author: JAMES F. MCKAY III, Judge.

text:
    Kevin A. PADUA v. Michael Townsend GRAY and Gray and Company, Inc.
    No. 2007-CA-0824.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Rehearing Denied Feb. 14, 2008.

      Donald J. Gisevius, Kenner, LA, for Plaintiff/Appellant.
    Dominic J. Gianna, John D. Person, J. McCaleb Bilbro, Marianne Garvey, Lezly L. Petrovich, Middleberg Riddle & Gianna, New Orleans, LA, Defendant/Appellee.
   (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.).

JAMES F. MCKAY III, Judge.

| plaintiff/appellant, Kevin Padua (“Pa-dua”), appeals the dismissal of his case on the grounds of abandonment. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 1, 2001, Padua was involved in an automobile accident with defendant/ap-pellee, Michael Townsend Gray. The defendant’s vehicle was owned and self-insured by Gray and Company, Inc. On May 28, 2002, Padua filed suit against Mr. Gray and Gray and Company, Inc. (collectively referred to as “Gray”). Gray answered the petition with a general denial. On June 24, 2003, Gray propounded a request for production of documents upon Padua. Padua answered the discovery request on July 8, 2003. Thereafter, no step was taken on the record until July 26, 2006, when Gray filed an ex parte motion and order to dismiss on the grounds of abandonment pursuant to La. C.C.P. art. 561.

On August 3, 2006, Padua filed a response to the ex parte motion to dismiss, requesting that the court deny the motion to dismiss or, in the alternative, reinstate his case. On August 10, 2006, the trial court signed the ex parte order dismissing Padua’s case with prejudice.

| ¡.For reasons not apparent from the record, Padua was not served with the order of dismissal until January 25, 2007. Thereafter, on January 31, 2007, Padua filed a motion to reset his case (in effect, a motion for new trial). The matter was heard on March 2, 2007.

In support of the motion to reset, Pa-dua’s attorney, Donald Gisevius, argued that the case was not abandoned because on August 26, 2005 (three days before Hurricane Katrina struck), his office mailed a notice of deposition, scheduling the deposition of Mr. Gray for October 10, 2005, to Gray’s attorney, Dominic Gianna. Mr. Gianna presented the trial court with affidavits attesting to the fact that his office never received the August 26, 2005 correspondence and notice of deposition from Mr. Gisevius’ office. Mr. Gianna also argued to the court that Mr. Gisevius unilaterally scheduled the deposition after having no communication with Mr. Gianna for over two years. It was also pointed out that despite Mr. Gisevius’ returning to New Orleans near the end of September of 2005, he made no attempt to proceed with the deposition that he scheduled for October 10, 2005, did not contact Mr. Gianna regarding the deposition, and did not communicate with Mr. Gianna until after the abandonment motion was filed in late July of 2006.

On March 7, 2007, the trial court rendered judgment denying Padua’s motion to reset. In Reasons for Judgment, the trial court stated:

Furthermore, the court finds that under the facts of this ease, mailing defense counsel Notice of Deposition did not constitute a step in prosecution. First, it appears that prior to counsel for plaintiff mailing the Notice of Deposition to defense counsel on August 26, 2005, the attorneys had not corresponded or spoken with one another for over two years. And, despite this long period of inactivity, and in total disregard of customary local trial practice, counsel for plaintiff just arbitrarily selected a date for the deposition and mailed a notice to defense counsel. Three days after counsel for plaintiff mailed the notice, the New Orleans area was hit by Hurricane Katrina and then widespread flooding which resulted in months of turmoil and great | ^disruption in all services including mail service. Yet, as of July 2006, some eleven months later, counsel for plaintiffs had made no attempt to ascertain if defense counsel had received the notice, had made no attempt to re-set the deposition, and had made no attempt to even contact defense counsel. And, to this date, counsel for plaintiffs has never filed a Notice of Deposition with the Clerk of Court. Under these circumstances, the court finds that the mailing of a Notice of Deposition which was never received is not a step in the prosecution of the case so as to interrupt the running of time under CCP article 561.

Padua filed this timely appeal arguing that the trial court erred in dismissing his case on the grounds of abandonment.

