author: SULLIVAN, Judge.

text:
    Sarwat GAD, M.D., et al. v. Robert Ray GRANBERRY, et al.
    No. 07-117.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    William L. Melancon, Elizabeth A. Mac-murdo, Melancon & Associates, Lafayette, Louisiana, for Plaintiffs/Appellants, Melissa Gad, Sarwat Gad, M.D.
    David J. Krebs, Krystil B. Lawton, H.S. Bartlett, III, Krebs, Farley <& Pelleteri, New Orleans, Louisiana, for Defendant/Appellee, Dryvit Systems, Inc.
    C. Michael Pfíster, Jr., Joseph G. Glass, Duplass, Zwain, Bourgeois, Morton, Pfis-ter & Weinstock, Metairie, Louisiana, for Defendants/Appellees, Van Eaton & Romero, Inc., Melanie Lunn.
    Sharon B. Kyle, James L. Hilburn, Nancy A. Rieheaux, Sharon B. Kyle, A.P.L.C., Baton Rouge, Louisiana, for Defendant/Appellee, Robert Ray Granberry.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

| j Plaintiffs, Dr. and Mrs. Sarwat Gad, appeal the dismissal of their redhibition suit on exceptions of prescription filed by Defendants, Robert Ray Granberry, the vendor of the home that is the subject of this suit; Melanie Lunn and Van Eaton and Romero, Inc. (‘Van Eaton”), the real estate agent and firm, that represented Mr. Granberry in the sale; and Dryvit Systems, Inc. (“Dryvit”), the manufacturer of the home’s Exterior Insulation and Finish System (“EIFS”). For the following reasons, we reverse and remand.

Discussion of the Record

On June 30, 1995, the Gads purchased a 6,353-square-foot home in Broussard, Louisiana, from Mr. Granberry for $550,000.00. The Gads filed suit on March 26, 2002, alleging that they did not discover certain redhibitory defects caused by moisture intrusion through the home’s EIFS until late 2001 and, further, that all Defendants were aware of the defects but failed to disclose them before the sale. Mr. Granberry, Ms. Lunn and Van Eaton, and Dryvit each filed exceptions of prescription, contending that the Gads had actual knowledge of the defects complained of over one year before filing suit based upon numerous pre-sale and post-sale inspection reports detailing moisture problems with the house. The Gads responded that they did not have any knowledge of water seeping through the EIFS until late 2001 or early 2002, when an architect removed the EIFS walls to better inspect the flashing system and unexpectedly found mold growing behind ninety percent of the home’s exterior walls. The trial court agreed with Defendants, granting all three exceptions of prescription.

Prior to the sale, the Gads had the home inspected by a structural engineer, a home inspector, and a termite company. Russell Bellard, the structural engineer, | gissued a report stating that the EIFS, or Dryvit system, appeared to be performing well, with no signs of stress. He noted minor drywall cracking and hairline cracks in the Dryvit, but he did not find that these conditions presented any serious structural concerns. He also noted water penetration in various areas that resulted in window problems, which he attributed to “construction techniques in the dormers.” Mr. Bellard recommended recaulking, some drywall refinishing, and employing a skilled carpenter to investigate, modify, and repair the windows where damage was noted. Gulf States Inspection Consultants, Inc. (“GSIC”) also issued a detailed home inspection report noting several instances of “cosmetic water damage” that was “due to roof run off.” That report recommended correcting the cosmetic water damage caused by “roof run off capillary action”; installing a guttering system for preventive maintenance; monitoring and repairing the dormers, roof components, and chimney flashings as needed to insure watertight conditions; and normal cosmetic repairs, such as caulking, sealing, painting, and weather stripping. The wood destroying insect report by Sterling Pest Control, Inc. noted the water rot found by Mr. Bellard and GSIC and stated that such condition was conducive to infestation, but it did not find evidence of an active infestation.

Shortly after the sale, the Gads hired Andrus Construction Company to make the recommended repairs that included caulking, sealing, and changing window frames. They later had some roofing repairs performed and had a window treated and repaired for an “aerial” termite infestation. In 1998 or 1999, another termite company, Sugarland Exterminating, Inc. (“Sugarland”), recommended that the Gads employ Alexis Mallet, Jr., a forensic construction consultant, to investigate a moisture problem.

| .¡Beginning in August of 1999, Mr. Mallet and other consultants performed several inspections to investigate the deterioration of wood window frames and framing members, the results of which were summarized in a detailed written report. In his report, Mr. Mallet noted excessive moisture levels at several areas, which he attributed to inadequate or missing sealants. Upon removal of some interior dry-walls, he found water stains, damage, and mold, but he believed that the general wall conditions were aesthetic and could be repaired by patching. He recommended proper sealing at all EIFS terminations, the installation of “kick-out” flashing to divert water from the EIFS walls at roof and wall intersections, and routine annual maintenance (to include maintaining sealants, removing debris from gutters, and inspection and monitoring of moisture levels to insure the integrity of the EIFS, wood framed windows, and indoor air quality). In October of 2001, the Gads again consulted Mr. Mallet, complaining of continued deterioration. Similar to Mr. Bel-lard’s conclusion, Mr. Mallet also noted the improper design of the dormer areas; he also found improper sealing around window components. At this time, Mr. Mallet recommended that the Gads consult an architect for further design investigation.

In an affidavit later filed in the trial court, Mr. Mallet stated that the water intrusion he observed in 1999 was limited to some of the wooden windows on the rear wall of the home, the EIFS covered concrete block walls, and the flashing near the flat roof areas. He stated that he never told the Gads or implied in his 1999 report that the EIFS needed to be removed for further investigation because he and the other consultants he employed believed that the cause of the ongoing water damage to the |4wooden window units was a lack of sealing or caulking. He explained that, when he recommended that the Gads hire an architect in 2001, he believed that the flashing above the windows might have to be redesigned, but he did not suspect even then that there would be problems with the EIFS that would result in the extensive mold later found by the architect. Mr. Mallet did not believe that the water intrusion in the windows and frames observed in 1999 was related to the water infiltration of the EIFS.

Upon Mr. Mallet’s recommendation, the Gads consulted an architect, Fabian Patin, in late 2001. Mr. Patin ultimately identified problems with the installation of the EIFS that allowed water to get trapped behind the home’s exterior walls, but he stated that the Gads would not have been aware of that water infiltration until the exterior walls were removed in late 2001 or early 2002. He explained that Dryvit’s reliance solely on sealants to prevent water intrusion through the EIFS was faulty because sealants ultimately fail. Rather than the temporary protection of sealants, Mr. Patin opined that Dryvit should have instructed contractors that its EIFS be installed with a breathable membrane or flashing system that offered a longer protection life. He also explained that water became trapped behind the foam of the exterior walls because it had no means of escape, such as in “weep holes” that are used with brick veneers. According to Mr. Patin, some of the information that Dryvit provided regarding the installation of its EIFS product showed a “complete disregard for understanding of keeping moisture out of the building.”

IsUpon removal of the exterior walls, Mr. Patin also discovered what he believed to be evidence of prior attempts to repair this problem. In the outside wall in the breakfast area, he found a layer of vis-quine that he considered to be an abnormal configuration that was not likely part of the original construction. It appeared to him that someone had attempted to correct moisture penetration by creating a vapor barrier, but that action had only made the problem worse. Because he was given no information that the Gads had previously taken down the EIFS walls, he assumed the visquine had been installed before they purchased the home. Removal of the EIFS walls also revealed that wood had been replaced in the framing of the parapet wall, indicating previous damage; that low voltage wires had been cut and replaced; and that handwriting on a beam above the garage indicated that it had been replaced in February of 1995, before the Gads had purchased the house.

Defendants argue that the deposition testimony of two Sugarland employees establish that the Gads were informed as early as 1998 that the EIFS, or synthetic stucco walls, needed to be torn down. According to these employees, they informed Mrs. Gad of this condition when the Gads first contracted with Sugarland in 1998 for termite inspection and treatment. Mrs. Gad states in her affidavit, however, that she initially dealt with another Sugarland employee (whose name appears on the original contract). She also notes that those employees testified that this conversation occurred during extensive demolition or repair work, which according to Mrs. Gad, did not occur until late 2001.

Opinion

The Gads action against Mr. Granberry, as the vendor of the home, is grounded in redhibition. Under La.Civ.Code art. 2520, “[a] defect is redhibitory when it | ¿renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.” Louisiana Civil Code Article 2534 provides, in part, that such an action prescribes as follows:

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

(Emphasis added.)

