author: J2GAIDRY, J. | t FITZSIMMONS, Judge,

text:
    Jeffrey ''Jeff'' MCCURLEY, Elizabeth McCurley, George Powers, Gloria Powers, Curtis Netterville, Carolyn A. Netterville, Jimmy Hawkins, Brenda D. Hawkins, Jerry D’Antoni, Carolyn D’Antoni, Robert “Bobby” Hano and Yvonne Hano v. Johnny BURTON and Sherry K. Burton.
    No. 2003 CA 1001.
    Court of Appeal of Louisiana, First Circuit.
    April 21, 2004.

      Ronnie J. Berthelot, Baton Rouge, Lon-ny A. Myles, Zachary, Counsel for Plaintiffs/Appellees George Powers, Gloria Powers, Curtis Netterville, Carolyn A. Netterville, Jimmy Hawkins, Brenda D. Hawkins, Jerry D’Antoni, Carolyn D’Anto-ni, Robert “Bobby” Hano and Yvonne Hano.
    Dorothy F. Jackson, Baton Rouge, Counsel for Defendants/Appellants Johnny Burton and Sherry K. Burton.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J2GAIDRY, J.

Defendants/appellants, Johnny and Sherry K. Burton, appeal the grant of a permanent injunction based on a servitude of passage in favor of plaintiffs/appellees, George W. Powers, Gloria Powers, Curtis Netterville, Carolyn A. Netterville, James “Jimmy” Hawkins, Brenda Hawkins, Jerry D’Antoni, Carolyn D’Antoni, Robert “Bobby” Hano, and Yvonne Hano. Following this court’s review of the record and relevant law, we affirm in part, amend in part, and vacate in part.

On July 16, 2002, plaintiffs alleged the continuous and uninterrupted possession of the right of access to a portion of the property owned by the Burtons pursuant to a servitude of passage; the dedication of a servitude of passage for use by plaintiffs pursuant to various surveys and acts of sale; continuous and uninterrupted possession in excess of one year; and that failure to recognize the servitude of passage would cause the land to become enclosed. The plaintiffs requested a temporary restraining order, preliminary injunction, permanent injunction, and damages. The Burtons reconvened, asking that they be declared the owners of the disputed thirty-foot strip and requesting damages for wrongful issuance of the temporary restraining order, as well as attorney fees.

After a hearing on the preliminary injunction, the trial court rendered judgment, ordering a permanent .injunction against the Burtons and dismissing the Burtons’ reconventional demand. The court subsequently denied the Burtons’ Motion for New Trial, and this appeal followed.

The Burtons assert that the trial court erred by: (1) issuing a permanent injunction against them following the hearing on the preliminary injunction, where the parties did not stipulate to a trial on the merits; (2) finding that a servitude 1¡¡existed upon their property in favor of the plaintiffs who did not purchase their property from them or their ancestors in title; (3) finding that a servitude existed upon their property in favor of the plaintiffs based upon a map that contained a servitude that could not be tied to their property and was not used as a reference by the plaintiffs’ expert witness in conducting a survey of the property; (4) dismissing their reconventional demand where the plaintiffs’ action was in the form of a pos-sessory action and their demand was clearly a petitory action seeking declaratory relief, and where the plaintiffs failed to show proof of ownership by title or by acquisitive prescription of thirty years (in the absence of good faith and title).

PERMANENT INJUNCTION

This court initially addresses the grant of a permanent injunction following the hearing on the plaintiffs’ motion for preliminary injunction. At the commencement of the hearing on August 1, 2002, the district court judge properly identified the matter as a rule for preliminary injunction. At the conclusion of the hearing on the preliminary injunction, the court reporter noted that the matter was taken under advisement. Thereafter, in written reasons for judgment dated November 13, 2002, the court again acknowledged that the matter had come for hearing on whether a preliminary injunction should issue barring the defendants from erecting a fence and gate on a disputed servitude. At the conclusion of the written reasons, the court recognized the existence of a servitude; however, it then spontaneously pronounced that a permanent injunction would be granted to enjoin the defendants from building the proposed gate and fence across the gravel road that comprised part of the servitude of access. On December 3, 2002, a judgment granting the permanent injunction was signed.

In the absence of an express agreement between the parties, the court lacks the authority to convert a preliminary injunction to a permanent injunction. Bally’s Louisiana, Inc. v. Louisiana Gaming Control Board, 99-2617, p. 8 (La.App. 1 Cir. 1/31/01), 807 So.2d 257, 263, writ denied, 2001-0510 (La.1/11/02), 807 So.2d 225. The principal demand for a permanent injunction can only be definitively disposed of after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction might have addressed issues on the merits. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 494 (La.1979); Hays v. City of Baton Rouge, 421 So.2d 347, 350 (La.App. 1 Cir.), writ denied, 423 So.2d 1166 (1982).

The requisite consent by the parties to submit the case for a final decision of the permanent injunction is not found in the record in this case. Indeed, the first indication that the court was unilaterally converting the hearing for a preliminary injunction into a judgment of permanent injunction surfaced more than three months after the hearing on the preliminary injunction had ended. The court exceeded the parameters of its authority; therefore, the permanent injunction must be vacated. However, in the interest of judicial economy and to save litigants additional costs and time, the district court judgment is hereby reformed to a grant of a preliminary injunction to reflect the procedural posture of the proceedings that transpired.

PREDIAL SERVITUDE OF PASSAGE

The parties in the instant litigation do not dispute the existence of a thirty-foot servitude on property owned by Bobby and Betty Caston to the north of the Bur-tons’ land; however, that thirty-foot servitude of passage was never utilized. Instead, it is the gravel road immediately south of the Caston property on the northern end of the Burtons’ property that is in dispute. The Burtons claim that the | Rgravel roadway is their private “driveway;” the neighboring plaintiffs allege it is subject to a thirty-foot servitude of passage in their favor.

A plaintiff seeking the issuance of a preliminary injunction bears the burden of establishing a prima facie case by a preponderance of the evidence. A prima facie showing requires a. plaintiff to demonstrate that he will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. General Motors Acceptance Corporation v. Daniels, 377 So.2d 346, 348 (La.1979); Malek v. Yekani-Fard, 451 So.2d 669, 673 (La.App. 1 Cir.1984).

When a defendant in a possessory action asserts ownership in the property, the action is automatically converted to a petito-ry action, and the defendant is considered as having judicially confessed plaintiffs possession. La. C.C.P. art. 3657. The party found out of possession bears the burden of proof in the petitory action. La. C.C.P. art. 3653. In order to prevail against a party in possession, a party claiming ownership must prove title good against the world. Chevron U.S.A., Inc. v. Bergeron, 551 So.2d 746 (La.App. 1 Cir.) writ denied, 553 So.2d 465 (La.1989). Because the Burtons asserted their ownership of the disputed property, they bear the burden of proving title good against the world.

Louisiana Civil Code article 705 defines a servitude of passage as follows:

The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the ser-vient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate.

A predial servitude of passage may be established via a demonstration of title. La. C.C. arts. 699; 708; 722. At the hearing on the motion for a preliminary injunction, plaintiffs introduced into evidence an act of sale dated August 13, 1957, with an attached plat dated August 15, 1957. A copy of the recorded plat is attached to the end of this opinion. The plat was prepared in conjunction with the | ^August 13, 1957 act of sale from Louis Carles to Augustine Carles of a three-acre portion of his 81.73-acre tract of land to the east of the Burtons’ property.

Woodrow Kerr owned the Burtons’ property, as well as the Castons’, in 1957. On the plat accompanying the 1957 act of sale is written that a “sixty foot servitude for access from property of Woodrow Kerr is hereby dedicated.” This statement on the plat granting the servitude is signed by Woodrow Kerr. The plat depicts the existence of two adjacent thirty-foot servi-tudes of passage which connect to a proposed sixty-foot street on the adjoining property.

In a May 26, 1964 act of sale, Woodrow Kerr sold the property currently owned by the Burtons (which was identified as “Tract ‘C’ ” in an accompanying plat dated May 16, 1964) to Earl and Minnie Kennedy. The act of sale contained the following-statement: “Said Tract ‘C’ being subject to a 30-foot access way across the northernmost 196.15 feet width which is adjacent to the Louis J. Carles property to the north.” The 1964 plat also provided, “The thirty foot wide drive along the north line of tracts ‘B’ and ‘C’ shall be dedicated as a permanent access way to tracts ‘B’ and ‘C’.”

Thereafter, Earl Kennedy’s widow, Minnie Bowen Kennedy Carpenter, sold the land to Alfred and Gladys Sanders on January 15, 1969. The 1969 act of sale contained the identical language subjecting tract “C” to a thirty foot access way and referencing the 1964 survey.

On April 22, 1970, Alfred and Gladys Sanders sold tract “C” to Johnny and Sherry Burton. As with the prior sales, the act of sale referenced the 1964 plat and confirmed that the tract was subject to “a 30 foot access way across the northernmost 196.15 feet width, which is adjacent to the Louis J. Carles property on the north.”

Thus, the evidence substantiates the existence of a thirty-foot servitude of passage located on the Burtons’ property granted by Woodrow Kerr in the 1957 17plat. Although the 1957 act of sale involved only a three-acre tract of land, the attached plat in which the servitude was created depicts a servitude for passage connecting to a proposed sixty-foot street on the adjoining property. It is well settled that where there is a discrepancy between a plat and an act of sale, the plat controls. See Triangle Development, Inc. v. Burns, 469 So.2d 29 (La.App. 1 Cir. 1985). Accordingly, a thirty-foot servitude of passage across the northern portion of the Burton’s property was created in 1957 in favor of the plaintiffs. The grant of a preliminary injunction in favor of plaintiffs is affirmed.

