author: PICKETT, Judge. COOKS, J.,

text:
    Adrienne Patout SMITH v. Roy PATOUT.
    No. 2006-950.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2007.
    Joel Edward Gooch, Allen & Gooch, Lafayette, LA, for Defendant-Appellee, Por-teus Richard Burke.
    Julian Louis Gibbens III, Doucet-Speer and Gibbens, P.L.C., Lafayette, LA, for Defendant-Appellant, Roy Patout.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

liThe plaintiff-in-reconvention, Roy Pat-out, appeals a judgment of the trial court granting the motion for summary judgment filed by the defendant-in-reconvention, Porteous Burke.

STATEMENT OF THE CASE

Members of the Patout family, including Adrienne Patout Smith and Roy Patout, inherited land in St. Martin and Iberia parishes. In 1992, the Patouts discovered that the City of New Iberia had been dumping trash on their land since 1970. On January 23, 1992, Roy Patout executed a Power of Attorney in favor of Mrs. Smith, his niece, appointing her as his representative in any legal action against the City of New Iberia. Mrs. Smith pursued this matter on her behalf and on behalf of her mother and siblings. She hired Porteous Burke to represent the interests of all the Patout heirs and to file suit against the City of New Iberia.

In May 2004, the suit was settled. Mr. Burke disbursed the settlement proceeds to Mrs. Smith after deducting his contingency fee and costs of the litigation. Mrs. Smith was then responsible for splitting the proceeds among the rest of her relatives on whose behalf she had acted. After discussions with Mrs. Smith, Mr. Pat-out refused to accept the payment $27,373.00 that she offered him. Mrs. Smith then filed a suit for declaratory judgment, seeking a judicial determination that the payment offered to Mr. Patout was a “fair and just” settlement of his claims as contemplated by the Power of Attorney. Mr. Patout answered the suit and filed a Reconventional Demand against Mrs. Smith and made a third-party demand against Mr. Burke. He alleged that Mrs. Smith acted fraudulently in settling the claims against the City of New Iberia and failed to provide an accounting of the proceeds of the settlement. Mr. 12Patout alleged that Mr. Burke failed to safeguard the proceeds of the settlement, failed to insure proper distribution of the settlement proceeds, failed to provide an accounting of the proceeds of the settlement, and failed to notify Mr. Patout, as his client, of the potential conflict of interest caused by his representation of other landowners similarly situated.

Mrs. Smith and Mr. Burke filed Motions for Summary Judgment, seeking to have Mr. Patout’s claims against them dismissed. On February 8, 2006, the court held a hearing on the motions. The trial court denied Mrs. Smith’s Motion for Summary Judgment and granted Mr. Burke’s Motion for Summary Judgment. The trial court signed a judgment dismissing Mr. Patout’s third-party demand against Mr. Burke on February 27, 2006. Mr. Patout now appeals.

ASSIGNMENT OF ERROR

Mr. Patout asserts that the trial court erred in granting summary judgment in favor of Mr. Burke.

DISCUSSION

Appellate courts review summary judgments de novo, applying the same criteria as the trial court in deciding whether or not summary judgment should be granted. Schroeder v. Bd. of Supervisors, 591 So.2d 342 (La.1991). Concerning the burden of proof in summary judgment procedure, La.Code Civ.P. art. 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support |afor one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In this case, Mr. Patout bears the burden of proof. The movant, Mr. Burke, must only show the absence of factual support for an essential element of Mr. Patout’s claim. This claim against Mr. Burke, an attorney, is a legal malpractice claim. “To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence.” Costello v. Hardy, 03-1146, p. 9 (La.1/21/04), 864 So.2d 129, 138.

Mr. Patout relies heavily on the case of In re Hoffman, 03-2499 (La.9/9/04), 883 So.2d 425. In that attorney discipline matter, an attorney represented one of three siblings who contested an uncle’s will. When the attorneys for the estate indicated they would prefer to negotiate with all the decedent’s nieces and nephews, the client convinced his brother and sister to sign an affidavit authorizing the attorney to negotiate and settle their claims on their behalf. The attorney never communicated with the brother and sister. When the claims against the estate were settled, the brother and sister objected to the disbursement of the funds. The attorney explained that he was disbursing the funds as directed by their brother.

The supreme court found that the attorney had failed to fully explain the potential conflict caused by his representation of all three siblings and had failed to obtain consent in making an aggregate settlement of multiple clients’ claims. The primary difference is, in the matter before us, Mr. Patout signed a mandate allowing Mrs. Smith to settle his claims and distribute the proceeds, whereas in Hoffman, 883 So.2d 425, the non-client siblings signed an affidavit authorizing the attorney to settle their claims and distribute the proceeds. Furthermore, while the case does discuss an |4issue of attorney misconduct which bears some resemblance to the one before this court, it does not resolve the issue of civil tort liability.

There is an attorney-client relationship. While Mr. Burke was retained only by Mrs. Smith, he was retained by her to represent the interests of all of the Patout heirs whom Mrs. Smith represented. Mr. Burke signed several documents as the attorney for Mr. Patout. Mr. Burke claims that since there was no privity of contract between him and Mr. Patout, there cannot be an attorney-client relationship. Clearly, though, Mr. Burke agreed to represent the interests of Mr. Patout in this matter, and he owed a fiduciary duty to him.

Having determined that an attorney-client relationship existed, we must determine whether there is sufficient evidence to determine if Mr. Burke committed negligence in his representation of Mr. Patout. We find no evidence to support Mr. Patout’s contention that Mr. Burke failed to safeguard the proceeds of the settlement or to insure proper distribution of the proceeds of the settlement. In fact, the mandate signed by Mr. Patout in favor of Mrs. Smith clearly authorizes Mrs. Smith to distribute the proceeds of the settlement. We also cannot find any evidence to support the claim that Mr. Burke had a duty to notify Mr. Burke of any potential conflicts of interest. Thus, we only have left to determine if Mr. Burke was negligent in failing to provide an accounting to Mr. Patout.

We find Rule 1.15(d) of the Louisiana State Bar Association’s Rules of Professional Conduct instructive in determining if Mr. Burke had a duty to provide an accounting to Mr. Patout. This rule states:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. For purposes of this rule, the third person’s interest shall be one of which the lawyer has actual knowledge, and shall be limited to a | ¡¡statutory lien or privilege, a final judgment addressing disposition of those funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

By the terms of this rule, Mr. Burke had a professional duty to render an accounting to Mr. Patout upon request. This would be true even if Mr. Patout was not a client, as he would then be a third party about whom Mr. Burke had actual knowledge and who had a written agreement with Mrs. Smith guaranteeing payment out of the proceeds of the settlement. Ip any event, there is a genuine issue of material fact regarding whether Mr. Patout was informed of the amount of the settlement. Mr. Patout alleges in an affidavit that he has not been informed, of the amount of the settlement by either Mr. Burke or Mrs. Smith, though Mrs. Smith claims in an affidavit that he has been informed. The Rules of Professional Conduct have the force and effect of substantive law. Succession of Wallace, 574 So.2d 348 (La.1991). Thus, summary judgment is inappropriate in this ease. Accordingly, the judgment of the trial court is reversed. This matter is remanded to the trial court for further proceedings. Costs of this appeal are taxed against Mr. Burke.

REVERSED AND REMANDED.

COOKS, J., concurs in part and dissents in part and assigns reasons.

COOKS, J.,

concurs, in part, and dissents, in part.

LI agree with that portion of the majority opinion finding there was an attorney-client relationship between Porteus Burke and Roy Patout; and, as a result, Mr. Burke has, at a minimum, a fiduciary obligation to provide his client with an accounting of the proceeds received in settlement of his suit against the City of Iberia. Apart from this ruling, the majority opinion is confusing at best. It recites that the “judgment of the trial court is reversed,” after noting summary judgment is inappropriate in this case, and remands the matter to the trial court for further proceedings. Yet, the majority opinion addresses and affirmatively rules on the issues it acknowledges are inappropriate for summary disposition. In doing so, the majority performs a “sufficiency of evidence” review and concludes there is “no evidence to support Mr. Patout’s contention that Mr. Burke failed to safeguard the proceeds of the settlement or to insure proper distribution of the proceeds of the settlement” and no “evidence to support a claim that Mr. Burke had a duty to notify.. .[Mr. Patout] of any potential conflicts of interest.”

The majority opinion does not recite the relevant facts in this case which are crucial to a full understanding. Attorney Porteus Burke was hired to represent the Estate of Gaston Patout (which includes Ms. Smith, her mother and several siblings), Roy Pat-out (her uncle) and Squirrel Run Development Group in a suit against the City of New Iberia. Roy Patout was one of the named plaintiffs. Mr. Burke | ¡.represented Mr. Patout, as his attorney, before this court and the supreme court on numerous occasions when he appeared to argue at different stages of this case. See Estate of Gaston Patout and Roy Patout v. City of New Iberia, 01-0151 (La.App. 3 Cir.4/3/02), 813 So.2d 1248, writ denied, 02-1172 (La.6/21/02), 819 So.2d 335 (which details the legal journey of this case). The case proceeded in the courts for thirteen years before it was settled in May 2004. The Patout portion allegedly was one million dollars. The settlement documents do not appear in the record. Mr. Burke and Ms. Smith insist that the provision in the settlement agreement obligates them to maintain the “confidentiality of its contents” and prohibits them from fully disclosing its contents or making the settlement documents available for Mr. Roy Patout’s inspection and review. Although Mr. Burke was well aware he represented all the Patout owners, Ms. Smith apparently was the only Patout family member who signed the documents. The settlement check, which also does not appear in the record, either did not bear the names of all of the Patouts or Ms. Smith signed the check in their stead, along with Squirrel Run’s representative. When he received the proceeds, Mr. Burke took his one-third or $333,000 from the Patout family portion and forwarded the remainder to Ms. Smith. She disbursed $11,000 to her mother and $5,000 each to her siblings, deducted her expenses of $96,000 and kept $515,000 for herself. She offered her uncle, Mr. Patout, $15,000. When he got a lawyer, she offered him $27,000.