The Gads’ action against Ms. Lunn and Van Eaton, however, is based upon fraud or negligent misrepresentation, whereas their action against Dryvit is based upon products liability. These Defendants contend that the Gads’ claims against them, which are subject to the one-year libera-tive prescription for delictual actions, have prescribed under La.Civ.Code art. 3493, which provides: “When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.” (Emphasis added.)

In his deposition, Mr. Patín stated that, after speaking with individuals involved in the construction of the home, it appeared to him that Mr. Granberry self-contracted the project. Even if this testimony is not enough to impute presumed knowledge of |7the defect to Mr. Granberry as builder of the residence, we find the evidence of prior repairs found by Mr. Patín when he removed the EIFS walls is sufficient to prove actual knowledge to trigger the prescriptive period in La.Civ.Code art. 2534(B). Accordingly, an analysis of the Plaintiffs’ discovery or knowledge is applicable to all Defendants.

In Encalade v. Coast Quality Construction Corp., 00-925 (La.App. 5 Cir. 10/31/00), 772 So.2d 244, writ denied, 00-3229 (La.1/26/01), 782 So.2d 634, the court had to decide whether prescription on the plaintiffs’ redhibition claim began to run from the time they first noticed settlement of the home or from the time they were informed of possible foundation failure almost four years later. After purchasing the home from its builder in 1985, the plaintiffs first noticed that the house began to settle in 1991, but at that time a structural engineer issued a report concluding that the home was “structurally functional in its current condition at this time.” Id. at 246. Noticing that the house continued to settle, the plaintiffs obtained another survey in December of 1994 that found a twelve-inch differential between the front and the rear of the home. In January of 1995, another engineer issued a report finding the one-foot differential “excessive and alarming” and predicting structural failure if the house continued to settle. Id. They filed suit in February of 1995. Rejecting the defendant’s argument that prescription began to run in 1991 when the plaintiffs first noticed settlement of the home, the court stated:

We believe that Plaintiffs did not have constructive knowledge of an element of the action until the second engineer’s report showed that the twelve inch differential in the elevation caused the house to be ^structurally unsound. Plaintiffs made an effort to investigate a problem which they saw developing. ... That engineer’s report showed that in 1992, the home was “structurally functional in its current condition at this time.” It was not until the January, 1995 report which stated that “if this house continues to settle, it may result in structural failure and/or and [sic] unsafe condition”, that Plaintiffs had constructive notice of an essential element of redhibition.
We find that the date of that report, January 20, 1995, is the commencement of the prescriptive period.

Id. at 247 (emphasis added).

In Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987), the plaintiffs’ den flooded on two occasions approximately two months apart, and the supreme court had to decide whether prescription on their redhibition claim began to run after either the first or second incident. When the plaintiffs pulled up the carpet after the first incident, they discovered moldy sideboards and sealants that had been applied over cracks in the den floor, indicating prior, undisclosed water damage. (Before they bought the home approximately one year earlier, the plaintiffs had been provided with an engineer’s report indicating that the foundation was structurally sound.) Cleaning personnel suggested to them that the flooding could have been caused by either the cracks in the foundation or leaking flashing on the roof around the chimney. The insurance adjuster who investigated the claim concluded that the water had probably come from a leaking flashing where the chimney met the roof, and the plaintiffs had that condition repaired. When the den flooded a second time, the plaintiffs were able to see water seeping in through the foundation, and further investigation revealed that an agent failed to disclose a second engineer’s report finding foundation damage. Concluding that prescription did not begin to run until the second incident, the supreme court stated:

|nWhen the Jordans first discovered water in their den, they reasonably suspected that the water had entered between the flashing and the chimney. The insurance adjuster, whose job was in part to identify the origin of the damage, had reached the same conclusion. The Jordans reasonably relied upon [the first] report’s conclusion that the foundation was not structurally unsound as well as [the agent’s] representations. For these reasons, the Jordans made a reasonable decision to attempt to repair the flashing and see if that cured the problem. The Jordans did not discover the origin of the leak until the second substantial rainfall, about two months later. By this time, the carpet had been removed and water could be seen seeping through the den floor.

Id. at 422 (emphasis added).

In Rihner v. Chevalier, 98-1032 (La.App. 5 Cir. 3/30/99), 731 So.2d 429, writ denied, 99-1234 (La.6/18/99), 745 So.2d 27, the court relied on Jordan to conclude that the plaintiffs’ claim against the City of Kenner for negligently approving house plans that were in violation of its building code had not prescribed under La.Civ. Code art. 3493 because they had filed suit within one year of receiving an engineer’s report identifying the defect in the plans. The court rejected the City’s argument that prescription under Article 3493 began to run when the plaintiffs first noted settlement of their house, finding that they reasonably relied on the assurances of their contractor that the settlement was due to normal conditions.

In the present case, Defendants argue that numerous references to the defective or nonexistent sealants at EIFS terminations throughout Mr. Mallet’s 1999 report should have put the Gads on notice of moisture problems with the EIFS walls. However, Mr. Mallet stated in his affidavit that the water intrusion he found was “limited to water being absorbed by the wooden-window units and rough-framed openings” which he attributed to “lack of sealing (caulking).” He stated that he did not recommend further destructive testing of the EIFS walls either in 1999 or in 2001, when the Gads contacted him again after noticing continued deterioration in spite of Imthe recommended repairs. He explained that, when he referred the Gads to an architect in 2001, he suspected there was a defect in the hidden flashing, which could be redesigned by the architect, if he thought it necessary.

The defect that Mr. Patín identified as the cause of the extensive, hidden damage he found was not the inadequate sealants noted by Mr. Mallet, but rather a design flaw in the use of sealants alone as a moisture barrier for the EIFS, combined with the inability of trapped water to escape. Mr. Patín was the first expert to suggest such a system-wide problem to the Gads, and it was his removal of the EIFS walls that exposed the true extent of the damage. Just as the plaintiffs in Encalade and Jordan, the Gads investigated the problems with their home and made the recommended repairs, but they were not informed of either the origin of the problems or the extent of the damage until consultation with Mr. Patín. (We also note that Mr. Mallet believed the damage he viewed in 1999 was unrelated to the damage discovered by Mr. Patín, as Mr. Mallet expected to find moisture damage in wooden windows that were not completely sealed.) Reviewing the totality of the record before us, we find that the trial court erred in granting Defendants’ exceptions of prescription.

Decree

For the above reasons, the judgments of the trial court are reversed, and the case is remanded for further proceedings. Costs of this appeal are assessed to Defendants/Appellees.

REVERSED AND REMANDED.

      . The report is dated December 28, 1999, but Mr. Mallet testified that he did not deliver it to the Gads until February of 2000.

      . The Gads assert in their appellate brief that Dryvit is involved in a national class action suit concerning the improper installation procedures associated with its product, as well as its failure to disclose resulting problems to purchasers, but that the Gads are not members of that class because the product was supplied for their home before the class inclusion date.

      . The Gads point out that the disclosure form provided to them at the time of sale in June of 1995 was signed and dated by Mr. Granberry in 1991, apparently in anticipation of an earlier sale that was not completed. They note that this form predates the replacement of the beam that was found with the handwritten notation indicating that it was replaced in February of 1995.


source: Caselaw Access Project

license: Public Domain

text:
    Walter Wade THORNTON v. Tamara M. WOLF, et al.
    No. 2007-135.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Marshall Leon Sanson, Monroe, Louisiana, for Defendant/Appellee: Tamara M. Wolf, Sheryl Ladee Ford, Scotty Louis Ford.
    Paul Howard Benoist, Vidalia, Louisiana, for Plaintiff/Appellant: Walter Wade Thornton.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

| iWalter Thornton appeals the trial court’s refusal to declare an Assumption Deed a simulation or revoke the effects of the Deed. We affirm.

Facts

On August 13, 2004, Mr. Thornton was awarded a judgment against his ex-wife, Tamara Wolf, in the amount of $120,000.00 by a Mississippi court. On September 27, 2004, he filed a copy of that judgment in the mortgage records of Catahoula Parish and filed suit to have the judgment recognized as enforceable in Louisiana. Judgment recognizing the Mississippi judgment and making it executory was granted January 25, 2005.

