author: EDWIN A. LOMBARD, Judge.

text:
    Carlos HERRERA v. Caze JOHNSON and Imperial Fire and Casualty Insurance Company.
    No. 2007-CA-0641.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Byron A. Richie, Richie, Richie & Ob-erle, L.L.P., Shreveport, LA, for Defendant/Appellant.

      (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

| defendant, Imperial Fire & Casualty Insurance Company (“Imperial”), appeals the judgment of the trial court awarding Plaintiff, Carlos Herrera, seventeen thousand three hundred ninety one dollars ($17,391.00) for damages resulting from an alleged automobile accident. Finding no support in the record for the trial court’s findings, we reverse the trial court’s judgment and dismiss Plaintiffs claims against Imperial.

Relevant Facts

This action arose out of an automobile accident which allegedly occurred on or about June 7, 2002 in Orleans Parish, Louisiana. Plaintiff claims that on that date, while he was seated inside a 1995 Ford Mustang that was parked on Cleveland Avenue, the car was suddenly struck by a white vehicle operated by a black male. According to Plaintiff, the driver stopped and got out of his car. However, because Plaintiff does not speak English, he did not speak to the driver of the car. Plaintiff claims that his neighbor spoke to the driver and wrote down the driver’s license and insurance information on a piece of paper. According to Plaintiff, the driver then left the scene. Plaintiffs neighbor eventually telephoned the police, who responded hours later.

pBased upon the information allegedly gathered by his neighbor, Plaintiff telephoned Imperial to schedule an inspection of the vehicle. However, since Plaintiff did not actually own the vehicle and was not licensed to drive at the time, Plaintiff chose not to pursue a property damage claim. Instead, Plaintiff made a claim for personal injury, claiming that he injured his lower back as a result of the accident. Plaintiff did not seek medical treatment immediately after the accident. According to the Plaintiff, it was not until a friend suggested that he do so that Plaintiff sought treatment at a clinic close to his home. He claims that he was treated there for about nine months with massages.

Plaintiff filed suit in City Court against Caze Johnson, the alleged driver of the vehicle, and Imperial, the insurance company which had issued a policy of insurance to Keishawn Johnson, Caze’s former wife, for coverage for damages caused by Keishawn or a permissive user of the insured vehicle, a gold Altima.

At trial, Plaintiff testified through an interpreter. Hugo Mejia, who was attempting to visit Plaintiffs neighbor at the time of the incident, also testified on behalf of Plaintiff. While both men testified that a white vehicle struck plaintiffs parked car, Mejia recalled Plaintiffs car as being a red SUV. Both men described the alleged driver of the white car as a twenty-five to thirty year old black male. Plaintiff testified that he saw his neighbor take down the driver’s personal information. However, at the time of trial, this neighbor had returned to Mexico and did not testify at trial. Plaintiff was also unable to present the alleged note at trial. Imperial objected to Plaintiff’s testimony regarding the note as double hearsay, since Plaintiff was telling the court what the neighbor allegedly told him about what the offending driver allegedly told her. The trial court overruled the objection on the basis that the Plaintiff was right there at the time his neighbor was ^allegedly taking down the information. Interestingly, Plaintiff never testified as to what was provided on the piece of paper. Thus, the record is silent as to whether the piece of paper identified Caze Johnson, or anyone else, as the offending driver.

Although Caze Johnson was named as a defendant, he was never served with the lawsuit and did not testify at trial. Caze’s ex-wife, Keishawn Johnson, was subpoenaed as a witness and did appear to testify at trial. She indicated that she had previously been married to a Caze Johnson, but denied any knowledge of the accident, or that any automobile owned by them was involved in an accident. She further testified that the only vehicle they owned at the time of the accident was a gold Nissan Altima, and that this was the only vehicle insured under the Imperial Policy.

On February 15, 2007, the trial court rendered a judgment in favor of Plaintiff and against Imperial, in the amount of seventeen thousand three hundred ninety-one dollars ($17,391.00). This appeal followed.

Assignments of Error

On appeal, Imperial specifies two assignments of error. First, that the trial court was manifestly erroneous in finding that Plaintiff proved by a preponderance of the evidence that the accident was caused by Caze Johnson or any person insured under the policy issued by Imperial to Keishawn Johnson. Second, Imperial argues that the trial court erred in casting Imperial in judgment in the amount of $17,391.00 when the limit on the policy was $10,000.00 per person and $20,000.00 per occurrence.

Discussion

In finding for the Plaintiff, the trial court specifically found that “a vehicle operated by defendant, Caze Johnson, struck the plaintiffs vehicle while the |4plaintiff was inside cleaning his vehicle” and “[d]ue to defendant’s negligence, the plaintiff sustained personal injuries.”

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court stated that an appellate court may set aside a factual finding of a trial court or a jury only where the finding was based on a “manifest error” or was “clearly wrong.” Id. at 844. The Court added that when “there is conflict in the testimony, a trial court’s or a jury’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury.” Id.

However, in LeBlanc v. Stevenson, 00-0157, p. 3 (La.10/17/00), 770 So.2d 766, 770, the Louisiana Supreme Court stated that “[ajlthough the appellate court must accord deference to the trial court, it is cognizant of our constitutional duty to review facts, not to decide if it, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support.” (Emphasis added.) We conclude that a factual finding that is reached without evidentiary support is clearly wrong and manifestly erroneous. See Sadhwani v. James, 05-0601 (La.App. 4 Cir. 12/07/05), 930 So.2d 37.

In the instant case we find that the trial court judgment was clearly without eviden-tiary support. There was no testimony at trial as to the identity of the driver as Caze Johnson. The female neighbor who allegedly took down the driver’s information did not testify at trial and Plaintiff was unable to produce the alleged note at trial. Plaintiff did not testify as to the information contained in the note and the record is silent as to what name, if any, was on the note. Moreover, Plaintiff Land his witness testified that the offending vehicle was a white car. Caze Johnson owned a gold sedan. Incredibly, Caze Johnson, the supposed driver of the white car was never deposed or interviewed and has yet to be served with this lawsuit. And Keishawn Johnson, Caze’s former wife, who was the insured under the Imperial policy, denies any knowledge of the accident. Finally, the Imperial policy covers only damage caused by Keishawn Johnson or a permissive user of the insured vehicle, a gold Nissan Altima. The Plaintiff has not shown that Keishawn Johnson, Caze Johnson, or the gold Altima were involved in the alleged accident.

After a thorough review of the record and the testimony presented at trial, we find that there is absolutely no evidence in the record to support the trial court’s finding that Caze Johnson or anyone insured under the Imperial policy caused the alleged accident. Accordingly, the judgment of the trial court is reversed and the claims against Imperial are dismissed with prejudice. Since we find that Imperial is not hable to Plaintiff, we need not discuss Imperial’s second assignment of error regarding whether the award exceeded the applicable policy limits.

REVERSED.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Steven BRUMFIELD v. Kim K. McELWEE; Howat A. Peters, Jr.; James A. Williams; McElwee, Williams & Peters, L.L.C.; George Hesni; and ABC Insurance Company.
    No. 2007-CA-0548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.

      Don Almerico, St. Rose, LA, for Appellant, Steven Brumfield.
    Jack E. Truitt, The Truitt Law Firm, Madisonville, LA, for Appellees, Kim McElwee, et al.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

hThe plaintiff, Steven Brumfield, appeals a trial court judgment dismissing as untimely his legal malpractice action against his former attorneys, who had represented him in a personal injury matter. Finding no error in the trial court’s judgment, we affirm.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

In December 1996, Mr. Brumfield slipped and fell during the course of a high school basketball game, while he was a student at an Orleans Parish School. Due to alleged injuries arising out of the incident, Mr. Brumfield retained the law firm of McElwee, Williams & Peters, L.L.C. to represent him in the matter. At the time, the firm was comprised of three attorneys, namely, Kim McElwee, Howat Peters, and James Williams. On December 5, 1997, a personal injury suit was filed on behalf of Mr. Brumfield in Civil District Court for the Parish of Orleans against the Orleans Parish School Board (hereinafter, “School Board”) and the Louisiana High School Athletic Association (hereinafter, “LHSAA”). See, Steven Brumfield v. Orleans Parish School Board, the Louisiana High School Athletic Association, ABC Insurance Company, Willie Hampton, John Doe I, John II, John III, No. 97-2198, Div. “I”, Civil District Court for the Parish of Orleans, State of Louisiana. The School Board timely filed its answer on February 17, 1998. The case docket indicated no subsequent formal action was taken on the record until late December 2000 or early January 2001, when Jefferson Parish attorney George Hesni, II filed | Ra Motion to Enroll Additional Counsel. On January 8, 2001, the trial court granted the order permitting Mr. Hesni (hereinafter, Mr. Hesni, Mr. Williams, Ms. McElwee and Mr. Peters, and the law firm of McElwee, Williams & Peters, L.L.C. are collectively referred to as the “defendants”) to enroll as additional counsel for Mr. Brumfield.