POSSESSORY ACTION

In its reasons for judgment, the district court judge found that the plaintiffs and their ancestors in title had continually maintained possession through utilization of the servitude of passage in excess of one year prior to the actions of the Burtons. When an owner of a dominant estate, such as the plaintiffs, is disturbed in the possession of the servitude, he or she may pursue the possessory action. See La. C.C.P. art. 3655-3671. Pursuant to La. C.C.P. art. 3655, “[t]he possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” However, the petitory and possesso-ry actions may not be cumulated in the same suit. La. C.C.P. art. 3657. If a plaintiff attempts to cumulate or plead in the alternative, the possessory action is waived in favor of the petitory action. Id.; Harry Bourg Corporation v. Verrett, 633 So.2d 285, 286 (La.App. 1 Cir.1993). If a defendant brings a separate petitory action, he is considered as having judicially confessed plaintiffs possession. Whenever the defendant in a possessory action raises or interjects the issue of ownership or title through the answer, the possessory action is converted into a petitory action. La. C.C.P. art. 3657. Since the defendants reconvened to | Sassert their ownership of the disputed property, the plaintiffs possessory action was converted to a petitory one, and the possessory action is vacated without prejudice.

RECONVENTIONAL DEMAND

The Burtons seek a reversal of the district court’s refusal to grant damages and attorney fees due to the erroneous grant of the temporary restraining order. As we have found that the plaintiffs acquired a servitude of passage across the Burtons’ property by virtue of title, we find no error in the grant of a temporary restraining order and preliminary injunction in favor of the plaintiffs. Accordingly, we do not find that the Burtons have been damaged by the court’s actions; nor are they entitled to attorney fees, which can only be bestowed where authorized by statute or contract. See Brier Lake, Inc. v. Jones, 97-2413, p. 16 (La.4/14/98), 710 So.2d 1054, 1061.

DECREE

The district court’s grant of a permanent injunction based on a servitude of passage in favor of plaintiffs is affirmed as amended by this court. The possessory action is vacated without prejudice. The district court’s denial of the reconventional demand for damages and attorney fees is affirmed. Costs associated with this appeal are to be shared equally among the parties to this appeal.

AFFIRMED, IN PART; AMENDED, IN PART; VACATED, IN PART.

FITZSIMMONS, J., dissents, in part, and assigns reasons.

| t FITZSIMMONS, Judge,

dissenting, in part, with reasons.

I respectfully dissent, in part, from the majority’s affirmation of the existence of a predial servitude of passage. Pursuant to the 1957 act of sale and accompanying plat for the sale of property by Louis Carles to Augustine Carles, the evidence substantiates the existence of a thirty-foot servitude located on the Burtons’ property in favor of the three-acre tract of land purchased by Augustine Carles and later identified as “Tract ‘A’.” Only the current owners of the property that comprised all, or part, of the three-acre tract sold to Augustine Carles in 1957 would be entitled to a conventional servitude of passage based on title. The sales [2in 1964, 1969 and 1970 referred to a survey map of 1964, in which the dedicated permanent access ways to Tracts “B” and “C” do not entail properties owned by plaintiffs. Thus, the trial court legally erred in its attribution of a thirty-foot servitude across the northern portion of the Burtons’ property in favor of all plaintiffs to the action.

Moreover, the chain of title for the three acres that comprise the dominant estate is not readily ascertainable from the submitted evidence presented at the motion for preliminary injunction. In 1971, in an act of partition, Jimmy Dawes and Jewell Bourke transferred to Louis J. Carles a 2.778-acre tract of land identified as “Tract ‘A,’ ” which land was situated in the same location as the property purchased by Augustine Carles in 1957, albeit slightly smaller in size. Thereafter, in 1985, “Tract ‘A’ ” was subdivided into “A-l,” “A-2,” and “A-3.” Thus, it appears from the submitted evidence that a small portion of the adjacent lot C-l was also a part of the original 3-acre tract.

Prima facie support that Bobby and Yvonne Hano are the owners of Lot “A-l” was authenticated pursuant to an Act of Sale dated December 16, 1996. An exhibit demonstrating an act of sale to George and Gloria Powers on February 1, 1993 provides prima facie proof of their ownership of Lot A-2. (N. Jeff McCurley, who was dismissed as a party, testified that he was the owner of Lot “A-3.”) For purposes of the grant of a preliminary injunction, the evidence presented on behalf of the Hanos and Powers clearly satisfied their burden to demonstrate that they would prevail on the merits to establish the existence of a servitude by title.

Additionally, Curtis Netterfield testified that his property was located in Tract “C.” No supporting documentation was presented, except for a handwritten notation on one of the exhibits that placed Mr. Netter-field’s property adjacent to the McCurleys’ property. The evidence of ownership of a portion of the dominant three-acre tract of land was significantly weaker than the documentation offered by the |3Hanos and Powers; however, for the purpose of presenting prima facie proof of ownership of the remaining segment of the original three-acre tract, there was no error in the trial court’s finding that title had been established. Finally, notwithstanding the existence of a thirty-foot servitude to the north of the contested land, the district court’s finding of irreparable harm does not appear to be manifestly erroneous because the parties testified that the servitude to the north was impassable at the time of the hearing.

Accordingly, it is submitted that the preliminary injunction in favor of Robert “Bobby” and Yvonne Hano, George and Gloria Powers, and Curtis and Carolyn Netterville was properly affirmed. The grant of a preliminary injunction pursuant to a servitude of passage premised on title in favor of James “Jimmy” Hawkins, Brenda Hawkins, Jerry D’Antoni, and Carolyn D’Antoni should be reversed.

Servitude Established by Acquisitive Prescription

A conventional servitude may be established by juridical act, prescription, or destination of the owner. La. C.C. art. 654. A predial servitude premised on acquisitive prescription requires the showing of peaceable and uninterrupted adverse possession for ten years in good faith and by just title. La. C.C. arts. 742 and 3475. Adverse possession constitutes an unauthorized use that infringes on the ownership of the servient estate. A.N. Yiannopolous, Requisite Possession for Prescription § 138 Louisiana Civil Law Treatise, 399 (1997). Just title is a juridical act sufficient to transfer ownership or another real right. It must be written, valid in form, and filed for registry in the conveyance records of the parish where the immovable is situated. La. C.C. arts. 742 and 3483.

Mr. Hawkins testified that for twenty years he had been under the impression that the gravel road was available to, and utilized by, all the neighbors for access to their homes. He also stated that he had graded the disputed roadway |4five to six times a year for the past twenty years, and he had cleaned the ditch three times with a grader box. It was stipulated that Mr. Hano’s testimony would be the same as that of Curtis Netterville. Mr. Netterville stated that he had utilized the gravel road for access from the time that he purchased the home. Mr. D’Antoni testified that he had not been under the impression that Mr. Burton claimed the gravel road as his private driveway when he bought that particular tract of land in 2001. Mr. Burton had never stopped him or family members from using the gravel road. Moreover, Mr. D’Antoni had contributed money to place gravel and limestone on the disputed access way many times for at least ten years. Mr. Burton testified that he had always allowed his neighbors and parties making deliveries to his neighbors to use his roadway until 2002.

Although peaceable and uninterrupted use of the disputed thirty-foot servitude might have been satisfied for prima facie proof, the parties have failed to establish prima facie proof of adverse possession. Moreover, the evidence does not give credence to the existence of a valid title of servitude of passage by the Hawkins or D’Antonis. Thus, the court manifestly erred in its attribution of acquisitive prescription of a servitude of passage by plaintiffs.

      . On April 7, 2003, plaintiffs, Jeffrey and Elizabeth McCurley, were granted a motion to have their names removed from the petition and caption.

      . Louisiana Code of Civil Procedure article 3612 provides that "[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” A party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. Country Club of Louisiana Property Owners Association, Inc. v. Dornier, 96-0898, p. 2 n. 1 (La.App. 1 Cir. 2/14/97), 691 So.2d 142, 144 n. 1.

      . Pursuant to La. C.C. art. 652, the "servitude is due to the whole of the dominant estate and to all parts of it; if this estate is divided, every acquirer of a part has the right of using the servitude in its entirety.”