Wflien Mr. Patout learned of the settlement, he began calling Ms. Smith. When he could not receive any information concerning the case, he began calling his lawyer, Mr. Burke. Rather than discuss the case with Mr. Patout, Mr. Burke, in turn, notified Ms. Smith. Mr. Patout eventually hired an attorney to represent his interest in the proceeds. Correspondence between the parties appears in the record. Mr. Burke was copied with all correspondence between Ms. Smith and Mr. Patout and | o,was well aware of the conflict between them. What is glaringly apparent is that Mr. Burke failed to communicate with any of the Patout owners, other than Ms. Smith, regarding the case, the settlement and the disbursement of the proceeds. He now seeks to avoid his fiduciary duty to the other Patout clients by hiding behind Ms. Smith’s Power of Attorney.

The majority correctly recognizes Mr. Patout’s claim is one sounding in legal malpractice. However, the majority narrowly defines “negligent representation” by focusing on whether Mr. Burke was competent in his representation of the Pat-out family interests and whether he negotiated an appropriate settlement. There is no dispute that Mr. Burke did a fine job in obtaining the funds from the City of New Iberia and Mr. Patout does not allege Mr. Burke is incompetent, or was negligent in his handling of the principal case, or failed to negotiate an appropriate in globo settlement. Rather, Mr. Patout alleges Mr. Burke breached his fiduciary duty to insure fair distribution and delivery of his share of the settlement proceeds to him. Paragraphs Five and Nine of Mr. Patout’s reconventional demand clearly establishes the basis for his claim in tort based on a violation of the ethical standards of conduct:

Porteus R. Burke was the attorney of record for both Adrienne Patout and Roy Patout, along with all of the other owners in division of the aforementioned property, in their claim for damages. The litigation was settled in May of 2004, and proceeds of the settlement were forwarded to Adrienne Patout Smith and Porteous R. Burke. On information and belief, Burke disbursed the entirety of the settlement proceeds to Adrienne Patout Smith after deducting his fees and expenses and both Burke and Smith have refused to provide an accounting or even disclose the amount of the settlement despite repeated requests for information since the underlying matter settled.
Petitioner has sustained damages caused, in whole or in part, by the fault of Porteous Burke by his breach of his fiduciary duty to his client, Roy Patout, in failing to protect Roy’s interest with regard to the claim for damages to Roy’s land or the settlement funds obtained on his behalf to compensate for that damage, by Burke’s failure to safeguard the settlement proceeds obtained for him in connection with that litigation, by Burke’s disbursing, without authority, Roy’s money to a third party |4to whom the funds did not belong, and his failure to appraise Roy Patout of the conflicting interests raised by his representation of multiple clients or to render an accounting...”

In In re Hoffman, 03-2499 (La.9/9/04), 883 So.2d 425, the attorney represented one of three siblings who -contested an uncle’s will. The one sibling convinced his brother and sister to sign an affidavit authorizing the attorney to negotiate and settle the claims on their behalf. The attorney did not communicate with the other siblings and relied instead on the affidavit. When the claims were settled, the siblings objected to the disbursement of the funds. The attorney claimed he was disbursing the funds as directed by his client. The Louisiana Supreme Court found the attorney failed to explain a potential conflict in representing all three siblings and failed to obtain the consent of all parties prior to a settlement of the claims and disbursement of the funds. Although Hoffman directly addresses an attorney’s fiduciary responsibility in a case very similar to the present, the majority attempts to distinguish its implication here by noting the instrument giving rise to the mandate in that case was an affidavit as opposed to a power of attorney in this case. Further acknowledging that Hoffman “does discuss an issue of attorney misconduct which bears some resemblance to the one before this court,’’the majority again dismisses its impact in this case noting “it does not resolve the issue of civil tort liability.”

The Rules of Professional Conduct establish the standard of care requii-ed of an attorney and “have the force and effect of substantive law.” The breach of the fiduciary duty established under the Rules gives rise to a claim in tort. It would be absurd to conclude a court has no legal authority to award damages to a client for a ^ethical violation of the Rules. “[T]he very basis for tort liability.. .is the duty-risk concept. When a lawyer commits a breach of duty imposed by the ethical rules and that breach is a cause in fact of his client’s damage, she has a right to recover in tort. The fact that the Supreme Court might also take disciplinary action against him hardly deprives her of her tort recovery.” Ratcliff v. Boydell, 93-0362 (La.App. 4 Cir.4/3/96), 674 So.2d 272, 280.

In response, in brief, Mr. Burke amazingly contends there was no attorney-client relationship between he and Mr. Patout. The majority opinion correctly finds there was an attorney-client relationship, but missteps in defining the scope of his responsibility and placing Mr. Patout in the untenable position of having to present evidence which he cannot obtain at this stage of the proceeding because Mr. Burke and Ms. Smith refuse to provide it under a claim of “confidentiality.”

The majority also erred in finding no evidence exists in the record to support Mr. Patout’s claim that Mr. Burke breached a duty to him to safeguard or insure proper distribution of the proceeds. Mr. Burke admits in the record that he distributed the entire settlement proceeds apportioned to the Patout family, less his fees, to Ms. Smith, a non-lawyer. The record also establishes Mr. Burke did not take any steps to insure that the Patout owners would receive a fair share of the proceeds because it was his position, one which he continues to voice before this Court, that Ms. Smith is “solely” responsible as the mandatory for properly distributing the funds. The professional fiduciary duties which our supreme court has held all lawyers owe to their clients required Mr. Burke to do much more than he admitted he did to protect Mr. Roy Patout’s interest in the settlement proceeds. Further, the majority legally erred in expecting Mr. Patout to present evidence that Mr. Burke had a duty to notify him of any conflicts of interest. No evidence is required to prove the existence of this paramount duty. The Rules of Professional Conduct, which governs all lawyers’ |ficonduct, imposes this duty and the Louisiana Supreme Court has been vigilant in enforcing it through disbarment it through disbarment, suspensions, and public reprimands of lawyers who do not disclose potential conflicts of interest. It is the lawyer's responsibility to make the disclosure before the client’s interest is placed in jeopardy. The client is not required to discover and “prove” the conflict which the lawyer knows exists or should know exists. The record in this case contains sufficient evidence tending to show a genuine issue of material fact exists regarding Mr. Burke’s knowledge of potential conflicts of interest which may have required, at a minimum, full disclosure to the other Patout family members.

It is an undisputed fact that Mr. Burke and Ms. Smith took approximately 95% of the settlement proceeds. Our supreme court recently recognized “an attorney’s paramount duty is, and must be, to his client ... In fact, our law adheres to the principle that in no other agency relationship is a greater duty of trust imposed than in that involving an attorney’s duty to his client.” “In no relationship is the maxim that ‘no man can serve two masters’ more rigidly enforced than in the attorney-client relationship.” “Indeed, this principle of undivided loyalty is firmly embedded in the Rules of Professional Conduct (RPC), adopted by this court pursuant to its exclusive and plenary power to regulate the practice of law.” See Scheffler v. Adams and Reese, LLP, et al., 06-1774 (La.2/22/07), 941 So.2d 28.

The mandate which Mr. Burke relies on is unavailing. An attorney may not rely on a contract which circumvents or relieves him of his professional responsibility to a client dictated by the Louisiana Rules of Professional Conduct. In Soderquist v. Kramer, 595 So.2d 825, 829 (La.App. 2 Cir.1992) the court stated:

The Louisiana Rules of Professional Conduct (formerly the Code of Professional Responsibility) have the force and effect of substantive law. The Rules of Professional Conduct, set forth by virtue of the court’s power and responsibility to exercise its judicial authority, override legislative acts which tend to impede or frustrate that authority. |7 A statute may have no effect in so far as it is in conflict with these rales governing attorney’s conduct. The Louisiana Supreme Court has stated that
The disciplinary rules are mandatory rules that provide the minimum level of conduct to which an attorney must conform without being subject to disciplinary action. When an attorney enters into a contract with his client in direct and flagrant violation of a disciplinary rule and a subsequent civil action raises the issue of enforcement (or annulment) of the contract, this court, in order to preserve the integrity of its inherent judicial power, should prohibit the enforcement of the contract which directly contravenes the Code adopted by this couH to regulate the practice of law. Otherwise, this court’s authority to regulate attorney conduct will be substantially undermined. Succession of Cloud, 530 So.2d 1146, 1150 (La.1988) (emphasis added) (citations omitted).

Mr. Burke apparently attempts to “default on his professional responsibility” by relying on Ms. Smith’s contractual obligation as a mandatory. This reliance is in direct violation of the Rules. In Louisiana State Bar Association v. Edwins, 540 So.2d 294 (La.1989), the supreme court stated:

As our discussion of the facts with regard to Edwins’ assistance of a non-lawyer in the unauthorized practice of law shows, Edwins clearly violated DR 9-102 by failing to deposit his client’s funds in a separate trust account, by failing to notify the client of the receipt of his funds, by failing to account to the client properly with respect to the distribution of the funds, bj failing to maintain complete records of the client’s funds, and by failing to pay the client the funds he was entitled to receive. The lawyer’s professional fiduciary duty of segregation, notification, delivery and accounting cannot be delegated to a non-lawyer. Accordingly, we are satisfied beyond any doubt that when Edwins attempted to turn over all of his duties under DR 9-102 to Robertson he completely defaulted upon his professional responsibility and violated each and every obligation imposed upon him by the rule.

