author: |, SAUNDERS, J.

text:
    John Scott POUSSON v. Therese Ann Langley POUSSON.
    No. 03-0111.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.
    R. Scott McClain, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, John Scott Pousson.

      Michael R. Garber, Attorney at Law, Lake Charles, LA, for Defendant/Appellee, Therese Ann Langley Pousson.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   |, SAUNDERS, J.

John Pousson appeals the judgment of the trial court setting the amount of his child support obligation. For the reasons stated below, we affirm the ruling of the trial court.

FACTS

John Scott Pousson and Therese Ann Langley Pousson were married on August 15, 1986. Two children, Jonathan and Jacob, were born of the marriage. John filed for divorce on October 14, 1997. A judgment for divorce was granted on November 20, 1997, and the parties were granted joint custody of the children. Therese was designated domiciliary parent of both children, and John was ordered to pay child support in the amount of $222.00 per month.

On July 24, 2000, John filed a “Motion to Change Domiciliary Status,” seeking domiciliary custody of Jacob. Following court-ordered mediation and family counseling a stipulated judgment was filed on October 11, 2001. In the stipulated judgment each party was granted domiciliary parent status of one of the children. John was granted domiciliary custody of Jacob and Therese domiciliary custody of Jonathan. On October 11, 2001, a hearing officer calculated John’s child support obligation at $231.00 a month. The amount of child support was appealed, and the trial court heard the matter on January 17, 2002.

The trial court heard the parties’ arguments regarding the hearing officer’s calculation of child support. The parties stipulated that John’s monthly income is $2,830.00, and Therese’s monthly income is $1,489.00. Additionally, as a result of Therese’s disability each child receives $363.00 a month in social security benefits. In computing each parent’s child support obligation, the trial court deducted the $363.00 received by Jacob, domiciled with John, from Therese’s child support | ¡.obligation. However, in calculating John’s child support obligation for Jonathan the hearing officer did not deduct the same $363.00 in monthly income. As a result, the mechanical calculation of each party’s child support obligation using the worksheet indicated that John owes Therese $395.00 a month in child support, and Therese owes John $99.00 a month in child support. Offsetting the child support owed by each party, the court determined that John owes Therese a balance of $296.00 a month.

In his sole assignment of error John alleges the trial court erred by inaccurately interpreting La.R.S. 9:315.7.

DISCUSSION

The standard of review for child support awards is well established in this circuit, and others. “The trial court has great discretion in decisions concerning modifications of child support decrees, and such decisions will not be disturbed on appeal absent clear abuse of discretion. Stelly v. Stelly, 02-113 (La.App. 3 Cir. 6/26/02); 820 So.2d 1270.” Rougeau v. Rougeau, 02-484, p. 2 (La.App. 3 Cir. 10/30/02), 829 So.2d 1125, 1126. In Hudnall v. Hudnall, 00-0330, p. 7 (La.App. 1 Cir. 5/11/01), 808 So.2d 641, 646, the first circuit clearly set forth the standard of review for child support awards calculated using the child support guidelines set forth in the Louisiana Revised Statutes as follows:

The guidelines for determination of child support are set forth in La.R.S. 9:315.1, et seq., and apply to any proceeding to establish or modify child support filed after October 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of these guidelines is the proper amount of child support. La.R.S. 9:315.1. Generally, the trial court’s order of child support is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion. Campbell v. Campbell, 95-1711, p. 4 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 316.

|oThe trial court issued written reasons for judgment in which it notes that the 2001 amendments to La.R.S. 9:315.7 added Subsection C, to read as follows:

A. Income of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation.
B. The provisions of this Section shah not apply to income earned by a child while a full-time student, regardless of whether such income was earned during a summer or hohday break.
C. The provisions of this Section shall not apply to benefits received by a child from public assistance programs, including but not limited to Family Independence Temporary Assistance Programs (FITAP), food stamps, or any means-tested program.

The trial court further notes that when HB 1398 was initially introduced it also included a Subsection D, which stated: “The provisions of this Section shall not apply to social security benefits received by the child on account of the child’s own disability or the disability of a custodial or domiciliary parent or stepparent.” The court stated that, “it appears the House Committee on Civil Law and Procedure amended the Section to remove Subsection D regarding social security disability benefits.” The court found that this act by the legislature indicates its intent that the court has discretion under Subsection A to determine whether to include a child’s disability benefits as income to the child when calculating child support.

John argues that it was an abuse of discretion for the trial court to inconsistently apply the children’s $363.00 disability income when calculating each parent’s child support obligation. It is John’s position that by removing Subsection D, the legislature did not render the inclusion of a child’s income via social security disability payments permissive, but rather, it is mandatory and therefore the trial court was required to include the payments when calculating Therese’s obligation as well.

Therese argues that, under the clear language of the statute, La.R.S. 9:315.7(A) | ¿states that a child’s income “may” be considered as a deduction. She claims that the language of the statute is clearly permissive and does not require the mandatory inclusion of disability income as John claims. Therefore, it was within the trial court’s discretion to apply the disability benefits as income only as it saw fit.

In the written reasons for judgment the trial court explained its reasons for applying Jacob’s benefits as income on John’s child support worksheet, while refusing to do the same with Jonathan’s benefits on Therese’s' worksheet. The court stated:

After reviewing the jurisprudence and legislative history, the court in its discretion declines to reduce the child support obligation by the social security disability benefits received by Jonathan. The child receives the benefits due to an injury to Therese, the obligee. The benefits are provided to meet Jonathan’s needs due to Therese’s inability to work and provide. They arise from monies paid by Therese and her employer. The Court does not believe that John should be allowed to reduce his child support obligation by income Jonathan receives from social security because his mother is disabled and no longer able to work.

Louisiana Revised Statutes 9:315.1 clearly states that the court may deviate from the child support guidelines set forth in Sections 9:315 et. seq. Upon a finding that the application of the guidelines would not be in the best interest of the children, or would be inequitable to the parties, the trial court may deviate from those guidelines. La.R.S. 9:315.1(B). The court must provide written reasons for the deviation, which include a finding as to the amount of support that would have been required under a mechanical application of the guidelines. Id. The trial court made such a finding here and provided written reasons in this instance. In keeping with the clear legislative intent that courts have great discretion in determining child support matters, we agree with the trial court’s determination that it is ultimately at the discretion of the trial court to determine whether or not to include disability payments ^received by a child as income of the child in determining a parent’s child support obligation.

The factual circumstances of this case are quite unique, and we are unable to find case law dealing with a similar circumstance. However, we find no clear abuse of discretion by the trial court in its stated reasons for calculating the child support awards that would warrant a reversal.

DECREE

For the reasons stated above, we affirm the ruling of the trial court. The costs of this appeal are assigned to the appellant, John Pousson.

AFFIRMED.


source: Caselaw Access Project

author: |, PICKETT, Judge.

license: Public Domain

text:
    Justin Douglas HENDERSON v. Brian SELLERS, et al.
    No. 03-747.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.

      Thomas R. Hightower, Jr., Attorney at Law, Lafayette, LA, Counsel for Interve-nor-Appellee, Shelter Mutual Insurance Co.
    Marie Candice Hattan, Roy & Hattan, Lafayette, La, Counsel for Defendant-Ap-pellee, Allstate Insurance Co.
    David Michael Kaufman, David M. Kaufman Law Corp., Lafayette, LA, Counsel for Plaintiff-Appellee, Justin Douglas Henderson.
    Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, Counsel for DefendanL-Ap-pellee, Yvonne Sellers.
    Christopher Luke Edwards, Lafayette, LA, Counsel for Defendanb-Appellant, Samuel Sellers and Brian Sellers.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   |, PICKETT, Judge.

