text:
    Salena ACCARDO v. LOUISIANA HEALTH SERVICES & INDEMNITY COMPANY.
    No. 2005 CW 2377.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Earl A. Mareelle, III, Baton Rouge, for Plaintiff — Respondent Salena Accardo.
    M. Lenore Feeney, Edwin W. Fleshman, Baton Rouge, for Defendant — Applicant Louisiana Health Service & Indemnity Company.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   PER CURIAM.

^Louisiana Health Service & Indemnity Company seeks review of the trial court’s judgment denying its motion for summary judgment on Salena Accardo’s claim of retaliation under La. R.S. 23:967 (Louisiana Whistleblower Statute).

Plaintiff, Salena Accardo, filed suit on December 6, 2002, against Louisiana Health Service & Indemnity Company (“Blue Cross”) seeking damages arising from her employment and involuntary discharge from Blue Cross. Ms. Accardo sought damages under several theories of recovery including race, national origin and disability-based discrimination in violation of Louisiana Employment Discrimination Law (“LEDL”), La. R.S. 23:301, et seq., intentional infliction of emotional distress and a retaliation claim under the Louisiana Whistleblower Statute, La. R.S. 23:967.

Blue Cross filed for summary judgment seeking dismissal of all of Ms. Accardo’s claims. The trial court granted the motion on all claims except for the retaliation claim under the Louisiana Whistleblower Statute, La. R.S. 23:967. In open court, the trial court stated that it denied summary judgment on the Louisiana Whistle-blower claim because,

She in good faith believed that there was a Title VII violation of the law.... She reported that. The facts are sufficient enough for to you (sic) survive summary judgment on this as to whether or not there were reprisals from it ....

The issue presented by this writ is whether the trial court correctly interpreted La. R.S. 23:967 as providing protection to a plaintiff who reports what she believes in good faith is a violation of law. Louisiana Revised Statute 23:967 provides the following, in pertinent part:

| sEmployee protection from reprisal; prohibited practices; remedies
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
D. If suit or complaint is brought in bad faith or if it should be determined by a court that the employer’s act or practice was not in violation of the law, the employer may be entitled to reasonable attorney fees and court costs' from the employee.

The Whistleblower Statute provides protection to employees against reprisal from employers for reporting or refusing to participate in illegal work practices. Hale v. Touro Infirmary, 2004-0003 (La.App. 4th Cir.11/3/04), 886 So.2d 1210, 1214, writ denied, 2005-0103 (La.3/24/05), 896 So.2d 1036. Blue Cross argues that it is clear from the wording of the statute that Ms. Accardo must establish a violation of state law in order to prevail on the merits of the case. The trial court, however, interpreted the “good faith” language in the statute to mean that Ms. Accardo only has to establish that she had a good faith or reasonable belief that Blue Cross violated the LEDL in order to be afforded protection under the Louisiana Whistleblower Statute.

The Louisiana Supreme Court has not addressed whether a plaintiff must prove an actual violation of state law to establish a Louisiana Whistleblower claim. Likewise, this court has not directly addressed this issue, although, in dictum, this court has stated that the statute prohibits an employer from taking reprisals “against an employee for reporting, or refusing to participate in, a violation of |4state law.” Goldsby v. State, Dept. of Corrections, 2003-0343 (La.App. 1st Cir.11/7/03), 861 So.2d 236, 238, writs denied, 2004-0328, 2004-0330 (La.4/8/04), 870 So.2d 271 (emphasis added). Thus, this issue is before this court, res nova.

The Louisiana Fourth and Fifth Circuit Courts of Appeal have addressed this issue and determined that a whistleblower plaintiff under La. R.S. 23:967 must prove an actual violation of state law. In Puig v. Greater New Orleans Expressway Comm’n, 2000-924 (La.App. 5th Cir.10/31/00), 772 So.2d 842, writ denied, 2000-3531 (La.3/9/01), 786 So.2d 731, the Fifth Circuit compared two different Louisiana whistleblower statutes and concluded “R.S. 23:967 is clearly distinct [from the other whistleblower statute, La. R.S. 42:1169], in that it specifies that the employer must have committed a ‘violation of state law1 for an employee to be protected from reprisal,” while La. R.S. 42:1169 does not require a violation of state law, “merely an ‘alleged act of impropriety’ under the Code of Government Ethics for the public employee to be protected from discipline or reprisal.” Puig, 772 So.2d at 845. While the Fifth Circuit did not provide a detailed analysis for its ruling, it did note that the triggering mechanism for La. R.S. 28:967 is “conduct which does violate state law.” Id. at 845 (emphasis added).

In a subsequent Fifth Circuit Louisiana Whistleblower case, that court cited Puig stating, “The Louisiana Whistleblower Statute targets serious employer conduct that violates the law.” Fondren v. Greater New Orleans Expressway Comm’n, 2003-1383 (La.App. 5th Cir.4/27/04), 871 So.2d 688, 691.

Like the Fifth Circuit, the Fourth Circuit found that “the language of the statute leads us to the conclusion that a violation of law must be established by a plaintiff under the Whistleblower Statute in order to prevail on the merits of the case.” Hale, 886 So.2d at 1215. The Hale court went further to hold, “We further agree that the violation of law in question must be that of a state statute.” Id. at | ¡¡1216 (emphasis added). In arriving at its decision, the Fourth Circuit analyzed the text of the statute and concluded that the “very specific language referring to a ‘violation of law1 ... in several places throughout the statute,” the use of the disjunctive “or” instead of the conjunctive “and” in the damages clause, and the disclosure requirement that specifically references a disclosure or threatened disclosure of a violation of state law manifest a desire by the Louisiana legislature to only provide a remedy for actual violation of state law. Id. at 1215,1216.

As stated above, in the instant matter, the trial court denied summary judgment on Ms. Accardo’s retaliation claim because of its interpretation of the term “who in good faith” in Section A of the statute. To accept the trial court’s interpretation requires a finding by this court that the legislative intent of the statute was to provide protection to an employee who possesses a good faith or reasonable belief that the employer violated a law. A different interpretation would be that the “good faith” provision of Section A imposes a general duty on an employee to act in good faith as a separate element of the retaliation claim that is different from the requirement that the employee prove an actual employer violation of state law.

In deciding the issue at bar, we turn to the principles of statutory construction, beginning with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of a law involves, primarily, the search for the legislative intent. La. C.C. arts. 1, 2. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of legislative intent. La. C.C. art. 9; La. R.S. 1:4, Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 2004-1227 (La.App. 1st Cir.6/10/05), 916 So.2d 252, 258. The words of a law must be given their generally prevailing meaning. La. C.C. art. 11. When the words of a law are | ^ambiguous, them meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12. It is a well-recognized and long-established rule of statutory construction that statutory provisions should be construed along with the remainder of the statute. Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181. Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Id. at 194. Rendering the whole, or a part, of a law meaningless is the last option available to a court when it interprets a law. Ascension School Employees Credit Union, 916 So.2d at 258.

The Louisiana Whistleblower Statute is divided into four sections, the first of which is at issue in the instant writ. In the first section of the statute, it is unclear if the term “good faith” is a separate prerequisite element of the retaliation claim or if it applies- to the protected employee actions that are subsequently described in this first section. To answer this, we must first examine the term “good faith” in the context in which it occurs, along with the other provisions of the statute. La. C.C. art. 12.

“Good faith” appears in the statute’s Section A that sets forth the essential elements of the retaliation claim. The first part of Section A describes the prerequisite conditions that must occur before an employee takes one of three actions and reads, “An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law.” La. R.S. 23:967(A). The remaining part of Section A sets forth three different employee actions that are protected under the statute (referred to as the “disclosure activities”). We note that each of the Louisiana Whistleblower Statute’s three specific disclosure activities refers to the “violation of law” in very specific terms and does not include any reference to the employee’s good faith or reasonable 17belief that the workplace act or practice is a violation of law.

Had the legislature intended that an employee’s disclosure activity be protected under this statute if the employee has a good faith belief that the employer’s conduct violated law, it follows that the legislature could have included such a broad protection provision for “good faith” in a definition, or could have referenced the employee’s good faith or reasonable belief in the three disclosure activities in Section A. We find that the specific reference to “violation of law” in several places in section 23:967(A), the specific inclusion of violation of a state law in the disclosure activities, and the lack of any language in the statute referencing the employee possessing a good faith or reasonable belief that an employer violation of law occurred, supports- a conclusion that the term “good faith” is a separate prerequisite condition that, along with the prerequisite condition of advising the employer of the actual violation of state law, must be fulfilled before the employee undertakes one of the three protected disclosure activities.

