author: KIRBY, Judge.

text:
    SUCCESSION OF Florence Whittaker WOLF.
    No. 2005-CA-1480.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 2006.

      D. Bruce Cameron, Cameron Law Firm, L.L.C., Slidell, LA, for Appellant.
    Corinne A. Morrison, Harry R. Holla-day, James C. Young, Gregory J. Walsh, Chaffe McCall, L.L.P., New Orleans, LA, for Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge LEON A CANNIZZARO JR.)
   KIRBY, Judge.

| ¶Appellant, Terry A. Guillory, appeals the trial court judgment, granting an exception of no right of action filed by the Executrix of the Succession of Florence Whittaker Wolf. This exception was filed in response to the Petition to Annul Probated Testament and to Revoke Appointment of Executrix filed by Mr. Guillory. The judgment dismissed Mr. Guillory’s petition with prejudice.

On May 10, 1990, Florence Whittaker Wolf executed a last will and testament. She died on December 14, 2003. In her will, Ms. Wolf made several special bequests and bequeathed the remainder of her estate to Children’s Hospital in New Orleans. Ms. Wolf named Inez Martinez as the executrix of the estate. Ms. Wolf was the aunt of Mr. Guillory’s stepfather. Mr. Guillory was not named in Ms. Wolfs will, and was not related to Ms. Wolf through blood or adoption.

On May 19, 2004, Ms. Martinez, in her capacity as the named executrix in Ms. Wolfs will, filed a Petition for Probate of Lost Statutory Testament and Appointment of Succession Representative. Ms. Martinez attached to the petition a photocopy of Ms. Wolfs last will and testament, and stated that despite a diligent ^search, the original of the will could not be located. She also attached her affidavit and the affidavit of the attorney who prepared the will, Mr. Alain C. Andry, III. Ms. Martinez asked that the photocopy of the will be probated as Ms. Wolfs last will and testament, and that she be confirmed as the testamentary executrix. On the same date, the trial court ordered that Ms. Wolfs last will and testament dated May 10, 1990 be recorded, filed and executed in accordance with its terms, and confirmed Ms. Martinez as the testamentary executrix of Ms. Wolfs succession.

On September 3, 2004, Mr. Guillory filed a Petition to Annul Probated Testament and to Revoke Appointment of Executrix. Ms. Martinez filed exceptions of vagueness, ambiguity and no right of action in response to Mr. Guillory’s petition. On May 3, 2005, the trial court granted Ms. Martinez’s exception of no right of action, and dismissed Mr. Guillory’s petition with prejudice. Mr. Guillory now appeals.

On appeal, Mr. Guillory asserts four assignments of error, but all relate to his argument that the trial court erred in granting Ms. Martinez’s exception of no right of action, and in dismissing his Petition to Annul Probated Testament and to Revoke Appointment of Executrix. In the case of Forum for Equality PAC v. City of New Orleans, 2004-1521, p. 6 (La.App. 4 Cir. 8/30/04), 881 So.2d 777, 781-782, this Court stated:

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5). The function of the 1 ^exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885.

La. C.C.P. article 2972 states:

An opposition to the petition, motion, or other application of a party to a succession proceeding for an order or judgment of the court shall be in writing and be filed within the delay allowed. It shall comply with the provisions of Articles 853 through 863; shall state the name, surname, and domicile of the opponent; shall allege the interest of opponent in filing the opposition, and the grounds for opposing the petition, motion, or other application; and shall conclude with a prayer for appropriate relief.

Mr. Guillory alleges that he has a justiciable interest in the succession because Ms. Martinez, in her capacity as executrix, sought and obtained a writ of sequestration seizing over $150,000.00 from Mr. Guillory. Ms. Martinez claimed Mr. Guil-lory obtained access to Ms. Wolfs liquid assets through a power of attorney allegedly signed by Ms. Wolf, and converted these assets into funds for his own use and benefit. Mr. Guillory contends that he was lawfully holding these funds on deposit.

Although Ms. Martinez concedes in her brief that she filed a conversion lawsuit against Mr. Guillory in her capacity as executrix of Ms. Wolfs succession, and that this action resulted in the seizure of $150,000 from Mr. Guillory’s bank |4account, this action was a separate action from the succession action. As such, no pleadings, judgments or other documentation from the conversion action are in the appeal record before us.

Even assuming arguendo that the funds were seized in accordance with the writ of sequestration as stated by Mr. Guillory, this would not give him a right of action to annul Ms. Wolfs testament or revoke the appointment of Ms. Martinez as executrix. Ms. Wolf did not name Mr. Guillory as a legatee or trustee in her will. There is no evidence in the record of any other purported testament of Ms. Wolf other than the May 10, 1990 testament. Mr. Guillory has not alleged that he had any kind of familial relationship with Ms. Wolf that would make him a legal heir to her estate if Ms. Wolf died intestate. He admitted in a deposition that while Ms. Wolf was his stepfather’s aunt, he was not otherwise related to her.

In Succession of Moran, 485 So.2d 623 (La.App. 4 Cir.1986), this Court affirmed a trial court ruling granting an exception of no right of action to a petition filed in a succession proceeding by the decedent’s former wife. In doing so, this Court noted that the appellant was not an heir or legatee of the decedent by means of any law or other purported testament. Id. Given those facts, this Court stated that the appellant would not realize any benefit if the probated testament were annulled, and therefore, had no right of action to annul the testament. Id.

Mr. Guillory cited three cases in support of his position that he has a justiciable interest in challenging Ms. Wolfs will. One of those cases, Succession of Pope, 230 La. 1049, 89 So.2d 894 (1956), was overruled by the Louisiana Supreme Court in Succession of Jenkins, 481 So.2d 607 (La.1986). The other two cases are distinguishable from the instant case. In Succession of Kilpatrick, 356 So.2d 1083 (La. App. 2 Cir.1978), the entity seeking to challenge a will was named as a trustee in an earlier will. Similarly, in Succession of Hines, 341 So.2d 42 (La.App. 3 Cir.1976), a case involving a declaratory judgment interpreting certain provisions of a will, one of the appellants was a bank, which had been named both executor and trustee under the will.