Samuel Sellers, father of and on behalf of Brian Sellers, appeals the judgment of the trial court in which insurance coverage was denied and dismissing his cross-claim against Yvonne Sellers. Yvonne Sellers answers the appeal and claims the trial court erred in dismissing her insurer, failing to find comparative fault on the part of the plaintiff, and awarding excessive general damages.

STATEMENT OF THE CASE

This case had its genesis in a fight between Brian Sellers, a 17-year-old minor at the time, and Justin Henderson. This court described the basics of the fight in a previous opinion rendered in this case:

On August 21, 1998, Justin was involved in an altercation with the minor child of Mr. Sellers, Brian Sellers. Brian broke Justin’s jaw during a fight. Yvonne Sellers (Ms. Sellers) and Mr. Sellers are Brian’s divorced parents. The original divorce decree awarded Mr. and Ms. Sellers joint custody of the Sellers’ four minor children and named Ms. Sellers as the domiciliary parent. In 1998, however, when Brian was almost seventeen years old, he went to live with Mr. Sellers. By consent judgment, Mr. Sellers was designated domiciliary parent of Brian. Ms. Sellers was given physical custody of Brian on the weekends that Mr. Sellers did not have physical custody of the other children. All of the provisions of the 1991 “Joint Custody Plan” remained in effect including the following paragraph:
Responsibility for the acts of the minor children shall be borne by the parent in custody at the time of the applicable act or acts. Said responsibility shall include damages occasioned by the acts of the minor children as contemplated in Louisiana Civil Code Article 2318.
On the night of Brian’s altercation with Justin, he was visiting with his mother, Ms. Sellers, pursuant to her visitation rights established in the Sellers’ joint custody plan.

Henderson v. Sellers, 01-529, p. 2 (La.App. 3 Cir. 12/5/01), 815 So.2d 853, 854-55.

li>The issue before the court in the earlier opinion involved a summary judgment granted in favor of Brian’s father, Samuel. The trial court granted summary judgment and dismissed Samuel and his insurer, Shelter Insurance Company (Shelter), finding that the custody agreement was binding and since Yvonne had custody of Brian on the night of the fight, Samuel was not liable. This court reversed. While we found there were no genuine issues of material fact and Yvonne did in fact have custody of Brian on the night of the incident, we held that the custody agreement, while valid as between the parties, was not binding on third parties such as the plaintiff. Samuel’s only rights under the custody agreement were rights of indemnification. The cause was remanded to the trial court for a trial on the merits. No writs were sought from the supreme court, and that decision is final.

A trial on the merits was held. The trial court held that Brian committed an intentional tort, and thus Shelter and Allstate Insurance Company (Allstate), Yvonne’s insurer, were not liable under their policies. It also held that Samuel and Yvonne were solidarity liable for special damages of $4,670.00 and general damages of $25,000.00 plus court costs. Finally, the court found that Samuel, and not Yvonne, had custody of Brian on the night of the incident, and thus Yvonne could seek indemnification from Samuel.

Both Henderson and Samuel Sellers filed motions for devolutive appeal, but Henderson has not pursued an appeal. Yvonne Sellers has answered the appeal filed by Samuel Sellers.

ASSIGNMENTS OF ERROR

Samuel Sellers has alleged five assignments of error:

|al. The district court erred as a matter of law in not applying the law of the case doctrine to facts that were clearly established.
2. The district court erred as a matter of law in not applying the principle of judicial confession.
3. The district court was clearly wrong in finding that Brian Sellers not under the custody/control of his mother the night of the incident.
4. The district court erred as a matter of law in denying the defendant’s/appellant’s Motion for New Trial, despite having new evidence.
5. The district court was clearly wrong in finding that Brian Sellers knew or should have known that this type of injury could likely have occurred from this type of act.

Answering the appeal, Yvonne Sellers alleges three assignments of error:

1. The trial court erred in releasing Allstate Insurance Company, the issuer of the homeowner’s policy of Yvonne Sellers, from liability.
2. The trial court erred in failing to find fault on the part of Justin Henderson for the incident of August 21,1998.
3. The trial court erred in awarding general damages in the amount of $25,000.00. Such an award is grossly excessive and does not comport with current jurisprudence.

DISCUSSION

Based on the facts adduced in the summary judgment proceeding below, the trial court determined that Yvonne Sellers had custody of Brian Sellers on the night of the incident. This court accepted that finding of fact when we reviewed the grant of summary judgment, but reversed based on a finding that the trial court improperly | interpreted the effect of the custody agreement as to third parties. At the trial on the merits, the same trial judge reversed himself after hearing the testimony of Brian and Yvonne, and found that Samuel had custody. Thus, Yvonne can file a claim for indemnification against Samuel, rather than the reverse. On appeal, Samuel argues that the trial court should be bound by its previous findings of fact and this court’s acceptance of those findings. He argues in his first two assignments of error that either the “law of the case” doctrine or judicial confession should apply. In the third, he asserts that the trial judge erred in finding Brian was in Samuel’s custody.

Law of the Case

In Cree Oil Co. v. Home Ins. Co., 94-1219, p. 17 (La.App. 3 Cir. 3/8/95); 653 So.2d 620, 629, writ denied, 95-1554 (La.9/29/95); 660 So.2d 875, this court discussed the law of the case doctrine (quoting Dodson v. Cmty. Blood Ctr. of La., Inc., 633 So.2d 252, 255 (La.App. 1 Cir.1993), writs denied, 93-3158 (La.3/18/94), 634 So.2d 850 and 93-3174 (La.3/18/94), 634 So.2d 851):

The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. See Brumfield v. Dyson, 418 So.2d 21 (La. App. 1st Cir.), writ denied, 422 So.2d 162 (La.1982). This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This doctrine is not an inflexible law, thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous. Brumfield v. Dyson, 418 So.2d at 22.

| RSamuel argues that he relied on the previous ruling in trial preparation, and did not intend on litigating the issue at the trial on the merits. The trial court found that Brian went to his mother’s house to press his clothes on the afternoon of the incident, and his mother offered him a place to stay for that night. Brian neither accepted nor rejected the offer, he simply indicated that he understood. Yvonne did not know that Samuel was out of town at Toledo Bend until later. Brian left no personal belongings at his mother’s house that day, and it was not her normal visitation weekend. Brian did spend the night at his mother’s house that weekend. The trial court concluded that Yvonne did not exercise supervision of Brian until after the incident, and thus the default custody arrangement applied, i.e., Samuel had custody.

The claim that Samuel was prejudiced because he believed custody would not be litigated has no valid basis. Yvonne’s attorney questioned Yvonne at the end of the first day of the trial and introduced the judgments relevant to custody and the consent custody plan into evidence. There is no objection in the record to this testimony or the introduction of the exhibits, and their sole relevance is to the issue of custody. Yvonne’s testimony carried over into day two of the trial, and Samuel’s trial attorney had an opportunity to cross examine Yvonne on the issue of custody on the second day.

