text:
    Mary SEMERE v. OUR LADY OF LOURDES HOSPITAL.
    No. 03-1702.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      Philip E. Roberts, Roy, Bivins, Judice, Roberts & Wartelle,' Lafayette, LA, for Defendant/Appellant: Our Lady of Lourdes Hospital.

      Robert Morías Schoenfeld, Schoenfeld, Schoenfeld & Schoenfeld Law Corp., New Orleans, LA, for PlaintiffiAppellee: Mary Semere.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   hAMY, Judge.

In this workers’ compensation matter, the employee-claimant filed a disputed claim, seeking attorney’s fees and penalties on the grounds that her employer failed to authorize a referral visit to an orthopedist, failed to timely provide copies of accident and medical reports, and failed to timely authorize a wellness program recommended by her physician. The claimant dismissed the portion of the suit pertaining to the accident and medical reports, and, at the hearing in the matter, the employer was granted an involuntary dismissal as to the referral. The workers’ compensation judge found that the employer failed to timely authorize the claimant’s participation in the physician-recommended wellness program and awarded her penalties and attorney’s fees accordingly. The employer appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record of the proceedings below indicates that on January 4, 1999, Mary Semere, a nurse’s aide employed by Our Lady of Lourdes Hospital in Lafayette and the claimant herein, injured her lower back in the course and scope of her employment while lifting a patient. Ms. Sem-ere testified that at the time of the accident, she and a co-worker were trying to put a patient back in bed. Ms. Semere indicated that she was on the “pulling side” of the patient; during the “pulling,” her back popped. The record reflects that for treatment for her injuries, Ms. Semere first consulted Dr. Joseph Schutte, who referred her to Dr. Leoni. Dr. Leoni, in turn, referred her to Dr. DeAlvare; after consultation, Dr. DeAlvare referred her to Dr. Joseph T. Gillespie, an anesthesiologist specializing in pain management. Ms. Semere underwent the first of two surgeries, a discectomy conducted by Dr. Leoni, on May 9, 1999. In August 2002, Drs. Schutte and Leoni performed a second ^discectomy and a laminectomy and fusion. Ms. Semere testified that Drs. Gillespie and Leoni informed her that she could not return to her prior duties, and Dr. Gillespie recommended that she receive schooling and vocational rehabilitation that would enable and prepare her to take up another trade.

According to Ms. Semere’s testimony, as of October 2001, she still had not received approval for the wellness program, the vocational rehabilitation, and the schooling. On October 25, 2001, she retained an attorney. Ms. Semere filed the instant disputed claim for penalties and attorney’s fees on November 16, 2001, in which she asserted that Our Lady of Lourdes would not authorize an appointment with Dr. Blanda, pursuant to Dr. Gillespie’s referral; it did not timely provide medical and accident records; and it did not timely authorize the wellness program recommended by Dr. Gillespie.

At the hearing in the matter, conducted on September 9, 2003, Ms. Semere asserted that Dr. Gillespie first recommended a wellness program for her on October 26, 2000. She explained that this wellness program was to include treadmill exercise, light weight training, swimming and water aerobics, and hot tub/jacuzzi therapy. Ms. Semere stated that at the time the program was recommended, she was ready to begin therapy; however, months passed without its approval. She testified that during her treatment with Dr. Gillespie, she expressed her frustration that the program had not yet been approved. Ms. Semere indicated that she called Mr. George Jones, Our Lady of Lourdes’ workers’ compensation manager, to inquire as to when the program would be approved, explaining that she believed that she was required to get approval from Mr. Jones before she could begin. She recalled that Mr. Jones advised her to call Ms. Donna Hill, an insurance adjuster with Our Lady of Lourdes’ third-party |3administrator, Frank Gates Service Company (hereinafter “Frank Gates”), noting that direct communication with Ms. Hill might expedite the approval process. Ms. Semere testified that she called Ms. Hill, whom she described as “ugly” and “rude” to her on the phone. She stated that during their conversation, she asked Ms. Hill about the wellness program but received no response. During her testimony, Ms. Sem-ere maintained that she never told Mr. Jones or Ms. Hill that she did not wish to participate in the wellness program. The record indicates that the wellness program was approved on December 14, 2001, and as of the date of hearing, Ms. Semere continued to participate.

Ms. Donna Hill explained under cross-examination that Our Lady of Lourdes supplies “ProComp” forms to attending physicians in workers’ compensation cases, and the physicians indicate recommended courses of therapy on these forms. Ms. Hill testified that Dr. Gillespie’s October 26, 2000 ProComp form did not mention aqua therapy or a wellness program. Ms. Hill recalled that she first learned of the wellness program recommendation on May 7, 2001, when Mr. Jones faxed her Dr. Gillespie’s prescription for the program; after she received this prescription, another insurance adjuster with Frank Gates sent Dr. Gillespie a letter asking him to elaborate upon the types of wellness treatments recommended, but Dr. Gillespie did not respond. Ms. Hill testified that another letter was sent on June 28, 2001. Ms. Hill indicated that after they received Dr. Gillespie’s response, dated July 3, 2001, Mr. Jones began to research therapy costs and brochures.

Ms. Hill explained at the hearing that Ms. Semere could have initiated the wellness program herself by bringing her prescription to a wellness center. Ms. Hill ^indicated that the wellness center would have called Frank Gates for approval, and Frank Gates would have consented. She further noted that the particular wellness program that was eventually chosen for Ms. Semere required six months’ advance payment.

Ms. Hill recalled speaking to Ms. Sem-ere over the phone on July 24, 2001, regarding the referral to Dr. Blanda. Ms. Hill testified that she told Ms. Semere that she wanted her to go to the wellness program office; however, she stated, Ms. Semere, who sounded “agitated,” insisted that she wanted to see Dr. Blanda. According to Ms. Hill’s testimony, Ms. Sem-ere said that she was not interested in the wellness program, aqua therapy, or a dietician. However, Ms. Hill admitted that Frank Gates had received nothing from Dr. Gillespie indicating that Ms. Semere did not wish to participate. She recalled that the next recommendation for the wellness program came from Dr. Gillespie on October 25, 2001, and at this time, she and Mr. Jones decided to set up the program for Ms. Semere.

Our Lady of Lourdes moved for involuntary dismissal at the close of Ms. Semere’s case. The workers’ compensation judge granted the motion as to the referral to Dr. Blanda, noting that the claim was reasonably controverted. However, the workers’ compensation judge denied the motion as to the wellness program, finding that La.R.S. 23:1201(E) does not involve “demand;” instead, she observed, it involves “notice.”

In its effort to defeat the remaining claim, Our Lady of Lourdes called Mr. George Jones, manager of the hospital’s workers’ compensation program, to testify. |5On examination, Mr. Jones stated that he did not receive a prescription from Dr. Gillespie for the wellness program after Ms. Semere’s appointment on October 26, 2000; instead, he recalled that the first prescription followed the May 7, 2001 appointment. He noted that he then forwarded the prescription to Frank Gates on May 31, 2001. Mr. Jones recalled that an adjuster from Frank Gates called him on July 2, 2001, to tell him that the wellness program had been approved; according to his testimony, he then began to research various programs, sending some of the brochures that he had collected to Ms. Hill.

Mr. Jones confirmed that Ms. Semere telephoned him on July 24, 2001; however, he testified that she did not call him in order to make arrangements to begin the wellness program. Mr. Jones recalled that Ms. Semere said that she had seen Dr. Gillespie the day before, and she said that he expressed a desire for her to consult with Dr. Blanda. According to Mr. Jones, Ms. Semere did not mention the wellness program during this conversation or during a conversation the following day. He said that when he later heard from Ms. Hill that Ms. Semere did not want to par-tieipate in the wellness program, he stopped making plans for her to attend. However, Mr. Jones conceded that Ms. Semere never told him that she did not want to go to the wellness program.

Mr. Jones testified that after receiving a letter dated October 29, 2001, from Dr. Gillespie, he resumed making arrangements for Ms. Semere to attend the wellness program. He stated that he called Ms. Semere on December 11, 2001 to tell her that he needed her signature on some paperwork before she could begin, but Ms. Semere explained that her car had broken down, and she would try to come sign the paperwork the following day. Mr. Jones noted that Ms. Semere left him a message Lon December 17, saying that she had visited the wellness center office on the afternoon of December 14 and that she was to perform her screening later that day.

Mr. Jones opined that nothing kept Ms. Semere from going to the wellness program; he explained that it was like any other health club in that you merely go to the front desk and express your interest in joining. However, he stated that he did not know if Ms. Semere was aware that she could sign up for the wellness program in that manner.

At the conclusion of the hearing, the workers’ compensation judge ruled that Our Lady of Lourdes failed to timely approve the wellness program, finding that it was first recommended in October 2000 and was approved in December 2001, some fourteen months later. In her ruling, the workers’ compensation judge pointed out that La.R.S. 23:1201(E) speaks in terms of sixty days; as such, even if the prescription was first issued in May 2001, the program still was not approved within the statutory time limit. The workers’ compensation judge noted the conflict in the respective testimonies of Ms. Semere, who insisted that she never said that she did not want to participate, and of Ms. Hill, who claimed the opposite. However, the workers’ compensation judge noted, Ms. Hill’s testimony was not sufficient to controvert the necessity of the wellness program. At the conclusion of her ruling, the workers’ compensation judge remarked that Ms. Hill should have documented Ms. Semere’s statement that she did not want the program; in the alternative, Ms. Hill should have set up the program in a timely manner and waited to see whether Ms. Semere participated. The workers’ compensation judge opined that either action would have constituted reasonable contr-oversion, but neither was taken. Accordingly, |7the workers’ compensation judge imposed a penalty of $2,000 and attorney’s fees of $3,500.