Mr. Guillory is not named in any capacity in Ms. Wolfs May 10, 1990 will. Furthermore, there is no evidence in the record that Mr. Guillory was named in any prior will executed by Ms. Wolf, nor is there any evidence that Ms. Wolf executed a will or codicil subsequent to the May 10, 1990 will.

As in the Succession of Moran case, the appellant in this case has no legal interest in the validity of the probated will. If the probated will were annulled, then distribution of Ms. Wolfs estate would be based on the laws of intestacy. Under those laws, Mr. Guillory would not be among the class of persons who would inherit from Ms. Wolfs estate. Accordingly, the trial court did not err in granting the exception of no right of action filed by Ms. Martinez in response to Mr. Guillory’s Petition to Annul Probated Testament and to Revoke Appointment of Executrix.

Having found that the trial court did not err in granting the exception of no right of action filed by Ms. Martinez, we now consider whether Mr. Guillory [ ^should be given the opportunity to amend his petition. La. C.C.P. article 934 provides that:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

The right to amend is not absolute, and amendment is not permitted when it would constitute a vain and useless act. Smith v. State Farm Insurance Companies, 2003-1580, p. 6 (La.App. 4 Cir.3/3/04), 869 So.2d 909, 913.

In this case, Mr. Guillory admitted in his deposition that he is not named in the will at issue and that Ms. Wolf did not execute another will after the May 10, 1990 will. He has not alleged on appeal or in the trial court any facts that he could assert to cure the objection if amendment to the petition were allowed. See, Scaffidi and Chetta Entm’t v. Univ. of New Orleans Found., 2004-1046 (La.App. 5 Cir.2/15/05), 898 So.2d 491, writ denied, 2005-0748 (La.5/6/05), 901 So.2d 1102. Therefore, we find that the trial court properly granted the exception of no right of action without allowing Mr. Guillory the opportunity to amend his petition to state a right of action.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    Clement B. GUILLOT, Jr. and the Succession of Clement B. Guillot, Sr. v. LAPROP, INC., Aurora M. Perez, Juan U. Perez, The Parish of Jefferson, The City of Gretna, and Roy J. Gattuso.
    No. 06-CA-225.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 6, 2006.

      Clement F. Perschall, Jr., Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    John A.E. Davidson, Attorney at Law, Metairie, Louisiana, for Defendani/Appel-lee.
    Charles L. Stern, Jr., Alan M. Cohen, The Steeg Law Firm, L.L.C., Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

I ¿This is an appeal by Clement B. Guil-lot, Jr., plaintiff-appellant, from a judgment sustaining an exception of prescription urged by various defendants-appellees in plaintiffs suit to set aside two 1992 sheriffs sales of immovable property. For the following reasons we affirm that judgment.

The legal background of the sheriffs sales is as follows. Plaintiff is the only child of Clement Guillot, Sr. and Odile Gourgues. Upon his mother’s death plaintiff became owner of one half of the property at issue here with a usufruct in favor of his father. Upon his father’s death in 1986, plaintiff opened his succession and was appointed administrator. In his petition for appointment he represented that he was the decedent’s son and sole heir of the estate. It appears that there were federal tax liens filed which delayed completion of the succession.

During this time plaintiff had been sued by Champagne and Rodgers Realty Co. (C & R) and was cast in judgment for $480,172.57. On appeal to this court that judgment was affirmed in an unpublished opinion. Champagne and Rodgers Realty Co., Inc. v. Henning, 548 So.2d 969 (La. App. 5th Cir.1989), writ denied, 3552 So.2d 394 (La.1989). C & R next began proceedings to have Guillot’s interests in properties inherited from his mother, as well as various immovables in the succession, seized and sold at sheriffs sales. Those sales took place on December 30,1992, and the properties at issue here were purchased by C & R.

In the mid-1990’s C & R failed to pay taxes on the properties, and Laprop, Inc. eventually acquired the titles in 2003 via various tax sales. Laprop in turn sold the properties in June of 2003 to Aurora and Juan Perez, who are their present owners.

In March of 2005 Guillot commenced the present action to set aside the sheriffs sales. Laprop and Aurora and Juan Perez urged exceptions of the prescription of two years for sheriffs sales as per La. R.S. 9:5622, and no right of action. The trial judge sustained the exception of prescription, thus rendering the exception of no right of action moot.

Guillot now appeals asserting that La. R.S. 9:5622, which relates to “all informalities of legal procedure,” is not applicable here for two reasons. First, he contends that the attorney who requested that the writs of fieri facias be issued was not authorized to do so by the C & R officers or board of directors, and thus the entire sales proceedings were complete nullities. Second, he contends that property of an estate under administration cannot be seized and sold by a judgment creditor, and therefore the sales, at least as to the properties in his father’s estate, were complete nullities for this reason as well.

The two year prescriptive period provided in La. R.S. 9:5622 is intended to create confidence in judicial sales by protecting good faith purchasers from litigation concerning procedural irregularities connected with such sales. First Federal Savings and Loan Assn. v. Blake, 465 So.2d 914 (La.App. 2nd Cir.1985). l4It is not, however, intended to cure absolute nullities, i.e. matters which go to the essence of the sales and affect substantive rights of parties. Id.

As to the first issue, we do not see what relevance the alleged lack of corporate authorization for seeking the writs of fieri facias has to the sales. Guillot asserts here that C & R was a closely held corporation, that two of the principal stockholders had died, and that the administrations of their successions were being disputed. He further asserts that these disputes left no one with clear authority to manage the corporation’s affairs, and therefore the seeking of the writs of fieri facias could not have been properly authorized. However, C & R, not its stockholders, was the actual judgment creditor and was clearly entitled to execute its judgment. The sheriffs sales documents show that Erny G. Simmons was the attorney for C <& R at the sales, and bought the properties in question. This does not change the fact that the actual party in interest was the corporation. If indeed there was some question as to whether Simmons was authorized by the corporation to take the actions that he did on its behalf and for its benefit that is a matter arising between him and the corporation, not between Guillot and his judgment creditor. However, to the extent that this question might properly be raised by Guillot, it would constitute nothing more than an informality of legal procedure, and would therefore be subject to the two year prescriptive period of La. R.S. 9:5622.