      . Additional acts of subdivision in the record, primarily by Louis Carles for adjacent property, were not dispositive. In 1971, there occurred a sale and re-subdivision of the Carles tract to the east of the Burtons' property. The significance of that transaction is that plaintiffs ultimately owned parts of the subdivided property, and they accessed their property via the disputed 30' servitude on the Burtons’ property. The 1971 plat indicates only a "30' access servitude’s servitude.” It is not clear whether the servitude falls on the Burtons' property or the property formerly owned by Louis J. Carles to the north, which was owned by Thomas Charlton at the time of the trial. A subsequent survey performed for Louis J. Carles, dated June 4, 1976, also shows a "30' access servitude,” but fails to delineate the exact location.
      On June 27, 1985, Louis J. Carles again re-subdivided a portion of his properly into three lots that were purportedly owned by Hano, Power and McCurley at the time of the trial. The 1985 plat refers to an "exist 60' access serv.” The plat further states: "The access servitude shown on this plat is hereby dedicated (if not previously dedicated) as an access to lots A-l, A-2 & A-3.” Louis Carles no longer owned the land on the north side of the disputed servitude. Moreover, the language is somewhat ambiguous because other access servitudes appeared on the plat.
      A survey performed for Jerry D'Antoni and Augustus D’Antoni on July 10, 1985, whose access to property was also via the disputed roadway, reflects the access as "exist 30' private access servitude.”
      Finally, on January 27, 1986, another re-subdivision plat of Tracts "C” and "D-l-A” of the Louis J. Carles property into Lots C-l, C-2, D-l-A-1 & D-l-A-2 ... for Owen Pres-tridge & Jerry Don D’Antoni — shows "exist. 30' priv access serv. to Kerr Rd.”


source: Caselaw Access Project

author: RPARRO, J.

license: Public Domain

text:
    Sylvia B. WASHAUER v. J.C. PENNEY COMPANY, INC. and Liberty Mutual Insurance Company.
    No. 2003 CA 0642.
    Court of Appeal of Louisiana, First Circuit.
    April 21, 2004.

      Jack M. Dampf, Gregory P. Aycock, Dampf, Thibaut & Melanson, L.L.P., Baton Rouge, for Plaintiff-Appellant Sylvia B. Washauer.
    Charles M. Ponder, III, Lozes, Cambre & Ponder, New Orleans, Kenner O. Miller, Jr., Sweeney & Miller, L.L.C., Baton Rouge, for Defendants-Appellants J.C. Penney Company, Inc. and Liberty Mutual Ins. Co.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   RPARRO, J.

Sylvia B. Washauer appeals a judgment dismissing her personal injury claims against J.C. Penney Company, Inc. (Penney’s) and its insurer, Liberty Mutual Insurance Co. (Liberty Mutual), on a motion for summary judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After shopping with a friend at Cortana Mall in Baton Rouge, Washauer walked through Penney’s store toward the exit to the parking lot and tripped on a floor mat in front of the door. She fell against the glass door, injuring her arm, shoulder, knees, and hip, and breaking her watch, ring, and glasses. Washauer sued Penney’s and Liberty Mutual, seeking damages for her injuries. They filed a motion for summary judgment, alleging Washauer could not meet her burden of proof on the elements of her cause of action, as set forth in Louisiana Revised Statute 9:2800.6(B). Their motion was supported by affidavits from Richard Guidry, who witnessed the accident, and Edward Sa-vold, the store manager; the depositions of Washauer and her friend, Peggy Blum-berg, who also witnessed her fall; and various photographs attached to the depositions. Washauer opposed the motion, submitting her deposition and that of William Charles Folks, whom she proposed as an expert. After a hearing at which the trial court determined there was no need for expert testimony in this type of accident, the motion was granted, dismissing her claims. Washauer appeals this judgment.

APPLICABLE LAW

Summary Judgment

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Collins v. Randall, 02-0209 (La.App. 1st Cir.12/20/02), 836 So.2d 352, 354. In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

| aThe initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden' of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Duplantis v. Dillard’s Dep’t Store, 02-0852 (La.App. 1st Cir.5/9/03), 849 So.2d 675, 679-80, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350.

Merchant’s Liability

The applicable substantive law in this case is set out in Louisiana Revised Statute 9:2800.6, which states, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care- to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. •
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

ANALYSIS

Washauer claims she fell over the “curled up” edge of a floor mat that was not properly affixed or secured to the floor. In this appeal, Washauer maintains the trial court erred in holding that the unfastened floor mat did not, in and of itself, create an unreasonable risk of harm. She further claims the trial court erred in finding that she 14couId not show Penney’s had actual or constructive notice of the hazardous condition of the floor mat. Finally, she contends the exclusion of her expert’s testimony was error.

Expert Testimony

Addressing the last contention first, we note that admission of expert testimony is governed by Louisiana Code of Evidence article 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In determining whether to admit expert testimony, the court is guided by two primary concerns: whether the witness plans to testify to actual technical knowledge and whether such knowledge will assist the trier of fact in understanding. Pelts & Skins Export, Ltd. v. State ex rel. Dep’t of Wildlife and Fisheries, 97-2300 (La.App. 1st Cir.4/1/99), 735 So.2d 116, 121, writs denied, 99-2036 & 2042 (La.10/29/99), 748 So.2d 1167 & 1168. Trial courts have great discretion in determining the qualifications of experts and the effect and weight to be given expert testimony. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 & 1545 (La.App. 1st Cir.3/11/94), 634 So.2d 466, 477, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. The appellate court, absent a clear abuse of the trial court’s discretion, will not disturb this determination. Maxwell v. State, Through Dep’t of Transp. & Dev., 391 So.2d 1230, 1233 (La.App. 1st Cir.), writ denied, 394 So.2d 281 (La.1980).

Washauer claims the court erred in not considering Folks’ opinions, since the case involves technical aspects of the type of floor mat, the composition of the mat material, and the standard of care applicable to securing a floor mat to the floor. However, this court has reviewed Folks’ deposition and finds no abuse of discretion in the trial court’s decision that his knowledge would not help it to understand the evidence. Folks described his areas of expertise as carpet cleaning, carpet repair, fire and water restoration, construction, and cleaning, none of which are involved in this case. Folks said he had learned from cleaning commercial floor mats how to keep them from moving around on the floor. Folks claimed no safety expertise and said he did not know of any building or safety codes that might impact the placement or securing of | ¿floor mats in a retail store. He had not surveyed similar commercial establishments to determine the type of mats most commonly used, the methods of securing such mats to the floor, or whether other businesses generally did affix such mats to the floor. Folks viewed the exit where the accident occurred for about thirty minutes and observed the mat in use during that period only. He offered no support for his “guesstimate” that thousands of people traversed that mat each day and did not scientifically test the “slipperiness” of the floor or the adhesion characteristics of the mat to the floor. We conclude that Folks’ opinions concerning the floor mat were not based on superior knowledge or experience, and we cannot fault the trial court for concluding that his testimony would not be helpful to it. The trial court did not abuse its discretion in disallowing his “expert” opinion in this case.

Essential Elements of Washauer’s Case

Washauer has the burden of proving that the floor mat where she tripped presented an unreasonable risk of harm to her, that the risk of harm was reasonably foreseeable, that Penney’s either created or had actual or constructive notice of the condition prior to the occurrence, and that Penney’s failed to exercise reasonable care to eliminate the condition. She contends the floor mat itself presented an unreasonable risk of harm, because it was not properly secured to the floor to prevent it from sliding, moving, or buckling. She also claims Penney’s created this condition by not fastening the mat to the floor, and therefore, she does not have to show actual or constructive notice. In the alternative, she contends that the tendency of the floor mat to buckle, move, and curl during normal use was apparent, that the danger of tripping was reasonably foreseeable, and therefore, Penney’s should be charged with constructive notice that this floor mat constituted a hazardous condition needing correction.

Savold’s affidavit stated that the floor mat where Washauer tripped was similar to those placed at all entrances to the Penney’s store, that this same type of mat had been used at this store location for ten years, and that during the preceding year, he found no record of any other incident involving one of these floor mats. These facts demonstrate that the unsecured floor mat was not unreasonably dangerous in normal use. A floor mat does not present a tripping hazard until or unless it is moved from its | ¿flat position on the floor. Therefore, in and of itself, the flat floor mat, even though unsecured, was not a dangerous condition. Washauer’s evidence in opposition to the- motion for summary judgment did not show that she would be able to satisfy her evidentiary burden of proof at trial that the unfastened floor mat was, in and of itself, a condition presenting an unreasonable risk of harm to her.

The only other possible basis for Washauer’s claim is that the condition of the mat at the time she approached it was unreasonably hazardous; in that case, she would have to show that Penney’s either created the condition or had actual or constructive knowledge of the condition. Blumberg said in her deposition that as Washauer approached the door, she noticed that about a foot of the mat corner was “flipped up”; she did not have time to warn her friend before she fell. Blumberg had not seen this condition when they entered and did not recall seeing it any other time during this or any other shopping trip. Washauer said she had shopped at the Penney’s store on many occasions and had never tripped at the entry or on any other floor mats there or at any other store. She said she had “walked over it a million times” and did not notice the floor mat before she fell. Nothing blocked her ability to see the floor mat as she approached it. Washauer stated, “I don’t know what happened. All of a sudden I felt myself falling across that area. Meaning that I fell into the two glass doors.” Guidry, who saw Washauer fall as he and his wife entered, stated the floor mat was flipped up after she fell, but not before. Neither Washauer nor Blumberg could estimate how long the corner of the floor mat had been turned over or how it came to be in that condition.

Moreover, Blumberg’s testimony indicates that the “flipped-up” condition of the floor mat was clearly visible as Wash-auer approached. The degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous. Shavers v. City of Baton Rouge/Parish of East Baton Rouge, 00-1682 (La.App. 1st Cir.9/28/01), 807 So.2d 883, 886, writ denied, 01-2848 (La.1/4/02), 805 So.2d 207. If a dangerous condition is patently obvious and easily avoidable, it cannot be considered to present a condition creating an unreasonable risk of harm. Alexander v. City of Baton Rouge, 98-1293 (La.App. 1st Cir.6/25/99), 739 So.2d 262, 268, writ denied, 99-2205 (La.11/5/99), 750 So.2d 188.