The record indicates that at this time, Our Lady of Lourdes asked the workers’ compensation judge to reopen the evidence, claiming that a notation in Ms. Hill’s claims file confirmed that during the July 24, 2001 conversation, Ms. Semere said that she did not want to participate in the wellness program. The workers’ compensation judge denied this request, sustaining opposing counsel’s objection. The record reflects that as a proffer, Our Lady of Lourdes then called Ms. Hill to the witness stand to discuss this particular notation.

Our Lady of Lourdes appeals the ruling of the workers’ compensation judge, asserting the following assignments of error:

1.The workers’ compensation judge erred as a matter of law in determining that an employer may be liable for penalties and attorney’s fees pursuant to La.R.S. 23:1201(E) and (F) for failing to authorize medical benefits when neither the employee nor the employee’s, health care provider made demand.
2. The workers’ compensation judge erred in determining, as a matter of fact, that the employer herein had not authorized medical benefits in accordance with La.R.S. 23:1201(E).
3. The workers’ compensation judge erred in awarding excessive attorney’s fees in that the employer never denied the medical benefits at issue, and the employee was notified of the benefit’s authorization prior to its being served with the disputed claim in this matter.
4. The workers’ compensation judge abused its discretion in refusing to reopen the evidence to introduce documentation from the third-party administrator’s file that confirmed a conversation mentioned during oral testimony after the workers’ compensation judge ruled that such documentation was important to a decision in this matter.

Discussion

In the context of workers’ compensation benefits, La.R.S. 23:1201(E) provides that “[mjedical benefits payable under this Chapter shall be paid within sixty days | Rafter the employer or insurer receives written notice thereof.” Penalties for noncompliance with La.R.S. 23:1201(E) are outlined in La.R.S. 23:1201(F), the pertinent sections of which are as follows:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Imposition of Penalties and Attorney’s Fees in the Absence of Demand and Determination that the Employer Had Not Authorized Medical Benefits

Because Our Lady of Lourdes’ first two assignments of error are interrelated, we address them together. Our Lady of Lourdes first contends that in order for a claimant to be entitled to attorney’s fees and penalties as a result of an employer’s or insurer’s failure to pay medical benefits pursuant to La.R.S. 23:1201(E), the claimant must make demand. It asserts that in this matter, the workers’ compensation judge determined that the claimant was entitled to penalties and attorney’s fees without demand; as such, this ruling is at odds with the jurisprudence and constitutes an error of law. Accordingly, we review the workers’ compensation judge’s ruling to ascertain whether it was legally correct. Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723.

|aIn support of its position that the workers’ compensation judge erred as a matter of law and that demand is required before attorney’s fees and penalties may be awarded pursuant to La.R.S. 23:1201(E) and (F), Our Lady of Lourdes cites Anderson v. Biedenham Bottling Group, 95-646, p. 11 (La.App. 3 Cir. 11/2/95), 664 So.2d 588, 594 (“a requisite for recovery under [La.R.S. 23:1201(E) and La.R.S. 23:1121(C) ] is a demand made upon the employer”); Garner v. Sheats & Frazier, 95-39, p. 8 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 62 (“at no time did Garner make demand upon Sheats & Frazier or its insurer to authorize payment of the additional testing suggested by Dr. Foret”); and Spencer v. Gaylord Container Corp., 96-1230, pp. 15-16 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 829 (the first circuit undertakes an inquiry as to whether the employee’s actions constituted demand, citing the holdings of Gamer and Anderson, above). In addition, Our Lady of Lourdes claims that a formal demand is required, reproducing a portion of the recent supreme court decision in Authement v. Shappert Engineering, 02-1631, p. 2 (La.2/25/03), 840 So.2d 1181, 1183, which states that “[a]s early as January 25, 2000, plaintiffs counsel communicated with St. Paul asserting a formal demand to make appropriate financial arrangements for Mr. Authement to be examined by Dr. Dehne as soon as possible.” Our Lady of Lourdes contends that in the instant matter, neither Ms. Semere nor Dr. Gillespie made demand upon it or upon its third-party administrator to approve the wellness program at issue. Our Lady of Lourdes argues, in essence, that it should not have been required to approve treatment before Ms. Semere sought to obtain it.

We observe that during the hearing in this matter, Our Lady of Lourdes emphasized that on October 26, 2000, Dr. Gillespie did not make his recommendation | inon the ProComp form supplied by the third-party administrator; instead, his recommendation that Ms. Semere begin wellness program was written on an accompanying form under the heading, “Plan,” which the record indicates was faxed along with the ProComp form on October 27, 2000. It appears from the record that Our Lady of Lourdes’ contention was that because Dr. Gillespie’s recommendation was not on the ProComp form, even though it appeared on the accompanying form, it did not constitute “demand.”

A plain reading of La.R.S. 23:1201(E) indicates that there is no requirement that notice take a particular form; moreover, our review of the relevant case law reveals no jurisprudential rule mandating any specific form. In this respect, we find persuasive the first circuit’s opinion in Nuzum v. TCI Turner Corp., 02-1232 (La.App. 1 Cir. 3/28/03), 857 So.2d 520. In Nuzum, the employer appealed the decision of the workers’ compensation judge in favor of the employee, claiming that the employee’s health care provider was required to submit a particular form in order that a medical expense might be paid. In its analysis on appeal, the first circuit provided the following commentary as to the requirements of La.R.S. 23:1201(E):

In TCI’s first assignments of error, it asserts that the HCFA 1500 forms it required the physicians to send prior to paying the medical bills are required as a matter of law. TCI argues that the system set up by the Workers’ Compensation Act and the Louisiana Administrative Code requires submission of a HCFA 1500 form by healthcare providers and payment of their charges in amounts set forth in a fee schedule. It reasons that, under La. R.S. 23:1201(E), La. R.S. 23:1034.2, and LAC 40:1.5111, physicians are required to provide a HCFA form in order to be compensated. TCI cites as support for its argument Kaiser v. Western-Southern Ins. Co., 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52, where it was found that claimant was not entitled to reimbursement for unsupported or improperly submitted medical bills.
In its reasons for judgment, the WCJ stated that TCI untimely paid many bills because of the lack of HCFA forms. It recognized that the Workers’ Compensation Act does not state that the adjuster can wait for a HCFA form before paying a bill. The Act requires that, once a bill for the work-related injury is submitted, an employer has sixty days to pay that bill. The WCJ noted that most of the bills that were not submitted Inon HCFA forms had just about everything on the bill except that it was not on the form.

Louisiana Revised Statute 23:1034.2(B) reads as follows:

B. The director shall adopt, in accordance with the Administrative Procedure Act, [footnote omitted] rules and regulations necessary to establish and implement a reimbursement schedule for such care, services, treatment, drugs, and supplies.
Louisiana Administrative Code 40:I5111(A) states the following:
The HCFA 1500 form is to be used by health care providers except dentist, pharmacy, hospital (unless otherwise stated), and for home and vehicle modifications for billing services provided to workers’ compensation claimant. Do not use any other form. A sample HCFA 1500 claim form and detailed instruction for proper completion of the form follows.
We agree with the WCJ’s determination that the Workers’ Compensation Act does not provide for a specific procedure for how employers receive bills. The Act does refer to the Louisiana Administrative Code regarding the reimbursement schedule, but the Louisiana Administrative Code does not control in terms of procedure. Whereas in Kaiser, the fifth circuit referred to the form as a required form, other Louisiana jurisprudence has allowed written notice, as required under La. R.S. 2S:1201(E), to be any notice, such as receiving a medical bill from the worker himself or a written request from his counsel. As a result, we decline to find that under the Workers’ Compensation Act, an employer’s sixty day time period does not begin to run until it receives an HCFA form from the physician.

Nuzum, 857 So.2d at 525 (emphasis added).

Furthermore, the supreme court’s opinion in Authement, cited by Our Lady of Lourdes, does not support the hospital’s argument that La.R.S. 23:1201(E) requires formal demand. In this respect, it is helpful to note the context of the portion reproduced above. In Authement, the court noted that the after the employee had filed a disputed claim asserting that the insurer had failed to authorize certain medical treatment, the employee’s orthopedist had recommended evaluation by another specialist. In order to proceed with the evaluation, the employee needed authorization from the insurer, which was not forthcoming. As a result, the employee’s attorney issued a formal demand in an attempt to obtain authorization from the employer. In Authement, the supreme court did not pinpoint the date of the formal demand as the | ^.beginning of the sixty-day period of La.R.S. 23:1201(E); instead, the court referred to the physician’s initial recommendation that pre-dated the formal demand as triggering the sixty-day period. Authement, 840 So.2d at 1186.

Based upon our review of the statutory language and the relevant jurisprudence, we find that valid notice pursuant to La. R.S. 23:1201(E) does not have to be on a particular form issued by the employer or its insurer; instead, it is only required to be written. In this case, the recommendation was in written form, it was received by Our Lady of Lourdes, and it was therefore sufficient. We find that Dr. Gillespie’s recommendation under “Plan” on the sheet accompanying the ProComp form was sufficient “notice” pursuant to La.R.S. 23:1201(E) to trigger the sixty-day period for imposition of penalties and attorney’s fees. We find that the workers’ compensation judge’s ruling in this respect, that Dr. Gillespie’s recommendation of October 26, 2000, constituted notice, was legally correct.

We now turn to Our Lady of Lourdes’ second argument on appeal. It insists that it did not deny Ms. Semere’s wellness program; instead, it argues, the only factual issue before the workers’ compensation judge was whether Our Lady of Lourdes failed to authorize the program. Our Lady of Lourdes maintains that it did not fail to authorize the program because it was never presented the opportunity to make the program available.