Guillot’s second argument is also without merit. Here he contends that property involved in a succession proceeding can not be seized and sold by a judgment creditor and therefore the purported sale here is an absolute nullity. We disagree. In Anding v. Anding, 37,778 (La. App. 2 Cir. 10/29/03), 859 So.2d 901, the court held that pursuant to La. Civ.Code Art. 938, a successor is entitled to exercise rights of ownership over his interests in an estate with the provision that if a succession representative has already been qualified the exercise of that right is Insubordinate to the administration of the estate. Although the 1997 version of Art. 938 does not address whether that enactment changed the law, its 2001 amendment via Acts 2001, No. 556, Sec. 3, states that “[t]he provisions of this Act are remedial and interpretive and shall be applied retroactively.” It was clearly the Legislature’s intent to recognize that the provisions of the act did not change the law as it had existed prior to either version of Art. 938. It is equally clear that the Legislature deemed this issue to be one of procedure rather than substance. There was thus no impediment to Guillot exercising his right to sell or otherwise dispose of his interests in property of the succession, subject only to the requirement that this right be subordinate to the administration of the succession. Further, if Guillot could alienate the property, then his judgment creditor could also do so by way of a sheriffs sale. As to the rights of the succession, Guillot was the succession representative, had notice of the impending sale, and made no attempt to stop it. Finally, these are all procedural issues which are within the ambit of the prescriptive period of La. R.S. 9:5622. In these circumstances, Guillot can not now claim that the sales were defective on grounds that the succession was pending at the time they took place.

In his reply brief in this court Guil-lot for the first time argues that the original judgment upon which the writ of fieri facias issued was an absolute nullity. It is well settled that appellate courts will not consider issues raised for the first time on appeal which were not pleaded in the court below and which the court below did not address. Future Trends, LLC v. DeGeorge, 05-355 (La.App. 5 Cir. 11/29/05), 917 So.2d 646. We therefore decline to address this issue.

|,;For the foregoing reasons the judgment of the district court sustaining the exception of prescription and dismissing this action with prejudice is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Alexander SURRY, Jr., Appellant.
    No. 41,909-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 26, 2006.
    Alexander Surry, Pro Se Petitioner.
    Paul J. Carmouche, District Attorney, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   I, WRIT DENIED.

Applicant, Alexander Surry, seeks review of a district court judgment denying Surry’s motion requesting a retroactive application of La. R.S. 15:308, and requesting resentencing under retroactive application of Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature.

After reviewing the newly enacted provisions of La. R.S. 15:308, we conclude that those provisions only entitle eligible persons to apply to the Louisiana Risk Review Panel pursuant to La. R.S. 15:574.22. The new provisions do not give such persons the right to file a motion in the sentencing court for amendment, modification, or reconsideration of their sentence. Although provisions allowing the filing of such a motion in the sentencing court were originally included in Senate Bill No. 126 of the 2006 regular session, those provisions were deleted and replaced with the provisions of La. R.S. 15:308(C) which entitle such persons to apply to the Louisiana Risk Review Panel instead. Accordingly, we agree with the First 12Circuit Court of Appeal’s opinion in State v. Dick, 2006-1381 (La.App. 1st Cir.7/20/06), 943 So.2d 389, 2006 WL 2023864, writ granted 2006-KP-2223 (La.09/29/06), 937 So.2d 848, holding that a motion to correct an illegal sentence is not a proper vehicle for seeking the sentencing benefits provided in R.S. 15:308.

For these reasons, the writ application is hereby denied.


author: AMY, Judge.

text:
    Linda HARBOR v. CHRISTUS ST. FRANCES CABRINI HOSPITAL.
    No. 2006-593.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Kathryn Fowler Van Hoof, VanHoof Law Firm, LeCompte, LA, for Defendant/Appellant, Christus St. Frances Cabrini Hospital.
    Eugene A. Ledet, Jr., Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff/Appellee, Linda Harbor.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   AMY, Judge.

bln this workers’ compensation dispute, the claimant-employee was injured while in the course and scope of her employment with the defendant hospital. She subsequently filed a disputed claim for compensation. Instead of a trial, the parties submitted the matter for a decision based on trial briefs and exhibits. The workers’ compensation judge found in the claimant’s favor. The defendant’s motion for new trial was denied. The defendant appeals, asserting three assignments of error. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that on October 15, 1998, Linda Harbor, a housekeeper at Christus St. Frances Cabrini Hospital, attempted to lift a twenty-five pound garbage bag when she “immediately felt something like a crack in her back.” Harbor was rushed to Cabrini’s emergency room; X-rays were taken and she was given medication. Harbor was subsequently treated by several physicians in different medical fields for pain caused by the work-related accident.

Harbor filed a disputed claim for compensation form seeking “[attorney fees and penalties for employers failure to authorize medical treatment with James W. Quillin, PhD as recommended by her treating physician, Robert K. Rush, M.D.; failure to authorize payment of prescription medications prescribed by her treating physicians.” Cabrini responded by filing its own disputed claim form in which it questioned the medical necessity of a psychological evaluation. In addition, Cabrini referenced Harbor’s alleged “failure to cooperate with vocational rehabilitation.” The |gform included a notation regarding the termination/suspension of benefits and also referenced attorney fees.

In her amended disputed claim form, Harbor also requested “[ajttorney fees and penalties for employer’s failure to pay medical bills associated with treatment received as a result of the injuries sustained by employee.” Cabrini alleged, in its amended disputed claim form, that Harbor made fraudulent misrepresentations for the purpose of obtaining mileage reimbursement.

There was no trial on the matter. In lieu of live testimony, the workers’ compensation judge (WCJ) permitted the parties to submit the matter for a decision based on trial briefs with exhibits attached thereto. With regard to Harbor’s “claim for penalties and attorney[’]s fees associated with the failure to timely authorize medical care and the late payment of medical bills and prescriptions!,]” the WCJ stated that “since the filing and submission to the Court, essentially the claimant has withdrawn her claim for those matters and has presented no evidence to support those matters. So those claims are withdrawn, and they’re withdrawn with prejudice.”

