author: AMY, Judge.

text:
    Derry LABORDE, et al. v. Kirby M. PECOT, et al. Kenyawn Augustine, et al. v. New Horizon Kids Quest, IV, Inc., et al. Kenyawn Augustine, et al. v. Kirby M. Pecot, et al. Louis and Jennifer Blalock, et al. v. New Horizon Kids Quest, IV, Inc., et al.
    Nos. CW 2005-285, CW 2005-304, CW 2005-330, CW 2005-365, CW 2005-369, CW 2005-374, CW 2005-376, CW 2005-401, CW 2005-406, CW 2005-407, CW 2005-1011, CW 2005-1044, CW 2005-1057.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      See also 873 So.2d 1 and 351 F.Supp.2d 519.
    Raymond L. Brown, Jr., Lottie L. Bash, Gold, Weems, Bruser, Sues & Rundell, APLC, Alexandria, LA, for Gremillion Corrugated, LLC.
    Steven Claude Judice, Chad Sullivan, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Larry Stockwell Heating & Air-Conditioning, Federated Mutual Insurance Company.
    David J. Schexnaydre, Wade Dillard Rankin, Edward J. Lassus, Jr., Mary E. Lord, Pajares & Schexnaydre, LLC, Cov-ington, LA, for Fulcrum Insurance Company.
    Ralph R. Alexis, III, Porteous, Hainkel & Johnson, LLP, Harry E. Forst, New Orleans, LA, Christopher T. Grace, III, Metairie, LA, for Coastal Air Balance, Inc.
    William B. Baggett, Wells T. Watson, Baggett, McCall, Burgess, Watson & Gau-ghan, Lake Charles, LA, Eugene A. Ledet, Jr., Rivers, Beck, Dalrymple & Ledet, Alexandria, LA, Tristón Kane Knoll, Jerold Edward Knoll Jr. Esq., The Knoll Law Firm, Marksville, LA, for Louis Blalock, et al., Derry Laborde, et al., Kenyawn Augustine, et al.
    Terrence L. Brennan, Keith J. Berger-on, Deutsch, Kerrigan & Stiles, LLP, New Orleans, LA, for Atrium Vinyl Products.
    Richard D. Chappuis, Jr., Kristen Broussard Menard, Hoai T. Hoang, Voor-hies & Labbé, Lafayette, LA, Kirby M. Pecot, d/b/a Pecot & Co. Architects Design Professional Ins. Co.
    Simone Chachere Dupre, Voorhies & Labbé, Lafayette, LA, for Kirby M. Pecot.
    Dominic Joseph Gianna, Michael Otis Waguespack, Alan Dean Weinberger, Mid-dleberg, Riddle, & Gianna, New Orleans, LA, Lawrence J. Duplass, Claire A. Breaux, Andrew D. Weinstock, Duplass, Zwain, Bourgeois & Morton, APLC, Me-tairie, LA, Whitney A. Klein, Christopher Carton, McCarter & English, Newark, NJ, for The Trane Company.

      Gary M. Zwain, Kevin R. Derham, Du-plass, Zwain, Bourgeois & Morton, APLC, Metairie, LA, for Jefferson Sprinkler Company, Inc.
    Jerry J. Falgoust, Dauzat, Falgoust, Ca-viness and Bienvenu, Opelousas, LA, for D.W. Fire Stopping, Inc.
    Ronald J. Fiorenza, Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC, Alexandria, LA, for Alvarez Donnoway-Pas-sons, Inc.
    John P. Doggett, Zebulon M. Winstead, Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC, Alexandria, LA, for Dixie Roofing and Sheet Metal Company, Inc., Century Insurance Group, Colony Insurance Company.
    R. Joshua Koch, Jr., Spyridon, Koch, Palermo & Doman, LLC, Metairie, LA, for Tunica-Biloxi Indians, Paragon Casino Resort.
    Rachelle Deckert Dick, Forrester, Jordan & Dick, LLC, Baton Rouge, LA, for Tunica-Biloxi Indians of Louisiana, Paragon Casino Resort.
    Milton O’Neal Walsh, Walsh & Bailey, Baton Rouge, LA, for Security Insurance Company of Hartford.
    William L. Melancon, Dawn M. Fuqua, Joseph T. Puhekker, Melancon & Associates, LLC, Lafayette, LA, for Security Insurance Co. of Hartford, M & E Consulting, Inc.
    Leigh Haynie, Joseph Joy & Associates, Lafayette, LA, for M & E Consulting, Inc., Security Insurance Company of Hartford.
    Gary Paul Kraus, Richard Joseph Petre, Jr., Onebane Law Firm, Lafayette, LA, for Security Insurance Company of Hartford, Gunn Electric Company, Inc.
    Michael P. Maraist, Onebane Law Firm, Lafayette, LA, for Gunn Electric Company, Inc.
    Thomas Edward Loehn, Charles K. Chauvin, Boggs, Loehn & Rodrigue, New Orleans, LA, for Design Tex Group.
    DeWitt T. Methvin, Jr., Alexandria, LA, for State Farm Insurance Company.
    Larry A. Stewart, Stafford, Stewart & Potter, Alexandria, LA, for Liberty Mutual Insurance Co., F.L. Crane & Sons, Inc.
    Charmagne A. Padua, Jay M. Lonero, Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, for TIG Insurance Company.
    Rodney M. Rabalais, Rabalais & Roy, Marksville, LA, for Tunica Biloxi Construction Co.
    Patrick J. Hanna, Rabalais, Hanna & Hebert, Lafayette, LA, for Tunica Biloxi Construction Co.
    Charles A. Schutte, Jr., Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Signlite, Inc.
    Robert A. Vosbein, Adams and Reese, LLP, New Orleans, LA, for Continental Casualty Company.
    John B. Davis, Adams and Reese, LLP, Baton Rouge, LA, for Continental Casualty Company.
    David A. Hurlburt, George D. Ernest, III, Hurlburt, Privat & Monrose, APLC, Lafayette, LA, for Berg, Inc.
    Lourdes Estevez Martinez, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, ALC, New Orleans, LA, for Travelers Indemnity Company.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for New Horizon Kids Quest, Inc.
    Matthew J. Ungarino, Ungarino & Ec-kert, LLC, Ray F. Lucas, III, Lafayette, LA, for Specialty Surplus Insurance Company.
    David I. Bordelon, Ungarino & Eckert, LLC, Baton Rouge, LA, for Specialty Surplus Insurance Company.

      David K. Nelson, George T. Hawthorne, Jeffrey N. Boudreaux, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, LLP, Baton Rouge, LA, for Custom Metal and Siding, Dwayne Whatley.
    Roy M. Mosley, CNA Environmental & Mass Tort, San Francisco, CA, for CNA Insurance Company.
    Richard G. Duplantier, Jr., Stephen J. Moore, Michael D. Lonegrass, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for CNA Insurance Company, McElroy Metal, Inc.
    D. Patrick Daniel, Jr., Mark R. Pharr, III, Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, LA, for McElroy Metal, Inc.
    David P. Salley, Glen E. Mercer, Salley, Hite, Rivera & Mercer, New Orleans, LA, for Zurich American Insurance Company.
    Christopher S. Hardy, Penny & Hardy, APLC, Lafayette, LA, for Republic Vanguard Insurance Company.
    Keith C. Armstrong, Scott C. Barney, Chaffe McCall, LLP, Baton Rouge, LA, for Senergy, Inc.
    Bonita K. Preuett-Armour, Armour Law Firm, LLC, Alexandria, LA, for G.W. Moreau Metal Buildings, Glen Moreau, State Farm Insurance Company.
    Richard T. Musgrave, Musgrave, Mc-Lachlan & Penn, LLC, New Orleans, LA, for Western World Insurance Company, JES, Inc.
    S. Aaron Siebeneicher, Johnson & Sie-beneicher, Alexandria, LA, for Western World Insurance Company, JES, Inc.
    Michael D. Rubenstein, Kenneth T. Wallace, Liskow & Lewis, APLC, New Orleans, LA, for Sellers & Josephson, Inc.
    John T. Walsh, Lathrop & Gage, L.C., St. Louis, MO, for Sellers & Josephson, Inc.
    Before the Court En Banc: ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe defendants filed applications for supervisory writs with this court after the trial court denied their exceptions of no right of action and various other exceptions. This court granted the writs, noting both that La.R.S. 22:655 does not provide for direct action in state court against the insurer of a party claiming sovereign immunity and that the Tunica-Biloxi Indian Tribe is an indispensable party to the state court matter as previously held in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. The Louisiana Supreme Court denied in part and granted in part the plaintiffs’ related writ application and remanded the matter for reconsideration of the question of indispensability. For the following reasons, we deny the defendants’ writ applications and remand for further proceedings.