The workers’ compensation judge’s determination that Ms. Semere had given notice to Our Lady of Lourdes was a question of fact. In Edwards v. Sawyer Indus. Plastics, Inc., 99-2676, p. 9 (La.6/30/00), 765 So.2d 328, 333, the Louisiana Supreme Court, quoting its opinion in Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), discussed the province of an appellate court in reviewing the factual determinations of a workers’ compensation judge, as follows:

| iaWhen there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Central to an inquiry as to whether an employer is subject to penalties and attorney’s fees as a result of its failure to reasonably controvert its employee’s claims are the facts of which the employer was cognizant at the time of its conduct. Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144.

The record clearly reflects that both Our Lady of Lourdes and its third-party administrator received Dr. Gillespie’s written notice, dated October 26, 2000, that he wanted Ms. Semere to participate in a wellness program. The record also includes Ms. Hill’s statements that she received the recommendation within thirty-five to forty days of October 26, 2000. This notice provided the “opportunity” to Our Lady of Lourdes to make the program available, within the time limits established by La.R.S. 23:1201(E). Our Lady of Lourdes’ argument in this respect is further refuted by Ms. Semere’s testimony that she customarily waited for a call informing her that she had been approved before she commenced treatment under the workers’ compensation scheme at Our Lady of Lourdes, and she further testified that she called Ms. Hill and Mr. Jones and asked about'the program on July 24, 2001.

The workers’ compensation judge determined, based upon the testimony adduced at the hearing and the evidence offered, that Dr. Gillespie first recommended 114the wellness program on October 26, 2000, and that Our Lady of Lourdes failed to authorize this program within sixty days. Based upon our examination of the record, we do not find that the workers’ compensation judge committed manifest error as to these factual determinations. These assignments are without merit.

Excessive Attorney’s Fees

A workers’ compensation judge is given great discretion in determining whether to award attorney’s fees; accordingly, a ruling in this regard will be reversed on appeal only if clearly wrong. Duhon v. Albertson’s, Inc., 02-494 (La.App. 3 Cir. 10/30/02), 829 So.2d 1190. Moreover, in Romero, 787 So.2d at 1157, a panel of this court explained that:

While the legislature has set statutory limits on the amount of penalties which may be awarded, the legislature has made no such limitation on the amount of attorney fees which may be awarded. See La.R.S. 23:1201. The legislature’s only mandate is that such attorney fees be reasonable. In setting reasonable attorney fees, the supreme court has advised us to consider “the degree of skill and ability exercised, the amount of the claim, and the amount recovered for the plaintiff, and the amount of time devoted to the case.” Naquin v. Uniroyal, Inc., 405 So.2d 525, 528 (La.1981).

We note that Ms. Semere’s attorney prepared pre-hearing statements and prepared for and participated in both the pre-hearing mediation conference and the hearing in this matter. We find that the sum of $3,500.00 is not unreasonable in light of the volume of work done below; accordingly, we find that the award of attorney’s fees was not clearly wrong in this respect. This assignment lacks merit.

Refusal to Reopen the Evidence

A trial judge is vested with discretion as to whether to reopen a case for the admission of further evidence. Fowler v. Fowler, 98-953 (La.App. 3 Cir. 12/9/98), 722 So.2d 125 (quoting Tatum v. Old Republic Ins. Co., 94-157, p. 4 (La.App. 3 Cir. 10/5/94), 643 So.2d 419, 422, writ denied, 94-2722 (La.1/6/95), 648 So.2d 929). 1 ^Accordingly, such decision shall not be disturbed in the absence of manifest error. Id.

The record reflects that at the hearing, when the employer moved to reopen the evidence, both parties had already rested, and the workers’ compensation judge had already issued a decision. Our Lady of Lourdes points out that in her ruling, the workers’ compensation judge remarked that the employer would have reasonably controverted Ms. Semere’s claims if, during the July 24, 2001 phone conversation, Ms. Hill had documented Ms. Semere’s statement that she did not want to participate in the wellness program. Our Lady of Lourdes argues that it would have presented evidence of such documentation during its examination of Ms. Hill had it known that the workers’ compensation judge considered it important.

The record reflects that, throughout the hearing, both sides gave considerable attention to the question of whether Ms. Semere had told Ms. Hill and/or Mr. Jones that she did not wish to participate in the wellness program. The record indicates that after Ms. Semere’s attorney concluded his examination of Ms. Hill, Our Lady of Lourdes’ attorney had the opportunity to ask her about the conversation and about any documentation that might have supported her version of events; instead, he deferred, reserving the right to question her. After the judge denied the motion for involuntary dismissal as to the authorization of the wellness program, Our Lady of Lourdes’ attorney questioned Mr. Jones on direct examination and then rested without exercising his right to question Ms. Hill. Accordingly, we find that the workers’ compensation judge did not commit manifest error in refusing to reopen the case so that Our Lady of Lourdes might introduce evidence pertaining to Ms. Hill’s conversation with Ms. Semere on July 24, 2001. This assignment is without merit.

hfiMs. Semere has requested additional attorney’s fees for work performed on appeal. However, for a party to receive such an award, that party must have filed an answer to the appeal. The record indicates that Ms. Semere did not answer the instant appeal but merely filed a reply brief; accordingly, her request for additional fees is denied. Dugas v. Aaron Rents, Inc., 02-1276 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. All costs of this proceeding are assigned to the employer, Our Lady of Lourdes Regional Medical Center, Inc.

AFFIRMED.

      . The record reflects that neither Ms. Hill nor Mr. Jones brought their respective claims files with them to the hearing.

      . During her testimony, Ms. Semere explained that after her second surgery, Dr. Gillespie suggested that she see Dr. Louis Blanda due to Dr. Blanda’s expertise in back surgery.

      . The text of this article will be reproduced in the discussion section that follows.


source: Caselaw Access Project

author: 11 SULLIVAN, Judge.

license: Public Domain

text:
    Ricky LaGRANGE v. DYNAMIC INDUSTRIES, INC.
    No. 04-100.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.
    Lawrence D. Wiedemann, Wiedemann & Wiedemann New Orleans, LA, for Plaintiff/Appellee, Ricky LaGrange.
    Tracy P. Curtis, Perret Doise, APLC, Lafayette, LA, for Defendant/Appellant, Dynamic Industries, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   11 SULLIVAN, Judge.

Ricky LaGrange sued Dynamic Industries, Inc. (Dynamic) to collect a bonus he alleged was owed to him under an employment contract. The trial court awarded him $100,000.00 on summary judgment. Dynamic appealed and filed an exception of no right of action, seeking dismissal of Mr. LaGrange’s suit because he did not arbitrate his claims before filing suit. For the following reasons, the exception of no right of action is denied, and the judgment of the trial court is reversed.

Facts

On April 24, 1996, Dynamic and Mr. LaGrange entered into an employment contract which provided that it would pay Mr. LaGrange an annual minimum salary of $76,800.00 per year and a bonus of 10% of the net profits of the company commencing January 1, 1996. Dynamic paid Mr. LaGrange a salary of $76,800.00 in 1996 and 1997 and a bonus in the amount of $73,738.00 for 1996.

On January 14, 1998, Dynamic was purchased by Moreno Energy Services, Inc. (Moreno). In May 2000, Mr. LaGrange was terminated. He filed this suit to collect his bonus for 1997, which he alleged was $100,000.00, together with penalties and attorney fees under La.R.S. 23:632. Following receipt and review of Dynamic’s responses to his interrogatories and requests for production, Mr. LaGrange amended his original petition to assert that he was owed an additional $9,898.64 for his 1996 bonus and that his bonus for 1997 should be $123,827.70. Thereafter, he filed a motion for summary judgment, seeking a judgment for these amounts, together with penalties and attorney fees under La.R.S. 23:631 and La.R.S. 23:632.

After a hearing on the motion for summary judgment, the trial court awarded Mr. LaGrange $100,000.00, but denied his claims for penalties and attorney fees. Mr. LaGrange filed a motion for new trial which was denied. He answered | ^Dynamic's appeal, seeking an increase in the amount of his judgment and an award for penalties and attorney fees.

Exception of No Right of Action

In its exception of no right of action, Dynamic asserts that Mr. LaGrange’s employment contract contains an arbitration clause, which required him to submit his claims to arbitration before filing suit, and that, because he did not do so, hé has no right to proceed with this action. Mr. LaGrange does not deny the existence or validity of the arbitration clause; rather, he contends that Dynamic waived its right to demand arbitration because it participated in this litigation before seeking to enforce the arbitration provision.

Louisiana Code of Civil Procedure Article 2163 provides for the consideration of a peremptory exception of no right of action by an appellate court if the exception was urged before the case was submitted for a decision and “if proof of the ground of the exception appears of record.” The peremptory exception of no right of action is a threshold device which terminates suits brought by one who has no interest in enforcing the right. Goulas v. Denbury Mgmt., Inc., 00-935 (La.App. 3 Cir. 12/6/00), 774 So.2d 346. For Dynamic to prevail on this exception, it must establish that Mr. LaGrange “does not have an interest in the subject matter of [his] suit or the legal capacity to proceed with the suit.” Id. at 348.

Mr. LaGrange does have an interest and the legal capacity to proceed in this suit; however, his employment contract has an arbitration provision. “The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of suit or by motion to stay proceedings pending arbitration.” Albert K Newlin, Inc. v. Morris, 99-1093, |sp. 7 (La.App. 3 Cir. 1/5/00), 758 So.2d 222, 227. Dynamic’s exception of no right of action is actually an exception of prematurity, which must be filed prior to answer or judgment by default, or it is waived. La.Code Civ.P. art. 928. Dynamic’s exception was not filed timely; therefore, it was waived. La. Code Civ.P. art. 928; Gary v. Moncla Well Servs., Inc., 97-1131 (La.App. 3 Cir. 2/4/98), 706 So.2d 1096.

Motion for Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). An issue is genuine if reasonable persons could disagree. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. If, based on the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id.