Id. at 301 (emphasis added).

Mr. Burke’s duty in this case extends well beyond providing a mere accounting of the funds to Mr. Patout, as the majority finds. His duty must be broader than that, otherwise, as alleged in this case, he is free to delegate to a non-lawyer, under the guise of a mandate, his professional fiduciary duty to notify, segregate, maintain complete records, and to deliver to his client that portion of the funds owed to him. Is This important fiduciary duty is imposed upon a lawyer to prevent the very scenario that has occurred in this case.

Ms. Smith says that she, according to the Power of Attorney, served as the “Attorney-in-Fact, ” a relationship that is prohibited by the express laws of this State and one which Mr. Burke is prohibited from participating in. See Louisiana State Bar Association v. Edwins, 540 So.2d 294 (La.1989); In re Cornish, 04-1453 (La.12/31/04), 889 So.2d 236; Rules of Professional Responsibility, 5.5(b). As a result of her acting as “Attorney-in-Fact,” she contends she is entitled to keep $515,000 of the proceeds for the services she rendered in the case, in addition to the substantial expenses she allegedly occurred in furtherance of her duties as the “Attorney-in-Fact.” This amount when added to Mr. Burke’s fee, who also served as the “Attorney-in-Fact,” consumed virtually all of the funds which were apportioned to the Patout landowners.

In her affidavit, Ms. Smith says she is entitled to this amount for paralegal fees, which incidentally, substantially exceeds the handsome fees charged by the licensed attorney, because: “Throughout the thirteen years of litigation, I contributed countless hours of paralegal services and devoted enormous time, effort, and expenses to promote resolution of this dispute.”

This is perhaps why Edwins made clear that paralegals are not able to act without the supervision of the attorney and they are never permitted to act as the “Attorney-in-Fact.” The record seems to indicate that Ms. Smith has spent the proceeds of the settlement to buy a new house in Idaho and the lawyer, Mr. Burke, has happily deposited his fees in the Patout and Squirrel Run settlement in his personal account. Mr. Patout is left to engage in years of perhaps protracted litigation with his niece to attempt to collect his share of the “confidential” proceeds. This is a public evil which the Louisiana Rules of Professional Conduct was surely designed | flto prevent.

Further, the majority opinion seems to limit Mr. Burke’s accounting responsibility only to those funds which he assigned to the Estate of Gaston Patout and Roy Pat-out. Mr. Roy Patout complains that he is unable to determine whether the share allocated to the Patout family is a fair apportionment of the total settlement visa-vis the Squirrel Run claim and expenses. Mr. Patout is entitled to a full accounting of the entire settlement proceeds and the method employed by Mr. Burke to determine the apportionment between the Pat-out family and Squirrel Run Development. Adrienne Patout Smith discloses in a letter dated, August 20, 2004, to Mr. Patout’s present attorney, Mr. J. Louis Gibbens, the following:

I had hoped that this case consolidated that this case consolidated with Squirrel Run would have been considered a separate occurrence, and each would have received respective, equal settlement, which larger proceeds, perhaps more acceptable, could have thus been disbursed to Uncle Roy and others. That is not the reality of this case, in which Patout received one to Squirrel Run’s three. This division percentage was debated for many weeks with Mr. Segura. Finally, it came down to agree or P.R. [Mr. Burke] would have to recluse (sic) himself as attorney because of conflict of interest.

The letter evidences that, even prior to perfection of the settlement, a conflict emerged involving the Patout family’s fair share in the proposed settlement versus that of Squirrel Run.

      . Soderquist v. Kramer, 595 So.2d 825, 829 (La.App. 2 Cir.1992).


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Judy D. MURRELL, Plaintiff-Appellee, v. Thomas Brandsford MURRELL, Defendant-Appellant.
    No. 42,070-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2007.

      Sandra L. Walker, Shreveport, for Appellant.

      Michael F. Miller, for Appellee.
    Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ.
   WILLIAMS, Judge.

hThe defendant, Thomas Bransford Murrell, appeals a district court judgment sustaining the peremptory exception of prescription dismissing his petition to terminate his obligation to maintain health insurance on behalf of the plaintiff, Judy D. Murrell. For the following reasons, we affirm.

FACTS

Judy D. Murrell and Thomas Bransford Murrell were married in December 1960 and divorced in September 1998. On January 25,1999, the parties signed a community property settlement agreement by which they partitioned the community assets and liabilities.

Pursuant to the agreement, Mr. Murrell received approximately $77,000.00 in cattle, horses and farm equipment, a 1998 Dodge pickup truck, one-half of his retirement benefits with the Firefighters Retirement System earned during the marriage, along with his personal effects, clothes and jewelry. He also assumed the balance due on the purchase of the truck, as well as $40,300.00 in debts owed to three different creditors.

Ms. Murrell received a 1994 double-wide mobile home, a 1986 mobile home, a subdivision lot located in Bossier Parish, a 1995 Ford minivan, and one-half of Mr. Mur-rell’s retirement benefits with the Firefighters Retirement System earned during the marriage. She assumed the outstanding balance owed on the purchase of the minivan estimated to be between $3,800.00 and $4,000.00.

In addition to the aforementioned division of assets and liabilities, the agreement contains the following provision:

As further consideration for entering the voluntary community property partition, THOMAS BRANSFORD MURRELL ^agrees to be responsible for and pay any and all hospitalization insurance premiums to maintain JUDY D. MUR-RELL on his Firefighters Hospitalization Group Insurance.

The enforcement of this agreement was provided for in the subsequent Qualified Domestic Relations Order executed by the district court dividing Mr. Murrell’s retirement. The order contained the following paragraph:

THAT pursuant to the Partition Agreement entered into by Plaintiff and Defendant aforesaid the said JUDY D. MURRELL is declared entitled to be maintained on the Firefighters Hospitalization Group Insurance, and Defendant, THOMAS BRANSFORD MURRELL, shall be responsible for and pay any and all Firefighters Hospitalization Group Insurance premiums to maintain JUDY D. MURRELL on Defendant’s Firefighters Hospitalization Group Insurance.

On July 27, 2006, Mr. Murrell filed a pleading entitled “Petition to Terminate and Rescind Order to Maintain Firefighters Hospitalization Group Insurance.” Mr. Murrell’s petition alleged that payment of the insurance premiums was in the nature of an award of final spousal support as opposed to the partitioning of community assets and liabilities, and that a change in circumstances warranted termination of his obligation to pay said premiums. The changes alleged by Mr. Murrell included the increased cost of the premiums and the availability of health insurance through Ms. Murrell’s employer. The petition requested either that Mr. Murrell’s obligation be terminated, or that Ms. Murrell accept a higher deductible to lower the cost of the insurance premiums.

In response, Ms. Murrell filed a peremptory exception of prescription on the grounds that Mr. Murrell’s petition, notwithstanding its title, was an action to rescind a community property partition subject to the liberative 1 ^prescriptive period of five years. The exception alleged that Mr. Murrell’s action was prescribed on its face, having been filed more than seven years after the execution of the partition agreement in January 1999.

After a hearing on the exception, the district court found that payment of the insurance premiums was part of a valid partition agreement and that Mr. Murrell had failed to seek rescission within the applicable five-year prescriptive period. Accordingly, the district court rendered judgment sustaining the exception and dismissing Mr. Murrell’s petition. Mr. Mur-rell appeals the judgment.

DISCUSSION

Mr. Murrell contends that the trial court erred in granting the exception of prescription. He argues that the requirement to pay insurance premiums contained in the partition agreement is a modifiable spousal support obligation because it was in addition to an equitable distribution of the marital assets and liabilities. In his brief, Mr. Murrell asserts that the caption of the petition and its allegation of a material change in circumstances indicate that he sought to terminate spousal support and did not seek rescission of the community property settlement agreement.

Our courts consistently look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding. Smith v. Cajun Insulation Inc., 392 So.2d 398 (La.1980); Steed v. St. Paul’s United Methodist Church, 31,521-522 (La.App.2d Cir.2/24/99), 728 So.2d 931, writ denied, 99-0877 (La.5/7/99), 740 So.2d 1290. Thus, the caption of Mr. Murrell’s pleading does not control. The faction was an attempt to rescind a portion of the parties’ contract by which they partitioned the community assets and liabilities.

LSA-C.C. art. 114 provides that an award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if such support has become unnecessary. The obligation to provide health insurance that Mr. Murrell seeks to rescind is an expense arguably included within the definition of “maintenance” used for determining the needs of a claimant spouse seeking an award of alimony. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Widman v. Widman, 93-613 (La.App. 3rd Cir.2/2/94), 631 So.2d 689. However, in the present case, Mr. Murrell’s obligation to pay the hospitalization insurance premiums is neither the result of an “award,” nor classifiable as periodic support.

The obligation incurred herein was expressly given in consideration for entering into the partition agreement. In other words, correctly or incorrectly, Ms. Mur-rell believed that she was bargaining away some benefit (and conversely, Mr. Murrell believed he was gaining a benefit) in the manner of partition which warranted an additional incentive. Citing Oberfell v. Oberfell, 516 So.2d 424 (La.App. 1st Cir.1987), Mr. Murrell contends that the parties’ stipulation that the property received by each was approximately equal in value means that the promise to pay the health insurance premiums was not given as consideration for the community property partition.