On February 1, 2001, the LHSAA filed an ex parte motion to dismiss Mr. Brumfield’s personal injury action based on La. C.C.P. art. 561(A), asserting that his claims were abandoned for failure of any party to take action for a period of three years in the prosecution or defense of the action. On the same day, the trial court issued an order dismissing Mr. Brumfield’s claims against the LHSAA. Almost two years later, on January 17, 2003, the School Board filed an ex parte motion to dismiss Mr. Brumfield’s claims pending against it, citing abandonment pursuant to La. C.C.P. art. 561(A). Again, the trial court granted the dismissal.

IsOn August 18, 2005, Mr. Brumfield filed the instant legal malpractice action against the defendants urging his personal injury action was dismissed with prejudice for abandonment due to their negligence. The petition alleges the defendants failed to advise Mr. Brumfield of the progress of his claim at any time after having been retained, as well as failed to maintain sufficient contact with him regarding his case. Specifically, Mr. Brumfield asserts he never received notice from the defendants that his claims for damages had been dismissed.

At various times, the individual defendant attorneys filed, among others, exceptions of prescription seeking dismissal of Mr. Brumfield’s malpractice action. In each instance, the defendants alleged the suit warranted dismissal since it was not filed within the three-year peremptive period set forth in La. R.S. 9:5605(A). While the various defendants alleged different dates the suit should have been filed, they were unanimous that the suit, which was filed in August 2005, should have been filed no later than 2004.

Following a hearing on the exceptions of prescription, the trial judge took the matter under advisement. On March 30, 2007, she rendered a judgment granting each defendant’s exception of prescription, but did not assign reasons for her ruling. Mr. Brumfield instituted a timely suspensive appeal.

LAW AND ARGUMENT

Standard of Review

The discretion allotted a trier of fact is great. In reviewing a peremptory exception of prescription, an appellate court should not disturb the findings of the |4trial court unless it is clearly wrong. Davis v. Hibernia National Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61. In the absence of manifest error, the trial court should not be reversed, since the issue to be decided by the appellate court is not whether the trial court was right or wrong, but whether the fact finder’s conclusion was reasonable. Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 149. As in the case sub judice, “[i]n the absence of evidence, the objection to prescription must be decided upon the facts alleged in the petition and the allegations thereof are accepted as true.” Waldrop v. Hurd, 39,855, p. 5 (La.App. 2 Cir. 6/29/05), 907 So.2d 890; see also, La. C.C.P. art. 931.

Burden of Proof

“Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it.” Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 9 (La.1/20/05), 891 So.2d 1268, 1275. When addressing an exception of prescription, the burden of proof lies with the party asserting prescription. However, in the event the plaintiffs claim is barred on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.

La. R.S. 9:5605

An action for legal malpractice is governed by La. R.S. 9:5605. It provides, in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other | r,commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be fíled at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred ... The one-year and three-year periods of limitation provided in Subsection A of this Section are per-emptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defíned in Civil Code Article 1953.
[Emphasis added.]

The clear wording of the statute indicates the Legislature intended the time limitations on legal malpractice actions to be one year from the alleged act, omission, or neglect, or one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered and, in no event, more than at least three years from the date of the alleged act, omission, or neglect. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, 1295. In other words, the latest one can file a legal malpractice action is three years from the date of the alleged act of malpractice, or one year from the date of discovery of the alleged act of malpractice, whichever comes first.

|fiMr. Brumfield argues on appeal the trial court misapplied La. R.S. 9:5605. He essentially raises two arguments in support of his claim. First, he contends the defendants engaged in fraudulent conduct stemming from their intentional failure to disclose to him the fact that his suit was dismissed for abandonment. He argues the trial court, therefore, erred in applying the three-year peremptive period set forth in Subsection A of La. R.S. 9:5605, rather than Subsection E of the provision which provides for a one-year prescriptive period from discovery of malpractice in instances involving fraud. Second, in the event this Court concludes La. R.S. 9:5605(E) is inapplicable, Mr. Brumfield argues, in the alternative, that his action was timely filed within the one-year and three-year per-emptive periods set forth in La. R.S. 9:5605(A). In support, he asserts there were multiple, separate acts of malpractice triggering different dates for purposes of the tolling of prescription/peremption, and that his suit was timely filed with regard to those acts.

Fraud

In the original petition, Mr. Brum-field made one allegation of fraudulent conduct on the part of the defendants. Specifically, the petition provides:

Plaintiff alleges that the inability to further pursue his actions against the defendants listed in the original petition is a result of the professional negligence, fault, acts, omissions, and legal malpractice herein described as follows: ... (8) committing acts of fraud by purposely failing to explain to petitioner the true status of his case.

[Emphasis added.]

Mr. Brumfield argues this allegation of fraud brings him within the exception of La. R.S. 9:5605(E). Thus, he contends the trial court erred in granting the exceptions of prescription in favor of the defendants since his suit was filed within 17one year of his discovery of the fraudulent conduct in May 2005 when his newly retained counsel searched court records regarding the status of his tort action.

The fraud exception referred to in Subsection E of La. R.S. 9:5605 references La. C.C. art. 1953. The latter provision defines “fraud” as “... a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” The Louisiana Code of Civil Procedure mandates that circumstances constituting alleged fraud be pled with particularity. La. C.C.P. art. 856.

Applying these principles, we conclude Mr. Brumfield failed to sustain his burden under La. R.S. 9:5605(E) and La. C.C.P. art. 856. He simply alleges, without any specificity or corroborating evidence, the defendants failed to disclose to him the status of his case. The record is absent any evidence that the defendants knowingly and intentionally sought to deceive Mr. Brumfield and cause harm to him in any respect.

Additionally, the jurisprudence supports the conclusion that Mr. Brumfield’s reliance on Subsection E of La. R.S. 9:5605 is misplaced. He argues in brief that the defendants’ fraudulent conduct primarily stemmed from their failure to disclose the fact that his tort claims had been dismissed. We recognize Mr. Brumfield does not assert that the alleged conduct giving rise to the malpractice action (the defendants’ alleged inaction that resulted in the dismissal of his tort claims) involved fraudulent conduct. However, the jurisprudence applying fraud provisions in malpractice actions applied it in cases where the alleged fraudulent act itself comprised the malpractice, unlike the case herein, where the fraud occurred after the legal malpractice took place. See, Smith v. Slattery, 38-693, pp. 8-9 (La.App. 2 Cir. 6/23/04), 877 So.2d 244, 249 (“In cases of legal malpractice, the jurisprudence applying [La. C.C.P. art. 856] ... does so in cases where it was the fraudulent act itself that constituted the malpractice, and not for fraud in the actions taken after the legal malpractice has occurred.”); Atkinson v. LeBlanc, 03-365 (La.App. 5 Cir.10/15/03), 860 So.2d 60 (appellate court would not apply La. R.S. 9:5605(E) where the malpractice did not involve the fraudulent conduct at issue).

Accordingly, we conclude the trial court did not err in finding La. R.S. 9:5605(E) inapplicable.

Continuing Tort Doctrine

In the alternative to his fraud argument, Mr. Brumfield contends his malpractice action was timely filed under La. R.S. 9:5605(A). In support, he asserts the defendants engaged in several alleged instances of misconduct, over the course of several years of representation, with each act giving rise to the commencement of a new time period for the tolling of legal malpractice. As to instances of misconduct, Mr. Brumfield refers to the separate dismissals of the LHSAA and the School Board in the tort litigation, and the respective failure to disclose such to him.