In Knowles v. McCright’s Pharmacy, Inc., 34,559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103, the court discussed the role of the trial court in considering the merits of a motion for summary judgment:

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/08/00), 775 So.2d 1049; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226. ^Furthermore, as noted by the Supreme Court in Independent Fire Insurance Co., supra, the trial court cannot make credibility determinations on a motion for summary judgment. It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. Smith v. Lynn, 32,093 (La.App.2d Cir.08/18/99), 749 So.2d 692; Harrison v. Parker, 31,-844 (La.App.2d Cir.05/05/99), 737 So.2d 160, writ denied, 99-1597 (La.09/17/99), 747 So.2d 565.

In defense of Mr. LaGrange’s claim for a bonus for 1997, Dynamic asserts there was a verbal novation of Mr. LaGrange’s original employment contract as a result of negotiations between Mr. LaGrange and Michel Moreno of Moreno. Novation is the extinguishment of one obligation and the substitution of that obligation with another obligation. La.Civ.Code art. 1879.

Dynamic contends that Mr. LaGrange’s own pleadings and exhibits create a material issue of fact regarding a novation of his contract. Mr. LaGrange alleged in his petition, and Dynamic admitted in its answer, that his employment contract was canceled by mutual consent following Dynamic’s 1997 fiscal year. A copy of an “Agreement” attached to Mr. LaGrange’s petition states in part that his employment contract was terminated and that none of the terms of the contract survived the contract except that Dynamic acknowledged its obligation to transfer Moreno private stock to Mr. LaGrange. This “Agreement” was signed by Mr. LaGrange but not by a representative of Dynamic. Mr. LaGrange asserts this agreement was not confected, and Dynamic has not produced a completed copy of the “Agreement.”

In his supplemental memorandum in support of his motion for summary judgment, Mr. LaGrange outlined requests by Mr. Moreno to modify his employment contract after Moreno’s acquisition of Dynamic:

Michel B. Moreno advised Ricky La-Grange after the acquisition of Dynamic Industries, Inc. that he would increase Mr. LaGrange’s Rsalary from $86,000.00 per year to $100,000.00 per year, if Mr. LaGrange would forego the contract. Mr. LaGrange agreed to the wage increase if the monies for the 1997 contract calendar year were paid. Mr. Moreno agreed to make monthly installments in the amount of $2,500.00 each month. Mr. Moreno made one payment in the amount of $2,500.00.
Michel B. Moreno requested Mr. La-Grange to accept, in lieu of the monies owed to him 400 shares of company stock. Mr. LaGrange refused because Mr. Moreno refused to set a price amount on the per share value.

A copy of an unsigned stock subscription agreement is attached to the supplemental memorandum.

Mr. LaGrange acknowledges that his employment agreement was terminated after Moreno purchased Dynamic and that Mr. Moreno attempted to renegotiate his 1997 bonus, but denies the renegotiation was completed. Mr. Moreno claims that the contract was renegotiated. Summary judgment is inappropriate here because resolution of this issue requires the court to weigh conflicting evidence. Furthermore, the intent of the parties is the most important factor in deciding whether a no-vation has occurred, Scott v. Bank of Coushatta, 512 So.2d 356 (La.1987), and summary judgment is usually not appropriate in cases requiring judicial determination of subjective facts, such as motive, intent, good faith, or knowledge. La.Code Civ.P. art. 966; Harrison v. Parker, 31,844 (La.App. 2 Cir. 5/5/99), 737 So.2d 160, writ denied, 99-1597 (La.9/17/99), 747 So.2d 565.

Our determination that summary judgment is inappropriate renders the issues in Mr. LaGrange’s answer to this appeal moot.

16Disposition

The judgment of the trial court granting summary judgment in favor of Ricky La-Grange is reversed, and the matter is remanded for further proceedings. Costs of this appeal are assessed to Ricky La-Grange.

REVERSED AND REMANDED.


author: I,WOODARD, Judge.

text:
    SUTTON STEEL & SUPPLY, INC., et al. v. BELLSOUTH MOBILITY, INC.
    No. 03-1536.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      Jonathan B. Andry, The Andry Law Firm, L.L.C., Lionel H. Sutton, III, The Sutton Law Firm, New Orleans, LA, Bob F. Wright, James P. Roy, Domengeaux & Wright, Lafayette, LA, Peter Butler, Sr., Peter Butler, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LA, for Plaintiffs/Respondents, Kate Davis, Sutton Steel & Supply, Inc., Rachel Maddox.
    Gary J. Russo, Camille Bienvenu Poché, Perret, Doise, ALPC, Lafayette, LA, Seamus C. Duffy, William M. Connolly, Mary Catherine Roper, Philadelphia, PA, Dr. Saul Litvinoff, Boyd Professor of Law, Baton Rouge, LA, Harry T. Lemmon, New Orleans, LA, for Defendant/Applicant, BellSouth Mobility, Inc.
    Edward H. Bergin, Jones, Walker, Wae-chter, Poitevent Carrere & Denegre, L.L.P., Gregory G. Duplantis, Gordon, Ar-ata, McCollum, Duplantis & Eagan, L.L.P., Alberta Louise Adams, Krebs, Farley & Pelleteri, L.L.C., New Orleans, LA, for Defendant/Applicant, Nextel Operations, Inc.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
   I,WOODARD, Judge.

Defendants appeal the trial court’s decision to certify a class of Plaintiffs as well as its ruling striking certain exhibits that Defendants offered. We affirm the trial court’s judgment and remand the matter to the trial court.

This case is before us in the posture of a consolidated writ application and an appeal for review of the trial court’s judgment certifying a class and its ruling to strike certain exhibits. The underlying claims involve BellSouth Mobility’s (BellSouth) performance under standard form contracts for wireless telephone services. Specifically, BellSouth charged the Plaintiffs and other customers for the calls they made and received by rounding up the last minute of each call. The named Plaintiffs filed suit against BellSouth for breaching its contracts with them. They also sought to certify a class of similarly situated persons in the states of Louisiana, Florida, Mississippi, Alabama, Georgia, Tennessee, Kentucky, North Carolina, and South Carolina.

While the standard form contracts are not identical for each customer, the provisions at issue are substantially similar. Namely, the face of the contracts provide for a certain number of “air time minutes included per month.” The Plaintiffs allege that BellSouth breached its promise to provide them with the stated amount of minutes. There is a provision on the reverse of each of the standard contracts which purportedly explains BellSouth’s billing practice of rounding up. BellSouth argues that this provision simply defines or clarifies what is meant by “air time minutes.” In support of this contention, it offered affidavits of some of its customers in which each stated that he or she understood that BellSouth rounded up the last minute of each call and that he or she consented to this billing method. It also offered certain advertisements and various media which explained its practice of “rounding.”

The trial court granted the Plaintiffs’ motion to strike these exhibits because neither parole nor extrinsic evidence is admissible absent a finding that the contract is ambiguous. The trial court agreed that BellSouth’s exhibits were not admissible at this stage of the proceedings. The trial court also granted the Plaintiffs’ motion to certify the action as a class action. BellSouth appeals both of these rulings.

Jt * ⅜ *

STANDARD OF REVIEW

A certification determination requires an analysis of the particular facts and circumstances of each case, and the trial court has broad discretion in deciding whether or not to certify a class. Moreover, it has discretion to amend or reverse its decision at any time. We may not disturb its decision unless it is manifestly erroneous. Furthermore, “if there is to be an error made, it should be in favor and not against the maintenance of the class action.”

Class Action Prerequisites

One or more persons can sue and represent a class of other similarly situated persons only if certain prerequisites are met. Louisiana Code of Civil Procedure Article 591(A) delineates these prerequisites. First, the class must be so numerous that joinder of all members as individual named parties be “impracticable.” This prerequisite requires an examination of the specific facts of each case and imposes no absolute limitations (numerosity). The Plaintiffs must also show that there are questions of law or fact common to the class (commonality). The third factor, typicality, requires the representatives’ claims or defenses to be typical of those of the class as a whole, such that in representing their own interest, they represent the interest of the class members (typicality). Another factor, adequacy of 13representation, ensures that the named representative(s) will fairly and adequately represent the class. Finally, there must be an objectively definable class.

In addition to these prerequisites under La.Code Civ.P. art. 591(A), the action must fit into at least one of the categories listed in La.Code Civ.P. art. 591(B). The relevant category in the instant action is section (B)(3), requiring that common questions of law or fact predominate over questions that would be specific to each individual, and that a class action is a superior adjudicatory method.

Commonality

“The test of commonality is not a demanding one, and requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members.” Certainly, the question of whether Bell-South breached its promise to the Plaintiffs is one that is common to all class members. Notwithstanding, in the class action context, commonality means not only “common question” but also “common answer.” Specifically, to meet the test of commonality, there must be a common question which when answered for one plaintiff will be answered for all plaintiffs. We find that the Plaintiffs’ claims meet the test of commonality.

Specifically, the common question is whether BellSouth breached its promise to the Plaintiffs under' the contracts’ terms. The answer to this question depends on what BellSouth’s promise consisted of — to provide the Plaintiffs with the stated number of “whole minutes” or with the stated number of “rounded minutes.” There is no dispute that BellSouth followed a common course of action by giving each customer the stated number of “rounded minutes.” Thus, once the trial court determines whether BellSouth’s contract promises the class members “whole minutes” |4or “rounded minutes,” then the question of whether BellSouth breached this promise, when answered for one class member, will be answered for all.

Typicality

This prerequisite is satisfied if the class representatives’ claims and the putative class members’ claims arise out of the same course of conduct and are based on the same legal theory. In the instant case, all claims are based on a breach of contract theory and the alleged breach results from BellSouth’s billing method, which is a uniform course of conduct. Furthermore, the contracts at issue involve two types of rate plans. Specifically, some of the contracts provide that the customer will be charged a certain amount per minute for each minute of air time, while others provide that the customer will pay a certain amount per month for a stated amount 'of minutes and will incur additional charges on a per-minute basis only if the customer exceeds the ■ stated number of minutes during the particular billing cycle. One of the class representatives had service under both types of plans. Accordingly, the class representatives represent a cross-section of the putative class members.