The WCJ denied Cabrini’s claims. Cabrini subsequently filed a motion for new trial, which the WCJ also denied. Cabrini now appeals, asserting the following assignments of error:

1. The finding of the trial judge that HARBOR did not fail to cooperate with vocational rehabilitation efforts (including but not limited to missing numerous voc rehab meetings without notice, failure to pursue a G.E.D., failure to pursue psychological treatment, physical therapy and a work hardening program recommended by her physicians), is manifestly erroneous and reversible in the law and not supported by the Record, especially considering that even HARBOR responded to CABRINI’s allegation of failure to cooperate with voc rehab efforts by noting merely that no court order yet existed compelling cooperation.
\o2. The finding by the trial judge that mileage reimbursement misrepresentations by HARBOR were simply mistakes due to confusion caused by medication and low IQ and were not a willful intent to deceive is manifestly erroneous and reversible in the law and not supported by the Record, where there was no evidence that, at the time she completed the mileage reimbursement forms, the appellee was suffering from confusion caused by medication aggravated by low IQ and she was, in fact, represented by an attorney at the time the forms were completed, through whose office the forms were submitted for reimbursement.
3. The judgment of the trial court was clearly contrary to law and evidence, thus mandating a new trial pursuant to La. C.C.P. art. 1972, and the court also erred in not granting a new trial for good ground pursuant to La. C.C.P. art. 1973.

Discussion

Standard of Review

In Shepard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308, the supreme court held that even when the evidence consists solely of written reports, records, and depositions, the appellate court cannot overrule the trial court’s finding of fact absent manifest error. See also Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022.

Vocational Rehabilitation

Cabrini argues that in filing its disputed claim form, it sought “cooperation with vocational rehabilitation efforts when HARBOR initially refused to meet with the vocational rehabilitation consultant!.]” Furthermore, it contends that Harbor consistently failed to “cooperate with medical case management and vocational rehabilitation efforts after the process finally began, including many missed appointments” with the vocational rehabilitation consultant, physical therapist, and psychologist. Cabrini asserts that Harbor did not attempt to get her GED. Citing La.R.S. 23:1226, Cabrini argues that the WCJ committed manifest error in not issuing Ran order compelling Harbor’s cooperation with vocational rehabilitation. Lastly, Cabrini alleges that the WCJ erred in not finding that Harbor’s failure to cooperate prevented her from completing vocational rehabilitation.

Louisiana Revised Statutes 23:1226 provides in pertinent part:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
(c) The expedited procedure shall also be made available to the employer to require the employee’s cooperation in the rehabilitation process. Refusal to accept rehabilitation as deemed necessary by the worker’s compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal.
In his oral ruling, the WCJ stated:
[T]he employer contends that they are entitled to suspend or reduce Ms. Harbor’s benefits for failure to comply with a work hardening psychological program to get her back in the work force essentially alleging that they’re entitled to reduction for failure to comply with vocational rehabilitation and they argue in brief that Ms. Harbor has failed to comply or cooperate with a medical case manager; however, I note the case of Martin versus Davison Transport, Incorporated, 810 So.2d, Page 1103 [ (La.2/22/02) ], where the Supreme Court decided that the employer has no right to a medical case manager to begin with. So since the employer has no right to a medical case manager, there can be no requirement that an injured worker comply with any requests made by a medical case manager.
They argue that she had failed to cooperate with any vocational efforts, that she had failed to even try to go back to work on her own, and she has failed to cooperate with medical care. I note the case of Banks versus Industrial Roofing and Sheet Metal Works, Incorporated, 696 So.2d, Page 551 [ (La.7/1/97) ], wherein the Supreme Court laid out the guidelines with respect to vocational rehabilitation and pointed out that the employer cannot point to a claimant’s lack of effort in lieu of the |Bemployers presenting sufficient evidence of job availability within the claimant’s physical capabilities.
However, before there can even be a lack of effort on behalf of the employee, there must first be appropriate vocational rehabilitation offered. So I looked at the exhibits, Defense Exhibit 16 with regard to the efforts of vocational rehabilitation, which apparently commenced after the litigation was filed by Ms. Harbor in this case.... It says in a report dated November 19th of 2004 that there’s a complete vocational evaluation and job seeking skills training performed .... There is [sic] no records to show me that the vocational counselor did any type of educational testing to ascertain the level of ability that Ms. Harbor had.
We know from the records in May of 2004 that she has low intelligence, that she’s reading at a third grade level. There’s no indication that the vocational counselor, Ms. Theresa Lous (phonetic) was even aware of that information when she suggested to Ms. Harbor that she get a GED[.] There is no evidence in the record that Ms. Harbor is even capable of acquiring a GED with her low intelligence. They contend that Ms. Harbor has failed to comply in doing this. Well, she has transportation problems that are well documented] throughout the vocational records — the medical — the case — the nurse case manager’s records, they suggest to Ms. Harbor that she go down to the School Board and bring with her Ten Dollars ($10.00) for the testing. Well, I find that this is sham rehabilitation. Certainly the rehabilitation counselor could have paid for the testing material, brought that herself to Ms. Harbor, had Ms. Harbor take the test to see if she was even qualified to obtain an [sic] GED. Moreover, as even argued by the employer in its brief, they contend she failed to do this because it would have made her more employable. And I emphasize the words more employable for light duty, because that indicates to the Court that at least they recognize that she was somewhat employable for light duty, yet they made no effort to provide any type of vocational rehabilitation to get her any type of light-duty employment.
[In] Louisiana Pacific Corporation versus Albritton[Allbritton] (phonetic), [2000-366 (La.App. 3 Cir.10/11/00), ]773 So.2d, Page 170, ... the Third Circuit noted that it was inappropriate to suspend benefits for failure to attend physical therapy ... Now I return to the issue of whether or not she cooperated with a work hardening program, whether or not she had reason to cooperate with a work hardening program and psychological follow up in association with the work hardening program.
In her depositions, Ms. Harbor testified that subsequent to her medical care and her surgery, she has been having problems with her legs swelling.... Dr. Watermeier has attributed the claimant’s intermittent left leg swelling to the effects of vein ligation during surgery, and the blood flow must reestablish or re-route itself following | fisurgery. This development is not uncommon following surgery and may take several years to resolve. Treatment consists of elevating legs and possibly a compression stocking.
She is under the continuing medical care, and I realize the doctor said she is capable of light duty in August of 2003 and in May of 2004 the psychologist said from a psychiatric point of view she is able to work, but I particularly note in June of 2005, she has a worsening condition, she needs more medical testing, she needs referrals and consults for treatment of that care. So I simply conclude at this juncture that vocational rehabilitation is presently inappropriate until Ms. Harbor’s full medical condition is diagnosed and properly treated.

