text:
    THH PROPERTIES LIMITED PARTNERSHIP, D & B Thompson Investments, L.P., Thompson Huffman Limited Partnership and Melrose Properties, L.L.C., Plaintiffs-Appellees, v. Al G. HILL, III, Defendant-Appellant.
    No. 41,038-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 2, 2006.

      Blanchard, Walker, O’Quin & Roberts by Paul M. Adkins, Robert W. Johnson, Scott R. Wolf, Gardere, Wynne, Sewell, LLP by Craig B. Florence, Steven C. Loc-kart, for Appellant.
    Cook, Yancey, Ring & Galloway by Curtis R. Shelton, J. Benjamin Warren Jr., for Appellees.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

hThe defendant, Al G. Hill, III, appeals from the granting of a motion for partial summary judgment in favor of the plaintiffs on a $2 million continuing guaranty signed by Hill. We reverse and remand.

FACTS

In 1998, the plaintiffs entered into negotiations to sell 17 gas stations/convenience stores to Easterhill, Ltd. Eight of the stores were in Texas, seven in Louisiana and two in Arkansas. Easterhill, Ltd., was owned approximately 99 percent by Hill, the defendant in the instant suit, and was managed through a general partnership owned by Hill. Easterhill arranged partial financing through Enterprise Mortgage Acceptance Company (“EMAC”) while the sellers were to take promissory notes from Easterhill for the balance of the purchase price. When the plaintiffs were told that they would be required to subordinate their financing to EMAC’s loan, they threatened to kill the deal. In November 1998, Hill met with Joe Thompson, a representative of the plaintiffs, and negotiated a deal whereby Hill agreed to provide a $1 million personal guaranty of Easterhill’s two notes to the plaintiffs and the plaintiffs agreed to subordinate the notes to EMAC’s loan.

On December 16, 1998, two agreements pertaining to the sales were signed. The contracts, which were drafted by the plaintiffs’ attorney, provided that Texas law applied. The plaintiffs were to provide seller financing in the amounts of $8,223,127.40 and $526,872.45, as evidenced by notes from Easterhill to the plaintiffs. These notes were subordinated to the EMAC loan which funded the rest of the purchase price.

lgThe agreements provided for a continuing guaranty by Hill to guarantee payment of the notes in an aggregate not to exceed $1 million. However, in the closing documents, the continuing guaranty was raised to $2 million. Hill also signed a guaranty agreement in which he guaranteed performance of the security agreements.

Easterhill filed for bankruptcy in January 2002. In October 2002, the plaintiffs filed suit against Hill in Louisiana state court, seeking the accelerated balance of the notes, attorney fees, and court costs. Hill was successful in getting the ease removed to federal court as being related to Easterhill’s bankruptcy. However, it was later remanded to state court, and Hill filed an answer in January 2005.

All but one of the plaintiffs filed a motion for partial summary judgment in March 2005. In April 2005, the trial court granted the motion, awarding the movants $2 million with interest at the rate of eight percent per annum from December 19, 2001 until paid, plus attorney fees and expenses through March 4, 2005 of $49,896.54. The judgment also reserved the rights of the plaintiffs as to the balances owed on the notes and the defendant’s obligations pursuant to the security agreements and guarantees which were the subject of the lawsuits. Hill filed a motion for new trial, which the trial court denied in August 2005.

Hill appeals.

| .AFFIDAVITS

The movants submitted the affidavit of Joe D. Thompson in support of their motion for partial summary judgment. He stated that he had custody of the relevant records about the transaction at issue; copies were attached to the affidavit. He asserted that the notes involved were past due and owing for payments due beginning on January 19, 2002, and that the balances on the two notes were $2,277,541.44 and $372,237.65 with interest accruing at a rate of eight percent per annum from December 19, 2001 until paid in full. Thompson further stated that each note provided that it shall immediately come due and payable without notice or putting in default under certain circumstances. Each note provided that it shall become due and payable subject to written notice to maker. According to Thompson, Easterhill and Hill had been provided notice of default by a letter mailed on August 19, 2002, and received by Hill.

As to the attorney fees, the movants filed the affidavit of Curtis R. Shelton, one of their attorneys. He stated that he had custody of the relevant records at the law firm of Cook, Yancey, King & Galloway concerning the instant case. The hourly rate charged by the attorneys who worked on this case ranged from $150 to $200 per hour for attorneys and $60 to $75 for paralegals. As of the date of the March 4, 2005, affidavit, Shelton stated that the fees amounted to $47,020.54 and the expenses to $2,876, for a total of $49,896.54.

In opposition to the motion, affidavits were submitted by the defendant; Michael E. Nugent, the in-house counsel for East-erhill; and | ¿Brent N. Waller, the vice president of Hill III Investments, LLC, the general partner of Food Fast Holdings, Ltd. and Easterhill.

In his affidavit, the defendant stated that he was the president and holder of majority membership interest in Hill III Investments, LLC, the sole general partner of Easterhill, Ltd. In 1998, he negotiated with Thompson for the potential acquisition of 17 convenience stores owned by the plaintiffs. As negotiations progressed, the plaintiffs threatened to terminate the deal because EMAC, Easterhill’s lender, required the plaintiffs to subordinate their notes to EMAC’s loan. In a November 1998 meeting with Thompson in Tyler, Texas, the defendant stated that he agreed to provide a limited personal guaranty not to exceed $1 million to resolve the dispute.

At the closing on January 19, 1999, he was presented with a “room full of documents” drafted by the plaintiffs’ transactional attorney relating to Easterhill’s purchase of 17 stores in three states. The defendant stated in his affidavit that it was never his understanding or intention to increase his personal liability to $2 million. He was not provided with consideration of any kind to modify his guaranty or increase his liability thereunder. He stated that it was his understanding that his personal guaranty would never exceed $1 million, subject to the additional restrictions in the continuing guaranty.

Nugent stated in his affidavit that, as Easterhill’s in-house counsel, he was involved in negotiations with the plaintiffs. This was not the first purchase of convenience stores by Easterhill. In prior transactions, ^Easterhill had obtained financing from EMAC, which always required the seller to subordinate its financing to EMAC’s loan. Nugent stated that he informed the plaintiffs of this condition before the drafting or execution of any documents. In his experience, it was not unusual for sellers to subordinate their notes to that of the primary lender in a commercial transaction of this nature.

Waller likewise stated in his affidavit that he was involved in Easterhill’s negotiations to purchase 17 convenience stores owned by the plaintiffs. He also stated that in prior purchases of convenience stores, Easterhill got financing from EMAC, which always required the seller to subordinate its financing to EMAC’s loan. Waller stated that he informed the plaintiffs of this condition before the drafting or execution of any documents and encouraged Thompson to speak to the owners of the store the purchaser had bought months earlier. According to Waller, the plaintiffs threatened to terminate the deal because of the requirement, and, even after the parties executed agreements of purchase and sale on December 16, 1998, the plaintiffs again expressed their unwillingness to the subordination. Waller stated that between December 16, 1998 and the January 1999 closing, Easter-hill devoted significant time and accounting and legal resources to insure legally proper transition of the stores, as well as addressing employee and licensing matters.

CHOICE OF LAW

Under Louisiana law, it is acceptable for contracting parties to make a choice of state law which will govern the agreement between them. That lfichoice will be given effect, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under La. C.C. art. 3537. La. C.C. art. 3540; Sentilles Optical Services, Division of Senasco, Inc. v. Phillips, 26,594 (La.App.2d Cir.3/1/95), 651 So.2d 395.

In their contracts, the parties in the instant case agreed that Texas law would apply. Therefore, we apply Texas substantive law in resolving the issues before us. However, we find that use of Louisiana procedural law on summary judgment is appropriate.

SUMMARY JUDGMENT LAW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “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.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and |7the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Mosley v. Temple Baptist Church Of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), 923 So.2d 627.

AFFIDAVIT BASED UPON PERSONAL KNOWLEDGE

Hill argues that Thompson’s affidavit fails to prove notice of default or the outstanding balances on the notes because the affidavit was not made on Thompson’s personal knowledge.

Regarding the use of affidavits, the requirement of La. C.C.P. art. 967 that “affidavits shall be made on personal knowledge” has been strictly enforced; it is insufficient for an affiant to merely declare that he has “personal knowledge” of a certain fact. The affidavit must affirmatively establish that the affiant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Express Publishing Company, Inc. v. Giani Investment Company, Inc., 449 So.2d 145 (La.App. 4th Cir.1984).

Personal knowledge means something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source. Panameno v. Louisiana Riverboat Gaming Partnership, 36,172 (La.App.2d Cir.10/23/02), 830 So.2d 489; Shelter Insurance Company v. Broan-Nutone, LLC 39,625 (La.App.2d Cir.5/11/05),8 902 So.2d 1146, unit denied, 2005-1483 (La.12/16/05), 917 So.2d 1112. The court must first determine whether the supporting affidavits and documents presented by the moving party are sufficient to resolve all material issues of fact. If they are not sufficient, summary judgment is not appropriate. South Central Bell Telephone Company v. Rouse Company of Louisiana, 590 So.2d 801 (La.App. 4th Cir.1991).

