author: LCOOKS, Judge. |tAMY, J.,

text:
    CHESAPEAKE OPERATING, Inc. v. Robert RICHARDSON, et ux.
    No. 04-345.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2004.
    Patrick S. Ottinger, Herman E. Garner, Jr., Ottinger Hebert, L.L.C., Lafayette, LA, for Appellee, Chesapeake Operating, Inc.
    Guy E. Wall, Wall & Bullington, L.L.C., New Orleans, LA, for Appellants, Robert Richardson, et al.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   LCOOKS, Judge.

STATEMENT OF THE FACTS

On December 20, 1996, Robert Richardson entered into an oil and gas lease with Chesapeake Operating, Inc. covering 1,121.96 acres in the Austin Chalk trend in Vernon, Rapides and Allen parishes. The lease paid $150.00 per acre for a primary term of five years provided there was production on the property. In the absence of production, the lease terminated on December 20, 1997, unless Chesapeake paid a monthly rental of $50.00 per acre. There was no production on the property during 1997. On December 20, 1997 the lease expired and no rental payment was made by Chesapeake. Gary Dunlap, land manager for Chesapeake, explained Chesapeake’s decision to delay payment: “[A]ll rentals were under review, based upon the location of the acreage. And we delayed until the last minute, based upon that review.” He also testified the “wells drilled in the south end of the trend in Louisiana, also on the north, and also on the east and west, had proved the limits of the trend to be smaller than we expected.” Because the trend was smaller than expected Chesapeake did not want to lease unproductive acreage. Once Chesapeake completed the review, it decided to continue the lease for the price of $50.00 per acre and sometime after the expiration date, tendered the full amount of the rental to Mr. Richardson. By letter dated January 28, 1998, Mr. Richardson rejected the late payment and demanded Chesapeake release the acreage.

On February 27, 1998, Chesapeake filed a petition for Declaratory Judgment asking that the lease be declared in full force and effect. Chesapeake alleged, and continues to allege on appeal, its failure to make timely rental payments were the result of a “good faith mistake,” “inadvertence and oversight” in the administration of its leases. Richardson filed a reconven-tional demand for damages under La.R.S | ?|31:206 and 207. In July and August, 1998, Chesapeake finally furnished a release of the property and dismissed the principal demand. Mr. Richardson, however, did not dismiss his reconventional demand for damages. Chesapeake filed a motion in limine to prohibit Mr. Richardson from presenting the testimony of Guy Ellison, an expert in oil and gas leasing in the Austin Chalk trend, and a motion for partial summary judgment. The trial court granted Chesapeake’s motion for partial summary judgment and motion in limine. The trial court reviewed Mr. Ellison’s affidavit and deposition and found “[o]nly two of the underlying reasons are facts .... [t]he other underlying factors are opinions, the basis of which is unknown.” He further stated:

Article 702, et seq, of the Louisiana Code of Evidence requires that the expert demonstrate the testability of the expert’s technique and methodology used to form the basis of his opinion is generally accepted in the scientific community. There were no facts showing what other wells were producing in the general area nor what other tracts were leased in close proximity of this area by unnamed competitors.
The court finds the testimony of the expert as provided to this court does not rise to the level of reliability required by Daubert and Article 702 of the Louisiana code of evidence.
For these reasons, the motion in li-mine and the motion for summary judgment are granted.

Mr. Richardson appeals the trial court ruling. For the reasons assigned below, we reverse the decision of the trial court and remand for trial on the merits.

LAW AND DISCUSSION

Motion in Limine

Louisiana Code of Evidence Article 702 provides, in relevant part:

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

Federal Rule of Evidence Article 702 contains identical language and was [ interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert dealt with the admissibility of testimony by an expert witness linking a prescription drug with birth defeats.

Prior to revisions to the Federal Code of Evidence, under Frye v. United States, 293 F. 1013 (1923), “expert opinion based on a scientific technique [was] inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant scientific community.” Daubert, 509 U.S. at 584, 113 S.Ct. at 2792. Daubert rejected the “general acceptance” standard in favor of a more flexible approach. Citing Federal Rule of Evidence Article 702, the Court stated:

Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” Beech Aircraft Corp. v. Rainey, 488 U.S., at 169, 109 S.Ct. at 450 (citing Rules 701 to 705). Daubert, 113 S.Ct. at 2794.

Comments under Louisiana Code of Evidence Article 702, indicate Louisiana, by adopting the federal language, also intended to “[provide] a more positive approach to the reception of expert testimony than that afforded by former R.S. 15:463 et seq.” Under the current article in Louisiana, the “criterion is whether the particular specialized knowledge would ‘assist the trier of fact to understand the evidence or to determine a fact in issue,’ not whether the question in issue involves ‘knowledge obtained only by means of special training or experience,’ as provided in former R.S. 15:464.” La.Code Evid. art. 702 cmt. a.

Applying the principles in Daubert and Louisiana Code of Evidence Article 702, we find the trial court erred in excluding the testimony of Guy Ellison. The trial court also erred in granting the motion to strike Mr. Ellison’s supplemental affidavit | ^and exhibits which were submitted to Mr. Richardson’s motion for reconsideration of the partial summary judgment. Mr. Ellison, as a recognized expert in the oil and gas industry, possesses the “technical, or other specialized knowledge [which] will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” The primary issue in the case is whether Chesapeake’s failure to provide a timely release of the acreage caused Mr. Richardson to suffer damages. Mr. Ellison possesses a level of expertise regarding established customs and practices in the oil industry and would assist the jury in obtaining a full understanding of the factors involved in making a determination whether to lease or abandon a site. Additionally, he can testify as to the market price for oil at the time and the price per acre paid by other companies. He can interpret for the jury the current data in the area, the production or non-production of existing wells and explain the use of new technology. Mr. Ellison’s knowledge of industry practices will assist the jury in assessing the reasonableness of Chesapeake’s management of its rental properties as well as the reasonableness of Mr. Richardson’s belief in his ability to obtain a higher price for his land. The testimony of an expert such as Mr. Ellison is not only relevant, but necessary in order for a plaintiff to prove his case. We find the trial court erred in applying the “general acceptance” standard and excluding the testimony of Mr. Ellison.

Motion for Partial Summary Judgment

Louisiana Revised Statutes 31:206(B) provides, in relevant part:

When a mineral lease is extinguished prior to the expiration of its primary term, the former lessee shall, within ninety days after the extinguishment, record an act evidencing the extinction or expiration of the lease in the official records of all parishes wherein the lease is recorded.

Louisiana Revised Statutes 31:207 provides, in relevant part:

Llf the former owner of the extinguished or expired mineral right fails to furnish the required act within thirty days of receipt of the demand or if the former lessee of a mineral lease fails to record the required act within ninety days of its extinguishment prior to the expiration of its primary term, he is liable to the person in whose favor the right or the lease has been extinguished or expired for all damages resulting therefrom and for a reasonable attorney’s fee incurred in bringing suit.

Chesapeake contends Mr. Richardson will be unable to prove “he missed an actual, identifiable opportunity” to lease the land due to Chesapeake’s failure to provide a timely release. The trial court agreed and dismissed the suit. We find the trial court erred in holding Mr. Richardson must prove an “actual, identifiable opportunity” to lease. The standard of proof is preponderance of the evidence. Mr. Richardson need only prove it more probable than not he would have been able to lease his property had Chesapeake complied with its statutory duty.

In Edmundson Brothers Partnership v. Montex Drilling Company, Inc., 98-1564 (La.App. 3 Cir. 5/5/99), 731 So.2d 1049, this court affirmed an award of damages for lost leasing opportunities. The plaintiff in Edmundson was not required to prove an “actual, identifiable opportunity” rather the court used preponderance of the evidence standard and found “based on all testimony [it is] more probable than not that plaintiff would have demanded a full lease in 1988 had he been aware at that time of the expiration of the Shell Lease.” Id. at 1065. The trial court based his decision on testimony indicating the various lease extensions were executed in the area during the time in question and the fact that there was past production on the tract of land involved in the dispute. The trial court stated:

This Court believes more probable than not that [plaintiffs] would have demanded a new lease. This Court finds more probable than not that plaintiffs property, if available for lease in 1988, would have been an attractive property and would have brought a bonus of $100.00 per acre plus rentals of $25.00 per acre for two years.
Id. at 1065-66. (See also, Crane v. Sun Oil Company, 255 La. 1017, 233 So.2d 919 (1970), |7where the court applied a “preponderance of the evidence” standard of proof.)

There is evidence in the record to indicate Chesapeake acted in its own self interest at the expense of the landowner in failing to comply with its statutory duty. Gary Dunlap, land manager for Chesapeake, testified Chesapeake delayed rental payment because at that time “all rentals were under review, based upon the location of the acreage. And we delayed until the last minute, based upon that review.” He also testified the “wells drilled in the south end of the trend in Louisiana, also on the north, and also on the east and west, had proved the limits of the trend to be smaller than we expected.” Because the trend was smaller than expected Chesapeake did not want to take a chance on unproductive acreage. Moreover, it was Chesapeake who sued to enforce the rental provisions after the expiration date on the lease, thereby, entangling the property in litigation and further diminishing any opportunity to re-lease the land. A reasonable person could conclude no company would be interested in leasing property which is embroiled in litigation. Chesapeake’s own actions may have foreclosed any opportunity for Mr. Richardson to release the land.