Pursuant to a Cash Sale, Ms. Wolf had purchased real property (the property) in Catahoula Parish on March 15, 2002. She borrowed money to finance the purchase of the property and, in connection therewith, executed a promissory note and mortgage to evidence her indebtedness and secure repayment of the promissory note. On August 28, 2004, Ms. Wolf transferred title to the property to Sheryl and Scotty Ford, her sister and brother-in-law, by means of an Assumption Deed.

In March 2006, Mr. Thornton filed suit against Ms. Wolf and the Fords, alleging that the Assumption Deed was fraudulent and should be revoked. He urged that the purpose of the Assumption Deed was to deprive him of the ability to enforce his judgment against Ms. Wolf. After a bench trial, the trial court concluded that the Assumption Deed was not a sham and should not be revoked. Mr. Thornton appeals.

Standard of Review

Findings of fact are subject to the manifest error or clearly wrong standard of review. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). | ¡>Legal errors are subject to the de novo standard of review. Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731.

Discussion

Simulation

Mr. Thornton contends that the Assumption Deed was a sham or simulation employed by Ms. Wolf and the Fords to defraud him of his right to enforce his judicial mortgage against the property.

Article 2025 of the Louisiana Civil Code defines “simulation” as a contract which “by mutual agreement ... does not express the true intent of the parties.” A transaction is a simulation if “the parties intend the property to remain in the vendor’s patrimony and for no consideration to pass.” Russell v. Culpepper, 344 So.2d 1372, 1377 (La.1977). When the vendee proves good faith by the parties, delivery of the property, and an exchange of consideration, he has established that the transaction is not a simulation. Id. Assumption of a debt is valid consideration for the transfer of property. Id. See also, Thompson v. Woods, 525 So.2d 174 (La.App. 3 Cir.1988).

The stated consideration in the Assumption Deed was the Fords’ assumption of Ms. Wolfs indebtedness of $53,000.00. Mrs. Ford testified that she and her husband wanted to purchase the property in 2002 but could not obtain the financing to do so. She further testified that they had lived on the property and paid all the mortgage payments since the 2002 Cash Sale. In Responses to Requests for Admissions propounded by Mr. Thornton, Ms. Wolf corroborated Mrs. Ford’s testimony.

Mr. Thornton objected to any testimony regarding the facts surrounding the Cash Sale, but the trial court allowed Mrs. Ford’s testimony on the issue. |3Mr. Thornton urges on appeal that Mrs. Ford should not have been allowed to testify concerning the intent of the parties to the 2002 Cash Sale, citing La.Civ.Code art. 1848, which prohibits the admission of testimonial evidence to negate or vary the contents of an authentic act.

Mrs. Ford’s testimony did vary information stated in the Cash Sale, and a review of the trial court’s Reasons for Judgment reveals that it relied on that testimony to deny the relief sought by Mr. Thornton. However, under the facts of this case, it was not error for the trial court to allow this testimony.

To successfully defend Mr. Thornton’s claim that the Assumption Deed was a simulation, the Fords had to prove that the Assumption Deed was executed in good faith. Russell, 344 So.2d 1372. Mrs. Ford’s testimony varied from the written terms of the Cash Sale, but it established that the Assumption Deed was executed in good faith. She and her husband had made all the payments on the property from the date of the Cash Sale, but the title was not in their name. Her testimony proved that the Assumption Deed was executed to put the property in the name of the true owners, not to transfer property bought and paid for by Ms. Wolf to defeat Mr. Thornton’s claims.

Mrs. Ford’s testimony concerning the Cash Sale and the Assumption Deed defended the legitimacy of the Assumption Deed, and the trial court did not err in allowing her testimony on these issues. Chenevert v. Lemoine, 161 So.2d 85 (La.App. 8 Cir.), writ denied, 162 So.2d 572, 245 La. 1076 (1964).

We find no error with the trial court’s determination that the Assumption Deed was not a simulation or sham but a valid transfer.

14Revocatory Action

Alternatively, Mr. Thornton argues that he is entitled to revoke the effects of the Assumption Deed. Pointing to his judgment and Ms. Wolfs Responses to his Requests for Admissions in which she admitted that her debts exceeded her assets when she executed the Assumption Deed, Mr. Thornton urges that the transfer to the Fords increased Ms. Wolfs insolvency and should be revoked.

Louisiana Civil Code Article 2036 provides for the revocation of a sale, stating: “An obligee has the right to annul an act of the obligor ... made or effected after the right of the obligee arose, that causes or increases the obligor’s insolvency.” “An obligor is insolvent when the total of his liabilities exceeds the total of his fairly appraised assets.” La.Civ.Code art. 2037.

Mr. Thornton introduced the following evidence at the trial: 1) copies of the Cash Sale and mortgage executed by Ms. Wolf when she purchased the property; 2) a copy of the Assumption Deed; 2) copies of documents establishing Ms. Wolfs indebtedness to him; 3) a copy of a Mortgage Account Statement detailing the mortgage obligations on the property dated February 18, 2005; 4) an appraisal of the property dated March 9, 2005; and 5) a statement issued by the Tax Assessor for Catahoula Parish dated January 18, 2005. The Fords introduced Ms. Wolfs Responses to Requests for Admissions.

This documentary evidence established that Ms. Wolf purchased the property for $60,000.00 in 2002 and that the Fords assumed her obligations under the terms of the promissory note and mortgage. The promissory note and mortgage obligated Ms. Wolf to repay the principal amount of $54,000.00, together with interest at the rate of 5.375% per annum and escrow items which include insurance premiums and |fitaxes, over a period of thirty years. When the Fords executed the Assumption Deed, these obligations totaled more than $119,500.00, which represents the principal amount of $53,000.00 stated in the Assumption Deed, plus $49,000.00 in interest (5.375% per annum on $53,000.00 for 28.5 years) and $17,500.00 in escrow items.

Pursuant to La.Civ.Code art. 2036, Mr. Thornton had to prove that the transfer of the property caused or increased Ms. Wolfs insolvency. Ms. Wolf admitted in her Responses to Requests for Admissions that she was insolvent before she executed the Assumption Deed; therefore, Mr. Thornton had to prove that the transfer increased her insolvency.

Mr. Thornton introduced the appraisal and tax assessment to satisfy this element of his burden of proof. The appraisal estimated the fair market value of the property to be $55,900.00, while the tax assessment assessed the property at $73,500.00. If only the principal obligation assumed by the Fords is considered, it would appear that Mr. Thornton satisfied his burden of proof because the value of the property exceeded the obligations assumed by the Fords. In reality, the Assumption Deed reduced Ms. Wolfs insolvency because the Fords assumed obligations which greatly exceed the value of the property. Accordingly, Mr. Thornton did not prove that the Assumption Deed increased Ms. Wolfs insolvency.

Mr. Thornton urges that Ms. Wolfs mortgage prohibited transfer of the property and assumption of the debt. This argument has no merit. Mr. Thornton has no standing to make this argument because he was not a party to the promissory note or the mortgage. See Rowan v. Town of Arnaudville, 02-882 (La.App. 3 Cir. 12/11/02), 832 So.2d 1185. Further, Ms. Wolf stated in her Responses to Requests for Admissions that she had notified the current holder of the promissory note of the assumption by the Fords, and Mrs. Ford testified that the note holder was pleased with their payment history.

Appellate Record Costs

Mr. Thornton appeals the trial court’s denial of his request to reduce the $585.00 fee charged by the district court’s clerk of court for copies of the 117 pages of exhibits for the appellate record, urging that the fee is excessive and contrary to Louisiana’s policy of favoring appeals. Louisiana Revised Statutes 13:841(A)(10) provides district court clerks “may be entitled to demand and receive fees of office, which fees may be less than, but shall not exceed ... (10) Appeals (per original document page) complete preparation of all copies and volumes, five dollars.”

The $5.00 fee encompasses making copies and preparing the appellate record, not just making copies as argued by Mr. Thornton. Appeals are favored; however, the clerk of court was within its authority to charge this fee. Mr. Thornton has not cited, and we have not found, any provision of law or jurisprudence which would allow us to reduce this fee. Accordingly, we find no error with the trial court’s denial of Mr. Thornton’s motion to reduce the clerk of court’s $5.00 fee for exhibits.

Disposition

For the reasons stated herein, the judgment of the trial court is affirmed. All costs of this appeal are to assessed to Mr. Thornton.

AFFIRMED.

      . Ms. Wolf filed for bankruptcy protection in 2005; her case was dismissed on January 26, 2006.