In Oberfell, supra, the spouses had executed an agreement to partition the community property. In the agreement, the husband obligated himself to lspay alimony. The husband subsequently filed suit to rescind the partition agreement on the basis of lesion. At trial, the parties stipulated that the physical property had been divided equally and thus, the action for lesion depended entirely on the clause regarding the payment of alimony. The court of appeal noted that the promise to pay alimony was not given in consideration of the community property partition agreement.

The situation of the present case is distinguishable, in that the partition agreement expressly states that the promise to pay the health insurance premiums was given as “consideration for” the partition of community property. Furthermore, while the parties stipulated that the physical property each received was approximately equal in value, a review of the manner of division suggests the need for additional consideration. Significantly, by receiving the community livestock under the agreement, Mr. Murrell received all of the income producing assets co-owned by the parties.

In determining whether the health insurance premium provision was intended as consideration (and not a separate agreement for support), we note that no dollar value is affixed to the majority of assets received by Ms. Murrell and that her assets are primarily the type which depreciate in value. In contrast, Mr. Murrell mainly received income-producing assets. While the income-producing nature of the assets received by Mr. Murrell did not add to their fair market value, this income potential would reasonably affect the in-trinsie value assigned to the assets in the parties’ division of property.

Actions for the rescission of partitions are prescribed by the lapse of | ¿five years from the date of the partition. LSA-C.C. arts. 1413 and 3497; Glascock v. Glascock, 98-1031 (La.App. 1st Cir.11/5/99), 746 So.2d 288. Here, the express terms of the community property partition clearly show that the parties intended the payment of health insurance premiums as consideration for the property received in the partition. This interpretation is supported by the division of assets under the agreement.

That Mr. Murrell now apparently deems the agreement to have been a bad bargain does not change the fact that he is seeking to rescind the bargain made. Thus, the action was subject to the liberative prescriptive period of five years applicable to actions to rescind a partition.

We note that Mr. Murrell’s appellate brief makes a passing reference to the potential applicability of the doctrine of contra non valentem if his claim were deemed to be one for rescission of partition. Because he failed to present the defense in the proceedings below, he is precluded from raising it for the first time on appeal. Gaddy v. Caddo Parish School Bd., 36,583 (La.App.2d Cir.12/11/02), 833 So.2d 1088. The petition to rescind the partition was filed in July 2006, more than five years after the parties signed the partition agreement in January 1999. Accordingly, we conclude that the trial court did not err in sustaining the exception of prescription.

CONCLUSION

For the foregoing reasons, the district court judgment sustaining the peremptory exception of prescription is affirmed. Costs of this appeal are | assessed to the appellant, Thomas Murrell.

AFFIRMED.

      . Whether the deductible amount may be changed to reduce the monthly insurance premium under the terms of the partition agreement is a question of contract interpretation that is not decided by resolution of the prescription issue and is not before this court for consideration.


author: AMY, Judge.

text:
    Virgin DAIGREPONT, et al. v. Wilfred DUCOTE, In His Capacity as Supervisor of Transportation for the Avoyelles Parish School Board, et al.
    No. 07-28.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Jerold Edward Knoll, The Knoll Law Firm, Marksville, LA, for Plaintiffs/Appel-lees, Virgin Daigrepont, Melanie R. Mor-eau.
    James T. Lee, Bunkie, LA, for Defendants/Appellants, Avoyelles Parish School Board, Wilfred Ducote, Ronald Mayeux, Ph.D.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

^ The defendant school board appeals the trial court’s granting of a writ of mandamus ordering it to hire the plaintiff bus driver for a vacated route. For the following reasons, we reverse and vacate the writ of mandamus.

Factual and Procedural Background

The record indicates that the Avoyelles Parish School system is divided into three blocks, Avoyelles, Marksville, and Bunkie. The Avoyelles Parish School Board (the Board) members each represent at least one block with some members representing two or three blocks. For many years, the Board followed an unwritten policy for appointing substitute bus drivers for vacant routes. Dr. Ronald Mayeaux, the Superintendent of Avoyelles Parish Schools, explained the process:

In all the years, I’ve served as superintendent there has always been a drawn list. Each time a new board is seated, we re-draw a list for all support personnel and that list is kept and when there’s an opening, no matter what it is, we’re talking bus drivers today. When there is an opening for a bus driver depending on where the route is, we pull the list and we ... we then inform the bus driver [sic] of record, it is your turn to make a recommendation.

In September 2006, Board member Melanie Moreau, who represents all three blocks, was notified by Wilfred Ducote, the Supervisor of Transportation for the Avo-yelles Parish School Board, that there was a position available in the Marksville block, which consisted of the Lafargue school route. According to Moreau, Ducote informed her that it was her turn to make an appointment for this route. Moreau testified that she knew that Virgin Daigrepont, a substitute bus driver, was a good employee but that she had been “passed over time and time again for a position. People with lot less experience than she had got appointed to a position simply maybe because it wasn’t my turn.... ” Moreau further testified that after Ducote informed laher that Daigrepont was “very high up” on the substitute bus driver seniority list, she decided to appoint Daigrepont to fill the vacant position.

According to Moreau, Daigrepont was assigned to the Lafargue route in early September 2006, and her recommendation and appointment was to be made at the next board meeting. Moreau stated that she was not at the September 19, 2006 meeting, as it was not a regularly scheduled meeting, and she had made arrangements to be out of town. In deciding whether or not to confirm Moreau’s appointment of Daigrepont, the Board discussed a policy it recently adopted regarding the hiring of substitute bus drivers for vacant permanent positions. The policy, which is contained in the Avoyelles Parish School Board Transportation Handbook, states that: “If no permanent driver chooses to transfer, a driver will be chosen by seniority from the substitute list from a block by block basis effective August 2, 2006.” Because there was not a consensus among the Board members as to what “block by block” meant, the Board did not confirm Daigrepont’s appointment to the vacant route; however, she was allowed to continue driving that route until further notice.

According to Mayeaux, per the Board’s request, he, “Mr. Jim Lee, Assistant District Attorney, Mr. Wilfred Ducote, Supervisor of Transportation, [and] Mr. Larry Wilmer who is President of the Bus Driver Association” gathered on October 4, 2006, “to attempt to resolve the discussion as to what was meant by block by block.” The group formulated three options to present to the Board at its next meeting on October 17, 2006.

On October 6, 2006, Daigrepont and Moreau filed a motion for declaratory judgment and mandamus against Ducote, in his capacity as Supervisor of 1 ./Transportation for the Avoyelles Parish School Board, and Mayeaux, in his capacity as Superintendent of Avoyelles Parish Schools. The plaintiffs requested that the trial court clarify the handbook language set forth in Article VI and issue a writ of mandamus directing the defendants to confirm Daigrepont as the permanent bus driver for the Lafargue route.

Following a bench trial, the trial court found that the “block by block” requirement violated La.R.S. 17:494 because it impaired the provisions of La.R.S. 17:493.1 which governs the filling of vacant bus routes. Therefore, the trial court issued a mandamus ordering Ducote and Mayeaux to confirm and appoint Daigrepont as the permanent bus driver for the Lafargue route. The Board appeals this ruling, asserting the following assignments of error:

1. The trial judge erred in issuing a Writ of Mandamus requiring the Avoyelles Parish School Board to permanently hire Ms. Virgin Daigre-pont as a bus operator which act is purely a discretional act of the board.
2. The trial judge erred in ruling the Avoyelles Parish School Board policy requiring the hiring of permanent bus operators “block by block” by “seniority” violated [La.]R.S. 17:493.1 and [La.]R.S. 17:494.

Discussion

Writ of Mandamus & Permanent Hire

The Board argues that La.R.S. 17:493.1 “does not set forth a mandatory hiring procedure when the bus operator is to be chosen from a list of substitute operators[.]” Therefore, the Board contends that the trial court erred in issuing a writ of mandamus requiring it to permanently hire Daigrepont as a bus driver.

Pursuant to La.Code Civ.P. art. 3863, “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by |4law....” “Mandamus is an extraordinary remedy, which must be used sparingly by the court and only to compel action that is clearly provided by law.” Smith v. Ruston Fire & Police Civil Serv. Bd., 41,297, p. 3 (La.App. 2 Cir. 9/12/06), 939 So.2d 586, 590. “The remedy is not available to command the performance of an act that contains any element of discretion, however slight.” Id.

Louisiana Revised Statutes 17:493.1 provides in pertinent part:

A. (l)(a) Whenever a school bus operator is needed to drive a new route or a route vacated by a previous operator, the school bus operator who is tenured and has acquired the greatest seniority shall be offered the opportunity to and may change from driving his route to the vacant route before another operator is selected.
(b) If the tenured bus operator with the greatest seniority chooses not to change to the vacant route, the route shall then be offered in order of seniority to a school bus operator who has acquired tenure.
(c) If no tenured operator chooses to change to the vacant route, the route shall then be offered to a full-time probationary bus operator.
(d) If no regular bus operator, tenured or probationary, chooses to change to the vacant route, then a substitute bus operator shall be selected for the position from a list of approved substitute school bus operators.
(2) If a regular bus operator chooses to change routes as provided in this Section, then his vacant route shall be filled using the process described in this Subsection.
B. A substitute operator shall not be used to fill a route vacancy except as provided in R.S. 17:500(C)(2)(b) and (c).
C. Only if a city or parish school board is required, in filling a vacant route pursuant to Subsection A of this Section, to bear an increase in unreim-bursed costs for nonpassenger miles over those attributable to the previous operator who vacated the route, may a school system select an operator to fill the vacant route on a different basis.