When the trial court excluded the testimony of Mr. Ellison, he foreclosed any opportunity Mr. Richardson may have had to establish the elements of his case. The record indicates had Mr. Ellison been allowed to testify he would have established in January 1998, oil prices were high and seismic tests were being conducted. There was considerable leasing activity in the Austin Chalk area at that time. Chesapeake was paying an average of $493.00 per acre for leases. He would have testified customarily an oil company will not lease property where there is an existing lease in its primary term. Additionally, he would have testified timing in the oil industry is critical. Property can go from extremely valuable to worthless in a matter of months. By the time this property was finally released, six months later, the price for | Roil had dropped to $12.00 or $13.00 a barrel and seismic tests in the area was not favorable for drilling. He would have testified based on his knowledge and expertise in the oil industry “acreage covered by the Lease was very valuable until June of 1998, shortly before Chesapeake withdrew its lawsuit and submitted a release. This coincided with the time that the price of oil declined thirty percent (30%) to $12 or $13/barrel and a number of wells had poor results. Wells in this area could not be economically justified at this price. At this time, several companies decided to significantly reduce their leasing activities in the Austin Chalk trend where such acreage was located. From that point forward, opportunities to lease such acreage would be extremely limited.”

We find there is enough evidence in the record to establish a genuine issue as to whether Mr. Richardson suffered damages as a result of Chesapeake’s failure to timely release the property. Mills v. Davis Oil Company, 11 F.3d 1298 (5th Cir.1994) stated the measure of damages for failure to provide a timely release are “the difference between [the landowner’s] current position and the position he would have occupied had Davis timely complied with his statutory duty.” Id. at 1303. We find the trial court improperly excluded the testimony of the expert witness, and foreclosed any opportunity for Mr. Richardson to adequately and fairly present his case to the jury. Therefore, we reverse the motion in limine and motion for partial summary judgment and remand for trial

DECREE

The decision of the trial court is reversed and the case is remanded for trial on the merits. All costs of this appeal are assessed to Chesapeake Operating, Inc.

REVERSED.

AMY, J., concurs and assigns written reasons.

|tAMY, J.,

concurring.

I join the majority in its reversal of the granting of the motion in limine and the motion for partial summary judgment. With regard to the motion in limine, I agree with the majority that the trial court erred by rejecting the oil and gas leasing expert’s affidavit. In my opinion, insofar as the trial court’s ruling could be interpreted to have prohibited the expert from testifying at trial, as opposed to removing the affidavit from consideration in the summary judgment proceedings, I find any such ruling premature. Therefore, should a further hearing be required pursuant to La.Code Evid. art. 702 and the principles enunciated under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), I do not find our determination today preclu-sive of further consideration of admissibility under those standards. Furthermore, I join in the majority in its determination to reverse the motion to strike granted by the trial court. In my opinion, this issue is rendered moot by reversal of the partial summary judgment.

       Mr. Richardson's claim for punitive damages was disposed of by the trial court on a no cause of action motion filed by Chesapeake, That issue is not before us on appeal.


source: Caselaw Access Project

author: |¡>WOODARD, Judge.

license: Public Domain

text:
    Jamie HEBERT, et al. v. CALCASIEU PARISH SCHOOL BOARD.
    No. CW04-81.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2004.

      Terrell DeWight Fowler, Attorney at Law, Lake Charles, LA, for Plaintiff/Respondent, Jamie Hebert, Taylor Hebert.
    Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendant/Applicant, Calcasieu Parish School Board.
    Court composed of Chief Judge ULYSSES G. THIBODEAUX, BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   |¡>WOODARD, Judge.

Calcasieu Parish School Board (School) seeks supervisory writs from the trial court’s judgment which denied its exception of prescription. We deny writs and remand the matter for further proceedings.

* * $

This case involves Ms. Jamie Hebert’s young daughter, Taylor, who fell during recess while in the School’s care and custody. She was injured when her head struck a concrete pad. The accident occurred on September 27, 2001. Taylor’s initial injuries consisted of a hemorrhage or contusion and a nondisplaced skull fracture. Subsequently, she had some “infrequent episodes of unusual behavior such as bed wetting, some clumsiness and complaints of dizziness,” but neither Ms. Hebert nor any examining physician ever associated any of these problems with the accident or a head injury of any kind.

However, on March 7, 2003, an EEG revealed that Taylor had an epileptic lesion, allegedly from the September 27th fall at school.

Accordingly, Ms. Hebert, individually and as natural tutrix of her minor child, Taylor, filed suit against the School on April 10, 2003. The School filed an exception of prescription, which the trial court denied. Consequently, the School petitions this court to exercise our supervisory jurisdiction to overturn the trial court’s decision and grant the exception.

Prescription

Louisiana Civil Code Article 3492, in pertinent part, provides:

Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained.

l.qThe instant action is a negligence action, or tort, and, therefore, delictual. The School argues that prescription began to run against Ms. Hebert on September 27, 2001, the date Taylor fell and injured her head. Ms. Hebert’s claim has, in fact, prescribed on the face of the petition. Consequently, she has the burden of proving that prescription was suspended or interrupted.

The jurisprudential doctrine of contra non valentum agere nulla currit praescriptio recognizes that “in some circumstances, equity and justice require that the prescription ‘be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.’ ” Prescription will not run against a person who is unable to act which means unable to file suit. The contra non valentum doctrine contemplates four different scenarios in which a person is unable to file suit, only one of which is relevant in the instant case. This scenario, often referred to as the “discovery rule,” suspends prescription where a plaintiff neither knew she had a cause of action nor could have learned of it through reasonable diligence. The heart of the inquiry focuses on the reasonableness of a plaintiffs action or inaction.

Ms. Hebert claims that she had no reason to know of her cause of action for Taylor’s current injuries until the EEG revealed Taylor’s lesion. However, “in cases in which a plaintiff has suffered some but not all of his damages, prescription runs from the date on which he first suffered actual and appreciable damage, even though he may thereafter come to a more precise realization of the damages he has already incurred or incur further damage as a result of the completed tortious act.” The School argues that Ms. Hebert had sufficient knowledge, immediately after the fall, |4to know that she had a cause of action against the School and that Taylor suffered appreciable damages sufficient to start the tolling of prescription at that time. It points out that Taylor spent two days in the hospital at the time of the accident.

Nonetheless, at that time, Taylor’s hemorrhage had healed even before the hospital released her and Ms. Hebert testified that the physicians told her the non-displaced fracture would heal without any treatment. Thus, she actually had knowledge only of two injuries, both of which were temporary and seemingly minor. The epileptic lesion is a wholly separate injury that Ms. Hebert was unaware of until she received the EEG results.

We find our prior decision in Bourque v. Louisiana Health Systems Corporation instructive. In Bourque, the plaintiff contracted Hepatitis B from a blood transfusion in 1975. In 1998, she became aware that she had also contracted Hepatitis C, likely from the same blood transfusion. We considered that her claim for contraction of Hepatitis C, filed in 1999, within one year of the date she learned she had Hepatitis C, was timely filed even though she had actually contracted it in 1975. Certainly, at the time of the transfusion, she had a claim for contracting Hepatitis B, but we reasoned that Hepatitis C is a separate and distinct medical condition and “a plaintiff cannot be precluded from asserting a claim for a completely different disease diagnosed at a later time, from one contracted previously.”

We find the instant case similar in that the epileptic lesion is a totally separate medical condition from a hemorrhage or non-displaced skull fracture. Accordingly, we agree with the trial court that Ms. Hebert’s inaction, or choice not to immediately file a law suit for Taylor’s minor injuries, was reasonable. She did not learn of Taylor’s epileptic lesion, a serious and permanent condition, until March 7, 2003. Thus, she timely filed her cause of action within one year of that date.

CONCLUSION

We find that Ms. Hebert’s choice to refrain from filing suit for Taylor’s initial diagnosis of minor injuries should not preclude her from filing suit for Taylor’s | Bepileptic lesion, which was unknown to her until March 7, 2003. Therefore, we deny to grant the School’s writ. We cast the costs of these proceedings on Calcasieu Parish School Board.

WRIT DENIED.

      . Myers v. Dronet, 01-5 (La.App. 3 Cir. 6/22/01), 801 So.2d 1097.

      . Lima v. Schmidt, 595 So.2d 624 (La.1992).

      . Touchet v. Baker Hughes, Inc., 98-749, p. 5 (La.App. 3 Cir. 2/3/99), 737 So.2d 821, 824 (quoting Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206).

      . Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960.

      . Id.

      . Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987).

      . Harvey v. Dixie Graphics, 593 So.2d 351, 354 (La.1992) (citations omitted).

      . 03-56 (La.App. 3 Cir. 4/30/03), 845 So.2d 584, writs denied, 03-1866, 857 So.2d 480, 03-1882 (La. 10/31/03), 857 So.2d 481.

      . Id. at 588.


author: | ¡WOODARD, Judge.

text:
    STATE of Louisiana v. Jefferson W. GILL.
    No. 04-287.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2004.

      Richard A. Morton, Assistant District Attorney David W. Burton, District Attorney, DeRidder, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Jefferson W. Gill.
    Court composed of Chief Judge ULYSSES G. THIBODEAUX, BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   | ¡WOODARD, Judge.

Jefferson W. Gill appeals his conviction of vehicular homicide, a violation of La. R.S. 14:32.1, contending the evidence is not legally sufficient to support the verdict. We affirm the judgment, amending only by removing the words “as a condition of parole” in the judgment.

