author: | ¡.PARRO, J.

text:
    IMPERIAL TRADING CO., INC. v. Michael J. UTER, Jack G. Menzie, et al.
    No. 2001 CA 0506.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied March 28, 2003.

      Michael T. Tusa, Jr., Kelly M. Rabalais, LeBlanc, Tusa & Butler, L.L.C., Metairie, for Plaintiff-Appellee Imperial Trading Co., Inc.
    E. Wade Shows, Shows, Cali & Berthe-lot, L.L.P., Baton Rouge, for Defendant-Appellant Michael J. Uter.
    Daniel D. Holliday, III, Long Law Firm, L.L.P., Baton Rouge, for Defendants-Appellants Jack and Connie Menzie.
    Before: CARTER, C.J., PARRO, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡.PARRO, J.

Certain members of two limited liability companies appeal from a judgment against them individually in a suit on an open account by a supplier of the limited liability companies, as a result of money removed from v'arious checking accounts of the companies. For the following reasons, the judgment of the trial court is reversed in part and affirmed in part.

Facts and Procedural History

In 1992, Wayne Bunch (Bunch) and Thomas Harmon (Harmon) were operating several Tobacco Mart stores in Louisiana. Each of their stores was a separately organized legal entity, but seemingly all worked under the guise of Tobacco Mart, Inc. Many of the products sold by these Tobacco Mart stores were supplied by Imperial Trading Company, Inc. (Imperial). In dealing with Imperial, Bunch and Harmon were required to personally guarantee amounts owed on open account. Attorney Michael J. Uter (Uter) represented Bunch and Harmon in the organization of their Tobacco Mart entities.

Being intrigued by the opportunity for success, in 1992, Uter contacted Jack Men-zie (Menzie), whom he had represented in several real estate transactions in the past, about the idea of opening additional Tobacco Mart locations in Louisiana and other states. Menzie and his wife, Connie S. Menzie (Ms. Menzie), agreed to inject money into the proposed venture. On October 21, 1992, $113,244.71 of Ms. Menzie’s money was deposited into Uter’s client trust account for investment in the tobacco business. This money was then deposited into the checking accounts for various stores to assist with start-up expenses. Uter borrowed up to $25,000 of Ms. Men-zie’s money, either directly from his client trust account or from various store checking accounts that had been opened.

On advice of their accountant, Uter organized the ownership of these stores through limited liability companies, rather than individual corporations. Articles of [.«¡organization and an initial report were prepared by Uter and filed with the secretary of state’s office on October 27, 1992, for Tobacco Mart of Vidalia, L.L.C. (Vida-lia L.L.C.) and on November 4, 1992, for Tobacco Mart of Mississippi, L.L.C. (Mississippi L.L.C.). Each of the articles of organization indicated that a written operating agreement was executed contemporaneously with it. In the initial reports for these organizations, Uter was listed as the registered agent for service of process and the initial manager. Tax returns disclosed ownership of Vidalia L.L.C. and Mississippi L.L.C. in Bunch (12.5 percent), Harmon (12.5 percent), Ms. Menzie (36.5 percent), Brennan Uter (36.5 percent), Menzie (1 percent), and Uter (1 percent).

Subsequently, Uter and Menzie were introduced to Imperial’s president by Bunch and Harmon. In light of Bunch and Harmon’s recommendation that Imperial do business with Uter and Menzie and considering the potential for profit, Imperial established a line of credit in the amount of $50,000 for the purchase of products in favor of each of the following Tobacco Mart stores to assist with the start-up of these businesses: Vidalia, Vicksburg, Brookhaven, Greenville, McComb, 58 Crossing, Brainard, Signal, Shallowford, and Northgate. The indebtedness assoei-ated with these lines of credit was evidenced by separate promissory notes signed on either June 23, 1993, or September 1, 1993, by Uter and Menzie, in a dual capacity, individually and on behalf of the specified store. Security was given for the payment of these notes by a general security agreement also executed by Uter and Menzie in a dual capacity. On none of these documents, which had been prepared by Imperial, was it disclosed that these stores were doing business as limited liability companies.

On August 12, 1993, articles of organization and an initial report were filed with the secretary of state regarding Tobacco Mart of Tennessee, L.L.C. (Tennessee L.L.C.). According to tax returns, Tennessee L.L.C. was owned by Ms. Menzie (49 percent), Brennan Uter (49 percent), Menzie (1 percent), and Uter (1 percent). The articles of ^organization referenced the contemporaneous execution of a written operating agreement. Relative to the store that was to be opened in Battlefield, Tennessee, a note dated January 13, 1994, evidenced indebtedness in the amount of $41,561.93 payable to Imperial.

In all, Imperial supplied 14 Tobacco Mart stores that were located in three different states — Louisiana, Mississippi, and Tennessee. These particular Tobacco Mart stores were opened in 1993 and 1994, were managed by Uter and Menzie, and were reportedly owned by Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C., depending on their location. From March 30,1993, through May 3,1994, checks were written on Tobacco Mart accounts to Uter totaling $28,057.

In the summer of 1994, Uter was contacted by an Imperial representative regarding the payment on their open accounts and the possible termination of delivery of products. Around that same time, Menzie and Ms. Menzie decided they would withdraw from the businesses because of the financial status of the businesses. In June 1994, Ms. Menzie withdrew $263,852.48 from various Tobacco Mart checking accounts, which she asserted was a return of her investment and/or repayment of the loans she had made to the venture, with eight percent interest.

In light of financial concerns, the assets of the Tennessee stores were sold by Men-zie to a third party in June 1994, and the sales proceeds were given to Imperial as payment on their accounts. After proper credit was given by Imperial, the Tennessee stores still owed $273,178.86 to Imperial on open account. In an effort to keep the Vidalia and Mississippi stores as a going concern, Uter began negotiations with Imperial, Bunch, Harmon, and Men-zie. Based on Vidalia L.L.C. and Mississippi L.L.C.’s failure to timely pay on their open accounts, their stores were placed on a C.O.D. basis until Uter made other arrangements with Imperial for payments on their note payable accounts and open accounts. Once an agreement was reached concerning the continued ^operation of these stores, Imperial requested a personal guaranty from Uter, Bunch, and Harmon relative to Vidalia L.L.C. and Mississippi L.L.C.’s open accounts accruing after July 1,1994.

On July 1, 1994, by verbal agreement, the Menzies withdrew from the Tobacco Mart operations in Louisiana and Mississippi. Operating agreements for Vidalia L.L.C. and Mississippi L.L.C., executed that same day, revealed the following ownership interests: Bunch — 25 percent, Harmon — 25 percent, Uter — 1 percent, and Brennan Uter — 49 percent. When this transition occurred, Vidalia L.L.C. and Mississippi L.L.C. owed Imperial a total of approximately $263,000 on open account. With the change in ownership, Bunch began to participate in the daily activity of the five remaining stores, which belonged to Vidalia L.L.C. and Mississippi L.L.C.

After failing in its attempt to work out a payment arrangement with Uter and the Menzies for amounts owed by the Tobacco Mart stores as of July 1, 1994, Imperial filed a suit against various defendants seeking recovery on promissory notes and amounts claimed due on open account. Subsequently, the promissory notes sued upon were satisfied, and a default judgment was entered against Tennessee L.L.C. for amounts owed by the Tobacco Mart stores in that state. Ultimately, the case proceeded as one on an open account against Vidalia L.L.C., Mississippi L.L.C., Uter, Menzie, and Ms. Menzie.

Following the trial of this matter, the trial court found that Imperial had met .its burden of proving that Vidalia L.L.C. and Mississippi L.L.C. were liable to it on an open account for $536,812.64. Relative to the June 1994 payments to Ms. Menzie, the trial court found that her withdrawals rendered the entities unable to pay their indebtedness to Imperial, resulting in a violation of LSA-R.S. 12:1327(A). Accordingly, it determined that the limited liability companies were entitled to a return of the money. As to the Rmoney paid to Uter, the trial court found that Uter’s actions constituted an improper removal of business funds for personal use and benefit and required that the money be returned to the limited liability companies. Therefore, judgment was rendered in favor of Imperial against Uter, individually, for $28,057; the Menzies, individually, for $263,852.48; and Vidalia L.L.C. and Mississippi L.L.C., in solido, for the entire amount of $536,812.64 owed by Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C. on open account, as well as $85,000 in attorney fees, and $3,700.54 in court costs. Uter and the Menzies filed separate appeals, seeking reversal of the awards against them individually. Imperial filed an answer to their appeals, requesting the imposition of in solido liability against Uter and the Menzies for the entire amount owed on open account by the three limited liability companies, plus attorney fees and court costs.

Standard of Review

The appellate court’s review of fact is governed by the manifest error — clearly wrong standard. The 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. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of 17credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882-83; Morris v. Norco Construction Company, 632 So.2d 332, 335 (La.App. 1st Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163.

Appellate review of questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Medline Industries, Inc. v. All-Med Supply & Equipment, 94-1504 (La.App. 1st Cir.4/7/95), 653 So.2d 830, 832; O’Niell v. Louisiana Power & Light Company, 558 So.2d 1235, 1238 (La.App. 1st Cir.1990).

Personal Liability of Members for Company Debts

In its answer to the appeal, Imperial seeks to have Uter and the Menzies held liable in solido with Vidalia L.L.C. and Mississippi L.L.C. for the entire amount owed on the open account, attorney fees, and court costs, based on the theory of piercing of the veil of a limited liability company. The following factors are stated in support of piercing the veil: (1) fraudulent set-up, (2) confusion of ownership, (3) one “Tobacco Mart” letterhead for all limited liability companies, (4) common bank account, (5) fraudulent information on capital contributions, (6) advances by and between stores, (7) distributions of monies, and (8) alleged sale of the Tennessee stores.

