text:
    Adonis RAPHAEL, et al. v. Geraldine Elizabeth RAPHAEL, et al.
    No. 05-1403.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      R. Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, Louisiana, for Plaintiffs/Appellees, Adonis Raphael and Victor Raphael.
    Steven G. Durio, Robert L. Broussard, Durio, McGoffin, Stagg <& Ackerman, Lafayette, Louisiana, for Defendant/Appellant, Geraldine “Jerry” Raphael Caillier.
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| defendant appeals a jury award of $75,000 in favor of Plaintiffs for lost profits stemming from the operation of a family funeral home business. Plaintiffs have answered the appeal seeking an increase in the lost profit jury award and damages for frivolous appeal. We affirm the jury award, deny Plaintiffs’ request for an increase in the jury award, and deny Plaintiffs’ request for damages for frivolous appeal.

FACTS

Plaintiffs, Adonis Raphael (Adonis) and Victor Raphael (Victor), and Defendant, Geraldine “Jerry” Raphael Caillier (Jerry), are siblings. Their parents, Henry Raphael and Sylvania Raphael, now deceased, were the owners of three funeral homes in Louisiana — one in Lafayette, another in Jennings, and a funeral chapel in Abbe-ville. These businesses were included in the assets of the estates of Henry and Sylvania Raphael along with the family home and various tracts of land. Henry and Sylvania Raphael also had a daughter, Emma Taylor (Emma), who predeceased them. •

Following the deaths of their parents, on January 6, 2000, Adonis and Victor filed suit against Jerry and Emma’s five children for a partition of the estate assets and for an accounting.

The parties submitted the matter to mediation on May 8, 2000. As a result thereof, they executed a written compromise agreement whereby Jerry agreed to transfer all of her ownership interest in the funeral home business, the business’ real estate, inventory, and other assets, to Adonis and Victor. In return, Jerry was to receive from Adonis and Victor their respective interests in four tracts of land and a payment from them of $180,000. The written compromise agreement provided for a closing on the final documents within ninety days of May 8, 2000, subject to one | ^thirty-day extension to September 5, 2000.

Adonis and Victor exercised the thirty-day extension option. Disagreements arose concerning two of the tracts of land that Jerry was to receive; consequently, the documents translative of title required to effectuate the compromise agreement were not executed by the September 5, 2000 deadline.

On September 11, 2000, Adonis and Victor filed a motion to enforce the compromise agreement. At a prehearing conference, the parties agreed to resubmit the matter to mediation. However, on January 16, 2002, after efforts toward a second mediation failed, Adonis and Victor filed a first supplemental and amending petition, requesting that the mediation agreement be enforced and asserting that they incurred damages due to Jerry’s delay in completing the transfers necessary to effectuate the compromise agreement.

On March 19, 2001, the trial court heard the motion to enforce the compromise agreement, but not the remaining issues of liability and damages due to Jerry’s delay, as raised by Plaintiffs’ supplemental and amending petition. The trial court granted the motion and ordered the parties to sign the documents necessary to transfer their ownership interests in the assets of their parents’ estates within ten days of the date of the hearing. Jerry then filed a peremptory exception of res judicata asserting that the trial court’s judgment enforcing the mediation agreement effected a complete resolution of the matter. The trial court granted the exception and dismissed the remaining causes of action asserted by Adonis and Victor against Jerry. Adonis and Victor appealed the trial court’s grant of the exception of res judica-ta, and this court reversed the trial court judgment and remanded the matter for further proceedings. Raphael v. Raphael, 01-1564 (La.App. 3 Cir. 5/8/02), 817 So.2d 462.

On April 5, 2001, the parties executed the partition and equalization agreement | awhereby the transfer of ownership interest was accomplished, and Plaintiffs took over the operations of funeral home business from Jerry who had been exclusively operating same since September 1, 2000.

On May 9, 2005, the remaining issues of liability and damages due to Jerry’s delay proceeded to trial by jury. The jury found that: (1) Jerry was liable for breaching her obligation to sign the partition and deliver possession of the business to Adonis and Victor; (2) Jerry’s failure to deliver possession of the business in September of 2000 denied Adonis and Victor the ability to earn revenue; and (3) Jerry’s failure to deliver possession of the business diminished Adonis and Victor’s ability to conduct business or interfered with their ability to market their business or solicit clientele. The jury awarded damages of $75,000 in lost profits in favor of Adonis and Victor.

Jerry appealed the damage award as being excessive. Adonis and Victor answered the appeal, seeking an increase in the lost profits jury award and seeking damages for frivolous appeal. It is to be noted that Appellant, in her appellate brief, does not contest the jury’s finding of liability. The only issue before this court is damages. For the following reasons, we affirm the jury award and deny Adonis and Victor’s request for an increase in said award. We also deny damages for frivolous appeal.

ISSUES

The issues presented for our review are: (1) whether there was manifest error by the jury in awarding Plaintiffs lost profits of $75,000; (2) whether Plaintiffs are entitled to an increase in the jury award; and (3) whether Plaintiffs are entitled to damages for frivolous appeal.

| ¡LAW AND ARGUMENT

Standard of Review

The standard of review for findings of the trial court has been clearly established in this circuit. A court of appeal may not set aside a judge’s factual finding unless that finding was manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied, 03-1380, 853 So.2d 644, 03-1385 (La.9/19/03), 853 So.2d 645.

Bertini v. Scaife, 04-1229, pp. 2-3 (La.App. 3 Cir. 2/16/05), 895 So.2d 619, 621-22.

Lost Profits

Jerry contends that the jury’s award of lost profits is excessive and not supported by the evidence in the record. Conversely, Adonis and Victor seek an increase in the lost profits awarded to them. In addressing this issue, we are guided by La.Civ. Code art.1995 which provides that “[damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.”

In the present case, Plaintiffs and Defendant dispute the manner in which lost profits are to be calculated. Jerry contends that the appropriate measure of lost profits is “net profits” or “net loss” which she defines as “the amount of money remaining or loss incurred after all costs, depreciation, interest, taxes, and other expenses have been deducted from a business’ total revenues.” Stated differently, Jerry equates “net profits” with “lost profits.” We disagree.

“[L]ost profits are calculated by deducting the expenses that would have been incurred if the parties had complied with the contract from the gross revenues that |fiwould have been derived from the contract.” Rosbottom v. Office Lounge, Inc., 94-894, p. 2 (La.App. 3 Cir. 4/5/95); 654 So.2d 377, 378. Additionally, “[t]he jurisprudence is clear that fixed costs are not to be deducted from gross revenues in determining an award for lost profits.” Id. at 379 (citing White v. Rimmer & Garrett, Inc., 360 So.2d 914 (La.App. 3 Cir.1978).) Finally, while the lost profit award may not be based upon speculation and conjecture, “the absence of independent, corroborating evidence may not be fatal to the plaintiffs burden of proof.” J.B. Talley & Co., Inc. v. Vilaret Const. Servs., Inc., 98-395, p. 11 (La.App. 3 Cir. 10/7/98), 722 So.2d 9, 14, writ denied, 99-374 (La.3/26/99), 739 So.2d 798.

In support of her assertion that the award of $75,000 is excessive, Jerry focuses her analysis on the loss of profits from September 2000 to April 2001, which comprised the seven-month delay in carrying out the compromise agreement. Jerry argues that “[essentially, [Adonis and Victor] wholly failed to prove to a reasonable certainty that they would have performed even one more funeral than [Jerry] did during this seven-month period.” However, the determination of lost profits is not limited solely to the seven-month delay period. Rather, if proven, Adonis and Victor are entitled to profits which were lost after the transfers were accomplished due to Jerry’s delay.

We find that the record contains ample evidence for the jury to have reasonably concluded that the loss of profits sustained by Adonis and Victor extended beyond the day the transfer of ownership interest was accomplished. Although the lost profits sustained during these seven months may be more readily determinable, “[i]n cases where direct evidence is not available to establish the exact extent of loss caused by a breach of contract, resort to customary or foreseeable profit as a measure of damage is proper.” Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La.App. 4 Cir.1984), writ denied, 465 So.2d 738 (La.1985) (citing Folds v. Red Arrow Towbar Sales Co., 378 So.2d 1054 (La.App. 2 Cir.1979); Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4 Cir. 1978)). Thus, the $75,000 jury award for lost profits must be viewed considering both the seven-month period of delay, as well as lost profits sustained thereafter, to the extent that they were established by credible evidence.

Jerry contends on appeal that the documentary evidence introduced at trial, including Plaintiffs’ tax returns, refutes Plaintiffs’ claim for lost profits. She argues that the tax return for 2001, which encompassed nine months of operations from April 5, 2001 through December 31, 2001, revealed a loss of $19,162. Jerry also argues that the 2002 tax return only showed a profit of $1,793; and, therefore, she contends that the business was not profitable. She concludes that Adonis and Victor failed to prove that any profits were actually lost due to her delay in transferring the business.

To support her contention that the funeral homes were not profitable, Jerry hired Jeanne Billeaud, a certified public accountant, to examine the business records and to perform a lost profit analysis. In her own words, Ms. Billeaud “was retained to quantify the amount of lost profits or the profits that the Raphael brothers might have earned during the ... seven-month period that the closing or sale of the business was delayed.” Notably, her testimony at trial was expressly limited to her opinion of the profits, if any, which were lost by Adonis and Victor during this seven-month time period, and she was not able to give an opinion of what lost profits there may have been after the transfer of ownership interest occurred. Ms. Billeaud testified that the business “broke even” during said seven-month period and that there were no lost profits during that time period.