In Flynn Manufacturing v. Deville, 95-1282, pp. 2-3 (La.App. 3 Cir.3/6/96), 670 So.2d 766, 767, writ denied, 96-0816 (La.5/17/96), 673 So.2d 610, the employer appealed the hearing offer’s ruling that vocational rehabilitation was not necessary. In affirming the hearing officer’s ruling, a panel of this court stated:

The reduction of benefits for refusal to participate in a vocational rehabilitation program offered by an employer is governed by La.R.S. 23:1226(E), which states in relevant part:
Refusal to accept rehabilitation as deemed necessary by the hearing officer shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal.
La.R.S. 23:1226(E); (emphasis added).
The hearing officer reviewed the record evidence and found that the defendant’s pending surgery made the plaintiffs request for vocational rehabilitation premature. The manifest error standard applies to the review of the factual determinations made by a hearing officer in a worker’s compensation action. The findings of fact should be overturned only if “clearly wrong.” Alexan der v. Pellerin Marble and Granite, 93-1698 (La.1/14/94); 630 So.2d 706.
Based on our review of the record, we cannot say that the hearing officer was clearly wrong in her determination that the vocational rehabilitation was not necessary at that time. The fact that the outcome of the operation is unknown would make a prior vocational assessment useless. It would be impossible to accurately predict the result of the ^pending operation in order to make a determination of Deville’s post-operation capacity. The vocational evaluation and rehabilitation would be far more appropriate after the results of the operation were available.

Here, too, we find no clear error in the WCJ’s determination that vocational rehabilitation was not necessary at the time of ruling. The WCJ did not rule out the possibility that Harbor may need vocational rehabilitation in the future. Rather, he determined that vocational rehabilitation was “presently inappropriate until Ms. Harbor’s full medical condition is diagnosed and properly treated.”

Accordingly, this assignment has no merit.

Mileage Reimbursement

Cabrini argues that the WCJ erred in “ruling that HARBOR did not willfully make false statements for the purpose of obtaining workers’ compensation mileage benefits when she represented in writing that she traveled as follows and claimed the .following mileage expense reimbursement when she did not, in fact, incur travel expense on those dates[.]” Cabrini, therefore, contends that pursuant to La.R.S. 23:1208, Harbor’s willful misrepresentations should result in her forfeiture of workers’ compensation benefits.

Louisiana Revised Statutes 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In Cajun Rental & Services v. Hebert, 05-482, p. 5 (La.App. 3 Cir. 12/30/05), 918 So.2d 605, 608, this court explained:

Forfeiture of workers’ compensation benefits is proper when: “(1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Const. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12. A workers’ compensation judge’s determination as to whether the elements of La.R.S. 23:1208 are satisfied will not be reversed on appeal absent manifest error. Labor Finders v. Batiste, 04-1586, (La.App. 3 Cir. 4/6/05), 899 So.2d 190, writ denied, 05-1149 (La.6/24/05), 904 So.2d 743.
In his oral ruling, the WCJ explained:
[T]here was no trial of this matter. As I said, it was all submitted on deposition which makes it a little bit difficult for this Court, because we’re dealing with credibility issues and a lot of that determination is made by a Court’s observation of persons testifying' but here no one testified, no adjusters testified, Ms. Harbor did not testify, and the only thing I had to review was records and— and depositions. So I reviewed the two depositions of Ms. Harbor, the one taken by Ms. Van Hoof and the deposition taken by Mr. Ledet and reviewed all the documents submitted in support of the 1208 violation claim.
And, essentially, as I have reviewed the matter, it boils down to the fact that Ms. Harbor submitted a claim for medical reimbursement, mileage reimbursement in October of 2003 which encompassed the time from January of 2003 through October of 2003 and essentially on the first page apparently of that mileage submission, the matters in dispute by the employer are a visit to Dr. Wat-ermeier on January the 16th of 2003, a visit to Dr. Watermeier on April 4th of 2003, to Dr. Adinolfí on April 26th of 2003 and to Dr. Watermeier on May 12th of 2003.
It is contended by the employer that with respect to the appointment with Dr. Watermeier on May 12th of 2003 that they had previously paid transportation for that visit and as well as having paid transportation for a visit, I believe it was, January 16th of 2003 with Dr. Wat-ermeier. And in the deposition of Ms. Harbor taken by Ms. Van Hoof, questions were asked as to whether or not Ms. Harbor had ever made any reimbursement of payments that allegedly she was not due for this allegedly false mileage claim. And there’s an affidavit that’s filed in exhibits ... medical records showing the dates of visits of Ms. Harbor. We know that Ms. Harbor doesn’t drive herself to any visits, and so I have to review this carefully ... to determine whether or not Ms. Harbor had a willful intent to deceive.
laAnd I find significant in making this determination the records of Dr. Bian-chini (phonetic) ... who is a psychologist that the employer had examine Ms. Harbor in respect to whether or not she — she needed certain types of psychological care or work hardening program or pain adjustment treatment. And Dr. Bianchini did his evaluation in April of 2004, and essentially Ms. Harbor noted to Dr. Bianchini that because of the medications and problems she was having in association with her claim that she was suffering from some confusion ... But significantly I note that when he did his testing of Ms. Harbor, he noted that her overall IQ was only 66 which was low average.
The mileage request was submitted months after she made the actual mileage trips and she said she did this from a calendar and she — and in the brief submitted on her behalf that she — she said she made a mistake and that was her testimony in both depositions and essentially the employer says, ‘Well, you know, this is just hindsight an[ ] attempt to rehabilitate yourself.” However, I conclude based on my review that there has been no intentional — intentional nor willful deposition — misrepresentation of the mileage.
The only thing I could find as a possible overpayment would have been a trip on April — on January 16th of 2003 to Dr. Watermeier, apparently where there was some prepaid transportation. However, as the records — medical records reflect and has been pointed out in brief on behalf of Ms. Harbor, she actually made a visit to Dr. Adinolfi on March 26th of 2003 and had made no claim for mileage reimbursement, and his medical records do reflect that she actually had that appointment and she made the appointment and the mileage claim indicates that she made no attempt to collect for that mileage reimbursement. She never insisted after she received a lessor sum of payment then she had submitted that she was due the payments for the travel apparently in question by the employer. She has been receiving compensation benefits from 1998, no indication in all that length of time that Ms. Harbor ever intentionally tried to receive anything to which she was not entitled under Workers’ Compensation Law.
I accept Ms. Harbor[’s] explanation that it was a mistake given her low average IQ and her confusion and [sic] noted by the psychologist, by the defense attorney in the questioning of Ms. Harbor and by all the other records.