      . A Mortgage Account Statement issued by the holder of the promissory note on February 18, 2005, was included in documents introduced into evidence by Mr. Thornton. According to that statement, the escrow items total $52.59 per month. Assuming the stated amount for these items remain constant for the remaining term of the promissory note and mortgage, the Assumption Deed obligates the Fords to pay $17,500.00 in escrow items.


author: PAINTER, Judge.

text:
    Jeff SEPULVADO v. TOLEDO NURSING CENTER, INC. and Management Services of Beauregard Parish, Inc.
    No. 2007-122.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    Rehearing Denied June 27, 2007.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff-Appellant: Jeff Sepulvado.
    David R. Sobel, Provosty, Sadler, Delau-ney, Fiorenza & Sobel, Alexandria, LA, for Defendant-Appellee Toledo Nursing Center and Management Services of Beauregard Parish, Inc.
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|, Plaintiff, Jeff Sepulvado, appeals the trial court’s grant of summary judgment dismissing the claim for nursing home negligence in connection with injuries sustained by his elderly mother while a patient at Toledo Nursing Center, Inc. (TNC). Finding that issues of fact remain as to breach of the standard of care as well as to causation, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

The underlying facts, as outlined in the opinion of the medical review panel, are undisputed, and we base the following fact summary on that document. Plaintiffs mother, Edith Sepulvado, was admitted to TNC on May 1, 2001. At that time she was eighty-one years old and suffering from advanced Alzheimer’s disease, psychosis, anemia, malnutrition, increased agitation, repetitive babbling, and gastrosto-my. She was at high risk for falls a variety of restraints were used during her time at TNC. She was given an “Alzheimer’s bed,” which was low to the floor to minimize the impact of falls, and mats were placed around her bed for the same reason. The patient was largely non-verbal and frequently engaged in rocking behavior and babbling.

In mid-January 2003, Mrs. Sepulvado suffered head bruising and a skin tear. In February, she had bruises to her forehead. The origin of these injuries were unknown. On February 11, 2003, she was found on the mat beside her bed, rocking and babbling. She was rubbing the right side of her face on the bed. Later the same day, she was rubbing her right eye, and she was found to have bruising above the right eye and on her forehead. Her treating physician, Dr. Greg Founds, was notified.

|2On February 13, 2003, Mrs. Sepulvado was found on the floor between the foot of her bed and the mat. There were skin tears over her right eye and right cheek. She was put back in bed, and her wounds were tended. She was sent to Sabine Medical Center for treatment and returned to TNC the same day. As a result of this incident, Dr. Founds ordered a CT scan, which was performed at Sabine Medical Center. The results of the CT scan showed a right frontal contusion with possible shearing but without symptoms of increased intracranial pressure or mass effect.

TNC installed an alarm on Mrs. Sepul-vado’s bed. Another CT scan of Mrs. Sep-ulvado’s head was performed in late February 2003. The results showed a “right frontal contusion and right temporal lobe low density. Most likely shear injury. New left subdural extra-axial fluid collection-looks like chronic subdural hemato-ma.” In March 2003, Mrs. Sepulvado was examined by Dr. Anil Nanda, a neurosurgeon. He noted a small subdural hemato-ma and found her to be neurologically unchanged.

On March 11, 2003, Dr. Nanda ordered a repeat CT scan of Mrs. Sepulvado’s head to be performed on April 8, 2003. On March 12, 2003, before the scan could be performed, Mrs. Sepulvado was taken to the emergency room at Sabine Medical Center because of recurrent fever spikes over the previous few days. She was admitted to the hospital with right lower lobe pneumonia, dehydration, and diarrhea. She did not return to TNC thereafter.

PROCEDURAL HISTORY

In January 2004, Edith Sepulvado and her son, Jeff Sepulvado filed a medical review panel complaint in which they named as defendants TNC, Management Services of Beauregard Parish (MSBP), and several employees of TNC. The opinion issued by the panel indicates that the two physician members of the panel found no |sbreach of the standard of care, but that the nurse member of the panel, who is also a Ph.D., felt that a breach of the standard of care had occurred. The opinion states, in pertinent part:

The claimants herein have made generalized allegations of failure by the defendants to properly monitor, supervise, and care for the patient. These doctors find that the records herein are devoid of any such failures on the part of the defendants. The assessments of the patient properly identified her condition and risks, and steps were taken, including restraints and special equipment, to reduce the risk of falls and injury to the patient. The claimants have provided nothing which contradicts the records’ documentation of proper and timely care by the defendants. Given the patient’s history and condition, it is not unexpected that she would suffer occasional injuries from falls or bumps. Short of total restraints, utilized one-hundred percent (100%) of the time, there is no method by which a patient such as Ms. Sepulva-do herein can be completely protected from injury. While the record does document a failure to accomplish communication about a fall with family members in certain instances, it does not rise to the level of a breach.
After a careful review of all evidence submitted for my review, and for the reasons espoused below, Dr. Tucker finds that the actions of the defendants herein, Toledo Nursing Center, Inc., Management Services of Beauregard Parish, Ms. Cheryl Rivers, LPN, Ms. Viola Malmay, LPN, Ms. Sue Pilkington, RN, and Ms. Pam Kennedy, did constitute a deviation from the applicable standard of care.
The facility herein, and its employees, were not equipped to handle a geripsych individual such as the patient herein. The staff was not adequately trained; accordingly, did not make the proper assessments or take appropriate actions, particularly with respect to the monitoring of the patient. Due to the patient’s repeated falls, she should have been monitored more closely and more frequently. There was no monitoring for seizures, despite a history of seizures, and the LPNs were apparently not aware of the effects of medication, as there were no genuine attempts to communicate with the patient due to the described “babbling[.]” Dr. Tucker finds the overall care to have been substandard in numerous respects.

On March 30, 2006, after the death of Mrs. Sepulvadox, her son filed this action seeking compensation for pre-death physical and mental pain and suffering and [4for medical expenses. He further sought damages under Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

Defendants answered the petition, and, on August 25, 2006, filed a motion for summary judgment. In that motion they asserted that Plaintiffs petition should be dismissed since there was no remaining issue as to material fact because, even admitting, for purposes of the motion only, that there was a deviation from the standard of care, Plaintiff could not show a causal connection between the breach of the standard of care and the injury to Mrs. Sepulvado. Attached in support of the motion was the affidavit of Dr. Scott Gremillion, who served on the medical review panel. He stated that:

The Medical Review Panel found unanimously, with written reasons, that the evidence did not support the conclusion that Toledo Nursing Center, Inc. deviated from the applicable standard of care as charged in the complaint of malpractice and that no conduct by Toledo Nursing Center, Inc. was causative of any harm to the patient herein.

Plaintiff opposed the motion, and submitted the affidavit of Dr. Sandra Tucker, a registered nurse and holder of a Ph.D. in Clinical Nursing Research, in which she stated that it was her opinion that the nursing home did deviate from the standard of care and that the breach contributed to the injuries sustained by Mrs. Sepul-vado.

The trial court granted Defendants’ motion for summary judgment and dismissed Plaintiffs claims. Plaintiff appeals. Finding that material issues of fact remain, we reverse the judgment and remand for further proceedings.

DISCUSSION

Summary Judgment

Appellate courts review summary judgments de novo and use the same criteria as the trial court in determining whether summary judgment is appropriate. Nguyen v. Underwriters at Lloyd’s, 05-1407 (La.App. 3 Cir. 5/3/06), 929 So.2d 821, writ denied, 06-1332 (La.9/22/06), 937 So.2d 387. Pursuant to La.Code Civ.P. art. 966(B), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.”
Louisiana Code of Civil Procedure Article 966 charges the moving party with the burden of proving that summary judgment is appropriate. However, when the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden on the motion does not require him to negate all of the essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim. See La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce factual support to convince the court that he can carry his burden of proof at trial, there is no genuine issue of material fact and granting of the motion is mandated. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.
Nguyen at 823.

Louisiana Pigment Co., L.P. v. Scott Constr. Co., Inc., 06-1026, p. 5 (La.App. 3 Cir. 12/20/06), 945 So.2d 980, 983.

Because they would not have had the burden of proof at trial, in order to show that summary judgment was appropriate, movers herein had to show that there was no support for one or more of the elements of Plaintiffs claim.

[A] plaintiff pursuing a negligence claim against a nursing home is required to prove, by a preponderance of the evidence, the applicable standard of care, the breach of that standard of care, and the causation of the alleged injury as a result of that breach. Hinson v. The Glen Oak Ret. Sys., 37,550 (La.App. 2 Cir. 8/20/03), 853 So.2d 726, writ denied, 03-2835 (La.12/19/03), 861 So.2d 572.