On May 22, 2001, passers-by noticed a burning truck in the woods about 50 feet off of Highway 190 near DeRidder sometime between 10:00 and 10:30 p.m. The witnesses called 911. One of the witnesses saw a black male with his back on fire get out of the driver’s side of the truck, stumble backwards ten feet, and fall down, unconscious. The male was later identified as Jefferson Gill. The witness approached the truck and saw a woman lying on the ground about five feet away from the passenger side of the truck. She was later identified as Lisa Faye Thomas.

Rescue personnel arrived and extinguished the truck fire. The driver’s side and the front of the truck were wrecked, and the roof was crushed. Gill regained consciousness and told one of the firefighters his knee and right shoulder hurt. State Trooper Rogers arrived on the scene at 12:17 a.m. and began questioning him while he was in the ambulance. Gill told Rogers that he was not the driver and was asleep when the accident occurred. After some questioning, the ambulance took him to the hospital for treatment.

Gill had burns on his feet and lower legs, injuries to his face, head, and a fracture of his cervical spine. Lisa Faye Thomas was pronounced dead at the hospital. Her cause of death was listed as massive chest trauma resulting from the crash.

When Trooper Rogers arrived at the hospital, he advised Gill of his Miranda rights and questioned him further about the accident. Rogers testified that Gill “stated that he had gone to Club 68 here in DeRidder, where he had picked up Ms. Thomas. At that time he just said it was his girlfriend. He didn’t know who she was. From there, they had gone to Lees-ville and he had drank a beer. Then he had gone to sleep, didn’t remember anything else.” Again, Gill denied he was driving when the accident occurred. Based on his investigation and questioning, Rogers asked him to consent to a chemical test of his blood. The result of this test was .09 grams percent. Rogers issued Gill a citation for vehicular manslaughter, to which Gill pled not guilty on pMarch 5, 2002. After a three day jury trial, the jury returned a guilty verdict. The trial court sentenced Gill to nine years at hard labor, two without benefit of probation, parole or suspension of sentence, and fines in the amount of $5000.00. Gill appeals the verdict, alleging the evidence is not legally sufficient to support the jury’s verdict. EkroRS Patent

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find one. The trial court incorrectly required Gill’s participation in a court-approved, substance-abuse program and a driver-improvement program as a condition of his parole.

A trial court exercises no authority over the penalty phase of the sentence “and can impose no condition on the parole responsibility of the parolee.” The penalty provision of the vehicular homicide statute requires the defendant’s participation “in a court-approved substance abuse program or a court-approved driver improvement program or both.” The only discretion the trial court has is whether a defendant participates in one program, or in both programs. Nevertheless, the trial court required defendant’s participation in both programs as a condition of parole. Therefore, we delete the portion of the sentence, ordering the participation in the programs as a condition of parole, and we require Gill’s participation in both programs.

STANDARD OP REVIEW

When reviewing an appeal which alleges that the evidence is not legally sufficient to support the verdict, we review the evidence in the light most favorable to the prosecution, the Supreme Court enunciated in Jackson v. Virginia. We determine whether the any rational trier of fact could conclude that all essential elements of the crime were proven beyond a reasonable doubt. The trier of fact |4weighs the credibility of witnesses; and therefore, we do not second-guess his or her credibility determinations beyond that of the sufficiency standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. For circumstantial evidence to convict, “it must exclude every reasonable hypothesis of innocence.”

SuffiCIENCy of the Evidenoe

Louisiana Revised Statutes 14:32.1 define the elements of vehicular homicide as:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle ... whether or not the offender had the intent to cause death ... whenever any of the following conditions exists:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests ...
(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

Gill alleges that the State failed to prove beyond a reasonable doubt that (1) he was driving the truck when the accident occurred, and (2) that he was intoxicated at the time of the accident. After reviewing all the evidence under the Jackson standard, we conclude that a rational trier of fact could find that Gill crashed the truck while intoxicated.

Gill Drove the Truck Causing the Accident

| fiGill contends that the evidence does not prove beyond a reasonable doubt that he drove the truck when it was involved in the one vehicle-accident. We do not agree. At trial, a witness testified that after the accident, he crawled out of the driver’s side of the vehicle. The witness saw the body of the victim five feet behind the passenger side of the vehicle. Gill’s treating physician in the ER testified that Gill told him that he was driving the vehicle when the accident occurred. Trooper Rogers’ testimony indicates that Gill told him twice that he had not been driving at the time of the accident, but had been driving earlier and had one beer. Rogers testified that he assumed Gill was driving when Gill told him he fell asleep before the accident.

Further, several witnesses testified that the victim never learned how to drive a car, never obtained a driver’s license, never drove a car, and never owned a car because of a seizure disorder. Gill produced nothing at trial contravening this evidence. Looking at this evidence in the light most favorable to the prosecution, this strong circumstantial evidence negates any reasonable claim by Gill that the victim was driving when the accident occurred.

Gill drove the truck while intoxicated

Gill next contends that the state failed to prove that he drove the truck while intoxicated and that the intoxication caused the accident.

The evidence does not support his contention. Trooper Rogers testified that when he interviewed Gill at the scene, he noticed a strong alcohol odor, slurred speech, and red eyes. The first blood sample, taken from Gill by hospital personnel for treatment purposes, read .145 grams percent. A second blood sample, taken for law enforcement purposes about four hours after the accident, showed Gill’s blood alcohol concentration was .09 grams percent. Further, Gill admitted to the trooper and the ambulance personnel that he was drinking before the accident. The victim’s brother-in-law testified that Gill drove to his house and was drinking a beer about three hours before the accident.

We conclude there is enough evidence in the record to support the jury’s conclusion that Gill was driving while intoxicated at the time of the accident.

The vehicular homicide statute also requires proof of causation. In State v. Gibson, this court stated:

lBThe Louisiana Supreme Court has held that “under the vehicular homicide statute, the state, in order to convict, must prove that an offender’s unlawful blood alcohol concentration combined with his operation of a vehicle to cause the death of a human being.” “It is insufficient for the state to prove merely that the alcohol consumption ‘coincides’ with the accident.”

In the case at bar, there is sufficient evidence that a reasonable trier of fact could conclude that Gill’s intoxication cased the accident. Trooper Rogers’ investigation of the accident scene revealed Gill’s truck ran off the right side of the road through a ditch, spun around, crashed through a fence, and into three trees before coming to a stop. No evidence was offered suggesting any other cause of the crash, such as another vehicle, mechanical defect or failure, weather conditions, or a defect in the roadway.

CONCLUSION

We conclude that the state proved beyond a reasonable doubt that Gill was intoxicated at the time of the accident which caused Lisa Faye Thomas’ death, and that his impaired driving was a contributing factor in the wreck. We amend the judgment, only, to remove the words “as a condition of parole.”

AFFIRMED AS AMENDED.

      . State v. Bradley, 99-364, p. 6 (La.App. 3 Cir. 11/3/99), 746 So.2d 263, 267.

      . La.R.S. 14:32.1.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Myers, 02-1296 (La.App. 3 Cir. 3/05/03), 839 So.2d 1183, writ denied, 03-0991 (La.10/10/03), 855 So.2d 330.

      . State v. Cortez, 96-859 (La.App. 3 Cir. 12/18/96), 687 So.2d 515.

      . Id.

      . State v. Wright, 445 So.2d 1198 (La.1984)

      . La.R.S. 15:438.

      . 97-108, p. 7 (La.App. 3 Cir. 4/30/97), 693 So.2d 286, 290 (internal citations omitted).


author: pAMY, Judge.

text:
    Michael B. SPARKS v. Mary Elizabeth DONOVAN, et al.
    No. 04-388.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2004.

      Lawrence G. Pugh, III, Alison Speirer Borison, New Orleans, LA, for Defendant/Appellee, Rite Aid, Inc./K & B Louisiana Corporation.
    Jack E. Truitt, The Truitt Law Firm, Madisonville, LA, Ingrid Cruz, New Orleans, LA, for Defendant/Appellee, K-mart Corporation.
    Lamont P. Domingue, Andrea L. Albert, Voorhies & Labbe, Lafayette, LA, for Plaintiff/Appellant, Michael B. Sparks.
    Paul M. Donovan, Donovan & Lawler, Metairie, LA, for Defendant/Appellee, Mary Elizabeth Donovan.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD , Judges.

       John B. Scofield, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   pAMY, Judge.

The plaintiff filed suit against his former wife and several pharmacies, claiming that while he and his wife were separated, but before their divorce, the pharmacies released copies of his prescription profiles to his wife without his consent, causing him to suffer, inter alia, embarrassment and emotional distress. The plaintiff eventually dismissed his claims against the pharmacies pursuant to a compromise. The plaintiffs ex-wife filed a motion for summary judgment and, alternatively, exceptions of no cause of action and no right of action, arguing that she had no duty with respect to her ex-husband’s prescription records. The trial court agreed and granted the exception of no cause of action. From this judgment, the plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The present dispute arose in the larger context of a divorce proceeding. The record indicates that Michael Sparks, plaintiff herein, and Mary Elizabeth Donovan, one of the named defendants, were married in November 1980 and separated in June 1999. Their divorce was finalized on August 31, 2000.