The record reveals conflicting evidence on the customary profit margin in the 17funeral home business. Adonis and Victor both testified that it is standard in the funeral home business to earn a 65% to 70% net profit. Dr. James Caillier, Jerry Caillier’s husband, who has been a licensed funeral director since 1970, testified that the national average net-profit percentage earned in the industry is only between 13% and 16%. Russell Frederick, the general manager of another funeral home located in Abbeville, testified that a 13% net profit is indicative of a successful funeral home business. Given the evidence presented, the jury was free to accept or reject either estimation in order to reach its ultimate conclusion regarding lost profits.

The jury also heard specific information on the earnings of the Raphael family’s funeral home facilities from Adonis and Victor. Adonis and Victor were consistent in their testimony that the average cost of a funeral was between $4,000 and $5,000. They further testified that the profit which they made, after deducting professional services and the cost of the casket, averaged between $2,000 and $2,500. This testimony was unrefuted.

Neither party disputes that from May 2001 to December 2001 approximately thirty-four funerals were performed at the Raphael’s funeral home facilities. This figure is based upon documented evidence reflected in the funeral home embalming records which the State of Louisiana requires all funeral homes to maintain. This figure, considered along with the profit margin testified to by Adonis and Victor, provides a reasonable factual basis for the jury’s determination of lost profits in the amount of $75,000. The jury was also able to consider the foreseeable profits which may have been lost even after the transfer was effectuated.

Although Jerry attempted to convince the jury that the business was not profitable by the introduction of the tax returns, the jury was presented with evidence that once Adonis and Victor took over the funeral home operations, there was an ^increase in the number of funerals handled by them and that their income and profits increased. The tax returns documented that their taxable profit of $1,793 in 2002 had increased to $24,000 by 2003. When considering the loss of profits extending after April 2001, the jury was presented with evidence that Adonis and Victor were able to increase profits from a loss of $19,000 to a profit of $24,000 in less than three years of their taking over operations. Additionally, Adonis testified that had there not been the seven-month delay in transferring the business, that it was reasonable to assume that he and Victor would have had sixty funerals in 2001, as they did in 2002.

Considering the evidence presented, it was within the jury’s discretion, as the finder of fact, to determine that Jerry’s delay in transferring the business resulted in a loss of profits during that seven-month period and adversely affected the profits of the business for a certain period of time thereafter.

For the foregoing reasons, we find that the jury award is not manifestly erroneous or clearly wrong. Therefore, we affirm the jury award of $75,000 in lost profits.

Answer to Appeal

In their answer to appeal, Adonis and Victor seek an increase in the award of lost profits. For the reasons set forth above, we find that the jury’s award of $75,000 is not manifestly erroneous or clearly wrong and the evidence does not support an increase in said award.

Adonis and Victor also seek damages for frivolous appeal. Louisiana Code of Civil Procedure Article 2164 provides the authority for an appellate court to award damages for the filing of a frivolous appeal. This court recently discussed Article 2164, stating as follows:

Louisiana Code of Civil Procedure Article 2164 provides for an award of damages for frivolous appeal. If the court feels that counsel for the appellant does not seriously advocate the position taken or that | athe appeal was filed solely for dilatory purposes, then damages for frivolous appeal are appropriate. Gallien v. Winn-Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531 (citing Hampton v. Greenfield, 618 So.2d 859 (La.1993)); Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ denied, 95-2076 (La.11/13/95), 662 So.2d 478. ■ However, if even the slightest justification is found for the appeal, and even if the appellant does not prevail on appeal, damages will not be awarded. Hawkins v. City of Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292.

Moraus v. Frederick, 05-429, pp. 9-10 (La.App. 3 Cir. 11/2/05), 916 So.2d 474, 481-82. The Louisiana Supreme Court has instructed appellate courts to award damages under La.Code Civ.P. art. 2164 only when an appeal is taken for purposes of delay or an appellate counsel is not sincere in the belief of the view he or she advances on appeal. Hampton v. Greenfield, 618 So.2d 859 (La.1993).

Although we do affirm the jury award of $75,000 in lost profits in favor of Adonis and Victor, we find that the evidence in the record of these proceedings does not warrant an award of damages for frivolous appeal. Accordingly, we deny Adonis and Victor’s request for damages for frivolous appeal pursuant to La.Code Civ.P. art. 2164.

DECREE

For the reasons set forth above, we affirm the jury award of $75,000 in lost profits in favor of Adonis Raphael and Victor Raphael against Geraldine “Jerry” Raphael Caillier. Additionally, we deny Plaintiffs’ claims for an increase in the jury award and for damages pursuant to La. Code Civ.P. art. 2164 for the filing of a frivolous appeal.

Costs of this appeal are assessed against the Defendant, Geraldine “Jerry” Raphael Caillier.

AFFIRMED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Nora Lee Miller PRINCE and Ancel James Miller v. PALERMO LAND COMPANY, INC.
    No. 05-1399.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Oliver “Jackson” Schrumpf, Sulphur, Louisiana, for Defendant/Appellant, Palermo Land Company, Inc.
    C.A. Guilbeaux, Lake Charles, Louisiana, for Plaintiffs/Appellees, Nora Lee Miller Prince and Aneel James Miller (deceased).
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ¶ Defendant, Palermo Land Company, Inc. (Palermo), appeals the judgment of the trial court declaring that the Plaintiffs, Nora Lee Miller Prince and her brother, the late Ancel James Miller (the Millers), are the owners of the property at issue through acquisitive prescription of thirty years. For the following reasons, we affirm.

FACTS

The property at issue is located north of other property owned by the Millers and is described in the record of these proceedings as:

The West Half (W 1/2) of the Northwest Quarter of the Southwest Quarter (NW 1/4 of SW 1/4) of Section 1, Township 10 South, Range 12 West, situated in the Parish of Calcasieu, State of Louisiana, containing 20 acres, more or less.

The property at issue was purchased by Palermo’s ancestors in title on June 24, 1963, at a tax sale. Palermo asserts that it interrupted the Millers’ alleged possession and prescription by virtue of its purchase of said property at the tax sale in 1963 and that it has maintained its ownership by paying the property taxes since 1964.

The Millers claim that their ancestors began using the property at issue sometime in the 1940s. The Millers claim that their family has used the property for more than thirty years, raising cattle and growing crops. The property at issue was listed in the succession of the Millers’ father, Ancel Onelect Miller, in 1993. The 1993 judgment of possession declared that the Millers, Nora Lee Miller Prince and the late Ancel James Miller, received ownership of their father’s interest in the property at issue, subject to the usufruct of his surviving spouse, Rena Quebedeaux Miller. Also in 1993, Rena Quebedeaux Miller donated her alleged ownership interest in this property to the Millers, Nora Lee Miller Prince and the late Ancel James Miller. The property at issue was then partitioned between the Millers. | ¡.Sometime around 1994, the late Ancel James Miller erected a fence on this property.

On July 18, 1997, the Millers filed a petition for declaratory judgment seeking to have themselves declared to be the owners of the property at issue pursuant to thirty years acquisitive prescription. The Millers contend that more than thirty years have elapsed since Palermo purchased said property at tax sale and that they have continued in physical possession of said property in excess of thirty years prior to their filing of this lawsuit.

A bench trial in this matter was set for February 4, 2005. At said hearing, the parties presented their evidence for the court’s consideration and were allowed to submit post-trial briefs for the court’s consideration, after which the trial court took the matter under advisement. Subsequently, the trial court issued written reasons for judgment finding that the Millers had established possession of the property pursuant to thirty years acquisitive prescription. The trial court wrote (citations omitted), in pertinent part:

The variety of physical or corporeal possession necessary in a particular occurrence will be determined by the nature of the land. The nature of the land involved is the chief consideration as to what acts of possession are sufficient.
Types of activities indicative of possession vary, but with rural property, the growing of crops, cattle grazing and fencing have been held as examples of possession sufficient to prove acquisitive prescription. Furthermore, adverse possessors can acquire title by prescription by engaging in activities such as maintaining fences, paying stamps on transactions, farming, carrying out drainage, projects, and paying taxes.
However, payment of taxes alone is not sufficient indicia of possession for attainment of property under 30 year acquisitive prescription, it is much more effective in 10 year prescription cases. Paying of taxes is not sufficient in itself to support possession of or to show title to property, but taken in consideration with other facts, tends to support [a] claim of possession as owner. In fact, paying taxes was not possession necessary for 30 year prescription.
Here, in depositions by the Plaintiffs, Nora Prince and Ancel Miller, there was testimony that the property in question was used in a [¡¡manner fitting its[ ] status as rural property for the purpose of acquisitive prescription. In their depositions, the [Pjlaintiffs testified to treating the land as an owner in open possession by ejecting trespassers from the tract, using the tract for recreation, farming on the tract, and using the tract as pasture for cattle, or fencing the land.
The [Defendants, by their own admission, have never held corporal possession of the tract. According [to] the depositions [], he [Joseph R. Palermo, Jr.] had only been on the land once or twice. Same for the other ancestors in title, only flew over the tract in a plane, and allegedly granted an oral lease to graze cattle, that was seemingly contradicted by an affidavit by an individual....