Alexander v. Amelia Manor Nursing Home, Inc., 05-948, pp. 4-5 (La.App. 3 Cir. 3/1/06), 924 So.2d 409, 412-13.

In this case, Defendants have, for purposes of the motion for summary judgment only, conceded that the standard of care was breached. The motion for | ^summary judgment was based on an alleged lack of evidence showing a causal connection between the breach and the injuries sustained by Mrs. Sepulvado. Plaintiff responded by filing, with his opposition, the affidavit of Dr. Tucker, R.N., in which she stated that:

Based on her experience, expertise and training and after review of the above described medical record sand affidavit, it is affiant’s opinion that the defendant nursing home did deviate from the applicable standards of care in its treatment and management of the care of Edith Sepulvado.
Based on her experience, expertise and training and after review of the above described medical records and affidavit, defendant’s deviation from the standards of care played a part and/or caused the physical injuries to Edith Sepulvado described in the affidavit of Jeff Sepulva-do.

Defendants argued, that because Dr. Tucker is a nurse and not a medical doctor, she is not qualified to give an “opinion as to the medical causation or harm, as such would be tantamount to making a diagnosis, which is the province of physicians.” However, we find that it was not necessary for Dr. Tucker to diagnose Mrs. Sepulvado’s condition in order to give an opinion as to whether a breach of the standard of care caused the injuries. It is undisputed that at least some of Mrs. Sepulvado’s injuries were caused by falling. Dr. Tucker is qualified, as a registered nurse and holder of a Ph.D in Clinical Nursing Research, to give an opinion as to whether there was a causal connection between the falls and the breach of the standard of care by the nursing home. This does not entail a medical diagnosis.

“When the trial court decides a motion for summary judgment, it cannot make credibility determinations, nor may it inquire into the merits of the issues raised. Hitchcock v. Heritage Manor Nursing Home, 05-1010 (La.App. 3 Cir. 2/1/06), 922 So.2d 764.” Latiolais v. State Farm Mut. Auto Ins. Co., 06-425, p. 6 (La.App. 3 Cir. 11/22/06), 949 So.2d 455, 459. Given the direct conflict between the affidavits of Dr. Gremillion and Dr. Tucker, there remains a question of fact as to whether Mrs. Sepulvado’s injuries were caused by a breach of the standard of care by TNC. As a result, summary judgment is not appropriate.

Motion to Strike

Additionally, Defendants move to strike photographs of Mrs. Sepulvado which were included in the brief. However, having found that a question of fact remains without having considered the photographs, we pretermit consideration of the argument.

CONCLUSION

The judgment of the trial court dismissing Plaintiffs claim pursuant to Defendants’ motion for summary judgment is reversed. Defendants’ motion to strike is denied. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Defendants.

REVERSED AND REMANDED.

      . The cause of Mrs. Sepulvado's death does not appear of record and does not constitute part of Plaintiff's claim.


text:
    W.D. NEWCOMB v. SCOTT TRUCK AND TRACTOR COMPANY, L.L.C.
    No. 07-137.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    Rehearing Denied June 27, 2007.

      Eric LaFleur, Mahtook & LaFleur, Ville Platte, LA, for Defendant-Appellant, Scott Truck and Tractor Company, L.L.C.
    J. Morgan Passman, Walker & Passman, L.L.P., Alexandria, LA, for Plaintiff-Ap-pellee, W.D. Newcomb.
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Defendant, Scott Truck & Tractor Company, L.L.C. (Scott Truck & Tractor), appeals the trial court’s judgment awarding Plaintiff, W.D. Newcomb (Newcomb), $20,000.00 in his suit for breach of contract. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of Scott Truck & Tractor.

FACTUAL AND PROCEDURAL BACKGROUND

W.D. Newcomb became employed with Scott Truck & Tractor as a store manager, and the parties entered into a “compensation agreement” on July 30, 1998. That agreement provided as follows:

1998 Salary: $50,000.00

$ 2,500.00 Bonus paid 10/15/98,12/15/98

$25,000.00 Bonus paid 2/15/99 or 25% of the store profit from 8/1/98-12/31/98 whichever is greater

1999 Salary: $50,000.00

$ 2,500.00 Bonus paid 4/15/99,10/15/99,

12/15/99

$40,000.00 Bonus paid 2/15/00 or 15% of profit whichever is greater

2000 Salary: $50,000.00

$ 2,500.00 Bonus paid 4/15/00,10/15/00,

12/15/00

$40,000.00 Bonus paid 2/15/01 or 15% of profit whichever is greater

2001 Salary: $50,000.00

$ 2,500.00 Bonus paid 4/15/01,10/15/01,

12/15/01

$40,000.00 Bonus paid 2/15/02 or 15% of profit whichever is greater "'Bonus paid if store does not have a loss at 12/31/00

2002Salary: $50,000.00

$ 2,500.00 Bonus paid 4/15/02,10/15/02,

12/15/02

$40,000.00 Bonus paid 2/15/03 or 15% of profit whichever is greater *Bonus paid if store does not have a loss at 12/31/01

It is undisputed that Scott Truck & Tractor paid Newcomb as provided by the terms of the agreement for the years 1998, 1999, and 2000. However, when Newcomb sought payment for the 2001 bonus, payment was denied because the store did not |«>make a profit in 2001. Scott Truck & Tractor asserted that the compensation agreement erroneously provided that the 2001 annual bonus would be based on sales in the year 2000. Scott Truck & Tractor pointed out that Newcomb had already been given a bonus for the year 2000.

Newcomb resigned his position with Scott Truck & Tractor on February 15, 2003. On April 28, 2003, Newcomb filed suit for breach of contract against Scott Truck & Tractor, seeking to recover the $40,000.00 bonus for 2001 as well as penalties and attorney’s fees pursuant to La. R.S. 23:631 and 23:632. The matter proceeded to a bench trial on October 20, 2006. The trial court found that the contract was ambiguous and, “guided by the principles] of equity,” awarded Newcomb $20,000.00, or one-half of the contemplated bonus for the year 2001. The trial court denied Newcomb’s claims for penalties and attorney’s fees.

Scott Truck & Tractor now appeals, asserting that the trial court committed manifest error when it reformed the employment contract to award a portion of the 2001 annual bonus. Newcomb, in answering the appeal, asserts that the trial court erred in failing to award the full bonus plus statutory penalties, reasonable attorney’s fees, and interest. For the following reasons, we find that the trial court erred in awarding half of the contemplated bonus, reform the contract to provide that the 2001 bonus (to be paid February 15, 2002) was based on sales in 2001, and reverse the ruling of the trial court.

DISCUSSION

In Seals v. Calcasieu Parish Voluntary Council on Aging, Inc., 99-1269, p. 4 (La.App. 3 Cir. 3/1/00), 758 So.2d 286, 289, writ denied, 00-928 (La.5/12/00), 761 So.2d 1292, this court noted:

|sThe contract as a whole must be considered in interpreting each provision. La.Civ.Code art.2050. “When the words of the contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ. Code art.2046. To ascertain and, thereby, effectuate the common intent of the parties to a contract, the trial court should examine each provision of the contract in light of its other provisions so that each is given the meaning suggested by the contract as a whole. La. Civ.Code art.2050.

In this case the trial court found that:

[t]he provision at issue can be interpreted in various different ways. Exhibit 1 [the compensation agreement] shows that the 1998, 1999 and 2000 year bonuses were paid in February of the immediate following year. For the years 2001 and 2002, the last two years on this contract entered in 1998, the bonuses were not guaranteed, but were to be paid only if the store did not have a loss either the previous year, or two years prior, depending on how the contract is interpreted. Lynn Smith, then-GM of Scott Tractor, testified that the contract has a typo and the bonus was to be paid if the store did not have loss in the year immediately preceding the February that the bonus was paid ...
The contract clearly states that a bonus is to be paid if the store does not have a loss, two years prior to the date the bonus is to [be] paid, not the immediate preceding year. However, upon review of the three preceding years (1998, 1999 and 2000), it is obvious that the bonus was paid in February of each year after a determination of profits regarding the immediate preceding year, not profits of two years prior. (Although the bonus was to be paid regardless of whether the store made a profit in the years 1998, 1999 and 2000, profit margin was still examined to determine the amount of the bonus to be paid.)
Civil Code authority provides that the interpretation of a contract is the determination of the common intent of the parties. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. (Articles 2045 and 2046). Thus, although the words of this contract are clear and explicit, one could opine that they lead to absurd consequences. I.e. [sic], Plaintiff does not receive a bonus if the contract is read such that a typographical error exists. If such a typo exists, then the [P]laintiff does not receive a bonus because the store operated at a loss for 2001. If there is no typo, then as a result of at least “breaking even” in 2000, a bonus should have been paid in February 2002. Thus[,] if the absurdity exists by the payment of a bonus which should not be paid, then the court may interpret further the parties intent.
In pondering the parties’ intent, this Court questioned whether or not bonuses had already been paid for the years 1998, 1999 and 2000. Testimony and evidence showed that bonuses had been paid for each of |4those years. Thus[,] it does not seem logical that Scott Tractor would intend to pay a bonus based on 2000 year income when Mr. Newcomb had already been given a bonus for the year of 2000 (paid February, 2001).