Balance

Hill argues that Thompson’s affidavit was insufficient to establish the balance of the notes because it failed to establish that he had any basis for personal knowledge of the payment history of the notes. He states that he was custodian of the records without reciting that he had any personal knowledge or that he had reviewed records of the outstanding principal balance due on the notes. Nor are there attachments to his affidavit of copies of balance sheets, ledgers, cancelled checks or other documents which would tend to establish the balance.

Thompson’s affidavit established that he was a custodian of the relevant business records, and supporting documentation was attached to the affidavit. Thompson set forth the balances due on the notes. The defendant has not contested the amounts provided by the movants.

We agree with the trial court that the affidavit was sufficient to prove the balance due on the notes.

Notice

The notice provision in the Agreements for Purchase and Sale set forth addresses for notices “required hereunder,” which indicated only ^notices required by that document. The notes executed by Easterhill required notice to the maker, while the security agreements stipulated an address for the debtors’ notice. The only prerequisite for the personal guarantees of Hill to be exigible was for the notes to be accelerated, which was accomplished by giving notice to Easterhill pursuant to the language found in the notes. Since no address was specified in the notes, then the notice had to be reasonable. The movants presented proof that the notice had been sent to the offices of Easterhill’s and Hill’s attorneys; one of the law firms was located in the same building as Easterhill, but in a different suite. Hill presented no evidence that he did not receive the notice or that the notice was unreasonable. The trial judge did not commit error in finding the notice to be properly given.

GUARANTY AGREEMENT

A guaranty agreement creates a secondary obligation whereby the guarantor promises to be responsible for the debt of another and may be called upon to perform if the primary obligor fails to perform. Tenneco Oil Company v. Gulsby Engineering, Inc., 846 S.W.2d 599 (Tex.App.-Houston [14th Dist.] 1993, writ denied). A guaranty agreement is to be strictly construed and shall not be extended beyond its precise terms by construction or implication. Tenneco Oil Company, supra.

A guarantor’s obligation should not be extended by implication beyond the written terms of the agreement, and any ambiguity should be |inconstrued in favor of the guarantor. Thompson v. Preston State Bank, 575 S.W.2d 312 (Tex.Civ.App.Dallas 1978, writ refd n.r.e.).

It is well settled in Texas that a guarantor may rely and insist upon the terms and conditions of his guarantyship being strictly followed, and if the creditor and principal debtor vary in any material degree the terms of their contract, then a new contract has been formed, upon which the guarantor is not obligated or bound. McKnight v. Virginia Mirror Company, 463 S.W.2d 428 (Tex.1971). After the terms of a guaranty agreement have been ascertained, the rule of strictissimi juris applies, meaning that the guarantor is entitled to have his agreement strictly construed and that it may not be extended by construction or implication beyond the precise terms of his contract. McKnight, supra; Reece v. First State Bank of Denton, 566 S.W.2d 296 (Tex.1978).

As a general rule, a party who signs a contract is presumed to know its contents; absent a finding of fraud, its failure to read the contract will not discharge its obligations. Parties to a contract have an obligation to protect themselves by reading what they sign. A party who signs a contract is charged with notice of its contents as a matter of law. D. Wilson Construction Company, Inc. v. McAllen Independent School Distrist, 848 S.W.2d 226 (Tex.App.-Corpus Christi 1992, unit dism’d w.o.j.).

Absent proof of mental incapacity, a person who signs a contract is presumed to have read and understood the contract, unless he was prevented from doing so by trick or artifice. Tamez v. Southwestern Motor Transport, Inc., 155 S.W.3d 564 (Tex.App.San Antonio 2004, no pet.).

In While a party’s failure to read an instrument before signing is not always a bar to that party’s suit for reformation to correct a mutual mistake, the general rule is that in the absence of a showing of fraud or imposition, a party’s failure to read an instrument before signing it is not a ground for avoiding it. Estes v. Republic National Bank of Dallas, 462 S.W.2d 273 (Tex.1970).

Most of the cases and legal writers affirm the proposition that equitable relief will be granted against a unilateral mistake when the conditions of remediable mistake are present. These conditions generally are: (1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake must have been made regardless of the exercise of ordinary care; and (4) the parties can be placed in status quo in the equity sense, i.e., rescission must not result in prejudice to the other party except for the loss of his bargain. There may be other circumstances which will govern or influence the extension of relief, such as the acts and extent of knowledge of the parties. James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 (1960).

Hill’s affidavit states that at the time of the initial agreement in December 1998, he agreed only to a continuing guaranty of $1 million, as reflected by the draft for the guaranty. At closing, the personal guaranty signed by Hill was for the sum of $2 million. In his affidavit, Hill declared that it was never his understanding or intent to increase his personal liability 11gto $2 million. He also stated that he was not provided with consideration of any kind to modify his guaranty or to increase his liability under the guaranty.

As to the issue of the intended amount of the continuing guaranty, we find that Hill’s affidavit raises a genuine issue of material fact sufficient to defeat summary judgment. Accordingly, we reverse the trial court’s granting of partial summary judgment. We remand the case to the trial court for further proceedings.

ATTORNEY FEES

As a general rule, attorney fees may not be awarded to a successful litigant unless specifically provided for by statute or contract. Curtis v. Curtis, 28,698 (La.App.2d Cir.9/25/96), 680 So.2d 1327. The reasonableness of an attorney fee is within the great discretion of the trial court. Curtis, supra.

When the services of an attorney are evident from the record, proof of services is not necessary. Federal Services Corporation v. Mule-Durel, Inc., 95-2192 (La.App. 4th Cir.5/15/96), 676 So.2d 597, unit denied, 96-1562 (La.9/27/96), 679 So.2d 1346.

In his affidavit, Shelton states that the hourly rate charged by him and the attorneys in his firm who worked on this case ranged from $150 to $200 per hours, while the rate for paralegal work was $60 to $75. However, the affidavit fails to set forth the specific number of hours worked at the various | isrates. Instead Shelton recites a total of $47,020.54 in fees and $2,876 in expenses or a total of $49,896.54. Further, there is no supporting documentation, such as a billing statement, attached to the affidavit.

Accordingly, we find that the affidavit was insufficient to establish the amount of attorney fees to be awarded.

CONCLUSION

We reverse the trial court judgment granting partial summary judgment in favor of the movants. We remand the matter to the trial court for further proceedings.

Costs of this appeal are assessed against the movants/appellees.

REVERSED AND REMANDED.

      . The plaintiffs are THH Properties Limited Partnership, D & B Thompson Investments, L.P., Thompson-Huffman Limited Partnership and Melrose Properties, L.L.C. Of these, Melrose Properties was the only plaintiff which did not move for partial summary judgment against Hill. Consequently, we refer to the parties who filed the motion for partial summary judgment as the “movants.”

      . Since plaintiffs’ rights were reserved on the security agreements signed by Easterhill and Hill, the fact that those documents contained specific addresses for notice is not pertinent at this time.

      . Because we find that there is disputed issue of material fact as to the amount due on the continuing guaranty, we pretermit as unnecessary the issue of consideration raised in conjunction with this issue.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    INTERDICTION OF James Allen STEPHENS.
    No. 40,965-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 2, 2006.

      Lloyd Theland Stephens, In Proper Person.
    Daniel Joseph Ellender, Monroe, for Ap-pellees, Linda Norris, Susan McNair, and Violet Flanagan.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

LAt issue between his parents is the curatorship of James Allen Stephens, a disabled adult who was interdicted as a result of catastrophic injuries received in a July 3, 1988, traffic accident. Lloyd Stephens appealed the August 31, 2005, judgment which rejected his petition to remove his son’s curatrixes. Allen’s mother, Linda Norris, serves as curatrix of his person while Allen’s sisters, Susan McNair and Violet Flanagan, are curatrixes of his finances.

On appeal the father complained, inter alia, that the trial court erred in:

• failing to grant the parents joint cura-torship which would be in Allen’s best interests;
• failing to recognize an agreement between the parents to facilitate meaningful contact with both parents;
• disregarding evidence of financial misconduct and physical neglect;
• refusing to permit a physical therapist to testify as an expert; and
• awarding fees for the curatrix’s attorney from the interdict’s funds.

For the following reasons, the judgment is affirmed at Lloyd Stephens’ costs.

FACTUAL AND PROCEDURAL BACKGROUND

The parties’ son was severely injured in the auto crash which rendered him essentially helpless, bedridden, and totally dependent on others for care. Medical records stated that Allen sustained a closed head injury with brain stem damage which left him severely debilitated. Unable to swallow, Allen is fed through a tube in his abdomen and requires periodic hospitalization for tube changing and care. Due to severe contractions, he [¡.had surgery in 2003 to release his wrists and elbows. Allen retains movement in his legs, but he is unable to walk. He cannot stand without total support and has little or no control over his body. Unable to speak, his ability to communicate is severely impaired with the family reporting he can blink to indicate yes and no and can indicate whether or not he is pleased or unhappy by facial expressions.

This interdiction dispute has continued intermittently since 1988. Via a consent judgment, the parents initially were appointed provisional joint curators. Following a 1990 trial, Allen was interdicted and his mother and father were appointed joint curators. At the same time, the parties settled a damage claim for the auto accident that resulted in the interdict’s injuries. In addition to a lump sum payment, an annuity was purchased to provide monthly income.