Adequacy of Representation

The trial court found that the class representatives and their attorneys have undertaken extensive discovery during a four-year pursuit of these claims, and will adequately protect the interest of the class. We must agree.

Numerosity and Class Definition

The final two prerequisites are that the class may be defined objectively and that the number.of class members is so great that joinder is impracticable. In the instant case, the trial court defined the class as follows:

Those natural persons, business and/or related entities who entered into contracts for a specific amount of air time for a certain amount per minute for cellular service or wireless telephone services provided by Defendant Bell-South Mobility in Louisiana, Florida, Mississippi, Alabama, Georgia, Tennessee, Kentucky, North Carolina, and South Carolina.

| RIt excluded from the class certain persons associated with BellSouth as well as any trial judge presiding over the case.

We find that the class definition is ambiguous and inadequate. Specifically, it covers only one of the two rate plans involved. Those customers who had rate plans that provide for a certain amount of minutes for a certain amount per month and only charge on a per-minute basis if the customer exceeds the stated number of minutes are not covered in the definition. However, it is clear from the trial court’s written reasons for judgment that it intended to include in the class “persons who solicited or were solicited for services by BellSouth Mobility, [who] signed standard form contracts in which they were to receive services from BellSouth Mobility for so many minutes per month for a designated fee.”

Additionally, the trial court does not provide any time frame for identifying members of the class. Notwithstanding, “because of a trial court’s authority to redefine the class before a decision on the merits of the common issues, appellate courts often allow certification despite a finding that the definition is inadequate for one reason or another.” Thus, the trial court may address these inadequacies on remand.

Furthermore, incorporating a time frame into the class definition will not affect the numerosity requirement. The trial court found that “there are somewhere between two and four million such customers with standard from contracts for air time in the class area.” Thus, joinder would be impractical even for a small percentage of this number, and nu-merosity is therefore met.

Predominance and superiority

Louisiana Code of Civil Procedure Article 591(B)(3) requires that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”

BellSouth makes numerous arguments concerning the need for individualized inquiries to determine whether each customer consented to BellSouth’s rounding billing method. It argues that these arguments are appropriate at this stage of the proceedings because of written reasons that the trial court gave when it denied | fiBellSouth’s motion for summary judgment a few months before class certification. Specifically, the trial court denied BellSouth’s summary judgment motion, finding that there was an internal conflict in the two provisions at issue. Thus, BellSouth contends that the trial court implicitly found the contract to be ambiguous. Accordingly, BellSouth centers its arguments against certification on the premise that the trial court has declared the contract to be ambiguous. However, BellSouth’s reasoning is flawed.

To address BellSouth’s arguments, we would have to agree with Bell-South’s interpretation that the trial court’s written reasons for denying summary judgment, a ruling that is not before us, imply that it found the contract to be ambiguous and to review whether it is in fact ambiguous. However, it is impossible for us to conduct such an analysis without making decisions on the merits of this case. Even though ambiguity is a question of law, we may not consider the merits of the dispute in this appeal. As this court has stated:

Another basic principle is that, for purposes of certification, a court is not permitted to review the claims in a case on their substantive merit. ... A class action is no more than a procedural device; it confers no substantive rights.... The only issue to be considered by the trial court in ruling on certification, and by this Court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of a class action the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits.

The propriety of the trial court’s denial of summary judgment is not before this court. Therefore, neither are its reasons. To entertain its reasons for denying summary judgment, as BellSouth urges, is tantamount to reviewing the judgment, itself. Furthermore, this court, as well as the supreme court, has already refused to 17exercise supervisory jurisdiction over the denial of summary judgment. Thus, we will consider only the trial court’s reasons for certifying the class.

In its written reasons for judgment certifying this class, the trial court simply stated:

The claims arise out of a single type of contract. This is the standard form contract employed by BellSouth Mobility in contracting with customers. BellSouth uses a common contract form in the states in its service area. All of those contracts in the putative class specify a number of air time minutes and the price to be charged for such minutes. This is standard in all of BellSouth Mobility’s form contracts. The breach of contract allegedly arises when BellSouth rounded up to the next full minute instead of providing the amount of full minutes that were contracted for. Thus, clearly there is a common question of law and fact as to each of these contracts and to the breach of each of these contracts.

Accordingly, the trial court found that common questions predominate in this litigation. It further supported its decision that common issues predominate by recognizing that, even though the amount of damages may vary, the method of calculating damages will be uniform. The trial court also found that a class action was a superior method to adjudicate Plaintiffs’ claims, particularly, in light of the impracticability that any one class member has a claim large enough to justify pursuing it individually.

BellSouth avers that variances in state law governing unconsci'onability create an impediment to class action treatment, and points out that it is Plaintiffs’ burden to prove that each state’s legal standards are not incompatible. However, as the Plaintiffs have not made any allegations of un-conscionability, they need not address the legal standards governing it. Furthermore, if the trial court chooses to employ such an analysis in order to analyze the contract, it has the discretion to create subclasses or to amend or restrict its definition of the class at anytime.

| RAdditionally, BellSouth argues that variances in state law governing the-enforceability of the arbitration provisions in its contracts create an impediment to class certification. This court, in a previous appeal, has already declined to recognize the arbitration provisions in the Plaintiffs contracts. Even assuming that the arbitration provisions are enforceable in one or more of the remaining eight states, this does not automatically render class action an inferior method of adjudicating the Plaintiffs’ claims. The trial court has discretion to create subclasses based on the class members’ resident states. Even assuming that the trial court would have to conduct more than one arbitrability analysis does not render a class action unmanageable per se, nor does it inevitably lead to a determination that common issues do not predominate in the entire action. Thus, we find that BellSouth’s arbitrability argument is not a basis for finding an abuse of discretion in the trial court’s decision to certify the class.

Furthermore, BellSouth submits that it has replaced the prior arbitration provisions which this court refused to recognize with an enforceable provision. However, if the trial court agrees, it can easily preter-mit an analysis of the new arbitration provisions by restricting the class definition to those members whose contracts contained the previous arbitration provision or by taking this into consideration in its inclusion of a time frame into the class definition as directed above.

Finally, BellSouth argues that its affirmative defenses of waiver, ratification, and the voluntary payment doctrine depend on individual facts and circumstances, defeating commonality. However, while these affirmative defenses may limit or bar a class member’s ultimate recovery, they will not affect the initial determination of BellSouth’s liability. As such, they apply to the issue of the Plaintiffs’ damages, not BellSouth’s liability, and do not make class certification inappropriate under La.Code Civ.P. 591(C). “The mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must \ñmdividually prove their right to recover, does not preclude class certification.” (Emphasis added.) Furthermore, BellSouth’s affirmative defense based on the file tariff doctrine is a class-wide defense and therefore does not defeat commonality.

Accordingly, we do not find that any of BellSouth’s arguments demonstrate a basis for us to find that the trial court’s decision to certify the class was manifestly erroneous.

Ruling to Strike Exhibits

BellSouth offered the affidavits of some of its customers who stated that they understood the whole-minute billing terms of the standard form contracts and that they consented to those terms. It also offered evidence of various media which it asserted apprized its customers of its billing method. The trial court excluded these exhibits in the certification hearing, and BellSouth argues that this constituted an impermissible ruling on the merits and that such decision directly conflicted with the trial court’s prior findings as evidenced in its reasons for denying BellSouth’s motion for summary judgment. We disagree.

By excluding these exhibits at the initial stage of certification, the trial court avoided making an impermissible decision on the merits. In the instant case, the Plaintiffs allege that the contract clearly and unambiguously promises a stated number of whole minutes to each customer, while the Defendants argue that the contract clearly and unambiguously promises each customer a stated number of rounded minutes. When a contract is clear and unambiguous, inquiry into the parties’ intent is confined to the four corners of the document itself. Thus, based on the allegations, parol and extrinsic evidence are not admissible. Notwithstanding, BellSouth points out that in the trial court’s written reasons denying its summary judgment motion, the trial court finds that there is an internal conflict in the contract. It follows, BellSouth asserts, that the trial court has found the contract to be ambiguous. Again, we are not at liberty to review the denial of summary judgment, and therefore decline to comment on BellSouth’s interpretation of the ruling.

^CONCLUSION

We find no manifest error in the trial court decision to certify the present action as a class action. We also agree that the trial court correctly refused to consider various BellSouth exhibits in making its certification ruling. Thus, we affirm the trial court’s judgment, remand the case for further proceedings, and direct the trial court to address the inadequacies in its class definition. We cast the costs of this appeal on BellSouth.

AFFIRMED AND REMANDED WITH DIRECTIONS.

      . Martello v. City of Ferriday, 01-1240 (La.App. 3 Cir. 3/6/02), 813 So.2d 467, writs denied, 02-1002, 02-990, 02-1514 (La.6/7/02), 818 So.2d 769, 770, 771.

      . La.Code Civ.P. art. 592(A)(3)(c).

      . Martello, 813 So.2d 467.

      . McCastle v. Rollins Envtl. Serv. of La., Inc., 456 So.2d 612, 620 (La.1984).

      . La.Code Civ.P. art. 591.

      . La.Code Civ.P. art. 591(A)(1).

      . La.Code Civ.P. art. 591(A)(2).

      . La.Code Civ.P. art. 591(A)(3).

      . La.Code Civ.P. art. 591(A)(4).

      . La.Code Civ.P. art. 591(A)(5).

      . Duke v. Texaco, Inc., 99-2002, p. 12 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637 (citing Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5 Cir.1999), cert. denied, 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000)).

      . Duke, 779 So.2d 1070.

      . Id.

      . Id. at 1080.

      . Clark v. Trus Joist MacMillian, 02-676, p. 6 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, 460, writ denied, 03-275 (La.4/21/03), 841 So.2d 793 (quoting Duhe, 779 So.2d at 1078).