Moreover, we agree with our colleagues in the Fourth Circuit that the employee penalty section of La. R.S. 23:967 also supports the conclusion that the complained of employer conduct must be an actual violation of law. La. R.S. 23:967(D) grants the court discretion to award an employer “reasonable attorney fees and court costs” under two alternative conditions. The first condition that could trigger the imposition of penalties on the employee is “If the suit or complaint is brought in bad faith.” The second and alternative condition that potentially triggers employee penalties starts with the disjunctive “or” and reads, “or if it should be determined by a court that the employer’s act or practice was not in violation of the law.” La. R.S. 23:967(D)(emphasis added); see also La. R.S. |sl:9. Therefore, a court could impose penalties on an employee acting in good faith who fails to show a violation of law. If the Legislature intended for the statute to protect an employee who possesses a good faith or reasonable belief that the employer’s conduct was a violation of law, it would not follow that the legislature would impose the possibility of the penalty set out after the “or” in Section D. Moreover, to interpret Section A as affording protection to one who had the “good faith belief that the employer’s conduct violated law” would render the last provision in Section D meaningless.

Therefore, our analysis of the language of the statute leads us to the conclusion that a violation of state law must be established by the plaintiff under the Whistle-blower Statute in order to prevail on the merits of the case. Our interpretation is further supported by a review of the legislative history of the provisions in section A of the statute. The original bill introduced in the Louisiana Senate provided broader protection to employees such as the protection afforded under the trial court’s interpretation of the statute, since the original bill only required an employee to disclose or threaten to disclose an employer action “that the employee reasonably believes” is a violation of law. However, the Senate Committee reviewing the bill amended it and eliminated the “reasonable belief’ language in Section A(l) in the engrossed version of the bill requiring an employee |flto disclose or threaten to disclose “a violation of law.” Furthermore, our conclusion that the statute requires an actual violation of state law is also supported by the legislative history showing the House of Representatives’ amendments to the bill. The House adopted several amendments, including the requirement that the employer be advised of the “violation of law” in Section A, that the violation be one of “state” law in Section A(l), that “potential” be deleted in regard to a “violation of law” in Section A(2) and that the employee’s reasonable belief be deleted in Section A(3). All these amendments and the House’s amendment adding Section D to the law were included in the enrolled version that was signed into law.

Therefore, we note that the inclusion of the requirement of good faith in La. R.S. 23:967 creates an appearance of ambiguity as to whether an actual violation of law must be established. However, based on the legislative history of the statute, which deleted the phrase “reasonably believes is in violation of law” and substituted the phrase “that is in violation of state law”, it is appears that the legislature intended the requirement of a violation of state law. Although we have grave concerns regarding the chilling effect that this requirement will have on the reporting by an employee of illegal acts, we are compelled to conclude that the Louisiana Whistleblower Statute, La. R.S. 23:967, requires an employee to prove an actual violation of state law in order to prevail on the merits of the case.

For the foregoing reasons, we find that the trial court erred in denying the defendant’s motion for summary judgment on the plaintiffs claim of retaliation Imunder the Louisiana Whistleblower Statute, La. R.S. 23:967. Defendant, Louisiana Health Service & Indemnity Company, met its burden and showed an absence of genuine issues of material facts. The plaintiff, Sa-lena Accardo, has failed to produce evidence that she will be able to meet her burden of proof at a trial on the merits, ie., that her employer’s workplace act or practice actually violated a state law. Therefore, defendant’s writ is granted, the judgment of the trial court is reversed, and defendant’s, Louisiana Health Service & Indemnity Company, motion for summary judgment against the plaintiff, Salena Ac-cardo, is granted, dismissing her claim under La. R.S. 23:967 with prejudice.

WRIT GRANTED.

      . The petition refers to Louisiana Health Services & Indemnity Company; however, the defendant indicates that its correct name is singular rather than plural.

      . Louisiana Revised Statutes 1:9 provides, "Unless it is otherwise clearly indicated by the context, whenever the term 'or' is used in the Revised Statutes, it is used in the disjunctive and does not mean 'and/or'.”

      . The original Senate Bill No. 1098 introduced by Senator Robichaux read:
      A. An employer shall not act in a retaliatory manner or take reprisal against an employee who in good faith:
      (1) Discloses or threatens to disclose an activity, policy or practice that the employee reasonably believes is in violation of law. S.B. No. 1098, Reg. Sess. (La.l997)(origi-nal) (emphasis added).

      . The Amendment proposed by the Senate read:
      1. Prohibits retaliatory actions by an employer against an employee who in good faith discloses or threatens to disclose an activity, policy, or practice that is in violation of law. Summary of Amendments Adopted by Senate, S.B. No. 1098, Reg. Sess. (La. 1997) (engrossed) (emphasis added).

      . See Amendments No. 3, No. 5, No. 6, No. 8 and No. 13, S.B. No. 1098, Reg. Sess. (La. 1997)(H.R. amendments to reengrossed bill).


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    EAST FELICIANA PARISH v. RICHLAND PLANTATION, INC.
    No. 2005 CA 1626.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.
    Charles E. Griffin, II, St. Francisville, Counsel for Defendant/Appellant Richland Plantation, Inc.
    Michael L. Hughes, St. Francisville, Counsel for Plaintiff/Appellee East Felicia-na Parish.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

Ijn this nullity action, appellant, Rich-land Plantation, Inc. (Richland Plantation), appeals the trial court’s March 17, 2005 and May 25, 2005 judgments in favor of appellee, East Feliciana Parish. For the reasons that follow, we reverse the judgment of the trial court.

On September 7, 2001, East Feliciana Parish filed a petition for expropriation, seeking to expropriate certain property owned by Richland Plantation in order to realign/replace the Ellis Road Bridge over Richland Creek. On March 27, 2002, East Feliciana Parish filed a supplemental petition for expropriation, requesting the matter be set for trial not less than sixty days from when the petition was filed, and that the court issue notice to Richland Plantation in accordance with La. R.S. 19:5 C. On April 8, 2002, the trial court signed an order and issued a notice setting the matter for “pre” trial, as indicated by a handwritten notation, on May 13, 2002.

On May 13, 2002, counsel for Richland was not present in court. According to the court minutes, East Feliciana Parish moved for preliminary default, whereupon the trial court ordered a preliminary judgment of default to be entered as to Rich-land Plantation and signed an order to that effect on May 30, 2002. Following a hearing to confirm the default, the trial court rendered judgment in favor of East Felici-ana Parish. Richland Plantation was not present at this hearing and did not appeal from this judgment.

Thereafter, on February 14, 2005, Rich-land Plantation filed a petition to annul the September 12, 2002 judgment, alleging that the judgment is null and void because Richland Plantation was not served with process as required by law in that East Feliciana Parish failed to give notice to Richland Plantation of the trial as required by La. R.S. 19:5 C. Following a hearing, the trial court signed a judgment on March 17, 2005, rendering judgment in favor of East Feliciana Parish and Lagainst Richland Plantation rejecting its claims for nullity of the judgments previously rendered. Richland Plantation thereafter filed a motion for new trial, which was denied on May 25, 2005. Rich-land Plantation now appeals from these judgments.

Louisiana Revised Statute 19:5 provides:

A. Upon the institution of a suit for expropriation, the trial court shall issue an order fixing the time of the trial of the suit which shall not be less than sixty days from the filing of the suit.
B. The clerk of court shall issue to the defendant, at least sixty days before the time fixed for the trial, a notice signed by the clerk in his official capacity and under the seal of his office, accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof, and a certified copy of the order for trial.
C. The notice shall contain the following:
(1) The date of issuance.
(2) The title of the cause.
(3) The name of the person to whom it is addressed.
(4) The title and location of the court issuing it.
(5) The date fixed for trial.
(6) A statement that the person cited must file an answer within the fifteen day period after service of citation and that failure to file an answer within the fifteen day period constitutes a waiver by the defendant of all defenses to the suit except claims for money as compensation for the property sought to be expropriated and claims for money as damages to other property. [Emphasis added.]

In its nullity action, and on appeal, Rich-land Plantation asserts that though a notice attempting to comport with La. R.S. 19:5 was sent, that notice was not in fact a notice for trial, but was a pre-trial conference notification, and therefore, the time delay within which to file an answer as outlined in La. R.S. 19:5 C(6) and 19:6 did not begin to run and the default judgment rendered against it is null. After reviewing the notice contained in the record, we find that the trial court erred in determining that the notice requirements of La. R.S. 19:5 were substantially complied with. First, on the order signed by the trial court fixing the date for trial, “on the merits” is scratched out and a handwritten notation stating “pre-trial conference” is inserted. Additionally, the notice titled “La. R.S. 19:5 Notice” has 14“pre” inserted above “trial.” Finally, the date of the alleged notice for trial is April 8, 2002, and the date set for “pre-”trial is May 13, 2002, which clearly is not at least sixty days as required by La. R.S. 19:5 B. Therefore, from our review of the record, we find that although East Feliciana Parish may have submitted to the court for signature a notice that substantially complied with the requirements of La. R.S. 19:5, the court clearly changed the purpose of that notice from notification of trial to notification of a pre-trial conference, as indicated by the handwritten notations and the insufficient time delay.