On July 26, 2005, the trial court signed a judgment granting the Millers’ petition for declaratory judgment, declaring them to be the owners of the property at issue through acquisitive prescription of thirty years.

ASSIGNMENTS OF ERROR

Palermo appeals and asserts the following assignments of error: (1) the trial court erred in failing to hold the 1963 tax sale constituted an admission against interest or an interruption of the claim of possession of the property by the Millers; (2) the trial court erred in failing to conclude that the offer by the Millers’ ancestor to purchase the tract from Palermo’s ancestor after the tax sale constituted an acknowledgment or admission of ownership in another person and an interruption in the Millers’ possession; (3) the trial court erred in failing to note the discrepancy between the affidavits of possession and the deposition testimony admitting that the Millers did not “live on” the twenty-acre disputed tract; (4) the trial court erred in admitting the affidavits of deceased persons over objections, including violation of the right to cross-examine witnesses; (5) the trial court erred in failing to recognize that the granting of oil, gas, and mineral leases by Palermo, combined with payment of property taxes, interrupted acquisitive prescription; (6) the trial court erred in failing to grant Palermo’s exception of failure to join a necessary party; and (7) the |4trial court erred in failing to require the Millers to substitute parties.

Palermo basically asserts that the trial court erred in finding that the Millers satisfied the requirements for proving ownership of the property at issue through acquisitive prescription of thirty years.

Possession of an immovable is the detention or enjoyment of a corporeal thing. See La.Civ.Code art. 3421. “Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.” La.Civ.Code art. 3425. Louisiana Civil Code Article 3486 provides that ownership of an immovable “may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” Possession occurs when one takes corporeal possession of the thing and intends to possess it as the owner. See La.Civ.Code art. 3424. To acquire a thing by prescription, possession must be commenced by corporeal possession, or civil possession preceded by corporeal possession; however, the possession must be continuous, uninterrupted, peaceable, public, and unequivocal. La.Civ.Code art. 3476. “Actual corporeal possession is necessary to commence thirty years acquisitive prescription, and external and public signs are required to keep possession running.” Phillips v. Fisher, 93-928, p. 4 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, 1308, writ denied, 94-813 (La.5/6/94), 637 So.2d 1056.

“The party asserting acquisitive prescription bears the burden of proving all the facts that are essential to support it.” Id. at 1307. A trial court’s decision on whether a party has possessed property sufficient to prove thirty year acquisitive prescription is a factual determination and cannot be reversed on appeal unless it is manifestly erroneous or clearly wrong. Id. Furthermore, a trial court is given great deference, and its findings are virtually never manifestly erroneous or clearly wrong when based |supon determinations of the credibility of witnesses. Id. (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

The Millers contend that they have maintained physical possession of said property more than thirty years prior to their filing suit and that more than thirty years have elapsed since Palermo purchased said property at tax sale back in 1963. Plaintiff Nora Lee Miller Prince testified in her deposition that she has personally performed acts of possession on the property at issue most of her life. She testified that she often rode the fence lines on horses, picnicked all over the property, and swam in the canal on the property as a child. She testified that her family used the property at issue to graze their cattle and had even cut a canal levee in order to form a “crossover” for their cattle to get to the property at issue, which is directly north of the property on which the Millers live. Her father often rode around on the property at issue looking for cows that had crossed the canal and given birth. She testified that her family has always controlled the use of the property and that they ran trespassers off the property and permitted others to hunt or swim on the property.

Plaintiff Ancel James Miller, now deceased, also testified in his deposition about his family’s use of the property at issue as being constant. He testified that said property was used by his family to graze cattle, farm hay, and he personally fished, swam, hunted, rode four-wheelers, and baled hay on the property in question since he was a child. Finally, Mr. Miller testified that he erected a fence on the property in question in 1994 in order to divide the property equally between himself and his sister, Nora.

The property at issue was purchased by Joseph Palermo, Sr. in 1963 at tax sale and subsequently transferred to Palermo Land Company, Inc. Since 1963, Palermo | fiLand Company, Inc., and its ancestors in title, have paid the taxes on the property in question. Palermo asserts that the Millers’ father, Ancel Onelect Miller, was aware of their purchase of the property, and argues that said acknowledgment constitutes an interruption of the Millers’ alleged possession.

Joseph Palermo, Jr. (Joseph, Jr.), president of Palermo Land Company, Inc., testified in his deposition that sometime after his father, Joseph Palermo, Sr., purchased the property in 1963, that Ancel Onelect Miller approached his father offering to purchase the property; however, the property was never sold to Ancel Onelect Miller. Joseph, Jr. testified that he had no knowledge of the Millers’ use of the property and that he never saw any cows, crops, signs, or activity on the property as alleged by the Millers. Joseph, Jr. testified that since 1963, Palermo has executed several oil, gas, and mineral leases on the property in question. Joseph, Jr. also testified that he first went onto the property in the mid-1970s and has since been on the property four or five times, with the last time being in 1994. He also testified that he flew over the property “a bunch of times.”

Anthony Palermo, Sr. (Anthony), secretary and treasurer of Palermo Land Company, Inc., testified in his deposition that since his father purchased the property at issue, he personally hunted rabbit and squirrel on the property. Anthony testified that in 1986, the property at issue was leased to Edward Burl Baty, a cattle farmer, through a verbal lease;. however, Anthony did not know whether Mr. Baty actually grazed any cattle on the property.

Palermo argues that its purchase of the property at tax sale, its subsequent payments of property taxes, and its execution of several oil, gas, and mineral leases on the property in question constitute an interruption of the Millers’ claim to physical |7or corporeal possession of the property in question. The Millers, however, contend that Palermo’s actions are merely acts of constructive possession and, therefore, do not negate their physical or corporeal possession. The Millers assert that even if Palermo’s acts of constructive possession constituted an interruption of their physical or corporeal possession, said interruption is considered to have never occurred because the Millers recovered possession within the one-year period as set forth in La.Civ.Code art. 3465.

The trial court found that Palermo’s purchase of the property, execution of mineral leases, and payment of property taxes was not sufficient to interrupt prescription. It further found that the Millers continued to exercise control over the property in question.

Louisiana Civil Code Article 3465 provides that “[a]cquisitive prescription is interrupted when possession is lost. The interruption is considered never to have occurred if the possessor recovers possession within one year or if he recovers possession later by virtue of an action brought within the year.” Louisiana Civil Code Article 3466 provides that “[i]f prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption.”

In Brooking v. Vegas, 03-1114 (La.App. 3 Cir. 2/4/04), 866 So.2d 370, writ denied, 04-577 (La.4/30/04), 872 So.2d 491, this court held that the plaintiffs removal of fence posts was sufficient to interrupt the defendants’ possession; however, because the defendants continued to exercise acts of possession in the area where the fence once existed, e.g., mowing the grass, the trial court held that the defendants had recovered possession of the property within the one-year time frame required by La.Civ.Code art. 3465.

| sIn this case, the Millers contend that they have maintained open possession with the intent to possess as owners since the 1940s, before, during, and after each and every constructive act of possession relied upon by Palermo; therefore, an interruption of prescription never occurred. We agree. We find the evidence supports the conclusion that the Millers’ continued acts of possession occurred within the one-year time frame required by La.Civ.Code art. 3465; therefore, said acts of possession are sufficient for the Millers to assert a recovery of possession for the purposes of acquisitive prescription.

Aside from the self-serving testimony of its officers, Palermo offered no evidence to counter the Millers’ evidence of possession in excess of thirty years. In light of the testimony contained in the record, and giving great deference to the trial court in terms of judging credibility determinations, we find no manifest error in the trial court’s judgment. The record supports the trial court’s determination that the Millers have carried their burden of proof in support of thirty year acquisitive prescription.

Palermo also argues that the trial court erred in admitting the affidavits of two deceased persons, Ignace Borel and Sidney Kibodeaux, alleging that the affidavits were hearsay and deprived Palermo of the right to cross-examine said witnesses. We agree with the trial court that these affidavits are exceptions to the hearsay rule under La.Code Evid. art. 803(20). We note the trial court declared “the admission of these 1 ^affidavits are merely supporting evidence, not the basis of the court’s decision to rule for a particular party.” We, therefore, find Palermo’s objection to the admission of these two affidavits to be without merit.

Finally, Palermo contends that the trial court erred in denying its exceptions of nonjoinder of an indispensable party and failure to substitute parties. Palermo asserts that these exceptions were raised in its post-trial memorandum; however, our review of the record indicates that Palermo’s post-trial memorandum was filed on December 20, 2005, as an attachment to Palermo’s motion and order to supplement record on appeal. Palermo’s motion states:

The objections and exceptions made by [Defendant, Palermo Land Company, were to be made in the Post-Trial Brief as referenced on page 462^463 of the transcript. The Post-Trial Brief was not filed in the proceeding of the Fourteenth Judicial District Court. Appellant [Palermo] wants to make note in the appellate record of this proceeding that objections and exceptions were raised in the trial court.