We recognize Mr. Brumfield attempts to escape the strict peremptive application of La. R.S. 9:5605(A) by urging the defendants’ alleged cumulative misconduct was the equivalent of a “continuing tort”, a jurisprudentially recognized doctrine that provides continuous tortious conduct and continuous damages that may suspend prescription. Scott v. American Tobacco, 04-2095, pp. 17-18 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, 1279-80; Bustamento v. Tucker, 607 So.2d 532, 537 (La.1992). However, Subsection B of La. R.S. 9:5605 ^explicitly provides that the one-year and three-year periods of limitation set forth in Subsection A are peremptive periods, not prescriptive.

Conceptually, there may not be much difference between prescription and peremption since both have the effect of terminating litigation. However, it is undisputed that the two theories differ in their operation. Prescription prevents the enforcement of a right by legal action, but does not terminate the natural obligation. La. C.C. art. 3447. Therefore, as an inchoate right, it may be interrupted, suspended, and renounced. Prescription is subject to the suspensive principle of contra non valentem, a judicially created doctrine that is applied to prevent the running of prescription in instances where good cause results in a plaintiffs inability to exercise his cause of action at accrual. Reeder v. North, 701 So.2d at 1298. In stark contrast, public policy dictates that peremption extinguish or destroy a right to legal action after passage of a specified period. La. C.C. art. 3458. As such, nothing may interfere with the running of a peremptive period. Therefore, it may not be interrupted, suspended, or renounced. La. C.C. art. 3461. Unlike prescription, exceptions suspending the running of time delays, such as contra non valentem, are inapplicable. Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986).

The continuing tort doctrine is a suspension principle based on contra non valentem. Scott v. American Tobacco, 949 So.2d at 1280. To suggest the peremptive periods set forth in La. R.S. 9:5605(A) are subject to the continuing tort doctrine would be in direct contravention of La. C.C. art. 3461. Thus, contrary to Mr. Brumfield’s argument, the continuous tort doctrine cannot suspend the |inperemptive statute of limitations period of La. R.S. 9:5605.

Timeliness of Plaintiff’s Action

Having rejected Mr. Brumfield’s claims seeking to circumvent the tolling of the peremptive time limitation of La. R.S. 9:5605(A), we turn our attention to ascertaining the date Mr. Brumfield’s professional liability suit had to be filed. Mr. Brumfield concedes the earliest misconduct constituting malpractice occurred on February 1, 2001, the date he alleges the trial court erroneously and prematurely dismissed the claims against the LHSAA. He argues the defendants should have contested or sought supervisory relief from the trial court’s failure to consider the fact his deposition was taken in August 1999, which he claims interrupted the three-year prescriptive period set forth in La. C.C.P. art. 561(A) relative to abandonment.

As to the claim that the trial court prematurely dismissed the LHSAA from the tort action, Mr. Brumfield is correct that formal discovery is deemed a step in the prosecution or defense of an action for purposes of abandonment. However, the Louisiana Code of Civil Procedure provides the taking of a deposition or other formal discovery does not interrupt the running of prescription unless notice of such is served on all parties. See, La. C.C.P. art. 561(B) (“Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed |nto be a step in the prosecution or defense of an action.” [Emphasis added.]). Other than Mr. Brumfield’s uncontested assertion that his deposition was taken, the record is absent any information regarding the details of the discovery matter (i.e., notice to the parties; attendees, etc.). Therefore, based on the record before us, it is unclear whether the trial court prematurely dismissed the LHSAA from the tort litigation.

Notwithstanding, in addressing the issue of peremption, we find it irrelevant whether the trial court prematurely concluded the tort action was abandoned. If there was any actionable misconduct warranting the filing of a malpractice action by Mr. Brumfield, it stemmed, in all respects, from the dismissal of the LHSAA from the tort litigation on February 1, 2001. This was the date Mr. Brumfield’s claim for damages against LHSAA was lost, regardless of whether it was attributable to the defendants’ inaction resulting in the abandonment or failure to seek appellate relief from the alleged premature dismissal of the LHSAA.

If the date of the earliest alleged misconduct giving rise to the malpractice action took place on February 1, 2001, Mr. Brumfield’s suit against the defendants had to be filed no later than February 1, 2004, the expiration of the three-year per-emptive period set forth in La. R.S. 9:5605(A). However, the malpractice action was not filed until August 18, 2005. Consequently, on the face of the petition, the action is perempted. As such, the burden of proof is on Mr. Brumfield to overcome the allegation of peremption. Since we have already rejected Mr. Brum-field’s fraud and continuous tort arguments, he has failed to sustain his burden.

We are cognizant of the fact that Mr. Brumfield alleges he did not have first hand knowledge of the dismissal of his tort case until May 27, 2005, almost sixteen _[jgmonths after his malpractice claim prescribed, when his newly retained counsel reviewed the court record at the Orleans Parish Civil District Clerk of Court’s Office. However, the Louisiana Supreme Court in Reeder v. North, supra, emphasized “[t]he Legislature was particularly clear in wording La. R.S. 9:5605 so as to leave no doubt as to its intent.” Id., 701 So.2d at 1295. The court opined “[t]he Legislature was aware of the pitfalls of [the legal malpractice statute] but decided, within its prerogative, to put a three-year absolute limit on a person’s right to sue for legal malpractice, just as it would be within its prerogative to not allow legal malpractice actions at all.” Id., 701 So.2d at 1297. The court expressly acknowledged the “perceived inequities” of the statute, insofar as a person’s claim may be extinguished before he realizes the full extent of his damages. While further noting a three-year peremptive period may not be “particularly generous”, the court recognized that it was not its role to consider the policy or the wisdom of the Legislature in adopting the provision, but rather “... to determine only the applicability, legality and constitutionality of the [statute].” Id. Applying Reeder to the case sub judice, we find no manifest error in the trial court’s ruling that Mr. Brumfield’s claim is per-empted.

Our conclusion that Mr. Brumfield’s action is perempted is strengthened by the fact the record indicates, several years pri- or to the filing of his malpractice action, Mr. Brumfield had sufficient information that would place a reasonable person on notice that something was wrong with his tort case. Turnbull v. Thensted, 757 So.2d at 150 (“Prescription commences to run when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice ... The standard imposed is that of a reasonable man.”). As evidence, we rely on Paragraph XIV of the malpractice 11spetition wherein it is alleged that the defendants failed to advise Mr. Brumfield as to the progress of his claim “... at any time after having been employed.” In support, Mr. Brumfield cites the defendants’ failure to maintain sufficient contact with him by not returning telephone calls and canceling appointments. He also makes reference to Mr. Hesni’s refusal “... to properly prosecute ... [his] claim by refusing to hire an expert to evaluate the claim, as well as serve as an expert witness.” According to the petition, this event occurred, in January 2001, four and one-half years prior to the filing of the malpractice claim.

While it is not the intent of this court to excuse the defendants for the poor manner in which Mr. Brumfield’s tort action was handled, we are mindful that there was an eight and one-half year delay between Mr. Brumfield’s retention of the defendants on or about December 1997 (with the exception of the retention of Mr. Hesni in 2000) and the filing of the malpractice action in August 2005. Although Mr. Brumfield concedes he was well aware of the blatant deficiencies in the defendants’ representation of him from inception, he nevertheless waited years to seek relief, namely, retention of new counsel to investigate the status of his tort action. Consequently, we find no merit in Mr. Brumfield’s claim that he did not have adequate notice of any alleged misconduct until after the expiration of the three-year peremptive period.

DECREE

The judgment of the trial court in favor of the defendants dismissing Mr. Brum-field’s malpractice action with prejudice is affirmed.

AFFIRMED.

      . While Mr. Williams signed the petition, Ms. McElwee and Mr. Peters were also listed as representing counsel. Within days of the filing of the petition, Ms. McElwee and Mr. Peters withdrew as members from McElwee, Williams & Peters, L.L.C. They did not formally withdraw as counsel in the litigation instituted on behalf of Mr. Brumfield.

      . La. C.C.P. art. 561(A) provides, in pertinent part: "[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding ...”