Factual and Procedural Background

This matter stems from the construction of a hotel at the Paragon Casino Resort in Marksville, Louisiana. Paragon is allegedly owned and operated by the Tunica-Biloxi Tribe of Louisiana. The general contractor for the Paragon construction project was Tunica-Biloxi Construction Company. Adjacent to the hotel, Paragon housed a daycare center owned and operated by New Horizon Kids Quest, IV, Inc. In 2002, former employees and customers of Paragon and New Horizon brought suit against the Tribe, New Horizon, and subcontractors involved in the construction of Paragon’s North Tower Hotel. The plaintiffs alleged that toxic mold developed shortly after the hotel’s opening, causing them injury. The Tribe filed an exception of subject matter jurisdiction based on sovereign immunity. The non-Tribe defendants also filed exceptions, contending that the Tribe was an indispensable 12party to the suit. The trial court granted the exceptions. The decision was affirmed by a panel of this court in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1.

The matter is again before this court as the present four matters were filed while Bonnette, 873 So.2d 1, was pending. These suits involve the same plaintiffs and defendants, as well as additional plaintiffs and defendants. However, the Tribe’s insurer, TIG Insurance Company, was named as a defendant rather than the Tribe in three of the suits. The plaintiffs named neither TIG nor the Tribe in the fourth matter.

The defendants filed numerous exceptions in the first three matters, including no right of action, lack of indispensable party and related exceptions such as res judicata and lis pendens. After this court issued Bonnette, finding the Tribe to be an indispensable party and affirming the dismissal of the suits involved therein, the trial court conducted a hearing involving the four new lawsuits and took the matters under advisement. The trial court ultimately denied the defendants’ exceptions of no right of action and lack of indispensable party, as well as the remaining exceptions.

On writs of review, this court reversed the trial court’s denial of the exceptions of no right of action and lack of indispensable party, dismissing the plaintiffs’ claims as follows:

The trial court erred in denying the exceptions of no right of action and failure to join an indispensable party. Louisiana Revised Statute 22:655 does not provide for direct action in state court against the insurer of a party claiming sovereign immunity. Additionally, the Tunica-Biloxi Indian Tribe is an indispensable party to the litigation in state court. Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. Accordingly, the | Rtrial court’s ruling is hereby reversed and set aside, and plaintiffs’ claims against the defendant are hereby dismissed.

See Laborde v. Pecot, unpublished writ opinions rendered June 29, 2005 bearing docket numbers 05-285, 05-304, 05-330, 05-365, 05-369, 05-374, 05-376, 05-379, 05-381, 05-384, 05-401, 05-406, and 05-407. See also Laborde v. Pecot, unpublished writ opinions rendered January 5, 2006 and bearing docket numbers 05-986, 05-1011, 05-1017, 05-1044, 05-1052, 05-1057, 05-1072, 05-1090.

The plaintiffs applied for writs to the Louisiana Supreme Court. The supreme court denied in part and granted in part the application and explained:

Denied in part, granted in part. There is no error in that portion of the court of appeal’s ruling dismissing the Tribe’s insurers). See La. R.S. 22:655(B). However, with respect to the defendants other than the Tribe’s insurer(s), the case is remanded to the court of appeal for reconsideration of the applicable factors under La.Code Civ. P. art. 641 in light of La. Civ.Code arts. 2323 and 2324, as interpreted in Dumas v. State, 02-0563 (La.10/15/02), 828 So.2d 530.

See Laborde v. Pecot, 05-2254 (La.3/17/06), 925 So.2d 522; Laborde v. Pecot, 06-0290 (La.3/17/06), 925 So.2d 523. Thus, the matter arrives at this court for further consideration in light of the supreme court’s instructions.

Discussion

The defendants each offer their own opposition to the trial court’s denial of the exceptions. In sum, the question before the court, at this point, is whether the Tribe is a necessary party pursuant to La.Code Civ.P. art. 641, and, if so, whether Article 642 requires dismissal of the action against the remaining defendants in light of the breadth of La.Civil Code arts. 2323 and 2324.

I/Fhe plain wording of La.Code Civ.P. arts. 641 and 642 indicates that, in certain circumstances, dismissal of an action against remaining defendants may be appropriate if a necessary party cannot be joined. The articles provide:

Art. 641. Joinder of parties needed for just adjudication

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Art. 642. Determination by court whenever joinder not feasible

If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

In Bonnette, 873 So.2d 1, this court worked through the analysis required by these articles. The conditions of Article 641 were found to be satisfied, as the Tribe could not be joined due to its immunity in state court and, thus, relief would be limited to [¿the fault apportioned, if any, between the remaining defendants. The court also noted that the Tribe’s absence would impair its ability to protect its interest and, furthermore, that, should the matter be pursued in tribal court, the parties risked the possibility of multiple or inconsistent obligations. Finding the Tribe necessary under the criteria of Article 641, the panel turned to Article 642 and found that circumstances warranted dismissal due to the considerations of Paragraphs (3) and (4).

The possibility of dismissal through application of La.Code Civ.P. arts. 641 and 642, and as found applicable in Bonnette, appear to be in high tension with La.Civ. Code arts. 2323 and 2324, which provide:

Art. 2323. Comparative fault

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced.

Art. 2324. Liability as solidary or joint and divisible obligation

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
|fiB. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

In Dumas v. State ex rel. Department of Culture, Recreation & Tourism, 02-0563 (La.10/15/02), 828 So.2d 530, the supreme court considered a case in which the family of a man who died following a bicycle accident brought a wrongful death and survival action against the State, alleging that the bicycle accident was caused by a roadway defect. In an amended answer, the State alleged that the medical negligence of the hospital where the victim was treated was the sole cause of his death. The plaintiffs filed a motion to strike the amended answer and asserted that the allegations of any subsequent negligence were immaterial and irrelevant and arguing that the original tortfeasor was the legal cause of any injury arising from subsequent medical treatment. The trial court granted the motion to strike. The first circuit affirmed. The supreme court granted the State’s writ application and reversed the granting of the motion to strike in light of Articles 2323 and 2324. The court explained:

Article 2323 provides that “[i]n any action for damages ..., the degree of percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty.... The [foregoing] provisions ... shall apply to any claim ... asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.” (Emphasis added.) Thus, this article clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.

17Likewise, the language of Article 2324(B) is equally clear. It provides that, in non-intentional cases, liability for damages caused by two or more persons shall be a joint and divisible obligation. Each joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of that other person. This provision abolishes solidarity among non-intentional tortfeasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323.

In this case, the State alleges that a portion of the damages sought by plaintiffs was caused by medical malpractice on the part of the health care provider treating Mr. Dumas for the injuries he sustained in the bicycle accident. Pursuant to Article 2323, the fault of both the State and the allegedly negligent health care providers should be determined notwithstanding the fact that the health care providers are nonparties. Under Article 2324(B), if a jury determines that both the State and the health care providers negligently injured Mr. Dumas and plaintiffs, then the liability between them will be a joint and divisible obligation, they will not be solidarily liable, and each joint tortfeasor will be liable only for his portion of fault. The comparative fault article La.C.C. art. 2323, makes no exceptions for liability based on medical malpractice; on the contrary, it clearly applies to any claim asserted under any theory of liability, regardless of the basis of liability. There is no conflict between either Article 2323 or Article 2324(B) and the Medical Malpractice Act that could be fairly classified as “absurd.” Accordingly, we find the clear language of Articles 2323 and 2324(B), applied as written, leads to the inescapable conclusion that the State in this case must be allowed to put on evidence related to the health care provider’s alleged fault as part of its defense. While we recognize that these articles, which substantially impede the ability of an injured party to obtain full recovery of his damages, are in derogation of established rights and are to be strictly construed, Touchard, 617 So.2d at 892, we simply cannot construe their unmistakably clear language in a contrary manner without overstepping our role as jurists.

Id. at 537-38 (footnotes omitted).

While Dumas addressed the apparent expansiveness of Articles 2323 and 2324, it did not address the apparent conflict between the dismissal of the case anticipated by Article 642 and Article 2323’s requirement of apportionment of fault between all actors. Neither did Dumas involve the question of an actor who is beyond the jurisdiction of the court due to sovereign immunity. This case involves all of these elements and presents the challenge of interpreting these seemingly conflicting |sarticles in light of one another. See La.Civ.Code art. 13, which instructs that: “Laws on the same subject matter must be interpreted in reference to each other.” Moreover, as noted in Dumas, 828 So.2d 530, the judiciary may not disregard the public policy decisions on which legislation is based, nor may it reweigh the balance of interests and policies previously struck by the legislature.

The parties’ submissions indicate that, since Bonnette however, the circumstances surrounding this case have changed. Recall that, in Bonnette, the court explained that the Tribe was a necessary party due, in part, to the risk of multiple or inconsistent obligations stemming from the possibility of a proceeding in tribal court. Subsequently, in a related matter in the United States District Court for the Western District of Louisiana, the trial court determined that the land on which the hotel was constructed was not Indian Country until after construction. See Tunica-Biloxi Indians of Louisiana v. Pecot, 351 F.Supp.2d 519 (W.D.La.2004). Thus, the possibility of tribal court proceedings related to activities during that time period has been eliminated as has the risk of multiple or inconsistent verdicts/obligations stemming from these ancillary proceedings.