The fourth circuit has held that uncontested facts in a summary judgment are not a substitute for facts introduced at a trial on the merits, and the “law of the case” doctrine does not apply. Roger v. Dufrene, 97-1946 (La.App. 4 Cir. 9/9/98), 718 So.2d 592. We adopt this sound reasoning. We note the record on the summary judgment proceedings is not included in this record, and we do not know what evidence was introduced in that hearing to substantiate the claim that Yvonne had | ficustody. The opinion of this court was primarily concerned with the interpretation of the custody agreement, the effect as to third parties, and the meaning of “custody” as set forth in the agreement. We determined that “custody” meant physical custody rather than legal custody. Given that definition, the trial court determined that Yvonne did not take physical custody of Brian until after the fight. Furthermore, this court specifically stated that Brian was at his mother’s house “pursuant to her visitation rights.” In fact, based on the testimony, it was not a weekend when Yvonne was scheduled to have visitation with Brian. This assignment of error lacks merit.

Judicial Confession

Samuel argues that Yvonne made a judicial confession that she had custody of Brian by adopting the plaintiffs Statement of the Case in his brief to this court on summary judgment. The statement in question indicated that Brian was visiting his mother on the night of the incident.

A judicial confession is defined in La. Civ.Code art. 1853:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

This court discussed the concept of a judicial confession in Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 02-266, p. 14 (La.App. 3 Cir. 4/2/03), 844 So.2d 380, 390:

In Jackson [v. Gulf Insurance Co., 250 La. 819, 199 So.2d 886, 890-91 (1967)], the court said: “[a]s a legal concept, the judicial confession is designed to dispense with evidence. It has the effect of withdrawing the subject matter of the confession from issue.” And, “it is of the nature of this kind of admission that it be, by intention, an act of waiver relating to the opponent’s proof and not merely an assertion made for some independent purpose.... ” Id. Finally, “[a] judicial confession under [the article] is a party’s admission, or concession, in a judicial 17proceeding of an adverse factual element, waiving evidence as to the subject of the admission.” Id.

The statement in question does not seem to have been intended to waive Yvonne’s opportunity to contest the issue of custody. This assignment of error lacks merit.

Manifest Error

As previously discussed, the trial court gave detailed reasons for finding that Samuel had custody the night of the incident. This court should not disturb those findings absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). We find no manifest error in the determination of custody.

Motion for a New Trial

In his fourth assignment of error, Samuel asserts that the trial court erred by refusing to grant a new trial. He argues that the statement of Jason Truxillo was not considered by the court. It was not considered because it was not introduced into the record during the trial, even though it was available to all parties, as it was taken by the sheriffs office four days after the incident.

Louisiana Code of Civil Procedure Article 1972 sets forth the peremptory grounds for a new trial:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

A trial court is granted great discretion in determining whether a Motion for a New Trial should be granted. Joseph v. Broussard Rice Mill, Inc., 00-628 (La.10/30/00), 772 So.2d 94. A reviewing court will only reverse that determination if there is an abuse of that discretion. Davis v. Coregis Ins. Co., 00-475 (La.App. 3 Cir. 12/27/00), 789 So.2d 7, writ denied, 01-0292 (La.3/30/01), 788 So.2d 1192.

The trial court did not abuse its discretion by refusing to grant a new trial for the purpose of introducing evidence that was available at the time of the trial. This assignment of error lacks merit.

Intentional Act Exclusion

Both Samuel, in his final assignment of error, and Yvonne, in her first, claim the trial court erred by finding that insurance coverage for the injuries sustained by Justin Henderson was excluded by the intentional act clause in the insurance contracts issued by Shelter and Allstate. They both claim that Brian was unaware of the damage a single punch could do and did not intend to break Justin’s jaw, so the intentional act exclusion in their respective insurance policies should not apply.

The Shelter policy issued to Samuel states, “We do not cover .... [b]odily injury or property damage expected or intended by an insured.” The Allstate policy issued to Yvonne contains a similar clause: “We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.”

In Breland v. Schilling, 550 So.2d 609(La.1989), the supreme court considered a similar exclusion in the context of a similar situation, a punch to the jaw that caused significant damage. The supreme court upheld a jury’s determination that while the punch was intentional, the damage it caused was not, and the exclusion in the insurance contract did not apply. The court made the following pronouncement to guide us in similar situations:

[9We hold, therefore, that when minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended “from the standpoint of the insured” within these parameters is a question of fact. Such factual determinations are the particular province of the trier of fact, in this instance the trial jury-

Id. at 614.

While the holding in Breland is still applicable, the supreme court has limited it to its facts, since the trial court found that the injuries sustained were far greater than normally expected (“freak”) when punching someone in the jaw. Yount v. Maisano, 627 So.2d 148 (La.1993).

Both the supreme court in Breland and Yount and this court in Desselle v. St. Paul Insurance Co., 95-1706 (La.App. 3 Cir. 9/18/96), 688 So.2d 1080, writ denied, 96-2516 (La.12/6/96), 684 So.2d 938, have recognized that great deference should be given to the finder of fact in these cases. The fact finder must examine the totality of the circumstances and the words and actions of the parties when reaching a conclusion. Holt v. Phipps, 98-1127 (La.App. 3 Cir. 4/21/99), 733 So.2d 693, writ denied, 99-1504 (La.9/17/99), 747 So.2d 1108.

In this case, Justin and Brian had several encounters before this accident, and there was “bad blood” between them. Before punching Justin, Brian had pushed Justin to the ground. The trial court found, based on the testimony at trial, that Justin was walking away at the time of the punch and described it as a “sucker-punch.” The court discounted Brian’s testimony, relied on by the appellant on the intent issue, as not credible. Further, there was medical evidence that Brian hit Justin from behind. |inDespite claims to the contrary, the court held that Brian, as a high school senior and athlete, should have known that a punch to the face could result in the type of injuries suffered by Justin.

There is no error in the trial court’s ruling on the issue of insurance coverage.

Comparative Fault

The allocation of percentages of fault among the parties is a factual determination which is subject to the manifest error standard of review. Clement v. Frey, 95-1119 (La.1/6/96), 666 So.2d 607. Furthermore, La.Civ.Code art. 2323, which mandates that the fault of all parties be measured, also states in paragraph C:

Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced.

Since the trial court correctly found that Brian committed an intentional tort, even if Justin were somehow negligent, his recovery could not be reduced. This assignment of error lacks merit.

General Damage Award

In her final assignment of error, Yvonne argues the general damages award is excessive. The trial court found that special damages were $4,670.00. He awarded general damages of $25,000.00. The trial court cited the pain of the injury and medical procedures, the fact that Justin’s jaw was wired shut for several weeks and he was a hungry seventeen year old who could not eat solid foods, two months of great pain, the embarrassment, his inability to play football in his senior year (he was the quarterback for his high school team), and the fact that he could not play baseball.

The trier of fact is afforded much deference in awarding damages, and an appellate court should not disturb that finding unless it finds an abuse of that Indiscretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). Considering the facts of this case, the nature of the injury, and the impact of the injury on this young man’s life, we do not find the trial court abused its discretion. For the foregoing reasons, we affirm the judgment of the trial court in all respects. Costs of this appeal are assessed equally between Samuel Sellers and Yvonne Sellers.

AFFIRMED.

WOODARD, J., concurs in the result.


author: | .COOKS, Judge.

text:
    Michael W. MITCHELL v. WINNFIELD HOLDING CORPORATION.
    No. 03-677.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.

      George Flournoy, Flournoy & Doggett, Alexandria, LA, Counsel for Plaintiff/Appellant, Michael W. Mitchell.
    Phillip Hendry, Johnson, Stiltner & Rahman, Shreveport, LA, Counsel for De-fendanVAppellee, Winnfield Holding Corporation.
    Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   | .COOKS, Judge.