STANDARD OF REVIEW

Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Lyons v. Dohman, 2007-0053, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 771, 774. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law which we review by simply determining whether the trial court’s interpretative decision is correct. Olavarrieta v. St. Pierre, 2004-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568.

DISCUSSION

The issue presented here is whether the mailing of a deposition notice to opposing counsel may be deemed a “step” in the prosecution of the case where the notice was neither filed with the trial court nor received by opposing counsel.

Abandonment is governed by La. C.C.P. art. 561, which reads, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit |4which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The Louisiana Supreme Court has construed article 561 as imposing three requirements on plaintiff to avoid abatement: (1) The plaintiff must take some “step,” which is defined as any formal action before the court intended to hasten the suit toward judgment, in the prosecution of the lawsuit; (2) The step must be taken in the proceeding, and with the exception of formal discovery, must appear in the record of the suit; and (3) The step must be taken within the legislatively prescribed time period of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784. See also Meyers ex rel. Meyers v. City of New Orleans, 2005-1142, p. 3 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721.

The jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Clark, 2000-3010, p. 8, 785 So.2d at 785. That is to say, “abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.” Id. at 786. It is further recognized that abandonment is not a punitive measure-it is designed to discourage frivolous lawsuits by preventing plaintiffs from letting them linger indefinitely. Benjamin-Jenkins v. Lawson, 2000-0958, p. 3 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, 895.

As we stated in Bibeau v. Forest Manor Nursing Home, 2005-0181, p. 3 (La.App. 4 Cir. 8/18/05), 917 So.2d 1123, 1125, “the abandonment rule implicates two | ^competing policies. The prevention of protracted litigation, filed for purposes of harassment or without serious intent to hasten the claim to judgment, is balanced against the maintenance of an action whenever possible so as to afford an aggrieved party his day in court.”

In this case, the trial court concluded that under the circumstances presented, “the mailing of a Notice of Deposition which was never received is not a step in the prosecution of the case.” We agree.

The jurisprudence has established that the proper mailing of a discovery notice or response to a discovery request is considered a step in the prosecution of the case where it is shown the correspondence was in fact received. See Charpentier v. Goudeau, 95-2357 (La.App. 4 Cir. 3/14/96), 671 So.2d 981; Breaux v. Auto Zone, Inc., 2000-1534 (La.App. 1 Cir. 12/15/00), 787 So.2d 322; Brister v. Manville Forest Products, 32,386, 32,387 (La.App. 2 Cir. 12/15/99), 749 So.2d 881.

Conversely, it is evident from the jurisprudence that when a discovery notice or response to a discovery request is mailed, the plaintiff has the burden of proving that the correspondence was actually received in order to be considered a step in the prosecution of the action.

In Lyons v. Dohman, 2007-0053 (La.App. 3 Cir. 5/30/07), 958 So.2d 771, the plaintiff argued that the trial court erred in dismissing his action for abandonment because his counsel mailed a letter to the clerk of court requesting that the matter be set for trial. Although the letter was never filed in the trial record, Lyons asserted that this action was a step in the prosecution that interrupted the three-year limitation provided in article 561. The trial court rejected Lyons’ | (¡argument because Lyons could not present evidence that the letter was actually received. On appeal, the Court stated:

The burden was on Lyons to prove, by extrinsic evidence, a permissible cause outside the record that prevented accrual of the three-year abandonment period. Moore v. Eden Gardens Nursing Ctr., 37,362 (La.App. 2 Cir. 6/25/03), 850 So.2d 998. That is to say, Lyons was required to present evidence for the record sufficient to set aside the trial court’s prior dismissal. Hica Steel Foundry & Upgrade Co. v. Arklatex Envtl. Consultants, Inc., 39,460 (La.App. 2 Cir. 4/6/05), 899 So.2d 802. Lyons failed in that burden of proof.
At best, Lyons established that the October 29, 2003 letter had been prepared for delivery. He failed to prove by extrinsic evidence that the letter was mailed to, delivered to, or received by the clerk of court. Indeed, there was no evidence that the letter ever left the office of Lyons’ counsel. In short, there was a total absence of any proof of facts prerequisite to reaching the question of whether the letter amounted to a step in the prosecution of the case.

Lyons, 2007-0053, p. 4, 958 So.2d at 774.