In her deposition dated August 9, 2005, Harbor was questioned at length about the mileage reimbursement form that she completed. According to Harbor, that form |inwas completed in October 2003; she was requesting reimbursement for doctor’s appointments that she attended in January 2003 to October 2003. Harbor stated that she completed the form using a calendar in which she wrote down all of her appointments. She further stated that in October 2003, she was on medications that made her sleepy, drowsy, and caused memory problems. Harbor admitted that she made some mistakes and offered explanations for putting the wrong dates and/or doctor’s names.

We note, as the WCJ did, that he did not have the opportunity to assess Harbor’s credibility and demeanor by in-court testimony, but rather only by deposition. However, jurisprudence nonetheless provides that the WCJ was free to accept or reject any part of Harbor’s deposition testimony. Cross v. Lake Area Rehab. Serv., Inc., 00-224 (La.App. 3 Cir. 10/11/00), 771 So.2d 768. As such, we find no manifest error in the WCJ’s determination that Harbor did not make fraudulent misrepresentations regarding her mileage reimbursement.

This assignment is without merit.

New Trial

Cabrini alleges that the WCJ’s judgment was clearly contrary to the law and the evidence; therefore, a new trial is warranted under La.Code Civ.P. art. 1972 or 1973.

Louisiana Code of Civil Procedure Article 1972 states that a new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” Louisiana Code of Civil Procedure Article 1973 provides that a “new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” When reviewing the grant or denial of a motion for new trial under lnLa.Code Civ.P. arts. 1972 and 1973, the appellate court cannot reverse the WCJ’s decision unless an abuse of discretion can be demonstrated. Smith v. Alliance Compressors, 05-855 (La.App. 3 Cir. 2/1/06), 922 So.2d 674.

In its motion for new trial, Cabrini advanced arguments similar to those asserted in the instant appeal. After reviewing the record, we find no abuse of discretion in the WCJ’s denial of the motion for new trial insofar as there are no peremptory or discretionary grounds warranting a new trial. Therefore, this assignment has no merit.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are assessed against the defendant, Christus St. Frances Cabrini Hospital.

AFFIRMED.

      . As the extent of Harbor's injuries have been documented in a prior appeal, we do not discuss them here. See Harbor v. St. Frances Cabrini Hospital, 01-1551 (La.App. 3 Cir.5/15/02), 817 So.2d 1269, writ denied, 02-1684 (La. 10/4/02), 826 So.2d 1125.


author: AMY, Judge. SAUNDERS, J.,

text:
    SUCCESSION OF William J. MOSS.
    Nos. CW 2006-289, CA 2006-848.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Kenneth A. Goodwin, New Orleans, LA, for Respondent, Coury Moss, Inc.
    James Paul Lambert, Oscar E. Reed, Jr., The LaBorde Law Firm, Lafayette, LA, for Respondent, A. Sam Coury.
    James Huey Gibson, Neil G. Vincent, David J. Ayo, Allen & Gooch, Lafayette, LA, for Applicant, Sharon K. Moss.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   AMY, Judge.

hMrs. Moss, individually, as dative testamentary executrix of her husband’s succession, and as president of the closely held corporation in which the decedent was a shareholder, contests the trial court’s Order Enforcing Final Judgment. She contends that the order requires the transfer of stock which she does not yet have in her possession and permits the opposing shareholder to escape the procedural requirements of La.R.S. 10:8-405. She also argues that the order erroneously compels performance by the corporation, a nonparty. Dr. Coury seeks a determination that this matter is not properly appealable. He also requests damages for frivolous appeal. We affirm.

Factual and Procedural Background

This case has an extensive history and arrives again for review of an Order Enforcing Final Judgment. For purposes of discussion, we revisit a portion of the litigation’s background.

Coury Moss, Inc. was established in 1979 by William J. Moss and A. Sam Coury. One thousand shares were issued in the closed corporation. Mr. Moss held 250 shares, while Dr. Coury held the remaining 750 shares. Per a Shareholders Agreement, also executed in 1979, Dr. Coury agreed to sell five hundred shares in the corporation, in one hundred share allotments, to Mr. Moss between 1980 and 1984. While Dr. Coury transferred three hundred shares between 1980 and 1982, he did not transfer the remaining two hundred shares. Mr. Moss died in 1989 while suit was pending as to the failure to transfer the remaining two hundred shares. Mr. Moss’s |2wife, Sharon K. Moss, was named dative testamentary executrix of the Succession.

Coury Moss, Inc.’s Articles of Incorporation indicate that at the death of a shareholder owning twenty-five percent or more of the stock, his heirs or legal representatives are required to transfer “at book value, to the corporation, all of his stock, provided he or his legal heirs or representatives may retain up to 25% of the stock of [the] corporation.”

Following litigation as to the above provisions, a panel of this court ordered the partition of the 550 shares held by Mr. Moss and his interest in the two hundred shares that were not transferred in 1983 and 1984. See Succession of Moss, 00-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, unit denied, 00-2834 (La.12/8/00), 776 So.2d 462. The court distributed one-half of the interest to Mrs. Moss and one-half to the Succession. The court ordered Mrs. Moss, in her individual capacity, and the Succession to pay Dr. Coury book value for the shares. Finally, the court instructed Mrs. Moss and the Succession to retain no more than a total of twenty-five percent of the shares and transfer the remainder to Coury Moss, Inc.