In his petition in the instant matter, filed on January 23, 2001, Mr. Sparks alleged that on or around January 14, 2000, Ms. Donovan requested his prescription profiles from K Mart, Eckerd, Rite Aid, Walgreens, Rosser’s Prescription Shop, Lewis Family Drug, and Walk In Clinic South. Mr. Sparks asserted that these pharmacies provided his prescription records to Ms. Donovan without his consent and without a court order or subpoena, in violation of Louisiana law pertaining to privileged information. In addition, he claimed that the defendants were liable in tort pursuant to La.Civ.Code arts. 2315 and 2317 and contended that their actions constituted an invasion of his privacy and caused him to suffer inconvenience, | ^emotional distress, and embarrassment. Mr. Sparks further argued that the release of his records caused his “long-term” relationship with these pharmacies to be strained and has required him to spend money in pursuing this claim in addition to the divorce proceeding.

In response to Mr. Sparks’ assertions, K Mart, Rosser’s, Walgreens, Eckerd, and Rite Aid each filed peremptory exceptions of prescription. Accordingly, Mr. Sparks amended his petition to state that Ms. Donovan had obtained prescription records from the various pharmacies on other dates, ranging from January 14, 2000, through August 4, 2000. In the memorandum accompanying his motion to amend, Mr. Sparks claimed that his petition was not filed on January 23, 2001, but was instead filed on January 16, 2001. He pointed out that, based upon the additional information provided in the newly amended petition, seven of the eleven times that his wife obtained his prescription records took place after January 16, 2000, and any cause of action as to these occurrences had not prescribed when he filed his petition. In addition, with respect to his wife’s actions before January 16, 2000, Mr. Sparks contended that he still had a viable cause of action pursuant to the doctrine of contra non valentam because he neither knew nor had reason to know that what had happened until after January 16, 2000.

The record indicates that in addition to the exceptions of prescription, K Mart, Rosser’s, Rite Aid, and Eckerd also filed peremptory exceptions of no cause of action. These exceptions were not heard by the trial court because Mr. Sparks dismissed his claims against the pharmacy defendants with prejudice, pursuant to a compromise, on November 6, 2003.

|3On September 25, 2003, Ms. Donovan filed a motion for summary judgment, and, alternatively, exceptions of no cause of action and no right of action. After a hearing on September 26, 2003, the trial judge determined, pursuant to the balancing test outlined in Jaubert v. Crowley Postr-Signal, Inc., 375 So.2d 1386 (La.1979), that Ms. Donovan’s conduct in obtaining the records in light of a pending child custody proceeding was not so unreasonable as to give rise to a cause of action. The judgment granting Ms. Donovan’s exception of no cause of action was signed on November 13, 2003.

Mr. Sparks appeals, contending that the trial judge erred in determining that his petition failed to state a cause of action.

Discussion

The Louisiana Supreme Court has discussed the peremptory exception of no cause of action at length in its opinion in Industrial Companies, Inc. v. Durbin, 02-665 (La.1/28/03), 837 So.2d 1207. In explaining its reasoning in that case, the court provided the following commentary as to the purpose of the exception of no cause of action and as to the proper grounds on which it may be sustained:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 2001-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304. The ^peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Fink v. Bryant, 2001-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Cleco Corp., 2001-0175 at p. 3, 795 So.2d at 304; Fink, 2001-0987 at p. 4, 801 So.2d at 349.... Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink, 2001-0987 at p. 4, 801 So.2d at 349. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Jackson v. State ex rel. Dept. of Corrections, 2000-2882, p. 4 (La.5/15/01), 785 So.2d 803, 806.

Durbin, 837 So.2d at 1213. In addition to the above, and particularly relevant in the context of the present appeal, the fifth circuit has noted that in an exception-of-no-cause-of-action scenario, “[t]he petition must set forth the material facts upon which a cause of action is based; the allegations must be ultimate facts; conclusions of law of fact, and evidentiary facts will not be considered.” Parish of Jefferson v. City of Kenner, 95-266, p. 1 (La.App. 5 Cir. 10/31/95), 663 So.2d 880, 881(emphasis added). Moreover, in Harris v. Brustowicz, 95-27, p. 4 (La.App. 1 Cir. 10/6/95), 671 So.2d 440, 442, the first circuit noted that “when a petition states a cause of action as to any ground or portion of a demand, the exception should be overruled.” We review de novo the trial court’s judgment granting the exception of no cause of action. Durbin, 837 So.2d at 1213.

In our review of the judgment of the court below, it is important for our purposes to reproduce the factual allegations contained in Mr. Sparks’ petition. The pertinent parts of that petition are as follows:

3.
At times prior to that in question, your petitioner had obtained certain prescription medications, as had been prescribed by certain of his |Rhealth care providers from the pharmacies associated with K MART CORPORATION, ECKERD DRUGS OF LOUISIANA, INC., ROSSER’S PRESCRIPTION SHOP, INC., RITE-AID [sic], INC., LEWIS FAMILY DRUG, WALGREEN LOUISIANA CO., INC., AND WALK IN CLINIC SOUTH and each of the said pharmacies did maintain certain medical and/or prescription records regarding petitioner.
4.
On or about January 14, 2000, MARY DONOVAN SPARKS did obtain from certain medical records or printouts of the prescriptions obtained by Petitioner from said improperly obtained documents in separate court proceedings.
5.
In obtaining these medical/prescription records, MARY DONOVAN SPARKS knew or should have known, that the documents she requested and obtained were private and privileged medical documents, not subject to public request.
6.
K MART CORPORATION, ECK-ERD DRUGS OF LOUISIANA, INC., ROSSER’S PRESCRIPTION SHOP, INC., RITE-AID [sic], INC., LEWIS FAMILY DRUG, WALGREEN LOUISIANA CO., INC., AND WALK IN CLINIC SOUTH did provide a copy of the requested documents without requesting or obtaining your petitioner’s consent or obtaining the proper Court authority/subpoena.
7.
The reckless actions taken by MARY ELIZABETH DONOVAN in requesting the private and privileged medical/prescription information of your Petitioner, and then disseminating said information to others, are actionable under La. Civil Code Article 2315 and have caused your Petitioner to suffer an invasion of privacy, embarrassment, inconvenience, emotional distress, have placed a strain on a long-term medical relationship with each of the involved pharmacies, and has caused Petitioner to expend additional sums in defending against said improperly obtained documents in separate court proceedings.

In his opposition to Ms. Donovan’s motion and exceptions below, as well as in his brief on appeal, Mr. Sparks complains that Ms. Donovan obtained documents to which she would not have had access without a court order. In support of this assertion, Mr. Sparks cites La.R.S. 13:3734(D) for the proposition that his | (¡prescription records are privileged and that a duty of confidentiality is owed by health care providers, including pharmacists, to their patients. Mr. Sparks argues that according to Stumpf v. Stumpf, 613 So.2d 683 (La.App. 5 Cir.1993), a patient may refuse to disclose the substance of his communications with his pharmacist except in limited circumstances, which, pursuant to Arsenaux v. Arsenaux, 428 So.2d 427 (La.1983), do not include divorce proceedings. Mr. Sparks points out that he did not otherwise waive this privilege at any time between January and August 2000.

In the alternative, Mr. Sparks contends that although his ex-wife might not be affected by the aforementioned privilege, her actions constituted intentional infliction of emotional distress, and she caused him to suffer mental anguish. He points out that in Ms. Donovan’s deposition, taken in January 2003, she admitted obtaining his pharmacy records without his consent and without a court order and further admitted including these records in a complaint to the state medical board and discussing them 17with a friend of hers, with the family’s psychologist, and with her brother-in-law. Mr. Sparks contends that Ms. Donovan disseminated the information found in his prescription records for the purpose of causing him harm, embarrassment, and mental anguish in both his private life and in his business endeavors.

Mr. Sparks’ arguments in opposition to Ms. Donovan’s motion and exceptions below, as well as his contentions on appeal, are chiefly based upon factual allegations that are not found within the petition. We are cognizant that, despite these additional facts, we are only to consider those allegations made within Mr. Sparks’ petition itself in concluding whether he has stated a cause of action, as directed by the supreme court in Durbin, above.

Mr. Sparks alleges in his petition that Ms. Donovan’s conduct is subject to redress under La.Civ.Code art. 2315. This article, the fountainhead of tort liability in Louisiana law, states, in pertinent part, that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In determining tort liability pursuant to La. Civ.Code art. 2315, courts are to employ a duty-risk analysis, as reiterated by the supreme court in its recent opinion in Oubre v. Eslaih, 03-1133, p. 9 (La.2/6/04), 869 So.2d 71, 77: in order to recover, a “plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty.”

The focus of the matter on appeal, in the context of La.Civ.Code art. 2315, is whether Ms. Donovan owed a duty to Mr. Sparks. Whether a duty exists is a matter of law. Lazard v. Foti, 02-2888 (La.10/21/03), 859 So.2d 656. Our review of Louisiana law, both statutory and jurisprudential, reveals no duty on the part of a wife — more specifically, a wife separated but not yet divorced from her husband — to protect the privileged nature of her husband’s medical records. In this respect, Mr. Sparks has failed to state a cause of action.