This case now requires a different analysis than that employed in Bonnette as the crucial element of the possibility of tribal court proceedings has been eliminated from the analysis required by La.Code Civ.P. art. 641. Further, when we examine Article 642(4) in light of this development, it is apparent that there is no longer the possibility that the plaintiffs “will have an adequate remedy if the action is dismissed for nonjoinder.” Rather, with this element eliminated, Article 642(3), which asks “[wjhether a judgment rendered in the person’s absence will be adequate[,]” becomes central to the analysis. Articles 2323 and 2324 indicate that the legislature has positively identified a verdict comparatively assessing the fault of all actors as 19adequate. In the present iteration of this lawsuit, Article 642 no longer requires dismissal of this action against the remaining defendants. The trial court did not err in denying the defendants’ exceptions.

We also note that there are defendants remaining who contend that their involvement in this matter stems from injury incurred on tribal property and did not arise until after the construction of the hotel and, therefore, their involvement is outside the scope of Pecot, 351 F.Supp.2d 519. However, we find no error in the denial of the exceptions of these defendants. Rather, the filings before us do not indicate that further proceedings are likely, or even possible, against these defendants in another forum. In this respect, these defendants have not met their burden of proving entitlement to dismissal under Articles 641 and 642.

DECREE

For the foregoing reasons, the writ applications are denied. Costs of this proceeding are assessed to the relators. The matter is remanded to the trial court for further proceedings.

WRIT DENIED. REMANDED.

      . We recognize that Louisiana Code of Civil Procedure Articles 641 and 642, as amended in 1995, no longer classify parties as “necessary” or “indispensable.” Instead, the articles consider "joinder” of a party. See also La.Code Civ.P. art. 927. However, the filings in this matter continue to frame the question as one of indispensability, a term that is particularly descriptive here due to the question of whether dismissal is appropriate.

      . We have not considered arguments outside of the supreme court's specific remand instructions.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. PAINTER, Judge

license: Public Domain

text:
    Brenda BORDELON v. Gregory P. BORDELON.
    No. 2006-537.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Jack W. Caskey, Lake Charles, LA, for Plaintiff/Appellant — Brenda Bordelon.
    Nathan A. Cormie, Todd Holman Melton, Nathan A. Cormie & Associates, Lake Charles, LA, for DefendanVAppellee— Gregory P. Bordelon.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| ¶Brenda Bordelon, the former wife of Gregory Bordelon, appeals the trial court’s denial of her reimbursement requests in this property partition dispute. During their marriage, Gregory and Brenda Bor-delon built a new home on Gregory’s separately owned property. The couple used community funds and donated their labor in constructing the house, significantly increasing the value of the property.

In partitioning the property after their divorce in 2001, Brenda Bordelon sought reimbursement under La.Civ.Code art. 2366 for one-half of the community funds expended and under La.Civ.Code art. 2368 for one-half of the enhanced value of the property. After a bench trial, the trial court denied Brenda Bordelon’s requests for reimbursement.

We conclude that the trial court erred in failing to reimburse Brenda Bordelon one-half of the community construction funds under La.Civ.Code art. 2366 and in failing to reimburse her one-half of the enhanced value of the property under La.Civ.Code art. 2368, subject to offsets for the funds expended and the balance due on the community debt. Accordingly, we reverse the judgment of the trial court and render specific awards for reimbursements as fully set forth below.

I.

ISSUES

We must decide:

(1) whether the trial court erred in failing to award Brenda Bordelon one-half of the community funds expended on the separate property of Gregory P. Bordelon pursuant to La.Civ. Code art. 2366; and
(2) whether the trial court erred in failing to award Brenda Bordelon one-half of the increase to the value of the separate property of Gregory P. Bordelon pursuant to La.Civ.Code art. 2368.

_kll.

FACTS AND PROCEDURAL HISTORY

At the time of the marriage in 1983, Gregory Bordelon owned a lot which was his separate property. The lot contained two buildings, a shop and a storage building, that are also Gregory’s separate property.

In 1989, the couple built a house on the lot and subsequently lived in it with their children as the family residence. This home is the subject of the current dispute. During the construction of the home, Gregory, who was a carpenter, provided most of the labor in constructing the house, along with the couple’s friends and family members who donated their time and assistance. Brenda cooked meals for the builders, organized and cleaned up the construction site, purchased materials and supplies, kept the financial records, paid the bills for the construction, and raised the children of the marriage. The house was built in approximately three months. Labor was performed in the days and evenings and on weekends. During this time, Gregory maintained his employment with Tomassi Construction. Brenda did not work outside the home at that time.

Most of the labor on the home was donated except for checks written to individuals for laying bricks and flooring and for finishing sheetrock, for a total of $2,940.50. Brenda wrote checks to cash and to Gregory, indicating some hourly work; she did not write checks to herself for hourly work. Notwithstanding the description on the checks as hourly work, the parties specifically stipulated that these checks were part of the $38,000.00 used to buy materials and goods to build the house. All of the construction costs were paid from community funds obtained from the proceeds of a community loan. The family lived in and maintained the home for eleven or twelve years after its construction.

|sAt the time of the final divorce in September 2001 the parties entered into a partial settlement wherein the furniture was distributed, and each party accepted a vehicle and its attendant debt. The only asset in dispute is the house, and the only debt in dispute is the construction loan for the house.

The parties have stipulated that (1) the lot on which the house was built is Gregory’s separate property; (2) the value of the materials to construct the house was $38,000.00; (3) the lot, two buildings, and the home constructed during the marriage are Gregory’s separate property; and (4) a community loan was taken out by both parties in February 1989 for $41,440.00, from which the construction materials were purchased. The remainder of the loan was used to buy furnishings.

Brenda sought reimbursement for one-half of the $38,000.00 in community funds expended in the construction of the house under La.Civ.Code art. 2366, which is $19,000.00. Brenda, asserting that the house has a value of $115,000.00, also sought reimbursement under La.Civ.Code art. 2368 for one-half of the enhanced value of the property due to the construction of the house, which is $57,500.00. She seeks the total of $19,000.00 plus $57,500.00, or $76,500.00.

After the trial of this matter, the trial court rendered a judgment against Brenda, awarding her nothing. The court declined to address La.Civ.Code art. 2366 and specifically held that Brenda Bordelon was not entitled to one-half of the increased value of the property under La. Civ.Code art. 2368. It is from this judgment that Brenda appeals.

JJII.

LAW AND DISCUSSION

Standard of Review

The Louisiana Supreme Court has articulated the standard of review for findings of law and fact as follows:

An appellate court should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Domin[]gue, 365 So.2d 1330 (La.1978). However, if a court finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord deference to the fact-finder, they nonetheless have a constitutional duty to review facts. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court verdict was clearly wrong based on the evidence or clearly without evidentiary support. Id. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880, 882 (La.4/12/93).

Oubre v. Eslaih, 03-1133, pp. 8-9 (La.2/6/04), 869 So.2d 71, 76-77.

Reimbursement under La.Civ.Code art. 2366

Brenda contends that the trial court erred in failing to reimburse her one-half of the $38,000.00 in community funds expended on the construction of the home on the separate property of Gregory Bordelon pursuant to La.Civ.Code art. 2366. That article provides as follows:

Art. 2366. Use of community property for the benefit of separate property

|KIf community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.
Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community assets belong to the owner of the ground. Upon termination of the community, the other spouse is entitled to one-half of the amount or value that the community assets had at the time they were used.

Accordingly, La.Civ.Code art. 2366 provides in paragraph two that constructions permanently attached to the ground on the separate property of a spouse, even if constructed with community assets, belong to the owner of the ground. In this case, there is no dispute, and the parties stipulated to the fact, that the lot and buildings, including the house constructed on the lot during the marriage, are the separate property of Gregory Bordelon. However, Article 2366 also provides that where community property or community funds have been used to improve or benefit the separate property of the owner spouse, the non-owner spouse is entitled, upon termination of the community, to one-half of the improvement costs. In this case, the parties stipulated that the community funds used to buy materials and construct the house had a value of $38,000.00. Therefore, the amount sought by Brenda Bordelon under Article 2366 is one-half of the $38,000.00 in community funds expended, which is $19,000.00.

In Brehm v. Brehm, 00-201 (La.App. 5 Cir. 6/27/00), 762 So.2d 1259, writ denied, 00-2286 (La.10/27/00), 772 So.2d 657, the marital domicile was built with community funds on Mr. Brehm’s separate property during Mr. and Mrs. Brehm’s marriage. The cost of building the house was $23,588.93. Under La.Civ.Code art. 2366, Mrs. Brehm was awarded $11,794.47, which was one-half of |Bthe initial construction costs of building the house. Similarly, in the present case, Brenda is entitled to reimbursement under La.Civ.Code art. 2366 of $19,000.00, which is one-half of the $38,000.00 in construction funds used to build the house.