STATEMENT OF THE CASE

This is a workers’ compensation appeal. Plaintiff, Michael Mitchell, was employed by Winnfield Holding Corporation, a corporation owning several companies, including Winnfield Funeral Home and Nurturing Nook Childcare Center. Mr. Mitchell was employed full-time for Winnfield Funeral Home and part-time for the Nurturing Nook. His average weekly wage at the funeral home was $344.27 and his monthly wage at the Nurturing Nook was $800.00.

On March 2, 2001, while setting up for a burial in Cloutierville, he was pulling a 270 pound grave liner to the gravesite. The ground was muddy and he slipped, injuring his lower back. The incident was witnessed by his co-workers and reported to his supervisor. Mr. Mitchell was initially seen by Dr. Breazeale, a family physician in Natchitoches. He was later referred to Dr. John Sandifer, an orthopedist, who diagnosed a chronic lumbar strain with intermittent nerve root irritation. Dr. Sandifer treated Mr. Mitchell until August 7, 2002.

The Louisiana Workers’ Compensation Corporation (LWCC) is the workers’ compensation insurance carrier for Winnfield Holding Corporation. Workers’ compensation benefits were initiated by LWCC based on Mr. Mitchell’s full-time employment at Winnfield Funeral Home. His part-time employment at the Nurturing Nook Childcare Center was not considered in the computation of benefits. Mr. Mitchell was paid $10,744.21 in indemnity benefits, medical benefits totaling $5,511.21 and vocational rehabilitation benefits totaling $1,837.94.

In January 2002, LWCC reduced Mr. Mitchell’s supplemental earnings benefits (SEB) based on a job search performed by Jeff Darby, a vocational rehabilitation consultant hired by LWCC. Mr. Mitchell continued to received SEB through the date |3of trial at the reduced rate. In February 2002, Mr. Mitchell filed a Disputed Claim for Compensation.

Trial on the merits was held on October 8, 2002. The workers’ compensation judge denied Mr. Mitchell’s claim for SEB, medical benefits and vocational rehabilitation and dismissed his claim. Mr. Mitchell filed this appeal presenting several issues for our review:

1. Whether the workers’ compensation judge erred in not including Mr. Mitchell’s part-time wages at the Nurturing Nook in the calculation for benefits.
2. Whether the workers’ compensation judge erred in concluding the medical evidence indicated Mr. Mitchell was capable of working at his former employment at Winnfield Funeral Home.
3. Whether the workers’ compensation judge erred in terminating all supplemental earnings, medical, and vocational rehabilitation benefits and in not imposing sanctions and attorney fees.

For the reasons assigned below, we reverse the decision of the workers’ compensation judge and order a reinstatement of SEB using the correct calculation of benefits, which should include both part-time and full-time wages.

LAW AND DISCUSSION

In a workers’ compensation case, appellate review of factual findings is governed by the manifest error standard. Godeaux v. Lems Chapman Constr. Co., 02-0025 (La.App. 1 Cir. 12/31/02), 836 So.2d 670. The workers’ compensation judge’s finding with regard to the credibility of the plaintiff is considered a factual finding. Campbell v. Benson BMW/Isuzu/VW, Inc., 98-861 (La.App. 5 Cir. 3/10/99), 735 So.2d 49. Thus, the findings of the worker’s compensation judge with regard to the credibility of the plaintiff are given great weight and will be upheld on appeal if there is a factual basis in the record to support the decision. Godeaux, 836 So.2d 670. In Godeaux, the appellate court stated:

|4The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary for a finding of manifest error.

Id. at 676 (emphasis added).

In this case, the workers’ compensation judge based his decision to terminate SEB almost entirely on his assessment of the credibility of Mr. Mitchell to the exclusion of the documented evidence, including medical evidence, found in the record. The workers’ compensation judge excluded Mr. Mitchell’s part-time employment in the computation of benefits, finding Mr. Mitchell was still working part-time. There is no evidence in the record to support this finding. Additionally, the workers’ compensation judge concluded Mr. Mitchell is able to work at his former employment at Winnfield Funeral Home performing heavy manual labor, a conclusion which is contrary to the medical evidence. We find the decision of the workers’ compensation judge terminating all SEB is unsupported by the record and, therefore, manifestly erroneous.

Calculation of Benefits

Mr. Mitchell earned $344.27 weekly from his full-time employment at Winn-field Funeral Home and $800.00 monthly from his part-time employment at the Nurturing Nook Childcare Center. Both companies were owned by the same individual, Ben Johnson. Benefits were paid to Mr. Mitchell using only the wage calculation from his full-time employment at Winnfield Funeral Home. Excluding the wages from his part-time employment was improper. Glynn v. City of New Orleans, 95-1353 (La.App. 4 Cir. 4/3/96), 672 So.2d 1112. In Glynn, the plaintiff was employed as a fire fighter for the City of New Orleans. In addition to his job [5with the City he worked for Delgado City College part-time and also received supplemental pay from the State of Louisiana. Mr. Glynn injured his back while working for the City of New Orleans. The court concluded: “Glynn’s additional revenues from the employment other than the City and his state supplemental pay were properly included in his earnings to calculate his SEB. See Jones v. Orleans Parish School Board, 370 So.2d 677 (La.App. 4 Cir.1979).” Id. at 1115.

The workers’ compensation judge concluded Mr. Mitchell failed to prove he lost his job at the Nurturing Nook as a result of the accident. He based this finding on the deposition of Lance Crappell, CPA, and on the Vehicle Detailing and Maintenance Contract signed by Mr. Mitchell on May 29, 2000 with the Nurturing Nook. Neither of these documents supports the workers’ compensation judge’s conclusion.

The Vehicle Detailing and Maintenance contract indicates Mr. Mitchell was paid $200.00 a month to wash and “perform detailing and preventative maintenance on the two rental vans assigned to the Ben D. Johnson Nurturing Nook Child Care Center.” The attachment to the contract reflects payment to Mr. Mitchell of $200.00 on November 30, 2000 for these responsibilities. In addition, Mr. Mitchell testified he cut the grass, mopped bathrooms and performed repair work on Nurturing Nook property. For these responsibilities the record reflects he received $600.00 on November 30, 2000. This document supports proof of employment at the Nurturing Nook and the amount of compensation but it does not support a finding that he continued to work after the accident which occurred on March 2, 2001.

The workers’ compensation judge also relied on the deposition of Lance Crappell, a CPA, who was payroll administrator for the Ben Johnson Educational Foundation. Attached to the deposition of Mr. Crappell was the Employment History | (;Report for Mr. Mitchell. The report reflects two payments to Mr. Mitchell after the date of the accident. The first payment was on March 31, 2001 for $800.00 and the second payment was on April 27, 2001 for the reduced amount of $400.00. Mr. Mitchell testified one check was for work performed prior to the date of the accident and the other check was for work performed by his brother-in-law and his nephew on his behalf. There are no other payments after April 27, 2001. This document does not support the workers’ compensation judge’s conclusion that Mr. Mitchell continued to work for the Nurturing Nook on a regular basis after the date of the accident.

Additionally, testimony from Lance Crappell indicates the bookkeeping at the Ben Johnson Educational Foundation contained “some irregularities or potentially fraudulent activities.... [T]he thing was losing so much money, and apparently had so many irregularities going on, that the board members of the Educational Foundation decided that it was not a venture that they wanted to continue, so they forced it to shut down.” The workers’ compensation judge completely disregarded Mr. Mitchell’s testimony regarding his employment at the Nurturing Nook and instead relied on admittedly unreliable payroll information to deny Mr. Mitchell’s claim for benefits.