Mr. Sparks’ petition also alleges that Ms. Donovan’s actions caused him emotional distress. In King v. Bryant, 01-1379, p. 3 (La.App. 3 Cir. 7/10/02), 822 So.2d 214, 217, writ denied, 02-2378 (La.11/22/02), 829 So.2d 1046, quoting White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991), a panel of this court observed that, in order to prevail in a cause of action for intentional infliction of emotional distress, a plaintiff must prove the following elements: “(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.” Furthermore, the elements of intentional infliction of emotional distress must simply be alleged in the plaintiffs petition in order to state a cause of action White v. White, 93-1389 (La.App. 3 Cir. 6/15/94), 641 So.2d 538, writs denied, 94-2456 (La.12/19/94), 648 So.2d 402, 94-2467 (La.12/19/94), 648 So.2d 402.

Our examination of Mr. Sparks’ petition reveals no factual allegations that indicate that Ms. Donovan intended to cause her husband emotional distress or that she was aware that her actions in obtaining the records were certain or substantially certain to cause him emotional distress. Clearly, with respect to intentional infliction of emotional distress, this petition fails to state a cause of action.

19Mr. Sparks likewise asserts that Ms. Donovan’s actions amounted to an invasion of privacy. In Lee v. Pennington, 02-381, p. 11 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1045, writ denied, 02-2790 (La.1/24/03), 836 So.2d 52, the fourth circuit noted that

[a]n actionable invasion of privacy occurs only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiffs privacy interest. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1389, citing, The Right of Privacy in Louisiana, 28 La.L.Rev. 469 (1968). The reasonableness of the defendant’s conduct is determined by balancing the conflicting interests at stake, the plaintiffs interest in protecting his privacy from serious invasions, and the defendant’s interest in pursuing his course of conduct. Id.

As noted above, the trial judge based his decision to sustain Ms. Donovan’s exception of no cause of action in part upon his determination that Ms. Donovan’s interest in obtaining Mr. Sparks’ prescription records, in light of the custody proceedings, outweighed Mr. Sparks’ interest in maintaining his privacy in those records and that Ms. Donovan’s actions did not rise to the level of a cause of action. Although we note that in arriving at this conclusion, the trial judge considered facts outside the petition, we do not disagree with the result. Mr. Sparks’ petition contains no facts that would indicate that Ms. Donovan’s conduct in obtaining the prescription records was unreasonable; therefore, it fails to state a cause of action as to invasion of privacy.

Our examination of Mr. Sparks’ petition reveals no factual allegations that would support a cause of action. We find no error in the trial judge’s decision to grant Ms. Donovan’s exception of no cause of action. This assignment lacks merit.

ImDECREE

For the foregoing reasons, the trial court’s ruling granting the exception of no cause of action is affirmed. All costs of this proceeding are assigned to the plaintiff-appellant, Michael B. Sparks.

AFFIRMED.

      . The record reflects that Lewis Family Drug, an out-of-state pharmacy, was never served, and the plaintiff voluntarily dismissed his claims against Walk In Clinic South.

      . In Jaubert, 375 So.2d at 1389 (Footnote omitted.), the supreme court commented as follows: Even where a right to privacy is found to exist, Louisiana courts have distinguished between invasions of that right which are actionable and those which are not. An actionable invasion of privacy occurs only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiff's privacy interest. Comment, The Right of Privacy in Louisiana, 28 La.L.Rev. 469 (1968). For an invasion to be actionable, it is not necessary that there be malicious intent on the part of the defendant. Lucas v. Ludwig, 313 So.2d 12 (La.App. 4th Cir.1975), writ denied 1975[sic]. The reasonableness of the defendant's conduct is determined by balancing the conflicting interests at stake; the plaintiff's interest in protecting his privacy from serious invasions, and the defendant's interest in pursuing his course of conduct.

      . Louisiana Revised Statutes 13:3734(D) provides as follows:
      Nothing in this Section shall preclude the health care provider from disclosing privileged information by medical report either before or after any legal proceedings are instituted, provided that he is in receipt of a written authorization executed by the patient. If the health care provider knows or reasonably believes that the patient is physically or mentally incapable of authorizing release, the health care provider may disclose privileged information provided he is in receipt of a written authorization executed by a person authorized under R.S. 40:1299.40 to consent to medical treatment for the patient. Furthermore, when a patient is represented by an attorney and that attorney provides the health care provider with written authorization executed by the patient, the health care provider may disclose to the attorney any communication which was necessary to enable him to diagnose, treat, prescribe, or act for the patient and may provide to the attorney, as agent for the patient, any medical reports, X-rays, or any other written information the health care provider has regarding the patient, all without the necessity of complying with formal discovery.

      . The record reflects that in the memorandum in support of her motion for summary judgment and exceptions of no cause of action and no right of action, Ms. Donovan conceded that she did, in fact, obtain Mr. Sparks' prescription records as a result of the divorce proceedings and incidental litigation that began in December 1999, including an action for custody of the couple’s two children. Ms. Donovan explained that her husband’s use of prescription drugs was of concern to her in light of the custody proceedings, and she claimed to have received his records from one pharmacy of her own volition before being instructed by her divorce attorneys to obtain the rest. She noted that she simply contacted the pharmacies and requested the records, and they were given to her. In addition, Ms. Donovan argued that Mr. Sparks’ claim against her hinged on a duty that both she and the pharmacists owed to him to protect his records. However, Ms. Donovan noted, only the pharmacies owed Mr. Sparks this duty pursuant to La.R.S. 13:3734(D); she did not. She contended that because she had no duty to Mr. Sparks in this regard, under the duty-risk analysis required by La.Civ.Code art. 2315, she was not liable to him.


author: ULYSSES GENE THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Dillon James MERRITT.
    No. 03-946.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2004.
    Van Hardin Kyzar, District Attorney, 10th Judicial District Court, Natchitoches, LA, for State of Louisiana.
    Phyllis Elaine Mann, Alexandria, LA, for Dillon James Merritt.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS and ARTHUR J. PLANCHARD , Judges.

       Honorable Arthur J. Planchará, retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   ON REHEARING

ULYSSES GENE THIBODEAUX, Chief Judge.

We granted rehearing for the purpose of again reviewing the propriety of the four convictions and sentences for cruelty to juveniles against the Defendant. For the following reasons, we grant in part and deny in part the Defendant’s application for rehearing.

After careful reconsideration of the entire record, we again affirm the Defendant’s convictions and sentences on Counts 1, 3 and 4. We reverse the Defendant’s conviction on Count 2 and remand to the trial court for retrial. Dr. Springer’s testimony is inadmissible hearsay and should have been excluded from evidence. See La.Code Evid. arts. 705(B), 801(C), and 803(4). Furthermore, the erroneous admission of Dr. Springer’s testimony was not harmless error.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A NEW TRIAL ON COUNT 2.

Chief Judge THIBODEAUX would additionally grant the rehearing to reverse on Count 4 and would order the entry of an acquittal and would further order concurrent sentences on Counts 1 and 3.

Judge PLANCHARD affirms all convictions for the reasons articulated in the original majority opinion.


author: |, COOKS, Judge. |-iAMY, J.,

text:
    Kerry Anderson DOUMITE v. KVHP-FOX 29.
    No. 04-427.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.

      Mark Zimmerman, Lake Charles, LA, for Plaintiff-Appellee, Kerry Anderson Doumite.
    Robert J. May Juge, Napolitano, Guil-breau, Ruli & Frieman Metairie, LA, for Defendant-Appellant, KVHP-Fox 29.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   |, COOKS, Judge.

The employer, KVHP-Fox 29, appeals the judgment of the Office of Workers’ Compensation awarding the claimant, Kerry Anderson Doumite, disability benefits, penalties and attorney fees for a work-related accident. For the following reasons, we affirm.

FACTS

From July 12, 1999 through August 14, 2002, Kerry Anderson Doumite worked as the news director and weeknight anchor for KVHP-Fox 29 in Lake Charles. Part of her work duties involved script writing and editing of stories for the newscasts.

In March of 2002, Doumite began experiencing pain in her right shoulder and arm. On May 24, 2002, KVHP’s personnel director noticed Doumite’s physical problems and recommended she seek medical treatment. Doumite was seen that day at Hunter McGuire Medical Center for right arm pain. She was treated on a number of occasions at Hunter McGuire by Dr. Kenneth Burton. Dr. Burton advised Doumite to take time off from work to allow her physical problems to improve. He also recommended that the employer take steps to improve her work station which he believed was not ergonomically efficient and was overly stressful on her physically. Doumite did not take time off from work and received weekly injections to help her cope with the pain. The employer did not improve Doumite’s work station as recommended by Dr. Burton.

On August 2, 2002, Doumite sent a letter of resignation to her supervisor stating “the work environment at KVHP has become so hostile that it is impossible for me to manage effectively and efficiently.” She also requested in her letter of resignation that she be allowed to “continue with the medical treatment in my arm, | ¡.which was injured on the job, that my workers’ compensation will continue to pick up the costs of medical care until my arm and shoulder are healed.” However, before the effective date of her resignation, Doumite resigned her employment on August 14, 2002, stating she could no longer work through the pain.

After her resignation, Doumite was diagnosed by Dr. Kevin Gorin, a pain management specialist, with thoracic outlet syndrome. He felt Doumite was capable of working, but she could not perform her previous duties. Dr. Gorin felt Doumite’s shoulder and arm problems were work-related. At the employer’s request, Doumite was examined by Dr. James Perry, an orthopedic specialist. He disagreed with Dr. Gorin’s finding of thoracic outlet syndrome, and found Doumite suffered from a cervical strain which he associated with her work duties. Dr. Perry released Doumite to return to full-duty work.

