at his option, but in no event shall such benefits exceed the total amount of the regular salary the member of the teaching staff was receiving at the time the injury or disability occurred. (2) In any case in which a member of the teaching staff supplements worker's compensation with accumulated or extended sick leave, the amount of sick leave used shall be calculated on an hourly basis.”