The workers’ compensation judge found Mr. Mitchell concealed his part-time job at the Nurturing Nook from Annette Robinson, claims manager for LWCC. It is not clear what benefit Mr. Mitchell would obtain by concealing his part-time employment at the Nurturing Nook from Ms. Robinson since he was éntitled to have both part-time and full-time wages calculated in determining his benefits. The following exchange occurred between Ms. Robinson and Mr. Mitchell’s attorney regarding his part-time employment:

|7Q. .Would you tell the Judge then when I first made demand do you recall in my — letter I said that — I told, you that he was working at — at part-time employment? Tell the Judge what you did, if anything, to find out the nature of his work, the part-time employment, how much he was making and so forth.
A. I responded to your letter on March the 6th by way of letter advising you that we had received your letter of representation, that we were advised of the second job and to let you know that Mr. Mitchell had not recorded having worked a second job even though he was asked that question in his recorded statement. I requested any information for review that you might have on wages from the second job, asked you to submit that to me and we would be glad to review it and get back with you.
Q. Okay. But let me ask you what did you do to investigate? Did you contact the Nurturing Nook? This was Ben Johnson—
A. No, sir, I did not.

LWCC did not include the part-time wages in the calculation of benefits claiming they were unaware of Mr. Mitchell’s job at Nurturing Nook. However, Jeff Darby, the vocational rehabilitation consultant hired by LWCC, was aware of Mr. Mitchell’s part-time employment with Nurturing Nook in July 2001. Moreover, Mr. Mitchell knew Ben Johnson and knew Mr. Johnson owned both Winnfield Funeral Home and the Nurturing Nook. It is reasonable to conclude Mr. Mitchell believed the two companies were actually one and the same employer.

While LCWW claims it did not know about the part-time employment, Ms. Robinson testified even if she had known about the part-time employment, the workers’ compensation statute, as she reads it, entitled Mr. Mitchell to wages only up to forty hours per week. She stated: “And I indicated that to Mr. Flournoy in my letter, that I had given him the benefit of forty hours.” We find Mr. Mitchell’s part-time employment at the Nurturing Nook should have been included in the calculation of his benefits.

Medical Evidence

[sMr. Mitchell’s medical history indicates he had bilateral carpel tunnel surgery in 1998. As a result Dr. Sandifer estimated he had “approximately 5% permanent partial medical impairment of both upper extremities, secondary to the work related carpal tunnel syndromes and carpal tunnel releases.” Dr. Sandifer advised him to engage in no “repetitive lifting over 20 pounds. He also should avoid activities that involve repetitive wrist flexion or extension.” Mr. Mitchell returned to Dr. Sandifer’s office in July 7, 2000 for a flare up of his hands and wrists. Dr. Sandifer’s office notes on that date reflect the following:

Today, he has obvious swelling and tenderness in his hands and wrists. He has difficulty straightening his Angers out. I am sure that he has tendinitis of both hands and wrists with some median nerve irritation. He needs to be on restricted work activity with no lifting over 10 to 15 pounds and no repetitive wrist flexion extension activities. I placed him back in wrist splints and he needs to elevate his hands and wrists.
On April 2, 2001, Mr. Mitchell returned to Dr. Sandifer for treatment following his back injury at Winnfield Funeral Home. Dr. Sandifer diagnosed a chronic lumbar strain with intermittent nerve root irritation. An MRI taken on May 11, 2001 was normal. Dr. Sandifer ordered a FCE which was performed on August 14, 2001. The FCE report reflects the following:
Mr. Mitchell was able to demonstrate his dynamic lifting capacity at Medium level of physical demand. However, his test results indicate bilateral grip and pinch strength weakness as well as limitation in lumbar active range of motion. With these factors, and his low perceived level of function, a return-to-work status at a Medium level would not be possible. A [flight physical demand level would allow material handling in the 1 to 10 lb. range for 34 to 66% of the work day.

Dr. Sandifer’s office notes for September 7, 2001 provide:

Mr. Mitchell comes back and is still having a good bit of back pain and bilateral leg pain. I have reviewed his MRI Scan again and he obviously does not have any ruptured disc or anything that might need surgery. He probably could go back to some form of light to sedentary type work. He cannot go back to his prior employment because of the amount offending and lifting that he has to do.

Dr. Sandifer’s office notes of October 17, 2001 indicate:

Mr. Mitchell comes in and is basically having the same complaints as before with his back. I feel like he is not a candidate for any type of surgery. He could certainly go back to some form of light duty at this point and time. He probably should not do repetitive bending or lifting over 20 pounds. I have also reviewed several job descriptions today for approval or disapproval. I have refilled his medications also. He needs to continue on a good walking and exercise program. I feel like he is at MMI.

Dr. Sandifer’s office notes of December 18, 2001 reflect the following:

[Mr. Mitchell] could go back to some form of light duty with no repetitive bending or lifting over 20 pounds. I don’t feel like he can go back to his prior employment, which involved a great deal of heavy lifting.

Mr. Mitchell’s last visit with Dr. Sandi-fer was on August 7, 2002. Dr. Sandifer’s deposition testimony was consistent with his office notes. He testified:

I think he shouldn’t do repetitive bending at the waist. He shouldn’t lift over fifteen to twenty pounds. He shouldn’t stand for over forty-five minutes to an hour at a time up to five hours in an eight hour day. He probably shouldn’t sit over thirty to forty-five minutes at a time up to four to five hours in an eight hour day.... He probably — -if he’s driving, he may need to stop and get out and stretch every forty-five minutes to an hour or so.

The workers’ compensation judge found Mr. Mitchell could return to his employment at Winnfield Funeral Home. He stated:

Doctor Sandifer only released him from employment at the funeral home under the belief that there was no light-duty work available.
Subsequently Mr. Darby in his vocational rehabilitation efforts locates jobs that involve washing and detailing and waxing motor vehicles, precisely what Mr. Mitchell was doing at the Nurturing Nook. I really doubt that he did anything other for the Nurturing Nook but wash vans.
So he was capable of the light-duty work of washing vans. He was taken off of only heavy-duty work. It’s clear to this Court that if |1(lhad Doctor Sandifer known he has a job at the Nurturing Nook washing vans that Doctor Sandifer would have permitted him to continue that work. The records reflect he received some monies from the Nurturing Nook all the way through the end of April 2001.
There’s an FCE that says he can do light-duty work. His only explanation that he can’t do any work at all is his complaints of pain which are totally disregarded by this Court because he lacks complete credibility.
He has no objective medical evidence of-of any injury to his back. His neurological examinations are normal. His orthopedic examinations are normal except for the very beginning when he does have spasms and a positive straight leg raising test.
An MRI was performed, reported by Doctor Sandifer as normal. The MRI results from the radiologist are not in the records so there’s no indication that he has a bulging disk or even degenerative back disease.
Moreover Mr. Mitchell had carpal tunnel surgery as a result of prior employment with ConAgra. And in May of 1999 Doctor Sandifer gave permanent restrictions to Mr. Mitchell of not lifting over ten to fifteen pounds, stated that these were permanent restrictions. Well, these are the same restrictions that Doctor Sandifer has placed upon Mr. Mitchell after examining for this back problem.
And this Court concludes that he’s entirely uncredible as to his complaints. Observed him carefully during the trial, went through the records very carefully.
He has not shown this Court that he’s unable to do the same type of work he was able to do when he began his employment with the Winnfield Holding Corporation.