      . The order granting Mr. Hesni's request to enroll as counsel was rendered three weeks prior to the trial court’s order dismissing the LHSAA. Nonetheless, the law is clear that a motion to enroll as counsel does not interrupt the running of prescription for purposes of abandonment. See, La. Prac. Civ. Pretrial § 6:179; La. C.C.P. art. 561 Editor's Notes, citing Paternostro v. Falgoust, 03-2214 (La.App. 1 Cir.2004), 897 So.2d 19, 22 ("The jurisprudence clearly establishes that motions to withdraw or enroll as counsel or to substitute counsel are not considered formal steps before the court in the prosecution of the suit. Such motions grant to counsel the right to take steps, or to prepare to take steps, toward the prosecution or defense of a case, but are not considered steps because they do not hasten the matter to judgment.”).

      .The order dismissing the School Board indicated the last docket entry in the record was a motion to enroll counsel dated August 7, 2001. The motion to enroll filed by Mr. Hes-ni was granted on January 8, 2001, seven months earlier than the date indicated on the order dismissing the School Board. Thus, it is unclear from the record whether a motion to enroll was filed in the record other than the one filed by Mr. Hesni.

      . For argument sake, even if the time limitations at issue were prescriptive in nature, we would nevertheless conclude Mr. Brumfield failed to sustain his burden of proving the existence of a continuous tort since there were no continuous acts of fault or continuous damages. Following the abandonment of the tort suit, there was no further injury to Mr. Brumfield stemming from the defendants' failure to disclose the dismissal of his tort claims. The full extent of the injury had already been sustained by him. Nonetheless, we also point out that, similar to the continuing tort doctrine, "[a]s a suspensive principle based on contra non valentem, the ‘continuous representation rule' cannot apply to peremp-tive periods” and, as such, to legal malpractice actions. Reeder v. North, 701 So.2d at 1298.

      . Notably, the record is absent any evidence that Mr. Brumfield ever sought information from any of the defendants regarding the status of his tort action.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana in the Interest of C.R.
    No. 2007-CA-0233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.

      Eddie J. Jordan, Jr., District Attorney, Tulani Washington, Assistant District Attorney, Juvenile Division, New Orleans, LA, for Plaintiff/Appellee.
    Candace Chambliss, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

hln this juvenile matter, the defendant, C.R., appeals the August 2, 2006 judgment of Juvenile Court, finding probable cause on a charge of armed robbery, and transferring C.R. to Criminal District Court pursuant to La. Ch.C. article 305(B).

On July 30, 2006, C.R. was arrested without a warrant and charged with armed robbery. The case was set for a probable cause and transfer hearing on August 1, 2006. On that date, the court, on its own motion, continued the hearing to the following day, August 2, 2006. On August 2, 2006, C.R. appeared in Juvenile Court, and a hearing on probable cause and transfer to Criminal District Court pursuant to La. Ch.C. article 305(B) was held. Following the hearing, the |2trial court found that probable cause existed for C.R.’s arrest on a charge of armed robbery, and ordered that C.R. be transferred to Criminal District Court for a decision by the Orleans Parish District Attorney’s Office as to whether or not to prosecute C.R. as an adult. The court further ordered that C.R. be remanded pending further hearing.

C.R.’s arguments on appeal are based on his contention that La. Ch.C. 814(D) was violated in this case because he was detained for more than forty-eight hours before a determination of probable cause was made. Specifically, C.R. alleges that the trial court erred in hearing a motion for transfer pursuant to La.Ch.C. article 305(B) and in determining probable cause when more than forty-eight hours elapsed between the time of the hearing and C.R.’s arrest. Furthermore, C.R. alleges that defense counsel at the hearing was ineffective in that counsel failed to raise the issue of the alleged violation of C.R.’s rights under La.Ch.C. article 814(D) at the hearing.

La.Ch.C. article 814 sets forth the procedures to be followed when a child is taken into custody without a warrant. Section D of La. Ch.C. article 814 states as follows:

The officer shall immediately execute a written statement of facts, sworn to before an officer authorized by law to administer oaths, supporting the existence of probable cause to believe either that the child committed a delinquent act or that the child has violated the terms of his probation or otherwise has violated the terms of his release. This affidavit shall be submitted to the juvenile court. Within forty-eight hours after the child has been taken into custody, including legal holidays within the time computation, the court shall review the affidavit and |aif it determines that probable cause exists, the child shall be held for a continued custody hearing pursuant to Article 819. If the court determines that probable cause does not exist, the child shall be released from custody.

In this case, it is important to emphasize that the probable cause and transfer hearing that was originally scheduled for August 1, 2006 was continued on the trial court’s own motion without objection from defense counsel and held on the following day, August 2, 2006. Therefore, although the determination of probable cause did not occur within forty-eight hours of arrest as required by La. Ch.C. article 814(D), this determination was delayed by only one day.

La. Ch.C. article 814(D) does not specify a remedy for the failure to hold a probable cause hearing within forty-eight hours from the time a child is taken into custody. The article states that a child shall be released from custody if the court finds that probable cause does not exist, but the article does not address the specific situation of the failure to determine probable cause within forty-eight hours after arrest.

C.R. relies upon the case of County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), which establishes that an arrested individual must receive a probable cause determination within forty-eight hours of arrest unless a bona fide emergency or other extraordinary circumstances exists in order to minimize the time a presumptively innocent individual spends in jail. While that case addresses the issue of release from custody as the remedy for probable cause not being determined within forty-eight hours of arrest, it does not hold that the failure to receive a probable cause determination within that time frame prevents the court from determining probable cause at a later date.

^Although the probable cause/transfer hearing in this matter was not held within the time limit set forth in La. Ch.C. article 814(D), we find no merit in C.R.’s contention that the failure to adhere to this time limit should result in a reversal of the court’s subsequent finding of probable cause on August 2, 2006. La. Ch.C. article 814(D) does not provide for such a remedy, and we do not find such a remedy to be reasonable given the circumstances of this case.

Furthermore, the time to raise the issue of release from custody based on an alleged violation of La. Ch.C. 814(D) was at the August 1, 2006 hearing at which the trial court on its own motion continued the probable cause and transfer hearing to the next day. After probable cause was determined on August 2, 2006, the issue of release from custody pursuant to La. Ch.C. 814(D) became moot.

It is undisputed that defense counsel did not raise the issue of release from custody or make an objection based on a violation of the forty-eight hour rule of La. Ch.C. article 814(D) at the August 1, 2006 hearing. In general, a defendant asserting an ineffective assistance of counsel claim must demonstrate that counsel’s performance was deficient and also that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, even though the probable cause hearing was not held within forty-eight hours after arrest and counsel did not object to the failure to hold the hearing within that time frame, a determination of probable cause was made on the third day following C.R.’s arrest. Given the fact that only one additional day elapsed before a probable cause determination was made, we cannot say that the failure of defense counsel to raise an objection based on a violation of La. Ch. C. article 814(D) rendered counsel ineffective.

|sThe trial court found probable cause for C.R.’s arrest on the charge of armed robbery after a full adversarial hearing, and defense counsel objected at that hearing to the transfer of C.R. to Criminal District Court. Even if defense counsel had timely objected to the continuance of the hearing beyond the forty-eight hour time limit and secured C.R.’s release from custody on August 1, 2006, this would not have prevented the trial court from holding the hearing on August 2, 2006, finding probable cause and ordering C.R.’s transfer to Criminal District Court. Therefore, we find no merit in C.R.’s claim of ineffective assistance of counsel.

For the reasons stated above, we affirm the August 2, 2006 judgment of the Juvenile Court.

AFFIRMED.

      . In accordance with Uniform Rules — Courts of Appeal, Rule 5-2, we will refer to the juvenile defendant by his initials.

      . La. Ch.C. article 305(B), relative to divestiture of juvenile court jurisdiction, states, in pertinent part:
      (1) When a child is fifteen years of age or older at the time of the commission of any of the offenses listed in Subparagraph (2) of this Paragraph, he is subject to the exclusive jurisdiction of the juvenile court until whichever of the following occurs first:
      (a) An indictment charging one of the offenses listed in Subparagraph (2) of this Paragraph is returned.
      (b) The juvenile court holds a continued custody hearing and finds probable cause that the child has committed any of the offenses listed in Subparagraph (2) of this Paragraph and a bill of information charging any of the offenses listed in Subparagraph (2) of this Paragraph is filed.

      (2)(d) Armed robbery


author: EDWIN A. LOMBARD, Judge. BELSOME, J.

text:
    Kyriakos TSILIMOS v. GULF MARINE AND INDUSTRIAL SUPPLIES, INC. and Demtrios N. Spetsiotis.
    No. 2007-CA-0998.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.