Because this notice does not comply with La. R.S. 19:5, and judgment rendered against a defendant who has not been served with citation as required by law is an absolute nullity, we find the trial court erred in rejecting Richland Plantation’s petition for nullity. See State ex rel. Dept. of Social Services v. Langlois, 03-0849, p. 2 (La.App. 1st Cir.3/3/04), 874 So.2d 216, 217. Accordingly, we reverse the trial court’s judgment. All costs of this appeal are to be borne by appellee, East Feliciana Parish.

REVERSED.


text:
    STATE of Louisiana v. Wesley DICK.
    No. 2006 KW 1381.
    Court of Appeal of Louisiana, First Circuit.
    July 20, 2006.
    Rehearing Denied Aug. 10, 2006.

      Before: PARRO, PETTIGREW and GAIDRY, JJ.
   WRIT GRANTED. Defendant was found guilty of distribution of heroin for an offense committed in May 1999. The trial court sentenced him to life imprisonment at hard labor without benefit of probation or suspension of sentence. See La. R.S. 40:966(B)(1) (prior to amendment by 2001 La. Acts No. 403, § 4). This Court affirmed the conviction and sentence. State v. Dick, 2001-0837 (La.App. 1st Cir.2/15/02), 812 So.2d 152 (unpublished), writ denied, 2002-0795 (La.11/8/02), 828 So.2d 1109. In response to defendant’s motions to correct illegal sentence, the trial court vacated the sentence and sentenced defendant to ten years in the Department of Public Safety and Corrections. The state filed a motion to correct illegal sentence, which the trial court denied.

The general rule is that the penalty in effect at the time of the commission of the offense is the applicable provision. State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518, 520. La. R.S. 15:308, as enacted by Act 45 of 2006, did not provide authority for the trial court to vacate defendant’s sentence. As originally proposed in Senate Bill 126 of 2006, the provision authorized an eligible person to file a motion for reconsideration, amendment, or modification of sentence and authorized the sentencing court to grant such a motion and to impose a more lenient sentence pursuant to Act 403 of 2001. However, those provisions were removed in committee amendments, and the final version of Act 45 authorizes eligible persons to apply to the Louisiana Risk Review Panel. See La. R.S. 15:308 & 15:574.22.

Accordingly, the trial court’s ruling granting defendant’s motions to correct illegal sentence and denying the state’s motion to correct illegal sentence are reversed, the ten-year sentence imposed on July 10, 2006 is vacated, the original sentence of life imprisonment at hard labor without benefit of probation or suspension of sentence is reinstated, and this matter is remanded to the trial court for execution of the sentence.


author: PARRO, J.

text:
    Richard SATTERTHWAITE and Cora Lee Roy (Mrs. Joseph Roy) v. Christel BYAIS and Merit Insurance Company.
    No. 2005 CA 0010.
    Court of Appeal of Louisiana, First Circuit.
    July 26, 2006.

      John B. Lambremont, Sr., Baton Rouge, for Plaintiff-Appellant Cora Lee Roy.
    Carey J. Guglielmo, Stephen D. Cronin, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, for Defendant-Appel-lee American Fire & Indemnity Co.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

pThis is the appeal by a plaintiff of an order dismissing her claims against her uninsured/underinsured motorist insurer on the ground of abandonment. For the following reasons, we affirm.

Factual and Procedural Background

Richard Satterthwaite (Satterthwaite) was involved in an automobile accident on September 28, 1992, when the vehicle that he was driving was hit by a vehicle driven by Christel Byais (Byais). Cora Lee Roy (Roy), Satterthwaite’s mother, owned the vehicle that he was driving and was a passenger in the vehicle when the accident occurred. On March 2, 1993, Roy and Satterthwaite filed suit against Byais and her liability insurer and against Roy’s un-derinsured/uninsured motorist (UM) insurer, American Fire Indemnity Company (American). The liability insurer filed an answer on March 22, 1993, which was supplemented on May 19, 1993. This supplementation included a third-party demand against Satterthwaite for indemnity and/or contribution. On June 8, 1993, Satter-thwaite filed an answer to the liability insurer’s third-party demand against him. Aside from a motion to substitute counsel by Roy and then by Satterthwaite, nothing more was filed in this suit until Roy filed a motion on March 29, 2000, to substitute LIGA for the liability insurer, due to the liability insurer’s liquidation.

On March 24, 2004, American filed an ex parte motion and order of abandonment, which was granted, resulting in the dismissal of Roy’s claims against it. Although Roy’s subsequent motion to set aside this order was granted, the dismissal of her claims was reinstated in connection with a motion for reconsideration filed by American. Roy appealed.

Discussion

On appeal, Roy conceded that-her filing of a motion to substitute counsel did not constitute a step in the prosecution of her action. With no step having been taken in |sthe suit by Satterthwaite or Roy within five years after June 8, 1993, we apply the version of LSA-C.C.P. art. 561 in effect during the time in question. The applicable provisions of Article 561(A) stated:

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years ....
This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment. However, the trial court may direct that a contradictory hearing be held prior to dismissal.

Abandonment under Article 561 is self-executing; it occurs automatically on the passing of five years without a step being taken by either party, and it is effective without a court order. Jones v. Phelps, 95-0607 (La.App. 1st Cir.11/9/95), 665 So.2d 30, 34, writ denied, 95-2907 (La.2/2/96), 666 So.2d 1104. Abandonment functions to relieve courts and parties of lingering claims. When the parties take no steps in the prosecution or defense of their claims during an extended period of time, as designated by the legislature, the logical inference is that the party intends to abandon the claim, and the law gives effect to this inference. Clark v. State Fatm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, 786-87.

Although she conceded that no steps were taken in the litigation within a five-year time period, Roy urged that American waived its right to plead abandonment by taking actions inconsistent with the intent to treat the case as abandoned. Roy submitted that ongoing communications should be considered as evidence of an intent not to treat the case as abandoned. Such communications in this case included an informal request for medical information, a settlement demand, and reports of progress being made in her efforts to obtain Medicare reimbursement information. Roy also pointed out that American settled the claims of her co-plaintiff and sought to have Satterthwaite’s counsel sign a motion and order of dismissal with respect to Satterthwaite’s claims against American.

|4A plaintiffs post-abandonment actions cannot serve to revive an abandoned action. Nor can inaction on the part of a defendant after accrual of the five-year period be construed as a waiver of abandonment by the defendant. However, a defendant’s post-abandonment actions can serve to waive his right to plead abandonment. See Clark, 785 So.2d at 789. In Clark, the Louisiana Supreme Court stated:

That a defendant’s conduct occurred before the abandonment period elapsed as opposed to after is thus a distinction without a difference.
The timing of a defendant’s conduct cannot logically be construed as altering its character insofar as whether it is sufficient to constitute a waiver of the right to plead abandonment. Logic dictates that the same standard for determining if action of the defendant results in waiver and thereby an interruption of abandonment should apply regardless of whether the conduct occurred before or after the abandonment period elapsed.

Clark, 785 So.2d at 789.

This waiver exception to Article 561, however, has been applied only where, after the abandonment period has accrued, a defendant has taken steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute. Thus, the following post-abandonment actions by a defendant have been found to constitute a waiver: submission of a case for decision, participation in a status conference and signing a case management schedule, and the filing of an answer and reconventional demand. Porter v. Progressive Specialty Ins. Co., 99-2542 (La. App. 1st Cir.11/8/00), 771 So.2d 293, 295. Furthermore, an insurer’s unconditional tender to a plaintiff to satisfy the statutory requirement of LSA-R.S. 22:658(A)(1), even though of an informal nature, has been held to constitute a waiver. Clark, 785 So.2d at 789 n. 15 and at|s791. Other examples of post-abandonment conduct by defendants that have been held sufficient to waive abandonment include seeking security for costs and provoking or responding to discovery. Clark, 785 So.2d at 789 n. 15.

By comparison, a defendant’s participation in post-abandonment settlement negotiations was found to reflect the defendant’s intent to achieve a non-judicial resolution of the dispute, which, by definition, did not constitute a waiver of the right to plead abandonment. Porter, 771 So.2d at 295. This ruling is in conformity with the jurisprudence that has held that extrajudicial efforts, such as informal settlement negotiations between the parties, are insufficient to constitute a step for purposes of interrupting or waiving abandonment. Clark, 785 So.2d at 790; Succession of Wright, 37,670 (La.App. 2nd Cir.9/24/03), 855 So.2d 926, 929, writ denied, 03-2969 (La.1/16/04), 864 So.2d 632.

In support of her motion to set aside the dismissal of her claims in this case, Roy attached several exhibits to her memorandum and alleged that these documents demonstrated actions by American sufficient to constitute a waiver of its right to plead abandonment. These attachments consisted of numerous notations by Roy’s counsel relative to telephone conversations with American’s representative, several letters from Roy’s counsel to American, and approximately five letters from American’s representative to Roy’s counsel. These communications, dating from October 8, 1997, to January 28, 2004, pertained to: (1) a request by American to obtain copies of the original pleadings, interrogatories, specials, narrative reports, and confirmation of the liability insurer’s liquidation; (2) the forwarding of some of this information by Roy’s ^counsel to American; (3) a demand by Roy’s counsel for settlement in the amount of the policy limits; and (4) the granting by Roy’s counsel of an extension of time for American to file responsive pleadings.