By virtue of their articles of organization, Vidalia L.L.C. and Mississippi L.L.C. are limited liability companies, organized pursuant to the statutory scheme set up in LSA-R.S. 12:1301 et seq. The Menzies and Uter maintain that the limited liability companies, through their various stores, ordered products from Imperial. A limited liability company offers, among other benefits, a company’s members the benefit of |slimited liability. Hamilton v. AAI Ventures, L.L.C., 99-1849 (La.App. 1st Cir.9/22/00), 768 So.2d 298, 302. With respect to the liability of the members and managers of a limited liability company to third parties, LSA-R.S. 12:1320 provides:

A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
D.Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

Thus, generally, under LSA-R.S. 12:1320(B), members of a limited liability company may not be assessed with personal liability for the debts and obligations of their limited liability companies to third parties absent proof of fraud. See LSA-R.S. 12:1320(D).

With respect to business corporations, there are limited exceptions to the rule of non-liability of shareholders for the debts of a corporation, whereby the court may ignore the corporate fiction and hold the individual shareholders liable. Riggins v. Dixie Shoring Company, Inc., 590 So.2d 1164, 1168 (La.1991). In such cases, Louisiana courts have allowed a piercing of the corporate veil under only two exceptional circumstances, namely, where the corporation is an alter ego of the shareholders and the shareholders have used the corporation to defraud a third party (the “alter ego” doctrine) and where the shareholders have failed to conduct a business on a “corporate footing,” to such an extent that the corporation ceases to be distinguishable from its shareholders. Riggins, 590 So.2d at 1168. Some factors to consider in determining |flwhether to apply the alter ego doctrine include commingling of corporate and shareholder funds, failing to follow statutory formalities for incorporating and transacting corporate affairs, undercapitalization, failing to maintain separate bank accounts and bookkeeping records, and failing to hold regular shareholder and director meetings. Riggins, 590 So.2d at 1168. Louisiana courts are reluctant to hold a shareholder, officer, or director of a corporation personally liable for corporate obligations, in the absence of fraud, malfeasance, or criminal wrongdoing. Riggins, 590 So.2d at 1168. The determination of whether to allow a piercing of the corporate veil is made by considering the totality of the circumstances. Riggins, 590 So.2d at 1169.

In addition to having Vidalia L.L.C. and Mississippi L.L.C. solidarily liable for the entire balance owed on the open accounts of these two limited liability companies, as well as the amount owed by Tennessee L.L.C., Imperial seeks to have this court pierce the veils of these limited liability companies to hold the individual members of these companies liable for the awards made in favor of Imperial. Based on the facts presented, Imperial sought to have the trial court find that the individual members, acting through the limited liability companies, committed fraud or deceit on Imperial and that the members failed to conduct the businesses on a business footing, disregarding the company entities to such an extent that the companies and their members became indistinguishable. However, the trial court declined to make such findings. The trial court’s decision as to whether a company’s veil should be pierced is a finding of fact and is thus subject to the manifest error-clearly wrong standard of Stobart. See Hamilton, 768 So.2d at 303. After a thorough review of the record, we conclude that reasonable support exists for ^finding that Imperial failed to prove that the limited liability companies were disregarded to the extent that they could not be distinguished from their members or that the actions of the members were fraudulent. |in Accordingly, the trial court’s refusal to pierce the veils of these companies to impose liability on the individual members of Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C. is reasonably supported by the record. Furthermore, we are unable to find manifest error in this decision.

Alternatively, Imperial asserts in solido liability is appropriate based on the conceahnent of the limited liability company ownership status of these businesses. Under Louisiana law at the time pertinent to this case, a principal was bound by the authorized or ratified acts of his agent. See LSA-C.C. art. 3021. The agent, however, was liable to those with whom he contracted on behalf of his principal only when he had bound himself personally or had exceeded his authority without informing the person with whom he contracted of the extent of his powers. See LSA-C.C. art. 3013. Generally, an agent is held to have bound himself personally when he entered into an agreement without disclosing the identity of his principal. Frank’s Door & Building Supply, Inc. v. Double H. Construction Company, Inc., 459 So.2d 1273, 1275 (La.App. 1st Cir.1984). The agent has the burden of proving that he disclosed his agency status and the identity of his principal if he wishes to avoid personal liability. However, express notice of the agent’s status and the principal’s identity is not required to escape personal liability if the agent proves that sufficient evidence of the agency relationship was known by the third party so as to put him on notice of the principal-agent relationship. Frank’s Door & Building Supply, Inc., 459 So.2d at 1275.

Imperial alleges that Uter and Menzie concealed the fact that the Tobacco Mart stores with whom it had been doing business were owned by various limited liability companies. In determining whether such a concealment occurred in this case, we review the relationship between Uter, Menzie, and Imperial. Uter and Menzie testified that they were initially introduced by Bunch and Harmon to Imperial’s president, who instructed them to deal with Imperial’s credit manager. Uter and Menzie expressed an Ininterest in opening more Tobacco Mart stores that were to be operated similarly to those being run by Bunch and Harmon. As previously stated, the Tobacco Mart stores belonging to Bunch and Harmon were each separately organized, with Bunch and Harmon assuming personal liability for amounts owed to Imperial on open account.

Imperial’s chief financial officer (CFO) testified that when Imperial dealt with a corporate entity, it would obtain a personal guaranty with respect to open accounts. According to the CFO, Bunch and Harmon suggested to Imperial that Uter and Men-zie be allowed to have similar terms as they had with Imperial to allow for expansion of the Tobacco Mart business into Mississippi and Tennessee. Initially, Imperial’s CFO believed that Uter and Men-zie’s stores would operate under the same Tobacco Mart, Inc. umbrella that Bunch and Harmon’s stores had. During the preparation of the necessary paperwork, Bunch and Harmon declined to sign a personal guaranty and informed Imperial that they had no financial responsibility for these new stores. In dealing with the Tobacco Mart stores that were opened by Uter and Menzie, Imperial identified each store by location, just as Uter and Menzie had in opening various business bank accounts. Promissory notes and general security agreements were prepared at the direction of Imperial’s credit manager and executed by Uter and Menzie on behalf of each individual store, as well as individually. No personal guaranty was sought from Uter and Menzie relative to open accounts. Notably, Imperial’s decision to extend credit to these new stores was not based on the creditworthiness of Uter and Menzie. The CFO explained that credit was extended based on the recommendation Imperial got from Bunch and Harmon and the probability of success.

Imperial’s CFO testified that Uter and Menzie neglected to inform him that the business had been organized as a limited liability company, as opposed to a partnership or sole proprietorship. Then he stated that he was advised by Uter and Menzie that 1these businesses were going to be set up as individual businesses and treated as a partnership; therefore, a personal guaranty was unnecessary. Yet, invoices for the most part revealed that products were being sold to “Tobacco Mart, Inc.” on Darryl Drive in Baton Rouge, Louisiana, the place designated as the registered office of the limited liability companies, and were being delivered to the individual stores.

According to the CFO, he was unaware that the Tobacco Mart stores opened by Uter and Menzie were operating under limited liability companies until June 1994, at which time Imperial ceased doing business with the Tobacco Mart entities until personal guarantees were executed in conjunction with open account sales. Nonetheless, we note that Imperial requested a financial statement of the existing businesses from Uter in conjunction with the proposed start-up of the Tennessee stores. A combined statement of assets and liabilities dated September 15, 1993, was sent to Imperial’s credit manager, which disclosed Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C. as the businesses with whom Imperial was doing business.

Although there appears to have been some confusion as to the exact type of entity or entities with whom Imperial was dealing, the record reasonably supports a finding that Imperial representatives knew or reasonably should have known that Uter and Menzie were acting in a representative capacity, as opposed to an individual capacity. The trial court apparently found Uter and the Menzies had refuted Imperial’s claim of undisclosed agency by providing sufficient evidence of Imperial’s knowledge of the principal-agent relationship. That factual finding is reasonably supported by the record and is not manifestly erroneous.

The Menzies’ Liability

The Menzies contend the trial court legally erred in finding that the withdrawal of funds by Ms. Menzie constituted an unlawful distribution in violation of LSA-R.S. 12:1327(A)(1). Distributions to members of a limited liability company are authorized | iaby LSA-R.S. 12:1324 through 1326. Relative to interim distributions, LSA-R.S. 12:1324 provides:

A. Except as provided in this Chapter, a member is entitled to receive distributions from a limited liability company before the withdrawal of the member from the limited liability company and before the dissolution and winding up of the limited liability company to the extent and at the times or upon the occurrence of the events provided in an operating agreement or as authorized by the members.
B. Interim distribution of cash or other assets of a limited liability company shall be allocated among the members and among classes of members in the manner provided in a written operating agreement. To the extent such operating agreement does not so provide in writing, distributions shall be made equally to the members.

At the time of the withdrawal of funds by Ms. Menzie, LSA-R.S. 12:1325(B) provided as follows with respect to the distribution of company funds upon a member’s withdrawal:

Except as otherwise provided in this Chapter, on withdrawal or resignation, a withdrawing or resigning member is entitled to receive such distribution, if any, to which the member is entitled under a written operating agreement and, if not otherwise provided in a written operating agreement, within a reasonable time after withdrawal or resignation, the fair market value as of the date contributed of the member’s capital contribution.