The trial court issued its written reasons for judgment on April 27, 2005. Contrary to Palermo’s assertion that its “objections and exceptions were raised in the trial court” the transcript of the February 4, 2005 hearing reveals that Palermo’s counsel declared “I am reserving any objections to a brief, post-trial brief.” Because our review of the record reveals that the Palermo’s post-trial memorandum, containing Palermo’s objections and exception, was not filed into the record of these proceedings until December 20, 2005, we find Palermo’s assignment of error regarding the trial court’s failure to require the Millers to substitute parties to be without merit. We do note, however, that counsel for the Millers asserts that she was actually the one who brought the death of the late Aneel James Miller to the attention of Palermo’s counsel; however, counsel for Palermo agreed to continue with the trial, without any substitution, and did not file a formal exception for failure to substitute parties. 11 (/Therefore, we find Palermo waived its objection to the Millers’ failure to substitute parties prior to trial.

Unlike the previously discussed dilatory exception of failure to substitute parties, Palermo’s peremptory exception pleading nonjoinder of an indispensable party may be noticed by an appellate court on its own motion. See La.Code Civ.P. art. 927(B). Palermo contends that the Millers are asserting possession of property owned by the neighboring property owners, the Lawtons. The Millers dispute this assertion; therefore, we find nothing for this court to review on the issue of whether the Millers are seeking to establish possession of any land other than the property purchased by Palermo at tax sale in 1963.

As enunciated in Phillips, 634 So.2d 1305, a trial court’s decision on whether a party has possessed property sufficient to prove thirty year acquisitive prescription is a factual determination and cannot be reversed on appeal unless it is manifestly erroneous or clearly wrong. Considering the factual and credibility determinations made by the trial court in this case, we find no manifest error.

DECREE

For the reasons set forth above, the judgment of the trial court granting Plaintiffs’ petition for declaratory judgment declaring them to be the owners of the property at issue through acquisitive prescription of thirty years is affirmed. Costs of this appeal are assessed against DefendanL-Appellant, Palermo Land Company, Inc.

AFFIRMED.

      . La.Code Evid.art. 803(20) provides:
      Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.


author: EZELL, Judge.

text:
    Talib EL-AMIN v. RAPIDES PARISH SCHOOL BOARD.
    No. CA 2005-1401.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Brian D. Cespiva Gravel, Cespiva, & Wilkerson, Alexandria, LA, for Plaintiff/Appellant, Talib El-Amin.
    Laura Norton Sylvester, Passman & Mi-chiels, Alexandria, LA, for Defendant/Ap-pellee, Rapides Parish School Board.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

11 Talib El-Amin appeals a summary judgment rendered in favor of the Rapides Parish School Board (School Board). Mr. El-Amin filed suit against the School Board claiming that the School Board breached their employment contract by terminating him. On appeal he claims the trial court erred in finding that he gave false statements on his employment application regarding his criminal history, thereby nullifying his employment contract.

FACTS

In 2001, Mr. El-Amin filled out an application for employment with the School Board. Later, in September 2002, Mr. El-Amin filled out an application for a position as a substitute teacher with the School Board. One of the questions on the application asked, “Have you ever been arrested for any crime, whether a felony or misdemeanor? If yes, give details below including conviction or guilty pleas.” In reply Mr. El-Amin stated, “Please contact: Richard V. Burnes Attorney at Law (318) 442-4300.”

After Mr. El-Amin submitted this application, he was interviewed by a Mr. McGee and a Ms. Miller. He also interviewed with the principal of North Bayou Rapides Elementary, Mr. Patrick. There was no discussion about his criminal history, and the principal indicated that he would check the references. Mr. El-Amin stated that he worked as a substitute teacher for the School Board in 2002.

Around December 2002, Mr. El-Amin began work for the School Board as a child specific aide. He once again filled out some paperwork with the School Board which was signed on January 14, 2003. In this paperwork, Mr. El-Amin indicated that he had been charged with a misdemeanor but offered no explanation on the space provided. He then indicated that he was convicted of a misdemeanor and provided that it was for “criminal mischief’ in the space provided. He further checked that he [shad been charged with a felony and indicated “Contact Richard Burns 442^1300” in the space provided. He checked the box that he had never been convicted of a felony. On August 12, 2003, Mr. El-Amin signed a contract as a child specific aide with the Rapides Parish School Board for a period from August 18, 2003 to May 31, 2004.

In his deposition testimony, Mr. El-Amin indicated that he had pled guilty to some charges concerning insurance fraud on August 11, 2003. He agreed that he did not notify the School Board of his court appearance or plea.

On December 11, 2003, Mr. El-Amin received a letter from the School Board notifying him that he was going to be terminated before the end of his contract. After additional correspondence, a pre-ter-mination conference was held on January 26, 2004. The School Board terminated Mr. El-Amin based upon his prior arrest. Mr. El-Amin then filed the present suit for breach of contract.

On July 11, 2005, the School Board filed a motion for summary judgment. The trial court granted the School Board’s motion for summary judgment and dismissed Mr. El-Amin’s claims against it. Mr. El-Amin filed the present appeal.

DISCUSSION

Grants of summary judgment are reviewed by the appellate courts de novo, using the same criteria that the trial court used in determining whether summary judgment was appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article 966(C)(2) provides that the mover bears the initial burden of proof. If the mover meets the initial burden, the burden then shifts to the opposing party to establish that he will be able to satisfy the evidentia-ry burden at trial. Champagne, 893 So.2d 773. If the opposing party fails to meet this burden, there is no genuine issue and the Umover is entitled to summary judgment. Id.

A genuine issue of material fact “exists where reasonable persons, after considering the evidence, could disagree.” P. Charles Calaban, APLC v. Scottsdale Ins. Co., 05-98, p. 12 (La.App. 3 Cir. 6/1/05), 903 So.2d 1251, 1259 (quoting Suite v. Lafayette City-Parish Consol. Gov’t, 04A459, 04-1460, 04-1466, p. 11 (La.4/12/05), 907 So.2d 37, 48). “ ‘A fact is ‘material’ if it is one that would matter at trial on the merits.’ ” Id. at 1260.

In its reasons for judgment, the trial court found that Mr. El-Amin had not been forthcoming with his answer on the application for employment regarding his status as a defendant in criminal proceedings and that the School Board did not have a duty to investigate the application. The trial court found that Mr. El-Amin’s silence on the pending felony charges resulted in error sufficient to vitiate consent.

The employment contract signed by Mr. El-Amin on August 12, 2003, did provide, in pertinent part:

The parties agree that the Board’s execution of this contract with Employee is based in part on information supplied by Employee in Employee’s application for employment; in the event that Employee supplies false or misleading information or omits material information from the application which, if known, would have likely have affected the Board’s consideration of this employment, then the Board may terminate this contract provided it complies with all laws regarding tenure and dismissal.

“Consent may be vitiated by error, fraud, or duress.” La.Civ.Code art. 1948. “Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” La.Civ.Code art. 1949.

In Ostrolenk v. Louise S. McGehee School, 402 So.2d 237 (La.App. 4 Cir.), writ denied, 404 So.2d 1259 (La.1981), the fourth circuit held that a teacher’s omission on her employment application of her termination at another private school 14during the previous year established that error existed as to the principal cause of the contract. This omission rendered the contract null from its beginning.

In Bischoff v. Brothers of the Sacred Heart, 416 So.2d 348 (La.App. 4 Cir.1982), the fourth circuit again found that there was a breach of a teaching contract when a teacher hired at a Catholic school checked off “Practicing Catholic: Yes” and under “Marital Status” noted “Married” when the applicant had been married in a Catholic church, divorced, and.remarried. The court found that the applicant had intentionally concealed his marital status because a latter conversation with one of the school leaders revealed that he knew he would not have been hired as a religion teacher if he had revealed his true status.

In LaCross v. Cornerstone Christian Academy of Lafayette, 04-341 (La.App. 3 Cir. 12/15/04), 896 So.2d 105, writ denied, 05-128 (La.3/24/05), 896 So.2d 1037, this court held that a teacher’s answer on an employment application that she did not drink alcohol, and her signature on the application indicating that her answers were complete and correct, constituted induced error that vitiated the school’s consent to the employment contract. The summer after the teacher had executed the contract, the school learned that she had gone out with co-workers and admitted drinking four to five beers.

In all of these cases, it was obvious that the applicants for teaching positions had intentionally withheld information or lied on their applications. While Mr. El-Amin may not have given as detailed information as the School Board would like, there is a question of whether he purposefully withheld information. He was very forthcoming that he had been charged with a felony and indicated on the form whom the School Board could contact regarding the charges. We do note that Mr. El-Amin signed the actual contract of employment the day after he pled guilty to certain felony |soffenses. He agrees that he did not notify the School Board of his plea or court appearance. However, there are questions of material fact that need to be resolved as to whether the School Board’s consent to the employment contract was vitiated by error. The School Board knew that Mr. El-Amin had been charged with a felony, yet it either failed or refused to seek and inquire further.

For the reasons set forth in this opinion, the trial court’s grant of summary judgment in favor of the Rapides Parish School Board is reversed, and this case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the Rapides Parish School Board.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Tyrone DAVIS, Sr.
    No. 2005-1629.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Tyrone Davis, Sr.
    Phil Haney-District Attorney, ADA Chester R. Cedars, St. Martinville, Louisiana, for Plaintiff/Appellee, State of Louisiana.
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|,In this case, the only issue before this court is Defendant’s appeal of the trial court’s order denying his motion for change of venue. For the following reasons, we affirm the trial court’s ruling but remand this matter back to the trial court for resentencing of Defendant on the conviction of possession of a firearm by a convicted felon due to the illegally lenient sentence given on that conviction.