We agree with this portion of the trial court’s ruling and agree that it would be absurd to interpret the contract as providing for a 2001 bonus based on sales in a year for which the employee has already received a bonus. However, the trial court went on to find:

Thus, as a purely legal analysis, Scott Truck [&] Tractor drafted the contract and negligently left a provision which leads to a bonus to be paid in 2002, for the year 2001, but based on whether or not the store made a profit in 2000. It appears that Scott Truck & Tractor officials intended that the bonus be paid if the store “broke even” in the year 2001, not 2000. This negligent intrusion into the contract is not the fault of Mr. New-comb.
However, principles] of equity should not allow Mr. Newcomb enrich himself merely because of a typographical error made by Scott Truck & Tractor.
Guided by principles] of equity, this Court will award Mr. Newcomb the sum of $20,000.00, or one-half of the contemplated bonus for the year 2001.

It is here that we find error in the trial court’s reasoning. The testimony established that Newcomb understood that he would receive a minimum annual bonus (i.e., one not hinging on the profitability of the store) only in the first three years of the contract and that, thereafter, he had to make a profit. The testimony also established that such was the intent of Scott Truck & Tractor. Furthermore, the testimony established that the contract was consistently performed to pay bonuses based on performance in the same year that the sales took place, not on the performance of the previous year, or any subsequent year. This court recognizes that “[o]ne of the best ways to determine what the parties intended in a contract is the method in which the contract is performed, particularly if done consistently” over a period of years. Gamble v. D.W. Jessen & Assoc., 509 So.2d 1041, 1043 (La.App. 3 Cir.), writ denied, 514 So.2d 454 (La.1987). Once the trial court found that the contract was ambiguous and determined the parties’ intent, it should have reformed the contract consistent with those factual findings rather than reforming the contract to provide for payment of one-half of the bonus. We find that there is no factual support in the record to support such a reformation. Accordingly, we find that the intent of the parties was to provide for an annual bonus for 2001 (to be paid February 15, 2002) based on the profitability of the store in 2001. Thus, we reverse the judgment of the trial court insofar as it awarded one-half of the contemplated bonus for 2001 and render judgment in favor of Scott Truck & Tractor. Having so found, the issues of penalties and attorney’s fees are moot.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court and render judgment in favor of Defendant, Scott Truck & Tractor, dismissing Newcomb’s claims. Costs of the appeal are assessed to Plaintiff-Appellee, Newcomb.

REVERSED AND RENDERED.

      . Newcomb’s store did make a profit in 2000.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Ronald G. JENNINGS.
    No. 07-150.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    John F. DeRosier, District Attorney, Carol S. Sigler, Asst. District Attorney, Lake Charles, LA, for Appellee State of Louisiana.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant Ronald G. Jennings.
    Ronald G. Jennings, Louisiana State Penitentiary, Angola, LA, In Proper Person Ronald G. Jennings.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

|,In this case, the defendant, Ronald G. Jennings, was convicted of second degree murder, a violation of La.R.S. 14:30.1, and was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant is now before this court asserting one assignment of error in which he contends that the trial court erred in denying his Motion to Suppress two inculpatory statements. For the following reasons, we affirm.

DISCUSSION

Defendant was convicted of killing Jeanette Hennigan, his wife’s grandmother. In his lone assignment of error, he contends that the trial court erred in denying his Motion to Suppress two inculpatory statements given subsequent to his arrest and apparent appointment of counsel. He alleges he gave a statement to police on July 19, 2005, wherein he denied any involvement in the murder. Defendant further alleges that a second interview occurred on July 25, 2005, at which time he confessed. He notes that the confession was offered and accepted at trial without objection from defense counsel. Additionally, a condensed typewritten version of the same statement was offered without objection from defense counsel.

Defendant claims he invoked his right to counsel, terminating the first interview on July 19, 2005. He further claims that, when he allegedly approached law enforcement some six days later, after having been appointed counsel, no new rights form was apparently executed, as it does not appear in the record. Therefore, he argues that it cannot be presumed that a knowing, intelligent waiver of counsel had occurred subsequent to him invoking his right to counsel. In that regard, he states | ¡.that he asked for, but did not receive, a hearing on his Motion to Suppress those confessions. The record does not reflect that a hearing was ever held on the motion. Accordingly, Defendant argues that the conviction should be vacated and the matter remanded for hearing on the Motion to Suppress, after which a new trial should be granted and conducted without the use of the confessions.

The record reflects that Defendant filed a pro se Motion to Suppress on October 26, 2005, seeking to have his statements to police excluded from use at trial because they were “seized without a warrant and in violation” of his constitutional rights. On November 8, 2005, the trial court issued an order which stated:

IT IS ORDERED that the Defendant’s Counsel consider the attached motion and either file same or similar motion, or if counsel refused to file either, to state the reasons to Defendant in writing within ten (10) days of receipt of this order. If Defendant believes that counsel’s reasons are unsatisfactory, or if counsel has not given reasons, Defendant may petition this court to consider his pro se request, and attach thereto counsel’s reasons, if given.

On December 7, 2005, Defendant sent a letter to the Clerk of Court asserting that defense counsel had not acted on his Motion to Suppress and asked the trial court to consider his motion. In response, the trial court issued an order on December 16, 2005, using the same language as that set forth in the earlier order. We have reviewed the record and can find no ruling or minute entries regarding Defendant’s Motion to Suppress. Further, the statements at issue were admitted at trial without objection by defense counsel.

In State v. Ruiz, 05-1098, 05-1261, 06-30 (La.App. 3 Cir. 5/24/06), 931 So.2d 472, affirmed, 06-1755 (La.4/11/07), 955 So.2d 81, the defendant complained that a pro se motion to suppress filed by him had never been heard. We found that |sthe motion was waived when the defendant proceeded to trial without obtaining a ruling thereon. We wrote: “When a defendant proceeds to trial without obtaining rulings on his pretrial motions, such motions are considered waived. State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, writ denied, 03-109 (La.10/10/03), 855 So.2d 334; State v. Pratt, 32,302 (La.App. 2 Cir. 9/22/99), 748 So.2d 25.” Id. at 482.

Accordingly, we find that Defendant waived the pending Motion to Suppress when he proceeded to trial without a ruling on that motion. Additionally, the evidence at issue was admitted at trial without objection. Therefore, the issue was not preserved for appellate review pursuant to La.Code Crim.P. art. 841. Furthermore, the grounds asserted by Defendant on appeal were not asserted in his Motion to Suppress and a new ground for suppression may not be raised for the first time on appeal. State v. Slaydon, 05-794 (La.App. 3 Cir. 2/1/06), 921 So.2d 1199. Thus, we find that this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction for second degree murder is affirmed.

AFFIRMED.


author: EZELL, Judge.

text:
    Larry Ray VIDRINE v. LA-TEX RUBBER & SPECIALTIES, INC.
    No. WCA 07-157.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Ap-pellee, Larry Ray Vidrine.
    Mark Alfred Ackal, Attorney at Law, Lafayette, LA, for Defendant/Appellant, La-Tex Rubber & Specialties, Inc.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

I,In this workers’ compensation matter, La-Tex Rubber and Specialties Inc., appeals the decision of the workers’ compensation judge finding that Larry Vidrine suffered a work-related injury, awarding him reinstatement of workers’ compensation benefits, and assessing La-Tex with penalties and attorney fees. For the following reasons, we affirm the decision of the workers’ compensation judge in part and reverse in part.