In Bias v. Vincent, 2002-642 (La.App. 3 Cir. 12/11/02), 832 So.2d 1153, the Third Circuit Court held that plaintiffs attorney failed to establish that she took a step in the prosecution of plaintiffs accident claim where there was no evidence that plaintiffs answers to defendant’s interrogatories and plaintiffs interrogatories were actually mailed to defendant’s attorney. The Court stated:

Had there been either some proof that the answers to Defendant’s interrogatories and Plaintiffs interrogatories to Defendant had been mailed to defense counsel or an admission by defense counsel that he had received the documents prepared by Plaintiffs counsel, Plaintiff would have prevailed. Likewise, had copies of those documents or the certification required by La.Code Civ.P. art. 1313 been filed in the record, this would have constituted sufficient proof to defeat Defendant’s motion to dismiss.

Bias, 2002-642, p. 5, 832 So.2d at 1156.

In the present case, it is undisputed that Padua’s notice of deposition was neither received by Gray nor filed with the court. This Court is mindful of the liberal interpretation to be afforded article 561. However, given the delays and|7inaction apparent from the record, we do not find that appellant displayed a real intent to hasten this matter to conclusion.

CONCLUSION

For the foregoing reasons, we find no error on the part of the trial court in determining this action to be abandoned pursuant to article 561. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

MURRAY, J., dissents and assigns reasons.

MURRAY, J., dissents and assigns reasons.

|U find the trial court erred by dismissing the action on the basis of abandonment. La. C.C.P. art. 561(B) provides:

Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The plaintiffs counsel submitted proof by affidavit that the notice of deposition was placed in the mail to defense counsel’s office on August 26, 2005, three days prior to Hurricane Katrina’s landfall. Moreover, the trial court apparently believed that the notice had been mailed, as evidenced by its Reasons for Judgment, which state: “... the court finds that under the facts of this case, mailing defense counsel Notice of Deposition did not constitute a step in prosecution.” (Emphasis added.)

I find this conclusion of the trial court to be contrary to the law as expressed in the Louisiana Code of Civil Procedure. La. C.C.P. art. 1313(A) provides that every pleading subsequent to the original petition may be served by:

(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.

La. C.C.P. article 1474 further provides that all discovery notices that are required to be in writing and to be served on the adverse party may be served in accordance with Article 1313. Moreover, Part (C) 4 of Article 1474 states:

|gThe serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings.

In view of this law, I believe that once the trial court found that the notice of deposition had been mailed prior to the expiration of the abandonment period, it was an error of law for the court not to conclude that this mailing constituted a step in the prosecution of the case which precluded abandonment. See Charpentier v. Goudeau, 95-2357 (La. App. 4 Cir. 3/14/96), 671 So.2d 981. Considering that the abandonment statute is to be interpreted liberally in favor of maintaining actions, I would reverse the trial court’s ruling and remand the matter to that court.

Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Louellen SMITH, Plaintiff-Appellee, v. ACADIANA MORTGAGE OF LOUISIANA, INC., Defendant-Appellant.
    No. 42,795-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2008.

      Robin S. Harvill, Bossier City, Jennifer W. Hilburn, Shreveport, for Appellant.
    Walter D. White, Shreveport, for Appel-lee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   WILLIAMS, J.

11 Plaintiff, Louellen Smith, filed a petition against defendant, Acadiana Mortgage of Louisiana, Inc. (“Acadiana Mortgage”), seeking unpaid wages, penalties and attorney fees pursuant to LSA-R.S. 23:631, 632. Following a trial, the court ruled in favor of plaintiff, finding that Acadiana Mortgage owed plaintiff $755.60 in past due wages. The trial court also found that Acadiana Mortgage arbitrarily and unreasonably failed to pay plaintiff and awarded penalty wages in the amount of $115.36 per day for a period of 90 days ($10,382.40) and attorney fees in the sum of $4,000. For the following reasons, we affirm the trial court’s judgment.

FACTS

Plaintiff, Louellen Smith, was employed by Acadiana Mortgage as a mortgage processor from February 20-March 10, 2006. She was terminated on March 10, 2006.