Louisiana Revised Statutes 17:494 provides:

Nothing contained in the Revised Statutes of Louisiana shall be construed as conferring upon any parish school board the authority to | fimake rules and regulations which may impair or nullify the provisions of this Sub-part.

In granting the mandamus, the trial court explained:

[T]he hiring is something discretionary that you do but you have got to ... be mindful of State law and again, there’s no way that any of you could have known this.... What is relevant here is Title 17 of the Louisiana Revised Statutes, Section 493.1 and therein is the State law. I think you’re all familiar with it. We’ve gone over it many times. In [sic] Section 494 states that nothing in all this law shall be construed as conferring upon any parish school board the authority to make rules and regulations which may impair the provisions of this subpart. And it is my opinion that when you throw in the provisions of block to block or block by block, you are impairing the provisions of 493.1 subsection D. I know you don’t do it intentionally but that is the effect of it. You impair it and this is an example of where it is impaired. Here is a substitute bus driver. She lives in the parish. Because of the insertion of the term block by block which I will get to later. Now, the way the law applies and all of you have heard all of these broad concepts before equal protection under the law and what not. All of a sudden, her ability to partake in 493.1 is impaired because you’re demarcating blocks.... Now, you have the right to hire and that’s your discretion and that’s not a judge’s business but ... the law has got to comply.... But the intent of block by block, we can talk about that all day but a school board thirty years from now, for example, it impairs so it’s got to go anyway. I don’t know how to get around that. But a school board, the members thirty years from now don’t know what the intent is.... [T]hat’s why it’s so important to put it into writing and it is lacking there.... And so I can ponder all day what block by block might mean but I have to look at things in terms of well, if it were valid, if it was otherwise valid, say by an appellate court. If an appellate court says no, it does not impair 493.1(D), well, still it’s ambiguous.... Under the old law, she would have had seniority, under the old resolution apparently or old custom.... But could you otherwise require a substitute bus driver to live in the block where he or she is to have a route. I guess you could. That probably would be discretionary as long as it did not impair how the process of selection occurred which it did in this case which it does.

In clarifying its ruling as it related to the block by block language in the policy, the trial court stated:

The way in which the school board interpreted block by block, [sic] Apparently from their vote and from testimony here today, the way it was interpreted does impair the provisions of 493.1(D).... Therefore, if you ignore, which I am ignoring block by block, and if you ignore Rthat, she has seniority. She was recommended. She was otherwise qualified. She is therefore appointed.

Although at trial there was lengthy discussion regarding the definition of “block by block,” we need not make that determination. The pertinent issue before us is whether the Board violated La.R.S. 17:493.1 and La.R.S. 17:494 by requiring that “a driver will be chosen by seniority from the substitute list from a block by block basis effective August 2, 2006.”

Louisiana Revised Statutes 17:493.1(A)(l)(d) states: “If no regular bus operator, tenured or probationary, chooses to change to the vacant route, then a substitute bus operator shall be selected for the position from a list of approved substitute school bus operators.” The statute makes no reference to any specific criteria that must be used in selecting a substitute bus driver but simply requires the Board to fill the route with a substitute bus driver from an approved list. Therefore, the law does not limit the Board, and in its discretion it may establish and employ certain additional criteria when appointing a substitute bus driver, as long as it complies with the requirements of the statute. See, e.g., Huszar v. Tangipahoa Parish Sch. Bd, 95-2594, p. 5 (La.App. 1 Cir. 9/27/96), 681 So.2d 60, 62, writ denied, 96-2602 (La.12/13/96), 692 So.2d 1064 (where the first circuit found that La.R.S. 17:493.1 did “not create a mandatory duty on the part of a school board to assign routes to probationary bus drivers on the basis of their seniority where no tenured bus drivers choose to occupy that route.” Because “the law requires the board to fill the route with a probationary bus operator[,]” the assignment of a vacant route is within the school board’s discretion).

Because La.R.S. 17:493.1(A)(l)(d) only requires that when filling a vacant bus route, a substitute bus driver be chosen from a list of approved substitute bus drivers, |7we find that it was not violated by the Board’s requirement that the substitute bus driver be chosen by seniority and from a block by block basis. Nor does the inclusion of this additional criteria violate La.R.S. 17:494.

Given the circumstances, we conclude that the Board did not abuse its authority in declining to appoint Daigrepont to the Lafargue route. See Earnest v. Caldwell Parish Sch. Bd., 368 So.2d 801, 803 (La.App. 2 Cir.1979) (wherein the second circuit held that “courts should not interfere with a school board’s management unless there is a clear showing of abuse of the authority granted to the board under the statutory law.”) Although Daigrepont was on the list of approved substitute bus drivers, she did not prove that the Board was legally obligated to award the Lafargue route to her. Therefore, we find that the trial court’s granting of the mandamus was in error.

DECREE

For the above reasons, we reverse the trial court judgment and vacate the writ of mandamus.

REVERSED; WRIT OF MANDAMUS VACATED.

      . We note that as of the date of trial, Daigre-pont was still driving the Lafargue route.


author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Thomas SWAGGART.
    No. 07-55.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellant, State of Louisiana.
    John F. LaVern, Attorney at Law, Lake Charles, LA, for Defendant/Appellee, Thomas Swaggart.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

I,The State appeals the trial court’s grant of Defendant Thomas Swaggart’s Motion to Quash. We reverse.

Facts

On April 24, 2005, Thomas Swaggart was in a vehicular accident and was charged by bill of information with one count of “driving while intoxicated,” second offense, a violation of La.R.S. 14:98, and one count of driving left of center, a violation of La.R.S. 32:71. He pled not guilty to the charges. Thereafter, he filed a Motion to Quash the bill of information with regard to the charge of driving while intoxicated, second offense. After a hearing, the trial court granted the motion.

DWI Enhancement

Defendant had previously pled guilty to driving while intoxicated in the Fortieth Judicial District Court on September 3, 1996. He argued that his September 3, 1996 guilty plea could not be used to enhance his current driving while intoxicated charge because the trial court had not informed him that his guilty plea could be used to enhance any future convictions for the same offense.

At the hearing on the Motion to Quash, the State introduced the transcript of Defendant’s September 3, 1996 guilty plea, his “Waiver of Constitutional Rights and Plea of Guilty,” and the bill of information charging him with DWI, multiple offense. After considering this evidence, the trial court granted Defendant’s Motion to Quash, finding he had not been informed when he pled guilty on September 3, 1996, that a ^.subsequent conviction of the same offense could be enhanced and he could be subject to a greater penalty because of his guilty plea.

[WJhen a defendant denies the allegations contained in the bill of information in an habitual offender proceeding, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. [State v. Shelton, 621 So.2d 769 (La.1993).] If the State meets this initial burden, the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Id. If the defendant carries this burden, then the burden reverts to the State to prove the constitutionality of the plea. Id.

State v. Carlos, 98-1366, p. 6-7 (La.7/7/99), 738 So.2d 556, 559. The State’s submission of the transcript of Defendant’s prior plea and the “Waiver of Constitutional Rights and Plea of Guilty” form executed by Defendant and his attorney satisfied its burden under Carlos. The burden then shifted to Defendant to prove there was an infringement of his rights or a procedural irregularity in the taking of his prior plea. Contrary to Defendant’s argument, the Boykin requirements do not mandate that a defendant be advised of his sentencing exposure in connection with a guilty plea. State v. Anderson, 98-2977 (La.3/19/99), 732 So.2d 517. See also, State v. McMellon, 525 So.2d 1094, 1095 (La.App. 3 Cir.), writ denied, 532 So.2d 149 (La.1988), where this court held that Boykin does not require that “the trial judge advise the defendant that the guilty plea conviction may later serve as a basis for an enhanced penalty upon a subsequent conviction.”

Defendant failed to prove there was an infringement of his rights or a procedural irregularity in the taking of his September 3, 1996 plea, and the trial court erred in granting his Motion to Quash. The ruling is reversed.

| sErrors Patent

In accordance with La.Code Crim.P. art. 920, the record of this matter was reviewed for errors patent on the face of the record. There are no errors patent.

Disposition

The ruling of the trial court is reversed, and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The bill of information charges Mr. Swag-gart with “DWI 2ND OFFENSE” and describes the charge as “driving while intoxicated” "(2ND OFFENSE).” Louisiana Revised Statute 14:98 defines the elements of the crime of "operating a vehicle while intoxicated.” For purposes of this opinion, we recognize that the charge is based on La.R.S. 14:98 but use the “driving while intoxicated” reference, as in the bill of information.


text:
    James B. DOYLE, Jr. v. PEPSI BOTTLING GROUP, INC.
    No. 07-59.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Pepsi Bottling Group, Inc.
    Claude P. Devall Cox, Cox, Filo, Camel & Wilson, Charles, LA, for Plaintiff/Appel-lee, James B. Doyle, Jr.
    Court composed of ULYSSES GENE THIBODEAUX; Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

hln this workers’ compensation dispute, the claimant-employee alleges that he was injured while in the course and scope of his employment with the defendant company. The defendant denied his claim, alleging that his injury was not work-related. The claimant subsequently filed a disputed claim for compensation, asserting that the defendant did not authorize medical treatment and that wage benefits were not paid. He sought penalties and attorney’s fees. Following a trial, the workers’ compensation judge found that the claimant proved that his accident was work-related and that he was entitled to workers’ compensation benefits. The defendant was assessed with penalties and attorney’s fees. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the claimant, James B. Doyle, Jr. (Doyle), began working for the defendant, Pepsi Bottling Group (Pepsi), on March 1, 2004 as a merchandiser. Doyle explained that his job required him to go “from store to store and fill[ ] up displays and shelves” with 300 to 600 cases of water and soda per night. When asked to describe what happened on the day of his injury, Doyle testified:

I started work on Thursday evening at five p.m.; I’m not sure of the date. I did my normal routine, which was going to the Wal-Mart in Lake Charles, Sul-phur, Crowley, Jennings; and my job, as I described, was to make the store look presentable to the customers who come in in the morning because at nighttime there’s not a lot of customers.... Towards the end of my shift — and in the Wal-Mart in Jennings, I was doing my — my job duties, which was filling up coolers, filling up the displays, moving cases in the back, in the back room.... So, that night I had- — I had done what I had always been doing, and by the end of my shift I had noticed some discomfort in my neck and — but I went home. It was time for me to be off. It was around 12:30,1:30.