Shortly after the interdiction, the parents began disagreeing on where Allen should live and Allen’s care. Arrangements varied from Allen being in a nursing home to the parents alternating physical custody every four months. The father also sought to litigate the matter in federal court in Texas while he resided there. The father then moved to the state of Louisiana and testified he intended to reside permanently in Louisiana. The mother and father had a contentious relationship and were consistently unable to get along, having married and divorced each other twice in the past. Both remarried other spouses.

In the March 19, 1999, judgment, the court terminated the joint curatorship and named the mother sole curatrix. Rotating physical custody Levery four months continued. The annuity was apportioned 54% to the party with physical custody, 21% for Allen’s daily expenses and 25% in an interest bearing account for Allen’s benefit. Allen’s sisters were named joint custodians of Allen’s funds. The father was held in contempt of court for litigating the interdiction in Texas contrary to previous court orders giving Louisiana exclusive jurisdiction over Allen’s interdiction. In addition, the father refused to return Allen when the mother’s physical custody commenced. The father also was ordered to pay the mother’s Texas legal expenses. In addition to a number of other orders, the judgment again provided Louisiana’s exclusive jurisdiction in this interdiction.

In the mother’s contempt proceedings filed against the father for violation of the March 1999 judgment, the court awarded sole custody to the mother and granted the father supervised visitation one weekend a month at the mother’s home.

This stage of the litigation began in 2002 when the father sought to remove the mother as curatrix along with his daughters, who had the financial responsibilities for Allen. The mother sought payment of past due fees. Trial was held in 2005 and the trial court denied the father’s demands. The father appealed.

REASONS FOR JUDGMENT

The father made a laundry list of complaints about the mother’s care of Allen and objected to interference by Allen’s sisters concerning his care and the management of his money. Specifically, the father asserted that the mother failed to engage a primary care physician for Allen and failed to | ¿secure and maintain Allen in physical, speech and occupational therapy. According to the father, the mother failed to make annual reports, and abused Allen by denying him a relationship with his father. As to his daughters who managed Allen’s money, the father contended that they misapplied funds which they failed to spend for Allen’s benefit and did not reimburse his expenses for building a shower for Allen. The father also sought a court-ordered medical evaluation of Allen. He wanted the under-curator, Richard Thompson, replaced for failure to complain about any of the foregoing.

Adult Protection workers made unannounced visits to the mother’s home and found no problems, no abuse, and an adequate home. One worker testified she saw a bruise on the son’s leg in May 2005 and at an unannounced visit in June 2005, she saw the interdict and did not believe abuse existed.

The trial court noted that the doctor who had ordered physical therapy decided the interdict need not subject himself to the therapy and its expense, since there was no improvement after two and one half years. Another doctor installed a feeding tube which was changed every two years. Further, a nurse practitioner saw the interdict on a regular basis.

Observing that many of the father’s pleadings were frivolous, the trial court rejected the father’s demands, concluding it was in the interdict’s best interest to remain with his mother who took care of his personal needs and his two sisters who took care of his financial needs. The trial court ordered La $7,245.00 bill from the attorney for the curatrix be paid by the interdict through the curatrix either by-monthly payments or in a lump sum.

DISCUSSION

In his pleadings, the father sought to have the mother and sisters removed as curatrixes of Allen’s person and finances. However, the father urged in appellate briefs that he be appointed co-curator with the mother. Without citing any authority, the father urged that the child custody laws favoring joint custody be applied in this dispute. La. C.C. art. 132. We reject the father’s argument that the difference between child custody and interdiction of an adult are a distinction without a difference.

The laws governing interdiction regulate appointment and removal of the curator for the interdict. La. C.C.P. art 4561 mandates that the court appoint as curator the qualified person who is best able to fulfill the responsibility of his office. The curator’s duty is to represent the interdict in juridical acts and to care for the person and affairs of the interdict. The curator must exercise reasonable care, diligence and prudence while acting in the interdict’s best interests. La. C.C. art. 392. La. C.C.P. art. 4561(C)(1) gives the order of preference to be used by the court in selecting a curator. The only provisions of art. 4561(C)(1) applicable to Allen’s interdiction are sections (d) a parent of the interdict and (f) any other person.

La. R.S. 9:1025 governs removal of a curator:

A.Any spouse or relative of an interdict, interested party, or nonprofit organization whose main function it is to serve as an advocate for persons with disabilities, the elderly, or both, may petition a court of competent jurisdiction for the removal of a curator upon a clear showing that neither the |ficurator nor the undercurator are adequately performing their court-appointed duties.
B. A court of competent jurisdiction may remove a curator and appoint a successor, if such removal is deemed to be in the best interest of the interdict, either on its own motion or upon request by any spouse or relative of the interdict, or on the motion of any interested party or nonprofit organization whose main function it is to serve as advocate for persons with disabilities, the elderly, or both, upon contradictory hearing. The court shall consider the following factors in making its ruling:
(1) Whether the curator has, with gross negligence, misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state all or any part of the interdict’s property committed to the curator’s care.
(2) The curator’s failure to render any account required by law.
(3) The curator’s failure to obey any proper order of the court having jurisdiction with respect to performance of the curator’s duties.
(4) Proof of gross misconduct, or mismanagement in the performance of duties.
(5) Incompetence, incarceration, or any other cause rendering the curator incapable of performing court-appointed duties.
(6) Abuse of the interdict, or failure to educate the interdict or provide the interdict with as much independence as the means of the interdict and the conditions of his estate permit.
C. When the court removes a curator, it may appoint any spouse or relative of the interdict, any interested party, or any nonprofit organization whose main function it is to serve as curator for persons with disabilities, the elderly, or both.

La. C.C.P. art. 4568 directs that, upon the motion of any interested person or on the court’s own motion, a court may remove a curator for good cause. The trial court has broad discretion in determining whether or not removal of a curator is in the interdict’s best interests. That discretion should not be disturbed absent manifest error or clear wrong. In re Interdiction of Cade, 04-1619 (La.App. 3d Cir.4/6/05), 899 So.2d 844, writ denied, 05-1104 (La.6/17/05), 904 So.2d 697.

|7The father sought to rely upon a document dated October 5, 2003, in which he and Allen’s mother agreed to exchange Allen every two months and to permit the father to become co-curator beginning in January 2004. The mother testified she did not recall making that agreement or signing the document, although she did acknowledge her signature. The mother also stated that at times in the past she and the father had been able to work together better but were not doing so at the time of trial. The document illustrated the fractious relationship between the mother and father who could concur periodically but frequently disagreed over Allen.

The father’s assertion that he was denied the opportunity for a meaningful relationship with Allen is belied by the record. From the 1999 imposition of limited supervised visitation until 2002, the father testified he traveled from Texas to visit Allen three or four times. At an earlier deposition he answered “none” to the number of times he saw Allen from the summer of 1999 until October of 2002. At this trial, the father stated “none” was not correct. The mother testified that she had never denied the father access to and visitation with Allen, even permitting Allen overnight visits at his father’s home. The father acknowledged that he had been able to take Allen to his home for visits, since he moved back to Louisiana from Texas. He also admitted in testimony that “[s]he ain’t never really said I couldn’t see my son.”

The trial court repeatedly and consistently refused to permit introduction of any matters occurring prior to the judgment rendered in September 1999 when the father was held in contempt and was limited to |ssupervised visitation. On appeal, Stephens urged that evidence related to pre-1999 events should have been admitted and considered by the trial court.

In Hudson v. City of Bossier, 33,620 (La.App.2d Cir.8/25/00), 766 So.2d 738, 743, writ denied, 2000-2687 (La.11/27/00), 775 So.2d 450, this court explained:

La. R.S. 13:4231 embraces the broad usage of the phrase “res judicata” to include both claim preclusion (res judica-ta) and issue preclusion (collateral estop-pel). Under claim preclusion, a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes re-litigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: 1) foreclosure of relitigating matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been previously litigated and decided.

The father’s allegations of the curatrixes’ pre-1999 misconduct either were considered by the court or should have been raised by the father in previous hearings concerning this interdiction. The trial court did not err in refusing to consider matters that predated the 1999 judgment in this endless litigation.

The father’s allegations of financial mismanagement by Allen’s sisters were unsupported. All payments from Allen’s account from September 1999 up to the date of trial were placed into evidence as a joint exhibit. Violet Flanagan Naron, Allen’s sister, testified that she was co-curatrix of Allen’s finances with her sister, Susan McNair, who had primary responsibility for paying bills and keeping the books. Violet testified they | gconsulted and agreed on all payments and that she co-signed the checks. According to Violet, neither she, her sister or her mother had taken any unauthorized funds from Allen.

Susan McNair testified that the annuity payment of $3,364.65 at the time of trial was deposited directly into Allen’s account. As ordered by the court, she distributed 54% to Allen’s mother for his care, 21% for his expenses and 25% to a discretionary fund for Allen. McNair explained that check stubs marked “for gifts” were presents from Allen to other family members at Christmas and birthdays. Other checks were for Christmas gifts for Allen while $360.28 was for a DVD player for Allen. Checks to the curatrix on four or five occasions were to repay Allen’s mother for items purchased for Allen after his money had run out for a month while an $80 check to Violet reimbursed her for picking up Allen’s prescription. Some checks to Allen’s mother were for building supplies used to remodel Allen’s room. McNair reported Allen could not afford the $17,000 wheelchair recommended by the physical therapist but that she paid $2,339.00 for improvements recommended for Allen’s existing wheelchair, which cost $8,000.