      Jim S. Hall, Joseph W. Rausch, Jim S. Hall & Associates, LLC, Metairie, LA, for PlaintifiyAppellant.
    John E. McAuliffe, Jr., Frederick A. Miller & Associates, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

hThe plaintiff, Kyriakos Tsilimos, appeals the trial court’s granting of a motion for summary judgment in favor of the defendant, State Farm Fire and Casualty Co. (“State Farm”). For the reasons set forth below, we affirm.

Statement of Facts

Mr. Tsilimos alleges that on March 8, 2002, while in the course and scope of his employment with defendant, Gulf Marine and Industrial Supplies, Inc. (“Gulf Marine”), he was physically assaulted by defendant, Demitrios Spetsiotis, who, at the time, was Mr. Tsilimos’ supervisor. On March 3, 2003, Mr. Tsilimos filed a claim with the Office of Workers’ Compensation. On March 23, 2003, Mr. Tsilimos filed a petition for damages against Gulf Marine and Mr. Spetsiotis, alleging personal injuries as a result of the “intentional act” of Mr. Spetsiotis.

On November 16, 2006, Mr. Tsilimos filed a second supplemental and amending petition naming State Farm as a defendant. State Farm is the homeowner’s liability insurer of Mr. Spetsiotis. Gulf Marine also filed a cross claim against State Farm. In response, State Farm filed a motion for summary judgment based on an exclusion in the policy precluding coverage for intentional acts of the insured. The matter was heard on May 25, 2007. On June 4, 2007, the 1 ¡¿rial court granted summary judgment in favor of State Farm and dismissed Gulf Marine’s cross claim. Mr. Tsilimos’ timely devolutive appeal followed.

Standard of Review

The sole issue to be addressed in this appeal is whether the trial court properly granted a motion for summary judgment in favor of State Farm. Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230.

A summary judgment 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 a material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 4 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. If the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact” and summary judgment should be granted La. C.C.P. art. 966(C)(2).

Discussion

The insurer bears the burden of proving the applicability of policy exclusions. Tunstall v. Stierwald, 2001-1765, p. 6-7 (La.2/26/02), 809 So.2d 916, 921. In the present case, State Farm argues that two exclusions within Mr. Spetsiotis’ policy apply to preclude coverage. The policy, which State Farm introduced in support of the motion for summary judgment, states in pertinent part:

Coverage L and Coverage M do not apply to:

a. bodily injury or property damage:

(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of willful and malicious acts of an insured.

Also in connection with its motion for summary judgment, State Farm presented an excerpt from Mr. Tsilimos’ deposition. Mr. Tsilimos testified that he was involved in a work-related argument with his supervisor, Mr. Spetsiotis. He stated that Mr. Spetsiotis, in an apparent attempt to make Mr. Tsilimos leave the jobsite, grabbed Mr. Tsilimos by the collar and/or coat and pushed him, two or three times, throwing him against the wall. Mr. Tsilimos further testified that at one point during the altercation, his right foot got jammed under a wooden pallet, causing injury to his ankle.

In opposition to the motion for summary judgment, Mr. Tsilimos presented excerpts from his own deposition and from the depositions of two co-workers who witnessed the incident, Mike Cenance and Abideen Olamide Olojo. Mr. Tsilimos submits that his and his co-workers’ testimony raises questions of fact surrounding Mr. Spetsiot-is’ “intent” to injure Mr. Tsilimos. Both witnesses testified that there was a verbal argument between Mr. Spetsiotis and Mr. Tsilimos. Mr. Cenance thought there was going to be “a lot of violence” so he got between the two men and separated them. He witnessed Mr. Spetsiotis pushing Mr. Tsilimos. He did not see Mr. Spetsiotis ever strike Mr. Tsilimos, and he never saw Mr. Tsilimos fall against the wall or jam his foot under the pallet. Mr. Olojo testified that he did not see any pushing or striking during the argument.

| ¿Mr. Tsilimos argues that summary judgment was improper because questions of fact remain as to whether Mr. Spetsiotis intended the injuries sustained by Mr. Tsi-limos, citing Breland v. Schilling, 550 So.2d 609 (La.1989), for the position that the intentional act exclusion in the policy only applies where the insured acts deliberately and intends or expects bodily injury to another. In sum, Mr. Tsilimos contends that because Mr. Spetsiotis did not intend or expect Mr. Tsilimos to be injured, the exclusion does not apply.

Discussing its decision in Breland, the Supreme Court explained:

The purpose of the intentional injury provision is “... to prevent an insured from acting wrongfully with the security of knowing that his insurance company will ‘pay the piper’ for the damages.” Breland, 550 So.2d at 610, quoting Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181, 186 (1984); Great American Insurance Co., supra. The exception, by its language, makes it clear that not all injuries resulting from an intentional act will be excluded, but only those injuries that were themselves intended. Breland, supra; Great American Insurance Co., supra. “The subjective intent of the insured, as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur.” Great American Insurance Co., 608 So.2d at 985; Breland, supra, quoting United Servs. Auto. Ass’n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982, 989 (1986).

Yount v. Maisano, 627 So.2d 148, 152-153 (La.1993).

We note that the Breland and Yount cases dealt solely with the exclusionary clause for intentional acts. In the present case, State Farm asserts that the insurance policy in question contains a separate exclusion for the “willful and malicious acts of an insured.” In Keathley v. State Farm Fire & Casualty Insurance Co., 594 So.2d 963 (La.App. 3 Cir.1992), the Third Circuit construed an exclusionary clause in a liability policy identical to the clause in the present case. The court held that under the second part of the exclusionary clause (willful |Rand malicious acts), it was immaterial whether the defendant intended the actual resulting injuries. Keathley, 769 So.2d at 966. Although acknowledging that not many cases interpreted the “willful and malicious” exclusionary clause, the court noted:

The term willful has been defined, and this term has been held to apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended.
The usual meaning assigned to this term is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See Pros-ser, Law of Torts, Section 34, at pages 187-189 (3d Ed.1964); Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App. 3d Cir.1975); Pros- ser v. Crawford, 388 So.2d 1363 (La.App. 3d Cir.1980).
The term malicious, also used in the second part of the exclusionary clause, has not been defined or used in any cases like the term “willful.” In order to determine if defendant’s conduct falls under this second prong, we must use the common meaning of the word “malicious.” The general meaning of this term as found in Black’s Law Dictionary 5th ed. is as follows: “Characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse. See also Malice; Willful.”

Keathley, 594 So.2d at 965-966.

In Menson v. Taylor, 99-0300 (La.App. 1 Cir. 4/17/00), 764 So.2d 1079, a case involving a fight between a supervisor and employee, the First Circuit addressed a situation where the defendant asserted he did not intend to injure the victim. The court considered a homeowner’s insurance policy exclusion for willful and malicious acts and held that it was immaterial whether the defendant intended the actual resulting injury to plaintiff. More specifically, the court stated: “this exclusion applies to conduct showing the defendant acted with a conscious | fiirtdifference to the consequences with knowledge that harm would follow. The ‘malicious’ prong of the exclusion applies to conduct that is intentional, wrongful, and without just cause or excuse.” Menson, at p. 9, 764 So.2d at 1084.

In the present case, the evidence revealed that Mr. Spetsiotis initiated the physical altercation. According to Mr. Tsilimos’ testimony, Mr. Spetsiotis became angry because Mr. Tsilimos was unable to fill an order from the warehouse as requested. As witnessed by Mr. Cenance, Mr. Spetsiotis began grabbing and pushing Mr. Tsilimos in attempt to throw him out of the warehouse. While Mr. Spetsiotis may not have fully appreciated the consequences that would follow from his actions, that does not make his actions any less willful or malicious. Under State Farm’s policy, coverage is not provided for willful and malicious acts, regardless of whether the insured intended the resulting damages.

The Supreme Court in Breland and Yount recognized that great deference should be given to the finder of fact in these cases. After reviewing the evidence and applicable jurisprudence in this case, and considering the totality of the circumstances surrounding the incident, we find no error on the part of the trial court in concluding that the exclusion applied to preclude coverage.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of State Farm.

AFFIRMED.