Upon further questioning, Doyle stated that around 12:80 Friday morning (July 23, 2004), he was bending over working on a display when he felt discomfort in his | ?neck, which he described as a “crick.” Since it was the end of his shift, Doyle went home, “took a bath and went to bed and woke up Friday. The pain was there but it felt like ... a muscle strain or a crick, like sleeping wrong.” According to Doyle, the pain was tolerable, and he went to work at five that evening. He explained that the pain became gradually worse in that “the muscles in [his] neck and shoulder began to tighten, and it was harder to ... lift product.” Doyle testified that “[w]hen [he] got home, [he] soaked in a bath that night, and [he] woke up Saturday and [he] could not ... lift [his] arm past [his] hip.”

According to Doyle, Pepsi’s policy required employees to immediately report an on-the-job accident to their immediate supervisor and to call 1-800 JOB-HURT. Nevertheless, he stated that it was not until Saturday morning (July 24, 2004) that he telephoned his immediate supervisor, Trey Smith (Smith), and informed him that at the end of his Thursday night shift, he noticed pain in his neck. He told Smith that he went to work the next day, that the pain had increased, and that on Saturday morning, he could not lift his arm. Doyle stated that Smith advised him to see a doctor, which he did that very day.

When asked to list in chronological order all the medical providers he has visited for the treatment of his injury, Doyle responded:

I first saw Dr. DiGiglia at Urgent Care. He referred me to St. Pat’s emergency room, and I was seen by a nurse practitioner but I can’t remember the name. I was then sent by Pepsi to go see Business Health Partners and he— they couldn’t figure out what was wrong but something was wrong is what he said, and he said, “I don’t have the specialty to figure it out.” So, he referred me to Dr. Hinton at the Orthopedic Center[.]
13Pr. Hinton couldn’t — didn’t know what was wrong. He referred me to a neurologist, Dr. Odenheimer, and Dr. Oden-heimer realized — or figured out through an M.R.I. that there were some problems with my disk in my neck and he referred me to Dr. Bernauer[, who recommended surgery.]

Doyle testified that on Monday, July 26, 2004, he informed Pamela Lafosse (La-fosse), the unit sales manager for Pepsi, of his accident. According to Doyle, Lafosse asked him if he had called 1-800 JOB-HURT and when he answered negatively, she told him that he could not call the number. Doyle maintained that Lafosse did not give him a specific reason why he could not report the accident. Nevertheless, he testified that later that night, he called the number and explained the circumstances surrounding his injury. The record indicates that the person Doyle spoke to filled out a form entitled: “Employer Report of Injury/Illness.” According to Doyle, there was a mistake on the employer report in that there is nothing written in response to the question: “What work actually was the employee doing when the injury occurred?”

According to the file of the adjuster handling Doyle’s claim, Thorla Renwick (Renwick), she notified him on July 30, 2004 that his claim was denied “as there was no injury in the course and scope of his employment.” Doyle subsequently filed a disputed claim for compensation, seeking workers’ compensation benefits, penalties, and attorney’s fees. Following a trial, the workers’ compensation judge determined that Doyle was injured in the course and scope of his employment and that he was entitled to workers’ compensation benefits. The workers’ compensation judge ordered Pepsi to pay penalties and attorney’s fees. It is from this ruling that Pepsi appeals, designating the following as error:

|4I. The Workers’ Compensation Judge committed legal error or in the alternative, manifest error in holding that the claimant satisfied his burden of establishing a compensable accident; and
[II.] The Workers’ Compensation Judge committed legal error or, in the alternative, manifest error in awarding penalties and attorney fees.

Discussion

Work-Related Accident

Pepsi argues that Doyle did not prove by a preponderance of the evidence that he was injured in the course and scope of his employment. It points out Doyle did not immediately report the accident, and when he did notify Smith and Lafosse of his injury, he stated that he did not know how he injured himself. Pepsi also references Doyle’s statement to Ren-wick in which he asserted that the date of his injury was “debatable” because he “can’t really remember a specific accident happening.”

Additionally, Pepsi contends that when seeking medical treatment, Doyle did not always state that his injury was caused by a work-related accident. Specifically, Pepsi asserts that when Doyle presented at Urgent Care, he told the staff that he did not know what “went wrong” with his shoulder or “what [he] did to it.” He billed his private insurance for that visit. Furthermore, Pepsi emphasizes that the intake documents at Business Health Partners contained “a question mark in the query which asked whether he was present for a work related injury and a ‘N/A’ in the blank asking for the date of the injury.”

To recover workers’ compensation benefits, the claimant must, by a preponderance of the evidence, establish that a work-related accident caused his injuries. Hebert v. C.G. Logan Constr. Co., 06-612 (La.App. 3 Cir. 11/2/06), 942 So.2d 77. “A worker’s testimony alone may be sufficient to discharge this burden of | sproof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992). “Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.” Id. (citations omitted). The workers’ compensation judge’s factual determinations are reviewed under the manifest error standard of review. Id.

In her oral ruling, the workers’ compensation judge explained:

Based on the Bruno case, the court finds that no other evidence discredits or easts serious doubt on Mr. Doyle’s version of the incident. Mr. Doyle has established that the workplace incident was the most reasonable explanation for his injury and resulting disability. The claimant has established, by a preponderance of the evidence, that the injuries to his neck and shoulder were caused while he moved and arranged cases of

Pepsi products to set up a display at the Wal-Mart store in Jennings. The Court finds that while there are inconsistencies in the testimony between the claimant and the Pepsi personnel, claimant’s recorded statement is not inconsistent with claimant’s version of events. Claimant testified he did not initially file with the medical providers as a compensation claim, because he wasn’t sure what happened. He testified that before arriving at Wal-Mart in Jennings, he didn’t feel the pain but at the end of his shift when he left the store, he felt the pain.

Clearly, there are two permissible views of the evidence regarding whether claimant was injured at work or not. The positions are dramatically different. Claimant initially paused about how he hurt himself, because he wasn’t real sure what happened. He testified though that he was okay before his shift and that afterward he was in some pain. Defendants [sic] do not believe an accident occurred. However, the record supports the conclusion that claimant injured himself during the course and scope of [his] employment with Pepsi. His medical records, both from Business Health Partners and Bernauer Clinic, sufficiently corroborate that he suffered an injury to his neck and shoulder area. There was testimony speculating that claimant could have injured himself while lifting his daughters or while doing yoga. But to say that because claimant did not report the accident, there was no accident is far reaching. There is no question that shortly after the alleged incident, | (¡claimant sought medical treatment from Business Health Partners. The physician at Business Health Partners identified a problem and even took claimant off work. In addition, claimant’s treating physician disabled him.

After reviewing the record, we find that it supports a determination that Doyle proved, by a preponderance of the evidence, that his accident occurred in the course and scope of his employment with Pepsi. Doyle testified that at the end of his Thursday night/Friday morning shift, he noticed some discomfort in his neck. He finished his shift and the next morning, there was a “crick” in his neck. Doyle testified that because the pain was not severe, he went to work Friday evening, but his neck and shoulder muscles began to tighten, making it harder for him to perform his work duties. Doyle stated that when he awoke on Saturday morning, he could not lift his arm past his hip.

According to Doyle, he did not immediately report the accident because “I regarded the muscle strain in my neck as tolerable [and] I still wanted to do my job. I thought it was a strain so I didn’t consider it an injury. When I noticed that my arm would not lift, at that point, I knew something was askew, something was not correct.” According to Smith, although Doyle stated that his shoulder was hurting and that he could not lift his arm, he never asserted that this was a work-related injury. Rather Doyle relayed that he did not know what happened and reasoned that he may have “slept on it wrong[.]” Smith maintained that he specifically asked Doyle if he had hurt himself at work and that Doyle did not indicate such. He testified that he advised Doyle to see a doctor and told him not to come “back to work until we find out what is wrong with you[.]”

According to Urgent Care records, Doyle, presented at their facility on Saturday, July 24, 2004, stating that his left shoulder was “locked up” and that he |7could not move it. According to a statement given to Renwick, the adjuster, Doyle admitted that he did not tell the staff at Urgent Care that this was a work-related injury. Rather he “told them [he] didn’t know exactly again what went wrong, what [he] did, what [he] did to it.” Following an examination, Dr. John Digli-gia hypothesized that Doyle’s shoulder was dislocated and sent him to St. Patrick’s emergency room to have x-rays taken that day.

According to St. Patrick’s records, Doyle complained of left shoulder pain and stated that he was “lifting coke boxes @ [at] work.” Furthermore, on an assessment sheet, under a section entitled: “Initial Triage Infor[mation,]” it states that “[patient] reports Thurs. night noticed sharp pain to l[e]ft shoulder[,] states that he works for [P]epsi & has to lift in odd ways. [W]ent to [U]rgent [C]are clinic & was sent here for possible] dislocation of shoulder. [Patient] states l[e]ft shoulder is locked up on him.” The assessment sheet also reveals that Doyle stated that the pain had persisted for two days. X-rays of Doyle’s shoulder came back normal. Upon his discharge from the hospital, Doyle was advised to take anti-inflammatory medication, apply ice to his shoulders four times a day, and follow up with an orthopedic physician in two days.