While the trial court did not address reimbursement under Article 2366, Gregory admits that he owes Brenda $19,000.00 under this article. However, Gregory contends that the $19,000.00 that he owes Brenda is cancelled out by the total amount of reimbursements that she owes him. We will address each of his assertions regarding the offsets.

The first involves the construction loan. The parties stipulated that the construction loan of $41,400.00, which supplied the construction funds of $38,000.00, was a community obligation. Accordingly, Gregory asserts that Brenda owes him one-half of the balance due on the community loan, which he also asserts was paid down to $22,913.32. Therefore, Gregory argues that Brenda owes him $11,456.66 on the loan. In this case, the parties stipulated that the construction loan was a community debt even though it was largely applied to Gregory’s separate property. Therefore, the debt is subject to partition, and in the final calculations Brenda will be obligated to reimburse Gregory $11,456.66 for one-half of the principal balance of the loan, which is the only community debt at issue herein. However, in order to simplify matters, we will not apply the offset for this community liability until we have determined the total amount of community assets at issue.

Gregory also contends that under La. Civ.Code art. 2365 Brenda owes him reimbursement of one-half of the $17,547.20 in mortgage payments that he made on the loan after she moved out of the house, which comes to $8,773.60. According |7to Gregory’s calculations, this brings Brenda’s indebtedness to $20,230.26, which cancels out the $19,000.00 that he owes her under Article 2366.

We disagree. Gregory is not entitled to reimbursement under La.Civ.Code art. 2365 for one-half of the mortgage payments that he made on the community obligation from his separate funds after the divorce. That article provides as follows:

Art. 2365. Satisfaction of community obligation with separate property

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.
Nevertheless, if the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, and education of children of either spouse in keeping with the economic condition of the community, the spouse is entitled to reimbursement from the other spouse regardless of the value of that spouse’s share of the community.

Gregory began making mortgage payments in February 2002, after the community regime ended in 2001. Therefore, he made mortgage payments on a stipulated community debt on an asset in his possession with his own separate funds. We have held that “the reimbursement scheme contemplated by La.Civ.Code art. 2365 pertains solely to debts paid during the marriage, and not those paid after divorce.” Sheridon v. Sheridon, 03-103, p. 7 (La.App. 3 Cir. 2/4/04), 867 So.2d 38, 44 (en banc) (emphasis added). More specifically, in Sheridon, where the divorce |Rsuit was filed in October 1999 and the last day of trial was in November 2001, this court articulated as follows:

Mr. Sheridon asserts that the trial court erred in requiring him to reimburse Ms. Sheridon $4,110.25, representing one half of the amounts she paid between October 5,1999, and November 15, 2001, on the note executed to finance the purchase of the Pontiac Firebird. In asserting this argument, he relies on this court’s decisions in Bergeron v. Bergeron, 96-1586 (La.App. 3 Cir. 4/9/97), 693 So.2d 199, and Preis v. Preis, 94-442 (La.App. 3 Cir. 11/2/94), 649 So.2d 593, writs denied, 94-2939, 94-2942 (La.1/27/95), 649 So.2d 392.
In Preis, we cited jurisprudence from the other circuits to conclude that “a spouse who has the exclusive use of an automobile following the termination of the community, is not entitled to reimbursement or credit for notes paid on it.” Preis v. Preis, 649 So.2d at 596. Bergeron reached the same conclusion.
However, another panel of this court, in Nash v. Nash, 01-766 (La.App. 3 Cir. 10/31/01), 799 So.2d 829, writ denied, 01-3154 (La.2/1/02), 808 So.2d 344, concluded that La.Civ.Code art. 2365 governed the reimbursement issue, and declined to follow this court’s holdings in Preis and Bergeron. The issue is now before us en banc to resolve the split within this circuit on this issue. In addressing this issue, we reaffirm our decisions in Preis and Bergeron.
Louisiana Civil Code Article 2365 provides:
If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.... The phrase “upon termination of the
community property regime” is crucial to our interpretation of La.Civ.Code art. 2365. The Article does not say “upon partition,” but specifically uses the words “upon termination.” Because of the specific language used, it is clear that the reimbursement scheme contemplated by La.Civ.Code art. 2365 pertains solely to debts paid during the marriage, and not those paid after divorce. Thus, Ms. |flSheridon would be entitled, under La.Civ.Code art. 2365, to reimbursement for community debts she paid with separate funds before termination of the marriage. As such, La.Civ.Code art. 2365 is not applicable to the matter before us, and we specifically overrule this holding in Nash.

Id. at 44 (emphasis added).

Based upon the foregoing, Brenda does not owe Gregory reimbursement under La. Civ.Code art. 2365 for one-half of the $17,547.20 (or $8,773.60) in mortgage payments that Gregory made on the construction loan in 2002 after the termination of the marriage in 2001.

Therefore, Brenda does not owe greater reimbursements to Gregory than the $19,000.00 reimbursement that he owes her under La.Civ.Code art. 2366. We reverse the trial court’s decision to omit adjudication of the parties’ respective obligations regarding both the community debt and the reimbursement under Article 2366. We now turn to the issue of whether the improvement to Gregory’s property is subject to partition as a community asset under La.Civ.Code art. 2368.

Reimbursements under La.Civ.Code art. 2368

Brenda contends that the trial court erred in failing to reimburse her one-half of the value of the improvement to Gregory’s property resulting from the construction of the house, pursuant to La.Civ.Code art. 2368. We agree that an award should be made under Article 2368, but we do not agree with Brenda’s calculations. More specifically, the article provides as follows:

Art. 2368. Increase of the value of separate property
If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor.

| in(Emphasis added).

To prevail on a claim under Article 2368, the claimant spouse must prove: (1) that the improved property is separate; (2) that the property increased in value during the existence of the matrimonial regime; (3) that common or community labor of the spouses was expended on the separate property; and (4) that the common labor expended was uncompensated or undercompensated. If established, the burden shifts to the owner of the separate property to prove that some or all of the enhancement in value occurred because of factors other than the uncompensated or undercompensated community labor. The claimant spouse does not have to show that his or her labor was expended on separate property. It is enough to show that the labor of either spouse was so expended. Salley v. Salley, 95-0387 (La.10/16/95), 661 So.2d 437.

Moreover, once the claimant seeking reimbursement has established that the increase in the separate property of the other spouse is entirely or partially due to under — or uncompensated community labor of the other spouse, the claimant is entitled to one-half of the enhanced value of the separate property, even if that value exceeds the value of the uncompensated labor. Krielow v. Krielow, 93-2539 (La.4/11/94), 635 So.2d 180.

The rationale underlying Article 2368 is that:

Because property acquired by the effort, skill or industry of a spouse is community, to the extent that a spouse’s labor is producing some benefit, the community ought to share in the profit of that labor. Thus, in the case where a spouse’s labor increases the value of a separate asset, the equitable solution is reimbursement for that effort by awarding the non-owner spouse one-half of the increase attributable to the common labor. La. C.C. art. 2368. If the labor is combined with separate capital or other separate property, equity would suggest a proportional division of the profits between the community and separate estates of the spouses. Katherine S. Spaht & W. Lee Hargrave, In Louisiana Civil Law Treatise, Matrimonial Regimes, Vol. 16, § 3.8 & 3.49 (2d ed.1997).

McClanahan v. McClanahan, 03-1178 (La.App. 5 Cir. 2/23/04), 868 So.2d 844, 848, writ denied, 04-1175 (La.9/3/04), 882 So.2d 609.

With regard to the labors of the owner-spouse, it is further reasoned that “[a] spouse should not be permitted to deprive the community of a spouse’s earnings that would be community property when that community labor enhances or increases the value of the laboring spouse’s separately owned property.” Krielow, 635 So.2d at 183.

In the present case, the parties stipulated that the property at issue is the separate property of Gregory. Therefore, the first criterion is met. Likewise, there is no dispute that the property increased in value during the marriage due to the construction of the home. Accordingly, the second criterion is met.

The third criterion that Brenda must prove is that the community labor of either spouse was expended on the separate property. The testimony at trial reflects that Gregory was an excellent carpenter and an all-around skilled builder and that he provided labor on the home in numerous capacities, including hanging the sheetrock. The record also contains testimony that he worked on the house every day for three months, often working alone and often until ten or twelve o’clock at night. The record also reflects that Brenda contributed her labor by purchasing supplies; maintaining the financial records; paying the construction bills; organizing, cleaning and sweeping the construction site; cooking meals for the helpers; and raising the children of the community during the construction. Clearly, both spouses contributed their labor in the construction of the home.

The final criterion that Brenda must prove under Salley, 661 So.2d 437, is that the common labor expended was uncompensated or undercompensated. At 11gtrial, Gregory testified that he never received money and was not paid for the work he performed on the home. Likewise, there is no allegation or proof that Brenda was compensated for her labor on Gregory’s separate property. There are checks written between April and July 1989 on the community construction account made payable to “cash” for hourly work in the total amount of $3,000.00 and checks made to Gregory for hourly work in the total amount of $3,743.00. Brenda testified that she wrote the checks on the construction account and deposited them to their joint personal account for the family to live on during the construction period. However, these checks came from the community loan and are part of the $38,000.00 that the parties stipulated to as costs for construction materials. This $38,000.00 has been covered in the previous section of this analysis as community funds used to enhance the separate property of Gregory.