On August 27, 2003, the St. Martin Parish grand jury indicted Defendant, Tyrone Davis, Sr., for second degree murder, in violation of La.R.S. 14:30.1; second degree kidnaping, in violation of La.R.S. 14:44.1; and possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. On October 28, 2003, the prosecution filed a Motion and Order to Determine Propriety of Venue with the district court, requesting that the trial court conduct a “dry run” voir dire in order to determine whether it would be able to select a fair and impartial jury in St. Martin Parish under State v. Bell, 315 So.2d 307 (La.1975). The trial court granted the request, conducted a “dry run” voir dire beginning on November 11, 2003, and after hearing argument from both sides, the trial court ruled that a change of venue was unnecessary.

Defendant’s trial commenced on March 1, 2004 and continued through March 4, 2004. At the conclusion of trial, the jury-found Defendant guilty of all charges. On April 14, 2004, the trial court sentenced Defendant to life imprisonment at hard labor for the second degree murder conviction, to forty years at hard labor for the second degree kidnaping conviction, and to fifteen years at hard labor for the possession of a firearm by a convicted felon conviction. The district court ordered all of the sentences to be served without benefit of probation, parole, or suspension of sentence and decreed that the sentences were to run consecutively with each other with Defendant being given credit for time served.

|2On April 28, 2005, Defendant filed an application for post-conviction relief with the trial court, alleging ineffective assistance of appellate counsel for failure to file an appeal and seeking an out-of-time appeal. On June 30, 2005, the trial court conducted a hearing on Defendant’s application for post-conviction relief, granted relief, and referred Defendant’s case to the Louisiana Appellate Project. Defendant appeals, arguing that the trial court erred in finding that no change of venue was warranted in his case.

STATEMENT OF FACTS

On December 28, 1997, sixteen-year-old Allison Castex (Allison) and her boyfriend were riding four-wheeler all terrain vehicles in the sugarcane fields across from Allison’s home in St. Martin Parish, Louisiana. While there, two men wearing masks accosted them. One assailant held the boyfriend at gunpoint, while the other took Allison away and murdered her. The police were able to recover DNA evidence from Allison’s clothing, but the police were unable to immediately identify and apprehend the assailants.

In August 1999, the police were able to obtain a positive DNA match to the evidence recovered from Allison’s body. The matching DNA profile came from a man named Brian Keith Francis (Francis), who had submitted to a court-ordered blood test due to his involvement in another incident in Lafayette Parish. A grand jury indicted Francis for first degree murder, and the prosecution prepared to seek the death penalty. The man who held Allison’s boyfriend at gunpoint, while she was being murdered-, was still unidentified. Prior to his trial, Francis, on July 18, 2003, accepted a plea bargain wherein he promised to reveal the name of his accomplice in exchange for a life sentence. Acting in accordance with his plea agreement, Francis named Defendant as his co-perpetrator.

Is As a result, Defendant was subsequently charged with and convicted of second degree murder, second degree kidnaping of Allison’s boyfriend, and possession of a firearm by a convicted felon for the events that occurred on December 28,1997.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is one error patent only as to the sentence imposed for possession of a firearm by a convicted felon.

The trial court failed to impose a fine on the conviction of possession of a firearm by a convicted felon as mandated by the penalty provision for said crime. La.R.S. 14:95.1(B). That penalty provision mandates a fine of not less than $1,000.00 nor more than $5,000.00. Thus, the trial court imposed an illegally lenient sentence on Defendant’s conviction of possession of a firearm by a convicted felon. Addressing an identical error, this court has stated the following:

The Defendant did not receive a fine although one is mandated by the penalty provision of La.R.S. 40:967(F)(l)(a). That provision mandates a fine of not less than $50,000.00 nor more than $150,000.00. Thus, the Defendant received an illegally lenient sentence for the possession of twenty-eight grams but less than two hundred grams of cocaine. Both statutory law and jurisprudence allow an appellate court to recognize an illegally lenient sentence on its own. La.Code Crim.P. art. 882 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. This court has recognized the trial court’s failure to impose a mandatory fine as an error patent and has, in its previous cases, remanded the cases for resentencing. State v. August, 03-1478 (La.App. 3 Cir. 477/04), 870 So.2d 553, State v. Figueroa, 03-1390 (La.App. 3 Cir. 3/31/04), 869 So.2d 957, and State v. Cedars, 02-861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191. Thus, the Defendant’s sentence for possession of twenty-eight to two hundred grams of cocaine is remanded for resentencing since the trial court has discretion as to the amount of the fine to be imposed. See State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.

State v. Phillips, 04-827, pp. 1-2 (La.App. 3 Cir. 11/10/04), 887 So.2d 670, 672.

Accordingly, this court affirms Defendant’s conviction on the charge of | ¿possession of a firearm by a convicted felon, but vacates his sentence on that charge as illegally lenient as above set forth, and remands this case to the trial court for resentencing on that charge only.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred in finding that a change of venue was not warranted in his allegedly “highly publicized” case. Defendant contends that the trial court abused its discretion because nearly half of the jurors at the actual voir dire could have been challenged for knowing about the case, because eleven of the potential jurors in the first panel and all of the potential jurors in the second panel had heard about the case prior to trial, and because three of the eleven potential jurors in the first panel, who knew about the case, were chosen to sit on the jury.

Defendants are constitutionally guaranteed an impartial jury and fair trial which may be attained by changing venue if a defendant can establish that the original venue will not provide an impartial jury or fair trial. State v. Frank, 99-553 (La.1/17/01), 803 So.2d 1; La. Const. art. 1, § 16. The party applying for a change of venue has the burden of proving that the change is necessary under the rule set forth in La.Code Crim.P. art. 622, which provides:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

Public knowledge of the facts surrounding the offense is not, by itself, sufficient to entitle an offender to a change of venue; actual prejudice resulting from the knowledge of the case must be demonstrated. Frank, 803 So.2d 1; State v. Clark, 442 So.2d 1129 (La.1983); State v. Vaccaro, 411 So.2d 415 (La.1982). Some of the | ¡^factors used in determining whether a change of venue is necessary are:

(1) the nature of [the] pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

Bell, 315 So.2d at 311. The trial court’s determination of whether the requisite showing has been made to qualify for a change of venue “will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion.” Vaccaro, 411 So.2d at 424.

In the instant case, the State moved for a “dry run” voir dire in order to determine whether a fair and impartial jury could be empaneled in the original venue, St. Martin Parish. Defendant filed no independent motion to change venue prior to the “dry run” voir dire. After the sample jurors in two separate panels, each consisting of fourteen members, were interviewed on November 11, 2003, the State argued that Defendant could receive a fair and impartial trial in St. Martin Parish, but it asked the district court to issue subpoenas for 200 potential jurors. In response, defense counsel objected to having the trial take place in St. Martin Parish and requested that the venue be transferred to an area more remote from the crime. After hearing argument from both sides, the trial court held:

| fiThe defense neither objected to the district court’s ruling nor filed an independent motion for change of venue prior to the date actual voir dire occurred.

Actual voir dire took place on March 1, 2004, and questioning of the potential jurors commenced without the defense making an independent motion to change venue. Prior to selecting actual jurors from each nineteen-person panel of potential jurors, the trial court, the State, and the defense all took turns questioning the potential jurors. At the conclusion of the interview process for each panel, both parties were allowed to challenge the placement of the jurors from that panel. The jurors were not only queried as to whether they had heard or read about the case, they were also asked whether they knew either of the victims, the victims’ family members, the potential witnesses, Defendant, Defendant’s family, Defendant’s co-assailant, or the co-assailant’s family. Each juror was repeatedly asked whether their knowledge of the facts or the people involved would prevent them from being fair and impartial jurors. Only one of Defendant’s challenges for cause was denied, and Defendant was allowed to dismiss that juror using one of his peremptory challenges. The potential juror had a working relationship with several of the officers testifying as witnesses. Once again, Defendant did not ask to revisit the issue of venue either during or after actual voir dire.

Thus, other than arguing in favor of a change of venue at the conclusion of the “dry run” voir dire, Defendant did not independently seek to change venue from St. Martin Parish. Moreover, although Defendant participated in questioning the potential jurors, he failed to address the several factors listed in Bell, such as the type of media coverage of the crime; the amount of media coverage; the number of days, months, or years the media issued stories about the crime; whether the media coverage was biased against Defendant; whether there was a public outcry against Defendant; what rumors were circulating about Defendant’s involvement in the |vcrime; whether there was a significant amount of negative sentiment in the community against Defendant that would affect the potential jurors’ candor and veracity during voir dire; whether there was governmental involvement in any negative publicity about Defendant; whether the area from which the jury was drawn was a tightly knit community; and whether the potential jurors themselves had made statements implicating Defendant in the crime.

Therefore, as the party requesting a change of venue, Defendant failed to meet his burden of proving that the widespread knowledge of the facts surrounding the crime created such a community prejudice against him that he was prevented from receiving a fair and impartial trial in St. Martin Parish. Accordingly, this assignment of error is without merit.

DISPOSITION

The trial court’s order denying Defendant a change of venue is affirmed. Defendant’s sentence, only as it applies to the conviction of possession of a firearm by a convicted felon, is vacated. This case is remanded to the trial court solely for the purpose of resentencing Defendant on the conviction of possession of a firearm by a convicted felon and imposing a fíne as required by La.R.S. 14:95.1(B).