        .Id. (quoting Andry v. Murphy Oil, U.S.A., Co., 97-793 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129).

      . See Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 03-3445, 03-3446 (La.2/20/04), 866 So.2d 830, 831.

      . La.Code Civ.P. art. 592(D); La.Code Civ.P. art. 592(A)(3)(c).

      . Sutton’s Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-152 (La.3/16/01), 787 So.2d 316.

      . Doerr v. Mobil Oil Corp., 01-775 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, writs denied, 02-920, 02-938 (La.5/31/02), 817 So.2d 105, 106.

      . Duhe, 779 So.2d at 1085 (citing Bartlett v. Browning-Ferris Indus. Chem. Serv., Inc., 99-494 (La. 11/12/99), 759 So.2d 755).

      . See Norcen Explorer, Inc. v. Kavanagh, 94-1058 (La.App. 3 Cir. 3/1/95), 651 So.2d 473.


author: WOODARD, Judge.

text:
    SUTTON STEEL & SUPPLY, INC., et al. v. BELLSOUTH MOBILITY, INC., et al.
    No. 03-1261.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.
    Jonathan B. Andry, The Andry Law Firm, L.L.C., Lionel H. Sutton, III, The Sutton Law Firm, New Orleans, LA, Bob F. Wright, James P. Roy, Domengeaux & Wright, Lafayette, LA, Peter Butler, Sr., Peter Butler, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LA, for Plaintiffs/Appel-lees, Kate Davis, Sutton Steel & Supply, Inc., Rachel Maddox.
    Gary J. Russo, Camille Bienvenu Poché, Perret, Doise, ALPC, Lafayette, LA, Seamus C. Duffy, William M. Connolly, Mary Catherine Roper, Philadelphia, PA, Dr. Saul Litvinoff, Boyd Professor of Law, Baton Rouge, LA, Harry T. Lemmon, New Orleans, LA, for Defendant/Appellant, BellSouth Mobility, Inc.
    Edward H. Bergin, Jones, Walker, Wae-chter, Poitevent Carrere & Denegre, L.L.P., Gregory G. Duplantis, Gordon, Ar-ata, McCollum, Duplantis & Eagan, L.L.P., Alberta Louise Adams, Krebs, Farley & Pelleteri, L.L.C., New Orleans, LA, for Defendant/Appellant, Nextel Operations, Inc.

      Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
   WOODARD, Judge.

For the reasons assigned this day in Sutton Steel & Supply Inc. v. BellSouth Mobility, Inc., 03-1536 (La.App. 3 Cir. 6/9/04), 875 So.2d 1062, 2004 WL 1253765, we deny BellSouth’s application for a supervisory writ.

WRIT DENIED.


author: JACHARLES R. JONES, Judge.

text:
    Maxine THOMAS v. PROCTOR & GAMBLE—LOUISIANA FOLGER COFFEE.
    No. 2004-CA-0277.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 2004.
    Rehearing Denied June 30, 2004.

      Rodney Kelp Littlefield, Regan & Associates, P.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Douglas S. Scotti, Dominic J. Gianna, Middleberg Riddle <& Gianna, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge DENNIS R. BAGNERIS SR.).
   JACHARLES R. JONES, Judge.

The instant case arises out of a claim for worker’s compensation filed with the Office of Workers’ Compensation (hereinafter “OWC”) by the Appellant, Maxine Thomas. Ms. Thomas seeks review of the judgment by the OWC denying her claim for worker’s compensation benefits. We reverse.

On August 12, 1998, Ms. Thomas instituted a claim for benefits after suffering a work-related injury to her right knee while an employee of The Folgers Coffee Company (hereinafter “Folgers”). On May 8, 2002, the matter was tried before the OWC, however Judge Clara Toombs resigned her appointment before a decision was rendered. On September 18, 2002, Judge Sheral C. Kellar, Judge Toombs’ temporary successor, concluded that Ms. Thomas did not prove by a preponderance of the evidence,that she suffered a work-related injury, and denied workers’ compensation benefits.

Ms. Thomas subsequently appealed and this Court vacated and remanded the September 18, 2002 judgment to the OWC. Judge Sean A. Jackson, the appointed successor for Judge Clara Toombs, rendered a judgment denying Ms. Thomas workers’ compensation benefits. This judgment.is the subject of the matter now before this Court.

| 2Ms. Thomas first argues that the OWC erred in finding that her injury was not work-related. Louisiana courts have consistently interpreted the work-related accident requirement1 liberally. Bruno v. Harbert International Inc., 593 So.2d 357, 360 (La.1992). It is well settled that an “accident” exists when “heavy lifting or other strenuous efforts,. although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.” Id. The determination of whether an accident occurred is to be construed from the worker’s perspective and the claimant has the burden of establishing a. work-related incident by a preponderance of the evidence. Id.

Compensable injuries under the workers’ compensation laws must have resulted from an accident arising out of and in the course of employment. La. R.S. 23:1031(A); Bruno. The language of La. R.S. 23:1021(1) provides that an “accident” means 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.

This Court has previously interpreted the amended language of La. R.S. 23:1021(1) to exclude from the definition of “accident” conditions that are caused by a progressive deterioration. Carter v. New Orleans Fire Department, 94-0338, p. 4 (La.App. 4 Cir. 11/17/94), 646 So.2d 455, 459. See also Blanque v. City of New Orleans, 612 So.2d 948 (La.App. 4th Cir. 1993). However, it has been established that if the claimant is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of La. R.S. 23:1021(1). Sterling v. Orleans Parish School Board, 96-0107 (La.App. 4 Cir. 6/26/96), 679 So.2d 167, 170-171; Begue v. Crossover, Inc., 03-0267 (La.App. 1 Cir. 11/21/03), 868 So.2d 100, 105.

It is well settled that an employee’s disability is compensable if a preexisting condition or disease is activated or precipitated into a disability as a result of work. Moreover, an employee’s disability will be presumed to have resulted from an employment accident if before the accident, the employee was in good health, but commencing with the accident the symptoms of the disabling conditions appear and continuously manifest themselves, provided the evidence shows a reasonable possibility of a causal connection between the accident and the disabling condition. Dou-cet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166, 167. This presumption is not conclusive, but it requires the defendant to come forward with sufficient contrary evidence to rebut it. Doucet, at 167-168; citing Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829, 831 (La.1982).

In the case at bar, it is undisputed that the August 12, 1998 incident was an unexpected event, which happened suddenly and directly produced objective findings of an injury to Ms. Thomas’ right knee. Immediately prior to the incident, Ms. Thomas was performing the physical requirements of her job, including climbing and kneeling over during the course of her eight to twelve hour shifts. However, the record indicates that immediately after the fall, she was unable to perform her work duties. Moreover, Dr. Kenneth Veca, Ms. Thomas’ treating physician, confirmed that Ms. Thomas would be unable to perform her usual duties as a result of the injury. Therefore, this Court finds merit to Ms. Thomas’ claim that her injury is work-related.

|4Ms. Thomas further argues that the OWC erred in relying on inadmissible evidence attached to the appellee’s Post-Trial Memorandum. However, as this Court finds that Ms. Thomas did sustain a work-related injury, we pretermit discussion of her second assignment of error.

DECREE

For the reasons stated herein, the judgment dismissing Ms. Thomas’ claim for workers’ compensation benefits with prejudice, is reversed and remanded for further proceedings and for a determination of benefits to which Ms. Thomas is entitled.

REVERSED AND REMANDED.


author: SMITH, Chief Justice,

text:
    PRE-PAID LEGAL SERVICES, INC., Brooks Werkheiser, Dyre Law Firm, PLLC and Arnold D. Dyre v. Clara MEALEY, Tyrone Green, George Lee Sanders, Sr., Mary Collins, Steve Brengettsy, Emma Davis, Donna Gaylor, Vontricy McDaniel, Linda Montgomery, Dorothy Nix, Willie Roby, Albert Thompson, Teleter Tucker, Jacqueline Watkins, Mary B. Williams, Shirley Johnson, Deloris Corley, Sabrina Dixon, Charlene Johnson, Annie King, Annie L. Lee, Shirley Mcdaniel, Daphne Montgomery, Mary Wilson, Charles Husband, Tessa Smith and William Smith.
    No. 2002-CA-01716-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.
    Richard L. Jones, Robert L. Gibbs, Anne Clarke Sanders, Andrea La’Verne Ford Edney, Jackson, Teselyn Afrique Melton, Brian C. Kimble, Ernest G. Taylor, John Benton Clark, Shanda L. Lewis, C. Michael Ellingburg, Jackson, attorneys for appellants.
    J. Brad Pigott, J. Douglas Minor, Barry W. Gilmer, Jackson, attorneys for appel-lees.
   SMITH, Chief Justice,

for the Court.

¶ 1. Plaintiffs filed an action in the Circuit Court of Wilkinson County against defendants Pre-Paid Legal Services, Inc., Harlan C. Stonecipher, Brooks Werkheiser, Dyre Law Firm, PLLC, and Arnold D. Dyre seeking redress for alleged misconduct including, but not limited to, deceptive trade practices, conspiracy, fraud and negligence. Plaintiffs also sought a declaratory judgment stating that they were under no contractual obligation to submit any of the claims against any of the defendants to arbitration. Subsequently, plaintiffs filed a motion for partial summary judgment as to the absence of any applicable arbitration clause between the parties. The trial court granted the motion and found that none of the plaintiffs had signed any agreement which included an arbitration clause or any obligation or promise to arbitrate any claim or dispute with any defendant or any entity affiliated with and defendant. Furthermore, the court found that the purported arbitration clause of which defendants seek the benefit is unconscionable and unenforceable under Mississippi law. Aggrieved, the defendants have appealed the partial summary judgment and declaratory judgment pursuant to the Federal Arbitration Act, 9 U.S.C. § 16(a)(2) and (3), asking this Court to find that the plaintiffs are obligated to arbitrate their claims and that there exists a genuine issue of material fact, which precludes summary judgment. We affirm and remand.