17After conducting a de novo review of all the evidence submitted in support of and in opposition to the motion, we conclude that Penney’s and Liberty Mutual showed there was an absence of support for several essential elements of Wash-auer’s case, namely that the unfastened floor mat was unreasonably dangerous in and of itself or that its “flipped over” condition that caused her to fall had existed for such a period of time that it would have been discovered if Penney’s had exercised reasonable care. Washauer’s evidence failed to establish that she would be able to satisfy her evidentiary burden of proof on these elements at trial. Therefore, summary judgment in favor of Penney’s and Liberty Mutual was appropriate.

CONCLUSION

The judgment of the trial court, granting Penney’s and Liberty Mutual’s motion for summary judgment and dismissing Washauer’s claims, is affirmed. All costs of this appeal are assessed to Washauer.

AFFIRMED.


author: | ¡¡PARRO, J.

text:
    Dr. Stuart I. PHILLIPS v. LOWE’S HOME CENTER, INC. d/b/a Lowe’s Home Improvement Center.
    No. 2003 CA 0660.
    Court of Appeal of Louisiana, First Circuit.
    April 28, 2004.

      Morton H. Katz, Herman, Herman, Katz & Cotlar, L.L.P., New Orleans, for Plaintiff-Appellant Dr. Stuart I. Phillips.
    Joseph J. Schilleci, Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli & Frie-man, Metairie, for Defendant-Appellee Lowe’s Home Center, Inc. d/b/a Lowe’s Home Improvement Center.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | ¡¡PARRO, J.

The plaintiff appeals from a judgment sustaining defendant’s exception raising the objection of lack of subject matter jurisdiction and dismissing his action to annul a portion of a judgment rendered by the Louisiana Office of Workers’ Compensation Administration (OWC). For the following reasons, we affirm.

Factual and Procedural Background

Paul J. Simmons (Simmons) was an employee of Lowe’s Home Center, Inc. d/b/a Lowe’s Home Improvement Center (Lowe’s), and was allegedly involved in a work-related accident that occurred on August 16, 1998. Simmons ultimately sought treatment from Dr. Stuart I. Phillips, an orthopedist. Dr. Phillips performed a cervical diskectomy and three-level fusion at the C3-4, C4-5, and C5-6 levels despite the contrary opinions of three other specialists, who felt that the surgery was unnecessary. Simmons filed a disputed claim for workers’ compensation benefits with the OWC against Lowe’s, and in connection with Simmons’ workers’ compensation proceedings, Dr. Phillips testified by deposition. Following a trial, the workers’ compensation judge found that the cervical diskectomy and three-level fusion performed by Dr. Phillips was medically unnecessary and unreasonable. A judgment was signed, dismissing Simmons’ claim with prejudice after specifically setting forth in reasons for judgment the findings of fact on which such dismissal was based. Of importance in this ease is the following provision of the OWC’s judgment:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Dr. Stuart Phillips is found to be in violation of LSA-R.S. 28:1208, as amended.

Subsequently, after learning of the quoted language, Dr. Phillips filed a petition with the district court to nullify that portion of the OWC’s judgment, naming Lowe’s as the defendant. In his petition, Dr. Phillips alleged that he had not been named as a Lparty nor served with any process, such as the citation or the disputed claim form in the workers’ compensation proceeding; therefore, he averred that he was improperly cast in judgment. Alleging that the provision adjudging him to be in violation of LSA-R.S. 23:1208 was an absolute nullity, he sought to have it stricken from the judgment in accordance with the nullity-of-judgment provisions in the Louisiana Code of Civil Procedure.

Lowe’s responded by filing an exception urging the objection of lack of subject matter jurisdiction. The district court sustained the objection, apparently based on a finding that the proper forum to file such a petition was with the OWC, which rendered the judgment containing the provision sought to be annulled. Dr. Phillips appealed, contending that his constitutional rights were violated by the rendition of such a judgment without service of process and an opportunity to confront and cross-examine witnesses; therefore, his petition alleging the absolute nullity of the judgment was properly before the district court.

Discussion

Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based on the object of the demand, the amount in dispute, or the value of the right asserted. LSA-C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3.

The Louisiana Constitution establishes the subject matter jurisdiction of the courts. The subject matter jurisdiction of the district courts is set forth by LSA-Const. art. V, § 16(A)(1), which provides:

Except as otherwise authorized by this Constitution or except as heretofore or hereafter provided by law for administrative agency 14determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.

The original purpose of the Workers’ Compensation Act was to set up a court-administered system to aid injured workmen by relatively informal and flexible proceedings that were to be interpreted liberally in favor of the workmen. The Louisiana Constitution and the Workers’ Compensation Act were amended, and district courts were divested of jurisdiction over claims arising out of the Workers’ Compensation Act. The OWC was empowered to resolve disputes and issue orders regarding workers’ compensation claims. The purpose of the changes was to provide a speedy resolution to workers’ compensation claims and a swift recourse for injured workers. Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64, 69.

Following the 1990 amendment of LSA-Const. art. V, § 16(A)(1), relative to the jurisdiction of the OWC, LSA-R.S. 23:1310.3(E) was enacted, and it provides:

Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers for indemnification or contribution.

The grant of original exclusive jurisdiction of designated subject matters to an agency results in the removal of those matters from the district court’s jurisdiction. This exclusive jurisdiction can be contrasted with concurrent jurisdiction where the district court maintains original jurisdiction in certain matters at the same time that an agency or other court has been granted the same original jurisdiction. See Moore v. Roemer, 567 So.2d 75, 79 (La.1990). Because the workers’ compensation judges have been granted exclusive jurisdiction by the legislature over workers’ compensation claims or disputes arising out of the workers’ compensation law, such matters have been | .¡excluded from the jurisdiction of district courts. Wilson v. Louisiana Safety Association of Timbermen, 29,263 (La.App. 2nd Cir.2/28/97), 690 So.2d 974, 978.

The objectionable provision of the OWC judgment relates to section 1208 of the workers’ compensation law. LSA-R.S. 23:1208(A) provides:

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.

A claim under LSA-R.S. 23:1208(A) is a claim or dispute arising out of the workers’ compensation law. Therefore, under the existing statutory scheme, the OWC has exclusive subject matter jurisdiction to hear such claims or disputes. See Lanthier v. Family Dollar Store, 02-0429 (La.App. 3rd Cir.1/8/03), 848 So.2d 605, 608; Derouen v. C & D Production Specialists, 98-57 (La.App. 3rd Cir.6/3/98), 718 So.2d 460, 462; Clarendon National Insurance Company v. Weston, 97-1089 (La.App. 1st Cir.5/15/98), 712 So.2d 628, 630; Johnson v. Basic Industries, Inc., 97-1136 (La.App. 3rd Cir.4/15/98), 711 So.2d 843, 847, writ denied, 98-1358 (La.6/26/98), 719 So.2d 1292; Menard v. Mama’s Fried Chicken, 97-488 (La.App. 3rd Cir.3/6/98), 709 So.2d 303, 308, writ denied, 98-0956 (La.6/5/98), 720 So.2d 681; Coleman v. Sheraton Pierrmont, 25,452 (La.App. 2nd Cir.1/19/94), 631 So.2d 50, 53; see also Hernandez v. ESKCO, Inc., 00-0174 (La.App. 4th Cir.11/17/00), 773 So.2d 865, 870-871, writ denied, 00-3430 (La.2/9/01), 785 So.2d 824. Because the OWC’s jurisdiction is exclusive over claims and disputes of this nature, the district court is without jurisdiction as to such a claim or dispute whether it pertains to the workers’ compensation claimant or “any person.” See Allen v. Fireman’s Fund Insurance Company, 36,-606 (La.App. 2nd Cir.11/6/02), 830 So.2d 1120, 1123-1124, writ denied, 02-2981 (La.2/14/03), 836 So.2d 114.

Decree

For the foregoing reasons, the judgment of the district court sustaining Lowe’s exception asserting the objection of lack of subject matter jurisdiction is affirmed. Costs of this appeal are assessed to Dr. Stuart I. Phillips.

AFFIRMED.

      . The judgment of the OWC was appealed to this court by Simmons and subsequently dismissed. Simmons v. Lowe's Home Improvement Center, 01-0976 (La.App. 1st Cir.9/19/01) (unpublished).

      . Simmons was also found to have been in violation of LSA-R.S. 23:1208. The workers' compensation judge ordered that a certified copy of the judgment and the entire record in the workers' compensation proceeding be forwarded to the OWC fraud section for investigation and further disposition.

      . Lowe’s also argues in its brief to this court that the objectionable language does not constitute a "judgment,” is not an enforceable aspect of the judgment dismissing the workers' compensation claim, and is actually a finding of fact. In light of our disposition of this appeal, we pretermit discussion of this argument.

      . Although the validity of this statement of the law was not affected, we note that this case declared the then-existing workers' compensation scheme was unconstitutional and, to that extent, was superceded by later amendments to the Louisiana Constitution.

      . The constitutionality of this section has not been raised as an issue in this appeal.

      . When a workers' compensation judge makes a finding of fact as to a violation of LSA-R.S. 23:1208(A), the statute provides for civil and criminal consequences for such a violation. We do not address the procedural or jurisdictional issues that might arise if enforcement of the civil or criminal aspects of this statute are applied, especially against a person who was not a party to the proceeding.