As to labor belonging to the community, Gregory argues that he did not deprive the community of his paid labor during the building of the private home because he maintained regular employment with To-massi Construction during that period. The record contains checks paid to Gregory by a homeowner for outside labor with Tomassi Construction during the same time period that he was working on his own property. At trial, he admitted that those checks did not reflect forty hours per week every week. In fact, there was only one check for $315.00 in May of 1989. Mr. Tomassi testified that Gregory guaranteed him forty hours per week during that construction period in 1989 and indicated that Gregory maintained full-time employment with him. However, Mr. To-massi did not have records from 1989 and testified that he destroyed his records after seven years due to the volume.

Hence, the record supports Brenda’s contention that the house was built with community funds and with the labor of both spouses that was uncompensated 113to some degree. Accordingly, the final criterion in Brenda’s burden of proof is met under Salley, 661 So.2d 437.

The burden shifted to Gregory to prove that some or all of the enhancement in value occurred because of factors other than the uncompensated or undercompen-sated community labor. As a threshold matter, it is simply untenable to imply that the large majority of the value of Gregory’s property is not due to the construction of the house. The appraisal in the record values the land and small buildings at $40,-000.000 and the house constructed during the marriage at $115,000.00. Gregory argues that there is absolutely no reimbursement due under Article 2368 because the enhanced value occurred due to other factors, not because of uncompensated community labor but because of the donated labor of friends and family and contractors paid for their work. The record does not support such a contention. Only six checks were written to contractors totaling $2,940.50 for cement floor finishing, bricklaying and sheetrock floating. The record further reveals that, while friends and family members of the couple assisted Gregory in the building of the home, Gregory did the majority of the actual construction work on the home. The only amount paid to contractors was $2,940.50.

Gregory further argues that the value of the labor on the house at the time that it was built was equal only to the cost of the materials, giving the house a total value of $76,000.00 in 1989, and that the more recent appraisal of $115,000.00 was due to a market phenomenon. However, Gregory overlooks the fact that the family lived in the house for eleven or twelve years after it was built, and it was the community labor of both spouses that maintained the home during that period. Moreover, we note that Brenda lived in the house and maintained it for another year after the marital regime ended. If left to sit dormant, a house will not maintain its | Uvalue. If the house had been abandoned after completion in 1989 it would likely not be worth the materials used to build it. Nature has a way of reclaiming man’s abandoned constructions. But for the continuing labor of the spouses, the house would have little value indeed. The photographs accompanying the appraisal depict a lovely brick-front home, which we find is the result mostly of the under — or uncompensated labor of both spouses.

In Krielow, 635 So.2d 180, Lynn Krielow established under La.Civ.Code art. 2368 that Carl Krielow’s undercompensated community labor for his separate corporation enhanced or increased his separately owned stock. The burden shifted to Carl, as the owner of the separate property, to prove that some or all of the enhancement occurred because of other factors. Carl failed to meet his burden of proof, and the court remanded the case to the trial court for a determination of the amount of reimbursement to Lynn Krielow. In that case, Carl worked solely for his own corporation, and he was paid in draws found to be relatively low. Once it was determined that he was undercompensated for his labor, the supreme court articulated that Lynn Krielow was entitled to one-half of the enhanced value of the corporate stock, even if that value exceeded the value of the uncompensated labor. The court stated that Article 2368 did not impose limitations on recovery and that the claimant is “entitled to recover the greater amount.” Krielow, 635 So.2d at 185.

The value of assets are determined at the time of trial. La.R.S. 9:2801. The trial of this matter was held on June 17, 2005. The date on the appraisal is May 23, 2005. Accordingly, we find that the value of the improvement to Gregory’s separate property due to the construction of the house is $115,000.00. Brenda is entitled to one-half of that amount attributable to common or community labor under La.Civ.Code art. 2368. Now we turn to calculating Brenda’s total recovery.

| ^Calculations, Offsets, and Deductions

In calculating her reimbursements, Brenda cites Loyacono v. Loyaco-no, 618 So.2d 896 (La.App. 5 Cir.1993), and asserts that she is entitled to the full amount of two separate reimbursements, one under Article 2366, and one under Article 2368. More specifically, Brenda contends that she is entitled to one-half of the $38,000.00 ($19,000.00) expended in community construction costs under La. Civ.Code art. 2366, plus one-half of the $115,000.00 ($57,500.00) enhancement value under La.Civ.Code art. 2368, for a total of $76,500.00. However, she overlooks the fact that the community construction funds plus the community labor combined to render an increased value of $115,000.00. Article 2368 provides for reimbursement, not of one-half the total enhancement value, but for “one-half of the increase attributed to the common labor.” La.Civ.Code art. 2368. The labor itself is not worth $115,000.00.

In order to determine the value of the community labor, we would subtract the community funds from the total enhancement. Accordingly, $115,000.00 minus $38,000.00 equals $77,000.00, which represents the value of the community labor expended under Article 2368. The value of the labor of $77,000.00 is then subject to division and reimbursement to the claimant spouse of one-half that amount, or $38,500.00, under Article 2368. To this amount is added one-half of the construction funds of $38,000.00, or $19,000.00, under Article 2366. The sum of $19,000.00 in funds under Article 2366 plus $38,500.00 in labor under Article 2368 equals $57,500.00. Accordingly, Brenda’s total recovery of community funds and community labor under both articles is $57,500.00.

See also McKey v. McKey, 449 So.2d 564 (La.App. 1 Cir.1984), where in a footnote the court articulated the formula as follows:

|1fi(FN 6.) Where both community improvements to separate property and enhancement of value by “uncompensated common labor and industry” are involved, as here, a formula must be devised to prevent the claiming spouse from reaping double benefit for the expenses. Although we do not reach this issue because of our conclusion here, a fair method of resolving the matter would be to determine the enhanced value .... [t]hen determine the value of the improvements placed on the separate property and subtract that amount from the enhanced value before dividing enhanced value.

Id. at 567, n. 6.

Accordingly, while Brenda is entitled to recovery under Articles 2366 and 2368, the construction funds are part of the enhanced value, and recovery under both cannot simply be stacked. To award construction costs plus the full enhancement value, without an offset, would be to award the construction costs twice. In effect, it must be stated that when funds and labor are expended on the same piece of property resulting in an enhancement to the value of that property, recovery under Article 2368 is subject to a credit or offset for the recovery awarded under Article 2366.

In Loyacono, during the marriage of the spouses, the husband purchased a house from his parents designated as his separate property purchased with his separate funds. He assumed the loan on the separate property, which the court subsequently designated as his separate loan. During the marriage, the couple and their two children lived in the house as their primary residence. The community made improvements to the house, and the community paid notes on the house. The house increased in value. In partitioning the community after the divorce, the court ordered reimbursement to the wife under La.Civ.Code art. 2366 for one-half of the cost of the improvements made with community funds. The court also reimbursed the wife |17under La.Civ.Code art. 2364 for one-half of the community mortgage payments attributable to reduction of the principle on the separate loan. Finally, finding that the increase in the value of the house was the result of community labor, the court reimbursed the wife “one-half of the enhanced value of the separate property, subject to a credit for the improvements. Loyacono, 618 So.2d at 899 (emphasis added).

By analogy, Brenda is not entitled to, nor has she requested, reimbursement for the community mortgage payments made during the marriage under La.Civ. Code art. 2364 because the parties stipulated that the loan was a community obligation, not a separate obligation as found in Loyacono. Otherwise, the findings in Loyacono apply in the present case and provide another way of calculating the recovery with the same result. As previously indicated, Brenda is entitled to reimbursement of $19,000.00 under La.Civ. Code art. 2366 for one-half of the value of the community funds of $38,000.00 used in the improvement to the separate property by construction of the house.

Additionally, under La.Civ.Code art. 2368, she is entitled to reimbursement of $57,500.00 for one-half of the property’s enhancement value of $115,000.00, subject to a credit or an offset for the improvements, pursuant to Loyacono. Accordingly, $19,000.00 plus $57,500.00 minus $19,000.00 equals $57,500.00.

Under either scenario, Brenda’s total reimbursements under Articles 2366 and 2368 come to $57,500.00. However, this is not the amount of her net recovery. Brenda has also omitted from her calculations the amount due on the 11scommunity loan. As previously indicated, from her total reimbursements of $57,500.00 Brenda Borde-Ion must reimburse Gregory Bordelon $11,456.66 for her one-half of the community debt of $22,913.32. Thus, $57,500.00 minus $11,456.66 equals $46,043.34. Accordingly, the amount of the net reimbursement due to be paid to Brenda Bor-delon by Gregory Bordelon is $46,043.34.