Following detailed testimony about assorted expenditures, McNair acknowledged they probably did not make the best decisions that could be made in every instance but stated they did the very best they could for Allen with what they had. Concerning reimbursement to the father for a shower constructed for Allen in his home, McNair stated she was ready to pay him |10when he presented receipts for his expenses. The trial court did not err in finding there had been no financial misconduct.

The father’s assertions that Allen was abused and denied proper medical care and therapy were not proven. As noted previously, Adult Protection Workers made unannounced visits to check on reports of mistreatment of Allen in his mother’s home. The first report was of financial misconduct by the curatrix buying things for herself instead of Allen whose wheelchair needed repairs. The worker examined Allen’s financial records and found no evidence of impropriety. She also determined that improvements had been made to the wheelchair. She found the home to be very clean. Allen had his own room with all his medical supplies there. His body was observed to be in good condition. The report of mistreatment was unsubstantiated.

Another Adult Protection Worker investigated a report of possible physical abuse and neglect. She saw Allen three times. She observed bruises on his legs which she stated did not appear to be caused by hitting, since there were no scratches or welts. The bruises were located at the bottom of his legs. His caretakers explained to her that he had no control of his legs, which sometimes hit the chair. She also observed a rash for which he was taken to the doctor and given a prescription. She instructed the curatrix to fill the prescription. Based upon her observations, the department was closing its case.

After hearing all the testimony and reviewing all the evidence, the trial court concluded that the father’s allegations of inadequate medical | ntreatment and therapy were unsupported. Dr. Douglas C. Brown, Orthopaedic Center of Monroe, described Allen as persistently completely and totally dependent upon others. Dr. Brown reported that during the three years of his treating Allen, there was no significant change resulting from physical therapy with his only improvement resulting from surgery. The doctor opined that therapy should be stopped and carried on by the family, which was doing an excellent job with general care. Allen’s mother testified they took Allen for medical care every two to three weeks and that, to the best of her ability, did everything the doctors recommended. Allen’s sister, Susan McNair, stated that no doctor had ever suggested they should be removed as Allen’s caregivers and that they had done all they were medically advised to do given their financial constraints.

Melanie Massey, a physical therapist, testified she treated Allen on referral from Dr. Brown from January 2003 until August 2004 when Dr. Brown stopped the therapy. Massey assisted the family in getting braces for Allen’s feet and neck. Massey advised both the father and the mother about exercises to be done with Allen at home. Both parents actively participated in the therapy and consulted with Massey.

The trial court did not permit Massey to give her opinion as to consequences of discontinuing Allen’s physical therapy. On appeal, the father contended that the trial court erred in refusing to permit this testimony. Massey stated she had a degree in physical therapy and had worked twelve years as a physical therapist, ten years on her own. She | ^acknowledged that she performed therapy under a prescription from a doctor and stopped therapy when the doctor directed the therapy be stopped.

A district court has broad discretion in determining whether expert testimony is admissible and who should be permitted to testify as an expert. This court will not disturb a district court’s refusal to qualify a witness as an expert absent an abuse of discretion. In re Succession of Pardue, 40,177 (La.App.2d Cir., 11/8/05), 915 So.2d 415, unit denied, 2006-0125 (La.4/28/06), 927 So.2d 284. We find no abuse of the trial court’s great discretion in refusing to permit Massey to give an expert opinion on the effect of discontinuing Allen’s therapy.

Finally, the father vigorously objected to the trial court directing that the attorney for the curatrix be paid out of the interdict’s funds for his services in defending the euratrixes in this litigation. La. C.C.P. art. 4550 provides that the trial court may render judgment for costs and attorney’s fees against any party as the court may consider fair. This court in Matter of Heard, 588 So.2d 799 (La.App. 2d Cir.1991), stated that a curator acting in good faith is not personally liable for the expenses of litigating matters of the eura-torship, including attorney fees. Under the facts of this case, the trial court correctly assessed the costs of defending this litigation against the funds of the interdict.

While Allen’s mother and curatrix is essentially paid a salary out of his monthly annuity for his care, the amount is modest in light of Allen’s total dependence and the time and labor expended by his mother and sisters (who are not compensated) to care for his person and finances. We agree |1swith the trial court’s finding that the father’s allegations of wrongdoing and mistreatment were unfounded and that many of his pleadings were frivolous. To have required Allen’s mother and sisters to personally bear the costs of defending themselves would have been unjust.

DECREE

The trial court has broad discretion in determining whether or not removal of a curator is in the interdict’s best interests. The trial court did not abuse that discretion in rejecting the father’s requests that Allen’s curatrixes be removed. The judgment of the trial court is affirmed with costs of the appeal assessed against Lloyd Stephens.

AFFIRMED.


text:
    Donna DILLON, Individually and On Behalf of Her Minor Child, Candace Allen, Plaintiff-Appellant v. Brian K. WILLIS, M.D., and Springhill Medical Center, Defendants-Appellees.
    No. 40,918-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 2006.
    Nelson & Hammons, Shreveport by Phylliss Bradshaw Hennessee, for Appellant.
    Brian D. Landry, Shreveport, for Appel-lee Brian K. Willis, M.D.
    Dierdre Clair McGlinchey, Travis Oliver IV, for Appellee Springhill Medical Center.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

Lin this medical malpractice action, Donna Dillon appeals a judgment granting the exception of prematurity filed by defendant Dr. Brian Willis, a neurosurgeon who had treated her minor daughter, Candace Allen.

Concluding that Dr. Willis was entitled to have this claim first submitted to a medical review panel, we affirm.

FACTS

When Allen was two years old, a bout with meningitis left her with hydrocephalus, cerebral palsy, developmental delay, and seizures. A ventriculoperitoneal shunt was installed to drain fluid away from her brain.

On January 17, 2003, Allen, who was then 13, was treated by Dr. Gerome Thompson for flu-like symptoms. A week later, Allen presented at Springhill Medical Center with flu-like symptoms. On February 3, Allen was brought to the emergency room at Springhill Medical Center, where she was treated for a urinary tract infection and gastroenteritis. Dr. Thompson admitted Allen into Spring-hill Medical Center two days later. At the time, Allen had lower abdominal pain and dizziness and was unresponsive. Dillon reported that over the prior four to five days, Allen had become sleepier, complained of abdominal pain, and refused to walk. Allen was discharged on February 7 with a prescription for Valium and instructions to meet with Dr. Thompson.

On February 8, Allen was examined by Dr. Brent Smith at Willis-Knighton Bossier Health Center (“WK-B”) for complaints of not walking | ¡.normally, abdominal pain, and problems with urination. Allen’s past medical history was listed as including cerebral palsy, mental retardation, and seizure disorder. A urinalysis showed evidence of infection. A CT scan of the brain was limited because of Allen’s movement. Allen was then admitted to the pediatric services of Dr. Thomas Latiolais. During this hospitalization, Dillon alleges that she informed the staff and physicians at WKB that Allen was staring into space and was not seeing correctly.

Allen was examined on a consultation by Dr. Brian Willis at WK-B on February 11. She was agitated during the examination, and her pupils were dilated with minimal constriction to bright light. Dr. Willis noted that Allen’s symptoms were not consistent with a shunt malfunction, but if other causes were ruled out, he would proceed with a shunt tap and possibly an MRI. Dr. Willis also noted that although the CT scan was of marginal quality, it showed no obvious shunt problems. An eye consultation on February 11 showed that accurate visual acuity was obtainable because of Allen’s level of consciousness. Allen’s MRI was later cancelled when a urine toxicology screen was positive for antidepressants and Benzodiazepines.

A skull x-ray taken on February 12 revealed a possible kinking of the shunt’s tubing. According to Dillon, Dr. Willis signed off on Allen’s case on February 13. The next day, Allen was discharged from WK-B. Dillon was advised to take Allen to' LSU Health Sciences Center (LSUHSC) in the event Allen continued to have difficulty with walking or with her vision.

|sOn February 16, Allen was admitted to LSUHSC because of blindness. Allen was again examined by Dr. Willis, and according to Dillon, Dr. Willis again indicated that Allen’s symptoms were not consistent with a shunt malfunction. On February 19, the shunt was revised because there was concern that a shunt malfunction was the cause of the blindness. During the revision, it was discovered that there was kinking as a result of scarring, and there was poor flow beyond the kink. The peritoneal distal catheter was replaced because there was no flow distally. Allen was discharged from LSUHSC on February 27. The diagnosis of Allen’s condition was chronic optic neuritis secondary to elevated intra cranial pressure secondary to malfunctioning of the VP shunt. Allen is now blind and unable to ambulate.

On January 16, 2004, Dillon’s counsel wrote to the Commissioner of Administration requesting a medical review panel against Dr. Willis and other parties for alleged malpractice that occurred between February 8 and February 14, 2003. The Patient’s Compensation Fund responded on January 28, 2004, that Dr. Willis was not a qualified health care provider under La. R.S. 40:1299.41, et seq.

On February 6, 2004, the Division of Administration wrote to Dillon that Dr. Willis was a qualified health care provider under the Malpractice Liability for State Services Act (“MLSSA”), La. R.S. 40:1299.39, et seq.