Restrictions are placed on the making of any distributions by LSA-R.S. 12:1327(A), which provides:

No distribution shall be made if, after giving effect to the distribution:
(1) The limited liability company would not be able to pay its debts as they become due in the usual course of business.
(2) The limited liability company’s total assets would be less than the sum of its total liabilities plus, unless the articles of organization or a written operating agreement provides otherwise, the amount that would be needed if the limited liability company were to be dissolved at the time of the distribution to satisfy the preferential rights of other members upon dissolution which are superior to the rights of the member receiving the distribution.
| u(3) The authorization or payment thereof would be contrary to any restrictions contained in the articles of organization or a written operating agreement.

In contemplation of her withdrawal, Ms. Menzie wrote checks dated June 3, 1994, payable to herself from the accounts of various Tobacco Mart entities, totaling $263,852.48. After examining the evidence, the trial court found that the tax returns of Vidalia L.L.C. and Tennessee L.L.C. did not reflect capital contributions by Ms. Menzie of $240,000. Furthermore, it noted that there were no security agreements in favor of Ms. Menzie related to any alleged loans by her to the Tobacco Mart entities. Without classifying the nature of these payments as a return of capital or loan repayments, the trial court simply assumed that such payments were distributions as contemplated by the restrictions set forth in LSA-R.S. 12:1327.

At trial, Ms. Menzie testified that the payments were made to repay amounts that had been loaned by her to the Tobacco Mart entities. On appeal, the Menzies abandon that theory and concede that these payments constituted the return of the fair market value of Ms. Menzie’s capital contributions. Accordingly, we must ascertain if the trial court erred in determining that these distributions were wrongfully made.

Distributions prior to withdrawal of a member or dissolution of a limited liability company are specifically addressed by LSA-R.S. 12:1324. The payments to Ms. Menzie were not of the type contemplated by this statutory provision. Admittedly, they were more in the nature of the distributions authorized by LSA-R.S. 12:1325, as they were made in conjunction with her membership withdrawal. Notably, LSA-R.S. 12:1325 speaks in terms of contributed capital and authorizes the removal of such funds within a reasonable time after withdrawal. Thus, the distributions made prior to her withdrawal were not made in accordance with LSA-R.S. 12.T325. The Menzies urge error in the | atrial court’s finding that the distributions to Ms. Men-zie resulted in an inability to pay the debts of the limited liability companies as they came due.

As per the September 15, 1993 consolidated statement provided to Imperial, the assets of the three limited liability companies exceeded their liabilities by $327,829.96. Yet, the 1993 consolidated tax return for those limited liability companies discloses a net loss for the year of $16,568 and liabilities exceeding assets by $25,905 at year’s end. Included in their 1993 year-end liability calculation were notes payable to Ms. Menzie in the amount of $134,973. The 1994 consolidated tax return for Vidalia L.L.C. and Mississippi L.L.C. discloses a net loss for the year of $29,088, with the separate return for the Tennessee L.L.C. showing a net loss of $245,620. By the end of 1994, the disparity in the liabilities and assets of Vidalia L.L.C. and Mississippi L.L.C. had increased to $88,415, with the liabilities still exceeding the assets. The liability calculation for 1994 did not include an amount for notes payable to Ms. Menzie, as such pay-ables were apparently considered as having been satisfied by the June 3, 1994 distributions to her. Relative to Tennessee L.L.C., its 1994 return reflected that its liabilities exceeded its assets by $183,102. Furthermore, a demand letter from Imperial dated June 14, 1994, revealed that the Tobacco Mart entities owed it a balance of $562,344.25 for products supplied between May 4, 1994, and May 26,1994.

In addition to this evidence, Ms. Menzie initially testified that she was unaware of the balance in the various accounts at the time the checks were written, nor was she able to recall the amount of the account payables. Subsequently, she stated that she assumed that she had examined the balance of each checking account on which the checks were drawn, but she was not certain. The stub for the check issued to Ms. Menzie for $107,000 from the general Tobacco Mart operating account disclosed a remaining balance in that account of $12,373.26. The balances of the other Tobacco Mart checking accounts were not revealed at trial. However, Uter testified that without the funds withdrawn by Ms. Menzie on June 3, 1994, there was very little left in the |1fivarious Tobacco Mart accounts with which to make payment on their payables, and thus Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C. could not meet their obligations to Imperial.

Based on the evidence presented, the trial court found that the June 3, 1994 distributions to Ms. Menzie rendered the entities unable to pay their indebtedness to Imperial, resulting in a violation of LSA-R.S. 12:1327(A)(1). As the moving party, Imperial bore the burden of proving that a violation of LSA-R.S. 12:1327(A)(1) had occurred. To satisfy such burden, Imperial was required to prove that, because of the June 3, 1994 distributions to Ms. Menzie, Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C. were unable to pay their debts as they became due in the usual course of business. The Menzies submit that this burden could not be met, in light of the fact that Vidalia L.L.C. and Mississippi L.L.C. continued as a going concern doing between $8 million to $9 million in business with Imperial between June 1994 and 1996. We disagree. The record reveals that the continued viability of these companies was dependent on the restructuring of company debt and the granting of personal guarantees relative to open accounts with Imperial by the members of these companies. Uter testified that this new business arrangement contemplated the withdrawal of the Menzies, who were unwilling to make such guarantees, from the businesses and the assumption of a larger role in the operation of the stores by Bunch and Harmon. The debt restructuring involved only the amounts owed on the promissory notes. Payments made on open account by Vidalia L.L.C. and Mississippi L.L.C. after that time were applied by Imperial to the purchases made after the Menzies’ withdrawal on July 1, 1994, as envisioned by their new business arrangement. Amounts owed prior to July 1, 1994, remained unpaid and are the subject of this lawsuit.

After a thorough review of the record, we are unable to conclude that the trial court erred in finding that Imperial proved that Vidalia L.L.C., Mississippi L.L.C., and [ 17Tennessee L.L.C. were not able pay their debts as they became due in the usual course of business as a result of the June 3, 1994 distributions made to Ms. Menzie. Reasonable support for such a finding can be found in the record, and the finding is not clearly wrong.

In light of the fact that they are separate in property, the Menzies question the imposition of liability on Menzie for these dispositions. However, LSA-R.S. 12:1328 imposes joint and several liability on the members or managers of a limited liability company who knowingly, or without the exercise of reasonable care and inquiry, vote for or assent to a distribution in violation of LSA-R.S. 12:1327. Such liability falls on each member, if management is reserved to the members, or each manager, if management is vested in one or more managers pursuant to LSA-R.S. 12:1312. Louisiana Revised Statute 12:1312 pertains to management by managers in accordance with the articles of organization or an operating agreement. The management of Vidalia L.L.C., Mississippi L.L.C., and Tennessee L.L.C. was seemingly vested in two managers in this case, Menzie and Uter, by virtue of an oral operating agreement. Thus, liability fell in this case on those managers who knowingly, or without the exercise of reasonable care and inquiry, voted for or assented to the distributions made to Ms. Menzie in violation of LSA-R.S. 12:1327. Accordingly, each manager would be | isliable jointly and severally to the limited liability company for the amount that the member received in violation of LSA-R.S. 12:1327.

Although the record does not reveal a knowing violation of LSA-R.S. 12:1327, it reasonably supports a finding that such distributions were made without the exercise of reasonable care and inquiry as to whether they were wrongful, as defined by LSA-R.S. 12:1327. Under the facts of this case, it is obvious that Menzie assented to the distributions made to his wife. For that reason, we are unable to conclude that the trial court erred in finding that Men-zie, as an assenting manager, even though separate in property from Ms. Menzie, was also personally liable for the return of those distributions.

Uter’s Liability

In addition to having Menzie held liable with Ms. Menzie for the amount wrongfully distributed, Imperial seeks to have Uter held personally liable for such amount. Under LSA-R.S. 12:1328(A), Uter may be held personally liable to the limited liability company for such distributions only if he was found to have assented to the distributions made to Ms. Menzie, without the exercise of reasonable care and inquiry, in violation of LSA-R.S. 12:1327. Uter explained that he learned that the Tobacco Mart entities were behind in their open account payments to Imperial prior to receiving Imperial’s June 14, 1994 demand letter. After inquiring with the secretary for the Tobacco Mart entities, she suggested that he examine the checkbooks. According to Uter, it was not until that time that he learned of the withdrawals by Ms. Menzie. He denied learning, prior to June 3, 1994, that Ms. Menzie intended to withdraw the money she had allegedly contributed to these entities. He testified that he subsequently requested that the money be returned to the entities.

According to Menzie, Uter advised Ms. Menzie to get her money out before their interests were transferred to Bunch and Harmon. This testimony was corroborated by that of Ms. Menzie. Ms. Menzie, however, admitted that she did not know if Uter was |iaaware of the exact amounts or the particular day that she intended to take the money.

Although the trial court made no express finding regarding which line of testimony it found to be more credible, it did find that business was conducted in such a manner that the members of the several business entities were unaware of some of the things the other members were doing in the daily operation of these business entities. Additionally, it refused to impose personal liability on Uter for the distributions made to Ms. Menzie. Uter’s testimony, if believed by the trial court, certainly provides reasonable support for such a finding. Furthermore, we are unable to find that the trial court clearly erred in failing to hold Uter jointly and severally liable for the June 1994 distributions to Ms. Menzie.

Uter contends the trial court erred in finding that $28,057 was improperly paid to him between March 30, 1993, and May 3, 1994. In resolving the issue of Uter’s liability to the limited liability companies, the trial court simply found that he improperly removed or took $28,057 from various Tobacco Mart accounts for his personal use and benefit, which amounts he should be required to pay back. No separate finding was made by the trial court as to whether the removal of such funds constituted a distribution or whether such a distribution constituted a violation of LSA-R.S. 12:1327(A)(1).