BELSOME, J. Concurs with Reasons.

BELSOME, J.

Concurring.

11 While I agree with the majority’s determination that the trial court did not err in finding that Mr. Spetsiotis acted willfully and maliciously when he repeatedly shoved Mr. Tsilimos after their heated verbal altercation, there is arguably an issue of material fact with respect to whether Mr. Spetsiotis expected or intended the bodily injury that resulted from his actions. Because the policy exclusions are phrased in the disjunctive, however, this Court’s finding that Mr. Spetsiotis’ actions were willful and malicious is sufficient to affirm the trial court’s judgment. Accordingly, I respectfully concur in the result.


author: THIBODEAUX, Chief Judge.

text:
    WASHINGTON MUTUAL BANK v. Henry Charles MONTICELLO, et al.
    No. 2007-1018.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.

      Aubrey Edward Denton, Aubrey E. Denton, Ltd., APLC, Lafayette, LA, for Defendant/Appellant-Jaime Monticello.
    Richard Dale Moreno, Robinson and Moreno, L.L.C., Lake Charles, LA, for Defendant/Appellant-Jaime Monticello.
    Eric James Simonson, McGlinchey Stafford PLLC, New Orleans, LA, for Plaintiff/Appellee-Washington Mutual Bank.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

_JjMs. Jaime Monticello, one of the defendants in reconvention against Washington Mutual Bank (WMB), individually and on behalf of her minor children (collectively referred to as Jaime Monticello), appeals the district court judgment granting WMB’s peremptory exceptions of no right of action and no cause of action, and consequently dismissing her claim. Jaime contends that WMB negligently allowed a judicial sale of her parents’ seized property to proceed. Jaime asserts that she has a right of action as well as viable causes of action against WMB because she and her children were permanent occupants of her parents’ house, and therefore had a property interest therein.

For the following reasons, we affirm the judgment of the district court.

I.

ISSUES

We shall consider whether:

1. the trial court erred in granting WMB’s peremptory exception of no right of action; and
2. the trial court erred in granting WMB’s peremptory exception of no cause of action.

II.

FACTS

Over thirty years ago, Henry Charles Monticello and his wife, Katerina Monticello (the Monticellos) signed a promissory note of which Washington Mutual Bank (WMB) was payee. The note was secured by a mortgage on the Monticellos’ residence located in Lake Charles, Louisiana.

In October 2003, the Monticellos defaulted on their monthly payment, and WMB sent the Monticellos several past due notices in an attempt to collect ^payment. After these efforts proved futile, WMB informed the Monticellos of its intent to exercise its right to accelerate the promissory note, and demanded full payment for the amounts due thereon.

Upon the Monticellos failure to make full payment, WMB filed suit on the note to enforce the mortgage. The Monticellos were properly served. Despite having actual knowledge of the pending suit against them, they failed to either file any responsive pleadings or appear for the hearing to show cause. Accordingly, the district court granted a money judgment by default against them and on behalf of WMB, awarding WMB the outstanding principal balance due on the note; all interests due; late charges; past and future advances; and attorney fees. These amounts totaled $14,683.31. WMB then proceeded to record the judgment in the mortgage conveyance records for the Parish of Calcasieu, and the Sheriff served the Monticellos with the judgment.

After the judgment was entered against the Monticellos, WMB requested that a writ of fieri facias be issued and that service thereof be made upon the Monti-cellos. The Calcasieu Parish Sheriff executed the vrrit of fieri facias and seized the property. The Sheriff also informed the Montieellos that the property was scheduled for judicial sale on September 8, 2004.

On Saturday, September 4, 2004, a few days before the judicial sale was scheduled to occur, the Montieellos sent $10,000.00 in certified funds to WMB to partially cover their outstanding debt. However, this transaction was not processed until September 8, 2004, the same day on which the judicial sale took place. According to WMB, the transaction was not processed immediately because the monies were sent to WMB over the long Labor Day weekend. The judicial sale took|splace on September 8, 2004, as scheduled, and Myrtis Mueller was the successful bidder, becoming the third party purchaser of the Monti-cellos’ house.

In order to prevent the Montieellos from being evicted from their house after effecting payment on their account, WMB allegedly asked Myrtis Mueller whether she would voluntarily give up her right to acquire the property, but Ms. Mueller refused. WMB proceeded to file a “Motion to Rescind and Set Aside Sheriffs Sale and for Temporary Restraining Order and Permanent Injunction” (Motion to Set Aside the Sale) based upon equitable grounds. According to WMB, the $10,000.00 payment made by the Monticel-los was sufficient to reinstate the loan to a current status.

At the hearing to show cause on the Motion to Set Aside the Sale, Ms. Mueller opposed it arguing that the Montieellos failed to exercise their right to stop the judicial sale by paying the judgment in full before the judicial sale took place. The district court judge agreed with Ms. Mueller and denied the motion, concluding that there was no basis in which to set aside the judicial sale.

After the district court rendered judgment, the Montieellos in conjunction with their major daughter, Jaime Monticello, who was living at the Montieellos’ house with their permission and consent, filed a reconventional demand arguing that WMB acted negligently by failing to halt the judicial sale. In response thereto, WMB filed peremptory exceptions of no right of action and no cause of action against the claim brought by Jaime Monticello. WMB maintained that Jaime Monticello had no remedy at law under either contract or tort law. It contended that Jaime Monticello was unable to establish a claim under contract law because there was no privity of contract between the parties. Likewise, WMB argued that Jaime Monticello was unable to institute a claim based on tort because it did not owe any 14duty to her. The district court granted both of WMB’s peremptory exceptions and dismissed Jaime Monticello’s claim.

On appeal, Jaime Monticello argues that the district court erred in granting WMB’s peremptory exceptions, as she had a right of action against WMB because she was a permanent occupant of the Montieellos’ residence up until the day the property was seized. For this reason, she contends having three causes of action against WMB, namely a cause of action predicated upon negligence; a cause of action pursuant to the Louisiana Unfair Trade Practices and Consumers Law (LUTPA); and, a cause of action under Thomas v. Werlein, 181 La. 104, 158 So. 635 (1935).

III.

LAW AND DISCUSSION

Standard of Review

Both peremptory exceptions of no right of action and no cause of action pose a question of law. Accordingly, we review these exceptions de novo. See Rowan v. Town of Arnaudville, 02-882 (La.App. 3 Cir. 12/11/02), 832 So.2d 1185. See also Industrial Companies, Inc. v. Durbin, 02-665 (La.1/28/03), 837 So.2d 1207. We will review the record in its entirety to determine whether the trial court was legally correct or legally incorrect. Citgo Petroleum Corp. v. Franz, 03-88 (La.App. 3 Cir. 6/4/03), 847 So.2d 734, writ denied, 03-1911 (La.10/31/03), 857 So.2d 484.

A.

Did the Trial Court Correctly Grant WMB’s Peremptory Exception of No Right of Action?

According to Jaime Monticello, her right of action stems from La.Code |BCiv.P. arts. 682 and 683 B. She maintains that because she has juridical capacity to sue on her behalf and that of her children, she then has general procedural capacity to pursue various causes of action against WMB. This argument is misplaced. It is noteworthy that Jaime Monticello supports her theory by invoking Articles 682 and 683 B, yet she entirely overlooked Article 681 which, de jure, governs the disposition of this question of law.

Louisiana Code of Civil Procedure Article 681 provides:

Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.

Accordingly, when the facts alleged in the petition provide a remedy to someone, but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy, the proper objection is an exception of no right of action. Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890 (La.1993). This exception is used to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Glod v. Baker, 02-988 (La.App. 3 Cir.), 851 So.2d 1255, writ denied, 03-2482 (La.11/26/03), 860 So.2d 1135. For this reason, “in order to participate in the lawsuit, a party must have an actionable right-i.e., an interest of which a court may take cognizance.” State v. Danzy, 87-210 (La.App. 3 Cir.1988), 527 So.2d 68, 70, writ denied, 528 So.2d 153 (La.1988). From this principle follows the corollary that a party has an actionable right, and consequently standing, if “it can be said that the plaintiff has a legally protectable and tangible stake in the litigation.” Citizen Comm, for Better Law Enforcement v. City of Lafayette, 95-1630 (La.App. 3 Cir. 11/20/96), 685 So.2d 289, 290, writ denied, 96-3087 (La.2/7/97), 688 So.2d 507 (citation omitted).