FACTS

¶ 2. Clara Mealey and 26 other plaintiffs (Plaintiffs) commenced this action against Pre-Paid Legal Services, Inc., Harlan C. Stonecipher, Brooks Werkheiser, Dyre Law Firm, PLLC, and Arnold D. Dyre on June 17, 2002, in the Circuit Court of Wilkinson County, Mississippi. They assert nine separate causes of action including (1) violation of the Mississippi Deceptive Advertising Act, (2) violation of the Mississippi Deceptive Trade Practices Act, (3) fraud, (4) civil conspiracy, (5) professional negligence, (6) negligent misrepresentation, (7) breach of fiduciary duty, and (8) illegal payments. Plaintiffs also seek a declaratory judgment that they are under no obligation to arbitrate any of these claims against these defendants.

¶ 3. Plaintiffs essentially claim that PrePaid used deceptive marketing practices to lure them into signing a contract for legal services with National Pre-Paid Legal Services of Mississippi, Inc. (National) that was grossly deficient in comparison to the services they were told that they would receive. Harlan C. Stonecipher is the CEO and Chairman of the Board for PrePaid. Brooks Werkheiser is a former Regional Vice President for Pre-Paid and is currently a licensed agent of National PrePaid of Mississippi. Plaintiffs also assert that Dyre Law Firm and Arnold Dyre, individually, were accomplices in these alleged misdeeds as the attorney that is provided for in the contracts signed with National.

¶ 4. Subsequently, on July 22, 2002, plaintiffs filed a motion for partial summary judgment as to the absence of any applicable arbitration clause. In response, the defendants noted that all of the plaintiffs’ claims arose out of contracts they entered into for legal services with National. The defendants also provided a copy of their standard contract which contains the following provision in nine point font on the fifth page of a six-page contract:

K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will decide such dispute and that decision will be binding on all parties to such dispute.

Defendants are non-signatories to these contracts, yet steadfastly maintain that they are entitled to the protection of its arbitration provision.

¶ 5. On August 29, 2002, the trial court entered an order granting plaintiffs’ motion for partial summary judgment and declaratory judgment. The court ruled that the plaintiffs had not signed an agreement to arbitrate the claims asserted in this matter and that the purported arbitration clause put forth by the defendants was unconscionable and unenforceable. Final judgment to this effect was entered on the same day.

¶ 6. Both Pre-Paid and Dyre appeal pursuant to the Federal Arbitration Act, 9 U.S.C. § 16(a)(2) and (3). Defendants argue that the circuit court erred in finding that the plaintiffs had no obligation to arbitrate their claims and that there were genuine issues of material fact which preclude summary judgment. The plaintiffs filed a motion to dismiss the appeal, and we denied the motion, finding the trial court order was a final decision with respect to arbitration.

ANALYSIS

¶ 7. The following issues are presented on appeal:

I. WHETHER THE TRIAL COURT ERRED BY ENTERING A FINAL JUDGMENT DECLARING THAT THE PLAINTIFFS’ CLAIMS AGAINST THE PROVIDER COMPANY AND PROVIDER ATTORNEYS DO NOT REQUIRE ARBITRATION EVEN THOUGH PLAINTIFFS ENTERED INTO A PRE-PAID LEGAL SERVICES CONTRACT CONTAINING AN ARBITRATION CLAUSE.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.

¶ 8. This case and Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79 (Miss.2004) have been considered by this Court with all issues reviewed. Our recent decision in Pre-Paid v. Battle controls the disposition of all issues raised in the case sub judice because the contract under scrutiny is the same. In Pre-Paid v. Battle, we determined that there is not a valid, binding arbitration agreement contained in this pre-paid legal expense agreement. Therefore, we reach the same conclusion here.

CONCLUSION

¶ 9. For these reasons, we affirm the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

¶10. AFFIRMED AND REMANDED.

WALLER, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Tyrone Green, George Lee Sanders, Sr., Mary Collins, Steve Brengettsy, Emma Davis, Donna Gaylor, Vontricy McDaniel, Linda, Dorothey Nix, Willie Roby, Albert Thompson, Teleter Tucker, Jacqueline Watkins, Mary B. Williams, Shirley Johnson, Deloris Corley, Sabrina Dixon, Charlene Johnson, Annie King, Annie L. Lee, Shirley McDaniel, Daphne Montgomery, Mary Wilson, Charles Husband, Tessa Smith, and William Smith.

      . Pre-Paid Legal Services, Inc., Stonecipher, and Werkheiser will collectively be referred to in the discussion section as "Pre-Paid,” not to be confused with "National Pre-Paid of Mississippi,” which will be referred to, but is not a party to this action.

      . Dyre Law Firm, PLLC, and Arnold D. Dyre will collectively be referred to as "Dyre.”


author: COBB, Presiding Justice,

text:
    NASH PLUMBING, INC. and Milton Nash v. SHASCO WHOLESALE SUPPLY, INC.
    No. 2002-CA-00678-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.

      Roger M. Tubbs, Tupelo, attorney for appellants.
    Rex F. Sanderson, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. In November, 1999, Shasco Wholesale Supply, Inc. (Shasco) brought suit in the Chickasaw County Circuit Court, First District, against defendants Milton Nash (Nash), Tommy Turner (Turner), Nash Plumbing, Inc. (Nash Plumbing), and A.C.T. Services, Inc. (A.C.T.). to recover a debt of $5,630 owed for plumbing supplies sold by Shasco, invoiced to A.C.T., received by Nash or Nash Plumbing, but never paid for. Milton Nash was president of Nash Plumbing, and Tommy Turner was president of A.C.T.

¶ 2. A bench trial was held on March 20, 2001. A.C.T. was not represented at trial, although Tommy Turner testified. Milton Nash and Nash Plumbing were represented, but neither put on a defense, nor did Milton Nash appear during trial to testify. A judgment in the amount of $10,808.45, which included the $7,010.15 reflected on Shasco’s accounting and $3,798.30 in attorney’s fees, out-of-pocket expenses and interest, was entered by the circuit court on May 7, 2001, against Milton Nash, Nash Plumbing, Inc., Roto-Rooter of North Mississippi, Inc., and Nash Services Group, Inc. No judgment was entered by the circuit court against A.C.T. or its president, Tommy Turner.

¶ 3. Although the circuit court judgment did not include an explanation of the legal theories upon which it based its judgment, the judge stated that he was of the opinion that Nash had “used the corporate shield to manipulate.” However, due to the contradictions between Turner’s testimony and the documentary evidence he supplied concerning the relationships between the parties, particularly the corporate entities, we are unable to affirm the trial court on this basis. Therefore, we hold that Milton Nash, individually, and Nash Services Group (flk/a Roto-Rooter of North Mississippi) cannot be held liable, but that based on equitable estoppel principles, A.C.T. Services is held jointly and severally liable along with Nash Plumbing, for the judgment in favor of Shasco. We affirm the trial court in all other respects.

FACTS

¶ 4. These fácts are taken from the record and from the uncontested trial testimony of Tommy Turner, president of A.C.T. Services, Inc. and Kenny Scott, president of Shasco, Inc. Milton Nash was the president of at least two corporations, Nash Plumbing, Inc., and Roto-Rooter of North Mississippi, Inc. According to Turner, these two companies did similar work, but Nash Plumbing performed the larger, American Institute of Architects (AIA), construction jobs, and Roto-Rooter performed the smaller residential air conditioning and non-contract jobs. Together, these companies were sometimes referred to as the Nash Group or simply “Nash.” Turner testified that around September, 1997,'Milton Nash approached him with an offer to purchase A.C.T. Turner testified that this as a good fit because Nash had no sheet metal or air conditioning capability, so subcontracted out this portion of its construction jobs, and A.C.T. had a nice sheet metal shop'and performed this type of work. Turner further testified that Nash Plumbing was also in need of a mechanical license, which Turner could supply; and Nash Plumbing was in a better position to provide the performance bonds for the jobs. In anticipation of a buy-out agreement, A.C.T. Services, Inc. and Nash Plumbing, Inc. executed a “Management Agreement” in which Milton Nash was to manage A.C.T. until Turner and Nash could “hammer out” a deal for Nash to acquire A.C.T. Turner also testified that he (Turner) had been an absentee owner and was not familiar with the daily operations of A.C.T. The record corroborates that Turner knew very little about the corporate transactions with which he was involved.

¶ 5. According to Turner’s testimony, A.C.T. ceased operation as of December 31, 1997 , and “Nash” took over all of AC.T.’s assets and liabilities as of that date. Turner stated that it took until March 12,1998, to work out the agreement for “Nash” to acquire A.C.T. and during this time, A.C.T. was in a transition period, with employees working one day for A.C.T. and the next day for Nash Plumbing. The same day that the acquisition agreement was executed, a Consulting Agreement was also executed between Tommy Turner and the two Nash companies, Nash Plumbing and Roto-rooter of North Mississippi, in which Turner was to be a paid consultant for the Nash companies.

¶ 6. Turner further testified that A.C.T. had bid and won several commercial air conditioning jobs, which Nash Plumbing began managing; that Nash hired supervisors for each job; and with the exception of one job, Nash Plumbing entirely controlled the jobs. Turner also testified that Milton Nash was managing and controlling A.C.T. as well as Nash Plumbing and Roto-Rooter (Nash Services Group) and using the assets and employees of all companies to complete the construction jobs in the names of both Nash Plumbing and A.C.T.