Doumite sought workers’ compensation benefits. A report from Dr. Burton was sent to the medical case manager for the employer. In the report, Dr. Burton noted the poor arrangement of Doumite’s work station and its effect on Doumite’s physical condition. Doumite was denied benefits by the claims adjuster. A 1008 disputed claim form was filed with the Office of Workers’ Compensation (OWC) on November 15, 2002.

It was stipulated at trial that no indemnity benefits were paid, with the employer paying some medical expenses until July, 2003. The employer denied that a work injury occurred under the Louisiana Workers’ Compensation Act, because Doumite could not identify an actual, identifiable, precipitous event that caused her symptoms. The workers’ compensation judge determined that Doumite established a compensable work-related accident, finding as follows:

The defendants cite a long and impressive list of cases, all which stand for the proposition that a gradual onset of symptoms do not ^provide the requisite element of accidental injury under the statutes. The defendant’s interpretation of events is that the claimant’s condition slowly, gradually deteriorated and got progressively worse to the point that her employer suggested she seek medical treatment.
Both counsel, although they never said so in so many words, seem to argue that gradual deterioration is not an accident as defined by the statute; and the court would certainly agree. But the claimant’s attorney does not concede that this was a gradual deterioration. Indeed, he insists that it was not. He urges that in line with Third Circuit reasoning, that the plaintiff identified with particularity the time, place, and manner in which she was injured.
Ms. Doumite, under lengthy examination and sharp cross-examination, was unwavering and steadfast in her insistence that her inability to continue to work was triggered by a definable, singular event or circumstance; notably, the dramatically increased workload which required her to function at a speed, pace, and duration which she had heretofore not done.
Counsel argues there was nothing gradual about this. Because of the corporate decisions involving the television station where she was an anchor woman and news editor, she simply did more than she had done before and was required to do it in a fashion that did not accommodate the required new pace and load.
Her testimony was that she just continued to get worse and worse; it was that the singular acceleration of her duties, indeed the expansion of the duties, caused what she termed near total incapacitation. True, she could not point to a single moment, a precise nanosecond or a shining moment in time when her current condition began; but she does state with clarity the time period involved; namely, a two-week period of unprecedented increase in workload. She was equally clear that part of the cause of her disability was the configuration of her computer set up. Her testimony was that a combination of excessive work, coupled with a very awkward arrangement of the computer system, was the direct cause of her condition.
Nobody from the television station contradicted her description of the workplace. Nobody from the television station contradicted her description of the workload.
Both examining physicians, while not in total agreement as to the diagnosis and duration of the disability, are in essential agreement that the work stress precipitated the problem.
|4This case necessarily involves the evaluation of the credibility of the claimant. She presents herself as a 44-year-old TV anchor woman, news director, with impressive credentials and resume. Her answers were clear and to the point, and I detected no effort on her part to equivocate or mislead in any way. She was forthcoming in her responses, even those which were related to circumstances surrounding her resignation. And, clearly, there were activities in the corporate atmosphere which may have clouded matters here; but they don’t detract from the issue at hand and are certainly not dispositive] of the issue of whether the claimant suffered a work related injury and disability.
In short, the claimant points to a particular time period and work activity and all the doctors agree caused her shoulder problems and, thus, her disability. For this reason, the court finds that she suffered a compensable accident, ...

The WCJ determined Doumite was only partially disabled and thus entitled to supplemental earnings benefits, which he awarded at the maximum rate to which she was entitled beginning August 14, 2002. The WCJ also found Doumite was entitled to all reasonable and necessary medical benefits, along with an evaluation by a thoracic outlet syndrome specialist in Dallas. Lastly, the WCJ found the employer had not reasonably controverted the claim and awarded $6,000.00 in penalties and $10,000.00 in attorney fees.

The employer appealed the OWC judgment, contending the WCJ erred in finding Doumite suffered a work-related accident. It also argues the WCJ erred in awarding penalties and attorney fees.

ANALYSIS

A workers’ compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992). In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, |fia claimant’s testimony is afforded great weight. Id. “A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Id. at 361.

This court has held it is “immaterial” that a claimant cannot identify the exact movement or place in time when her pain began. McCall v. Wal-Mart Stores, Inc., 02-1343 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, writ denied, 03-1329 (La.9/19/03), 853 So.2d 639, 03-1343 (La.9/19/03), 853 So.2d 641. “ ‘[T]he ‘actual, identifiable, precipitous event’ may include a routine movement or task that the employee regularly performs, if the claimant is able to identify with some particularity as to time, place and manner, the objective manifestation of the accidental injury.’ ” McCall, 846 So.2d at 835-36, quoting Thompson v. Orleans Parish Sch. Bd., 00-1230, p. 3 (La.App. 4 Cir. 3/21/01), 786 So.2d 128, 130.

In Miller v. Christus St. Patrick Hosp., 03-1631 (La.App. 3 Cir. 4/21/04), 872 So.2d 574, this court allowed the recovery of disability benefits for a “routine movement such as typing on a laptop,” when the claimant was able to identify the time, place and manner of the event. We also noted the “jurisprudence holds that an ‘actual, identifiable, precipitous event’ does not exclude those instances where a work-related event, which may seem to be a customary or routine work activity, results in an injury to the employee.” Miller, 872 So.2d at 578, citing Richard v. Workover & Completion, 00-794 (La.App. 3 Cir. 12/6/00), 774 So.2d 361.

The WCJ, as stated in its written reasons for judgment, applied the proper standard in determining whether or not Doumite sustained a work-related accident. The WCJ found Doumite, in accord with the jurisprudence, identified with | (¡particularity the time, place, and manner in which she was injured. The record establishes that Doumite testified during a two-week period her work duties were increased which caused what she referred to as her “total incapacitation.” She was also consistent that the configuration of her work station was a cause of her disability, and the medical evidence supported that contention. Her condition worsened until she eventually resigned. She immediately sought medical treatment, and was consistent in her reports to her treating physicians. The medical evidence, although it differed as to the exact injuries caused to Doumite, was consistent that the injuries were the result of her work at KVHP. Moreover, Doumite’s testimony was corroborated by other evidence in the record, and the employer offered no evidence to discredit or cast serious doubt upon Doum-ite’s contention that she suffered injury due to her work duties. Thus, considering the record as a whole, we find no fault with the factual findings of the workers’ compensation judge that Doumite suffered an injury while engaged in the course and scope of her employment with KVHP. The employer argues, as it did below, that the issue in this case is whether Doumite suffered an “accident” as it is defined in the Louisiana Workers’ Compensation Act. Under La.R.S. 23:1021(1), an “accident” is statutorily defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

We need not reach this argument because we are able to affirm the result reached by the trial court, but for different reasons. We find Doumite is entitled to recovery under La.R.S. 23:1031.1. This circuit has recognized that thoracic outlet syndrome is akin to carpal tunnel syndrome and is included as an occupational |7disease under La.R.S. 23:1031.1. Louisiana Revised Statute 23:1031.1 provides in relevant part:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall in-elude injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

The record indicates Doumite began experiencing pain in her right shoulder and arm. Her treating physician, Dr. Gorin, diagnosed thoracic outlet syndrome. Doumite was then examined by Dr. Perry on October 14, 2002, at the request of her employer. Dr. Perry testified Doumite complained of right shoulder pain, right arm pain and numbness. Doumite stated she had been suffering from these symptoms for about six months. It was Dr. Perry’s impression Doumite’s condition had developed gradually over a period of time. Upon examination, he found tenderness in the right subacromial bursa and pain with abduction, external rotation of her shoulder and pain with flexion of her shoulder. He reviewed an MRI of Doum-ite’s cervical spine. He found disc dessieation which he attributed to age. Dr. Perry’s diagnosis was cervical pain syndrome and shoulder pain and he prescribed a regime of physical therapy, which Doumite followed. At the November 22, 2002 office visit, Dr. Perry testified, Doumite was still experiencing pain associated with her shoulder. Doumite returned to Dr. Perry on December 13, 2002. He found her complaints to be more in her shoulder than her neck and he recommended an MRI of the shoulder. He testified regarding the shoulder MRI results: “It has mild, degenerative change, degenerative change. So, she had some wear and tear, but nothing to the degree to explain the significant symptoms that would not respond to physical therapy. So because of that, I recommended another opinion.” While he quarrels with Dr. Goran’s diagnosis of Lthoracic outlet syndrome, he does agree that her condition could have been partially aggravated by work.

Doumite’s treating physician, Dr. Goran, diagnosed thoracic outlet syndrome and defined the condition, stating:

[I]t merely implies the compression of blood vessels and/or nerve bundles in this region called the thoracic outlet where it would be right above the first rib, just inferior to the clavicle; and normally it’s not something — the condition is not something which occurs spontaneously, but normally occurs in light of a cumulative, repetitive trauma. I will say that it is often misdiagnosed and perhaps even overdiagnosed because certain other syndromes can appear similar to it, such as lower cervical disc compression or patients with anomalies in their cervical nerve roots, which where sometimes a C6 or a C7 would appear as a C8 level of distribution of symptoms.