Merely stating that Jaime Monticello was a permanent occupant of the Monticellos’ house is insufficient to establish she had a legally protectable and tangible stake in the litigation. Jaime Monticello was unable to establish that she had an interest in the property because she did not prove a contractual relationship with WMB, an ownership or leasehold interest in the property, or even a right to possess the property after foreclosure, notwithstanding that “evidence is admissible on the trial of an exception of no right of action to ‘support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.’ ” Industrial Co., Inc., 837 So.2d at 1216 (citing La.Code Civ.P. art. 931).

Jaime Montieello’s inability to prove she had a legal interest in the property is clearly attributable to the fact that she was simply living at the Montieellos’ residence because of their goodwill. Permission or consent to occupy a property, by and of itself, does not create a legally recognizable interest in the property. The trial court correctly granted the exception of no right of action because Jaime Monticello did not have an interest in the property, and, therefore, she did not belong to the class of persons to whom the law affords the cause of action or remedy asserted on the reconventional demand.

_ilfL

Did the Trial Court Correctly Grant WMB’s Peremptory Exception of No Cause of Action?

“The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” Cleco Corp. v. Johnson, 01-175, p. 3 (La.09/18/01), 795 So.2d 302, 304 (citation omitted). The purpose of the exception of no cause of action is to determine the legal sufficiency of the petition. Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993). The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to plaintiff if those facts are proved at trial. Id. If the grounds of the objection raised through the exception cannot be removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. Code Civ.P. art. 934.

In this case, we will individually address each of the three causes of actions alleged by Jaime Monticello on appeal to determine whether the trial court correctly granted the exception of no cause of action in favor of WMB.

i

Does Jaime Monticello have a Cause of Action Predicated on Tort Law?

In negligence cases, Louisiana courts apply the duty-risk analysis to determine whether liability exists.

This approach provides an analytical framework for evaluation of liability. One analysis requires proof by the plaintiff of five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the | ¿plaintiffs injuries (the cause-in-faet element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element).

La Pac Mfg. v. TCM Mfg., 06-748, p. 6 (La.App. 3 Cir. 12/6/06), 944 So.2d 831, 835-36, (citing Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 632-33 (citations omitted)).

In this case, we find that there was no negligence on the part of WMB because the element of duty is lacking, and “[a] negative answer to any of the inquiries of the duty risk analysis results in a determination of no liability.” Id.

“The existence of the duty is clearly a question of law. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support a claim.” Nicholson v. Calcasieu Parish Police Jury, 96-314 (La.App. 3 Cir. 12/11/96), 685 So.2d 507, 511 (citations omitted). Jaime Monticello cites La.Code Civ.P. art. 2751 and Secor Bank v. Hankie, 94-158 (La.App. 4 Cir. 10/27/94), 644 So.2d 1138, 1142-1143 as sources of the duty owed by a seizing creditor. She argues that WMB, as a seizing creditor, had a high duty to comply with statutory requirements and phrases the said duty as follows:

[the][e]xecutory process has many technical requirements that must be observed scrupulously, and it is one of the few areas of law wherein there is a rational basis for giving form 'precedence over substance. Seizure pursuant to executory process is wrongful if the procedure required by law for an execu-tory proceeding has not been followed (citations omitted).

We find that reliance on these authorities is misplaced. These propositions are properly invoked when the procedural aspect of the seizure is being challenged. The question of procedural sufficiency in this case was addressed before the trial judge at the hearing between Myrtis Mueller and WMB on the Motion to Set | {Aside the Sale. At the hearing, after hearing both arguments, the trial judge concluded that the judicial sale conformed with all procedural requirements and, therefore, lacked any procedural defect which would justify setting it aside. We agree.

No one is disputing that WMB, in all likelihood, owed a duty to the Monticellos to conduct due diligence to prevent the improper sale of their residence if, indeed, the house note was paid by the terms agreed upon between the Monticellos and WMB prior to the judicial sale. However, the question here is whether that duty extended to Jaime Monticello. In our view, it did not. We have not found any positive law or jurisprudence imposing a duty on mortgagees whereby they have to make sure that all permanent occupants of a house have a roof over their heads in the event of wrongful foreclosure, despite not having any legal interest in the property.

ii

Does Jaime Monticello have a Cause of Action pursuant to the Louisiana Unfair Trade Practices and Consumer Law (LUTPA)?

Jaime Monticello, without indicating how LUTPA affords her a remedy at law, advances the conclusory statement that “numerous cases also affirm a cause of action under the Louisiana Unfair Trade Practices Act for wrongful foreclosure or seizure.” In response to this assertion, WMB maintains that this claim was raised for the first time on appeal, and “since the appellant’s newly-minted LUTPA claim was not raised before the trial court, ‘it is inappropriate for consideration by this court.’ ” In support thereof, WMB cites Hargett v. Hargett, 00-799 (La.App. 3 Cir. 12/6/00), 772 So.2d 999 (citation omitted) and the Uniform Rules — Courts of Appeal, Rule 1-3. In our view, WMB’s argument lacks merit.

First, this case is clearly distinguishable from Hargett because there the defendant attacked the sufficiency of the facts pleaded by the plaintiff, whereas here WMB is not attacking the sufficiency of the facts pleaded by Jaime Monticello. Rather, it is attacking the timeliness in which the LUT-PA claim was raised. For this reason, this legal proposition is misplaced and does not govern the disposition of this case. Instead, we analyze it under Industrial Co., Inc., supra.

In Industrial Co., Inc., the Louisiana Supreme Court, in discussing the exception of no cause of action, stated that “a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” Id. (Emphasis supplied). Therefore, even though Jaime Monticello did not raise the LUTPA claim at the trial level, our court has the authority to entertain it, particularly since we are conducting a de novo review of these exceptions.

As stated before, the trial court’s grant of an exception of no cause of action is reviewed de novo. Industrial Co., Inc., 837 So.2d 1207. In a de novo review, “the appellate court is at liberty to make an independent decision based on the record evidence.” Bujol v. Entergy Servs., Inc., 03-492, p. 11 (La.5/25/04), 922 So.2d 1113, 1144, Fn. 1. When an exception of no cause of action is raised, “[t]he question is whether, in the light most favorable to the plaintiff, the petition states any Invalid cause of action for relief.... [Citations omitted.]” Crosby v. Stinson, 33-628, p. 3 (La.App. 2 Cir. 8/23/00), 766 So.2d 615, 617. In these instances, appellate courts can look at the petition to determine if the facts stated therein afford the plaintiff any sound cause of action, regardless of whether or not the newly raised cause of action was brought before the trial court.

In this situation, Jaime Monticello is precluded from suing WMB because she does not have a legal interest in the property. But, assuming, arguendo, that Jaime Monticello had a legal interest in the said property, she still would not be able to sue WMB on LUTPA grounds.

The Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA) states that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. La.R.S. 51:1405. It confers a right of action on any person who “suffers any ascertainable loss of money or movable property, corporeal or incorporeal,” for actual damages resulting from unfair trade practices, in addition to court costs and attorney fees. La.R.S. 51:1409.... Except for the Louisiana First Circuit Court of Appeals, Louisiana Courts, both state and federal, have uniformly held the personal right of action granted under LUTPA applies only to direct consumers or to business competitors.

Vermilion Hosp., Inc. v. Patout, 05-82, pp. 3-4 (La.App. 3 Cir. 6/8/05), 906 So.2d 688, 691-92.

Accordingly, to have standing under LUTPA, Jaime Monticello must show that she was either a direct consumer or a business competitor of WMB. A “consumer” is defined in the statute as “any person who uses, purchases, or leases goods or services.” La.R.S. 51:1402(1). Alternatively, to be considered a “business competitor,” “[the plaintiff] must establish [she] engages in business that competes directly or indirectly with the defendant as a business competitor.” Vermilion Hosp., Inc., 906 So.2d at 692.

|12Jaime Monticello’s petition does not suggests that she is a direct consumer of WMB. Her parents, not her, were the ones who signed the promissory note of which WMB was payee. Similarly, Jaime Monticello is unable to establish she is a business competitor of WMB. Consequently, Jaime Monticello lacks standing to pursue an action under LUTPA.

Hi.