At the hearing on the motion to set aside the judgment of dismissal for abandonment, Roy introduced two exhibits pertaining to the claims of her co-plaintiff, Satterthwaite, against American. The first was a letter dated August 4, 1999, from American to Satterthwaite’s counsel, forwarding a settlement draft to Satter-thwaite in the amount of $15,000 and demanding the execution of settlement documents. The other was a letter dated February 25, 2004, from American’s counsel, seeking to have Satterthwaite’s counsel execute documentation necessary to have Satterthwaite’s claims against American dismissed, since those claims had been settled.

There is no indication in the transcript, minutes, or judgment that any of the attachments to Roy’s memorandum in support of her motion to set aside the judgment of dismissal were offered into evidence at the hearing on that motion. A court cannot consider exhibits filed into the record as attachments to a memorandum, because such attachments are not evidence. See Touzet v. Mobley, 612 So.2d 890, 893 (La.App. 5th Cir.), writ denied, 614 So.2d 1263 (La.1993). Since such attachments are not evidence, they are not properly part of the record on appeal. McKnight v. D & W Health Serv., Inc., 02-2552 (La.App. 1st Cir.11/7/03), 873 So.2d 18, 24 n. 3; see LSA-C.C.P. art. 2164. Thus, our review is limited to the two exhibits that were properly offered and introduced at the hearing, both of which deal exclusively with settlement of Satterthwaite’s claims against American.

17This suit was filed by Roy and Satterthwaite, with each asserting separate claims for compensatory damages against American. Initially, Roy and Satterthwaite were represented by the same attorney, but Satterthwaite eventually engaged separate counsel. Satter-thwaite’s counsel apparently negotiated a settlement with American on his behalf, as evidenced by the 1999 letter from American’s counsel to Satterthwaite. Although informal settlement negotiations with either plaintiff would not act as a waiver of American’s right to claim abandonment as to either of them, a settlement between American and Satterthwaite would be a full acknowledgment of Satterthwaite’s claims. The question is whether a defendant’s post-abandonment settlement of the claims of one plaintiff can act as a waiver of its right to plead abandonment of a co-plaintiffs action. We conclude that it cannot.

An action is a demand for the enforcement of a legal right. LSA-C.C.P. art. 421. James v. Formosa Plastics Corp. of Louisiana, 01-2056 (La.4/3/02), 813 So.2d 335, 338; State Through Dept. of Highways v. Lessley, 287 So.2d 792, 794 (La.1973). It is commenced by the filing of a pleading presenting the demand to the court. LSA-C.C.P. art. 421. Cumulation of actions is the joinder of separate actions in the same judicial demand, whether by a single plaintiff against a single defendant, or by one or more plaintiffs against one or more defendants. LSA-C.C.P. art. 461. Therefore, several “actions” may be present in the same lawsuit. See James, 813 So.2d at 338-39.

In this case, Roy’s demands for compensatory damages against American and the other defendants were separate from those of Satterthwaite. Thus, this suit involves the cumulation of actions by two plaintiffs against multiple defendants. LSA-C.C.P. art. 561(A) speaks in terms of the abandonment of an action, as opposed to a lawsuit. Abandonment of “an action” occurs when the parties to that action fail to take any step in its prosecution or defense in the trial court for a period of five years. The acts on which Roy relied in arguing the waiver issue were acts that were taken by American with respect to Satter-thwaite’s action. Such acts did not constitute a waiver |sof its right to plead abandonment of Roy’s claims in her separate action against it.

Roy did not show that any step was taken in the prosecution or defense of her action, such that the running of the five-year abandonment period had been interrupted. Nor did she establish that American had engaged in some post-abandonment act that would constitute a waiver of its right to plead abandonment of her claims against it. Therefore, the trial court properly dismissed Roy’s case as abandoned.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Cora Lee Roy.

AFFIRMED.

HUGHES, J., concurs.

      . Although named as a defendant, service on American was withheld.

      . Enrolling or substituting counsel is not a step in the prosecution of an action that will interrupt the abandonment period. Prater v. Schuylkill Products Co., Inc., 281 So.2d 829, 830 (La.App. 1st Cir.), writ denied, 282 So.2d 719 (La.1973); Theriot v. State, Dept. of Transp. & Dev., 01-1420 (La.App. 1st Cir.9/25/01), 809 So.2d 279, 282.

      .LSA-C.C.P. art. 561 was amended by 1997 La. Acts, No. 1221, § 1, changing the time period for abandonment of an action from five years to three years. Act 1221 became effective July 1, 1998, and by its terms, applied to all pending actions. 1997 La. Acts, No. 1221, § 2. However, since under either version, Article 561 is self-executing, and because the five-year abandonment period had already run in this case prior to the effective date of Act 1221, we will use the pre-amendment language of Article 561.

      .This statement is dicta, however, because the issue in Clark was whether the defendant’s pre-abandonment, unconditional tender, although made outside the record, was sufficient conduct to constitute a waiver. Clark, 785 So.2d at 789. The court concluded that by this action, the defendant had waived its right to plead abandonment. Id. at 793. Compare Slaughter v. Arco Chem, Co., 05-0657 (La.App. 4th Cir.4/26/06), 931 So.2d 387, criticizing the Clark dicta and noting that pre-abandonment actions may constitute an acknowledgement and interrupt a Iiberative prescriptive period, whereas post-abandonment actions could only obliterate the effect of prescription that has run if those acts met the more stringent requirements of a renunciation.

      . Chevron Oil Co. v. Traigle, 436 So.2d 530, 534 (La.1983).

      . Seagrave v. Dean, 98-1295 (La.App. 1st Cir.7/6/99), 739 So.2d 923, 924, writ denied, 99-2856 (La.12/17/99), 751 So.2d 879.

      . Production Spec., Inc. v. Century Oil Tool Co., Inc., 602 So.2d 163, 164-65 (La.App. 3rd Cir.1992).

      . An unconditional tender is made to a plaintiff not in settlement of the case, but to show the insurer's good faith and to comply with the duties imposed on it under its contract of insurance with the insured. Accordingly, such a tender does not constitute part of informal settlement negotiations. Clark, 785 So.2d at 791.

      . State ex rel. Shields, Inc. v. Southport Petroleum Corp. of Delaware, 230 La. 199, 88 So.2d 25, 27 (1956).

      . In Middleton v. Middleton, 526 So.2d 859, 861 (La.App. 2nd Cir.1988), defendant’s post-abandonment actions of filing a new answer and reconventional demand, filing answers to plaintiffs interrogatories, and propounding interrogatories were found to manifest the desire to achieve judicial resolution of the long-standing dispute over community property, so as to preclude the defendant’s claim of abandonment.

      .In Porter, the plaintiff's claim that the defendant had waived its right to plead abandonment was based on an informal agreement to withhold service indefinitely while settlement negotiations proceeded, which was acknowledged in correspondence. Porter, 771 So.2d at 294.

      . The record does not contain a judgment of dismissal of Satterthwaite's claims.

      . Cf. Our Lady of the Lake Hosp. v. Vanner, 95-0754 (La.App. 1st Cir. 12/15/95), 669 So.2d 463, 465, in which the minute entry and judgment reflected that evidence had been introduced at the exception hearing, but the record did not include any such evidence. This court remanded for an evidentiary hearing on the issue of whether the evidence had been introduced and for supplementation of the record with the evidence, if properly introduced.

      . An exception to this rule was made by LSA-C.C.P. art. 967 in connection with a motion for summary judgment. If the other criteria of Article 967 are met, evidence submitted as attachments to the memorandum in support of or in opposition to the motion for summary judgment may properly be considered by the court. Aydell v. Stems, 98-3135 (La.2/26/99), 731 So.2d 189-90.

      .We note, however, that it appears the trial court examined the documents attached to Roy’s memorandum and concluded that they evidenced informal negotiations between the parties. As such, these communications would not constitute a waiver of American's right to plead abandonment.

      . This comports with the general rule that the interruption of prescription has no effect beyond the specific right of the person of which the debtor makes acknowledgment. Legal interruption does not regularly transfer from one obligation or action to another. Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378, 382-83 (La.1980).


author: PARRO, J. McDONALD, J.,

text:
    Debra Leigh Dalgo JANNEY v. Todd Truitt JANNEY.
    No. 2005 CA 0507.
    Court of Appeal of Louisiana, First Circuit.
    July 26, 2006.
    Concurring Opinion of Justice McDonald Aug. 2, 2006.