Dillon filed suit against Dr. Willis and Springhill Medical Center on March 18, 2004. On November 12, 2004, Dr. Willis filed the exception of prematurity. He asserted that he was a qualified health care provider under |4La. R.S. 40:1299.39. The trial court, concluding that Dr. Willis was a qualified health care provider under La. R.S. 40:1299.39(A)(l)(a)(i), granted the exception of prematurity.

DISCUSSION

At issue in this matter is whether Dr. Willis was a qualified health care provider under La. R.S. 40:1299.39(A)(1)(a)(i) at the time he treated Allen at WK-B.

“All malpractice claims against the state, its agencies, or other persons covered by this Part ... shall be reviewed by a state medical review panel.... ” La. R.S. 40:1299.39.1(A)(l)(a). The burden of proving prematurity is on the exceptor; thus, Dr. Willis must establish that he is entitled to a medical review panel. See Williamson v. Hospital Service District No. 1 of Jefferson, 2004-0451, (La.12/1/04), 888 So.2d 782.

Dr. Willis contends that he is a state health care provider as defined in La. R.S. 40:1299.39(A), which states in part:

(l)(a) “State health care provider” or
“person covered by this Part” means: (i) The state or any of its departments, offices, agencies, boards, commissions, institutions, universities, facilities, hospitals, clinics, laboratories, health care units, ambulances, ambulance services, university health centers, and other state entities which may provide any kind of health care whatsoever, and the officers, officials, and employees thereof when acting within the course and scope of their duties in providing health care in connection with such state entity....

Dillon counters that Dr. Willis is excluded from coverage under the MLSSA because he was not functioning as an employee of the state at the time the alleged malpractice occurred at WK-B. Dillon also argues that | .^coverage is excluded under La. R.S. 40:1299.39 according to the terms found in (A)(1)(b), which provides:

“State health care provider” or “person covered by this Part” shall not mean and shall not include a political subdivision of the state nor any hospital, hospital service district, or any other health care facility of a political subdivision, nor shall it mean or include any individual acting in a professional capacity in providing health care services not by or on behalf of the state.

Discussing the interpretation of the MLSSA, our supreme court has stated:

This court has noted that because the MLSSA limits the liability of certain health care providers in derogation of the general rights of tort victims, any ambiguities in the Act should be strictly construed against coverage. On the other hand, legislation is a solemn expression of legislative will, and therefore, interpretation of a law involves primarily the search for the legislature’s intent. Hence, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. When the language of the law is susceptible of different meanings, however, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. Additionally, laws on the same subject matter must be interpreted in reference to each other. If application of the foregoing rules of interpretation fails to illuminate definitively the legislature’s intent, only then should the rule of strict construction apply to the interpretation of laws in derogation of common rights such as the MLSSA.

Citations omitted. Ruiz v. Oniate, 97-2412, pp. 4-5 (La.5/19/98), 713 So.2d 442, 444-5. The supreme court further explained that the purpose of the MLSSA was to entice physicians and other professionals to provide health care to patients on behalf of the state by protecting them against malpractice judgments. Id.

1 (iDr. Willis is a neurosurgeon employed by LSUHSC as a professor. He primarily does “hands-on care for patient care,” but he also trains residents and medical students, and performs research. He works at the main LSUHSC hospital, a satellite clinic, and then once a week at WK-B. He does not have a contract with Willis-Knighton, although his group at LSUHSC, which he refers to as the “University of Neurosurgery,” has an agreement to provide professional services at the Willis-Knighton hospitals. The state rents space for them to have an office in a building at the WK-B complex. Dr. Willis explained that all his employees at the WK-B office are state employees.

Because his group has admitting privileges at the Willis-Knighton hospitals, they are required to take emergency room calls at those hospitals. Dr. Willis explained that he will sometimes see patients at the emergency rooms at those hospitals when he is on call one weekend a month. Dr. Willis also stated that he has admitting privileges at all area hospitals except for those operated by Christus Schumpert. His group is also affiliated with the Veterans Hospital and Shriner’s Hospital, where he does consultations. When Dr. Willis sees patients at WK-B, he is usually not accompanied by medical residents, because WK-B is not accredited as part of the residency training program. Thus, when Dr. Willis is providing services at WK-B, such as when he consulted on Allen’s case, he is acting in his role as a neurosurgeon, not as an instructor.

|7Pr. Willis is paid through the state, and his medical malpractice insurance coverage is through the state. He receives a base salary based upon his level of professorship, and then he receives supplemental pay based on how much money he brings to the department through his clinical practice. A patient whom he sees at WKB is billed through the state for his services as all his billing is done through LSUHSC. The only time that LSUHSC does not bill for medical care provided by Dr. Willis is when he is working as a physician in the military. Dr. Willis was unsure if Allen was billed for the services he provided to her at WK-B.

Dr. Willis explained that his work at WK-B benefits the state because income he earns for LSUHSC is used to subsidize research and faculties that do not produce much money. Dr. Willis agreed that it would not benefit the state if he did not bill for his services at WK-B, but then he added that under such circumstances it would still benefit the state in the sense that he would be providing services to its citizens.

The record establishes that Dr. Willis was in the course and scope of his employment with LSUHSC when treating Allison at the time of the alleged malpractice. Accordingly, the exception of prematurity was properly granted.

DECREE

At appellant’s costs, the judgment is AFFIRMED.

      . The facts regarding Allen's medical history and treatment are gleaned from Dillon's petition and appellate brief.

      . All of the medical treatments and diagnoses at issue occurred in 2003.

      . Filed into the record is an August 11, 2003, letter from Rogers Prestridge, Coordinator of Legal and Governmental Affairs with LSUHSC, to Willis-Knighton. Prestridge wrote that Dr. Willis was a Professor in the Department of Neuroscience at LSUHSC, and that medical malpractice coverage was extended to Dr. Willis when acting in a professional capacity while providing health care services on behalf of the state. Dr. Willis does not have any separate medical malpractice insurance coverage.


text:
    RCC PROPERTIES, L.L.C., Plaintiff-Appellee, v. WENSTAR PROPERTIES, L.P., Defendant-Appellant.
    No. 40,996-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 2006.

      Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P. by Clara Moss Sartor Wendy E.W. Giovingo, for Appellant.
    Hudson, Potts & Bernstein, L.L.P. by William Craig Henry, Counsel for Appel-lee.
    Before PEATROSS, DREW and MOORE, JJ.
   DREW, J.

| Wenstar Properties, L.P., appeals from a judgment invalidating a predial servitude in favor of an estate owned by Wenstar. We reverse and render.

FACTS

In 2002, AZT Winnsboro La., Inc., (AZT) sold a tract to Wenstar. A Wendy’s restaurant is currently operating on the Wenstar property (the dominant estate). In the “Act of Cash Sale and Servitude,” AZT, the vendor, granted to Wenstar, the vendee, a servitude in the following language:

Vendor also grants to vendee a predial servitude in favor of the Property prohibiting the use of the property adjacent to the Property that is owned by Vendor and described on Exhibit A attached hereto and made a part hereof (hereinafter, Vendor’s Adjacent Property) or any part or parcel thereof for a restaurant with a drive-thru pick-up window, the primary business of which is the sale of hamburgers, hamburger products or chicken sandwiches (or any combination thereof). For the purposes of this servitude and restriction, a restaurant has the aforesaid products as its primary business if fifteen percent (15%) or more of its gross sales, exclusive of taxes, beverage | ?and dairy product sales, consists of sales of hamburgers, hamburger products or chicken sandwiches (or any combination thereof). This servitude and restriction shall burden Vendor’s Adjacent Property for a period of twenty (20) years from the date of this act of sale; provided, however, that this servitude and restriction shall terminate at such time that the Property is no longer used as a Wendy’s restaurant or if operation of a Wendy’s restaurant ceases on the Property for a continuous period of three (3) months.

In 2004, AZT sold the adjacent property (the servient estate) to |SR.C.C. Properties, L.L.C. R.C.C. subsequently received an offer to purchase this tract from Hannon’s Food Service of Vicksburg, Inc., which intended to build a KFC (Kentucky Fried Chicken) franchise on the property. Hannon’s agreed to purchase the property only if R.C.C. could obtain a satisfactory release of the servitude.

In February 2005, R.C.C. filed a petition for a declaratory judgment asking the district court either to invalidate the servitude or declare it inapplicable to the R.C.C. property. R.C.C. subsequently added Hannon’s and Wendy’s International, Inc., as defendants.

The court held a trial in July 2005 and heard testimony from several witnesses. Among the witnesses was Bobby Hannon, chairman of Hannon’s, who explained that a KFC restaurant serves several types of chicken sandwiches and that any KFC built on the R.C.C. property would serve these sandwiches. Hannon also stated that “the deal would be off’ as far as he was concerned if the servitude binding the property was found to be valid.

Edward Buchner, III, a certified public accountant from Vicksburg who handled Hannon’s business, also testified. Buchner reviewed Hannon’s sales figures for Han-non’s KFC restaurants to determine what percentage of KFC restaurant sales consisted of chicken sandwiches. For 2003, chicken sandwiches amounted to 1.77% of total sales; for 2004, the percentage was 1.81%, and for the first six months of 2005, the percentages were January- — 1.91%; February — 4.87%, March- — 14.18%, |4ApriI — 11.2%, May- — 10.8%, and June— 6.7%.