Kara Lowrie, Acadiana Mortgage’s owner/operator, testified that she and other office employees observed plaintiff talking on her cellular telephone “a lot.” However, Lowrie stated that she “was willing to give [plaintiff] a lot of extra latitude” because plaintiff was trying to sell her house in another city and purchase another house locally. Lowrie also testified that she noticed that plaintiff was not performing her job duties, but she took into consideration plaintiffs status as a new employee. Lowrie stated that she expected plaintiff to “hit the ground running” because of plaintiffs lengthy experience in the mortgage business. Lowrie also stated that she attempted to gauge plaintiffs strengths and weaknesses and she checked in with her “several times a day” to see if plaintiff was ^experiencing any problems.

On February 28, 2006, Lowrie met with plaintiff to review job expectations. During the meeting, plaintiff expressed no concerns or questions with regard to her responsibilities or Lowrie’s expectations. According to Lowrie, on March 6, 2006, she met with plaintiff again “to get to the bottom of her problem [and] to figure out again if there was something I could do to get her back on track....” Lowrie asked plaintiff if she wanted to continue to work for the company, and plaintiff assured her that she did and that she would “work on it.” Lowrie testified that plaintiff did not change her behavior after the meeting. Lowrie later discovered that plaintiff had been conducting a large amount of personal activity on her work computer, including sending personal e-mails within minutes of her prior counseling meetings.

Lowrie testified that a senior loan processor with plaintiffs experience should have been able to process 80-40 loans at one time. However, plaintiff did not process any loans during her employment with Acadiana Mortgage.

Sabrina Lonadier, Lowrie’s executive assistant, testified that the office was “really busy” and there was “plenty to do” during the time plaintiff worked there. However, plaintiff was not completing her duties because of personal telephone calls and emails. Lonadier also testified that Lowrie had instructed employees to come to her for additional work if they did not have enough to do, but plaintiff never asked for additional work.

Carla Durfee, Acadiana Mortgage’s office manager, testified that she |snoticed that plaintiff spent the majority of her time viewing items on the internet, sending and responding to personal e-mails and engaging in “many, many personal phone calls.” Durfee also testified that she had observed plaintiff taking breaks without clocking out.

Christine Shifflett, another employee, testified that she had observed plaintiff making personal telephone calls during work hours. Shifflet also stated that employees had adequate work to do “most of the time,” and employees had been instructed to request additional work if they did not have enough to do. Shifflett testified that she had observed plaintiff requesting additional work.

Plaintiff testified that she had been in the mortgage business for approximately 15 years prior to her employment with Acadiana Mortgage, but she had no experience processing and closing loans. She stated that her prior experience primarily consisted of auditing and mortgage loan underwriting. Plaintiff also stated that she was not given any work to do for the first three days of her employment with Acadiana Mortgage, despite her repeated requests, for work. She testified that she utilized her time at work talking to other employees and browsing the internet “out of sheer boredom.” Plaintiff stated that she worked on selling her house when she “had nothing else to do,” and she would not have been conducting personal business on company time if she had work to do.

Plaintiff admitted to using the internet during work hours. She testified that she accessed various web sites to assist her in performing her job duties because she had never processed or underwritten Federal Housing ^Administration or Veteran Affairs loans. Plaintiff stated that she sought internet assistance to familiarize herself with the guidelines pertinent to those types of loans. Plaintiffs cell phone records showed that she had used 18 minutes of airtime during work hours over the three weeks that she was employed by Acadiana Mortgage.

Plaintiff testified that the door was locked when she arrived to work on March 10, 2006. She stated that she noticed vehicles in the parking lot and saw employees inside the building, but no one answered the door when she knocked. Plaintiff testified that Durfee eventually unlocked the door and informed her that Lowrie wanted plaintiff to wait in the lobby until Lowrie arrived. When Lowrie arrived, plaintiff was escorted to Lowrie’s office and terminated. Plaintiff testified that Lowrie asked, “[I]f you had to say how many days you have actually worked since you have been here, what would you say?” Plaintiff responded, “[Biased on what you have given me to do, [a] day, day and a half.”

At the conclusion of plaintiffs employment, her time records reflected a total of 67.60 hours worked from February 27-March 10, 2006. Plaintiffs hourly wage was $14.42. Lowrie determined that plaintiffs time cards did not accurately reflect the number of hours she had actually worked, so she prepared plaintiffs final paycheck by subtracting four hours per day for every day plaintiff had worked. Lowrie adjusted plaintiffs time records and compensated her for 15.10 hours, which included 1.85 hours for sick/personal leave that plaintiff had taken. Thus, Low-rie paid plaintiff $217.75, rather than $973.35.