Uter submits that the amount of the award was equal to the sum of the checks payable to Uter prior to the June 14, 1994 notice of default. Concerning the 10 checks in question, Uter testified that certain checks were made payable to him for the purpose of obtaining cash to pay vendors for neon signs ($12,500), an attorney for legal representation in conjunction with a trademark search ($2,100), an individual who held |gnthe trademark for the name “Tobacco Mart” in Tennessee for a licensing fee ($5,000), and himself as reimbursement for travel expenses ($821). The notations on these checks totaling $20,421 support Uter’s testimony. Although he did not account for use of the proceeds from the other five checks totaling $7,636, Uter explained that the cash was used to pay for goods and services provided during the opening of out-of-state Tobacco Mart stores. According to Uter, cash was needed because many vendors with whom he dealt in opening the new stores refused to accept checks drawn on a new bank account.

In countering this argument, Imperial simply notes that the 10 checks were issued to Uter or his trust account. It further contends that, of the money received from these checks, Uter conceded that he took $25,000 as a personal loan for which no promissory note was issued. According to Imperial, no portion of the borrowed amount was repaid. Imperial’s assertions to this effect are not supported by the record. Outside of Uter’s testimony pertaining to the 10 checks referenced above, he admitted that he had borrowed, with Menzie’s permission, up to $25,000 of the $113,244.71 contributed by Ms. Men-zie that was at one time deposited in his client trust account for investment in the tobacco business. Uter explained that the money from these loans was used by him to make ends meet during a three or four-month period that he was away from his law practice while working to open the Tobacco Mart stores without drawing a salary. The $28,057 of proceeds from the checks issued to Uter from March 30, 1993, to May 3, 1994, is separate and apart from the money that he borrowed in the early stages of this venture. Accordingly, the record does not support the trial 121 court’s apparent finding that $28,057, as evidenced by the 10 checks previously referred, was improperly removed or taken from the Tobacco Mart stores for his personal use and benefit so as to possibly expose Uter to personal liability under LSA-R.S. 12:1328. Furthermore, such a finding was clearly wrong, thus warranting the reversal of the award against Uter.

Decree

For the foregoing reasons, the judgment in favor of Imperial against Uter is reversed. In all other respect, the judgment is affirmed. Costs of this appeal are assessed one-half to Jack and Connie Menzie and one-half to Imperial' Trading Company, Inc.

REVERSED IN PART AND AFFIRMED IN PART.

CARTER, C.J., concurs.

      . Brennan Uter was Uter's college-aged son.

      . Any contemporaneous written operating agreements are not in the record. The only such agreements in the record were executed July 1, 1994, by Bunch, Harmon, and Uter.

      . Bunch, Harmon, and Brennan Uter were dismissed from the suit pursuant to a settlement agreement. Moreover, all interested parties assigned to Imperial their rights, claims, and causes of action against Uter, Menzie, and Ms. Menzie.

      . Vidalia L.L.C. and Mississippi L.L.C. did not appeal.

      . In its answer to the appeal, Imperial also requested an award of additional attorney fees and costs associated with responding to the appeals. Since this contention was not briefed, it is considered to have been abandoned. See Uniform Rules — Louisiana Courts of Appeal, Rule 2-12.4.

      .When considering the liability of a corporation, "veil-piercing” is a term used to refer to a court's refusal to recognize the separate existence of a corporation and to impose personal liability on shareholders for the corporation’s debts. The same policy considerations in piercing the veil of a corporation apply to a limited liability company. Susan Kalinka, Louisiana Limited Liability Companies and Partnerships, § 1.32, pp. 80-81 in 9 Louisiana Civil Law Treatise (3rd ed.2001).

      . All references to law in this opinion are to the law that was in effect when the events of this case took place.

      . In Hamilton v. AAI Ventures, L.L.C., this court seemingly applied the single business theory, although treated as an application of the alter ego doctrine, to ignore the separate status of a limited liability company to reach the assets of its majority member. See Kalin-ka, Louisiana Limited Liability Companies and Partnerships, § 1.32 at 89.

      . In so ruling, we render no opinion as to whether veil-piercing is available in the case of limited liability companies as it is in the case of corporations.

      . The record establishes that prior to dealing with Imperial's CFO, Uter and Menzie provided financial information to Imperial’s credit manager, who prepared the necessary documents for the commencement of business. By the time that Uter and Menzie met with the CFO, Imperial had already begun doing business with the new Tobacco Mart entities.

      . LSA-R.S. 12:1325 was subsequently amended by 1995 La. Acts, No. 847, § 3, effective June 27, 1995. In Sage v. Radiology and Diagnostic Services, L.L.C., 01-2445 (La. App. 1st Cir. 11/08/02), 831 So.2d 1053, this court held that the amendment had prospective effect only.

      . This sum included $240,000, which supposedly represented a capital contribution and/or loans, and the remainder represented the interest earned at a rate of eight percent interest.

      . We find the default provision of LSA-R.S. 12:1325(B) to be applicable in the instant case in the absence of evidence that the written operating agreements provided otherwise.

      . The right to pursue such recovery was assigned to Imperial by virtue of a settlement agreement executed by the members of the limited liability companies involved in this case. Although questioned early on in these proceedings, the right of Imperial to assert this claim has not been raised on appeal.

      . Liability for wrongful distributions is governed by LSA-R.S. 12:1328, which in pertinent part provides:
      A. Each member, if management is reserved to the members, or manager, if management is vested in one or more managers pursuant to R.S. 12:1312, who knowingly, or without the exercise of reasonable care and inquiry, votes for or assents to a distribution in violation of the articles of organization, an operating agreement, or R.S. 12:1327 shall be jointly and severally liable to the limited liability company for the amount of the distribution that exceeds the amount that could have been distributed without violating R.S. 12:1327, the articles of organization, or an operating agreement. Each member shall be liable to the limited liability company for the amount which the member received in violation of this Section.
      B. Each member or manager liable under Subsection A of this Section for an unlawful distribution shall be entitled to a contribution from each other member or manager who could be held liable under such Subsection.

      . Uter testified that he was aware that Ms. Menzie had initially put $113,244.71 into the business venture. He also knew that she had contributed other amounts but was uncertain as to the exact amounts.

      . $12,500 = $9,500 on March 30, 1993 + $3,000 on April 28, 1993.

      . $7,636 = $2,000 on April 15, 1993 + $2,000 on September 8, 1993 + $3,000 on September 14, 1993 + $25 on April 20, 1994 + $611 on May 3, 1994.

      . Ms. Menzie stated that Uter never inquired of her concerning his borrowings.

      . The matter of the $25,000 is not before the court at this time. Uter recounted that $13,500 of the borrowed funds came directly from his client trust account funds, with the remainder coming from various entity accounts. As to those funds borrowed from Uter's client trust account, there was no withdrawal in violation of LSA-R.S. 12:1328(A). If any of the remaining debt was owed to the L.L.C.s, it was not part of an open account.

      .In malting this determination, we render no opinion as to Uter's liability concerning amounts that were borrowed from his client trust account funds and various entity accounts during the three-month period — October through December 1992 — that Uter and Menzie initiated efforts towards opening the Vidalia store and four stores in Mississippi.


source: Caselaw Access Project

author: J2FITZSIMMONS, J.

license: Public Domain

text:
    Carrie WHITEHEAD and State Farm Mutual Automobile Insurance Company v. AMERICAN COACHWORKS, INC.
    No. 2002 CA 0027.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied Feb. 19, 2003.

      John T. Roethele, Denham Springs, Counsel for Plaintiffs/Appellees Carrie Whitehead and State Farm Mutual Automobile Insurance Company.

      Lee Herrington, Baton Rouge, Counsel for Defendant/Appellant American Coach-works, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J2FITZSIMMONS, J.

American Coachworks, Inc. (American Coachworks) appeals a trial court judgment in favor of State Farm Mutual Automobile Insurance Company (State Farm). Following our review of the facts and law, this court affirms in part, reverses in part, and renders in part.

FACTUAL AND PROCEDURAL DEVELOPMENT

On June 30, 1997, Carrie Whitehead Fontenot was involved in a vehicular accident. Carrie, who was eighteen at the time of the incident, and her mother, Pamela Chapman Whitehead, arranged to have the 1995 Mazda Protégé LX towed to American Coachworks, a repair shop with a towing service. Prior to towing the vehicle, Carrie was required to sign a form entitled “Authorization to Repair.” It is undisputed that there was a verbal understanding at that time between John and Ann Spinks, who own American Coach-works, and the Whiteheads that the Whiteheads desired to have the vehicle declared a total loss. American Coachworks was not to begin repairs pending State Farm’s appraisal.

Following an inspection by Rickey Vincent of State Farm on July 7, 1997, State Farm issued an estimate of $2,614.74 as the sum to repair the vehicle. State Farm’s July 9, 1997 letter to Carrie read: “Enclosed is a copy of your estimate. Please take the estimate and your vehicle to the shop of your choice and authorize the shop to repair your vehicle.” It is not disputed that the initial estimate was woefully inaccurate.