Pete Subowicz, a field director for real estate for Wendy’s International, testified that he negotiated this predial servitude with the original property owner when Wenstar acquired its Winnsboro property. He explained that deed restrictions limiting competition are a “pretty common standard” in the fast food industry. The servitude defined “primary business” as the sale of hamburgers, hamburger products or chicken sandwiches “if fifteen percent (15%) or more of its gross sales, exclusive of taxes, beverage and dairy product sales, consists of sales of hamburgers, hamburger products or chicken sandwiches (or any combination thereof).” In his view, a particular restaurant that wanted to locate on the servient estate would have to establish that its hamburger and chicken sandwich sales did not exceed 15%, as described above. In his view, that restaurant would have to establish that fact by submission of national sales records, then regional sales records and sales records of existing restaurants. Subowicz admitted that the existing predial servitude would not prohibit the construction of a KFC store provided the KFC owners could demonstrate that its sales of the proscribed sandwiches was less than 15%. Subowicz testified Wendy’s International would never agree to the release of a predial servitude.

The court subsequently issued reasons for judgment stating its intent to invalidate the servitude in its entirety. The court stated, in part:

This Court understands that predial ser-vitudes are to be strictly construed, and any doubts as to the extent or exercise of rights created by such servitudes should be resolved in favor of the ser-vient estate. This Court believes that this predial servitude [fiis unclear and ambiguous. It is not clear as to what time period the chicken sandwich sales are to be measured. Is it one week, one month, one quarter or one year? It is also unclear how the determination is to be made. Does the owner of the dominant estate have the right to examine the books and records on demand or must legal action be taken, or does the owner of the servient estate have a duty to provide those records on a weekly, monthly, quarterly, or annual basis? Since the servitude is silent as to both the time period and manner of showing compliance, this Court must determine the servitude to be ambiguous. Since servitudes are not favored and are to be strictly construed, any ambiguity is to be assessed against the dominant estate.

The court also noted that it did not consider the parol evidence presented by the parties regarding the intent when the servitude was negotiated and effected. On August 12, 2005, the court signed a judgment invalidating the servitude.

DISCUSSION

In Blanchard v. Rand 34,442 (La.App.3/2/01), 781 So.2d 881, writs denied 01-0897, 01-0931 (La.6/1/01), 793 So.2d 193,194, this court explained that a predial servitude is a real right burdening an immovable. To have a predial servitude requires two different tracts belonging to different owners. A predial servitude is due to the estate rather than the owner of the estate and is a charge on the servient estate for the benefit of the dominant estate. La. C.C. art. 646.

La. C.C. art. 697 provides:

Predial servitudes may be established by an owner on his estate or acquired for its benefit.
The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the following rules.

|fiA predial servitude restricting or prohibiting commercial use of property is a negative, nonapparent servitude which may be acquired only by title. La. C.C. arts. 706, 707, 739; Mardis v. Brantley, 30,773 (La.App.2d Cir.8/25/98), 717 So.2d 702, 704, writ denied, 98-2488 (La.11/20/98), 729 So.2d 563. Once the document creating the servitude is recorded in the public records, the restriction is binding on subsequent owners who acquire the servient estate without further mention of the restriction in the act conveying the servient estate. Mardis, supra.

La. C.C. art. 730 provides:

Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.

La. C.C. art. 749 provides:

If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.

When a predial servitude is created by title, the intention of the parties to place a charge on one estate for the benefit of another estate, and the extent of the charge, must be expressed on the face of the title document and cannot be inferred or implied from vague or ambiguous language. Mardis, supra. Servitudes claimed under title are never sustained by implication; the title creating them must be express as to their nature and extent, as well as to the estate that owes them and the estate to which they are due. Williams v. Wiggins, 26,060 (La.App.2d Cir.8/17/94), 641 So.2d 1068.

We disagree with the trial court’s finding that the servitude was ^invalid because the method of measuring “primary business” described by the servitude was ambiguous. The servitude in favor of Wenstar’s property is a conventional pred-ial servitude. The original vendor, AZT, and purchaser of the dominant estate, Wenstar, clearly intended to create a pred-ial servitude restricting the use of the ser-vient estate still owned by AZT.

The instrument transferring the property to Wenstar was entitled “Act of Cash Sale and Servitude.” The intent of the proprietor to create a servitude must clearly appear on the fact of the document. Blanchard, supra. This instrument specifically stated a “predial servitude” was granted in favor of the property acquired by Wenstar. The “predial servitude” bound the adjacent property by prohibiting a certain use of the remaining property owned by AZT, the vendee. The title document clearly reflected the intention of the parties to create an obligation in favor of the dominant estate. Blanchard, supra. The extent of the charge on the servient estate is the prohibition against using the servient estate “for a restaurant with a drive-thru pick-up window, the primary business of which is the sale of hamburger products or chicken sandwiches (or any combination thereof).” The servitude is effective as written. The trial court erred as a matter of law in invalidating the servitude; therefore, we make a de novo review of the record.

Having found that the predial servitude is binding on the servient estate, we find that the trial court’s concerns about the practical implementation of the servitude were perceptive. In particular, the method |sby which the “primary business” of the servient estate should be measured is unclear. The yearly totals of Hannon’s KFC chicken sandwich sales for 2003 and 2004 were well underneath the 15% specification in the title, as was the average for 2005, but in three months of 2005, chicken sandwich sales approached 15% of Han-non’s sales revenues.

Because the “primary business” measurement is related to the manner of use of the servitude, we look to the intent of the parties in creating the servitude. The trial court refused to consider parol evidence to determine that question. However, the intent of Wenstar and AZT in creating the servitude is apparent from the face of the title. Wenstar intended to prevent a competitor in the fast-food hamburger or chicken sandwich business from opening a restaurant next to the Wendy’s. Toward that end, the servitude created by the parties defined the level of competition that would trigger the restriction.

Hannon’s KFC sales figures, as recited at the hearing, showed that the revenues from chicken sandwiches sold at Hannon’s other KFC restaurants never equaled or exceeded 15% of total restaurant sales. Although the future is uncertain, the only evidence presented showed that the “primary business” trigger in the servitude was never reached by the other Hannon’s restaurants in the past. Interpreting the servitude in light of La. C.C. art. 730, the servitude does not prohibit the construction or operation of a KFC restaurant at this location.

We are not called upon to decide what result may obtain should the KFC, or any other restaurant, later have a revenue mixture that triggers the |9“primar.y business” measure in the servitude. We note that doubt as to the manner of exercise of a predial servitude is resolved in favor of the servient estate. La. C.C. art. 730. The intention of the parties in light of its purpose is used to determine manner of use of the servitude. La. C.C. art. 749. Considering the contingent nature of Han-non’s agreement to buy the property from R.C.C. and Hannon’s testimony that a valid servitude would result in the deal being off, it is unlikely that a decision will be necessary on how to determine 15% of the proscribed sales figures.

As requested in R.C.C.’s pleadings, this decision is limited to the finding that a valid predial servitude exists in favor of the dominant estate (specifically described in footnote # 1). The trial court judgment, which declares the predial servitude (quoted above) “invalid and of no effect as to the entirety of the Servient Estate” (specifically described in footnote # 2), is reversed.

CONCLUSION

For the above reasons, the judgment of the trial court invalidating the servitude is reversed. Costs of this appeal are assessed to appellee.

REVERSED AND RENDERED.

      . Pursuant to La. C.C.P. art. 1919, we include the following description taken from the AZT- — Wenstar transaction:
      One certain portion of ground situated in Section 23, T14N-R7E, Franklin Parish, Louisiana, designated as portion of Tract 1 & being more fully described as follows: Commence at the intersection of the north right of way line of Allison Street and the old west right of way line of La. Hwy. No. 15 and measure N 08° 00' 50" W, along the old west right of way line of La. Hwy. No. 15 a distance of 930.00 feet to a point; thence measure S 81° 59' 10" W, a distance of 13.00 feet to the Point of Beginning; thence continue S 81° 59' 10" W, a distance of 250.00 feet to a point; thence measure N 08° 00' 50" W, a distance of 175.00 feet to a point; thence measure N 81° 59' 10" E, a distance of 250.00 feet to a point on the new west right of way line of La. Hwy. No. 15; thence measure S 08° 00' 50" E, along the new west right of way line of La. Hwy. No. 15, a distance of 175.00 feet to the Point of Beginning; which property has a municipal address of 3324 Front Street, Winnsboro, Louisiana, and which is hereinafter referred to as the Property.