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING.


author: AMY, Judge.

text:
    Wayne WATKINS v. ST. MARTIN PARISH SCHOOL BOARD.
    No. 05-1535.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      I. Jackson Burson, Jr., Assistant District Attorney, Eunice, LA, for Defendant/Appellant, St. Martin Parish School Board.
    W. Glenn Soileau, Breaux Bridge, LA, for PlaintiffAppellee, Wayne Watkins.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

_JjThe plaintiff filed suit against the defendant school board seeking credit for military service completed prior to his teaching career and the back wages associated with that credit. The defendant alleged that all but three years of the plaintiffs wage claim had prescribed. The trial court denied the exception of prescription and granted the plaintiffs wage claim. Wages and attorney’s fees were awarded. The defendant appeals. For the following reasons, we maintain the exception of prescription in part. We further affirm the judgment in part, reverse in part, and remand.

Factual and Procedural Background

The plaintiff, Wayne Watkins, began his employment with the defendant, the St. Martin Parish School Board, in January 1979 as a teacher at Cecilia High School. This suit involves his contention that the defendant erroneously denied him credit and related wages for four years of military service rendered prior to the commencement of his teaching career.

The record establishes that the plaintiff served in the United States Marine Corps from November 10, 1969 to November 9, 1973. After his honorable discharge, the plaintiff obtained a Bachelor of Science Degree from the University of Southwestern Louisiana in 1976. The Vermilion Parish School Board hired the plaintiff as a teacher in Fall 1976. According to the defendant’s Response to Request for Admissions, which was entered into the record, the Vermilion Parish School Board gave him “credit” for his prior military services “for purposes of the minimum salary schedule for teachers in Louisiana, and therefore beginning as a ‘five’ (5) year teacher, rather than a ‘First’ (1) year teacher on the schedule of minimum wages of Louisiana School Teachers.” Mr. Watkins’ employment in Vermilion Parish continued until January 19,1979.

|2Mr. Watkins was hired by the St. Martin Parish School Board in January 1979. According to Mr. Watkins, he informed the Personnel Director, Joseph Wiltz, of his military service and requested credit for his years of service. According to both the plaintiff and Mr. Wiltz, this credit was denied. Mr. Wiltz testified that the denial was based upon the defendant’s military leave policy, which he explained required that military service interrupt employment as a teacher in order for credit to be awarded. Mr. Wiltz remained as Personnel Director until 1987. He testified that he consistently applied the policy.

Mr. Watkins testified that, in 2002, he was informed by fellow School Board employee Charles Trenchard that Mr. Trenchard had been given credit for his years of military service. Like Mr. Watkins, Mr. Trenchard’s military service was completed prior to the commencement of his teaching career. Mr. Watkins testified that he spoke with Human Resources Director David Dugas, who confirmed that Mr. Trenchard had been awarded credit for his military service. Mr. Dugas testified that Mr. Trenchard had transferred the credit for his military service from Lafayette Parish. Mr. Dugas explained that it was his understanding that the defendant school board “gave any and all honorably discharged veterans up to four years of military credit for' payroll purposes.” The record establishes that during the period of the plaintiffs employment a number of other teachers, in addition to Mr. Trenchard, had been given credit for prior military service.

After his conversation with Mr. Trench-ard, Mr. Watkins again requested that he be provided credit for his years of military service. He also requested reimbursement of the wages for the years in which he had not been provided credit. LLottie Beebe, the School Board’s Supervisor of Human Resources at that time, testified that, like Mr. Wiltz, she interpreted the defendant’s military credit policy as requiring that teaching be interrupted by military service. The request for credit and associated back wages was referred to the School Board for its consideration.

On January 31, 2003, the defendant presented a check to Mr. Watkins for gross pay in the amount of $4,293.32. An attached letter addressed to Mr. Watkins and signed by Gwyn Theriot, the School Board’s Chief Financial Officer, explained that it was “a payroll check for settlement of military time.” The check represented back pay for the previous three years plus interest. According to Ms. Beebe, the check reflected the School Board’s reaction “to the advice of Mr. Chester Cedars, who is legal counsel, because ... he wanted to more or less minimize any damages if that would be the case.”

Mr. Watkins did not negotiate the check and filed the instant matter in June 2003, seeking “wages to which he is entitled from 1979 through the present date together with the appropriate notation and reflection of his retirement record that such wages are due and owing together with penalties and attorney fees for failure to pay the wages as required by Louisiana Law....” In its answer, the defendant asserted that the matter was prescribed. Consideration of the exception was deferred to the merits.

Following a hearing, the trial court denied the exception of prescription based upon a finding of contra non valentem. The trial court further found that given the defendant’s application of its military service credit policy, a teacher’s employment did not have to be interrupted in order to receive credit for military service. Thus, the trial court found that the plaintiff was entitled to credit for his four years of military Uservice. Based upon a stipulation as to wages and interest due, the trial court awarded damages in the amount of $95,321.75. The trial court awarded attorney’s fees in the amount of $12,000.00.

The defendant appeals, arguing that the trial court erred in:

1. Failing to find that plaintiffs claim for back wages was limited by a three year prescriptive period pursuant to Louisiana Civil Code Article 3494 because the plaintiff should be credited with what he could have learned by reasonable diligence.
2. Determining that plaintiff was entitled to military service credit dating back to the date of his hiring in 1979.
3. Finding that the St. Martin Parish School Board was bound to pay plaintiff with credit for military service in contradiction to written Board policy and pertinent state law.
4. Finding that the St. Martin Parish School Board was bound by the mistaken actions of two personnel directors taken in violation of written Board policy without approval of the school board.
5. Finding that the ultra vires acts of two personnel directors in improperly granting military service credit to four or five teachers out of the hundreds of teachers hired between 1979-2003 in violation of written school board policy bound the Board to grant military service credit to plaintiff.
6. Awarding plaintiff attorney’s fees under La.R.S. 23:632 because his claim for wages was not well founded and because there is no evidence in the record to substantiate the amount awarded.

Discussion

The defendant’s questioning of the trial court’s ruling requires consideration of both the military service credit policy and the applicability of La.R.S. 17:423. The trial court found merit in the plaintiffs assertion that the wording of the defendant’s policy and the inconsistent application of that policy entitled the plaintiff to back wages.

| ^Military Service Credit Policy

The defendant argues that the language of its military service credit policy does not permit credit for military service completed prior to a teacher’s period of employment. Rather, it contends that the military service must interrupt the period of employment. While acknowledging that some teachers were given credit for prior military service, it argues that these teachers were hired during a period of time in which the policy was misinterpreted by the acting personnel director. It contends that the interpretation given to the policy by Mr. Wiltz and Ms. Beebe is the appropriate one insofar as it denied credit absent interruption of employment.

The School Board Policy in effect from 1972 through December 2003 provided, in pertinent part, as follows:

2. Experience Within St. Martin Parish
Military Service
A maximum of four years credit shall be allowed for prior military service. In the case of fractional years, no rounding up shall be done. Fractional teaching service, however, could be combined with fractional military service to give complete years of service. This applies only to individuals having had their teaching experience interrupted by military service.
No credit will be given for service with reserve components of any branch of the military.

The trial court concluded that the defendant’s application of the policy required that the plaintiff be credited for military service completed prior to his employment. In reasons for ruling, the trial court explained as follows:

The issue before the Court turns not on the written St. Martin Parish Military Service policy, but the application of said policy | fibetween 1979 (Plaintiffs year of hire) through his request for back pay in October of 2002. The Court recognizes the differences in interpretation could rest in the ambiguity, of the 1956 version of La.R.S. 17:423, regarding whether “persons” receiving service credit had to have begun their teaching career before or after their military service. However, that issue was settled by the 1972 Amendment which clearly defined “persons” as “... only a person who was a regularly employed teacher, as ... defined in La.R.S. 17:441, ... prior to the time of induction ... See La.R.S. 14[sic]:423 and Washington v. St Charles Parish School Board, 288 So.2d 321 (La.1974).
While the St. Martin Parish policy on military service credit is based on La. R.S. 14[sic]:423, Louisiana jurisprudence does not prohibit a particular school board from adopting a more liberal policy and extending credit for military service p[er]formed prior to entering a teaching career; so long as the school system bears the cost itself and does not call upon the State to contribute in any way. Young v. Allen Parish School Board, 349 So.2d 469 (La.App. 3 Cir. 1977). In fact, the application of the pertinent St. Martin Parish policy has done just that. It has afforded teachers, who’s teaching careers were not interrupted by military service, credit for years serviced in the military not exceeding four (4) years; and the School Board does not refute that fact. Additionally, the School Board does not refute the fact that during the period beginning in 1979 (Plaintiffs year of hire) and 2002, other employees with similar military and teaching service were given credit for military service and Plaintiff was denied said credit. Further, Plaintiff and Defendant agree that the written policy did not change between 1979 and 2003 and as such this Court can only reach the conclusion that this Plaintiff is entitled to back pay for the years his military credit was denied while others were allowed. Any other conclusion would result in an inconsistent application of the same policy under similar circumstances.

As far as the wording of the policy, the trial court correctly observed that its wording reflects credit only for military service that interrupts teaching experience. The final sentence of the first paragraph specifically indicates that: “This applies only to individuals having had their teaching experience interrupted by military service.” Thus, the policy does not provide entitlement to credit for military service completed prior to the commencement of a teacher’s career. Further, we find no merit in the plaintiffs assertion that the interruption requirement of the final sentence applies only to the second sentence.