Dr. Goran provided a solid foundation for his diagnosis of thoracic outlet syndrome. He testified as follows:

My initial exposure to the diagnosis or treatment of thoracic outlet occurred in my residency at University of Virginia where the majority of the patients that we saw with it were working in chicken processing plants and had a large Virginia staple of the economy, and those patients would have a recurrent motion for either killing or processing the chickens over and over again, day in and day out.
And they would get, profoundly, swollen upper extremities with reproducible symptoms of pain and weakness in the fourth and fifth fingers of the affected limb. And the surgeon that I worked with there in my residency, actually was the one who — who was actually the physician who proposed and developed the transaxillary approach to the treatment of this condition.... So, I was able to see what I would consider to be quite a few cases of it because often some of the more difficult cases in the Country or the region were sent to this particular surgeon and he would send the patients to rehabilitation part of the program after their surgeries or in preparation for their surgeries. So, that’s where I— that’s how I got my exposure.

Dr. Goran has had much more experience dealing with this condition and we afford his testimony more weight than Dr. Perry, who dismissed thoracic outlet syndrome as a “smoky diagnosis” but was unable to definitively identify Doumite’s | ^problem or treat her pain effectively. In Winch v. Double M, Inc., 99-1793 (La.App. 3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La.6/16/00), 765 So.2d 339, this court has stated:

As a general rule, the testimony of a treating physician should be given more weight than that of a physician who examined a claimant for diagnostic purposes. Johnson [v. NATCO, 94-1236 (La.App. 3 Cir. 3/1/95)], 651 So.2d 494. Furthermore, “the positive findings of medical experts are to be afforded greater weight than negative findings as to the existence or not of a particular condition.”

Id. at 1059

Moreover, there is no testimony in the record indicating Doumite suffered from one of the conditions specifically excluded by La.R.S. 23:1031.1 (degenerative disc disease, spinal stenosis, arthritis, mental illness, and heart-related or perivascular disease). In fact, Doumite’s complaint of pain in her shoulder and arm supports the diagnosis of the treating physician, Dr. Gorin. We find the medical evidence preponderates in favor of the treating physician who found her thoracic outlet syndrome resulted from work related activity in an ergonomically inefficient work space.

In Willis v. Dry Creek Nutrition Services, 94-45 (La.App. 3 Cir. 6/1/94), 640 So.2d 708, the plaintiff was diagnosed with right shoulder impingement syndrome, thoracic outlet syndrome and later, carpal tunnel syndrome. The physician testified “[tjthoracic outlet syndrome is a pinched nerve, much like carpal tunnel, but just occurring in a different location. It occurs up underneath the collar bone — right at the base of the neck — where a large group of nerves, called the brachial plexus comes underneath the collar bone.” Id. at 710. The physician found the plaintiffs condition was work related and common in occupational related repetitive motion. This court, Inciting La.R.S. 23:1031.1(B), found plaintiff met her burden of proof and affirmed the trial court’s award of compensation.

In Jackson v. ConAgra Poultry Company, 02-492 (La.App. 3 Cir. 3/5/03), 839 So.2d 1079, writ denied, 03-986 (La.5/30/03), 845 So.2d 1054, the plaintiff was diagnosed with mild ulnar nerve neuritis at the elbow and thoracic outlet syndrome. The trial court allowed recovery under La.R.S. 23:1021(1). This court found the trial court erred in applying this provision of the workers’ compensation statute because the plaintiff was unable to identify an “accident.” This court instead allowed recovery under La.R.S. 1031.1(B) finding the statute does not exclude from coverage “those workers ‘who are worn down by their work rather than immediately crippled by it.’ ” Id. at 1082. The Jackson court stated:

The unrefuted evidence in this case established that the scissors Ms. Jackson used to de-bone the chicken and strip the fat were long and heavy. She used them eight hours a night, every night. She had no problem with her arm or hand prior to her employment with ConAgra as a deboner. The problem with the swelling and pain in her arm manifested itself while she was on the job, using these heavy scissors repetitively. She never had problems with the pain and swelling except through the use of the scissors at work.
The medical records established Ms. Jackson does have a disabling physical injury. The worker’s compensation judge was correct in his conclusion that no doctor diagnosed carpal tunnel syndrome. There was, however, a diagnosis of a disabling injury.

Id. At 1083.

In Dibler v. Highland Clinic, 27,274 (La.App. 2 Cir. 9/27/95), 661 So.2d 588, the plaintiff was diagnosed with tardy ulnar palsy, thoracic outlet syndrome and carpal tunnel syndrome. The appellate court rejected the notion that only carpal tunnel syndrome is recoverable as an occupational disease. “We therefore find no merit in the employer’s contentions that only the CTS may be an occupational disease and that none of the three afflictions were caused by Ms. Dibler’s work activities.” Id. at 592. The court noted, “[w]ork-related carpal tunnel syndrome is expressly Inincluded as an ‘occupational disease’ in the statute. Neither tardy ulnar nerve palsy nor thoracic outlet syndrome is among the diseases expressly excluded from being classified as occupational diseases. § 1031.1B.” Id. at 591. In conclusion, we find Dr. Goran’s diagnosis of thoracic outlet syndrome credible. Doumite has sustained her burden of proving the stress at her job combined with the nature of her work contributed to her disabling condition. Additionally, we find, in accordance with the jurisprudence, thoracic outlet syndrome is an occupational disease; and, therefore, Doumite is entitled to recovery under the occupational disease provision of the workers’ compensation statute.

II. Penalties and Attorney Fees.

KVHP also argues the WCJ erred in awarding penalties and attorney fees. We disagree. “[T]o determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous 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 v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. We review the workers’ compensation judge’s award of penalties and attorney’s fees pursuant to the manifest-error standard. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125 writ denied, 03-3017 (La.1/30/04), 865 So.2d 79.

KVHP refused to pay benefits based on its belief that no work-related accident occurred. However, both the claimant’s physician and KVHP’s physician concluded that Doumite’s shoulder and arm problems were related to her employment. Further, 11 ¡.existing jurisprudence in Louisiana on the “no accident” defense relied upon by KVHP was sufficient to alert it that its position was not reasonable nor legally supported. Accordingly, we find that the employer failed to reasonably controvert Doumite’s claim for benefits. The WCJ was not manifestly erroneous in awarding Ms. Fontenot penalties and attorney’s fees in this matter. This assignment is without merit.

Doumite seeks payment of additional attorney fees to compensate her counsel for work done on the present appeal. However, an answer requesting such relief was not filed. Failure to file an answer pursuant to La.Code Civ.P. art. 2133 precludes this court from awarding additional attorney fees.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed against appellant, KVHP-Fox 29.

AFFIRMED.

AMY, J., dissents and assigns written reasons.

|-iAMY, J.,

dissenting.

I respectfully dissent from the majority’s determination that an affirmation is warranted. In my opinion, a reversal is required. The workers’ compensation judge’s reasons reveal a determination that the claimant’s condition resulted from an “accident” pursuant to La.R.S. 23:1021(1). My review indicates no “unforeseen actual, identifiable, precipitous event happening suddenly or violently” as is required by that statute. Rather, the claimant’s condition is more akin to the “gradual deterioration or progressive degeneration” which is specifically excluded from the definition of “accident.” Id.

I further differ from the majority in that I do not find that an affirmation is warranted pursuant to La.R.S. 23:1031.1. First, as explained above, the workers’ compensation judge’s factual determinations in this case did not relate to whether the claimant suffered from an occupational disease. Accordingly, in my opinion, there are no factual findings regarding the presence of an occupational disease which are owed deference on appeal. Furthermore, I do not find that the claimant’s condition meets the definition of occupational disease contained in La.R.S. 23:1031.1(B), which indicates that the disease/illness must be “due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” Although the claimant may have been required to perform computer work in her position as news | ¡.director, and the work environment may have been stressful as she described, it cannot be said that the conditions alleged to have caused her condition are “characteristic of and peculiar to” that particular type of employment. In Hymes v. Monroe Mack Sales, 28,786, p. 7 (La.App. 2 Cir. 10/30/96), 682 So.2d 871, 876, the second circuit reasoned that the disease at issue “must originate from conditions in the employment that result in a hazard that distinguishes the employment in character from the general run of occupations.” As I do not find this portion of La.R.S. 23:1031.1(B) satisfied, I would reverse the workers’ compensation judge’s determination.

      . The employer did not move, under Daubert, to challenge the testimony of Dr. Goran regarding thoracic outlet syndrome as a recognized diagnosis.


author: J^DWIN A. LOMBARD, Judge.

text:
    Elizabeth BOWEN and Joey Cutrer, Individually and as Parents of their Minor Children, Aimee Cutrer and Matthew Cutrer, Richard and Brenda Chatelain, Individually and as Parents of their Minor Child, Richard Chatelain, III, et al. v. Louis SMITH, Housing Authority of New Orleans, Robben Karr, The Hartford Insurance Company and Zurich-American Insurance Company. Clifton Karr, Individually and as Natural Tutor for Margaret Karr v. Louis Smith, Housing Authority of New Orleans, ABC Insurance Company and DEF Insurance Company.
    Nos. 2003-CA-0432, 2003-CA-1562.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.

      Patrick G. Kehoe, Jr., Michael I. Rodriguez, New Orleans, LA, for Plaintiffs/Appellants, Elizabeth Bowen, et al.
    William H. Voigt, Daryl A. Higgins, James J. Young, IV, Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Zurich-American Insurance Company, Louis Smith, Housing Authority of New Orleans and Zurich Insurance Company.
    W. Chad Stelly, Scott W. McQuaig, McQuaig & Stelly, Metairie, LA, for Plaintiffs/Appellees, Clifton Karr, Individually and on behalf of his Minor Child, Margaret Karr.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   J^DWIN A. LOMBARD, Judge.