Does Jaime Monticello have a remedy under Thomas v. Werlein?

Jaime Monticello argues that under Thomas v. Werlein, 181 La. 104, 158 So. 635 (1935), she is entitled to damages. Her interpretation of Thomas is sweeping and without merit; accordingly, we disagree.

In Thomas, the plaintiff, a widow, sued the defendant on her behalf and that of her children alleging that the defendant, through its agents, had wrongfully and fraudulently removed from her home a radio-phonograph which was purchased by her deceased husband. Jaime Monticello asserts that pursuant to Thomas, “for 70 years, Louisiana courts have recognized a claim for damages to the non-owning spouse over the loss by wrongful seizure of a mere phonograph” and, therefore, she is entitled to damages thereunder.

Jaime Monticello’s sweeping reading of this case fails to notice that at the end of the opinion the court mentions that the plaintiffs were awarded damages “under their transmitted rights.” Id. By virtue of these “transmitted rights,” the plaintiffs were able to sue the defendant and recover damages because, by operation of law, they had an ownership interest in the radio-phonograph. In contrast, Jaime 11sMonticello does not have any legal interest in the Monticellos’ property, transmitted or otherwise, and as a result she is precluded from suing WMB.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting WMB’s peremptory exceptions of no right of action and no cause of action against Jaime Monticello.

AFFIRMED.

      . Art. 682. Individuals Having Procedural Capacity
      A competent major and a competent emancipated minor have the procedural capacity-

      . Art. 683. Unemancipated Minor

      B. Except as otherwise provided in article 4431, the tutor appointed by a court of this state is the proper plaintiff to sue to enforce a right of an unemancipated minor, when one or both parents are dead, the parents are divorced or judicially separated, or the minor is born outside of marriage.

      . Rule 1-3. Scope of Review
      The Scope of Review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal, shall be as provided by LSA-Const. Art. 5 Sec. 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which were contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

      . 181 La. 104, 158 So. 635 (1935).


author: COOKS, Judge.

text:
    Gerald TAYLOR v. HATHORN TRANSFER & STORAGE.
    No. 2007-993.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.

      Clifton J. Spears, Jr., Attorney at Law, Alexandria, LA, for appellant, Gerald Taylor.
    Thomas D. Travis, Johnson, Stilner & Rahman, Baton Rouge, LA, for Appellees, Hathorn Transfer & Storage and Louisiana Workers’ Compensation Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

I STATEMENT OF THE CASE

This is a workers’ compensation case. The issue presented is whether an employee’s claim against his employer for payment of a medical bill and mileage is extinguished by virtue of a compromise and settlement entered into by the parties and approved by order of the workers’ compensation judge. The workers’ compensation judge found that the claim was barred. For the reasons assigned below, we affirm the decision of the workers’ compensation judge.

STATEMENT OF THE FACTS

The facts are as follows. Gerald Taylor was injured while on the job for his employer, Hathorn Transfer & Storage. Mr. Taylor was initially represented by attorney Thomas Davenport. He later retained Clifton J. Spears, Jr. The employer was represented by Frank E. Brown, III. Mr. Taylor was sent to Dr. Alan Appley, a neurosurgeon, for evaluation. Dr. Appley ordered an MRI of the cervical and thoracic spine. The MRI was approved by the employer. In his deposition, Dr. Appley admitted at the time he ordered the test, he believed Mr. Taylor needed both a cervical and thoracic MRI. After the tests were performed, Dr. Appley decided the work-related problem Mr. Taylor was experiencing was unrelated to his cervical spine. The employer bifurcated the bill and paid only for the thoracic MRI. Mr. Taylor began receiving bills from Open Air MRI prior to the settlement. A compromise was eventually agreed to between the parties. Mr. Spears drafted two letters to Mr. Brown dated February 8, 2006 and February 9, 2006. The February 8 letter confirmed “I am in receipt of the settlement package and my client has agreed to settle this matter for FIFTY THOUSAND and no/100 ($50,000.00) DOLLARS.” The letter addressed the issue of the mileage and the outstanding MRI bill, as follows:

12There is the matter of unpaid mileage and an unpaid bill to Open Air MRI of Louisiana, which I have attached to this letter. If possible, could we have the mileage check made separate from the settlement check and made payable to Gerald Taylor only?

The letter of February 9 from Mr. Spears to Mr. Brown states the settlement documents have been “duly executed” but the “Receipt and Release has not been executed and will not be executed until I have check in hand.” The letter also provides:

There is the matter of unpaid mileage and an unpaid bill to Open Air MRI of Louisiana. Please have the mileage check made separate from the settlement check, and made payable to Gerald Taylor only.

Counsel for Mr. Taylor asserts that he and Mr. Brown agreed the mileage and MRI charges would be paid separate and above the settlement. The settlement documents were signed but they do not mention the agreement between the two attorneys or the disputed charges. The settlement was approved by the workers’ compensation judge. The check for the disputed charges was not forthcoming. Counsel for Mr. Taylor called Mr. Brown in reference to the unpaid mileage and MRI bill and learned that Mr. Brown was fired from his employment with the firm.

Mr. Taylor filed a disputed claim for payment based on representations made by counsel for the employer that the expenses were to be paid over and above the settlement. The employer filed an exception of res judicata. The workers’ compensation judge found although the letters indicate a concern regarding the unpaid charges, there was nothing to suggest that the employer agreed to pay the disputed charges in addition to the settlement amount. Further, the workers’ compensation judge found the Plaintiff signed the settlement knowing there was an outstanding MRI bill and unpaid mileage benefits. The workers’ compensation judge maintained the exception of res judicata, finding the settlement extinguished any obligation on the part of the employer for the disputed charges. The employee | aappeals.

LAW AND DISCUSSION

Louisiana Revised Statutes 23:1272 provides, in relevant part:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgement by the parties in open court which is capable of being transcribed from the record of the proceedings.
B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers’ compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers’ compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party. (Emphasis added).

The purpose of this statute is to “provide numerous safeguards to prevent an employee from being coerced, to prevent a hasty and possibly ill-advised resolution of the employee’s claim, and to protect the parties from unwise actions which may cause them serious detriment.” Sedgwick Claims Management Serv. Inc. v. Cormier, 02-0216 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, writ denied, 03-1185 (La.6/20/03), 847 So.2d 1234. A judgment obtained in compliance with the statutory requirements may only be set aside for fraud or misrepresentations. Id.

At the hearing, Mr. Spears argued Plaintiff was induced into settling his claim by the false assurances made by Mr. Brown that the MRI charges and attendant mileage expenses would be paid over and above the settlement. He asserts the Plaintiff began receiving a bill for the cervical MRI prior to the settlement. This bill was discussed with Mr. Brown and the parties agreed that the full amount of the charges and related mileage expenses would be paid in addition to the settlement |4amount. In support of Plaintiffs claim, Mr. Spears introduced the letters sent to Mr. Brown. No testimony was offered other than Mr. Spears’s argument at the hearing regarding the verbal agreement between he and Mr. Brown.

A “compromise instrument is the law between the parties and must be interpreted according to the parties’ true intent.” Brown v. Drillers, Inc., 93-1019, p. 7 (La.1/14/94), 630 So.2d 741, 748. “Thus, the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling.” Brown, 630 So.2d at 748. The record indicates the settlement package includes a Joint Petition for Approval of Compromise Settlement, signed by Plaintiff, which states: “Employee understands that this settlement will release the Employer and Insurer from any obligation to pay past or future weekly benefits and past or future medical benefits whether or not those medical bills have been submitted to the Employer/Insurer.” The settlement package also contains a Verification signed by Mr. Taylor, an Attorney Statement, and a Motion and Order to Dismiss the Claim signed by Mr. Taylor and Mr. Spears. The Order was signed by the workers’ compensation judge on March 2, 2006. There is nothing in the record to suggest Plaintiff was mislead or defrauded by the employer into signing the settlement documents. Plaintiff was represented by competent counsel and was fully aware that there was an outstanding medical bill and that he had incurred travel expenses for which he had not been reimbursed. We agree with the workers’ compensation judge and find any further claim for expenses is barred by the settlement with the employer. Accordingly, we affirm the judgment of the workers’ compensation judge. All costs of this appeal are assessed to Gerald Taylor.

AFFIRMED.