Communication between Mrs. Whitehead and State Farm continued, but no revision to the initial estimate was made during the two and one-half weeks following the incident. In a letter dated July 18, 1997, American Coachworks sent State Farm an eight-page “Notice of Deficiency in Insurance Estimate,” estimating repair costs at $9,194.98. The notice was faxed to State Farm on Sunday, July 20,1997. The original letter was received in the mail at State Farm’s claims office on Rjuly 24, 1997. Three weeks after storing the vehicle on its premises, on July 22, 1997, American Coachworks ordered parts to begin repairs on the vehicle pursuant to State Farm’s initial estimated cost. This was the same date that American Coach-works had mailed the deficiency notice. Subsequently, on July 24, 1997, Bill Lea, another claims representative for State Farm, performed another inspection of the vehicle for State Farm. State Farm issued a revised estimate to repair the vehicle for the increased sum of $5,658.43 on July 25, 1997.

Finally, on July 29, 1997, more than four weeks after the incident, State Farm conceded that the cost to repair the vehicle was significantly higher than it had twice previously determined. State Farm declared the vehicle to be a total loss. Carrie was paid the sum of $10,300.00 by State Farm, and she signed a release of the vehicle to State Farm. American Coach-works advised State Farm that its charges up to that date totaled $1,639.90. This amount comprised the following: $220.00 for towing; $300.00 for disassembly; $754.90 for ordered parts; and $365.00 for storage. State Farm refused to pay the charges for parts or the disassembly fee. American Coachworks refused to release the car.

The instant litigation ensued. Carrie and State Farm sued American Coach-works alleging: the disputed charges were unjustified; American Coachworks’ refusal to release possession of the vehicle constituted a tortious conversion; and its actions were intentional and in bad faith. American Coachworks responded with a recon-ventional demand, in which it claimed that Carrie and State Farm had breached the contract to repair. It sought towing and related fees, parts and labor, storage fees, and attorney fees. Following a two-day bench trial, the trial court rendered judgment, as follows: in favor of State Farm in the sum of $800.00, representing the depreciation in value of the vehicle; in favor |4of Carrie Whitehead and State Farm in the amount of $5,000.00, plus legal interest in general damages for the loss of enjoyment and use of the vehicle, mental anguish, and inconvenience; a release of State Farm’s sequestration bond and an order that the vehicle be placed in State Farm’s immediate possession; an award of attorney fees in the amount of $7,500.00 against American Coachworks; a dismissal of American Coachworks’ reconventional demand; and an order that American Coachworks pay all costs.

DISCUSSION

The underlying issue that penetrates the heart of this case is whether American Coachworks was authorized to order parts for repairs on July 22, when it sent its deficiency notice. Most of the facts are undisputed; however, the parties’ recollections of their verbal understandings differed on the subject of authority to initiate the repair process. In reasons for judgment, the trial court found the Whiteheads to be “credible and consistent.” Carrie’s father, Randall Lee Whitehead, testified that he never authorized Ann Spink at American Coachworks to order parts or commence any repairs. He stated that at “some point in time[,]” he authorized American Coachworks to do a “tear down” estimate on the vehicle. He also stated that he agreed with Ann Spinks’ suggestion to “put the vehicle on the rack and check for damages and that would give ... evidence to State Farm that the vehicle was much more damaged [than] they thought ... with the first estimate.” Mrs. Whitehead stated that she had wanted to see the vehicle after American Coachworks had disassembled it; however, she did not authorize any repairs to the vehicle because she wanted it totaled.

Deference is granted by reviewing courts to findings that are based on credibility determinations. In circumstances involving conflict in testimony, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own | .^evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In light of the conflicting proof, we cannot say that the trial court’s credibility call was clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

The trial court also considered the standard operating procedures between repair companies and insurers in its determination of whether the repairp had been authorized. Ronnie Viverata testified as an expert in body shop management on behalf of Carrie and State Farm. American Coachworks attempted to put Peter Bartlett on the witness stand to testify as an expert in industry procedures. Mr. Bartlett had been listed in the pre-trial order as a “may call” expert witness. The court refused to allow Mr. Bartlett’s testimony because John and Ann Spinks were scheduled to testify as experts in the same general field. In this regard, we find that the court abused its discretion. The Spinks were not independent witnesses because they owned American Coach-works. Thus, the court deprived American Coachworks of the presentation of an independent witness to rebut the testimony presented by State Farm’s independent witness, Mr. Viverata.

The testimony by the Spinks and Mr. Bartlett demonstrated that State Farm’s letter to Carrie, which had been sent after its inspection, charted the course for repairs. State Farm’s estimated figure was very low, and State Farm expressly advised Carrie to authorize the repairs. It was undisputed that insurance companies discourage body shops from delays in repairing vehicles once they are in the shop to avoid mounting storage fees. The fact that the vehicle was retained at the shop for an extensive period of time logically implies that any repairs were to be performed at American Coachworks.

1 fiGiven this scenario, the trial court manifestly erred in finding that American Coachworks acted in a fraudulent way or in bad faith. The existence of fraud is a question of fact. Coffey v. Block, 99-1221, p. 7 (La.App. 1 Cir. 6/23/00), 762 So.2d 1181, 1186, writ denied, 2000-2226 (La.10/27/00), 772 So.2d 651. Fraud involves a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Smith v. Roussel, 2000-1028, p. 4 (LaApp. 1 Cir. 6/22/01), 809 So.2d 159, 164; see La. C.C. art. 1953. Fraud cannot be predicated on mistake or negligence, no matter how gross. Fraudulent intent, which constitutes the intent to deceive, is a necessary element of fraud. Smith, 2000-1028, p. 4, 809 So.2d at 164. The evidence presented fails to satisfy the requisite element of intent. Accordingly, the attorney fees awarded in the sum of $7,500.00 on the basis of the existence of fraud are reversed.

This court also reverses the $5,000.00 in general damages awarded by the court “for the loss of enjoyment and use of the vehicle, mental anguish, and inconvenience caused by the actions of American Coachworks, Inc.” As was pointed out by American Coachworks, at the time that State Farm changed its mind to declare the vehicle a total loss, Carrie divested her ownership interest in the vehicle to State Farm. She did not suffer any loss of enjoyment, use of the vehicle, mental anguish or inconvenience because she was reimbursed for the full value of the car. State Farm, a corporation, is incapable of experiencing loss of enjoyment, mental anguish, and inconvenience. City of New Orleans v. Grand Lodge of Independent Order of Odd Fellows, 241 So.2d 7, 10 (La.App. 4th Cir.1970).

Two additional documents that shed light on the issue of the authorization of the ordering of the parts are the “Authorization to Repair” and the “Notice of Deficiency on Insurance Estimate” prepared by American Coachworks. In the authorization, American Coachworks states: “If the responsible insurance |7company does not wish to recognize the damage report prepared by this facility, then this repair facility will work directly from the insurance estimate .... ” Thereafter, in the notice of deficiency, American Coachworks establishes the following deadline: “Failure to respond within the two (2) day period will cause the repairs to commence in strict compliance with the original insurance estimate with the customers [sic] approval without the following items and procedures.” American Coach-works mailed the letter on July 22, 1997; however, it failed to wait the two-day period to order the parts for repairs. While there is nothing wrong with American Coachworks’ isolated act of “ordering” the parts in anticipation of an outcome of ultimately performing the repairs, its subsequent attempt to charge the parts to State Farm, combined with American Coach-works’ refusal to return the unused parts to the distributors, constituted a failure to mitigate damages. See Aisole v. Dean, 574 So.2d 1248, 1253-54 (La.1991). Accordingly, this court affirms that narrow part of the trial court judgment recognizing State Farm’s assertion that it did not owe any payment for parts in order to retrieve the vehicle and denying American Coachworks’ claim for reimbursement of the cost of the parts.

Review of the record, however, unequivocally establishes the necessity of disassembling the vehicle. Mr. Whitehead authorized American Coachworks to take the car apart. Mrs. Whitehead testified that it “explained some of the things that they had found as they had taken the car apart.” Moreover, only after American Coachworks had disassembled the vehicle and written a detailed notice of deficiency to State Farm, was the extent of damage to the vehicle recognized by State Farm. Thus, the court erred in denying American Coachworks’ request for payment of its disassembly fee of $300.00. Given State Farm’s failure to pay the | sowed disassem-bly fee, American Coachworks’ retention of the vehicle pursuant the repairman’s privilege on automobiles, delineated in La. R.S. 9:4501 A, was justified. To this limited extent, American Coachworks’ reconven-tional demand also has merit. The trial court’s dismissal of same is reversed. American Coachworks is granted the sum of $220.00 for towing fees, a disassembly fee of $300.00, and $365.00 in storage fees. The $800.00 award to State Farm for depreciation in the value of the vehicle, between the time that State Farm attempted to gain possession of the vehicle and the execution of the sequestration order, is reversed.

Finally, American Coachworks appeals the trial court’s failure to grant its motion for limited new trial. The evidence under consideration consists of a tape-recorded conversation between Ann Spinks and another State Farm adjustor. The tape recording had previously been in American Coachworks’ possession, but it was not discovered until after the trial. We do not find any error in the trial court’s denial of the motion. The evidence does not constitute “evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” La. C.C.P. art. 1972. There is also no showing of an abuse of discretion by the court pursuant to La. C.C.P. art. 1973.

In sum, this court reverses the trial court judgment to permit the introduction of evidence presented by Peter Bartlett. The trial court’s findings of fraud, award of attorney fees in the sum of $7,500.00, general damages in the sum of $5,000.00, and depreciated value of the vehicle in the sum of $800.00 are reversed. The trial court’s dismissal of American Coachworks’ claims in its reconventional demand for towing fees in the sum of $220.00, $365.00 in storage fees, and $300.00 in disassembly fees is reversed; those sums are hereby awarded to American Coachworks. In all other respects, the trial court judgment is affirmed. Costs are to be divided equally such that Carrie Whitehead and State Farm Mutual 19Automobile Insurance Company will pay half, and American Coachworks, Inc. will pay half.