      . We further note that LSA-C.C.P. art. 2006 mandates that an action to annul a judgment be brought in the trial court, which, in this case, was the OWC.


author: 1 ¡¿DOWNING, J. 11 McCLENDON, J.,

text:
    STATE of Louisiana v. Donald L. DEVILLE.

      No. 2003 KA 2436.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Doug Moreau, District Attorney, Wick Cooper, Kory J. Tauzin, Assistant District Attorneys, Baton Rouge, Counsel for PlaintiffAppellant State of Louisiana.
    Greg A. Rozas, Mandeville, Counsel for Defendant/Appellee Donald L. Deville.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   1 ¡¿DOWNING, J.

Defendant, Donald Deville, was charged by bill of information with operating a vehicle while intoxicated, third offense, a violation of La. R.S. 14:98 D. Defendant entered a plea of not guilty and filed a motion to quash the bill of information on the basis that one of the predicate offenses was deficient. The trial court granted the motion to quash. The state appeals. For the following reasons the judgment of the trial court is affirmed.

FACTS

On March 22, 2002, Sergeant James Sullivan of the Zachary Police Department initiated a traffic stop of defendant’s vehicle. Sgt. Sullivan had observed defendant driving erratically. After defendant exited his vehicle, Sgt. Sullivan observed defendant staggering, slurring his speech, and swaying. The officer also noted a strong odor of alcohol on defendant’s breath. After defendant performed poorly on a field sobriety test, he was arrested for driving while intoxicated (DWI). Defendant was transported to the Zachary Police Department where he consented to an Intoxilyzer test, which indicated a blood alcohol level concentration of .223 grams percent.

Defendant was charged by bill of information with DWI, third offense. In support of the charge of DWI, third offense, the state presented evidence of two predicate offenses. Evidence of the first predicate offense was a minute entry reflecting a 1995 guilty plea to DWI first offense in Baton Rouge City Court under docket number 05-95-78. The second predicate offense was a guilty plea to DWI first offense from Amite County, Mississippi, which was entered on January 14, 1998. As evidence of defendant’s second offense, the state introduced an abstract of the court record indicating defendant’s conviction; a certified copy of the criminal | ¡¡affidavit and breath test; and a certified copy of a waiver of the right to be represented by an attorney.

Defendant filed a motion to quash the bill of information. In his motion to quash, defendant argued that the prior conviction for DWI from Amite County, Mississippi was deficient in that the evidence of this conviction did not indicate defendant’s guilty plea was made with a knowing and intelligent waiver of his rights. At the hearing on the motion to quash, defendant did not present any evidence. During the hearing, the trial court questioned the fact that the state did not introduce any evidence to show defendant was informed of, and waived, his Boykin rights in conjunction with his guilty plea in Mississippi. The trial court granted defendant’s motion to quash because there was no showing that there was a knowing and intelligent waiver of rights and no proof defendant was informed of his Boy-kin rights.

The state appeals, arguing that the trial court erred when it failed to apply a presumption of regularity to court documents maintaining defendant’s waiver of counsel during a plea of guilty to a predicate offense DWI.

ASSIGNMENT OF ERROR

The state argues that under State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556 and State v. Zachary, 01-3191 (La.10/25/02), 829 So.2d 405 (per curiam), it only needed to prove the fact of conviction and that defendant waived counsel at the time he entered his plea in order to use a prior guilty plea to establish a predicate offense under the DWI statute.

In State v. Carlos, the Louisiana Supreme Court extended the burden-shifting principles for habitual offender proceedings, set forth in State v. Shelton, 621 So.2d 769 (La.1993), to the recidivist portions of the DWI |4statute. Accordingly, when a defendant challenges the constitutionality of a predicate guilty plea, the state’s initial burden is to show the existence of a guilty plea and that the defendant was represented by counsel when the plea was entered. After this burden is met by the state, the burden then shifts to defendant, if he desires to collaterally attack prior convictions. To prevail in such an attack, the defendant must “produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” State v. Carlos, 98-1366 at pp. 6-7, 738 So.2d at 559.

In State v. Zachary, the Louisiana Supreme Court held that a transcript from a Florida nolo contendere plea was sufficient for the state to meet its burden and invoke the enhanced sentencing provisions of the Louisiana habitual offender statute, La. R.S. 15:529.1. State v. Zachary, 01-3191 at p. 1, 829 So.2d at 406. We note Zachary did not involve the use of a prior uncoun-seled plea to enhance sentencing under the DWI statute. Despite the absence of a prior uncounseled plea being used to enhance sentencing, the Zachary court stated the following, “Under the court’s present jurisprudence, to use a prior guilty plea to enhance punishment under La. R.S. 15:529.1, the State need prove only the fact of conviction and that the defendant was represented by counsel (or waived counsel) at the time he entered his plea. Thereafter, the defendant bears the burden of proving a significant procedural defect in the proceedings.” Zachary, 01-3191 at p.3, 829 So.2d at 407. (Emphasis added.)

The State argues that such language extended the Carlos and Shelton rationale to cases where uncounseled pleas are used for enhancement purposes under the DWI statute. We disagree. First, despite the argument that prior uncoun-seled pleas could be used to enhance sentencing under the habitual offender law, Zachary did not address the use of un-counseled pleas Las predicates under the recidivist portions of the DWI statute. We note in Zachary, there was evidence presented in the form of a “less than perfect” transcript of defendant’s prior plea and a no contest plea form that adequately informed the defendant of her rights in entering the no contest plea that was ultimately used as a sentencing enhancement. Moreover, there is a long line of jurisprudence in this circuit that states an uncoun-seled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent waiver of counsel. State v. Lawrence, 600 So.2d 1341, 1342-43 (La.App. 1st Cir.1991) (and authority cited therein).

In the present case, the evidence introduced by the state included a “Waiver of Rights to an Attorney” form signed by defendant and the judge. The form indicates defendant has the right to be represented by an attorney, whether he chooses to hire his own, or if financially unable to hire his own attorney, that one would be appointed for him. The form indicates defendant read the statement of rights and understood what those rights were. However, merely informing defendants of the right to be represented by an attorney does not satisfy the burden on the state to prove the right was knowingly and intelligently waived. When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial court should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The court should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity, and seriousness of the charge. State v. Marcoux, 96-0453, pp. 2-3 (La.App. 1st Cir.3/27/97), 691 So.2d 775, 777.

| fiUnder the evidence presented there is no showing that defendant waived his right in a knowing and intelligent manner. Accordingly, we cannot say the trial court’s decision to quash the bill of information was erroneous. This assignment of error is without merit.

DECREE

We affirm the judgment of the trial court granting the motion to quash.

AFFIRMED.

MCCLENDON, J., dissents and assigns reasons.

11 McCLENDON, J.,

dissenting.

For the following reasons, I respectfully dissent. In State v. Carlos, the Louisiana Supreme Court extended the burden-shifting principles for habitual offender proceedings to the recidivist portions of the DWI statute. Accordingly, when a defendant challenges the constitutionality of a predicate guilty plea, the state’s initial burden is to show the existence of a guilty plea and that the defendant was represented by counsel when the plea was entered. After this burden is met by the state, the burden then shifts to the defendant to collaterally attack prior convictions. To prevail in such an attack, the defendant must “produce affirmative evidence showing infringement of his rights or a procedural irregularity in the taking of the plea.” State v. Carlos, 98-1366, pp. 6-7 (La.7/7/99), 738 So.2d 556, 559.

Following the Carlos decision, in State v. Zachary, the Louisiana Supreme Court held that a transcript from a Florida nolo contendere plea was sufficient for the state to meet its burden and invoke the enhanced sentencing provisions of the Louisiana habitual offender statute, LSA-R.S. 15:529.1. State v. Zachary, 01-3191, p. 1 (La.10/25/02), 829 So.2d 405, 406. In so holding the court stated, “Under the court’s present jurisprudence, to use a pri- or guilty plea to enhance punishment under La. R.S. 15:529.1, the state need prove only the fact of conviction and that the defendant was represented by counsel (or waived counsel) | gat the time he entered his plea. Thereafter, the defendant bears the burden of proving a significant procedural defect in the proceedings.” Zachary, 01-3191 at p.3, 829 So.2d at 407. (Emphasis added.) The state argues that this language by the Louisiana Supreme Court extended the Carlos and Shelton rationale to cases where uncounseled pleas are used for enhancement purposes under the DWI statute.

I agree. Although Zachary did not involve a DWI proceeding, the supreme court has previously recognized there is a presumption of regularity in out of state proceedings. See State v. Shelton, 621 So.2d 769 (La.1993). Thus, if a waiver of counsel, executed by the defendant at the time a prior guilty plea was entered, satisfies the state’s burden to invoke enhanced sentencing under the habitual offender law, it should also apply to satisfy the state’s burden in DWI recidivist proceedings. See State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. Accordingly, when uncounseled guilty pleas are used as predicate offenses in DWI proceedings, the state may use a waiver of counsel executed by a defendant to satisfy its initial burden of proving the predicate offense. Thereafter, the defendant bears the burden of proving a significant procedural defect in the proceedings.

In the present case, the defendant presented no affirmative evidence that his guilty plea from Mississippi was tainted by any procedural irregularity. As a result, there is no basis in the record to conclude the defendant’s guilty plea cannot be used as a predicate offense. I would reverse the decision of the trial court and reinstate the bill of information.