RELEVANT FACTS AND PROCEDURAL HISTORY

On or about May 19,1997, an automobile accident occurred involving a vehicle owned by Housing Authority of New Orleans (“HANO”) and being operated by Louis Smith. The other vehicle involved in the accident was a bus owned by Lake Castle Private School being operated by Robben Karr. The bus had twenty (20) children aboard, several of whom were injured, including Margaret Karr, the minor child of Clifton and Robben Karr. The HANO vehicle was insured under a Business Automotive Policy issued by Zurich-American Insurance Company (“Zurich”) with a single liability limit of $500,000.00. Zurich received and evaluated settlement demands and entered into settlement negotiations with several claimants.

Clifton Karr brought suit individually and on behalf of Margaret Karr. Robben Karr, by way of reconventional demand in a separately filed action, brought a claim in her individual capacity. On October 11, 1999, Zurich tendered its remaining policy limit of $239,110.70 to settle the Karrs’ claims. In return for 1 gZurich’s payment of its remaining policy limits, Robben and Clifton Karr, individually and as natural tutor of his minor child, dismissed, with full prejudice, the claims against Zurich. Both dismissals were with a reservation of rights to continue any and all actions against other named defendants. Zurich filed a Motion for Summary Judgment seeking dismissal on the grounds that its policy limits were exhausted and it therefore no longer owed a duty of indemnity or a defense to its insureds. The trial court granted Zurich’s motion on June 4, 2002 and dismissed it from the lawsuit.

The Karrs subsequently proceeded with their claim against the remaining defendants. A third party, Ann Bell (“Bell”), was appointed provisional tutrix for Margaret Karr. Bell instituted the instant proceedings to judicially enforce the minor’s right to annul the judgment rendered against the minor. On or about July 10, 2002, Bell filed a Motion to Rescind and Annul Judgment of Dismissal and Reinstate Claims, seeking to vacate the Judgment of Dismissal rendered on or about October 29, 1999. On or about March 17, 2003, after hearing the law and evidence, the trial court granted the Motion to Vacate, Rescind and Annul Judgment of Dismissal and Reinstate Claims. The court also ordered that all parties be restored to the situation that existed before the indemnity agreement was entered into and the claims made by Clifton Karr, Robben Karr, and Clifton Karr, as natural tutor of Margaret Karr, be reinstated. Furthermore, the court ordered Zurich be restored to its position before the agreement was entered into by the Karrs, reimbursing the insurance company the amount of money received, 1.4239,110.70, less any sums paid to satisfy liens in favor of health care providers and attorneys. Finally, the trial court ordered that Zurich shall receive a credit for any sums not returned due to those sums having been paid to satisfy liens in favor of health care providers and attorneys, reserving all parties their rights to seek reimbursement of any moneys as may be required.

On or about March 25, 2003, Defendants filed a Motion for Rehearing or Alternatively a New Trial on the Motion to Vacate, Rescind, Annul Judgment of Dismissal and Reinstate Claims. On May 15, 2003, the trial court denied the motion. Defendants were granted an appeal on June 9, 2003.

LAW AND DISCUSSION

Appellate courts may only disturb a trial court’s findings of fact that are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

In their first assignment of error, Defendants claim the trial court erred in finding Clifton Karr had to first obtain court approval before dismissing a lawsuit he, as the natural tutor, brought on behalf of his minor daughter, Margaret Karr. Defendants rely on La. R.S. 9:196 that, at the time the Karr settlement was entered into, provided in pertinent part:

A tutor, who is entitled to tutorship by nature, pursuant to the provisions of Section 2 of Chapter 1 of Title VII of Book 1 of the Civil Code and without qualification, may perform or discharge any act affecting any right or interest of the minor which involves less than seven thousand five hundred dollars.

1 ¿Plaintiffs argue that the tutor of a minor is restricted in his capacity to engage in such transactions to settle a lawsuit on behalf of a minor under the La. C.C. art. 3072, which provides, in pertinent part:

The tutor of a minor or the curator of a person interdicted or absent can not make a transaction without being authorized thereto by the judge.

Given the requisites of Louisiana law, Clifton Karr could properly settle Margaret Karr’s claims without judicial approval if her claim was valued at less than $7,500.00, or, with judicial approval if the claim was valued at more than $7,500.00.

In its reasons for judgment, the trial court explained:

An examination of the settlement agreement and the check drafted pursuant to that agreement revealed that there is no apportionment of the settlement between each of the plaintiffs. Accordingly, there is no designation of the settlement proceeds of the minor Margaret Karr. Therefore, the Court cannot make a definitive determination on the amount of the minor’s settlement proceeds. Additionally, as there is no evidence presented on the minor’s injuries, the Court cannot evaluate said injury as being less than $7,500.00.

Accordingly, the trial court correctly determined that the provisions of La. R.S. 9:196 do not apply to the claims of the minor child, Margaret Karr.

Pursuant to La. C.C.P. art. 4265, a tutor such as Clifton Karr may compromise the claim of a minor with the approval of the court; but, when Margaret’s claims were compromised, there was no request for, nor receipt of, judicial authority for settlement as required by statute. Without court approval, the settlement, and the dismissal based on settlement, must be declared null. Ronquillo v. State Farm Insurance Co., 522 So.2d 134, 136 (La.App. 4 Cir.1988). Relying on Ronquillo, as the trial court did herein, we find no error in declaring the | .Judgment of Dismissal an absolute nullity and reinstating the claims of Clifton Karr, Robben Karr, and Clifton Karr, as natural tutor for Margaret Karr.

Next, Defendants argue that the trial court erred in not ordering the Karrs to return 100% of the $239,110.70 paid by Zurich as consideration for entering in the release agreement. Defendants suggest that all parties should be restored to the situation that existed before the “Receipt, Release, Hold Harmless and Indemnity Agreement” was entered into and cite La. C.C. art. 2033 that provides in pertinent part:

An absolutely null contract, or a relatively null contract that has been declared null by the court, is deemed never to have existed. The parties must be restored to the situation that existed before the contract was made. If it is impossible or impracticable to make restoration in kind, it may be made through an award of damages.

Both parties cite to La. C.C. art. 1921 that provides:

Upon rescission of a contract on the ground of incapacity, each party or his legal representative shall restore the other what he has received thereunder. When restoration is impossible or impracticable the court may award compensation to the party whom restoration cannot be made.

The trial court’s written reasons specifically provide:

It would be an improbability or impossibility for the Karrs to return any monies that were paid to satisfy liens in favor of healthcare providers and attorneys, therefore that sum of money shall be given to Zurich Insurance Company as a credit toward any future payment of claims on behalf of the Karrs and their minor child Margaret Karr. This judgment does not intend to preclude any other actions for recovery for liens, attorneys fees or any other causes of action which resulted from the settlement of the minor’s claim without court approval. Those are specifically reserved unto the parties.

The trial judge made appropriate efforts in his ruling on the return of consideration to protect all parties. We do not find the order to be manifestly erroneous or an abuse of discretion to give Zurich a credit for sums paid to satisfy the liens of the health care providers because of the improbability and expenses to obtain the | fireturn of those funds from the health care providers. However, we find the trial court’s failure to order the Karrs’ attorney to return the legal fees (their lien) that they received from the $239,110.70 is manifestly erroneous because the problems were created by the attorneys’ failure to obtain court approval for the settlement of the minor’s claim as explained above. We find it unfair and unjust to not order the attorneys to return all fees that they received forthwith plus legal interest thereon from the date of their receipt by the Karrs, or to show cause to the contrary why judgment should not be rendered against them for the full amount of the fees, plus legal interest and costs. Accordingly, we remand this matter to the trial court for a determination of the gross amount of the fees received by the Karrs’ attorneys and for entry of a formal order for their immediate return plus legal interest and in default thereof for a formal judgment against them in Zurich’s favor for the amount of the fees, judicial interest from the date of Zurich’s payment of the settlement proceeds- to the Karrs, and costs.

In their third and final assignment of error, Defendants argue that interest should attach on the entire $239,110.70 from the date the aforementioned amount was tendered. The district court recognized that the Karrs did not personally receive $239,110.70 and clarified in open court on May 2, 2003, that legal interest would be due from the Karrs if the amount the court ordered returned to Zurich was not paid within 60 days. As discussed above, we clarify the trial court’s judgment to state that legal interest is owed by the Karrs on all money that they themselves (and that their attorneys received, as explained above) and that the health care providers received effective 60 days from the date of the trial court’s judgment to the extent that the Karrs are unable to return same to Zurich. See La. C.C. art. 2000.

17Finally, we reverse the trial court’s granting of summary judgment discharging Zurich from further liability and duty to defend. Obviously, by our order to return money paid to the Karrs or for their benefit, Zurich must continue to defend their insured, would be liable for judicial interest from the date of judicial demand upon their insured by all injured persons, and would have a duty to defend their insured in accordance with the contract of insurance between them and their insured. The payment of money into a concursus, assuming they properly named all potential claimants to the money, merely stopped the accrual of legal interest and created a fund from which court costs could be paid and deducted. It did not absolve them of a duty to defend. See La. C.C.P. art. 4658 et seq.

For the foregoing reasons, we affirm in part, reverse in part, amend in part, and remand this matter for further proceedings

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; REMANDED.