IsOn April 10, 2006, plaintiff made a written demand for unpaid wages. When Acadiana Mortgage failed to respond, on May 3, 2006, plaintiff filed a petition for unpaid wages, penalties and attorney fees. Following a trial, the trial court ruled in favor of plaintiff, finding that Acadiana Mortgage owed plaintiff $755.60 in past due wages. The trial court also found that Acadiana Mortgage arbitrarily and unreasonably failed to pay plaintiff and, pursuant to LSA-R.S. 23:632, awarded penalty wages in the amount of $115.36 per day for a period of 90 days ($10,382.40) and attorney fees in the sum of $4,000. This appeal followed.

DISCUSSION

Unpaid Wages

Acadiana Mortgage contends the award of past due wages was not supported by the evidence. It argues that plaintiff admitted she had not worked a full day since her first day of employment and her wages were adjusted accordingly.

LSA-R.S. 23:631(A)(l)(a) provides:

Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

It shall be the duty of each employer to inform his employees at the time of hire what wages they will be paid, the method in which they will be paid and the frequency of payment along with any subsequent changes thereto. LSA-R.S. 23:633.

| Jn the instant case, it is undisputed that plaintiff was an “at-will” employee, pursuant to LSA-C.C. art. 2747. It is also undisputed that plaintiff was an hourly employee, earning $14.42 per hour. According to plaintiffs time card, she was present for work 67.5 hours during the February 27-March 10, 2006 pay period. Acadiana Mortgage determined that plaintiff had only “worked” 15 .10 hours during that pay period and deducted sums from plaintiffs pay without notice.

In finding in favor of plaintiff, the trial court stated:

Essentially, Defendant’s position was that any and every employer is free to observe the literal “sweat of the brow” before computing wages and then adjust hourly compensation accordingly. Although there was evidence in this case which established Smith was in fact conducting some personal business on company time, the Court finds the chosen recourse of the Defendant unacceptable under Louisiana law. Defendant’s contention that the spirit of [LSA-R.S.] 23:631 provides a tool for employers to avoid liability for wages that were not “earned” in the literal sense of the word is nonsensical. Our State provides a powerful remedy for the dissatisfied employer: the employment-at-will doctrine. Our State does not provide, however, that such an employer may continue to benefit from the presence of an employee, fail to properly supervise and adequately assign the employee, then unilaterally violate the terms and conditions of employment by adjusting the employee’s pay as the employer sees fit.

We agree with the trial court. Plaintiff was present and available to work for 67.5 hours during the relevant time period. Plaintiff stated during the exit interview and at trial that the amount of work she completed was based on the amount of work Lowrie assigned to her. As noted above, the [7terms of plaintiffs employment dictated that she was to be paid according to the hours worked, not according to the number of assignments or loan applications completed. Lowrie testified that she observed plaintiff not working and performing personal tasks during work hours, yet she did little to correct plaintiffs actions. Plaintiff was not assigned additional work, and there was no indication that Lowrie demanded completed loan applications from plaintiff. In fact, Lowrie made multiple excuses for plaintiffs lack of performance and she admitted that she was willing to give plaintiff “a lot of extra latitude.” As the trial court pointed out, Lowrie’s remedy for plaintiffs actions is clearly set forth in the employment-at-will doctrine. It would be grossly unfair to allow an employer to unilaterally determine the amount of time an employee has actually spent “working,” then calculate wages based on that determination. Therefore, we affirm the trial court’s determination that plaintiff was entitled to wages for the full 67.5 hours recorded on her time card. This assignment is without merit.

Penalty Wages

Acadiana Mortgage also contends the trial court was manifestly erroneous in concluding that plaintiff was entitled to penalty wages. Acadiana Mortgage denies that it acted in bad faith; therefore, the payment of penalty wages was not justified.

A trial court’s findings of fact with regard to whether a plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error or unless clearly wrong. Keiser v. Catholic Diocese of Shreveport, Inc., 38,797 (La.App.2d Cir.8/18/04), 880 So.2d 230; Loup v. Louisiana State School for the Deaf, 98-0329 (La.App. 1st Cir.2/19/99), 729 So.2d 689.