      . I acknowledge that, once a defendant makes an affirmative showing of an infringement of his rights or a procedural irregularity in the plea transcript, the burden shifts back to the state to prove the constitutionality of the plea.


author: |«.WHIPPLE, J.

text:
    Alysha BLACK v. Sean BLACK.
    No. 2003 CA 1465.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    Jess L. Wimberly, Mandeville, for Plaintiff/Appellant, Alysha Black.
    R. Randall Roche, Baton Rouge, for Defendant/Appellee, Louisiana School Employees’ Retirement Fund.
    Before: WHIPPLE, GUIDRY and MCDONALD, JJ.
   |«.WHIPPLE, J.

Appellant, Alysha Black, appeals from a trial court judgment, denying her request for an order requiring the Louisiana School Employees’ Retirement System (LSERS) to release to her the retirement funds on deposit for the account of Sean Black, which she sought in payment of child support arrearages. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Sean and Alysha Black were divorced by judgment dated March 23, 2000. Pursuant to that judgment, Alysha was named domiciliary parent of the couple’s three minor children, and Sean was ordered to pay child support in the amount of $1,200.00 per month. Subsequently, however, Sean became significantly delinquent in his child support payments.

In an attempt to partially satisfy the delinquency of $20,400.00, Sean entered into a consent judgment with Alysha, whereby he acknowledged the delinquency and “agreed to assign all of his rights, title and interest in and to his State Retirement Fund with the St. Tammany Parish School Board” to Alysha. Sean further agreed “to waive any and all exemptions from seizure for said fund and authorize[d] the Parish of St. Tammany and/or the State of Louisiana and any other party or entity in control of said Retirement Fund, to pay the fund over in its entirety” to Alysha.

Thereafter, Alysha filed a rule to show cause in this child support proceeding, requesting that the State of Louisiana, through LSERS, be ordered to show cause why the retirement funds on deposit in Sean’s name should not be released to her to satisfy Sean’s child support delinquency. LSERS answered the rule to show cause, contending that because Sean was still an active member of LSERS, he was not presently entitled to a benefit or refund from LSERS and, thus, there was nothing that could be seized at |3this time. LSERS maintained that when funds became due and payable to Sean, the consent judgment would be honored.

Following a hearing on the matter, the trial court denied Alysha’s request for a court-ordered immediate release of funds, concluding that because Sean was not entitled to benefits, he could not transfer to Alysha rights greater than those which he currently possessed. From this judgment, Alysha appeals, contending that the trial court erred in: (1) faffing to order that the funds on deposit with the retirement system be paid to Alysha, as child support obligee; (2) faffing to acknowledge that Sean, child support obligor, had the right to transfer his right, title and interest in his retirement fund to Alysha; and (3) failing to acknowledge that Sean has the right to waive any exemptions from seizure or any other impediments to the transfer of his retirement fund to Alysha.

DISCUSSION

The parties to the rule before us do not dispute the facts relevant to the issue presented. Specifically, the parties do not dispute that Sean is currently an active member of LSERS and, accordingly, is not entitled to a retirement benefit or to reimbursement of his contributions to LSERS at present. Thus, the issue before us is strictly a legal one, i.e., whether or not LSERS is obligated by the consent judgment entered into by Sean and Aysha to release the retirement funds held on deposit in Sean’s name when Sean is still currently an active member of LSERS and, thus, is not entitled to seek benefits or reimbursement of contributions himself at this time.

Aysha contends on appeal that the retirement fund at issue belongs to Sean, the child support debtor, and, as such, he has the right to transfer his right, title and interest in the fund to her in payment of child support arrearages. LSERS does not dispute that Aysha has a valid claim against |4Sean’s retirement funds when the funds become due and payable to Sean. Rather, it simply contends that because Sean is not currently eligible for benefits or refund of contributions, there are no payments due that may be remitted to Alysha at this time.

LSERS is a retirement system established to provide retirement allowances for school bus drivers, school janitors, school custodians, school maintenance employees and other school employees. LSA-R.S. 11:1001(A). Membership in LSERS is compulsory for all who become employees on or after August 1, 1962. LSA-R.S. 11:1116. A member of LSERS may become eligible for benefits upon attaining various ages if he has the requisite -'years of service corresponding with each retirement age. See LSA-R.S. 11:1141. Additionally, a member with five years of actual credited service may become eligible for disability retirement if the member becomes mentally or physically incapacitated for the further performance of his duties. LSA-R.S. 11:1147(B)(3)..

Regarding payment of LSERS retirement funds for a child support obligation, LSA-R.S. 11:292 provides that “any retirement allowance or benefit paid to any retiree under the provisions of any public retirement system shall be subject to garnishment or court-ordered assignment to pay child support.” (Emphasis added). A “retirement allowance” is a benefit payable to a LSERS member when he retires, and it is comprised of the sum of an annuity, which is the payment derived from the accumulated contributions of a member, and of a pension, which is the payment derived from money provided by the state or employing agency. LSA-R.S. 11:1002(4), (21), (24) & (25).

Thus, pursuant to LSA-R.S. 11:292, the benefit paid that can be subject to garnishment or assignment to pay child support is the benefit paid | sto a retiree. This statute makes no provision for release of employee contributions of an active member of a state retirement plan, who is not currently entitled to receive a benefit, in payment of a child support obligation.

With regard to withdrawal or refund of a member’s contributions prior to retirement, LSA-R.S. 11:1148(A) provides, in pertinent part:

Should a member cease to be an employee except by death or retirement under the provisions of this Chapter, he shall be paid, subject to the provisions of Subsection B hereof, such part of the amount of the accumulated contributions standing to the credit of his account in the annuity savings funds as he shall demand. No application for payment or refund of contributions by any person who has withdrawn from active service shall be certified by the employer until ninety days after resignation or termination,- and no payment shall be made until ninety days after the effective date of termination or resignation.

Thus, while LSERS may release a member’s contributions to him prior to the member attaining retirement status, LSA-R.S. 11:1148(A) specifically provides that no payment shall be made until ninety days after the member has resigned from employment or his employment terminated. There is no statutory provision authorizing LSERS to release a member’s contributions to him or on his behalf while he is still in active service and an active member of LSERS.

Nonetheless, in support of her contention that the trial court erred in failing to order LSERS to release the funds it holds in Sean’s name; Alysha argues that this court must also look to the provisions of LSA-R.S. 13:3881(D)(1), which is found in Title 13, Courts and Judicial Procedure, Chapter 18, Seizures in General. This statute provides as follows:

Except as provided in Paragraph 2 of this Subsection, the following shall be exempt from all liability for any debt except alimony and child support: all pensions, all tax-deferred arrangements, annuity contracts, and all proceeds of and payments under all tax-deferred arrangements and annuity contracts, as defined in Paragraph 3 of this Subsection.

| fiLSA-R.S. 13:3881(D)(1) (emphasis added). Alysha arg-ues that the use of the word “and” indicates that the Legislature intended both the corpus of the fund and any proceeds from the fund to be subject to seizure in satisfaction of an alimony or child support obligation.

However, we note that LSA-R.S. 11:1003, located in Chapter 3 of Title 11 of the Revised Statutes, which title specifically addresses Consolidated Public Retirement Systems, provides:

The right of a person to a pension, an annuity, or a retirement allowance, to the return of contributions, the pension, annuity, or retirement allowance itself, any optional benefit or any other right accrued or accruing to any person under the provisions of this Chapter, and the moneys in the various funds created by this Chapter are exempt from any state or municipal tax and exempt from levy and sale, garnishment, attachment, or any other process whatsoever, except as provided in R.S. 11:292, and shall be unassignable except as otherwise specifically provided in this Chapter. (Emphasis added).

As stated above, LSA-R.S. 11:292 authorizes garnishment or assignment of only a “retirement allowance or benefit paid,” neither of which is due while an employee is still in active service and an active member of LSERS. See LSA-R.S. 11:1002(25); LSA-R.S. 11:1141; LSA-R.S. 11:1147; LSA-R.S. 11:1148. Because LSA-R.S. 11:292 is the statute specifically directed to the matter at issue, ie., assignment of a right or interest in a LSERS retirement fund, it must prevail. City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 3352, 2000-1983, p. 4 (La.6/29/01), 791 So.2d 609, 612.

In further support of her argument, Alysha relies upon LSA-R.S. 11:291, which governs recognition of a community interest of a spouse in and division of “a benefit or a return of employee benefits” in a state |7retirement system. Alysha contends that if, pursuant to LSA-R.S. 11:291, any benefit or return of employee contributions shall be subject to the authority of the court in a partition of assets, a child support obligor should likewise have the same right to transfer any interest he may have in a state retirement fund to satisfy his child support obligation. However, we note that Subsection G of LSA-R.S. 11:291 specifically provides that “[a] state or statewide retirement system shall not pay any funds to any persons until such funds normally become payable as provided by the laws governing the retirement system.” (Emphasis added). Thus, while a spouse’s retirement funds may be subject to a court order in a community property partition, those funds are not payable to any person until the right to such a payment (either a benefit or refund of contributions) statutorily becomes due.

Finally, Alysha avers that the trial court should have recognized Sean’s right to waive any exemptions or other impediments to the transfer of the funds to Alysha. However, while Sean can authorize LSERS to release his retirement funds to Alysha, he cannot require LSERS to pay over these funds where LSERS is not authorized by statute to release the funds.