AFFIRMED, IN PART; REVERSED, IN PART; RENDERED, IN PART.

      . At trial, Carrie stated that when State Farm belatedly agreed to total the vehicle, she entered into a litigation agreement with State Farm, in which State Farm agreed to cover any losses that she might incur.

      . Mr. Bartlett had worked as manager of a Cadillac/Chevrolet dealership collision center and as an automobile adjustor for Allstate Insurance Company.

      . Ann Spinks testified that the ordered parts could have been returned to the supplier for a full reimbursement of payment.


author: IJAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Eugene FORTINO.
    No. 02-KA-708.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Arcenious F. Armond, Jr., Gretna, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Thomas J. Butler, Counsel of record on appeal, Frank Brindisi, Trial Counsel, Rob Konrad, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   IJAMES L. CANNELLA, Judge.

The Defendant, Eugene Fortino, appeals from his conviction of second degree battery and his sentence to four years imprisonment at hard labor. We affirm the conviction and sentence and remand.

The Defendant was charged on August 22, 2001 with second degree battery on his estranged wife, Constantina Lopipero (Lo-pipero), a violation of La.R.S. 14:34.1. He pled not guilty at arraignment. On October 23, 2001, the State filed a Notice of Intent to Use Evidence of Other Crimes. The motion was heard and granted. Supervisory writs were applied for and denied in this Court in January of 2002. The Louisiana Supreme Court also denied writs. On January 30, 2002, a six-person jury found the Defendant guilty as charged and the trial judge sentenced the Defendant on February 22, 2002 to four years imprisonment at hard labor.

Lopipero testified that she and the Defendant met in April of 2000 and were married on July 21, 2001. On the night of July 27, 2001, as the couple was preparing to go to sleep in their house in Marrero, Lopipero, as usual, opened a ^window a few inches for her cat. Earlier that night, the Defendant had closed it, even though he knew that she liked to leave it open. When the Defendant discovered the open window, he became extremely angry. He told her, “I’m sick of you, and I’m sick of your f — ing cat, you bitch.” Lopipero told him that she did not want him to curse at her. The Defendant grabbed her from behind, clutching her in a chokehold. He forced her onto the bed as he continued to choke her. She testified that she could not breathe, she felt her neck crack and she feared for her life. The Defendant also kicked her from behind. Although Lo-pipero attempted to push defendant away, she was not strong enough. The Defendant weighs about 200 pounds and she weighs about 109 pounds. During the struggle, the Defendant told her that he was the man of the house and that he was going to “teach her a f — ing lesson.” Lopipero then lost consciousness. When she regained her faculties, Lopipero went into the living room and sat on the sofa. She was having difficulty breathing. She felt as if she were dying and would never see her family again. The Defendant followed her into the living room and sat next to her. Although she tried to placate him, he beat her about the head and face seven to eight times. When he stopped, Lopipero told the Defendant that she was going outside to smoke a cigarette, thinking she could escape him. However, the Defendant followed her. At 4:00 a.m. he told her to go back inside with him and she complied. The Defendant then ordered her to lay down in a chair with him and they had sexual relations. She testified that she did so because she was afraid that he would beat her again if she did not cooperate. The Defendant fell asleep, but Lopipero was afraid to leave for fear that she would awaken him.

After the Defendant left for work the morning of July 28, Lopipero telephoned her friends, Jackie and David. She told them what the Defendant had done to her and they instructed her to leave the house and meet them at a filling |4station. Meanwhile, David called police and she returned to the house to meet with the officers.

Deputy Al Hymel met with Lopipero at her house. Lopipero testified that she showed the officer a bump on her head, a cut over her eyebrow, and facial swelling. She said that she had a clot in her eye and the inside of her mouth was cut. Deputy Hymel testified that the victim’s neck and left side of her face were red. The area around her eye was swollen and there was a scratch above her left eye. He felt a bump on the back of her head. He testified that Lopipero did not have any scars or broken bones. Based on his investigation, Deputy Hymel obtained an arrest warrant for the Defendant.

Lopipero testified to instances of abuse that occurred prior to the July of 2001 incident. She stated that she was diagnosed with multiple sclerosis in April of 2001. She experienced symptoms such as general weakness, difficulty walking, and vision problems. The Defendant would not allow her to mention her symptoms to him, because he felt that she had brought the illness on herself by letting “Satan” into her.

In February of 2001, the Defendant was driving her home from a play at his church when the couple became involved in a heated argument about the play’s subject matter involving children being sent to hell. The Defendant grabbed Lopipero by the neck and banged her head against the window. He screamed at her that she was “the devil.” Defendant later apologized to her and the two reconciled.

On May 26, 2001, the Defendant and Lopipero joined friends for dinner at a restaurant to celebrate their engagement. While at the restaurant, the Defendant flirted with a woman whom he had formerly dated. He told Lopipero that this woman was a “tiger.” The following morning, as she was waking up, he again spoke to her about the former girlfriend. Lopipero asked him if he had to talk |5about the woman, and got up and went to shower. When she came back into the room, the Defendant grabbed her and threw her against the vanity, and said, “Do you want to get f — ed, bitch?” He also grabbed her by her throat and shoved her into the mirror. He continued to choke her until she fell to the floor. The Defendant told her that she had to learn to respect him. He then left the house to go to work. Although Lopipero was in a great deal of pain, she went to work that day, and later went with a friend and co-worker to pick up the Defendant’s son from a former marriage. She was feverish and vomiting from the beating. When the Defendant returned home from work and saw how ill she was, he became violently angry, and denied that he had caused her injuries. Lopipero testified that she and the Defendant were married and spent their honeymoon in Las Vegas, Nevada. She testified that the Defendant struck her even during their honeymoon.

Attia Meda Gerhold (Gerhold), a friend of Lopipero’s, testified that she telephoned her after the February of 2001 incident. She stated that Lopipero was crying hysterically. She told Gerhold that the Defendant had grabbed her by the throat and shoved her against the car window. Ger-hold also saw Lopipero after the May of 2001 incident. Lopipero was very upset and pale, and was crouched over. She appeared to have internal injuries. Lo-pipero showed Gerhold the badly bruised left side of her body. Gerhold said that she has seen the Defendant verbally abuse Lopipero.

Angela Fortino (Fortino) testified that she married the Defendant in 1992 and divorced him seven years later. Fortino stated that throughout the marriage, the Defendant physically attacked her without provocation. He slapped her, attempted to strangle her, and threatened to kill her. In one instance, she blacked out as the Defendant continued to choke her. She suffered a fractured nose and pulled ligaments in her neck and shoulder in that incident. Fortino testified to another incident in which the Defendant bit her face and foot.

IfiThe Defendant testified that he did not attempt to strangle Lopipero in July of 2001, but stated that he did push her away from him that night. The Defendant also denied hitting or choking Lopipero in May of 2001 and denied shoving her head against a car window after the church play in February of 2001. While he did not admit to the severe beatings alleged by the State, he admitted to having hit Fortino four or five times during the course of their marriage. He also testified that he slapped both of his wives. He claimed that he knew it was wrong to hit a woman, but that he did it in the heat of argument. He stated that his anger was relieved after he slapped his wives.

On appeal, the Defendant asserts that the evidence was insufficient, that the trial judge erred in admitting Prieur evidence, and that the sentence is excessive.

In the first assignment of error, the Defendant contends that the State failed to satisfy its burden of proof beyond a reasonable doubt that he is guilty of second-degree battery.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), requires that a conviction be based on proof sufficient for,any rational trier of fact, viewing the elements of the crime in the light most favorable to the prosecution, to find the essential elements of the offense were proven beyond a reasonable doubt. State v. Evans, 00-1766, p. 3 (La.App. 5th Cir.4/11/01), 786 So.2d 781, 783, writ denied, 01-1390 (La.4/12/02), 812 So.2d 664; State v. Williams, 99-223, p. 6 (La.App. 5th Cir.6/30/99), 742 So.2d 604, 607.

La.R.S. 14:33 defines battery in part as “the intentional use of force or violence upon the person of another.” La.R.S. 14:34.1 provides:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme pain or protracted and |7obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

Defendant contends that the state failed to prove that Lopipero’s injuries were sufficient to constitute “serious bodily injury” as intended by the second-degree battery statute. However, the Defendant choked her, shoved her across the bed, and kicked her. She could not breathe and thought she was going to die. As the Defendant continued to choke her, she felt her neck “crackle,” and she “blacked out.” When the Defendant finally released Lopipero from his grip, she still had difficulty breathing. He then beat her about the head and face. After the incident, she was in a great deal of pain. The Defendant’s actions left marks on Lopipero’s neck that were observed by Deputy Hymel on the following day. The beating also resulted in a large bump on her head, a cut over her eyebrow, and redness and swelling about her face. Although she did not sustain any permanent scarring or physical injury, she blacked out and was in jeopardy of losing her life. These injuries are sufficiently serious to rise to the level of second degree battery. Thus, we find that the evidence was sufficient to convict the Defendant under the Jackson standard.

The Defendant next contends that the trial judge erred in allowing the introduction of other crimes evidence. He argues that the evidence was introduced only for the purpose of showing his bad character.

Evidence of other crimes committed by a defendant is generally not admissible at trial. La.C.E. art. 404 B(l); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when such evidence tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Silguero, 608 So.2d 627, 629 (La.1992); State v. Aleman, 01-743, p. 8 (La.App. 5th Cir.1/15/02), 809 So.2d 1056, 1064.

lRLa.C.E. art. 404 B(l) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part. of the act or transaction that is the subject of the present proceeding.