Subsequently, a judgment entered in an ongoing portion of this litigation determined that Dr. Coury had been compensated for the two hundred shares that he was required to transfer to Mrs. Moss and to the Succession. With regard to the value of the shares ordered returned to Coury Moss, Inc., another judgment indicated the “book value for two hundred fifty (250) shares of Coury Moss, Inc. stock was $95,212.50 upon the death of William J. Moss.”

In October 2005, Dr. Coury filed a Motion to Execute Final Judgment and asserted that, pursuant to La.Code Civ.P. art. 2251, he was due enforcement of the | judgment rendered in Succession of Moss, 769 So.2d 614. Dr. Coury submitted his affidavit and that of his attorney indicating that the stock certificates representing the two hundred shares of stock he was ordered to transfer to Mrs. Moss and the Succession were lost. He also filed an “Act of Transfer of Stock of Coury Moss, Inc.” acknowledging the loss of the certificates and attempting to transfer one hundred of the shares of stock to Mrs. Moss and one hundred shares to the Succession.

Following a hearing, the trial court rendered the “Order Enforcing Final Judgment” now under review. The Order enforced the opinion rendered in | Succession of Moss, 769 So.2d 614 and required Dr. Coury to request re-issuance of the stock according to the terms of La.R.S. 10:8-405. The trial court ordered Dr. Coury to personally indemnify the company for any loss associated with the original lost certificates. The trial court also ordered Mrs. Moss, as President of Coury Moss, Inc., to cancel the original certificates and issue one hundred shares to herself and one hundred shares to the Succession and then, pay $95,212.50 to herself and $95,212.50 to the Succession for the transfer of a total of five hundred shares to Coury Moss, Inc. The order declared that, after these transfers, Coury Moss, Inc. ownership would be as follows: Dr. Coury. — 250 shares; Mrs. Moss — 125 shares; Succession of William J. Moss— 125 shares; CMI treasury — 500 shares. The trial court ordered that the required actions take place within thirty days.

Mrs. Moss, individually, as executrix of the succession, and as President of Coury Moss, Inc., suspensively appealed and also filed an application for review by supervisory writ. This court ordered the matters consolidated. In both filings, Mrs. Moss assigns the following as error:

I. The trial court erred in granting SAM COURY the relief he sought as he never complied with this Court’s ruling in Succession of Moss, 2000-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614.
II. The trial court erred in holding that SAM COURY did not have to comply with the entirety of La. R.S. 10:8-105.
III.The trial court erred in ordering Sharon K. Moss, in her capacity as President of Coury Moss, Inc., to cause Coury Moss, Inc., a non-party, to perform certain non-ministerial acts as such relief is not available via mandamus or mandamus-like procedure and can only be brought via ordinary procedure against CMI as a party.

IsDr. Coury answered the appeal, arguing that there is no review by appeal of what he terms an “executory order” of the trial court and, thus, an injunction or review by supervisory writ are the only available relief. He also seeks damages for frivolous appeal.

Discussion

Prematurity

As she did below, Mrs. Moss argues that enforcement of the appellate decision is premature. She contends that Dr. Coury has not yet properly transferred the two hundred shares that remain due under the Shareholders Agreement. The transfer was required by final judgments in Succession of Moss, 769 So.2d 614 and in Moss v. Coury, 97-640 (La.App. 3 Cir. 12/10/97), 704 So.2d 1248, writ denied, 98-0783 (La.5/29/98), 720 So.2d 340. Mrs. Moss contends that without this initial transfer, she and the Succession are in possession of only 550 shares and, thus, they cannot comply with the order insofar as it orders the transfer of five hundred shares to Coury Moss, Inc. and the retention of 125 shares for herself and 125 for the Succession.

This prematurity argument ignores those portions of the order that focus on Dr. Coury’s preliminary responsibilities. Both Succession of Moss, 769 So.2d 614, and the trial court’s order specify a series of events. The trial court clearly established a path by which Dr. Coury must first transfer the outstanding two hundred shares. This transfer order took into account the procedure that must be followed in order to transfer the shares given the fact that the certificates were lost. Specifically, the order indicates that “upon compliance of A. Sam Coury with the Lost Stock Order ... [,]” Mrs. Moss is ordered to perform thereunder. It is erroneous to assert that the order requires performance only by Mrs. Moss or that her performance must occur prior to that of Dr. Coury. This assignment lacks merit.

¡J£LclR.S. 10:8-Jp05

Mrs. Moss next questions the trial court’s determination that Dr. Coury must comply with La.R.S. 10:8-405 in replacing the lost stock certificates, but that he is not required to file a bond with the issuer.

Entitled “Replacement of lost, destroyed, or wrongfully taken security certificate,” La. R.S. 10:8-405 provides, in part:

(a) If an owner of a certificated security, whether in registered or bearer form, claims that the certificate has been lost, destroyed, or wrongfully taken, the issuer shall issue a new certificate if the owner:
(1)so requests before the issuer has notice that the certificate has been acquired by a protected purchaser;
(2) files with the issuer a sufficient indemnity bond; and
(3) satisfies other reasonable requirements imposed by the issuer.

The issue of the filing of a bond was discussed at length at the hearing on the motion to enforce. The trial court ultimately ordered that:

A. Sam Coury make request for re-issuance of certificates 5 & 6 representing 100 shares of Coury Moss, Inc. each, and that he comply with the provisions of La.R.S. 10:8-405, except that he is relieved from providing an indemnity bond. A. Sam Coury should include an agreement to indemnify Coury Moss, Inc. from any losses or costs associated with any future presentation of or claims by third parties claiming to own or possess the lost original certificates 5 & 6.

While the language, above, would appear that the trial court is relieving Dr. Coury, in full, from providing an indemnity bond, the remainder of the paragraph indicates that the trial court permitted Dr. Coury to guarantee against any future claims with a personal bond. Thus, Coury Moss, Inc. is afforded the protection of a bond, but through Dr. Coury’s personal bond rather than a commercial bond. Although evidence as to Dr. Coury’s ability to personally indemnify the business was not 17accepted at the hearing, the trial court was aware that, even after the transfer, Dr. Coury will hold 250 shares of stock. We find no error in the trial court’s ruling under these circumstances.