      . Pursuant to La. C.C.P. art. 1919, we include the following description taken from the AZT — R.C.C. transaction:
      A certain tract or parcel of land located in the West half (Wl/2) of Section 23, Township 14 North, Range 7 East, Franklin Parish, Louisiana, being more particularly described as follows:
      Commence at the Southeast Corner of Block 16 of the Ramage Place addition as shown on Plat No. 16B of the records of Franklin Parish, Louisiana; such comer being the intersection of the North boundary of Allison Street with the old West right-of-way line of Louisiana Highway No. 15, thence along said West right-of-way line N 08 degrees 00 minutes 50 seconds W a distance of 930.00 feet to a point and turn; Thence S 81 degrees 59 minutes 10 seconds W a distance of 13.00 feet to the POINT OF BEGINNING; Thence from the Point of Beginning S 81 degrees 39 minutes 10 seconds W a distance of 637 feet to a point and turn; Thence N 08 degrees 00 minutes 50 seconds W a distance of 480.00 feet to a point and turn; Thence N 81 degrees 59 minutes 10 seconds E a distance of 637.00 feet to a point and turn on the new west right-of-way line of La. Hwy. No. 15; Thence along said new west right-of-way S 08 degrees 00 minutes 50 seconds E a distance of 480.00 feet to the POINT OF BEGINNING, containing within said bounds 7.02 acres more or less.
      LESS AND EXCEPT:
      One certain portion of ground situated in Section 23, T14N-R7E, Franklin Parish, Louisiana, designated as portion of Tract 1 & being more fully described as follows: Commence at the intersection of the north right of way line of Allison Street and the old west right of way line of La. Hwy. No. 15 and measure N 08° 00' 50" W, along the old west right of way line of La. Hwy. No. 15 a distance of 930.00 feet to a point; thence measure S 81° 59' 10" W, a distance of 13.00 feet to the Point of Beginning; thence continue S 81° 59' 10" W, a distance of 250.00 feet to a point; thence measure N 08° 00' 50" W, a distance of 175.00 feet to a point; thence measure N 81° 59' 10" E, a distance of 250.00 feet to a point on the new west right of way line of La. Hwy. No. 15; thence measure S 08° 00' 50" E, along the new west right of way line of La. Hwy. No. 15, a distance of 175.00 feet to the Point of Beginning.

      . Less taxes, beverages, and dairy.

      . La. C.C. art. 2046 directs that the common intent of the parties is used to interpret a contract. Parol evidence is inadmissible to vary the terms of a written contract. However, if that contract could have more than one interpretation, there is ambiguity as to its provisions, or the intent of the parties cannot be ascertained by the language, then parol evidence is admissible to clarify the ambiguity and show intent of the parties. Fleet Fuel, Inc. v. Mynex, Inc., 40,683 (La.App.2d Cir.3/8/06), 924 So.2d 480. As noted previously, the parties' intent in creating the predial servitude is clear on the face of the instrument. Deciding whether or not the total restaurant sales of hamburgers, hamburger products or chicken sandwiches (or any combination thereof) meet or exceed 15% proscribed in the predial servitude must be determined by the intent of the parties if and when that issue be reached.


author: DICKINSON, Justice,

text:
    Nita Elaine Snyder DOBBINS, Individually and as Natural Mother and Next Friend of the Infant Child Named in the Petition v. Johnny Lee COLEMAN.
    No. 2004-CA-02365-SCT.
    Supreme Court of Mississippi.
    April 13, 2006.
    Rehearing Denied June 15, 2006.

      H R. Garner, Hernando, attorney for appellant.
    John Watson, Southhaven, attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. The first question presented is whether upon a determination of paternity, Mississippi law requires the natural father to assume sole financial responsibility for the child’s medical expenses. The second is whether the chancellor’s award of attorney’s fees to the mother was reasonable and proper.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On March 31, 2003, Nita Elaine Snyder Dobbins (“Ms. Dobbins”) gave birth to T.H.C. (“the Child”) as a result of relations between herself and Johnny Lee Coleman (“Mr. Coleman”). The Child was born out of lawful wedlock. Ms. Dobbins filed a Petition to Establish Paternity for Filiation, Child Support and Other Relief, asking the chancellor to make a determination of paternity, give her exclusive care, custody, and control of the Child, and require Mr. Coleman “to pay all reasonable support, maintenance, medical bills incurred for and in (sic) behalf of the child, to maintain medical insurance on the child, to pay all medical bills, as well as pay all medical bills incurred.”

¶ 3. Mr. Coleman filed an Answer and Counter-Petition, admitting he was the Child’s father, but denying sole responsibility for any expenses or medical bills. He requested the court give him “reasonable, specific and designated visitation with the minor child” and joint legal custody of the Child. Mr. Coleman also claimed Ms. Dobbins should pay half the Child’s medical expenses not covered by health insurance.

¶ 4. In his Temporary Order, the chancellor found Mr. Coleman was the father of the Child and required him to pay $200 per month in child support to Ms. Dobbins until the case came for a final hearing. The chancellor also granted Mr. Coleman temporary visitation with the Child.

¶ 5. In her Answer to Counter-Petition, Ms. Dobbins denied Mr. Coleman was entitled to joint legal custody of the Child. She again asserted that, once Mr. Coleman was adjudicated the father, Mississippi law requires him to be responsible for all the education and other expenses incurred on behalf of the Child.

¶ 6. In his Order of Filiation, the chancellor found Mr. Coleman was the natural father of the Child. The chancellor awarded the parties joint legal custody, granted physical custody to Ms. Dobbins, and granted visitation rights to Mr. Coleman. The chancellor ordered Mr. Coleman to include the Child under his group medical insurance and to continue the $200 per month support payments until a final hearing on the support matter, noting that the final support amount could be adjusted in light of the guidelines found in Mississippi Code Annotated Section 43-19-101. Finally, the chancellor took under advisement the issues of payment of past and future medical expenses and the awarding of reasonable fees.

¶ 7. After briefing by the attorneys, the chancellor issued his opinion on these matters from the bench on November 8, 2004. The chancellor stated “that to make a father solely responsible for all past and future medical expenses, regardless of the party’s financial status and wherewithal would be a violation of equal protection laws and would be making a determination based solely on sex and not financial ability and cannot be constitutionally permissible.” The chancellor entered his Order on November 15, 2004, making the parties “equally responsible for the balances of the existing medical bills” and requiring them to split all future medical bills as well. The chancellor also ordered Mr. Coleman to reimburse Ms. Dobbins for the reasonable attorney’s fees she incurred in bringing and maintaining her Petition to Establish Paternity for Filiation, Child Support and Other Relief.

¶ 8. Ms. Dobbins now appeals the chancellor’s determination that Mr. Coleman would be responsible for only half of the Child’s medical expenses, rather than the full amount. Mr. Coleman cross-appeals with respect to the chancellor’s award of attorney’s fees.

DISCUSSION

I. Whether the chancellor erred in holding that the natural father of an illegitimate child cannot be made automatically responsible for all past, present, and future medical expenses of the child.

¶ 9. On appeal, Ms. Dobbins claims the chancellor committed reversible error by declaring Mississippi Code Annotated Section 93-9-7 unconstitutional and holding that the father of an illegitimate child cannot be made solely responsible for the past, present, and future medical expenses of his child. Mr. Coleman responds that the chancellor correctly held that Section 93-9-7 was unconstitutional because the provision “[does] not serve its stated legislative purpose in a manner which can pass scrutiny.” Section 93-9-7- states:

Obligations of the father. The father of a child which is or may be born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony ... for the reasonable expense of the mother’s pregnancy and confinement, and for the education, necessary support and maintenance, and medical ... expenses of the child....

Another statute relevant to this issue, according to the chancellor and the parties, is Mississippi Code Annotated Section 43-19-101(6), which states in part, “[a]ll orders involving the support of minor children, as a matter of law, shall include reasonable medical support.”

¶ 10. The parties’ arguments in this case rest on the assumption that the chancellor actually held that Section 93-9-7 violates the Equal Protection Clause of the Fourteenth Amendment. Looking carefully at the language of the Order, though, reveals that the chancellor did not declare any portion of the Mississippi Uniform Law on Paternity unconstitutional, and rightly so; rather, he correctly held that an interpretation of the statutes automatically holding the father solely responsible for all of his child’s medical expenses is impermissible. As previously noted, Section 93-9-7 states, “[t]he father of a child which is or may be born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony .... ” (emphasis added). In his Order, the chancellor stated:

To hold the father solely responsible for the payment of all past, present and future medical bills not covered by health insurance would be unjust, unconscionable, and would violate equal protection laws under the provisions of Miss.Code Ann. Section 93-9-7, 93-9-9, 93-3-11, 93-9-15, 93-9-29, 93-9-45. Mississippi Code Annotated Section 43-19-101(6) provides that all orders involving support of minor children, as a matter of law, shall include reasonable medical support.

¶ 11. A precise reading of both the chancellor’s bench opinion and Order confirms he did not declare the statute unconstitutional. The chancellor merely rejected one party’s interpretation of the provision automatically requiring a father to pay all medical expenses and commented that such an interpretation would be unconstitutional. The statute plainly provides that someone like Mr. Coleman, the father of a child born out of lawful matrimony, is liable to the same extent as the father of a child born of lawful matrimony — no greater extent, no lesser extent.

¶ 12. As we noted in Moulds v. Bradley, 791 So.2d 220, 229 (Miss.2001), “[ajfter an adjudication of paternity, an illegitimate child’s legal relationship to the father with regard to financial support is no different than that of a legitimate child born to a marriage that ended in divorce.” (per concurring opinion of Diaz, J., with two Justices joining and three Justices joining in part). In Moulds, after the Chancery Court entered a decree finding Moulds to be the natural father of Bradley’s child, the court ordered Moulds to pay weekly child support of fifty dollars and to provide the child with medical and dental insurance once financially able. Id. at 223. Such a child support order was squarely within the province of the chancellor. Miss.Code Ann. § 43-19-101(6); Miss. Code Ann. § 93-9-29; Miss.Code Ann. § 93-11-65(1). The court never required the father to pay all past, present, and future medical expenses for the illegitimate child. Moulds, 791 So.2d at 223. The support was subject to adjustment, and once Moulds’ income increased, the court modified the amount of support pursuant to the guidelines in Section 43-19-101. Id. at 226.