The record does not support the finding of the workers’ compensation judge that Mr. Mitchell could return to his prior employment. The medical evidence indicates Mr. Mitchell was capable of light duty work but was not capable of returning to Winnfield Funeral Home due to the heavy lifting. The workers’ compensation judge found he was capable of returning to his job at the Nurturing Nook because “I really doubt that he did anything other for the Nurturing Nook but wash vans.” There is no evidence in the record to support this conclusion. In fact, it seems unlikely that any employer would pay an employee $800.00 a month to wash l^and detail two vans. Mr. Mitchell testified, in addition to washing the vans (for which he was paid $200.00 a month), he maintained the property and buildings for the Nurturing Nook for which he received another $600.00 a month. If his job at the Nurturing Nook was considered light duty work, and was available to Mr. Mitchell, LWCC could have placed evidence of this fact in the record. It did not. In fact, no witness representing Winnfield Funeral Home or the Nurturing Nook testified at trial. While the medical evidence does support a finding Mr. Mitchell was capable of light duty work, we must determine whether LWCC met its burden of proving light duty job availability to justify a reduction in benefits to Mr. Mitchell.

Vocational Rehabilitation

In order for an employer to satisfy its burden of proving job availability the Louisiana Supreme Court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, stated:

[A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Id. at 557.

In June 2001, LWCC hired Jeff Darby, a vocational rehabilitation consultant, to perform a job search. Mr. Darby met with Mr. Mitchell three times during the summer and also met with Dr. Sandi-fer to discuss Mr. Mitchell’s work ability. Mr. Darby testified he located a cleanup person position at $6.00 per hour through Job |12Service and two porter positions. These jobs were available on October 3, 2001. Mr. Darby received approval of these jobs from Dr. Sandifer. He sent a certified letter dated October 3, 2001 to Mr. Mitchell notifying him of these jobs. He also spoke to Mr. Mitchell by telephone on October 11, 2001. Mr. Darby also located a van driver job. Mr. Mitchell did indicate he would apply for the van driver job and admitted to knowing the owner of the company.

Mr. Darby did a second labor market survey by contacting an assistant in the Natchitoches area to identify job leads. On October 10, 2001 he sent a second letter by certified mail to Mr. Mitchell. The letter indicated available jobs with Red River Janitors and Aramark, a food service contractor. Both jobs were on the Northwestern College campus. Mr. Darby received prior approval from Dr. Sandi-fer for these jobs as well. Mr. Darby received a response from James Jefferson at Red River Janitors who indicated Mr. Mitchell did not want an interview. At trial, Mr. Darby was questioned as to whether these jobs were simply job leads or job openings. Mr. Darby testified there were job openings:

Judge, it was my impression that they had job openings. And what I put in my letter to Mr. Mitchell is to apply for the jobs that are available. So I called it a job lead, because even if he applies-if he doesn’t apply timely then he would not even be considered for the job. So my-my emphasis is on the-the injured worker applying for this job, because on the date that I spoke with the employer then would accept his application.

Mr. Darby testified the clean-up person and the two porter jobs were full-time jobs. The college campus jobs were part-time with full-time potential. We find LWCC was justified in reducing Mr. Mitchell’s benefits based on the job search performed by Mr. Darby. The medical evidence supports a finding Mr. Mitchell was able to perform light duty work and Mr. Darby testified such work was available to him. LWCC reduced Mr. Mitchell’s benefits in January 2002 using the lowest paying |1sjob available at $5.15 per hour, forty hours per week. While LWCC was justified is reducing Mr. Mitchell’s benefits, the workers’ compensation judge went even further and terminated all SEB. We find this was error on the part of the workers’ compensation judge.

The purpose of SEB is to compensate an injured employee for the loss of wage earning capacity. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. Id. The evidence establishes Mr. Mitchell was earning approximately $2,100.00 a month prior to his accident performing primarily medium to heavy duty work. After the accident he was restricted to light duty work. He is entitled to SEB based upon the difference between his pre-injury average monthly wage and Ms post-injury earning capacity.

We reverse that decision of the workers’ compensation judge terminating all SEB. We order reinstatement of SEB benefits based upon the difference between Mr. Mitchell’s pre-injury wage, using both his full-time and part-time wages, and his post-injury earning capacity, which was determined to be light duty work. We also reverse the decision of the workers’ compensation judge terminating all medical benefits and order a reinstatement of medical benefits.

Penalties and Attorney Fees

LWCC miscalculated Mr. Mitchell’s wages using only his full-time employment. Ms. Robinson testified from her reading of the workers’ compensation statute Mr. Mitchell was only entitled to wages up to forty hours per week. In Ben v. Holtrachem, Inc., 00-635 (La.App. 3 Cir. 11/2/00), 772 So.2d 326, this court held:

The rule is well-settled that a workers’ compensation claimant is entitled to penalties and attorney fees if benefits are withheld. To avoid the imposition of penalties and attorney fees an employee’s right to compensation has to be reasonably controverted. La.R.S. 23:1201(F)(2).... [T]he proper method to calculate his AWW would be to give him credit for an eighty hour work week for the pay period ending May 16, 1993. Mr. Ben’s wages were not reasonably controverted but withheld because of miscalculations and the failure of LWCC to acquire written payroll records from Cal Chlor at the time of the accident.

Id. at 329-30.

Likewise, we find LWCC could have inquired from their insured about Mr. Mitchell’s part-time as well as full-time employment. Additionally, Ms. Robinson could have obtained the advice of counsel before interpreting the provisions of the workers’ compensation act on her own. Under the circumstances, we find Mr. Mitchell is entitled to penalties and attorney fees for LWCC’s failure to reasonably controvert his claim. Accordingly, we award a penalty of $2,000.00 and attorney fees of $5,000.00 for work at the trial level and $2,500.00 for work at the appellate level. Additionally, Mr. Mitchell asks for penalties for termination of vocational rehabilitation services. It does not appear from the record that the employer terminated vocational services. LWCC hired Mr. Darby on a contract basis to locate available jobs. Mr. Mitchell did not avail himself of those jobs. It is not clear from the evidence what other vocational rehabilitation services Mr. Mitchell is seeking from the employer. We do not that find the employer terminated vocational rehabilitation services or that Mr. Mitchell has demonstrated he made demand for vocational services which were then refused by the employer. Therefore, we decline to award penalties.

DECREE

Based on the foregoing review of the evidence, we reverse the decision of the 11sworkers’ compensation judge terminating all SEB and medical benefits. We reinstate SEB benefits based upon the difference between Mr. Mitchell’s pre-injury wage, using both his full-time and part-time wages, and his post-injury earning capacity, which was determined to be light duty work. We order a reinstatement of medical benefits, a $2000.00 penalty for improper calculation of benefits, and $7500.00 in attorney fees. All costs for this appeal are assessed to LWCC.

REVERSED AND RENDERED.


author: hPATRICIA RIVET MURRAY, Judge.

text:
    NEW ORLEANS REDEVELOPMENT AUTHORITY v. Frances Collins STROUGHTER, Individually and through Provisional Curator Adrian Stroughter; Estate of James W. Stroughter, through Administrator Joseph Neves Marcal, III; and the United States of America.
    No. 2003-CA-1085.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.
    Rehearing Denied Jan. 15, 2004.

      Christopher Gobert, Cade, Collins & Go-bert, New Orleans, LA, for Plaintiff/Appel-lee.
    James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge PATRICIA RIVET MURRAY).
   hPATRICIA RIVET MURRAY, Judge.