On Monday, July 26, 2004, Doyle met with Lafosse to discuss his accident. La-fosse corroborated Smith’s testimony that Doyle denied that his injury was work-related. According to Lafosse, Doyle relayed to her that he did not know how he injured his arm and that he may have slept on it wrong or that he could have injured it while lifting his daughters or doing yoga. She stated that she filled out a Workers’ ^Compensation Accident Investigation Report and based on Doyle’s statements, she listed the immediate causes of his injury as “Slept Wrong-Lifting twins-Yoga.” She testified that it was not until approximately a week and a half later that Doyle changed his story and stated that he was, in fact, injured on-the-job.

According to Doyle, on July 27, 2004, Pepsi sent him to Business Health Partners. On the Patient Authorization Form, one of the questions was: “Are you here for a work-related injury?” In the blank for “YES” and the blank for “NO[,]” there are question marks. At trial, Doyle denied that this was his handwriting, explaining that he does not “write a question mark like that. I think I left that blank and I think they filled it in for me.” The following question on the form asked: “If yes, date of injury?” Doyle acknowledged writing “NA [not applicable]” in the blank.

According to a record for the same date, the date of injury is listed as Thursday night. Furthermore, under the section entitled: “Description of Incident/Illness[,]” it states that “pt. [patient] reports working regular activities & started having l[eft] ... neck pain & l[eft] shoulder pain on 7/22/04. [C]ont[inued] working on 7/23/04 & pain increased in l[eft] shoulder.... [0]n 7/24/04 l[eft] shoulder pain.” The examining physician opined that Doyle was unable to work. According to Doyle, Dr. Bonnie Drumwright, “referred [him] to Dr. [Michael] Hinton at the Orthopedic Center.”

According to Dr. Hinton’s records, he saw Doyle on July 28, 2004. His records indicate that Doyle told him that “while at work, he was doing quite a bit of lifting. He woke up the following morning with his shoulder ‘locked into position.’ ” Doyle also informed Dr. Hinton that “he had some neck pain at work.” Dr. Hinton’s | compression was “Scapular winging” and “Serratus anterior long thoracic nerve palsy.” He then referred Doyle to Dr. Reynard Odenheimer for a neurological assessment.

Doyle first saw Dr. Odenheimer on August 11, 2004. In his report, Dr. Oden-heimer notes that “[h]e reports that two-to-three weeks ago, while at work, he experienced left neck and ear sensory disturbance. Numbness progressed and subsequently noted weakness of his arm and difficulty lifting his left arm. His complaints have continued to progress more over the first couple of days but have persisted.” Dr. Odenheimer ordered an MRI of the cervical spine and brain, an EMG nerve conduction study of the left arm, and an EEG. He informed Doyle that the MRI revealed a disc herniation and that the EMG results revealed “left C5 radiculopathy, mild bilateral carpal tunnel syndrome, and bilateral ulnar neuropa-thies!.]” Dr. Odenheimer referred Doyle to Dr. R. Dale Bernauer.

Doyle had an appointment with Dr. Ber-nauer on August 25, 2004. When filling out the patient registration form, Doyle explained that after work, he felt a strain and numbness in his neck. He stated that in the following days, he experienced increased pain and discomfort in his neck and shoulder. The record shows that Dr. Bernauer authorized an MRI of Doyle’s left shoulder, which showed “[m]ild degenerative changes of the distal supraspina-tus/infraspinatus tendon without evidence of acute tear[.]” By January 16, 2005, Dr. Bernauer opined that he “needs an Anteri- or Cervical Diskectomy and Fusion, C4-5. Still complaining of neck pain, left arm pain. He will be out of work for approximately 6 months to a year after | insurgery.” According to Dr. Bernauer, Doyle was not able to return to work as of July 23, 2004, and he found Doyle to be totally temporarily disabled.

Given the evidence, we find no manifest error in the workers’ compensation judge’s determination that Doyle proved by a preponderance of the evidence that his injury was work-related.

In Thomason v. Wal-Mart Stores, Inc., 37,520, p. 2 (La.App. 2 Cir. 9/4/03), 852 So.2d 1283, 1285, writ denied, 03-2774 (La.12/19/03), 861 So.2d 573, the plaintiff, Thomason, who worked as an unloader at Wal-Mart, testified that he “noticed a ‘little’ pain [in his stomach] after getting off work on Tuesday, but dismissed it as normal pain.” The pain increased over the next couple of days, and Thomason’s left testicle became swollen, which impaired his ability to walk. Wal-Mart denied Tho-mason’s workers’ compensation claim, alleging that he “was unable to point to a specific moment at work on Tuesday when he sustained his injury .... and he did not know how he had been injured.” Id. at 1286. Furthermore, it contended that “Thomason did not mention anything specific happening during the last days he worked prior to his injury.” Id.

The second circuit found that “[although Thomason was unable to pinpoint the precise moment of injury, this does not disqualify him from receiving benefits.... Thomason noticed pain after getting home from work, and this pain increased over the next two days. Thomason should also not be penalized because he described his pain as minor before Thursday night.” Id. at 1287. The second circuit noted that this |T1was the first time that he had any problems related to his groin area and that his medical records supported his belief that his injury was work-related.

Here, Doyle stated that he thought he had a muscle strain in his neck, and he did not consider it an injury that resulted from an accident. He explained:

[WJhen I stated I didn’t have a specific accident, whether I was talking to Pam or to a doctor or — I didn’t understand the terminology and, in my mind, an accident is if I — you trip over a ladder or if you slip in water, okay? I didn’t— an accident occur. I do, however, view that something happened in that time frame that I was working at the Wal-Mart in Jennings because when I walked into the Wal-Mart in Jennings to do my job, I didn’t have this pain, but when I left I had the pain.

He testified that when the pain worsened and he could not lift his arm, he knew something was wrong. Furthermore, as in Thomason, Doyle did not have any prior injuries to his neck and/or left shoulder, and his medical records document his belief that his injury was work-related.

Although Doyle did not immediately report the accident as required by Pepsi’s policy, the evidence, when viewed as a whole, supports his claim that he was injured while working. Fontenot v. Schlum-berger Well Serv., 503 So.2d 1109 (La.App. 3 Cir.1987). We find that the workers’ compensation judge was free to reject La-fosse’s testimony that Doyle stated that he may have injured himself by sleeping wrong, doing yoga, or from lifting his twins. Safeco Ins. Co. of Am. v. Chrysler Corp., 01-1641 (La.App. 3 Cir. 7/31/02), 834 So.2d 1026. We note that Doyle testified that Lafosse “brought that up; and I had said, no, that didn’t sound right. She had [ ] that opinion.”

For the above reasons, we find that the workers’ compensation judge’s determination that Doyle’s injury was work-related was not manifestly erroneous.

Accordingly, this assignment is without merit.

11⅞Penalties and Attorney’s Fees

Pepsi argues that the workers’ compensation judge erred in awarding penalties and attorney’s fees. It contends that prior to denying Doyle’s claim on July 30, 2004, Renwick, the adjuster, received evidence which demonstrated that Doyle’s injury was not work-related. Specifically, Pepsi referenced the employer report, the accident investigation report, and Doyle’s statements to Smith, Lafosse, and Ren-wick.

In Lebert v. McNeese State University, 05-856, p. 11 (La.App. 3 Cir. 2/1/06), 932 So.2d 678, 686, this court stated that “[ujnder La.R.S. 23:1201(F), a claimant in a workers’ compensation case has the burden of proving his entitlement to statutory penalties for the employer’s refusal or failure to timely pay workers’ compensation benefits.” In Mitchell v. Alliance Compressors, 05-1186, p. 8 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 133, this court recently explained:

The employer has a continuing duty to investigate, assemble, and assess factual information before it denies benefits. [Thomas v. Alliance Compressors, 04-1034 (La.App. 3 Cir. 12/8/04, 889 So.2d 424)] (citing George v. Guillory, 00-591(La.App. 3 Cir. 11/2/00), 776 So.2d 1200). It is this court’s duty to “ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Doumite [v. KVHP-Fox 1329, 04-427, p. 11 (La.App. 3 Cir. 10/20/04)], 884 So.2d [1283] at 1291 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890).

Whether or not the employer is cast with penalties and attorney’s fees is a question of fact that will not be overturned absent manifest error. Id.

In assessing Pepsi with penalties and attorney’s fees, the workers’ compensation judge remarked:

The court finds that the adjuster’s denial of the claim prior to conducting an investigation is arbitrary and capricious and without probable cause. The employer has a continuing duty to investigate, assemble and assess factual information before he denies benefits. For this reason, penalties and attorney’s fees are appropriate in this matter. Penalties are owed in the amount of $2,000 and attorney’s fees in the amount of $6,500 for prosecution of the claim.

After reviewing the record, we find that it supports a determination that Pepsi did not reasonably controvert Doyle’s claim. As mentioned above, Doyle testified that Lafosse questioned whether his injury may have resulted from sleeping wrong, lifting his twins, or doing yoga. He maintained that although he denied such, Lafosse still listed these activities as the possible causes of his injury. Further, Doyle stated that there was a mistake on the employer report in that there is nothing written in response to the question: “What work actually was the employee doing when the injury occurred?”