¶ 13. The chancellor in this case assumed a similar course of action. In its Order of Filiation, the court found Mr. Coleman to be the natural father of the Child. The court also ordered Mr. Coleman to pay $200 in monthly support and to include the Child under his group medical insurance. Finally, the court noted “that at the final hearing of this cause the child support may be increased or reduced by the Court, depending upon adjusted gross income as defined as (sic) Miss.Code Ann. § 43-19-101 (1972).”

¶ 14. The chancellor, in his November 15 Order, determined that the parties should be equally responsible for the Child’s medical expenses, a result clearly permitted by Section 93-9-7 because, “[tjhe father of a child which is ... born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony....” The Order noted in conclusion that, “[ajll aspects of the Order of Filiation entered on September 24, 2004, shall remain in full force and effect,” making the final amount of support subject to adjustment, just as in Moulds.

¶ 15. Nothing in the statutes or in our jurisprudence demands that the father of an illegitimate child be automatically liable for all of his child’s medical expenses. The chancellor correctly arrived at a permissible financial arrangement clearly contemplated by the statute where both parents share past and future medical expenses equally. Mississippi Code Annotated Section 93-11-65(2) even provides, “where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.”

¶ 16. The chancellor noted in the Hearing for Oral Opinion that an interpretation of Section 93-9-7 requiring the father of an illegitimate child to pay all medical expenses conflicted with Mississippi Code Annotated Section 43-19-101(6), which states, “[a]ll orders involving support of minor children, as a matter of law, shall include reasonable medical support.” Ms. Dobbins also acknowledges the conflict between an interpretation of Section 93-9-7 requiring the father to automatically provide full medical support, and the language of Section 43-19-101(6) which requires reasonable medical support. Once again, Section 93-9-7 states that the father of an illegitimate child must pay reasonable medical expenses to the same extent as the father of a child born of lawful matrimony. The correct interpretation of these statutes demonstrates how the provisions compliment each other, rather than conflict with each other.

¶ 17. There is no reason to conduct a constitutional analysis of Section 93-9-7 on equal protection grounds because the chancellor simply did not hold that the provision violated the Equal Protection Clause of the Fourteenth Amendment. Additionally, at no point did either party argue the constitutionality of Section 93-9-7 below. Therefore we decline to address any of the parties’ arguments as to the constitutionality of the provision. See Estate of Patterson v. Patterson, 798 So.2d 347, 351 (Miss.2001); Pickens v. Donaldson, 748 So.2d 684, 692 (Miss.1999).

¶ 18. The chancellor arrived at a permissible result under Section 93-9-7 and other statutory child support provisions, and we may only reverse the chancellor’s findings when “the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Miss. Dep’t of Human Servs. v. Murr, 797 So.2d 818, 820 (Miss.2000). The chancellor applied the correct standard, and there is no basis upon which to reverse his determinations.

¶ 19. Therefore, we affirm the chancellor’s September 24 Order of Filiation and the November 15 Order.

II. Whether the chancellor erred in ruling that Ms. Dobbins was responsible for half of the Child’s past and future medical bills.

¶ 20. Ms. Dobbins’ second issue on appeal basically restates her foundation argument from the first issue — that Mr. Coleman should be required to pay all past, present, and future medical bills. Again, Mississippi Code Annotated Section 93-9-7 clearly permits some division of the financial burden for a child born out of wedlock because the father of a child born out of lawful matrimony “is liable to the same extent as the father of a child born of lawful matrimony.” Mr. Coleman’s liabilities are not - automatically greater or less simply because his child was born out of lawful matrimony. Assigning the financial responsibility for the child’s medical expenses is properly left to the chancellor. Because the chancellor’s decision was not manifestly wrong or clearly erroneous based on the record, we affirm the September 24 Order of Filiation and November 15 Order.

III. Whether the chancellor abused his discretion in awarding Ms. Dobbins’ attorney’s fees against Mr. Coleman.

¶ 21. On cross-appeal, Mr. Coleman argues that the chancellor’s award of attorney’s fees to Ms. Dobbins pursuant to Mississippi Code Annotated Section 93-9-45 was both unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and unreasonable in light of the facts. The first claim is procedurally barred, while the second claim is without merit.

¶ 22. Section 93-9-45 of the Mississippi Uniform Law on Paternity controls the awarding of the petitioner’s court costs and attorney’s fees against a defendant after the entry of an Order of Filiation and states:

If the court makes an order of filiation, declaring paternity and for the support and maintenance, and education of the child, court costs, including the cost of the legal services of the attorney representing the petitioner, expert witness fees, the court clerk, sheriff and other costs shall be taxed against the defendant.

¶ 23. Mr. Coleman’s claim regarding this provision’s unconstitutionality is procedurally barred for failure to raise the issue in the court below. At no point did Mr. Coleman ever argue that Section 93-9-45 violated the Equal Protection Clause of the Fourteenth Amendment on the basis of sex. As such, we will not review this assignment of error. See Patterson, 798 So.2d at 351; Pickens, 748 So.2d at 692.

¶ 24. Mr. Coleman’s second claim—that the attorney’s fees awarded to Ms. Dobbins were unreasonable—is without merit. Section 93-9-45 provides that when an Order of Filiation is entered by the court, the defendant will be assessed “the cost of the legal services of the attorney representing the petitioner.... ” Here, the chancellor entered an Order of Filiation on September 24, 2004, with respect to the petitioner, Ms. Dobbins, and the defendant, Mr. Coleman. The chancellor, in his November 15 Order, held that the attorney’s fees incurred by Ms. Dobbins were reasonable and were to be paid by Mr. Coleman.

¶ 25. While the awarding of attorney’s fees and costs appears automatic pursuant to the statute, we have held that those fees must be reasonable. R.E. v. C.E.W., 752 So.2d 1019, 1028 (Miss.1999). The record in this case includes a detailed Attorney’s Report of Fees Incurred for Nita Elaine Snyder Dobbins with an itemization of all charges and expenses related to this paternity action, an employment contract, and affidavits from two attorneys practicing in DeSoto County as to the usual and customary fees charged by attorneys in domestic relations cases in the community. In his opinion, the chancellor noted, “[t]he attorney’s fees are reasonable, and the statute also says that the future father shall pay attorney fees if they are reasonable and they are granted. He shall pay them.”

¶ 26. This Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996). The chancellor’s decision to award attorney’s fees pursuant to Section 93-9-45 cannot be characterized as an abuse of discretion, manifestly wrong, or clearly erroneous.

¶ 27. Mr. Coleman’s reliance on Clark v. Whiten, 508 So.2d 1105 (Miss.1987) and McKee v. McKee, 418 So.2d 764 (Miss.1982), is misplaced. Clark involved a jury’s, rather than a judge’s, awarding of attorney’s fees without any evidence such as the reasonableness of the hourly rate charged by the petitioner’s attorneys. Clark, 508 So.2d at 1108-09. In contrast, the fees charged by Ms. Dobbins’ attorney fall within the customary charge in the community, as explained in two attorney affidavits. In McKee, we found that fees based on an estimated 850 hours worked on the case were too speculative to support an award of attorney’s fees. McKee, 418 So.2d at 766-67. Here, the chancellor was provided with an itemized account of all of Ms. Dobbins’ attorney’s fees and charges. Given the substantial evidence supporting the chancellor’s award of attorney’s fees to Ms. Dobbins, we decline to disturb the chancellor’s findings. Mr. Coleman’s assignment of error fails on the merits.

CONCLUSION

¶ 28. Contrary to the opinions expressed by the parties, the chancellor did not declare Mississippi Code Annotated Section 93-9-7 on the obligations of an illegitimate child’s father to be unconstitutional. The chancellor merely stated that an inaccurate interpretation of the statute making the father solely responsible for all of his child’s medical expenses would violate equal protection laws under the Mississippi Uniform Law on Paternity. Under the statutory scheme for establishing child support, as well as this Court’s jurisprudence, the chancellor made a permissible division of the financial responsibility for medical expenses between both parents. Because the chancellor applied the correct standard and his determination was neither manifestly wrong nor clearly erroneous, this Court affirms the disposition.

¶ 29. Mr. Coleman never raised the issue of the constitutionality of awarding attorney’s fees under Section 93-9-45 before the trial court, so we are proeedurally barred from reviewing that assignment of error. Finally, the record does not support Mr. Coleman’s assertion that Ms. Dobbins’ attorney’s fees were unreasonable. Therefore, we also affirm the chancellor’s award of Ms. Dobbins’ attorney’s fees against Mr. Coleman.

¶ 30. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. COBB, P.J., DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Miss.Code Ann. §§ 93-9-1 et seq. (1972).

      . A third affidavit concerning the reasonableness of Ms. Dobbins' attorney’s fees was provided by H.R. Garner, counsel for Ms. Dobbins. Because of the potentially self-serving nature of this third affidavit, we decline to consider it when assessing the “reasonableness” issue.