Mr. Vidrine worked for La-Tex as a warehouse parts runner. On July 15, 2004, Mr. Vidrine claims that he and some other employees were unloading a chrome bar weighing several hundred pounds from a freight truck when he felt a burning sensation in his back. He claims that he asked his supervisor for some ibuprofen, thinking he had suffered a minor pull. Mr. Vidrine continued to work for the following three weeks, claiming he thought the injury would just get better. On August 6, 2004, Mr. Vidrine worked his final day as an employee of La-Tex. He began collecting workers’ compensation benefits on August 7, 2004.

The same day Mr. Vidrine ceased his employment with La-Tex, he called into his family physician for a refill of some sleeping medication and complained of back pain. He was referred to Dr. John Raggio, a neurologist, who first saw Mr. Vidrine in October of 2004. Mr. Vidrine presented with low back pain. Dr. Raggio examined Mr. Vidrine and preformed an MRI of his back, finding nothing abnormal. He did note positive Waddell signs, indicating inappropriate description of symptoms. However, he diagnosed Mr. Vidrine with low back pain, recommended physical therapy, and took him off of work. Mr. Vidrine returned to Dr. Raggio on November 2, 2004, claiming no improvement. At that time, Dr. Raggio reexamined Mr. Vidrine. He again found marked affect responses without “hard neurological or physical ^abnormalities to support a diagnosis.” He also again found evidence of inappropriate symptom complaints based on the lack of anatomical abnormalities. He released Mr. Vidrine back to full work. La-Tex stopped paying workers’ compensation benefits at that time.

Mr. Vidrine filed this present action roughly ten days after his discharge by Dr. Raggio. He then saw Dr. Clark Gun-derson, an orthopedist, in December of 2004, presenting with the same back pain. Dr. Gunderson diagnosed Mr. Vidrine as having a lumbar strain, administered a steroid injection, ordered physical therapy and a discogram, and took Mr. Vidrine back off work. La-Tex sought a second medical opinion from Dr. Michael Holland, also an orthopedist. Dr. Holland, like Dr. Raggio, found Mr. Vidrine to have no physical abnormalities considering his age, no neurological impingement, and also found symptom magnification. He found the discogram ordered by Dr. Gunderson to be unnecessary.

Finally, Mr. Vidrine was examined by a court-ordered independent medical examiner, Dr. Frazer Gaar. Dr. Gaar also found no evidence of spinal cord compression or nerve root irritation, and further found multiple signs of non-physiological pain behavior. Dr. Gaar felt that Mr. Vidrine was probably at maximum medical improvement, found a five percent total body disability, and recommended sedentary work.

At trial, the workers’ compensation judge found that Mr. Vidrine had suffered a work-related injury, found that La-Tex owed Mr. Vidrine benefits retroactive to November 2, 2004, ordered a discogram as recommended by Dr. Gunderson, and awarded $2,000 in penalties and $8,000 in attorney fees to Mr. Vidrine. From this decision, La-Tex appeals. Mr. Vidrine answers the appeal, seeking an increase in attorney fees for work done on appeal.

| oLa-Tex asserts three assignments of error on appeal. It claims that the workers’ compensation judge erred in finding that Mr. Vidrine suffered a work-related injury, that the workers’ compensation judge erred in reinstating benefits and ordering the discogram, and that the trial court erred in awarding penalties and attorney fees.

The manifest error or clearly wrong standard governs appellate review in workers’ compensation cases. Smith v. La. Dep’t of Corr., 98-1305 (La.2/28/94), 633 So.2d 129. Under the manifest error standard, the appellate court must determine whether the workers’ compensation judge’s factual findings are reasonable in light of the record reviewed in its entirety. Pugh v. Casino Magic, 37,166 (La.App. 2 Cir. 4/11/03), 843 So.2d 1202.

La-Tex first claims that the trial court erred in finding that Mr. Vidrine proved a work-related injury. We disagree. The Louisiana Supreme Court, in Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992) (citations omitted), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. 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.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.

14La-Tex offered no evidence whatsoever to counter the uncontradicted testimony of Mr. Vidrine that he injured his back unloading the chrome bar, despite the fact that they could have called any of the other employees who helped unload the bar if any discrepancy existed. Furthermore, the workers’ compensation judge obviously found Mr. Vidrine to be a credible witness. Because there is nothing in the record to indicate that this finding was in error, this assignment of error lacks merit.

La-Tex next claims that the workers’ compensation judge erred in reinstating benefits and ordering the disco-gram. The workers’ compensation judge has great discretion to assign whatever weight he deems appropriate to evidence that has been admitted. La. Workers’ Comp. Corp. v. Gray, 34,731 (La.App. 2 Cir. 5/9/01), 786 So.2d 310. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. N. Am. Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

In this matter, a conflict existed between the medical findings of Doctors Raggio, Holland, and Garr and the testimony of Mr. Vidrine and the findings of Dr. Gunderson. The workers’ compensation judge found Mr. Vidrine to be a credible witness and apparently gave more weight to the findings of Dr. Gunderson, who saw Mr. Vidrine on more occasions than the other doctors. Even though Dr. Gunderson was outnumbered in his opinion that Mr. Vidrine could not work and needed a discogram, his opinion does provide a reasonable factual basis for the determinations of the workers’ compensation judge, and we may not reverse that finding, even if this Iscourt may have weighed the evidence differently if it had been sitting as the trier of fact. We can find no manifest error in the workers’ compensation judge’s determination.

La-Tex finally claims that the workers’ compensation judge committed error in the assessment of penalties and attorney fees. We agree. Under La.R.S. 23:1201(F), penalties and attorney fees for a failure to properly pay benefits shall be assessed unless the claim is reasonably controverted or resulted from conduct over which the employer or insurer had no control. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. See Brown v. Texas LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181. In this case, we find that La-Tex did indeed have a valid reason to base the denial of benefits and that the workers’ compensation judge erred in finding that it failed to reasonably controvert Mr. Vidrine’s claims.

Despite Dr. Gunderson’s findings, LaTex was presented with the opinions of Dr. Raggio, Dr. Holland, and Dr. Gaar, all of whom found that Mr. Vidrine suffered no physical abnormality which would cause his pain. All three doctors found evidence of symptom magnification or non-physiological pain behavior. Dr. Raggio had released Mr. Vidrine to work, and Dr. Gaar found only a five percent disability. In light of the findings of these doctors, regardless of the weight given to them by the workers’ compensation judge, it most certainly cannot be said that La-Tex was arbitrary or capricious in denying Mr. Vid-rine’s claim. It is clear from the record before us that La-Tex had a reasonable basis to deny Mr. Vidrine’s claim for workers’ | scompensation benefits. The award of penalties and attorney fees against LaTex is hereby reversed. Accordingly, Mr. Vidrine’s request for additional attorney fees for work done on appeal is likewise denied.

For the above reasons, the decision of the workers’ compensation judge is affirmed in part and reversed in part. Costs of this appeal are to be split between the parties.

AFFIRMED IN PART AND REVERSED IN PART.


text:
    Leisa Ann Crookshank HENRY v. Joseph Rodney HENRY.
    No. 07-284.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      John Edward FitzGerald, Lake Charles, LA, for Plaintiff/Appellee, Leisa Ann Crookshank Henry.
    Richard Dean Michels, Child Support Enforcement Agency, Lake Charles, LA, for Plaintiff/Appellee, Leisa Ann Crook-shank Henry.
    Alvis J. Roche, Lake Charles, LA, for Defendant/Appellant, Joseph Rodney Henry.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

| ,This case involves the modification of a child support award in which the trial court declined to reduce the award paid by the defendant-appellant, Joseph Rodney Henry, to his ex-wife, Leisa Ann C. Henry, the plaintiff-appellee. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case has an extensive litigious history beginning in 1997. Leisa filed for divorce in December 1997, which was granted in July 1999. A November 2001 judgment granted Leisa child support of the two minor children, Aléis and Joseph (Kade), in the monthly amount of $1,697. The judgment of child support was rendered in November 2001, and was an in globo award for both children. In March 2002, Joseph filed a Rule for Reduction of Child Support urging that his circumstances had changed in that his income was substantially less. Pursuant to local court rules, a hearing officer was thereafter appointed to determine the child support award. The hearing officer recommended that the child support award be reduced from $1,697 per month to $1,091 per month. In May 2003, the trial court ordered that the interim child support be reduced to $1,091 until a formal hearing could be held.