      Marcus T. Foote, Baton Rouge, for Plaintiff/Appellant Debra Leigh Dalgo Janney.
    Vincent A. Safflotti, Downs & Saffiotti, L.L.P., Baton Rouge, for Defendant/Appel-lee Todd Truitt Janney.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

| ./This is an appeal from a judgment setting child support pursuant to LSA-R.S. 9:315.9, the shared custody child support provision. For the reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Debra Leigh Dalgo Janney and Todd Truitt Janney were divorced in 1995. One child was born of their marriage, in 1993. After their divorce, the Janneys entered into a stipulation that was accepted by the court and rendered in a judgment, awarding the parties joint custody of the child with Ms. Janney designated as domiciliary parent. Mr. Janney was awarded visitation every other week, from Thursday through Monday. The court also set child support to be paid by Mr. Janney in the amount of $1,200 per month, reflecting his 69 percent pro rata share of the combined adjusted gross income.

Almost a year later the parties entered into a stipulation reducing Mr. Janney’s child support obligation to $700 per month and providing for a 50 percent sharing of school and medical expenses attributable to the child. The agreement further established a detailed holiday visitation schedule. A judgment reflecting this stipulation was signed on October 19, 1998.

The present matter was initiated on June 7, 2004, when Mr. Janney filed a rule to show cause seeking equal physical custody of the minor child, a decrease in child support, and entitlement to the income tax dependency deduction. On August 5, 2004, the date the matter was set for trial, the parties entered into a partial stipulation on custody in which they agreed that during the school year, Mr. Janney would have custodial periods with the child every other week from Wednesday, when he would pick up the child after school, through the following Monday morning, when the child would be returned to school. In the alternating, or “off’ week, Mr. Janney would have visitation with the child on Wednesday after school through the following morning. The stipulation further provided that summer visitation would take place with the parties alternating actual physical custody on a weekly basis, with the rotation set up such that Ms. Janney would exercise the last week of summer vacation before school started. lsThe holiday visitation would take place on an alternating basis, as set forth in the previous judgment. No agreement was made as to the calculation of child support, and a trial was held on that issue.

The court took the matter under advisement to consider the testimony and evidence presented by the parties, and on August 23, 2004, rendered its decision and issued written reasons, detailing the method by which it calculated Mr. Janney’s gross income. The court also detailed the method by which it calculated, pursuant to the custody stipulation that was incorporated in the judgment, the actual amount of days during the year that Mr. Janney exercises physical custody. Finding that Mr. Janney had custody 45.3 percent of the time, the court declared that the arrangement constituted shared custody. The court calculated the child support obligation using the shared custody formula and worksheet pursuant to LSA-R.S. 9:315.9. Mr. Janney’s support obligation was accordingly set at $62.88 per month. Judgment was signed on September 23, 2004.

Ms. Janney appeals, asserting two assignments of error: 1) the trial court erred in declaring Mr. Janney’s physical custody schedule constituted shared custody under LSA-R.S. 9:315.9 and in applying Worksheet B under LSA-R.S. 9:315.20 in calculating his child support obligation; and 2) the trial court erred in excluding the retained corporate earnings and shareholder loans of Mr. Janney’s three businesses in calculating his income.

LAW AND ANALYSIS

Shared Custody

Ms. Janney asserts on appeal that the trial court erred in finding that the custody arrangement agreed to by the parties constituted “shared custody” as contemplated by LSA-R.S. 9:315.9, and thereby erred in using Worksheet B to calculate child support. Ms. Janney argues that the court should not have relied solely on the terms of the custody arrangement in determining the amount of days of actual physical custody, but should have referred to a calendar. She concludes from her calculations that Mr. |4Janney has physical custody only 158 days per year, rather than the 165.5 days determined by the court. She further submits that even if the court’s calculations are correct, and Mr. Janney has physical custody 165.5 days, or 45.3 percent of the year, the arrangement still fails to constitute shared custody.

Louisiana Revised Statute 9:315.9 contains the formula for calculating child support when the parents have shared custody. “Shared custody” is defined as “a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.” LSA-R.S. 9:315.9(A)(1). The formula differs from the typical child support formula, in that it has a built-in adjustment for the duplication of costs that inevitably occurs in a shared custody arrangement, and is applied to reflect the actual percentage of time the child spends with each parent. See LSA-R.S. 9:315.9(A)(2) & (3). When the joint custody order is deemed to provide for shared custody, the non-domiciliary parent does not have the additional burden of proving, as he does under Section 9:315.8, an increase in direct child-related • expenses and a concomitant decrease in the domiciliary parent’s direct child care expenses.

|sIn determining whether a particular arrangement is shared, the statute does not bind the trial court to a threshold percentage determined solely on the number of days. Rather, the statute mandates an “approximately equal amount of time.” It is obvious from a reading of LSA-R.S. 9:315.8(E)(2) that when the legislature intends to fix a threshold parameter, it does so. We conclude, therefore, that the trial court has discretion in determining whether a particular arrangement constitutes “shared custody,” justifying the application of LSA-R.S. 9:315.9. Thus, the court may find such an arrangement when the physical custody is split as equally as possible, but through inevitable fluctuations, such as may occur when holidays are divided or alternated, the actual number of days of physical custody in a given year is not exactly equal.

The parties in this case stipulated that they would “continue [to] share the joint care, custody and control of the minor child” in accord with a previous judgment, with certain modifications to the schedule, leaving only the child support determination to be made by the court. In reasons for judgment, the trial court described the shared custody arrangement as follows:

The October 19, 1998 judgment provided that out of a total of 48 holiday days, Mr. Janney had Truitt for an average of 24 of those days. The stipulated judgment read into the record on August 5, 2004 also provided that the parties were to split the summer break, or approximately eleven weeks, into alternating weeks of custody. This would result in approximately 38.5 days in which Mr. Janney would have custody of Truitt. By subtracting the total number of holiday days and the total number of summer break days from a total of 365 days in a year, there remains 240 days in a year in which the normal custody schedule prevails. The August 5, 2004 stipulation granted Mr. Janney custody of Truitt every other week from Wednesday after school until the following Monday morning plus the next Wednesday after school until the start of school Thursday, or 6 out of every 14 days. Therefore, of the 240 remaining days of the year, Mr. Janney has custody of Truitt for 103 days. Adding to the 103 days of normal custody the 24 holiday days Mr. Janney is awarded and the 38.5 days of summer when Mr. Janney exercises custody, results in a total of 165.5 days a year Mr. Janney has custody of Truitt. This equates to 45.3 percent of the year. The Court finds, therefore, Mr. Janney does have physical custody of Truitt “for an | ^approximately equal amount of time” as does Ms. Janney. [Footnote omitted].

In Westcott v. Westcott, 04-2298 (La. App. 1st Cir.11/4/05), 927 So.2d 377, this court approved the application of the statute to a 37 percent to 63 percent split, because the “joint custody order provide^] for shared custody,” and the trial court’s detailed analysis of the facts, including how many meals each parent provided, how much time each spent helping with homework, and the parents’ overall participation in the children’s lives, justified its deviation from the “approximately equal” formulation in the statute. Id. at 378-79. In the Janney arrangement, the couple effectively splits the summer and holiday visitation 50/50, with any fluctuation being due to the start-up or ending of the school year. During the school year, Mr. Janney has physical custody for six days of every two weeks, which seems to be a reasonable accommodation to the child’s need for a regular routine during the school year. We find no error or abuse of discretion in the trial court’s conclusion that the joint custody order in this case provides each parent with physical custody of the child for an “approximately equal” amount of time. Therefore, the court did not err in computing child support in accord with the formula in LSA-R.S. 9:315.9 and Worksheet B.

Mr. Janney’s Income

Ms. Janney asserts that the trial court erred in excluding the retained corporate earnings and shareholder loans of Mr. Janney’s three businesses in calculating his income. While she admits that there is no jurisprudential rule or statutory provision mandating the trial court to impute retained earnings or shareholder loans as income for computing child support, she argues that under the facts of this case, where Mr. Janney is the sole shareholder with unilateral control of the business accounts, the court erred in not imputing these amounts as income to Mr. Janney. In essence, she argues that the amounts reflected on the tax returns as shareholder loans from the |7businesses and retained earnings in the businesses are actually disguised income used by Mr. Janney for his personal benefit.

When this matter was filed and heard, Louisiana Revised Statute 9:315(C)(4) defined gross income, stating, in pertinent part:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, unemployment insurance benefits, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent’s personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals; and
(e) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. “Ordinary and necessary expenses” shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

In assessing Mr. Janney’s income, the court examined his 2002 and 2003 personal tax returns and the available 2002 and 2003 business tax returns for his three businesses. The court averaged the annual gross income of the three businesses over the two-year period, after deducting the ordinary and necessary expenses and adding back the deduction taken for depreciation. It then added this figure, $24,422.17, to Mr. Janney’s average annual personal gross income, $25,562.50, yielding a gross yearly income for Mr. Janney of $49,984.67 per year, or $4,165.39 monthly. The court also examined the amounts listed on the business tax returns as shareholder loans and |Rretained earnings and declined to add any amount represented by these figures, finding Mr. Janney’s testimony credible that the loans were to be paid back to the corporations and the retained earnings were to be used to service business debts.