Under Prieur, the State must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. One of the factors enumerated in Article 404 B(l) must be at issue, have some independent relevance, or be an element of the crime charged. State v. Jackson, 625 So.2d 146, 149 (La.1993); State v. Maise, 99-734, p. 13 (La.App. 5th Cir.3/22/00), 759 So.2d 884, 893, writ granted, 00-1158 (La.9/14/01), 795 So.2d 1219, judgment aff'd, 00-1158 (La.1/15/02), 805 So.2d 1141. Prieur further requires that the State show by clear and convincing evidence that the Defendant committed the other crimes. However, La.C.E. art. 1104, enacted in 1994, requires that the burden of proof in a Prieur hearing in Louisiana courts be the same as that provided by the Federal Rules of Evidence, Art. IV, Rule 404. In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the United States Supreme Court found the clear and convincing standard is no longer the required standard of proof, and that the applicable standard is a preponderance of the evidence.

This Court has recognized the preponderance of the evidence standard as the burden of proof in a Prieur hearing. See, State v. Aleman, 01-743 at p. 9, 809 So.2d at 1064; State v. Maise, 99-734, p. 13, 759 So.2d at 893; State v. Hernandez, 98-448, p. 18 (La.App. 5th Cir.5/19/99), 735 So.2d 888, 898, writ denied, 99-1688 750 So.2d 194. The Louisiana Supreme Court, however, has consistently used the clear and convincing standard of proof, and has declined to address the question of how C.E. art. 1104 and Huddleston affect the burden of proof with respect to other crimes evidence. See: State v. Hills, 99-1750 (La.5/16/00), 761 So.2d 516; State v. Miller, 98-0301 (La.9/9/98), 718 So.2d 960.

The probative value of the extraneous evidence must outweigh its prejudi-dal effect. State v. Maise, 99-734 at p. 13, 759 So.2d at 894. The burden is on the defendant to show that he was prejudiced by the trial court’s admission of Prieur evidence. State v. Temple, 01-655, p. 20 (La.App. 5th Cir.12/12/01), 806 So.2d 697, 709.

In the writ application filed on this issue, this Court ruled that the trial judge did not err. The Louisiana Supreme Court denied writs. Nevertheless, we have again reviewed*' the matter and find no error.

The State filed a written Prieur notice on October 23, 2001, detailing the two pri- or incidents in which the Defendant physically attacked Lopipero, and two prior attacks by the Defendant on his first wife. In the notice, the State asserted that it would use those acts to show Defendant’s knowledge, intent, guilty knowledge, system, and motive. At the Prieur hearing, Lopipero and Fortino testified as witnesses. The two women gave detailed and uncontradicted testimony regarding the beating incidents alleged in the written notice. Thus, the State proved the other crimes by a preponderance of the evidence, as well as by clear and convincing evidence.

We next find that the Prieur incidents were relevant for a purpose other than to show that Defendant committed the charged offense, or that he was simply a bad person. They were valid to show specific intent, an element of the charged Imoffense. Although the Defendant argues that second degree battery is not a specific intent crime, and that other crimes evidence is not permitted to show general intent, the argument is not legally supportable. Second degree battery is a specific intent crime and the State was required to prove intent. State v. Fuller, 414 So.2d 306, 310 (La.1982); State v. Druilhet, 97-1717, p. 3 (La.App. 1st Cir.6/29/98), 716 So.2d 422, 423.

The prior crimes also show motive and system. Both Lopipero and Fortino testified that the Defendant beat them when he felt they were not showing him “respect.” The prior acts detailed by the two women were remarkably similar to the acts alleged in the instant case. In each instance, the Defendant flew into a rage without provocation and inflicted severe injuries on his wives. As in the instant case, the Defendant choked the victims in the prior acts.

We further find that the probative value of the Prieur evidence outweighed any prejudice to the Defendant. At trial, the Defendant testified that he often became angry with his wives and that he hit them when he was angry. He knew that it was wrong, but it relieved his anger. When asked about the incident on May 26, 2001, in which he was alleged to have grabbed Lopipero by the neck and thrown her against a bedroom vanity, the Defendant claimed that he merely picked her up and sat her on the vanity in an effort to calm her. With respect to the February of 2001 incident in which the Defendant was alleged to have slammed Lopipero’s head against the window of his vehicle, he stated that he only grabbed her by the shirt.

Based on the foregoing, we find that the trial judge did not abuse his discretion in admitting the evidence of other crimes and that the State met its burden of proof in that regard.

I ^EXCESSIVE SENTENCE

The Defendant next complains that his four-year sentence is constitutionally excessive and that the trial judge failed to consider mitigating circumstances in arriving at the' sentence. The Defendant argues that the trial judge failed to take into account factors such as his youth, his employment, his family ties, and the fact that he was in mental health counseling prior to sentencing. He further argues that the trial judge improperly penalized him for opting to go to trial rather than enter into a plea agreement. The Defendant raised these issues below in a motion to reconsider sentence. The trial court denied the motion on April 8, 2002.

La.C.Cr.P. art. 894.1 C requires the trial judge to state for the record the considerations taken into account and the factual basis for imposing sentence. However, when the trial judge fails to articulate every circumstance listed in La. C.Cr.P. art. 894.1, a remand is not necessary if there is an adequate factual basis for the sentence contained in the record. State v. Fairley, 02-168, p. 8 (La.App. 5th Cir.6/26/02), 822 So.2d 812, 817.

In sentencing defendant, the trial judge stated:

I listened to this case, the jury found him guilty, and I listened to all the facts of the case, and I thought it was very— it’s a very hard situation when a man chokes his wife until she passes out, then steps over her form to fix his hair to go to work, it’s a cold situation. You know, it’s — -and in addition to that, she’s suffering from M. S., it’s, you know, it’s a hard situation. I didn’t give him the maximum sentence, but I’ve taken all the sentencing guideline factors into consideration, and for me to give him any less of a sentence would be a travesty of justice.

Based on the foregoing and the jurisprudence, we find that the trial judge complied with the provisions of Article 894.1. In addition, the record supports the sentence imposed. The Defendant is a chronic abuser who does not think his actions are aberrant. He testified that he had attended an anger management class, but he enrolled in the class only after being ordered by a judge to do so. He did not seek counseling of his own accord.

lip.The Defendant also complains that because the State offered first a one-year, then a two-year sentence in exchange for a guilty plea prior to trial, his sentence of four years constitutes a penalty for exercising his constitutional right to go to trial. At the time of sentencing, defense counsel argued:

For the record, Your Honor, this Court was amenable in pre-trial to a sentence of one year; later the individuals in this case were satisfied with the sentence of two years, and it appears for the record, and for purposes of appeal, that he’s being punished for exercising his right to a trial, in violation of North Carolina versus Pierce [sic].
The judge replied,
“Not at all. Before the trial, I didn’t hear any of the facts that were involved in the case, and I think he should find himself fortunate that it doesn’t carry a heavier penalty.”

In Bordenkircher v. Hayes, 434 U.S. 357, 363-364, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604 (1978), the United States Supreme Court stated:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutor’s offer....
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. [Citations omitted]

There is no evidence in the record, and the Defendant does not claim, that he was not free to accept or reject the State’s plea offers. The Defendant simply chose not to accept them, thereby taking the risk of a greater penalty upon conviction by a jury. Additionally, the trial judge heard more details of the | ^Defendant’s actions during trial. His sentence was not, therefore, vindictive. See also, State v. Tyler, 01-1038 (La.App. 5th Cir.3/26/02), 815 So.2d 205.

Defendant further argues that his sentence constitutes cruel and unusual punishment under the constitution. Both the United States and Louisiana constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. Amend. 8; La. Const, of 1974, Art. I, Sect. 20; State v. Richmond, 98-1015 (La.App. 5th Cir.3/10/99), 734 So.2d 33, 38. A sentence is generally considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Richmond, 734 So.2d at 38; State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. However, the sentence will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. Richmond, 734 So.2d at 38. The trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); Richmond, 734 So.2d at 38. In making this determination, the sentencing judge may consider not only convictions, but also past criminal behavior that did not result in a conviction. State v. Anderson, 02-273, p. 7 (La.App. 5th Cir.7/30/02), 824 So.2d 517, 522; State v. Gilbert, 00-1822, p. 5 (La.App. 5th Cir.5/16/01), 788 So.2d 574, 577. Nonetheless, a sentence may be reviewed for ex-cessiveness even though it is within statutory range. Richmond, 734 So.2d at 38.

The Defendant’s sentence is one year less than the five-year maximum provided by La.R.S. 14:34.1. However, the record shows that Defendant has a long history of abusing women after little or no provocation. The trial judge stated | uthat he considered this fact, and found that a lesser sentence would deprecate the seriousness of the instant offense. Based on these facts, we find that the trial judge did not abuse his wide discretion in imposing a four-year sentence.

PATENT ERROR

The record was reviewed for patent errors, in accordance with La.C.Cr.P. art. 920. See: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198.

Our review discloses that the trial judge did not advise the Defendant of the two-year prescriptive period for applying for post-conviction relief, as required under La.C.Cr.P. art. 930.8. Therefore, we remand the case with an order for the trial judge to send written notice to the Defendant that his application for post-conviction relief must be filed no more than 2 years after the judgment of conviction and sentence has become final. The trial judge is to send this notification within ten days of the rendering of this opinion, then file written proof in the record that the Defendant received the notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, we hereby affirm the Defendant’s conviction and sentence. We remand the case with an order to the trial judge to send to the Defendant, within ten days of the rendering of this opinion, written notice of the prescriptive period for post-conviction relief, and then to file written proof in the record that the Defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED. CASE REMANDED.