^However, we conclude that the trial court erred in determining that the defendant’s subsequent application of that policy to other teachers requires that the same credit be given to the plaintiff. As recognized by the trial court, a school board can adopt a more liberal military service credit policy than is provided by statute. See Young v. Allen Parish School Bd., 349 So.2d 469 (La.App. 3 Cir.1977). In Young, however, the court found that the plaintiff and the school board had entered into such an agreement. In this instant case, there is no such contract as the plaintiff was told early during his employment with the school board that it did not extend credit for military service completed prior to employment. While perhaps inequitable, the inconsistent application of the school board’s policy does not resolve the plaintiffs claim for his ' own back wages and salary as it appears before us in the present case.

This assignment lacks merit.

La.R.S. 17:428

The defendant also contends that no statutory authority exists that entitled the plaintiff to credit for military service completed prior to the commencement of his teaching career. As with its policy, the defendant contends that La.R.S. 17:423, referenced by the trial court, only provides for service credit for military service that interrupted a teacher’s career.

La.R.S. 17:423, provides:

§ 423. Persons entering military service; right to prior service credit
Anything in this Part to the contrary notwithstanding, any person who shall have served on active duty in the armed forces of the United States during World War II or the Korean or Viet Nam conflicts shall receive credit under the minimum salary schedule provided for in R.S. 17:419 through 422 for the period that he served in the armed forces of the United States.
[sThe term “person”, as used in this Section, shall mean and include only a person who was a regularly employed teacher, as that term is defined in R.S. 17:441, by a school system of this state prior to the time of induction for service in World War II or the Korean or Viet Nam conflicts; provided, however, that notwithstanding any other provision of this Section any credit which has heretofore been granted by any parish or city school board under the minimum salary schedule established by R.S. 17419 through ⅛21 for military service rendered prior to the effective date of Act No. 585 of 1972 shall not be denied, and if such credit has heretofore been discontinued it shall be restored and henceforth continued in effect just as if such credit had never been interrupted, stopped, or denied. (Emphasis added.)

The trial court’s reasons for ruling recognize that the above provision is related to credit for military service that interrupts employment as a teacher. This is clear from the definition of “person” in the statute’s second paragraph.

However, the final sentence of the statute is applicable in this case. Beginning with “notwithstanding any other provision of this Section[,]” the provision requires that “any credit which has heretofore been granted by any parish or city school board under the minimum salary schedule established by R.S. 17:419 through 421 for military service rendered prior to the effective date of Act No. 585 of 1972 shall not be denied[J” The defendant’s Response to Request for Admissions, which is filed into the record as an exhibit, confirms that the plaintiff began teaching in Vermilion Parish in 1976 and that “he was paid pursuant to La.R.S. 17:419, the minimum salary guideline of the State of Louisiana.” The defendant further admitted that when the plaintiff began his employment in Vermilion Parish, “he was given credit for his prior military service by the Vermilion Parish School System for purposes of the minimum salary schedule for teachers in Louisiana[.]”

|9As the plaintiffs military service was rendered between 1969 and 1973, a portion of the plaintiffs military service was “rendered prior to the effective date of Act No. 585 of 1972[.]” In the event that “such credit has heretofore been discontinued!,]” La.R.S. 17:423 requires that “it shall be restored and henceforth continued in effect just as if such credit had never been interrupted, stopped, or denied.” (Emphasis added.) The language is broad, with no exclusion indicating that a parish is excluded from the credit requirement because it was originally bestowed by another parish. Thus, contrary to the mandatory language of the statute, St. Martin Parish did not honor the credit for military service previously provided in Vermilion Parish. Per the statute, the plaintiff is entitled to have the previously-awarded credit restored, insofar as it was for military service rendered prior to July 26, 1972, as if it was never interrupted, stopped, or denied.

Exception of Prescription

The trial court denied the School Board’s exception of prescription, finding the doctrine of contra non valentem applicable due to the plaintiffs discovery that other teachers were provided with credit under the School Board’s military leave policy. ImWe have found the claim regarding the policy to have no merit, thus we do not discuss the trial court’s ruling on contra non valentem in this regard.

However, as we have recognized that La.R.S. 17:423 requires that at least a portion of the credit recognized in Vermilion Parish must be reinstated by St. Martin Parish, the three-year prescriptive period of La.Civ.Code art. 3494 must be considered.

Article 3494 provides:

The following actions are subject to a liberative prescription of three years:
(1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board[.]

See also Grabert v. Iberia Parish School Bd., 93-2715 (La.7/5/94), 638 So.2d 645, wherein the supreme court recognized that an action for salary or wages past due under the appropriate salary index is subject to the three-year limitation period of La.Civ.Code art. 3494.

The plaintiff is entitled to recover under La.R.S. 17:423. Article 3494 indicates that insofar as the claim seeks “wages”, it has prescribed with regard to those wages arising more than three years prior to the filing of the petition on June 23, 2003. The trial court erred in not granting the exception in this - regard. As we stated above, the plaintiff was not entitled to recover under the school board policy. Any facts that he later became aware of in the application of that policy are irrelevant. Furthermore, no facts were subsequently discovered that relieves the plaintiff of the applicable prescription period with regard to his claim under La.R.S. 17:423. Rather, the statute was in effect and published at the time credit was denied. He acknowledges that he lnwas aware of the denial of the credit. Accordingly, contra non valentem is inapplicable. We reverse the denial of the exception of prescription and grant the exception to limit the plaintiffs recovery pursuant to La.Civ.Code art. 3494.

Attorney’s Fees

Finally, the defendant questions the trial court’s award of attorney’s fees in this case. In ruling, the trial court relied upon La.R.S. 23:632 and found that the trial court was without discretion in awarding attorney’s fees. We conclude that this determination was in error.

Louisiana Revised Statutes 23:632 provides, in part:

§ 632. Liability of employer for failure to pay; attorney fees
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for- full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

(Emphasis added.)

The above statute does not provide for attorney’s fees in this case. First, we note that La.R.S. 23:632 references La.R.S. 23:631, a statute related to payment of wages to a terminated or discharged employee. Furthermore, the final portion of La.R.S. 23:632 indicates that its requirement of attorney’s fees is applicable for demand “following discharge or resignation.” In the instant case, the plaintiff neither resigned nor was terminated. Thus, the statute is inapplicable and the trial court’s |1Paward of attorney’s fees thereunder was in error. We reverse the $12,500.00 award of attorney’s fees.

DECREE

For the foregoing reasons, the denial of the exception of prescription is reversed. The exception of prescription is maintained in part to recognize that the plaintiffs claim for past due wages is limited by La.Civ.Code art. 3494. The claim for wages earned more than three years prior to the filing of suit has prescribed. Further, the judgment awarding damages in the amount of $95,321.75 is reversed in part. The judgment is amended to reflect that the plaintiff, Wayne Watkins, is entitled to reinstatement of the credit originally provided for by the Vermilion Parish School Board for military service rendered prior to the effective date of July 26, 1972. This matter is remanded to the trial court for entry of judgment awarding this credit and for the determination of the award of past due wages. Costs of this proceeding are assessed equally to the plaintiff, Wayne Watkins, and to the defendant, St. Martin Parish School Board.

EXCEPTION OF PRESCRIPTION MAINTAINED IN PART; JUDGMENT REVERSED IN PART, AFFIRMED IN PART. REMANDED WITH INSTRUCTIONS.

      . It appears that the title of the Personnel Director's position changed at some point to that of Human Resources Director.

      . Ms. Beebe’s testimony along with post-trial filings indicates that the School Board has since repealed the policy at issue and adopted a revised policy.

      . La.R.S. 17:419, et seq. relate to the minimum salary schedule for public elementary and high, school teachers.

      . The Act became effective July 26, 1972.

      . Contra non valentem is a jurisdictional doctrine that prevents the running of prescription in the following four instances:
      (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this [2004-0646 La. 12] ignorance is not induced by the defendant.

        Carter v. Haygood, 04-646, pp. 11-12 (La. 1/19/05), 892 So.2d 1261, 1268.


author: COOKS, Judge.

text:
    Carla Sue YOUNG v. JACK IN THE BOX, INC., et al.
    No. 05-1573.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Steven Broussard, Broussard & Hart, L.L.C., Lake Charles, LA, for PlaintiffiAp-pellant, Carla Sue Young.
    Kirk L. Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Ap-pellee, Jack In The Box, Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   COOKS, Judge.

11 Carla Sue Young alleged she was injured on September 22, 2003 while engaged in the course and scope of her employment at a Jack in the Box restaurant in Sulphur, Louisiana. On December 1, 2003, Ms. Young filed a claim for past due workers’ compensation benefits. On February 3, 2004, Ms. Young filed a Motion for Summary Judgment, which was granted on the issue of course and scope. A second Motion for Summary Judgment was filed on October 8, 2004. Shortly before a hearing was held, the parties reached a settlement on Ms. Young’s claim for past due benefits.

Counsel for Ms. Young sent a signed letter reciting the settlement terms to defendant’s counsel. A notation was made in the margin by the employer’s counsel stating: “We do not agree to this, but should not be a problem.” The notation was next to a penalty clause which set forth: “The payments are to be funded within 10 days. If payment is not made timely, there will be a $100 per day penalty.”