Ms. Janney submits that Mr. Janney, through his control of the business accounts, has maintained a consistent pattern of taking loans for personal use and in lieu of wages, thereby artificially maintaining a low income. The business tax returns reveal that while the outstanding total loan balance of $107,079 may be considered substantial, the major portion of that balance is attributable to loans taken by Mr. Janney prior to 2002. The court did not consider 2001 finances in its calculations. The 2002 business tax returns indicate that at the start of that year, the combined shareholder loan balance was $109,959. Mr. Janney explained that a large portion of this balance, almost $74,000, was money drawn in 2001 from the business account of the Denham Springs business for the down payment on the purchase of the building that now houses the Walker business. In 2002 and 2003, a total of $22,601 was loaned to him from the three corporations. However, the ending combined loan balance for 2003 was $107,079, or $25,481 less than what it was for the time frame examined by the court. Thus, during the two-year period examined by the court, the overall loan balance decreased.

In her argument that the court should have imputed the retained earnings as income, Ms. Janney points to a lack of documentation that would indicate that the businesses actually applied those funds to capital expenses and Mr. Janney’s inability to specifically account for or explain why the funds were retained by the businesses. She argues that these funds are “waiting in the wings to eventually be declared income ... after the court sets his child support obligation.”

Mr. Janney testified that he does not prepare the tax returns, nor does he manage the financial books throughout the year. When asked to give examples of “what the retained earnings are” and “where it goes,” Mr. Janney responded, “It’s accounting jargon. I don’t know what that is.” He could not be sure exactly how the retained earnings had been used in the past, but did recall that in 2002, when “extra” | flfunds were available, he chose not to distribute such funds to himself, but instead put the money back into the business for the purchase of equipment or something else needed for the business at that time. He testified that he plans on using future profits to pay business debts. He was aware that he had ultimate control of the business accounts and could distribute any “extra” funds to himself, but explained that the cash “is never there to take out.” He indicated that he receives no personal benefit from the retained earnings; his income is his salary.

No testimony or other evidence was presented that would indicate the retained earnings of the corporations were used for anything other than legitimate business reasons. We note further that the retained earnings were included on the business tax returns and, as such, were figured into the income calculations.

We find that the trial court did not err or abuse its discretion in its treatment of shareholder loans and retained earnings. The record reveals that the court computed income in accordance with LSA-R.S. 9:315 and took into account the pass-through of the earnings retained by the subchapter-S corporations. The court was not mandated, under the facts of this case, to impute as income the amounts represented as shareholder loans or retained earnings of the subchapter-C corporation.

CONCLUSION

For the reasons above, we affirm the judgment of the trial court. All costs of this appeal are assessed to Ms. Janney.

AFFIRMED.

McDONALD, J., concurs and will assign reasons.

HUGHES, J., dissents with reasons.

McDONALD, J.,

Concurring.

LI agree with the result reached in this case because I do not think it was an abuse of the trial court’s discretion to find that the custody agreement stipulated by the parties constituted shared custody within the meaning of and subject to La. R.S. 9:315.9.

I concur in the opinion because I have serious reservations about some of the principles articulated in Westcott, and relied upon by the majority in reaching their decision in this case. Specifically, I do not think the amount of participation by a parent in their child’s activities, homework, etc. is a relevant factor in a determination of whether a finding of shared custody, with its concomitant legal consequences, is appropriate. I am also not convinced that a stipulation by the parents that the child sharing arrangement to which they have agreed is “shared custody” within the meaning of the law, thereby binding the courts, irrespective of the amount of time each parent has physical custody of the child/children.

Shared custody by definition requires physical custody of the child for an approximately equal amount of time. What constitutes an approximately equal amount of time may be determined by the courts | awhen called upon to do so. However, I do not think interpretation of the law allows the courts to decree a physical custody sharing arrangement approximately equal when it clearly is not. The legislative intent in establishing an order of “shared custody” utilizing different child support guidelines was to take into consideration the duplication of expenses that may occur under circumstances where the child/children are with each parent an approximately equal amount of time. These are financial considerations and the relevant inquiries by the courts should be focused on the expenses involved. Helping a child with its homework is a parental duty, not entitled to compensation/renumeration by the courts. For these reasons, I concur.

HUGHES, J., dissents.

LI respectfully dissent. It is submitted that “approximately equal” means as close to exactly equal as possible, recognizing that with an odd number of days in the year, and with holidays and special occasions, an exactly equal split is an impossibility. Some flexibility must be had, but I do not believe that a 55/45 split, a 10% difference, can be considered “approximately equal.”

      . Some of these "redundant costs" are discussed in DeSoto v. DeSoto, 04-1248 (La.App. 3rd Cir.2/2/05), 893 So.2d 175, 179, and include housing expenses, utilities, a bedroom for the child, and toys.

      . This adjustment recognizes that the phrase "approximately equal” means that the child may not be spending an exactly equal amount of time with each parent.

      . A joint custody arrangement that does not constitute shared custody, even though the non-domiciliary parent is nevertheless granted more than the typical amount of visitation, may entitle the non-domiciliary parent to a reduction, in the form of a credit, in the amount of child support owed to the domiciliary parent. LSA-R.S. 9:315.8(E) provides, in part:
      (2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation.
      (3) In determining the amount of credit to be given, the court shall consider the following:
      (a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party.
      (b) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.

      .The jurisprudence has been inconsistent on this point. In the DeSoto case, 893 So.2d at 178, the court found that a 45.5 percent to 54.5 percent split of physical custody constituted a shared custody arrangement triggering application of the statute, and yet approved the trial court’s deviation from the statutory guidelines. In so concluding, the court discussed an earlier decision, Lea v. Sanders, 04-762 (La.App. 3rd Cir. 12/22/04), 890 So.2d 764, -writ denied, 05-0183 (La.3/24/05) 896 So.2d 1046, in which the court had not applied the statute to a 43 percent to 57 percent split and had stated in dicta that comment (a) to the statute provided a bright-line threshold of 49 percent to 51 percent for application of the statute. The DeSoto case specifically rejected any bright-line rule.

      . Mr. Janney is a physical therapist and the sole shareholder of three corporations, two of which are subchapter-S corporations, and the other being a subchapter-C corporation.

      . These provisions, with one minor revision not relevant to this case, are now found in LSA-R.S. 9:315(C)(3).

      . The only tax return "missing” was the 2003 return for the corporation located in Denham Springs. Mr. Janney testified that one had not been prepared. However, he introduced — and the court considered — a 2003 Profit and Loss Statement for that corporation.

      .Mr. Janney’s personal gross income should reflect the earnings retained by the two sub-chapter-S corporations for each year in question, because such earnings flow through to the shareholder’s personal tax return and are subject to taxation, whether distributed to the shareholder or retained by the corporation.


text:
    James Matthew DOMBROWSKI v. NEW ORLEANS SAINTS.
    No. 2005 CA 0762.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 2, 2006.

      Robert L. Hackett, Atlanta, GA, for Plaintiff-Appellee James Matthew Dom-browski.
    Michael H. Rubin, Emily B. Grey, Ju-sten M. O’Brien, McGlinchey Stafford, PLLC, David K. Johnson, Johnson, Stilt-ner, and Rahman, Baton Rouge, for Defendants-Appellants New Orleans Saints and Louisiana Workers Compensation Corporation.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

12An employer and its workers’ compensation insurer appeal from a judgment by the Office of Workers’ Compensation Administration (OWC) in favor of its employee, ordering the insurer to pay workers’ compensation benefits, penalties, attorney fees, and costs. For the following reasons, we reverse.

Facts and Procedural History

In 1996, James M. Dombrowski (Dom-browski) signed a standard National Football League (NFL) Player Contract (Player Contract) to play football for the New Orleans Saints for the 1996 season. The Player Contract is a standard contract developed pursuant to a “Collective Bargaining Agreement” (CB agreement) between the NFL Management Council and the NFL Players Association. The CB agreement had been executed on May 6, 1993, and had been amended on June 6, 1996. On November 17, 1996, Dombrowski was injured during a football game and did not play during the 1997 season.

In connection with a disputed claim filed with the OWC by Dombrowski in October 1997 concerning his 1996 injury, the parties made the following stipulations. Dom-browski received his last check for the 1996 season on January 8, 1997. He did not play during the 1997 season, but pursuant to an injury protection provision contained in the CB agreement, he received $200,000 as wages in 16 weekly payments over the course of the 1997 season. He began receiving weekly compensation benefits in the amount of $341 beginning on December 22, 1997, at the conclusion of the 1997 playing season. The only issue remaining for the workers’ compensation judge (WCJ) to decide in connection with Dombrowski’s 1997 claim was whether the Saints were entitled to a week-for-week, as opposed to a dollar-for-dollar, credit for the $200,000 paid to Dombrowski. Relying on LSA-R.S. 23:1225(D) as it existed on the date that the Player Contract was entered into by Dombrowski and on the date of his injury, the WCJ ^determined that the statutory dollar-for-dollar credit was applicable. Workers’ compensation benefits being paid to Dombrowski were terminated on September 29,1998.