In July 2005, Joseph filed a Rule to Show Cause urging that Leisa should not be allowed to continue in the matter as a pauper, and that as of 2003, Aléis had reached majority status, and he, therefore, should be allowed to terminate child support of Aléis and was due a refund of child support once Aléis reached the age of ^majority. He further alleged that he was entitled to a decrease in child support as to Kade due to a reduction in his income and an increase in Leisa’s income.

Leisa appealed the hearing officer’s recommendation which was heard before the trial court. Various other pleadings and motions were filed in the interim, and the matter was ultimately set for trial in March 2006.

Following the March 2006 trial, the trial court dismissed Joseph’s Rule for Reduction of Child Support and reinstated the original child support award in the Judgment of November 21, 2001. It further dismissed Joseph’s Rule for Contempt filed in July 2002. The trial court made various other findings not at issue herein. Written reasons for judgment were filed into the record on October 4, 2006, and the judgment was rendered on November 28, 2006. Despite this judgment, Joseph’s counsel, in a letter dated July 10, 2006 to the trial court, requested that a hearing be set pertaining to the “Answer to Pending Rules Filed by Leisa Ann C. Henry and Rule to Show Cause that was filed on behalf of my client on July 20, 2005.”

In September 2006, Joseph filed a motion and order to terminate and modify child support, medical insurance coverage, and tax dependency. He again urged that the garnishment of his wages on behalf of his major child should be discontinued and that he was due a refund of $20,620.08 for overpayment.

Joseph now appeals and assigns as error:

1. The trial court’s dismissal of the “interim order” of the hearing officer recommending that the child support award be reduced from $1,697 per month to $1,091 per month.
2. The trial court’s dismissal of his rule to show cause filed in July 2005, which denied him his right to try the case on the merits.

^DISCUSSION

The trial court has great discretion in determining.a child support award, and its findings of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error or a clear abuse of discretion. McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694, writ denied, 06-0435 (La.4/28/06), 927 So.2d 295; Murphy v. Murphy, 04-1332 (La.App. 3 Cir. 2/2/05), 894 So.2d 542, writ denied, 05-0983 (La.11/28/05), 916 So.2d 144.

RULE FOR REDUCTION OF CHILD SUPPORT

In his first assignment of error, Joseph urges that the trial court erred in dismissing the interim order in which the hearing officer reduced the in globo child support award from $1,697 to $1,091 and in reinstating the November 21, 2001 award. Louisiana Civil Code Article 142 governs the modification of a child support award and states: “An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become necessary.”

The trial court stated in its lengthy written reasons that subpoena duces te-cums were issued by Leisa’s counsel on at least two different occasions requesting that Joseph produce various financial documents and information and that Joseph failed to produce the information.

The trial court stated: “Requests for Joseph’s financial information have been ongoing for years. He has never complied, except to provide a few W-2’s from his employment.” Further, the trial court found that “Joseph admitted he had the | information and just failed to produce it.” The trial court’s written reasons further state:

Due to Joseph’s refusal to produce any income and other financial information, the Court can not [sic] determine whether Joseph is entitled to a reduction in his child support obligation. The Court also notes that during these pending proceedings, the parties’ oldest child reached the age of majority on September 15, 2003. However, due to Joseph’s refusal to produce any requested documents on more than one occasion, the Court is not able to recalculate the child support. For the foregoing reasons, the Court will dismiss Joseph’s “Rule for Reduction in Child Support,” at his cost due to his continuous failure to produce the financial information requested in order that a determination could be made as to whether a reduction in child support is warranted. Thus, Joseph’s child support obligation and all other related orders, shall remain as set forth in the last judgment filed on November 21, 2001.

Our review of the testimony elicited the following facts: Joseph has not filed income tax returns since 2001; his attorney had a box of financial information in his car, but he was not sure what was in it; Joseph claims his financial papers were destroyed in Hurricane Rita; and Leisa’s counsel requested extensive financial documents on multiple occasions which Joseph has never produced and for which he has been held in contempt. It was clear from Joseph’s own testimony that he had sold multiple rental properties and purchased a home. It was further clear that he failed to produce the requested documents long before Hurricane Rita hit in the late summer of 2005.

Based on Joseph’s refusal to produce the evidence requested, we find no error in the trial court’s ruling. Joseph has had multiple opportunities to produce the evidence showing that his circumstances have materially changed to his detriment, yet he has failed to do so.

IsJoseph further urges that we take judicial notice of the fact that Aléis became a major on September 15, 2003. Louisiana Revised Statute 9:315.22 governs the termination of child support upon majority and states:

A. When there is a child support award in a specific amount per child, the award for each child shall terminate automatically without any action by the obligor upon each child’s attaining the age of majority, or upon emancipation relieving the child of the disabilities attached to minority.
B. When there is a child support award in globo for two or more children, the award shall terminate automatically and without any action by the obligor when the youngest child for whose benefit the award was made attains the age of majority or is emancipated relieving the child of the disabilities attached to minority.

The November 2001 award was an in globo award, thus the award does not terminate until the youngest child reaches majority. See Chambers v. Saucier, 06-1290 (La.App. 3 Cir. 2/7/07), 949 So.2d 662. Although a reduction in the in globo award may have been possible, Joseph failed to produce the necessary evidence that would have allowed the trial court to determine the amount of reduction warranted. Accordingly, we find no error in the trial court’s ruling dismissing Joseph’s Rule for Reduction of Child Support because of its inability to modify a child support award or reduce the in globo award. We hold this is especially true when the trial court lacks the information necessary to make that determination due to its finding that Joseph refused to produce the requested documentation. This assignment of error is without merit.

JULY 2005 RULE TO SHOW CAUSE

Joseph argues that the trial court erred in dismissing his July 2005 Rule to Show Cause which denied him the right to try his case on the merits. The trial court’s written reasons pertaining to this issue states:

IfiOn July 20, 2005 Joseph filed an “Answer to Pending Rules filed by Leisa Ann C. Henry and Rule to Show Cause,” seeking numerous items of relief. Specifically, Joseph sought the following:
1) Leisa should be prevented from proceeding in pauper status;
2) The Income Assignment Order be terminated or reduced to $848.50 per month per child, since one child had reached the age of majority;
3) He be awarded a judgment in the amount of $19,515.50 for overpayment of child support since the one child became the age of majority on September 15, 2003;
4) A decrease in the amount of child support he paid for Kade, due to change in income for Leisa and him;
5) The percentages of unreimbursed medical expenses be reduced;
6) Leisa be ordered to apply for and maintain medical insurance on the child;
7) He should be allowed to claim the minor child, Kade, on his state and federal income tax returns every year;
8) His visitation with Kade should be modified to allow him to take the child out of Louisiana during his visitations and be allowed to pick up Kade on Friday after school and return him to school the following Monday mornings on his alternating weekend visitations with Kade;
9) A new Income Assignment Order be issued by the Court regarding the proper amount of child support for the minor child, Kade;
10) He should be allowed to have the first right of refusal when Leisa can not [sic] exercise her visitation rights with the child; and
11) Leisa casts [sic] with all costs of the proceedings.
The Court will note at the outset that Joseph’s request for relief in numbers 2-7 and 9, all relate to the money issues raised in Joseph’s rule to reduce his child support obligation. Since Joseph failed to produce the financial information requested and necessary to address these issues, the Court is dismissing these requests.
As for Joseph’s request that Leisa be prevented from proceeding in pauper status, the Court finds that Joseph presented absolutely no evidence to support this claim. Thus, the court will dismiss this request.
|7In numbers 8 and 10, Joseph seeks to modify the Joint Custody Plan. After hearing all of the evidence and testimony, the Court has set forth previously the modifications to the Joint Custody Plan which it deems are in the best interest of Kade. Thus, Joseph’s answer is dismissed.

Again, based on the foregoing reasons and our careful review of the record, we find the trial court did not err in dismissing Joseph’s Rule to Show Cause for the reasons it enunciated. It is clear that the trial court addressed the issues Joseph raised in his rule to show cause, filed nine months prior to the hearing on the merits, in which testimony and evidence was presented on these issues. Accordingly, this assignment of error is without merit.

CONCLUSION

The judgment of the trial court reinstating the November 2001 judgment awarding the plaintiff-appellee, Lesia C. Henry, $1,697 in child support per month is affirmed. All costs of this appeal are assessed against the defendant-appellant, James Rodney Henry.

AFFIRMED.

      . Aléis was bom 9/15/85, and Kade was born 2/12/91.