IV.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is reversed, and Gregory Bordelon is hereby ordered to pay Brenda Bordelon the amount of $46,043.34 in total net reimbursements due to the community’s expenditures of funds and labor on Gregory’s separate property. The costs of filing this appeal are assessed against Gregory P. Bordelon.

REVERSED AND RENDERED.

PAINTER, J., dissents in part and assigns written reasons.

PAINTER, Judge

dissenting.

[ 1 While I agree with the majority’s opinion herein that Mrs. Bordelon is due a reimbursement in connection with the construction of the family home, I disagree with regard to the amount of that reimbursement.

Louisiana Civil Code art. 2368 states:

If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor.

The court in Brehm v. Brehm, 00-201, p. 4 (La.App. 5 Cir. 6/27/00), 762 So.2d 1259, 1263, writ denied, 00-2286 (La.10/27/00), 772 So.2d 657, explained the statute as follows:

A claimant spouse under LSA-C.C. art. 2368 has the burden of proving: (1) the property is separate, (2) the property increased in value, and (3) the increase in value was based on the uncompensated or undercompensated labor of the other spouse; the burden then shifts to the other spouse to prove that the increase in value was due to factors other than the uncompensated or under-compensated labor. Salley v. Salley, 95-0387 (La.10/16/95), 661 So.2d 437, 438; Krielow v. Krielow, 93-2539 (La.4/11/94), 635 So.2d 180, 183.

The evidence at trial, however, was that Mr. Bordelon was compensated for his labor on the house. Therefore, La.Civ.Code art. 2368 does not apply. At trial, Mrs. Bordelon testified that Mr. Bordelon had been paid for his labor. Checks in the amount of $6,743.00, made out to Mr. Bor-delon or to Cash, and bearing notations that [2they were payment for labor on the house were introduced into evidence. While Mr. Bordelon testified that he was not paid, Mrs. Bordelon had the burden of showing that the labor was uncompensated. Therefore, the admission should be held against her rather than him. In the absence of uncompensated labor, I would find that Mrs. Bordelon is entitled only to reimbursement of one-half the amount used in improving Mr. Bordelon’s separate property, that is one-half of $38,000.00, as provided by La.Civ.Code art. 2366: “If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.”

For these reasons, I respectfully dissent from the majority herein.

      . Brenda was awarded use of the home in the 2001 partial settlement wherein the parties agreed that she and the children would occupy the home until the last child graduated from high school, around 2006. The settlement provided that Brenda would pay the notes on the house but that they would be considered rent and that she would waive any claim to reimbursement for the notes paid. Brenda subsequently moved out of the home earlier than agreed upon; Gregory moved in and began paying the notes on the mortgage in February 2002.

      . Art. 2364. Satisfaction of separate obligation with community property
      If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.


author: PAINTER, Judge.

text:
    Rebecca BROWN v. STATE of Louisiana, et al.
    No. 06-709.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Joseph T. Dalrymple, Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff-Appellee, Rebecca Brown.
    Lewis 0. Lauve, Jr., Special Assistant Attorney General, Alexandria, LA, for Defendant-Appellant, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

bln this claim based on medical malpractice, Defendant, State of Louisiana through the LSU Medical Center Health Care Services Division, d/b/a Huey P. Long Medical Center — Pineville, appeals the district court’s grant of summary judgment in favor of Plaintiff, Rebecca Brown. Finding that there are genuine issues of material fact, we reverse the judgment of the court below and remand the matter for trial on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Brown was thirty-two years old and had been experiencing several months of irregular menstrual cycles with profuse bleeding and significant pain. Apparently, she tried using Aleve, an anti-inflammatory, to treat her symptoms for several months to no avail. Plaintiff was seen by Dr. David Barnard at Huey P. Long Medical Center on January 31, 2002. A hysterectomy was recommended and ultimately performed on February 6, 2002 at Huey P. Long Medical Center by Dr. Margaret Carter with Dr. Carol Darwish and Dr. Yang assisting.

Following the surgery, Plaintiff requested a medical review panel, alleging that she suffered serious complications including lacerations to her bladder, that the surgery was unnecessary, and that she was never offered more conservative medical approaches to her problem in violation of the informed consent statute. After the medical review panel found in favor of Defendant, Plaintiff filed the present suit.

Plaintiff moved for summary judgment on the issue of liability and alleged that since there was no meaningful discussion of alternative therapy or treatment, there was a failure to obtain informed consent. Defendant opposed the motion and served supporting affidavits on Plaintiff on February 28, 2006. Plaintiff objected to the | ^introduction of the affidavits on the ground that they were not timely as the hearing was set for March 6, 2006. The trial court accepted the affidavits. The trial court went on to grant a summary judgment in favor of Plaintiff on the issue of liability, finding that Defendant failed to obtain a satisfactory informed consent from Plaintiff to perform a vaginal hysterectomy. No written reasons for judgment appear in the record.

Defendant appeals. Plaintiff has answered the appeal, asserting that the trial court erred as a matter of law in allowing the admission of the late-filed affidavits on behalf of Defendant. Defendant also filed a motion to the supplement the record on appeal with the deposition transcript of Dr. Carol Darwish. For the following reasons, we deny the motion to supplement, affirm the acceptance of Defendant’s affidavits, and reverse the grant of summary judgment.

DISCUSSION

Motion to Supplement Record

Defendant filed a motion to supplement the record on appeal, seeking to allow the introduction of the transcript of the deposition of Dr. Carol Darwish. Dr. Darwish’s deposition was not taken until July 19, 2006, after the lodging of the record of this case in this court. Plaintiff opposed the introduction of this deposition transcript. This matter was referred for consideration with the merits of the appeal.

Louisiana Code of Civil Procedure Article 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

| .¡Obviously, Defendant’s motion does not concern the correction of an erroneous record or allege that the record is deficient as to evidence actually introduced at the trial court. It seeks, instead, to introduce a transcript of a deposition taken after the hearing on the motion for summary judgment and after the record was lodged with this court on May 31, 2006. The deposition of Dr. Darwish is clearly new evidence. This court is not vested with the authority to receive new evidence and cannot consider evidence which was not part of the record before the trial court. White v. W. Carroll Hosp., Inc., 613 So.2d 150 (La.1992). Therefore, the motion to supplement the record on appeal is hereby denied.

Motion to Dismiss

In opposition to the Defendant’s motion to supplement, Plaintiff filed a pleading entitled, “Motion to Dismiss and Memorandum in Opposition to Motion to Supplement Appeal Record.” However, the pleading contains argument only as to Defendant’s motion to supplement the record on appeal. We are left to assume that the motion to dismiss referred to Defendant’s motion to supplement. As we have denied Defendant’s motion to supplement, we find that consideration of the motion to dismiss is unnecessary.

Motion for Summary Judgment

“It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate.” Butler v. De-Puy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730).

| ¿Louisiana Code of Civil Procedure Article 966(B) provides:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

With respect to what determines whether or not a fact is material, this court, in Broussard v. Jester, 04-18, p. 4 (La.App. 3 Cir. 6/16/04), 876 So.2d 940, 942, writ denied, 04-1787 (La.10/15/04), 883 So.2d 1056, has stated:

Material facts are those which potentially ensure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. If there is a genuinely disputed issue of material fact summary judgment is not appropriate. La.Code Civ.P. art. 966(c)(1).
In determining whether an issue is “genuine” for purposes of a summary judgment motion, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788 (La.App. 3 Cir.), writs denied, 525 So.2d 1049 (La.1988).

In light of the requirements of La. Code Civ.P. art. 966(B), we first consider Plaintiffs argument that the trial court erred in admitting the Defendant’s affidavits in opposition to the motion for summary judgment into evidence on the basis that these affidavits were not served upon Plaintiff in a timely fashion. Louisiana Code of Civil Procedure Article 966(B) provides that the adverse party’s affidavits shall be served eight days prior to the hearing unless the Rules for Louisiana District Courts provide otherwise. Uniform District Court Rule 9.9(b) provides that:

|f;A party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum must be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

In this case, the hearing was set for Monday, March 6, 2006. Defendant’s memorandum in opposition to Plaintiffs motion for summary judgment was filed with the court on February 24, 2006. The affidavits of Dr. David Barnard, Dr. Carl Darwish, and Dr. Lisa Colon were attached to said opposition. The certificate of service asserts that the documents were mailed to Plaintiff on that same date. Plaintiffs counsel avers that he did not receive the documents until February 28, 2006. In order to be in compliance with the pertinent rules, the Defendant’s opposing affidavits should have been served on February 22, 2006. However, in Peoples State Bank v. Hwy. One Crawfish, Inc., 99-1393, pp. 7-8 (La.App. 3 Cir. 5/24/00), 771 So.2d 101, 107, writ denied, 00-2842 (La.12/8/00), 776 So.2d 469, this court has recognized that:

The mere fact that the defendants’ counter-affidavits were filed untimely does not deem them inadmissible. In fact, it is entirely within the trial court’s discretion to decide whether to admit such affidavits filed untimely in violation of La.Code Civ.P. art. 966(B). Only if there is evidence that the opposing party will be prejudiced by the late introduction of the affidavits is it reversible error for a trial court to allow the affidavits to be filed. White v. Gulf States Utilities, 465 So.2d 287 (La.App. 3 Cir.), writ denied, 468 So.2d 576 (La.1985).