According to counsel for Ms. Young, the attorneys discussed the penalty clause over the phone and agreed to change the terms. Counsel for the employer then faxed a second copy of the letter with an additional notation acknowledging the change. That notation stated: “As we discussed after Fax # 1, if not, will bear legal interest from that date.” The employer’s counsel signed his name below the notation.

The employer’s counsel prepared several settlement packages for the workers’ compensation judge (WCJ) which, according to Ms. Young, contained terms that were not agreed upon. Changes were made and unconditional payment was received on May 6, 2005. That date was ninety-five (95) days after the settlement agreement was signed. The payment tendered by the employer corresponded exactly to the settlement terms, including legal interest from February 10, 2005 as stipulated to by lathe parties.

Because the payment was over thirty days late, Ms. Young sought penalties and attorney fees under La.R.S. 23:1201(G). The WCJ denied penalties, reasoning as follows:

Mr. Broussard [counsel for Ms. Young] wrote a letter to Mr. Landry [counsel for the employer] outlining an agreement based upon their settlement discussions. Mr. Landry responded to that letter by indicating he did not agree to the penalty provision outlined in the letter. And while the dispute only appears to be a small point of contention, it was still a dispute. To accept this agreement would be to ignore the workmen’s compensation settlement statute.
Based on the evidence presented, the court finds no binding enforceable settlement agreement in place on January 31st, 2005. Documentary evidence clearly shows that the parties did not agree to all points set forth by the letter.

Ms. Young appealed the judgment, asserting the workers’ compensation judge erred in finding the January 31, 2005 settlement was not binding and enforceable.

ANALYSIS

We must first decide whether the January 31, 2005 settlement, signed by both parties, was enforceable. When a settlement is for a lump sum to resolve all claims, a party’s right to enforce the settlement agreement is dictated by La.R.S. 23:1271 and 1272. Trahan v. Coca Cola Bottling Co. United, 04-100 (La.3/2/05), 894 So.2d 1096.

However, as Ms. Young notes, the settlement in question here is for past due benefits and does not preclude her from receiving benefits in the future. In Trahan, 894 So.2d 1096, the Louisiana Supreme Court noted when a settlement does not |sforego future claims, La.Civ.Code art. 3071 directs whether a settlement is enforceable. The Trahan court stated:

Utilizing Article 3071 in this case does not frustrate the stated policy that it is in the best interest of the injured worker to receive benefit payments on a periodic basis. Claimant in this case has merely agreed to compromise outstanding claims from the date of the agreement. He reserved his rights to all future compensation and may continue to receive weekly benefits. The safeguards provided by La.R.S. 23:1271 through 1274, which were designed to prevent an employee from being coerced due to the economic pressures on an injured worker to settle quickly, Colbert [v. Louisiana State Univ. Dental Sch.], 446 So.2d [1204] at 1206 [La.1984], and to provide weekly benefits, rather than lump sum payments, sufficient to provide ongoing support for the injured worker, Gauthier v. General Acc. Fire & Life Assur. Corp., Ltd., 573 So.2d 462, 465 (La.1991), are not immediately necessary where the claimant has reserved his rights to future benefits and is not agreeing to a full and final discharge and release of his employer from liability under the Act. Furthermore, there is no allegation or indication that claimant was coerced in any way by defendant to enter into the agreement or that the agreement was deceitful or unfair.

The settlement in question did not dispose of Ms. Young’s right to future benefits; thus, under Trahan, La.Civ.Code art. 3071 controls whether the settlement is enforceable.

Louisiana Civil Code article 3071 provides:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

After the initial disagreement concerning the penalty clause, the attorneys discussed their differences and agreed to change the terms. A second copy of the letter was faxed with an additional notation acknowledging the change. The ^employer’s counsel signed his name below the notation. This second copy of the letter was signed by the legal representatives of both parties on January 31, 2005 and evidences the parties intent to enter into a binding settlement. We find this letter constitutes a compromise which was sufficiently “reduced to writing,” as defined by article 3071, and was made for the purpose of putting an end to pending claims. The WCJ erred in concluding that the January 31, 2005 agreement was not a binding enforceable settlement.

Having found the parties entered into a binding enforceable settlement, we must next determine whether the settlement constituted a “final, non-appealable judgment” such that penalties and attorney fees may be awarded pursuant to La. R.S. 23:1201(G). The court in Trahan, 894 So.2d at 1108-09, addressed a similar situation and concluded as follows:

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. While the benefits conferred by the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Id. at p. 9, 737 So.2d at 46. La.R.S. 23:1201(G) is a penal statute which must be strictly construed. Smith v. Quarles Drilling Co., 04-0179, p. 7 (La.10/29/04), 885 So.2d 562, 566.
La.R.S. 23:1201(G) provides for penalties and attorney fees as follows:
G. If any award payable under the terms of a final, non-appealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this | RSubsection shall not exceed three thousand dollars in the aggregate.
Thus, if the compromise entered into by the parties on October 21, 2002, constitutes a “final, non-appealable judgment,” then claimant is eligible for an award of penalties and attorney fees, unless defendant’s failure to pay within thirty days resulted from conditions over which it had no control.
A compromise has the legal efficacy of a judgment that possesses “a force equal to the authority of things adjudged.” La.C.C. art. 3078. See also Ortego [v. State, Dept. of Transp. & Dev.], 96-1322 at p. 6[(La.2/25/97)], 689 So.2d [1358] at 1363; Brown v. Drillers, Inc., 93-1019 at p. 5[(La.1/14/94)], 630 So.2d [741] at 747. Additionally, “[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in the judgment rendered against him.” La. C.C.P. art. 2085. Although the term “confession” is not defined by the Code of Civil Procedure, the jurisprudence has defined it as “an admission by a party, in pleadings or in evidence, of the validity of his opponent’s claim in such a way as to leave no issue to be tried.” La. C.C.P. art.2085 cmt. (c).
We find the compromise entered into by the parties constitutes a confession of judgment such that defendant was not entitled to an appeal. By agreeing to pay certain sums to claimant in exchange for ending the pending litigation and reciting the specific terms of the agreement in open court, defendant confessed judgment in the proceeding. Defendant’s consent amounted to an admission of the validity of the claim against it. Because defendant confessed judgment, it could not appeal the compromise. We therefore conclude that the compromise entered into by the parties on October 21, 2002, included an award payable and constituted a final, non-ap-pealable judgment for purposes of La. R.S. 23:1201(G).
Defendant failed to unconditionally tender payment in accordance with the compromise within thirty days. Defendant contends, however, that its nonpayment resulted from conditions over which it had no control because it considered the execution of a receipt and release a condition of the settlement and because the hearing officer contemplated submission of settlement documents. As explained above, there is no evidence that the parties intended the compromise to be conditioned on the execution of a receipt and release and defendant’s assertions in this regard are untenable in light of the record. Claimant was well within his rights to refuse to sign the proposed receipt and release as such a document was not part of the compromise. Additionally, the compromise was established by law without the necessity of the hearing officer’s signature on any “settlement documents.” La. C.C. art. 3071 is clear that although the substance of the agreement may later be written in a more convenient form, the recitation in open court of the agreement confers upon the parties the right of judicial performance. Defendant’s contention that its nonpayment of the award resulted from conditions | fiover which it had no control because the hearing officer stated that she would sign off on settlement documents once they were presented is without merit.
Because the compromise was a final, nonappealable judgment and defendant’s failure to pay the award within thirty days after it became due did not result from conditions over which it had no control, the hearing officer did not err in awarding claimant penalties and attorney fees as provided by La.R.S. 23:1201(G).

The Trahan court held that enforceable compromises under La.Civ.Code art. 3071 are judgments for purposes of La.R.S. 23:1201(G). The court also held such a compromise is non-appealable under La. Code Civ.P. art.2085, thus triggering the penalty provision of La.R.S. 23:1201(G).

The employer below argued the settlement was not recited in open court, but was a written agreement. We find this distinction irrelevant, as La.Civ.Code art. 3071 provides the same legal effect for written settlements and settlements recited in open court. We find nothing in Trahan to indicate any distinction between the two forms of compromise under article 3071.

La.R.S. 23:1201(G) provides for penalties and attorney fees when payment is over thirty days delinquent. Payment in this case was sixty-five days late. La.R.S. 23:1201(G) provides for “twenty-four percent [of the award] or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater.” The article limits the maximum penalties available using the per day method to $300.00. However, calculating twenty-four percent of the award ($20,666.12), the amount of penalties due would be $4959.87. Since this is the greater amount, it is the appropriate award of penalties under La. R.S. 23:1201(G). Plaintiff requested $5,000.00 in attorney fees below, and additionally requests additional attorney fees for the work necessitated by this appeal. We find $7,500.00 is a reasonable amount of attorney fees in this matter.

IvDECREE

For the foregoing reasons, we reverse the OWC’s judgment finding the settlement of January 31, 2005 was not enforceable. We find it was a valid enforceable compromise pursuant to La.Civ.Code art. 3071. We also find the settlement constituted a final, non-appealable judgment under La.R.S. 23:1201(G), and pursuant to that statute, we award penalties of $4,959.87 and attorney fees of $7,500.00. All costs of this appeal are assessed to defendant-appellee, Jack in the Box, Inc.

REVERSED AND RENDERED.

      . La.R.S. 23:1272(A) provides:
      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 acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding. The workers’ compensation judge shall determine whether the employee or his dependent understands the terms and conditions of the proposed settlement.