Dombrowski appealed, urging that the WCJ erred in finding that the Saints were entitled to a dollar-for-dollar credit against the workers’ compensation benefits payable to him. Dombrowski v. New Orleans Saints, 99-0008 (La.App. 1st Cir.3/31/00), 764 So.2d 980. On appeal, this court found that the terms of the Player Contract were clear and explicit and did not amount to a waiver of the statutory dollar-for-dollar offset set forth in LSA-R.S. 23:1225(D). The Player Contract was found to have clearly established that when compensation is paid to a player, the club was entitled to reimbursement in the amount of the payment made to the player. Thus, the contractual provision did not in any way alter the rights guaranteed by LSA-R.S. 23:1225(D). Dombrowski 764 So.2d at 983. The supreme court denied Dombrowski’s application for a writ of certiorari, citing Green v. New Orleans Saints, 00-0795 (La.11/13/00), 781 So.2d 1199. Dombrowski v. New Orleans Saints, 00-2103 (La.12/15/00), 777 So.2d 1226.

In March 2004, Dombrowski filed a second disputed claim with the OWC in connection with the injury that was at the heart of his 1997 claim, urging simply that the credit provided for in LSA-R.S. 23:1225(D) was inapplicable or had been depleted. The Saints filed a combined answer and exception. Subsequently, the legislature repealed Section 1225(D). See 2004 La. Acts, No. 561, § 1, effective August 15, 2004.

After a trial of his 2004 claim on November 15, 2004, the WCJ held that: the 1993 enactment of Section 1225(D) constituted ex post facto legislation as applied to this case, because the CB agreement was in place one month prior to its enactment; the 2004 repeal of Section 1225(D) was curative, thus no specific statement of ret-roactivity was needed; and the CB agreement governed as though Section 1225(D) never existed. The resulting judgment provided that Dombrowski was entitled to | ¿supplemental earnings benefits (SEB) of $341 per week retroactive to the date of his 1996 injury, subject to a 16-week credit, with judicial interest accruing from the date of the filing of the first disputed claim, October 17, 1997. Dombrowski was also awarded certain medical expenses and mileage reimbursement, $8,000 in penalties and $20,000 in attorney fees for the Saints’ arbitrary and capricious discontinuance of indemnity and medical benefits, and litigation costs pursuant to LSA-R.S. 23:1317(B). After the WCJ’s denial of the Saints’ motion for a new trial, the Saints and its insurer, Louisiana Workers Compensation Corporation, appealed. They urged that the WCJ erred in finding that the repeal of Section 1225(D) applied retroactively, in failing to find that the doctrine of res judicata barred this action in light of this court’s prior decision in Dom-browski, 764 So.2d 980, and in awarding attorney fees, penalties, interest, and costs.

Res Judicata

An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant to retard, dismiss, or defeat the demand brought against him. LSA-C.C.P. art. 921. The function of a peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action. LSA-C.C.P. art. 923. All exceptions shall set forth the name and surname of the exceptor, state with particularity the objections urged and the grounds thereof, and contain a prayer for the relief sought. LSA-C.C.P. art. 924. The objection of res judicata may be raised through the peremptory exception. LSA-C.C.P. art. 927(A)(2). The court cannot supply the objection of res judicata, which must be specially pleaded. LSA-C.C.P. art. 927(B). The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision. LSA-C.C.P. art. 928(B). When pleaded before or in the answer, a peremptory exception shall be tried and decided in advance of the trial of the case. LSA-C.C.P. art. 929(A). On the trial of the peremptory exception pleaded prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931.

1 fiIn its combined answer and exception, the Saints simply asserted that the issues set forth in the 2004 disputed claim were precluded by the doctrine of res judicata, without setting forth any grounds or supporting details. The record contains no memorandum by the Saints in support of its exception, nor was there any request to set the exception for hearing before trial. In its pretrial statement, the Saints again mentioned the issue of the doctrine of res judicata as a bar to Dom-browski’s disputed 2004 claim. Although counsel for Dombrowski informed the WCJ at the trial that this matter had been previously tried, the Saints did not directly explore or develop the issue of res judicata at the trial or in its post-trial memorandum. Furthermore, the WCJ neither considered nor ruled on the exception prior to trial or prior to rendering judgment on the merits. Having failed to urge that the objection of res judicata be heard or judgment rendered by the OWC, we conclude that the Saints waived or abandoned the exception that was filed with the OWC. See Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399, 407 (1965); Louisiana Power & Light Co. v. City of Houma, 229 So.2d 202, 204 (La.App. 1st Cir.), writ denied, 254 La. 1165, 229 So.2d 350 (1969); LeBlane v. Breaux, 00-897 (La.App. 5th Cir.12/13/00), 777 So.2d 532, 540-41, writ denied, 01-0120 (La.3/23/01), 788 So.2d 428; The Research Group, Inc. v. Sharp, 430 So.2d 165, 168 (La.App. 2nd Cir.1983). Thus, the WCJ did not err in failing to rule on the exception. The Saints did not file an exception raising the objection of res judicata with this court, and this court cannot supply this exception. Accordingly, the pre-clusive effect, if any, of the rulings embodied in Dombrowski, 764 So.2d 980, will not be considered in this appeal, except insofar as this court owes deference to its prior conclusions of law.

Applicability of LSA-R.S. 23:1225(D)

The Saints argued that the WCJ erred in holding that the repeal of LSA-R.S. | r23:1225(D) retroactively changed the legal impact of the law that was in effect on the date that DombrowsM’s 1996 Player Contract was signed and the date that the injury occurred. Prior to its repeal by Act 561 of 2004, LSA-R.S. 23:1225(D) provided:

The compensation benefits payable to a professional athlete under any provision of this Chapter shall be reduced or offset by an amount equal to the total amount of benefits, wages, or other type of payment mentioned in any part of this provision on a dollar-for-dollar basis and not just on a week-to-week basis, if a professional athlete receives payment or remuneration from any of the following or payment of any type from any of the following:
(1) Any wages or benefits payable or paid to the athlete.
(2) A collective bargaining agreement.
(3) A contract of hire of any type.
(4) Any type of severance pay.
(5) Any type of injured reserve pay.
(6) Any type of termination pay.
(7) Any grievance or settlement pay.
(8) Any workers’ compensation benefit of any type.
(9) Any other payment made to the professional athlete by the employer pursuant to any contract or agreement whatsoever.

The WCJ held that the 2004 repeal of Section 1225(D) was curative, thus no specific statement of retroactivity was needed and, therefore, the CB agreement governed as though Section 1225(D) had never existed. The legislative history indicates the contrary, in that it reflects that the legislature considered and expressly rejected the thought of making the repeal of Section 1225(D) retroactive. Further, like the court in Hughes v. New Orleans Saints, 05-712 (La.App. 5th Cir.2/27/06), 924 So.2d 1086, 1090, writ denied, 06-1008 (La.6/23/06), 930 So.2d 980, we do not agree that this repeal was “curative” and, thus, automatically retroactive.

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary. LSA-C.C. art. 6. If an expression of retroactive application of a substantive law is provided, such is 17possible only to the extent that it is constitutionally permissible. LSA-C.C. art. 6, revision comment (b). There is no reference to so-called remedial or curative legislation in Article 6 because of the multiplicity of meanings assigned to it. A remedial law may be procedural, interpretative, or substantive. A procedural law is remedial in the sense of dealing with the remedy rather than with the right itself. An interpretative law is remedial in the sense of remedying an error or ambiguity in the prior law. In both situations the new law may, in principle, apply retroactively even in the absence of express language to that effect. However, a substantive law may also be, and often is, called remedial when it remedies an existing social problem resulting from a gap, silence, or deficiency of the prior law. In such a situation, the new law should not be applied retroactively, absent a contrary and constitutionally permissible legislative directive. See LSA-C.C. art. 6, revision comment (d). Undoubtedly, Section 1225(D) created substantive rights in favor of the Saints. Thus, the repeal of that statute involves substantive rights; in the absence of a contrary and constitutionally permissible legislative directive in Act 561, we conclude that the repeal cannot be applied retroactively. The WCJ erred as a matter of law in ruling to the contrary. See Hughes, 924 So.2d at 1090.