Plaintiff contends that she was prejudiced by the late filing of the aforementioned affidavits because “there is absolutely no reference to the individuals executing the late affidavits and claiming to have obtained informed consent from plaintiff regarding alternative therapies anywhere ...” However, we note that Dr. Barnard was deposed by Plaintiff on November 21, 2005 and that this deposition was | r,attached to Plaintiffs motion for summary judgment. We further note that his affidavit is consistent with his deposition testimony as discussed more fully below. Attached to Dr. Barnard’s deposition is an operative report which clearly lists Dr. Darwish as one of the surgeons assisting in the procedure. Dr. Lisa Colon is the physician who signed the consent forms on behalf of Defendant. As all of these af-fiants were known to Plaintiff, we find no unfair prejudice to Plaintiff by the acceptance of the late-filed affidavits. Accordingly, we find no abuse of discretion by the trial court in allowing the late affidavits to be filed and affirm the trial court’s ruling in that respect.

However, once the trial court accepted the late-filed affidavits, it was bound to consider them, as are we, in conducting our de novo review of the record. See Thibodeaux v. Ferrellgas, Inc., 98-862 (La.App. 8 Cir. 1/6/99), 741 So.2d 34, writ denied, 99-366 (La.3/26/99), 739 So.2d 797. As the trial court gave no written reasons for judgment, we can only surmise that it chose to afford the affidavits no weight and chose to believe Plaintiffs version of events. As we noted in Thibodeaux, “[o]ur law does not permit a trial court to make such credibility determinations in ascertaining the existence of a material fact when deciding motions for summary judgment.” Id at 42.

Louisiana Revised Statutes 40:1299.40 governs the requirements for informed consent to medical treatment. That statute provides, in pertinent part, as follows:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and 17that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary-cases.

Furthermore, paragraph (E)(7)(c) provides, in pertinent part that:

In order to be covered by the provisions of this Subsection, the physician or other health care provider who will actually perform the contemplated medical or surgical procedure shall:
(iii) Disclose reasonable therapeutic alternatives and risks associated with such alternatives;
(v) Provide an opportunity to ask any questions about the contemplated medical or surgical procedure, risks, or alternatives and acknowledge in writing that he answered such questions, to the patient or other person authorized to give consent to medical treatment, receipt of which shall be acknowledged in writing.

It is undisputed that Plaintiff signed a written consent form and three attachments thereto. The consent form contains a statement to the effect that Plaintiff was informed of alternatives to the recommended treatment and, by signing, acknowledges receipt of said information. Plaintiff contends that she was never offered a trial of more conservative approaches, such as hormone therapy, to treating |Rher problems and so stated in her affidavit attached to her motion for summary judgment. Dr. Barnard’s deposition was also attached in support of the motion for summary judgment. Specifically, Plaintiff pointed to the following testimony in support of her assertion that no other treatment was offered to her:

Q: All right. What about hormonal dysfunction and a trial of hormones, isn’t that recommended by ACOG and, in fact, most other modern studies and texts?
A: It can be recommended ... it would be recommended in some cases as an initial therapy, certainly.
Q: And why was it not recommended here, and why would it have been in any way inappropriate here?
A: It would not have been inappropriate there.
Q: Well, shouldn’t it at least have been offered to her as an alternative reasonable treatment?
A: I think it should have been considered by her, that’s correct.
Q: Okay. But you didn’t give her the opportunity to consider it?
A: I mentioned it. I can’t go beyond that.

Dr. Bernard went on to say that he could not recall “with what force” he advised her try the hormone therapy.

Defendant, on the other hand, contends that the informed consent forms signed by Plaintiff were valid. The affidavit of Dr. Barnard states that he personally examined Plaintiff and specifically recalled addressing the issue of hormone therapy with her. This is substantially consistent with his deposition testimony. The affidavit of Dr. Darwish states that she performed the pre-operative history and physical on Plaintiff on February 2, 2002 and that, at that time, she detailed the risks, complications, alternatives to surgery, and alternative therapies (specifically including hormone therapy) and gave Plaintiff an opportunity to ask any questions |9about said matters. Dr. Darwish further stated that after that examination, Plaintiff indicated that she wanted to go forward with the hysterectomy. Dr. Colon’s affidavit states that she was part of the treatment team assigned to Plaintiff and that she signed the consent forms on behalf of Defendant in that capacity. Dr. Colon’s affidavit further states that she met with Plaintiff on February 1, 2002 and discussed the risks of the surgery, alternatives to the surgery, and complications of the surgery with her. The affidavit of Dr. Colon further states that Plaintiff verbally indicated that she understood the risks involved and agreed to proceed with the surgery and abandon any further medical management.

Thus, the crux of the case is whether Plaintiff was offered reasonable therapeutic alternatives to the hysterectomy. Plaintiff says none were offered. Defendant says alternatives were presented. This is a credibility determination which is to be left to the jury. As we have found that the affidavit of Dr. Barnard is consistent with his deposition testimony that hormone therapy was presented as an alternative treatment to the hysterectomy, we can find no reasonable basis for the trial court apparently having disregarded it after accepting it into the record for summary judgment purposes. Likewise, we see no reasonable basis for the trial court to have disregarded the affidavits of Drs. Darwish and Colon. These affidavits reveal a material issue of fact in dispute and should have defeated summary judgment.

DECREE

For the reasons assigned above, Defendant’s motion to supplement is hereby denied, and Plaintiffs motion to dismiss is rendered moot by that denial. Furthermore, we affirm the trial court’s acceptance of the late-filed affidavits into evidence. The trial court’s grant of summary judgment in favor of Plaintiff is [ inreversed in that there exist genuine issues of material fact regarding whether or not there was a valid informed consent by the Plaintiff prior to surgery. Accordingly, the matter is remanded for trial on the merits. All costs of this appeal are assessed to Plaintiff-Appellee, Rebecca Brown.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: GENOVESE, Judge.

text:
    Amanda BELL v. Brett Owen DURAND.
    No. 06-708.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Todd L. Farrar, Pineville, Louisiana, for Plaintiff/Appellant, Amanda Bell.
    Henry H. Lemoine, Jr., Pineville, Louisiana, for Defendant/Appellee, Brett Owen Durand.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

1 plaintiff, Amanda Bell, appeals the judgment of the trial court ordering a change of her minor child’s surname from Bell to Durand. She alleges non-compliance with the procedures set forth in La. R.S. 13:4751, et seq., relative to change of name. For the following reasons, we reverse the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Camren Hope Bell (Camren) was born out of wedlock on June 27, 2000. Her parents, Amanda Bell (Ms. Bell) and Brett Owen Durand (Mr. Durand), never married. At the time of Camren’s birth, Ms. Bell was domiciled in Grant Parish. Custody and visitation proceedings were instituted by Mr. Durand in the Thirty-Fifth Judicial District Court, in Grant Parish, under proceedings entitled “Brett Owen Durand v. Amanda Bell,” bearing civil docket number 15,041, resulting in a judgment being rendered in the Grant Parish proceedings on January 13, 2004.

Subsequent thereto, Ms. Bell and Cam-ren moved from Grant Parish to Rapides Parish, wherein Ms. Bell filed a motion in the Ninth Judicial District Court, Rapides Parish, to make the January 13, 2004 Grant Parish judgment executory in Rap-ides Parish. On December 15, 2004, judgment was signed by the Ninth Judicial District Court, Rapides Parish, making the Grant Parish judgment executory in Rap-ides Parish.

On January 6, 2005, Ms. Bell filed a rule in the Rapides Parish proceedings to modify custody. Ms. Bell sought to change the consent visitation plan set forth in the January 13, 2004 Grant Parish judgment, alleging that Mr. Durand was not complying with the plan. Mr. Durand filed an answer denying that he violated the plan and also filed a reconventional demand wherein he asserted that “[b]y judgment of March 24, |?2004, in [djocket [njumber 15041 on the docket of the [Thirty-fifth] Judicial District Court, [he] was recognized as the natural father of [Camren], therefore the birth certificate should be reissued naming [him] as [Camren’s] father and changing [Camren’s] last name.” At a hearing on March 7, 2005, the trial court revisited the issues of custody, visitation, and child support; however, the judgment which resulted from that hearing, signed on October 3, 2005, did not address the issue of changing Camren’s surname or the listing of Mr. Durand as Camren’s father on the birth certificate.

On December 15, 2005, Mr. Durand filed a rule for custody and ancillary relief, wherein, among other things, he again raised the issue of Camren’s name change and the listing of himself as Camren’s father on the child’s birth certificate. Following a hearing on the matter on January 20, 2006, the trial court ordered that:

[Ms. Bell] will sign all documents that are required by the State of Louisiana to show [Mr.] Durand as [Camren’s] father and that the child’s name be changed to [Camren] Hope Durand so that state registrar of vital records can be notified and a new birth certificate may be issued showing the child’s name to be [Camren] Hope Durand.