This is an expropriation proceeding. The primary issue before us is whether the trial court erred in denying the defendant-tax sale purchaser’s request for attorney’s fees pursuant to La. R.S. 19:201 based upon the plaintiff-expropriating authority’s dismissal of the proceeding. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this case basically are undisputed. Since 1971, Frances Collins wife of/and James W. Stroughter have been the record owners of the property located at 3701 Baronne Street, New Orleans, Louisiana (the “Property”). On May 31, 2000, the Administrative Adjudication Bureau of the New Orleans Health Department declared the Property blighted and eligible for expropriation; that determination apparently was not appealed. The Health Department referred the matter to New Orleans Redevelopment Authority (“NORA”), a governmental agency, which has the statutory authority to expropriate blighted properties.

[ ¡¿Pursuant to its statutory authority, NORA identified a prospective purchaser for the Property, Shelita Scott. Ms. Scott then commissioned the required appraisals. According to the appraisals, the Property was valued at $5,000. On December 8, 2000, NORA and Ms. Scott entered into an Agreement to Purchase and Sell the Property. Under that agreement, Ms. Scott agreed to purchase the Property at its appraised value and to renovate it within 270 days of her acquisition. Ms. Scott tendered the $5,000 for deposit into the registry of the court in the impending expropriation proceeding. The Agreement, however, was conditioned on NORA succeeding in expropriating the property.

On November 15, 2001, Wesley Alden d/b/a Crescent City Property Services (“Dr. Alden”) purchased the Property at tax sale from the City of New Orleans. However, the City did not execute a tax deed to Dr. Alden until July 31, 2002, and Dr. Alden did not record the tax deed until August 15, 2002.

By letter dated December 5, 2001, Dr. Alden informed NORA that he had purchased the Property at tax sale and that he had “begun the process of refurbishing” it. On December 7, 2001, NORA physically inspected the Property and found no work in progress. By letter dated December 10, 2001, NORA advised Dr. Alden that it would “continue its expropriation proceeding until there is evidence of work in progress and will not remove the subject property from its inventory until [it is] completely renovated.”

On March 13, 2002, NORA filed a petition to expropriate the Property. It named as defendants the record owners of the Property, Mr. and Mrs. Stroughter. ^Because Mr. Stroughter died in 1995, NORA named his estate as a party. Because Mrs. Stroughter’s whereabouts were unknown, NORA requested a curator ad hoc be appointed to represent her.

The trial was initially set for July 2, 2002. At some time before that date, NORA apparently obtained a tax certificate that indicated Dr. Alden had paid the taxes on the Property. As a result, on June 14, 2002, NORA filed a First Supplemental and Amending Petition for Expropriation adding Dr. Alden as an additional defendant, stating that he was the “purchaser of the referenced property for unpaid 1997 taxes assessed in the name of Mr. James W. Stroughter, as reflected by unrecorded tax sale from the City of New Orleans dated November 13, 2001.” At NORA’s request, the trial court continued and reset the trial for September 12, 2002.

On August 26, 2002, Dr. Alden answered, claiming to be the “owner” of the Property. He also filed several exceptions (lack of subject matter jurisdiction, prematurity, want of amicable demand, improper cumulation of actions, res judicata, no cause of action, and no right of action). Dr. Alden requested that the trial court hear his exceptions on September 12, 2002, the then scheduled trial date. On September 5, 2002, the trial court rejected that request, ruling that “[t]rial is continued without date by court. Mover should file a new motion to have the exceptions scheduled for Rule Day.”

|4On August 28, 2002, NORA re-inspected the Property and again found no work in progress; it remained blighted. Thereafter, the trial date was reset for December 16, 2002. On December 6, 2002, NORA once again inspected the Property and found that the Property was being renovated. NORA then moved to continue the trial without date. The trial court granted that request.

On January 14, 2003, the trial court granted NORA’s “Motion and Order to Dismiss Without Prejudice and to Withdraw Funds Deposited in the Court Registry” based on NORA’s representation that “the grounds for this action have been removed.” The court ordered that the expropriation action be dismissed with each party to bear its own costs and further ordered the $5,000 deposit be disbursed as follows: $640.60 to Ms. Stroughter’s curator, $406.88 to NORA’s counsel for costs advanced, $248.00 to the Clerk of Court, and the $3,704.52 balance to NORA.

On January 16, 2003, Dr. Alden filed a “Partial Opposition to Motion to Dismiss Without Prejudice and to Withdraw Funds Deposited in the Court Registry; and Motion by Alden for Award of Attorneys Fees and Costs.” Although Dr. Alden agreed that the grounds for the expropriation action had been removed and did not oppose the dismissal, he asserted that it should have been dismissed with prejudice. Citing La. R.S. 19:201, he further asserted that he is entitled to an award of reasonable attorney’s fees and costs payable out of the money deposited into the registry of the court.

IsNORA opposed Dr. Alden’s request for attorney’s fees. It argued that La. R.S. 19:201 only avails an “owner” of the property in a failed expropriation case and that it does not avail an unrecorded tax purchaser. Alternatively, NORA argued that “absolutely nothing Dr. Alden’s attorney did had anything to do with the outcome of this case.”

On March 10, 2003, the trial court issued an order overruling Dr. Alden’s partial opposition to dismiss without prejudice and denying his motion for an award of attorney’s fees and costs. At the February 28, 2003 hearing on Dr. Alden’s motion, the trial court rendered the following oral ruling, which it indicated included its reasons for judgment:

The motion to dismiss with prejudice and the motion for attorney’s fees is denied. It is axiomatic in Louisiana law that an ownership interest in real property cannot be acquired except by a written act. In the case at bar, Dr. Alden did not have a written act until July 31, 2002; and he lacked a recorded interest in the property until August 15, 2002, approximately five months after the initial expropriation action had been filed. Therefore, it is undisputed that prior to August 15, 2002 Dr. Alden’s interest in 3701 Baronne Street had been utterly null and void as to third parties, such as NORA. After August 15th, in the opinion of this Bench, Dr. Alden did not become the property’s “owner” as contemplated by Revised Statute 19:201; he was a tax purchaser of record, whose ownership interest is imperfect in the sense that the owner’s interest is still subject to the right of redemption of the original owner, and until that right is extinguished, the title is not — the title to the property is not quieted. In fact, that very provision is articulated in the tax sale of Dr. Alden. Further, this court will take judicial notice of the fact that it handles between three and five expropriation cases every four to six weeks.
So, it literally has handled hundreds of expropriation eases. In each case, the testimony is that prior to the NORA agency going forward an inspection is done of the property and when that inspection demonstrates that the work is being done, or that the blight is in fact being removed, NORA routinely dismiss their action, and they dismiss it without prejudice, for the very reason that the purpose for | fiwhich the expropriation began is no long [sic] there, or is in a process of being removed.
The court doesn’t see any difference in this case. And, for the aforementioned reasons, the court denies the motion to have this matter dismissed with prejudice and to award attorney’s fees.

From the above ruling, Dr. Alden appeals.

DISCUSSION

At the outset, we find no merit to Dr. Alden’s argument that the trial court erred in dismissing the action without prejudice. The controlling provision is La. C.C.P. art. 1671, which provides:

A judgment dismissing an action without prejudice shall be rendered upon application of plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

The trial court is given considerable discretion in granting a motion to dismiss after a defendant’s appearance. La. C.C.P. art. 1671, Comment (b).

In addressing this issue, we find our reasoning in Parish of Jefferson v. Harimaw, Inc., 297 So.2d 694 (La.App. 4 Cir.1974), instructive. There, the defendant argued that the trial court erred in granting the request of the plaintiff political subdivision to dismiss the expropriation proceeding without prejudice. Rejecting that argument, we reasoned:

The statute [La. C.C.P. art. 1671] clearly vests in the court discretion as to the disposition of an ex parte application after a general appearance. To dismiss this suit with prejudice would terminate forever the right of the plaintiff political subdivision to exercise its statutory right to expropriate the property. LSA-R.S. 19:2. A dismissal ‘other than without prejudice’ as urged by defendant would undeniably be an abuse of discretion.