¶ 7. When the trial judge questioned Turner about who received payment for the jobs, Turner stated that Nash received the payments and was in control of all money paid toward the A.C.T. contracts. When asked how the jobs were handled, Turner testified about one job, the ICC Building in Fulton, which was an A.C.T. contract, stating “[i]t was 100 percent totally handled by Nash. We never got any checks, never did any work. I’m sure a lot of these materials went on that job.” Nash did not testify in his own defense, nor in defense of Nash Plumbing, and no evidence was presented to dispute this claim.

¶ 8. Shasco president Kenny Scott testified that Shasco opened the A.C.T. account in the latter part of 1997. He stated that invoices sent to A.C.T. in December, 1997 and January, 1998, were paid by A.C.T. Invoices dated February through April 1998 were left unpaid. Scott testified that his employee went to A.C.T. to find out why the invoices were not being paid, was told that Nash Plumbing was buying out A.C.T., and was directed to Nash Plumbing for collection of the debt. Scott then personally visited Milton Nash in early July, 1998, at the Nash Plumbing office after calling several times with no response. The trial record supports Scott’s contentions that Milton Nash admitted to him during this meeting that the debt belonged to Nash Plumbing and that Nash not only promised to pay for any material or supplies ordered by A.C.TV but also gave Scott a check drawn on the Nash Plumbing account in the amount of $3,653.19 for seven invoices with dates in February and March of 1998. The invoices were for sheet metal material and supplies ordered on the A.C.T. account. According to Scott, Nash then told Scott he would “have some more money in a couple of weeks.”

¶ 9. The trial testimony supports the circuit court’s finding that Shasco supplied sheet metal and other materials to A.CÍT.; the materials were being used on jobs managed and controlled by Nash Plumbing; Nash Plumbing was being paid directly for the jobs; and no money was going back into A.C.T., or to Shasco to pay for the supplies.

ANALYSIS

¶ 10. A circuit court judge sitting without a jury is accorded deference with regard to his findings on appeal as long as his findings are supported by substantial, credible, and reasonable evidence. Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993). However, we review the circuit court’s legal conclusions de novo. Bank of Miss. v. S. Mem’l Park, Inc., 677 So .2d 186, 191 (Miss.1996).

1. Liability of Nash Plumbing for the Shasco debt.

¶ 11. Nash argues that the trial court erred in awarding a judgment against Nash Plumbing for payment of the Shasco debt because the debt was listed in the name of A.C.T., and because Nash Plumbing’s credit application had been rejected by Shasco. Nash further argues that if any entity actually took over A.C.T., it was Nash Services Group, and that Shasco sued the wrong company. Nash supplied no documentation to show which entity took over A.C.T., and the documentation supplied by Turner showed it was a company by the name of A.C.T./Roto-Rooter'. Regardless of which entity legally assumed the assets and liabilities of A.C.T., Nash Plumbing is the one company that benefitted from A.C.T.’s assets, including the products purchased from Shas-co. It used these assets on its larger “Nash Plumbing” managed jobs, and was paid for, these jobs. There was no testimony or evidence presented that disputes this.

¶ 12. It also appears that Shasco’s efforts to obtain information about which entity took over A.C.T. were subverted. Shasco filed a discovery request for Nash to produce any document that was signed by Milton Nash or Nash Plumbing, with A.C.T. and Tommy Turner, or either of them, during the period of time of January through July, 1998, which was answered by Nash with the word “None.” There are two documents in the record signed by both Tommy Turner and Milton Nash, one signed by Milton Nash as president of Nash Plumbing, during the specified period, so this appears to be a blatant misrepresentation made by Nash and Nash Plumbing to Shasco. Based on the representations made by Nash and Turner, including paragraph 9 of the Management Agreement, and from' the way that Nash and Turner were conducting business, it would be unreasonable for Shasco to believe that some company other than Nash Plumbing acquired A.C.T., if A.C.T. had been acquired.

¶ 13. There is sufficient evidence available to support the trial court’s ruling that Nash Plumbing was liable for the Shasco debt. Although A.C.T. and Nash were negotiating on some type of acquisition agreement, and' Turner testified that A.C.T. ceased doing business on 12/31/97, Shasco was not made aware of this until several months later, after the supplies had been delivered in the name of A.C.T. Shasco rejected Nash Plumbing’s request for credit, so arguably would not have supplied Nash Plumbing with the materials on credit. Based on equitable estoppel principles, the circuit court was correct.

¶ 14. Equitable estoppel requires that there be 1) a belief and reliance on a representation or omission, 2) a change in position as a result of the representation; and 3) detriment or prejudice caused by the change of position. In re City of Southaven, 864 So.2d 912, 917 (Miss.2003). Therefore, based on omissions by A.C.T. and Nash Plumbing, Shasco made a change in position by supplying, on credit, materials to a company which it would not have supplied materials to otherwise. The fact that Shasco has never been paid for these materials and has been forced to bring suit is an obvious detriment to Shas-co.

¶ 15. Additionally, Nash Plumbing used and benefitted from the A.C.T. assets, including the line of credit established with Shasco and the supplies delivered to the companies. Nash admitted to Shaseo’s president that the debt belonged to Nash Plumbing and made a partial payment for same. Nash Plumbing may not now equitably disclaim the relationship that he represented having with A.C.T. in order to shield himself from liability.

£ Liability of Milton Nash, individually, for the Shasco debt.

¶ 16. The trial court found Milton Nash personally liable, indicating that Nash was manipulating the corporations for his benefit and to Shasco’s detriment. The evidence presented at trial could reasonably lead to the conclusion that: Nash was controlling all the corporate entities involved; he was not forthcoming to anyone about the actual corporate dealings that were going on; he led Turner and others to believe that A.C.T. was being acquired by Nash Plumbing; he secured the benefit from the use of Shasco’s products without the intention to pay for them; and subsequently hid behind the dubious corporate agreements that he was instrumental in preparing in order to avoid liability. Nevertheless, Shasco clearly failed to make sufficiently particularized allegations demonstrating the applicability of the veil piercing doctrine to the facts of the case. See N. Am. Plastics, Inc., v. Inland Shoe Mfg. Co., 592 F.Supp. 875, 879 (N.D.Miss.1984). Shasco failed to plead that the court should pierce the corporate veil of either corporation. Additionally, Shasco provides no case law for the proposition that Milton Nash or Tommy Turner, as individuals should be held liable for the debt of any corporation under any other theory.

¶ 17. A fundamental principle of corporate law is that shareholders are not hable for the obligations of the corporation. Robert B. Thompson, Piercing the Corporate Veil: An Empirical Study, 76 Cornell L.Rev. 1036, 1039 (1991). Courts do not take piercing of the corporate veil lightly because of the chilling effect it has on corporate risk-taking. Highway Dev. Co. v. Miss. State Highway Comm’n, 343 So.2d 477, 480 (Miss.1977). The record before us holds too many unknowns and too many contradictions for this Court to uphold the piercing of the Nash Plumbing corporate veil to hold Milton Nash personally liable.

3. Liability of Roto-Rooter of North Mississippi, now Nash Services Group, for the Shasco debt.

¶ 18. It is clear that because Roto-Rooter of North Mississippi, f/k/a Nash Services Group, was not served with process and was not named in this suit, it cannot be held liable. Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709, 711 (1924).

L Liability of A.C.T. for the Shasco debt.

¶ 19. Although Turner testified that A.C.T. was acquired by “Nash” and A.C.T. ceased doing business as of 12/31/97, it was not dissolved as a corporate entity until March 9, 2001. As discussed earlier, the evidence submitted during the trial does not support the claim that there was a merger between A.C.T. and any Nash entity. Had an actual merger taken place, A.C.T. would have had the obligation to pay its creditors out of the proceeds of the stock that was exchanged with A.C.T. for its assets, prior to the proceeds being distributed to any stockholders, and the corporation being dissolved. There was no dispute that a debt was due or about the amount of the initial debt, and A.C.T. declined to defend itself at trial, or in this appeal. The trial judge should not have assumed that A.C.T. was defunct, so that it could not have been held liable for its debts. We hold A.C.T. Services, Inc. jointly and severally liable with Nash Plumbing, Inc., for the judgment in favor of Shasco.

CONCLUSION

¶ 20. For the reasons set forth above, we affirm the trial court with regard to the liability of Nash Plumbing, but reverse and render with regard to the liability of Milton Nash, individually, and Nash Services Group (f/k/a Roto-Rooter). We also reverse the trial court and render judgment here that A.C.T. is additionally liable to Shasco for the judgment.

¶ 21. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . In his written judgment, the circuit court judge found that the goods were delivered to Milton Nash or to a corporation owned or controlled by Milton Nash.

      . Neither Roto-Rooter of North Mississippi nor Nash Services Group, Inc. were named in the law suit. Roto-Rooter of North Mississippi changed its name to Nash Services Group, Inc. in May, 1998, per a March 31, 1998, amendment to its articles of incorporation. Tommy Turner is shown in the State's records as president and Milton Nash as vice president of Nash Services Group, Inc.

      . Turner testified that Milton Nash “wrote up” the Management Agreement, which in Paragraph 9 stated: “The parties to this Agreement acknowledge that this Management Agreement is executed in anticipation of the execution of a more detailed acquisition and merger agreement between the parties, the objective of which is to increase the market share of [Nash Plumbing, Inc.] and [ACT Services, Inc.]. The provisions of this Management Agreement shall be interpreted in light of this objective.”

      . Turner testified that the last tax return filed for A.C.T. was at the time of the acquisition agreement in March, 1998.

      . For reasons not explained, the document that Turner offered in support of his testimony that "Nash” took over A.C.T. made no reference to A.C.T. or to Nash Plumbing or Roto-Rooter of North Mississippi, but instead was an agreement between Turner and a "Mississippi corporation” named A.C.T./ Roto-Rooter. There is no evidence that A.C.T./ Roto-Rooter has ever existed as a Mississippi corporation.

      .Nash Plumbing applied for credit with Shasco on April 28, 1998, but was rejected by Shasco due to poor credit references.