Additionally, while Alysha contends in her second assignment of error that the trial court erred in failing to acknowledge that Sean had a right to transfer his right, title and interest in his retirement fund to Alysha, we note that the trial court did not make any such determination. In fact, the trial court did not question the validity of the consent judgment entered into by the parties, wherein Sean transferred his interest in his LSERS retirement account to Alysha. Rather, the trial court merely concluded that Sean does not currently possess the right to a benefit that would be subject to the ^consent judgment. As acknowledged by LSERS, when a benefit or return of contributions becomes due, the parties’ consent judgment would dictate that those monies would then be payable to Alysha in satisfaction of Sean’s child support arrearages.

CONCLUSION

For the above and foregoing reasons, the May 29, 2002 judgment of the trial court is affirmed. Costs of this appeal are assessed against Alysha Black.

AFFIRMED.

      . Alysha similarly relies upon LSA-R.S. 20:33, which provides that all pensions and all proceeds of and payments under annuity policies and plans are exempt from liability for any debt except alimony or child support.


author: _[¿FOIL, J. hGAIDRY, J.,

text:
    WORD OF LIFE CHRISTIAN CENTER v. Mark WEST, Administrator, Ascension Parish Sales and Use Tax Authority State of Louisiana.
    No. 2003 CA 1399.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    Jeanne C. Comeaux, David Cassidy, Baton Rouge, for Appellee Plaintiff. -
    Frederick Mulhearn, Robert Rainer, Baton Rouge, for Appellants Defendants.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   _[¿FOIL, J.

The defendant, Mark West, Administrator of the Ascension Parish Sales and Use Tax Authority (“Collector”), challenges the trial court judgment that granted summary judgment in favor of the plaintiff, Word of Life Christian Center. That judgment abated the Collector’s tax assessment against Word of Life and ordered the Collector to refund the amounts paid under protest. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Word of Life purchased two aircraft for transportation to various religious functions, both in and out of Louisiana. Both planes were purchased and physically received out of state. The Collector issued two tax assessments on the planes for use taxes allegedly owed the parish. Word of Life paid the taxes under protest and filed suit for recovery of its payment.

Word of Life and the Collector filed cross motions for summary judgment concerning whether the Collector is entitled to use taxes on the use of the planes. Following a hearing, the trial court granted Word of Life’s motion for summary judgment and denied the Collector’s motion. This appeal by the Collector followed.

DISCUSSION

The Collector asserts two assignments of error on appeal. In his first assignment, he argues the trial court erred in holding that use tax was not due on tangible personal property purchased outside the Parish and then imported into the Parish and used there. He asserts that in such a situation, the cost price is subject to use tax, regardless of whether the property is used thereafter in interstate commerce, intrastate commerce, or both.

In his second assignment of error, the Collector claims that the trial court erred in applying the “ultimate use” test in a case not involving the consumption of tangible personal property. He asserts that the “ultimate use” test applies in cases when the objects of the tax are further processed |3into new objects for sale at retail, but does not apply when durable goods are used over and over, such as trucks and airplanes.

Word of Life directs this court’s attention to La. R.S. 47:305(E), which excludes from taxation property used in “bona fide interstate commerce.” For property used in interstate commerce, the taxable moment is when that property comes to rest in Louisiana and becomes a part of the mass of property in Louisiana. La. R.S. 47:305(E)(1). This court held in two previous cases that if an item is ultimately used in interstate commerce, then it has not come to rest and become a part of the mass of property in this state and, accordingly, is not subject to use tax. Shaw Group, Inc. v. Kennedy, 99-1871, pp. 5-6 (La.App. 1 Cir. 9/22/00), 767 So.2d 937, 939; Tigator, Inc. v. West Baton Rouge Police Jury, 94-1771, 94-1772, pp. 11-13 (La.App. 1 Cir. 5/5/95), 657 So.2d 221, 228-230, writs denied, 95-2126, 95-2172 (La.11/17/95), 663 So.2d 712. Word of Life attached the airplanes’ flight logs to its motion for summary judgment, showing that both planes are used more than 90% in interstate commerce. Thus, Word of Life asserts that because the ultimate use of the planes is in interstate commerce, they are exempt from use tax under La. R.S. 47:305(E).

The Collector argues that if the Shaw Group decision stands, persons from Louisiana will derive a positive advantage from going outside of the state to make purchases, thereby giving a substantial advantage to out-of-state merchants. The Shaw Group decision is based on an “ultimate use” test, which came about as a misapplication of the goal to place the tax burden on the ultimate consumer. The Collector argues no such test should apply here. He claims that Word of Life should have to pay use tax on its planes, just as it would have had to pay sales tax had it purchased the planes locally.

We are not persuaded by the Collector’s arguments. Rather, we agree with Word of Life’s position and find that its ultimate use of the airplanes was in Interstate commerce; therefore, the exclusion found in La. R.S. |447:305(E) applies in this case and no use taxes are owed. As such, we hold that under the law and jurisprudence, the trial court correctly granted summary judgment in favor of Word of Life.

For these reasons, we affirm the trial court’s judgment. Costs of this appeal are assessed to the appellant.

AFFIRMED.

GAIDRY, J., dissents with reasons.

hGAIDRY, J.,

dissents.

In my view, it is time for this Court to re-examine the basis of the relevant holdings in Tigator, Inc. v. West Baton Rouge Police Jury, 94-1771, 94-1772 (La.App. 1st Cir.5/5/95), 657 So.2d 221, cert. denied, 95-2126 (La.11/17/95), 663 So.2d 712, and Shaw Group, Inc. v. Kennedy, 99-1871 (La.App. 1st Cir.9/22/00), 767 So.2d 937. I agree with the well-reasoned argument of the Collector that the “ultimate use” test has no application to the situations at issue here, and that the planes came to rest in Louisiana, subjecting them to use taxation. See Cotten v. Collector of Revenue, 579 So.2d 499 (La.App. 4th Cir.1991); Vector Company, Inc. v. Benson, 491 S.W.2d 612 (Tenn.1973). The summary judgment in favor of the plaintiff, Word of Life Christian Center, Inc., should be reversed, and summary judgment rendered in favor of the Collector. I respectfully dissent.


author: | .CARTER, C.J.

text:
    Jonathan DAVIS v. FARM FRESH FOOD SUPPLIER.
    No. 2003 CA 1381.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      William R. Mustian, III, Metairie, for Plaintiff/Appellee, Jonathan Davis.
    Gary “Ted” Chapman, Amite, for Defendant/Appellant, Farm Fresh Food Supplier, Inc.

      Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .CARTER, C.J.

Defendant, Farm Fresh Food Supplier, Inc. (Farm Fresh), suspensively appeals a decision of the Workers’ Compensation Judge (WCJ) in favor of the claimant, Jonathan Davis, for benefits, penalties, and attorney’s fees. Davis answers this appeal seeking additional attorney’s fees for appellate representation. For the following reasons, we affirm the WCJ’s decision.

BACKGROUND

Jonathan Davis worked for Farm Fresh in both its plant and as a delivery truck driver on and off for a five-year period. On February 21, 2001, Davis filed a claim with the Office of Workers’ Compensation (OWC) for an injury received January 18, 2001. According to Davis, while making deliveries for Farm Fresh, the products inside the delivery truck shifted, causing him to crash the cab of the truck into a ditch. Lionel Dufour, the owner of Farm Fresh, denied an accident occurred.

Trial was held on May 1, 2002. On May 13, 2002, the WCJ signed a purported judgment, and Farm Fresh appealed to this court. This court held that because the judgment contained reasons and a decree that contradicted one another, it was not a decision with legal certainty. Davis v. Farm Fresh Food Supplier, 2002-1401 (La.App. 1 Cir. 3/28/03), 844 So.2d 352. Finding the judgment lacked the quality of a thing adjudged, the judgment was vacated, the appeal dismissed without prejudice, and the matter remanded to the OWC. Id.

Pursuant to this court’s remand order, the WCJ signed a judgment on April 4, 2003. The judgment awarded Davis temporary total disability | .benefits from January 18, 2001, through May 8, 2001, at the rate of $201.77 per week, plus medical expenses in the amount of $3,865.00, and assessed all costs against Farm Fresh. Pursuant to the applicable version of LSA-R.S. 23:1201 F, the judgment assessed penalties against Farm Fresh in the amount of $2,000.00 and awarded Davis $5,000.00 in attorney’s fees. Finding Farm Fresh violated the provisions of LSA-R.S. 23:1208 A, an additional $5,000.00 civil penalty was assessed pursuant to LSA-R.S. 23:1208 D.

Thereafter, Farm Fresh filed a motion for new trial. In support of its motion for new trial, Farm Fresh argued that Davis failed to prove his case by a preponderance of the evidence, that the imposition of $12,000.00 in penalties and attorney’s fees was excessive, and that LSA-R.S. 23:1208 is unconstitutional. The motion for new trial was denied; this appeal follows.

Farm Fresh alleges two assignments of error. First, Farm Fresh maintains the trial court erred in finding that Davis proved his ease by a preponderance of the evidence. Second, Farm Fresh challenges the assessment of penalties and attorney’s fees.