Performance of Specific Acts

Finally, Mrs. Moss points out that Coury Moss, Inc. is not a party to these proceedings and argues that the trial court erred in ordering her, as President of Coury Moss, Inc., to perform certain actions on behalf of the company. She asserts that, while she can personally anticipate performing as ordered by the court, “[t]here is no order by the court against CMI to purchase the 500 shares or to pay any price therefor. CMI’s obligations with respect to the 500 shares, if any, are a matter for another court, on another day, in a proceeding properly instituted against CMI.”

The judgment in Succession of Moss, 769 So.2d 614 had been final for six years before the motion to enforce was presented to the trial court. Very few actions had been taken in complying with the express order of this court. In that light, the trial court fashioned its order to clearly establish the measures required of all concerned in carrying out both the implied and express orders of the appellate decision. The court recognized that the corporation is a closed one and is owned in full by the |sparties before it. Given its authority pursuant to La.Code Civ.P. art. 191, we find no error in its ruling.

Answer to the Appeal

In his answer, Dr. Coury asserts that review of the trial court’s order, if any, must be by application for supervisory writ. As noted above, Mrs. Moss filed both an application for supervisory writ as well as an appeal. These filings have been consolidated. Accordingly, we deny his answer in this regard. We further deny his request for damages for frivolous appeal insofar as we do not find the appeal to have been taken solely for the purpose of delay, that serious legal questions have not been raised, or that counsel does not believe in the position advanced. Evans v. City of Natchitoches, 05-1278 (La.App. 3 Cir. 4/5/06), 927 So.2d 608, unit denied, 06-1039 (La.6/23/06), 930 So.2d 982.

DECREE

For the foregoing reasons, the Order Enforcing Final Judgment is affirmed. All costs of this appeal are assigned to the appellant, Sharon K. Moss, individually, as dative testamentary executrix of the Succession of William J. Moss, and as President of Corny Moss, Inc.

AFFIRMED.

SAUNDERS, J., dissents in part.

SAUNDERS, J.,

dissents in part.

14 dissent in part. I would award damages for frivolous appeal. In all other respects, I agree with the majority.

      . This court has reviewed rulings in this matter on a number of occasions. See Succession of Moss, 00-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462; Moss v. Coury, 97-640 (La. App. 3 Cir. 12/10/97), 704 So.2d 1248, writ denied, 98-783 (La.5/29/98), 720 So.2d 340; Moss v. Coury, 613 So.2d 270 (La.App. 3 Cir.1992), writ denied, 614 So.2d 1259 (La. 1993); Coury v. Moss, 613 So.2d 272 (La.App. 3 Cir.1992), writ denied, 614 So.2d 1259 (La. 1993); Coury v. Moss, 613 So.2d 273 (La.App. 3 Cir.1992), writ denied, 614 So.2d 1259 (La. 1993); Moss v. Coury, 613 So.2d 270 (La.App. 3 Cir.1992), writ denied, 614 So.2d 1259 (La. 1993); Moss v. Coury, 602 So.2d 175 (La.App. 3 Cir.1992).

        . Entitled "Execution only in trial court; appellate court judgment,” Article 2251 provides:
      A judgment can be executed only by a trial court.
      A party seeking to execute a judgment of an appellate court must first file a certified copy with the clerk of the trial court. This filing may be made without prior notice to the adverse party.

      . The Order provides, in part:
      The Court, after hearing argument of counsel, and considering the matters filed of record herein, ruled as follows:
      IT IS ORDERED that the Judgment of the Third Circuit Court of Appeal dated June 21, 2000, is hereby enforced.
      IT IS FURTHER ORDERED that A. Sam Coury make request for re-issuance of certificates 5 & 6 representing 100 shares of Coury Moss, Inc. each, and that he comply with the provisions of La.R.S. 10:8-405, except that he is relieved from providing an indemnity bond. A. Sam Coury shall include an agreement to indemnify Coury Moss, Inc. from any losses or costs associated with any future presentation of or claims by third parties claiming to own or possess the lost original certificates 5 & 6.
      IT IS FURTHER ORDERED that upon compliance by A. Sam Coury with the Lost Stock Request Order, Sharon K. Moss, in her capacity as President of Coury Moss, Inc. shall cancel certificates 5 & 6 on the records of Coury Moss, Inc. and issue to Sharon K. Moss, individually, 100 shares in Coury Moss, Inc. and issue to Sharon K. Moss, as Dative Testamentary Executrix for the Succession of William J. Moss, 100 shares in Coury Moss, Inc.
      IT IS FURTHER ORDERED that Sharon K. Moss as President of Coury Moss, Inc. pay out of the accounts of the corporation the following sums:
      A. $95,212.50 to Sharon K. Moss for 250 shares of Coury Moss, Inc.
      B. $95,212.50 to the Succession of William J. Moss for 250 shares of Coury Moss, Inc.
      After the entries ordered above and in compliance with the Third Circuit Court of Appeal Judgment, the ownership of Coury Moss, Inc. shall be as follows:
      A. Sam Coury, 250 shares;
      B. Sharon K. Moss, 125 shares;
      C. Succession of William J. Moss, 125 shares, which shares will continue to be voted by the Executrix, Sharon K. Moss, on behalf of the Succession;
      D.500 shares held as treasury shares by Coury Moss, Inc.
      IT IS FURTHER ORDERED that all actions ordered by this Court take place within 30 days of this Order.

      . Again, the judgment requires, in part:
      IT IS FURTHER ORDERED that upon compliance by A. Sam Coury with the Lost Stock Request Order, Sharon K. Moss, in her capacity as President of Coury Moss, Inc. shall cancel certificates 5 & 6 on the records of Coury Moss, Inc. and issue to Sharon K. Moss, individually, 100 shares in Coury Moss, Inc. and issue to Sharon K. Moss, as Dative Testamentary Executrix for the Succession of William J. Moss, 100 shares in Coury Moss, Inc.
      IT IS FURTHER ORDERED that Sharon K. Moss as President of Coury Moss, Inc. pay out of the accounts of the corporation the following sums:
      A. $95,212.50 to Sharon K. Moss for 250 shares of Coury Moss, Inc.
      B. $95,212.50 to the Succession of William J. Moss for 250 shares of Coury Moss, Inc.

      . Article 191 provides that: “A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”