A judgment was signed in this matter on February 3, 2006. Ms. Bell perfected this appeal.

DISCUSSION

On appeal, Ms. Bell argues that it was error for the trial court to order that Camren’s birth certificate be amended to reflect Mr. Durand’s paternity. We agree.

At birth, Camren’s surname on her birth certificate was her mother’s maiden name on her birth certificate in accordance with La.R.S. 40:34(B)(l)(a)(vi) of the “Vital Statistics Law” which states that “if the father of the child is not the husband of the mother, the surname of the child may be the maiden name of the mother.... ” | ¡¡Louisiana Revised Statutes 40:34(B)(l)(a)(v) provides that “[a]ny change in the surname of a child ... shall be by court order as provided for in [La.] R.S. 13:4751 through [La.R.S. 13:]4755 or as otherwise provided in this Chapter or by rules promulgated thereunder.” According to La.R.S. 13:4752, the proceeding to change a name shall be conducted contradictorily with the State. See also, Evans v. Coody, 99-1228 (La.App. 3 Cir. 2/2/00), 758 So.2d 256, writ denied, sub nom. Evans v. Lungrin, 00-683 (La.3/15/00), 755 So.2d 890. There is nothing in the record before us which indicates that the Rapides Parish District Attorney was involved in this matter.

Mr. Durand argues that the procedural requirements set forth in La.R.S. 13:4751, et seq., are inapplicable to the case at bar because Camren’s surname was not correctly provided at birth by Ms. Bell. Mr. Durand asserts that Ms. Bell knew he was the father at the time of Camren’s birth. Therefore, he contends that he is not required to comply with La.R.S. 13:4751, et seq., in order to have Camren’s surname changed from Bell to Durand.

In Morace v. Waller, 99-1191 (La.App. 3 Cir. 12/8/99), 755 So.2d 905, the defendant-father made essentially the same argument presented by Mr. Durand. In Mo-race, the father of the minor child argued that since the child’s mother knew the identity of the child’s father at the time of the child’s birth, she was required to list him as the father and use his surname as the child’s surname. Since the child’s mother did not provide the correct surname, the father argued that La.R.S. 13:4751(C)(4) allowed him to petition to change the child’s surname. This court | ¿disagreed with the defendant-father’s interpretation stating “[s]inee [the minor child] was given a surname which is authorized by La.R.S. 40:34(B)(l)(a), La.R.S. 13:4751(C)(4) does not apply in this instance.” Morace, 755 So.2d at 907.

Therefore, applying the law and our legal ruling in both Morace and Evans, we find that the proper procedure has not been employed to change Camren’s name and to require the minor child’s birth certificate to be changed to reflect Mr. Du-rand’s paternity. The procedural requirements set forth in La.R.S. 13:4751, et seq., are applicable in this case, and Mr. Durand must comply therewith in order to effectuate his desired changes on the child’s birth certificate. Consequently, this part of the judgment must be reversed.

DECREE

For the reasons set forth above, the portion of the judgment of the trial court which orders that the minor child’s surname be changed from Bell to Durand and requires that Mr. Durand be identified as the minor child’s father on the birth certificate is reversed. All costs of this appeal are assessed to Defendant/Appellee, Brett Owen Durand.

REVERSED.

      . Louisiana Revised Statutes 13:4751(C)(4) provides "[t]he petition may be signed by either the mother or the father acting alone if a child has been given a surname which is different from that authorized in R.S. 40:34(B)(l)(a).”


text:
    Dave NEAL v. TOWN OF WELSH.
    No. 06-707.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Kevin L. Camel, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff-Appellant, Dave Neal.
    Charles M. Jarrell, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendanb-Appellee, Town of Welsh.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| plaintiff, Dave Neal (Neal), appeals the ruling of the Workers’ Compensation Judge (WCJ) granting an exception of prescription in favor of Defendant, the Town of Welsh (Welsh). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Neal was employed by Welsh as a policeman. The parties stipulated that on March 17, 2001, Neal was involved in an accident and injured his right shoulder. Neal was treated by Dr. Michael Holland, who performed surgery on Neal’s right shoulder on May 1, 2001. The last indemnity payment was made on Neal’s behalf on June 28, 2001. The last payment of medical expenses on Neal’s behalf was made on July 28, 2001. A disputed claim was filed with the Office of Workers’ Compensation (OWC) on June 10, 2005. Therein, Neal alleged that medical treatment had not been authorized by his employer and sought penalties and attorney’s fees for failure to approve medical treatment and for non-payment of medical bills regarding treatment received as a result of the work-related injury. Specifically, Neal alleged that his employer did not pay $840.00 in charges incurred for treatment by Dr. Holland on February 25, 2002 and June 13, 2002.

The WCJ found that Neal would have had to file his claim for payment of benefits within three years of July 28, 2001 and granted Welsh’s exception of prescription. Neal now appeals, asserting that the doctrine of contra non valentem applies and that his suit is timely, since he was unaware that the employer failed to [ 2pay the medical expenses until June 2, 2005, when Dr. Holland refused treatment to Neal due to non-payment of his bills.

DISCUSSION

Louisiana Revised Statutes 23:1209 provides that claims for payment of benefits must be made within three years from the time of making the last payment of benefits. The burden of proof at the trial of the exception of prescription is on the party urging prescription. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. However, as in this case, when the pleading is prescribed on its face, the burden shifts to the plaintiff, who must show that his action has not prescribed or prove that prescription has been interrupted. Id.; Gaddy v. Caddo Parish School Bd., 36,583 (La.App. 2 Cir. 12/11/02), 833 So.2d 1088.

The WCJ’s assessment of Neal’s knowledge is a factual finding which this court cannot disturb absent an abuse of discretion. Thomas v. Alliance Compressors, 04-1034 (La.App. 3 Cir. 12/8/04), 889 So.2d 424, writ denied, 05-86 (La.3/18/05), 896 So.2d 1010. If the conclusions of the finder of fact are reasonable in light of the record reviewed in its entirety, we must affirm that decision. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Neal urges that his action has not prescribed due to the application of the doctrine of contra non valentem because his cause of action was not known or reasonably knowable to him. He alleges that because he filed this action within days of discovering that Dr. Holland’s bills had not been paid, his claim is timely. We find this argument to be without merit.

There is no evidence to contradict the testimony of the only adjuster to handle Neal’s case, Keith Frank Catha, that the last payment of medical expenses on behalf |sof Neal was made July 28, 2001 and that subsequent to July 12, 2001, he did not have any contact from Neal requesting authority to return to a doctor.

Neal testified that Dr. Holland’s office never told him that he had an outstanding balance of $340.00 for treatment rendered in February and June of 2002. He testified that he did not receive any bills or any collections notices related thereto. Neal’s medical records from Dr. Holland were jointly submitted into evidence. Contained therein is a letter addressed to Neal at an address in Gueydan, Louisiana, and dated June 22, 2004, stating that there was an outstanding balance of $340.00. Neal testified that he did not live at that address but that his mother-in-law lived there. He further testified that he had never seen the letter from Dr. Holland’s office.

On cross-examination, Neal testified that there were some occasions when he brought receipts for medical treatment received in 2001 from Dr. Holland to someone at Welsh Town Hall but that he did not follow that same procedure in 2002 with regard to the treatment received from Dr. Holland at that time. He further testified that he did not tell anyone that he had gone to see Dr. Holland in 2002.

In her reasons for judgment, the WCJ cites Crochet v. Charles Holston, Inc., 02-1257 (La.App. 3 Cir. 6/4/03), 847 So.2d 775, writ denied, 03-1874 (La.11/07/03), 857 So.2d 492, for the proposition that only payment of medical benefits interrupts the prescriptive period in this case. While we do not find that case to be dispositive of the issue herein, we do note that she considered Neal’s argument relative to contra non valentem and apparently rejected it. After a thorough review of the record, we also find that the doctrine of contra non valentem is not applicable in this case because Neal has failed to carry his burden of proof. He could have learned, through reasonable diligence, that Dr. Holland’s bills from 2002 were not being paid. Therefore, we find no abuse of discretion in the WCJ’s ruling.

^DECREE

For the reasons expressed above, we affirm the judgment of the WCJ finding that the claim for medical benefits has prescribed. Costs of this appeal are assessed to Plaintiff-Appellant, Dave Neal.

AFFIRMED.

      . We note that the WCJ's reasons for judgment state that Defendant contends that the last payment for medical bills was July 12, 2001. The reasons for judgment also state that the WCJ finds that the last payment for medical expenses was made July 28, 2001. Keith Frank Catha, the adjuster assigned to Neal's claim, testified on direct examination that the last payment of medical bills was on July 12, 2001; however, on cross-examination, Catha testified that the last bill was paid on July 28, 2001 for services rendered on July 12, 2001. This, apparently, was a bill for copies of medical records.