Harimaw, 297 So.2d at 695. Continuing, we commented that “[t]he very object of a dismissal without prejudice is to return the parties to a Status quo ante.” Id. |7Likewise, we find no abuse of discretion in the trial court’s granting NORA’s request to dismiss the instant expropriation proceeding without prejudice.

As noted at the outset, the principal issue presented on this appeal is whether the trial court erred in denying the defendant-tax sale purchaser’s (Dr. Alden’s) request for attorney’s fees pursuant to La. R.S. 19:201 based upon the plaintiff-expropriating authority’s (NORA’s) dismissal of the proceeding. The trial court, agreeing with NORA, denied Dr. Alden’s request based upon its finding that the term “owner” as used in La. R.S. 19:201, quoted below, does not include a tax sale purchaser such as Dr. Alden. We find it unnecessary to decide that legal issue given the facts of this case. Instead, we find that even assuming, arguendo, that Dr. Alden qualifies as an “owner” under the statute, he nonetheless is not entitled to an award of attorney’s fees under the facts of this particular case.

Recognizing the reality that a dismissed expropriation proceeding can result in a monetary loss in the form of attorney’s fees to the defendant-owner, the Legislature enacted La. R.S. 19:201, requiring the award of attorney’s fees in certain discontinued expropriation proceedings. St. Tammany Parish Hosp. Service Dist. No. 2 v. Schneider, 2000-0247, pp. 8-9 (La.App. 1 Cir. 5/11/01), 808 So.2d 576, 584; see also State by Mondale v. Nelson, 267 Minn. 70, 73, 125 N.W.2d 166, 168 (1963)(noting that the purpose for such provisions is “to protect owners from 1 sthe futile and unnecessary trouble and expense of condemnation proceedings which are ultimately discontinued or abandoned.”) La. R.S. 19:201 provides:

A court of Louisiana having jurisdiction of a proceeding instituted by the State of Louisiana, a parish, a municipality or an agency of any of them vested with the power of expropriation, to acquire real property by expropriation, shall award the owner of any right, or title to, or interest in such real property such sum as will, in the opinion of the court, reimburse such owner for his reasonable attorney fees actually incurred because of the expropriation proceeding, if the final judgment is that the plaintiff cannot acquire the real property by expropriation or if the proceeding is abandoned by the plaintiff. Any such award shall be paid from the same funds from which the purchase price of the property would have been paid.
The rights of the landowner herein fixed are in addition to any other rights he may have under the Constitution of Louisiana.

Although La. R.S. 19:201 contains the mandatory word “shall,” it also contains the modifier “reasonable” and the phrase “in the opinion of the court.” The Legislature thus clearly provided the trial court with some discretion in determining whether it is reasonable to award attorney’s fees. See Schneider, supra. Similar to the argument advanced by Dr. Alden, the defendant in Schneider argued that the Legislature’s use of mandatory language in La. R.S. 19:201 required the trial court to award all the attorney’s fees he incurred and removed from the court its discretionary authority over such awards. Rejecting that argument, the court reasoned that it “ignores another key word in the statute, that being the word ‘reasonable,’ which immediately precedes the word ‘attorney fees’ in the sentence.” Schneider, 2000-0247 at p. 13, 808 So.2d at 587. Continuing, the court reasoned that “[rjegardless of the language of the statutory authorization for an award of attorney fees or the method employed by the trial court in making such an award, courts may inquire as to the reasonableness of attorney fees by considering: [inter alia] [i] the ultimate result obtained ... and [ii] the court’s own | gknowledge.” Id. (citing Rivet v. State, Dep’t of Transp. and Dev., 96-0145, pp. 11-12 (La.9/5/96), 680 So.2d 1154, 1161).

A trial court’s determination of the reasonableness of attorney fees is a factual one. Applying the latter two factors— ultimate result obtained and trial court’s own knowledge — to the facts of this particular case, we find it was reasonable for the trial court not to award any amount of attorney’s fees to Dr. Alden.

First, the ultimate result obtained was dismissal of the proceeding without prejudice. NORA argues that “it was not anything Dr. Alden’s attorney ever did, but what Dr. Alden’s carpenters finally did that mattered.” We agree. Indeed, it was Dr. Alden’s delay in getting his carpenters to work that prompted the commencement and continuation of this expropriation proceeding for over a year. Although Dr. Alden wrote NORA on December 5, 2001 and advised that he had commenced renovating the Property, it was not until over a year later (December 2002) that such renovations were actually commenced. Indeed, NORA conducted two inspections in the interim and found no work in progress. NORA ultimately dismissed this proceeding because on its third inspection it found the Property had in fact been renovated and the blight removed. Hence, the ultimate result cannot be attributed to Dr. Alden’s attorney’s actions.

As to the second factor, the trial court’s reasons, quoted above, reflect that it took judicial notice of the fact that NORA routinely dismisses these expropriation actions when it learns through inspection that the blight is being removed. NORA expressly communicated this policy to Dr. Alden in the December 10, 2002 letter, which stated that NORA will “continue its expropriation proceeding until there is evidence of work in progress.” Likewise, the trial court stated in its oral ruling, |inquoted above, that before NORA proceeds with an expropriation, it inspects the property. When that inspection reveals that the work is in progress or that the blight is in fact being removed, NORA routinely dismisses its action. This is precisely what occurred here. In December 2002, NORA inspected the property in preparation for the upcoming trial date, found renovations had been made, and dismissed the action.

In sum, we find it was reasonable for the trial court to award no attorney’s fees to Dr. Alden. Any delay in achieving dismissal can be attributable only to Dr. Alden’s delay in commencing the renovations to remove the blight. But for Dr. Alden’s delay of over a year to begin the renovation, the expropriation proceeding would not have been pursued. We thus find no error in the trial court’s denial of Dr. Alden’s request for attorney’s fees.

DECREE

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

AFFIRMED.

      . A curator was appointed, and reported that Ms. Slaughter was interdicted in 1999, presently is residing in a local nursing home, and has no interest in recovering the Property.

      . To the extent Dr. Alden's appeal is based on the trial court’s earlier decision dated January 14, 2003, granting the motion to dismiss without prejudice, we find it not properly before us. Nonetheless, the trial court expressly ruled on this issue in the judgment that is properly before us on appeal.

      . Although La. R.S. 19:201 is not conditioned on the reasonableness of the expropriating authority’s action, we note, contrary to Dr. Alden’s suggestion of bad faith, that NORA's actions in bringing and ultimately dismissing the expropriation action were reasonable. NORA’s purpose in commencing this proceeding was to accomplish the public purpose of getting this blighted property back into commerce by renovating it. As an expropriating authority, NORA had the right to rely on the public records in determining the identity of the property owners it was required to name as defendants. See State Dep’t of Transportation & Development v. Jacob, 483 So.2d 592, 596 (La.1986)(noting that expropriating authority “need only name those defendants whose interests appear in the public records.”) NORA thus was reasonable in relying on the public records to name Mr. and Mrs. Stroughter as defendants. NORA also was reasonable in continuing the proceeding after investigating Dr. Alden's claim that he had begun renovating the Property and discovering it to be untrue. Finally, NORA was reasonable in ultimately dismissing the proceeding when its third inspection revealed that the renovations finally were being made.