Alternatively, Dombrowski argued and the WCJ found that the 1993 enactment of Section 1225(D) was ex post facto legislation, since the original CB agreement was in place one month prior to the enactment of this statutory provision. This ruling was made without mention and seemingly without consideration of the Player Contract between the player and the Saints on which the decisions in Dombrowski and Green were based. Furthermore, consideration was seemingly not given to the fact that the 1993 CB agreement had been amended in 1996 and in 1998. Notably, only the 1998 version of the CB agreement was offered into evidence.

| sLaws existing at the time a contract is entered into are incorporated into and form a part of the contract as though expressly written therein. Board of Comm’rs of Orleans Levee Dist. v. Department of Natural Res., 496 So.2d 281, 294 (La.1986). Under the facts of this case, Dombrowski and the Saints were governed by the CB agreement that was executed on May 6, 1993, and amended on June 6, 1996, and the Player Contract that was executed in 1996. The CB agreement, in pertinent part, provided:

Article LIV
Workers’ Compensation
Section 1. Benefits: In any state where workers’ compensation coverage is not compulsory, a Club will either voluntarily obtain coverage under the compensation laws of that state or otherwise guarantee equivalent benefits to its players. In the event that a player qualifies for benefits under this section, such benefits will be equivalent to those benefits paid under the compensation law of the state in which his Club is located.
Section 6. Preservation of Rights: The NFLPA and the Clubs preserve their prior positions with regard to the legality of workers’ compensation offset provisions under state law, and nothing in this Article shall prevent any player from claiming that an offset provision is not legally binding upon him or prevent any Club from asserting that an offset provision is legally binding upon a player. In addition, neither party nor members of the NFLPA’s bargaining unit will claim that the other party’s agreement to this Article or the revised NFL Player Contract appended hereto affects the rights set forth above.

The Player Contract was prepared by the NFL and the NFL Players Association and is the standard contract used by all teams in the NFL. Paragraph 10 of the Player Contract provided:

WORKERS’ COMPENSATION. Any compensation paid to Player under this contract or under any collective bargaining agreement in existence during the term of this contract for a period during which he is entitled to workers’ compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability will be deemed an advance payment of workers’ compensation benefits due Player, and Club will be entitled to be reimbursed the amount of such payment out of any award of workers’ compensation.

See Collective Bargaining Agreement, Appendix C, pp. 232-33.

|9The CB agreement states that workers’ compensation matters will be determined according to the law of the state in which the player’s football club is located and that both parties have the right to contest offset issues. The Player Contract provides that any compensation paid to the player, either under the contract or under the CB agreement, during a period in which he would be entitled to workers’ compensation benefits, will be deemed an advance payment of workers’ compensation benefits due, and the club will be entitled to be reimbursed the amount of such payment out of any award of workers’ compensation. See Jerich v. New Orleans Saints, 00-1299 (La.App. 5th Cir.12/27/00), 776 So.2d 1283, 1287 n. 1. Since LSA-R.S. 23:1225(D) was in effect when Dombrowski entered into the Player Contract with the Saints and at the time of his injury, Section 1225(D) is applicable to his 2004 claim unless he and the Saints had expressed a clear intention to modify the Saints’ statutory right to take a dollar-for-dollar credit for the advance payments of workers’ compensation benefits to Dombrowski.

After examining the content of these contractual provisions, the supreme court in Green, 781 So.2d 1199, found that paragraph 10 of the Player Contract was clear and explicit and did not amount to a waiver of the statutory dollar-for-dollar offset set forth in LSA-R.S. 23:1225(D). Although the claimant in that case asserted that paragraph 10 of the Player Contract provided the player with greater rights than those afforded by LSA-R.S. 23:1225(D), the supreme court found that it did not. The language of paragraph 10 of the Player Contract was held to be consistent with the language of Section 1225(D). Green, 781 So.2d at 1203.

|inDombrowski was subject to the same CB agreement, and the wording of the pertinent provision in his Player Contract was identical to that in Green. Accordingly, the decision in Green governs here. The fact that the CB agreement was originally executed prior to the enactment of LSA-R.S. 23:1225(D) has never before precluded the application of this statute to claims by NFL players who entered Player Contracts and suffered injuries after the effective date of the enactment of the statute. The date of the signing of the Player Contract and the date of the injury have been pivotal in determining the law applicable to the case. See Green, 781 So.2d at 1203; Hughes, 924 So.2d at 1091; Dombrowski 764 So.2d at 983; and Jerich, 776 So.2d at 1283. Furthermore, the CB agreement was amended after the enactment of Section 1225(D). Therefore, we conclude that Section 1225(D) never had an ex post facto effect as applied to Dombrowski.

The $200,000 represents compensation paid to Dombrowski under the CB agreement. Pursuant to paragraph 10 of the Player Contract and LSA-R.S. 23:1225(D), the Saints are entitled to a dollar-for-dollar credit for $200,000 against workers’ compensation benefits payable to Dombrowski under any provision of the workers’ compensation law. The WCJ erred as a matter of law in failing to recognize a dollar-for-dollar credit in favor of the Saints. Accordingly, the Saints are not obligated to pay workers’ compensation benefits to Dombrowski until its credit has been exhausted.

Entitlement to Beneñts

The WCJ awarded SEB, medical expenses, and mileage reimbursement to Dombrowski based on her finding that the dollar-for-dollar offset provided for in LSA-R.S. 23:1225(D) was inapplicable in this case. In light of the legal error made with respect to this determination, the Saints were only given credit for the' 16-week period during which Dombrowski received payments toward the $200,000. Upon the expiration of the 16-week period, the credit was considered by the WCJ as having been exhausted, thus entitling Dombrowski to workers’ compensation benefits. Accordingly, the WCJ did not consider whether a dollar-for-dollar credit would have been exhausted by the time Dombrowski filed his disputed claim in 2004.

|1TIn his brief, Dombrowski urged that the Saints had paid for some, but not all, of his medical treatment. Based on the evidence presented, the WCJ found that Dombrowski had shown that he was entitled to reimbursement for $2,360.43 for medical expenses and for $781.76 in mileage for four round trips from Mandeville, Louisiana, to Houston, Texas. These specific findings have not been assigned as error by the Saints, nor has Dombrowski challenged these findings by way of an appeal or an answer to the Saints’ appeal. As unpaid workers’ compensation benefits to which Dombrowski was entitled, these figures would be applied as a reduction to the Saints’ credit, along with the indemnity benefits that would have otherwise been due since the date of his injury, excepting indemnity benefits to which he would have been entitled for the period of December 22, 1997, through September 29, 1998, which were actually paid by the Saints.

Considering these facts and the fact that approximately eight years or 416 weeks had passed between Dombrowski’s injury and the trial of this matter, we conclude that Dombrowski failed to prove that the Saints’ dollar-for-dollar credit had been exhausted so as to entitle him to workers’ compensation benefits. Therefore, the WCJ judge erred in awarding workers’ compensation benefits, including SEB, medical expenses, and mileage reimbursement. For all of the foregoing reasons, we also find that the other awards in favor of Dombrowski were improper.

Decree

Therefore, the judgment of the Office of Workers’ Compensation Administration is reversed. Costs of this appeal are assessed to James Matthew Dombrowski.

REVERSED.

      . The workers' compensation judge in this matter was Elizabeth A. Warren of District 6.

      . The CB agreement, as amended, was extended, with certain modifications, on February 25, 1998.

      . The rest of the allegations in his 2004 disputed claim merely referenced the allegations made in his 1997 disputed claim.

      . Since the Saints have not filed an exception of res judicata with this court, there is no need to determine if such a filing would be precluded in light of the waiver or abandonment of its previously filed exception. See LSA-C.C.P. art. 2163; Bergeron v. Houma Hasp. Corp. of Sisters of St. Joseph, 514 So.2d 1192, 1194-95 (La.App. 1st Cir.1987), writs denied, 517 So.2d 812 (La.1988).

      . See Jackson v. Iberia Parish Gov't, 98-1810 (La.4/16/99), 732 So.2d 517, 519 n. 1.

      . A court of appeal may not overturn a judgment of the WCJ absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Barber Bros. Contracting Co. v. Cuccia, 98-0675 (La.App. 1st Cir.4/1/99), 734 So.2d 820, 822, writ denied, 99-1258 (La.6/18/99), 745 So.2d 31.

      . These provisions apparently were not modified by the 1996 or 1998 amendments.

      . See Dombrowski, 764 So.2d at 983.

      . The court in Green observed that the time period reflected in paragraph 10 of the Player Contract merely categorized payments made during that time period as an advance of workers' compensation benefits; it did not limit the employer to an offset against workers' compensation awards for the specified period of time during which the player was still under contract. If paragraph 10 had been intended to limit the offset for a period of time, the last line of the provision would not have so clearly stated otherwise. Green, 781 So.2d at 1203-04. Rather, the intent of Section 1225(D) and paragraph 10 is that when any payment is made to the player and he is thereafter found to have been entitled to workers' compensation when the payment was made, the compensation payor gets a dollar-for-dollar credit for the entire payment against all future compensation benefits. Green, 781 So.2d at 1204 n. 7. Accordingly, the football club was entitled to a dollar-for-dollar credit for the money paid to the player and the club was not obligated to pay weekly indemnity benefits until the sum was exhausted. Green, 781 So.2d at 1204.

      . The credit applies to any compensation benefits payable under any provision of the workers’ compensation law. See LSA-R.S. 23:1225(D); see also Player Contract, paragraph 10.