Moreover, we find that Doyle’s conversation with Smith did not cast serious doubt on Doyle’s testimony. Doyle testified that while working Friday night, the muscles in his neck and shoulder began to tighten; however, when he woke up Saturday morning, he could not lift his arm. Smith asked him what happened and Doyle stated that he did not know, “that he could have slept on it wrong.” We find that the workers’ compensation judge, as the trier-of-fact, could have determined that | uDoyle was simply offering an explanation as to why he could not lift his arm.

With regard to the statement given to Renwick on Tuesday, July 27, 2007, we find that it does not sufficiently call into question the occurrence of a work-related accident. In that statement, Doyle simply admitted that he did not tell the staff at Urgent Care that he had injured himself at work and that the date of his injury was debatable because he did not remember a specific accident happening. For reasons discussed above, we find that Doyle offered plausible explanations for these statements.

Furthermore, we note that although Doyle did not tell the staff at Urgent Care that his injury was work-related, when he presented at St. Patrick’s later that day, he did, in fact, mention that he was lifting coke boxes' on Thursday night and that he now had left shoulder pain. Additionally, the day before he spoke with Renwick, Doyle went to Business Health Partners where he stated that he felt the onset of neck and shoulder pain while working.

Based on this evidence, we find that the trial court could have concluded that Pepsi did not reasonably controvert Doyle’s claim insofar as Doyle’s medical records indicated that the onset of pain occurred while and/or after he performed his work duties. Because the trial court found that Pepsi did not thoroughly investigate the claim before denying it, and the record supports this view, the workers’ compensation judge’s imposition of penalties and attorney’s fees was not manifestly erroneous.

Accordingly, this assignment has no merit.

|15DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. All costs of these proceedings are assessed against the defendant, Pepsi Bottling Group.

AFFIRMED.

      . Doyle’s immediate supervisor, Cleo T. Smith, testified that at work, he is known as “Trey.”

      . This statement was not entered into evidence.

      . We note that although he previously denied it, Doyle admitted to telling his family doctor that he did yoga on July 16, 2004, approximately a week before the accident.

      . As of June 7, 2006, the date of trial, Doyle did not have the recommended surgery.

      . Doyle testified that he has not worked since he was injured on July 23, 2004.

      . Louisiana Revised Statutes 23:1201(F) provides:
      Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, 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. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing.


author: EZELL, Judge.

text:
    SUCCESSION OF Bernice H. AGUILERA.
    No. CA 07-77.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      William Preston Crews, Jr., Attorney at Law, Natchitoches, LA, for Appellees, Patricia H. Mellor, Katherine M. Carter, Barbara E. Mellor, John F. Mellor.
    Charles Raymond Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Appellant, Succession of Bernice Aguil-era, through its executor James Seaman.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

_JjJames Seaman, the dative testamentary executor of the succession of Bernice Aguilera, appeals a trial court judgment dismissing the proceedings to probate a will of Ms. Aguilera. The trial court found that a judgment on a more recent will in Florida barred an action in Louisiana pursuant to the doctrine of res judicata.

FACTS

Since 1937, Bernice Aguilera resided in Natchitoches with her husband who died in the early 1960’s. In November 2003, Ms. Aguilera moved to Fort Myers, Florida with her sister, Patricia Mellor. Before moving to Florida, Ms. Aguilera had executed a will on June 22, 2000. After her move to Florida, Ms. Aguilera executed another will on January 23, 2004. This later will left $10,000 to Reverend Ryan Horton and an oil painting to the art department of Northwestern Louisiana University. The remainder of the estate was left to her sister and her sister’s children. The previous Louisiana will included these legatees in addition to other legatees. The other legatees that sums of money had been bequeathed to in the Louisiana will included Pearlie Horn and Henrietta Byrd, Ms. Aguilera’s caretakers for years. Sums of money had also been left to two great nieces and a cousin on her husband’s side.

Ms. Aguilera died on August 26, 2004, at the age of 96. An order admitting the January 2004 will to probate and appointing Ms. Mellor as the personal representative was entered on September 21, 2004, in Florida. Notice of the administration was sent by certified mail to Ms. Horn, Ms. Byrd, and the other previous legatees. Ms. Horn and Ms. Byrd filed objections to the jurisdiction of the court and Ms. Aguil-era’s testamentary capacity in the proceedings in the Florida court.

li>On February 23, 2005, Ms. Horn and Ms. Byrd filed a petition to probate the June 2000 will and for the appointment of an executor in Natchitoches Parish. Mr. James Seaman was appointed dative testamentary executor. On March 17, 2005, Ms. Mellor filed exceptions of lis pendens, lack of jurisdiction over the person, and lack of jurisdiction of the subject matter in the Louisiana proceedings. On March 23, 2005, the parties agreed that the exception of lis pendens should be granted. An order was signed staying the Louisiana proceedings.

Meanwhile, Ms. Horn and Ms. Byrd came to an agreement regarding the Florida proceedings. They withdrew their objections. An order of distribution was entered providing a payment of $50,000 to Ms. Horn and a payment of $35,000 to Ms. Byrd. These were the amounts that were bequeathed to them in the June 2000 will.

An order of discharge was signed in Florida on October 5, 2005, declaring Ms. Aguilera’s estate to be fully administered and discharged. Thereafter, Ms. Mellor filed a motion in the Louisiana proceedings asking that the Florida judgment be given full faith and credit, thereby barring the present proceedings pursuant to the doctrine of res judicata. A hearing on the exceptions was held on April 4, 2006, with additional argument on May 31, 2006. Mr. Seaman, as executor of the estate, was the only remaining litigant opposing the Florida proceedings.

In written reasons for judgment the trial court found that the validity of the Florida judgment, i.e. competency and domicile, should have been litigated in Florida. Interested parties were given notice of the Florida proceedings in addition to the fact that Mr. Seaman admitted that he knew of the Florida proceedings and had approved the order of lis pendens. The trial court granted the exception of res judicata.

|,RES JUDICATA

Mr. Seaman objects to the trial court’s grant of res judicata, arguing that it was error to dismiss the petition. Specifically, he argues that Ms. Mellor should have instituted suit to have the Florida judgment made executory in Louisiana. He also claims that certain evidence relied upon by the trial court was not properly admitted.

Ms. Mellor did not seek to execute on the Florida judgment in Louisiana. She simply asked the court to accord the judgment full faith and credit and recognize its res judicata effect on any probate proceedings involving Ms. Aguilera’s estate in Louisiana. The effect of the full faith and credit clause of the Constitution is to preserve the eonclusiveness of the foreign judgment as evidence, not to preserve its executory character. Douglass v. Gyulai, 144 La. 213, 80 So. 258 (1918). Therefore, we will address whether the trial court properly found that the Florida judgment was entitled to full faith and credit and had a res judicata effect on the probate proceedings that Mr. Seaman seeks to continue as executor.

Louisiana courts are required to give full faith and credit to judgments of courts of other states. U.S. Const, art. 4, § 1.

The constitutional command of full faith and credit, as implemented by Congress, requires that “judicial proceedings * * * shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such State * * * from which they are taken.” Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. “By the Constitutional provision for full faith and credit, the local doctrines of res judica-ta, speaking generally, become a part of national jurisprudence, and therefore federal questions cognizable here.”

Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186 (1963)(quoting Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S.Ct. 608, 612, 86 L.Ed. 885 (1942))(footnote omitted).

Unless the foreign forum lacked jurisdiction over the litigants or the subject matter involved in the controversy, Louisiana courts cannot deny full faith and credit |4to a foreign judgment. Ponderosa Assocs., Ltd. v. Verret, 97-1184 (La.App. 3 Cir. 7/1/98), 714 So.2d 956, writ denied, 98-2368 (La.11/20/98), 728 So.2d 1290. One seeking to escape the operation of a judgment rendered in another state has the burden of proof. Esenwein v. Commonwealth of Penn., 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608 (1945); Andries v. Andries, 398 So.2d 123 (La.App. 3 Cir. 1981).

Jurisdiction of the Florida court to hear the case was based on Fla. State. Ann. § 733.101(1), which provides that the venue of probate proceedings shall be in the county of Florida where the decedent was domiciled. Cuevas v. Kelly, 873 So.2d 367 (Fla.App. 2 Dist.2004).

A copy of the January 2004 Florida will was attached to the original petition filed in the Louisiana proceedings. The will itself provides that Ms. Aguilera was domiciled in Lee County, Florida. No evidence has been produced by Mr. Seaman other than an affidavit executed by Ms. Horn and Ms. Byrd attached to the petition which states that Ms. Aguilera was not mentally capable of determining whether she wanted to continue living in Natchi-toches, Louisiana. This self-serving affidavit is insufficient to defeat the presumption that the probated Florida will was valid and effective. See Succession of Hagan, 150 La. 934, 91 So. 303 (1922); David v. David, 347 So.2d 885 (La.App. 3 Cir. 1977); and Hebert v. Winn, 24 La.Ann. 385 (1872). We find no evidence presented by Mr. Seaman which establishes that the Florida court lacked jurisdiction and that its judgment is not entitled to full faith and credit.

Mr. Seaman has complained about whether certain evidence introduced by Ms. Mellor was properly authenticated. The original burden of proof was on Mr. Seaman to prove that the Florida judgment was not entitled to full faith and credit. Our finding that the Florida judgment is entitled to full faith and credit renders moot any need to discuss the evidence offered by Ms. Mellor in support of the Florida | ¿judgment.

For these reasons, we find that the trial court was correct in granting the exception of res judicata. Costs of this appeal are assessed to James Seaman, dative testamentary executor.

AFFIRMED.