      . State v. Fortino, 01-K-1364.

      . State v. Fortino, 02-0277 (La. 1/28/02), 807 So.2d 827.

      . See, however, State v. Richard, 01-952, p. 9 (La.App. 5th Cir. 1/29/02), 807 So.2d 1129, 1135-1136, in which a panel of this Court recognized the clear and convincing standard, but did not address the sufficiency of the evidence.


author: _[¿FOGG, J.

text:
    Lynn MALLORY v. PINEAPPLE MANAGEMENT SERVICES, INC.
    No. 2002 CA 0126.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.

      Denise A. Vinet, Baton Rouge, for Plaintiff — Appellee Lynn Mallory.
    John J. Rabalais, Michael K. Spring-mann, Covington, for Defendant — Appellant Pineapple Management Services, Inc.
    Before: FOIL, FOGG, and KLINE, JJ.

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

   _[¿FOGG, J.

In this workers’ compensation suit, the employer raises issues of causation and fraud. In her answer, the former employee requests additional attorney’s fees and seeks sanctions against counsel for the employer. For the following reasons, we affirm the trial court and award additional attorney’s fees.

On May 1, 2000, Lynn Mallory was employed by Fairfield Inn in the housekeeping department. On May 9, 2000, she fell while cleaning a bathtub in a guest room. Fairfield Inn paid some of Mallory’s medical expenses, but refused to pay disability benefits. Mallory filed a claim for workers’ compensation benefits, and Fairfield Inn reconvened asserting Mallory willfully made false statements to obtain benefits, in violation of LSA-R.S. 23:1208. Fair-field Inn moved for summary judgment on the issue of Mallory’s alleged fraud. After concluding the hearing on Fairfield Inn’s motion and the trial on the merits, the workers’ compensation judge found Fair-field Inn failed to prove the absence of a genuine issue of material fact concerning Mallory’s alleged fraud and denied the motion for summary judgment. The workers’ compensation judge then awarded Mallory indemnity and medical benefits, penalties, and attorney’s fees. Fairfield Inn appealed, and Mallory answered.

Fairfield Inn asserts the workers’ compensation judge erred in denying its motion for summary judgment as it is undisputed that Mallory provided Fairfield Inn false medical information concerning her prior leg problems and the length of her recovery from prior back surgery. Specifically, she denied any prior problems with either leg. However, her medical records indicate that in September 1984, following back surgery of May 1984, Mallory complained to her treating surgeon of her left leg giving way. In addition, Fairfield Inn asserts Mallory’s statement that her recovery |sfrom a 1984 surgery lasted “maybe a year, maybe better” is in conflict with her actual recovery, which lasted two years and three months. It asserts that these statements constitute fraud and result in the forfeit of her right to receive workers’ compensation benefits.

LSA-R.S. 23:1208 provides that workers’ compensation benefits shall be forfeited by an employee who willfully makes a false statement for the purpose of obtaining workers’ compensation benefits. This statute applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits and encompasses any false statements or misrepresentations made to anyone, including the employer or physicians, when made willfully or deliberately for the purpose of obtaining benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7.

Although Mallory’s statements may not have been completely accurate, we fail to see how such an insignificant failure to recall exact details concerning an event sixteen years prior to her injury could be considered willful false statements.

Fairfield Inn also asserts the workers’ compensation judge erred in admitting into evidence Mallory’s late-filed affidavit, offered in opposition to Fairfield Inn’s motion for summary judgment. We find any error was harmless. The declarations contained in the affidavit were merely restatements of Mallory’s testimony given at her deposition, which was entered into evidence by Fairfield Inn in support of its motion. See Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1 Cir.), writs denied, 605 So.2d 1117, 1119 (La.1992). Fairfield Inn failed to establish an absence of material fact concerning any fraud committed by Mallory. The workers’ compensation judge properly denied Fairfield Inn’s motion for summary judgment.

Fairfield Inn asserts the workers’ compensation judge erred in finding Mallory met her burden of proving a com-pensable injury. A claimant must prove by a ^preponderance of the evidence that an employment accident occurred and that it had a causal relationship to the disability. A worker’s testimony alone may be sufficient to discharge this burden of proof if no other evidence discredits or casts serious doubt upon the worker’s version of the incident and the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends, and by medical evidence. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). The trier of fact’s determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong. Jackson v. Savant Ins. Co., 96-1424 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178.

At trial, Mallory testified she had one foot inside and one foot outside the bathtub when she fell on her back and slid onto her left side. No one else witnessed her fall. She immediately reported the fall to a co-worker, who reported the accident to Mallory’s supervisor. Mallory was transported by her supervisor to the hospital. At the hospital, Mallory complained of back and leg pain, and she was diagnosed with a lumbar strain. An MRI did not reveal a herniated disc, but based on Mallory’s prior back surgery and her current complaints of pain, Dr. Sefan Pribil, a neurosurgeon, recommended conservative treatment. Dr. Pribil opined Mallory was unable to work.

Mallory obtained a second opinion from Dr. Stuart Phillips, an orthopedic surgeon, who diagnosed Mallory with a recurrent disc herniations caused by her fall. Dr. Phillips initially recommended conservative treatment, but ultimately recommended surgery. Dr. Phillips found Mallory unablé to work. Dr. Claude Williams, an orthopedic surgeon, found a slight disc bulge but no evidence of recurrent disc herniations. He did not recommend surgery. Dr. Williams found Mallory could perform sedentary work.

IsDr. John Sweeney, an orthopedic surgeon, examined Mallory at Fairfield Inn’s request. Dr. Sweeney found Mallory’s symptoms exaggerated and no recurrent disc herniations attributable to the May 9, 2000 fall. Dr. Sweeney diagnosed Mallory with low back pain and did not recommend surgery. Dr. Sweeney did not find Mallory impaired from working as a housekeeper.

After a thorough review of the record, we find no manifest error in the workers’ compensation judge’s determination that Mallory satisfied her burden of proving a compensable injury.

Fairfield Inn disputes Mallory was hired as a full-time employee. Fairfield Inn asserts Mallory was a part-time employee, hired to work between sixteen and thirty hours per week. Mallory testified she was hired to work full-time, and she would not have accepted an offer of part-time employment. Although Mallory’s personnel records are marked “PT”, allegedly indicating part-time status, this handwritten notation does not appear to be in Mallory’s handwriting. Moreover, Patricia LeBlanc, general manager of Fairfield Inn, testified that Fairfield Inn had never had a part-time employee. Therefore, we cannot say the workers’ compensation judge erred in finding Mallory was a full-time employee.

Fairfield Inn also asserts the workers’ compensation judge erred in awarding Mallory penalties and attorney’s fees. Fairfield Inn contends penalties are not available upon the discontinuation of workers’ compensation benefits, citing LSA-R.S. 23:1201.2. In addition, Fairfield Inn maintains there was sufficient grounds for controverting Mallory’s claim, thereby precluding the assessment of penalties and attorney’s fees pursuant to LSA-R.S. 23:1201(F)(2).

A workers’ compensation claimant is entitled to penalties and attorney’s fees if an employer fails to timely pay compensation benefits unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. LSA-R.S. 23:1201(F). Brown v. Texas iLttfi Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. To determine whether the claimant’s right has been reasonably controverted, a court must ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Brown, 721 So.2d at 890. Whether the refusal to pay workers’ compensation benefits warrants the imposition of penalties and attorney’s fees is a factual question which will not be disturbed on appeal in the absence of manifest error. McClendon v. Keith Hutchinson Logging, 96-2373 (La.App. 1 Cir. 11/7/97), 702 So.2d 1164, writ denied, 97-2872 (La.2/13/98), 706 So.2d 995.

The workers’ compensation judge found Fairfield Inn was unreasonable in controverting Mallory’s claim. The workers’ compensation judge found Mallory reported the accident and gave her coworkers consistent facts concerning the accident. Dr. Pribil found Mallory in severe pain, in need of a lumbar brace, and unable to work. Dr. Phillips found Mallory unable to work and recommended surgery. Fairfield Inn failed to discredit Mallory with inconsistent statements she made concerning her 1984 surgery. Therefore, we cannot say the workers’ compensation judge’s findings concerning the imposition of penalties and attorney’s fees based on Fairfield Inn’s non-payment of benefits were clearly wrong. However, considering Mallory’s answer requesting additional attorney’s fees, we award her $1,500.00 for attorney’s fees on appeal.

Finally, Mallory asserts counsel for Fairfield Inn should be sanctioned for asserting fraud allegations. Mallory contends the accusations contained in Fair-field Inn’s brief to this court, that she lied, committed perjury, and “needed to be taught a lesson,” were unprofessional. Appellate briefs are regulated by Uniform Rules-Courts of Appeal, Rules 2-12.4 and 2-12.5, which require language in a brief to be | ycourteous and free from offensive expressions and insulting criticism. Violations subject the author of the brief to punishment for contempt of court, and to having the brief returned.

Fraud is a misrepresentation or a suppression of the truth. LSA-C.C. art. 1953. Allegations of fraud, therefore, necessarily include accusations that Mallory lied or committed perjury. While we find some of Fairfield Inn’s counsel’s choice of words to be harsh, we cannot say that it rises to the level that warrants the imposition of sanctions.

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. Lynn Mallory is awarded the sum of $1,500.00 in attorney’s fees for work performed on this appeal. Costs of this appeal are assessed against Fairfield Inn.

AFFIRMED.

      . Fairfield Inn is operated by Pineapple Management Services, Inc., the named defendant in this matter.