LAW AND ANALYSIS

Proof by a Preponderance of the Evidence

In order for a claimant to recover workers’ compensation benefits, he must prove by a preponderance of the evidence that a work-related accident |4occurred and that an injury was sustained. Bodiford v. Robinson Bros. Lincoln Mercury, 2002-1033 (La.App. 1 Cir. 3/28/03), 844 So.2d 272, 276. Farm Fresh suggests'Davis’s self-serving testimony is the only evidence that an accident occurred, and this alone is insufficient proof. However, a claimant’s testimony alone may be sufficient to discharge his burden of proof provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bodiford, 844 So.2d at 276. The WCJ’s determinations as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bodiford, 844 So.2d at 276.

Davis testified that shortly after leaving the Farm Fresh plant on the morning of January 18, 2001, the load in the delivery truck he was driving shifted, causing the cab of the vehicle to crash into a ditch. Approximately ten minutes after the wreck, a passerby stopped and allowed Davis to use her cell phone to contact his boss, Lionel Dufour. According to Davis, an angry Dufour arranged for a wrecker to remove the truck from the ditch. The tow truck arrived approximately thirty minutes later; the delivery truck was pulled from the ditch, and Davis completed all of his deliveries for the day. Davis identified the driver of the tow truck as Chicken Gaines.

According to Davis, the next morning Gerald Solomon, an employee of Farm Fresh, stopped by Davis’s house to pick Davis up for work. Davis told Solomon that he was not feeling well and would not be going to the |Roffice. Later that afternoon, Davis went to Farm Fresh to pick up his check. According to Davis, Dufour refused to give him his paycheck until he signed a statement stating he had quit his job, an allegation Dufour confirmed. Davis’s final paycheck included a $134.60 deduction. Davis explained the deduction was for the $125.00 cost of the wrecker and miscellaneous expenses. In contrast, Dufour denied deducting a wrecker fee, saying the $125.00 was for “borrowed cash.”

Dufour confirmed that Davis delivered his route on January 18, 2001, without missing a stop. However, in direct conflict with Davis’s testimony, Dufour denies that an accident occurred. Dufour testified that he never paid a wrecker fee, and Davis never told him he had a wreck or that he injured himself. When Davis failed to report to work the next morning, Dufour assumed Davis had quit. Both men agreed that over the years Davis had quit or been fired on several occasions.

In resolving this dispute, it was necessary for the WCJ to reach a factual conclusion regarding whether an accident occurred on January 18, 2001. Before an appellate court may reverse the factual determination of a WCJ, it must find from the record that a reasonable factual basis does not exist for the findings or, if there is a reasonable basis, that the record establishes that the findings are clearly wrong or manifestly erroneous. Teano v. Electrical Const. Co., 2002-2032 (La.App. 1 Cir. 5/9/03), 849 So.2d 714, 717. When factual findings are based on witness credibility, the appellate court must give great deference to the factfinder’s decision to credit or discredit a witness’s testimony. Id. Moreover, a factfinder’s decision to credit the testimony of one of two or more witnesses can | ¡^virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989).

The WCJ’s decision to discredit the testimony of Dufour is supported by the record. For example, when asked under oath if Farm Fresh had workers’ compensation insurance on January 18, 2001, Dufour responded: “No, sir.” Dufour then retreated from his earlier statement and admitted that Farm Fresh did have workers’ compensation insurance on the date of the accident and that he had lied under oath. Moreover, circumstances following the incident corroborated Davis’s testimony that an accident had indeed occurred.

In workers’ compensation cases, a disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident and the symptoms of the disability appear after the accident and continue to manifest themselves. Bodiford, 844 So.2d at 276. When there is proof of an accident and a following disability without an intervening cause, it is presumed that the accident caused the disability. Bodiford, 844 So.2d at 276.

Davis testified that he hit his head on the steering wheel when the delivery truck crashed into the ditch. Although his side was swollen, Davis testified that he had no obvious injuries to his face or head. After consulting with an attorney, Davis went to see George Anthon, a doctor of chiropractic.

Dr. Anthon’s deposition supports the conclusion that Davis was injured as the result of the accident. Dr. Anthon stated in his deposition that he first examined and treated Davis on January 23, 2001— five days after the accident. Consistent with Davis’s testimony, Dr. Anthon indicated that 17Pavis had no outward sign of injury, such as bruising, scratches, or cuts. Davis presented with neck pain, lower back pain, mid back pain, and headaches. Dr. Anthon indicated Davis tested positive for muscle spasms in the cervical and lumbar spine, an objective finding and a sign of underlying injury. Dr. Anthon conducted additional tests on Davis, ultimately concluding that Davis had an acute moderate cervical sprain, an acute moderate thoracic sprain, and an acute moderate lumbar sprain.

After a thorough review of the record, we find the WCJ had a reasonable basis for finding that Davis proved by a preponderance of the evidence that a work-related accident occurred and an injury was sustained. Dufour’s dubious testimony did not discredit or cast serious doubt upon Davis’s claim that an accident occurred. Moreover, Davis’s testimony is supported by Dr. Anthon’s objective findings of injury just five days after the accident.

Penalties and Attorney’s Fees

Pursuant to LSA-R.S. 23:1201 F, the trial court ordered Farm Fresh to pay penalties in the amount of $2,000.00 and attorney’s fees in the amount of $5,000.00. In addition, finding that Farm Fresh violated the provisions of LSA-R.S. 23:1208 A, Farm Fresh was assessed a civil penalty of $5,000.00, pursuant to LSA-R.S. 23:1208 D. Farm Fresh alleges these penalties and attorney’s fees are excessive. Conversely, Davis asks this court for an increase in attorney’s fees for the additional work required by this appeal.

Under LSA-R.S. 23:1201 F, an employee has the burden of proving his entitlement to statutory penalties, including attorney’s fees, due to the employer’s failure to timely pay workers’ compensation benefits. See Hooker v. Wal-Mart Stores, Inc., 38,244 (La.App. 2 Cir. 3/3/04), 867 So.2d 869, 878. To reasonably controvert a workers’ compensation claim so as to avoid the imposition of penalties and attorney’s fees, the employer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id.

Herein, the only evidence Farm Fresh offered to controvert Davis’s claim that an accident with resulting injury occurred was Dufour’s testimony — testimony rejected by the WCJ. Dufour acknowledged his failure to report Davis’s claim to Farm-Fresh’s workers’ compensation carrier and that he made no attempt to ascertain the extent of Davis’s injuries or medical expenses. Although Dufour first testified he did not receive a letter from Davis’s counsel, he then testified that he “probably just threw it away.”

A WCJ’s award of penalties and attorney’s fees under LSA-R.S.'23:1201 is a factual determination that should not be disturbed on appeal unless clearly wrong. Augustus v. St. Mary Parish School Bd., 95-2498 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1154. The record available to the WCJ contained sufficient factual information from which to conclude Farm Fresh did not reasonably controvert Davis’s claim and failed to provide benefits in accordance with the provisions of the workers’ compensation law. Its unreasonable failure to provide benefits triggered the imposition of penalties and attorney’s fees. We find no error in the WCJ’s award of statutory penalties and attorney’s fees under LSA-R.S. 23:1201 F.

The workers’ compensation statutory scheme also provides for the imposition of civil penalties when a person, for the purpose of defeating any | nworkers’ compensation benefit or payment, willfully makes a false statement or representation. LSA-R.S. 23:1208 A. The statute is broadly worded and encompasses any false statements or misrepresentations made to anyone when made willfully or deliberately for the purpose of obtaining or defeating benefits. See Davis v. AMS Tube Corp., 2002-2427 (La.App. 1 Cir. 12/31/03), 868 So.2d 141, 144. The relationship between the false statement and the. pending claim is probative in determining whether the statement was made willfully for the purpose of defeating benefits. See Id.

As observed earlier, Dufour lied under oath regarding whether he had workers’ compensation insurance at the time Davis was injured. In justifying his lie, Dufour explained: “The reason I told you I didn’t have any is because most lawyers with a fictitious claim like this particular one when they approach you, you tell them you don’t have any Workmen’s Comp, they leave you alone.” Dufour made an admittedly false statement solely for the purpose of defeating Davis’s workers’ compensation claim. These misrepresentations fall within the scope of LSA-R.S. 23:1208 A, and we find no error in- the WCJ’s award of statutory civil penalties and attorney’s fees.

In answering this appeal, Davis seeks additional attorney’s fees for appellate representation. The penalty and incentive to act in a particular- manner provided by an award of attorney’s fees lies in the imposition of the fees rather than in the amount of the fees awarded. Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721, 726. Therefore, a court should not take into’ consideration the degree of bad faith exhibited by an employer in determining the appropriate amount of attorney’s fees to be awarded. See Langley, 792 So.2d at 728. Rather, factors to be considered Imwhen fixing the amount of attorney’s fees to be awarded in workers’ compensation cases include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case. Lang ley, 792 So.2d at 727. We find the award of attorney’s fees in the sum of $5,000.00 adequately compensates counsel for all legal services provided, including appellate work.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the WCJ. Costs on appeal are assessed to Farm Fresh Food Supplier, Inc.

AFFIRMED.

      . The statute was amended by 2003 La. Acts, No. 1204 § 1.

      . Farm Fresh indicates a petition to declare LSA-R.S. 23:1208 unconstitutional was filed in the Nineteenth Judicial District Court with the caption Farm Fresh Food Supplier, Inc. v. Jonathan Davis, et al., docket number 507,-442. In its brief, Farm Fresh expresses its intent to appeal an adverse judgment in that case. The constitutionality of LSA-R.S. 23:1208 has not been raised in this appeal and, therefore, is not properly before this court.