The two-part test for the appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court; and (2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See, Stobart v. State, Dept. of Transp. & Dev., 617 So.2d 880 (La.1993).

LSA-R.S. 23:632 provides, in pertinent part:

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....

In order to recover penalty wages and attorney fees under LSA-R.S. 23:632, the claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer failed to pay upon demand. Becht v. Morgan Bldg. & Spas, Inc., 2002-2047 (La.4/23/03), 843 So.2d 1109; Keiser, supra.

An employee is entitled to recover penalty wages if he or she proves that the employer acted in an arbitrary or unreasonable manner. Dickerson v. Cajun Communications of Texas, Inc., 40,026 (La.App.2d Cir.8/17/05), 910 So.2d 477; Robinson v. Apria Healthcare, Inc., 38,438 (La.App.2d Cir.5/27/04), 874 So.2d 418. Penalty wages are penal in nature and must be strictly construed. Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619; Robinson, supra. LSA-R.S. 23:632 was designed to compel prompt payment of wages upon an employee’s discharge or resignation. Id.

In the instant case, for the reasons set forth above, we find that plaintiff satisfied her burden of proof under LSAR.S. 23:632. She proved that (1) Acadiana Mortgage owed her wages at the time of her termination; (2) she made written demand upon Acadiana Mortgage by certified mail at its customary place of business, which is where she was customarily paid; and (3) Acadiana Mortgage failed to pay upon demand.

We do not find that the trial court was clearly wrong in concluding that Acadiana Mortgage’s actions were arbitrary or unreasonable. Thus, Acadiana Mortgage was required to prove an equitable defense to its liability for unpaid wages.

A claim for penalty wages under LSA-R.S. 23:632 may be defeated by an equitable defense. Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233; Keiser, supra. However, it is only “a good-faith, non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability,” which permits a court to excuse the employer from the imposition of penalty wages. Carriere v. PeeWee’s Equipment Co., 364 So.2d 555 (La.1978); Keiser, supra.

An employer’s reliance on an unlawful company policy does not constitute a good faith, non-arbitrary defense to liability for unpaid wages under LSA-R.S. 23:632. Beard, supra; Keiser, supra. However, Louisiana courts have recognized that an employer’s claim of setoff, or compensation, constitutes an equitable defense to a penalty wage claim. See Richard v. Vidrine Automotive Services, Inc., 98-1020 (La.App. 1st Cir.4/1/99), 729 So.2d 1174; Brown v. Navarre Chevrolet, Inc., 610 So.2d 165 (La.App. 3d Cir.1992); Demery v. Cook, 525 So.2d 157 (La.App. 3d Cir.1988).

In the present case, Acadiana Mortgage argues that it was entitled to “offset” plaintiffs wages pursuant to LSA-R.S. 23:635, which provides:

No person, acting either for himself or as agent or otherwise, shall assess any fines against his employees or deduct any sum as fines from their wages. This Section shall not apply in cases where the employees wilfully or negligently damage goods or works, or in cases where the employees wilfully or negligently damage or break the property of the employer, or in cases where the employee is convicted or has pled guilty to the crime of theft of employer funds, but in such cases the fines shall not exceed the actual damage done.

We must point out that Acadiana Mortgage has never contended that plaintiff damaged its goods or property or was convicted of theft of its funds. Rather, Acadiana Mortgage maintains that it was permissible to reduce plaintiffs wages based upon her statement that she had not worked a full day since her first day of employment.

The language of LSA-R.S. 23:635 is clear: “No person, acting either for himself or as agent or otherwise, shall assess any fines against his employees or deduct any sum as fines from their wages.” (Emphasis | t ¶ added). There is no statutory provision which allows an employer to unilaterally reduce the amount of wages owed an employee, absent the specific exceptions contained within Section 23:635. As the trial court so eloquently stated, “Our State does not provide, however, that such an employer may continue to benefit from the presence of an employee, fail to properly supervise and adequately assign the employee, then unilaterally violate the terms and conditions of employment by adjusting the employee’s pay as the employer sees fit.”

Lowrie did not inform plaintiff during the exit interview that her pay would be “adjusted” based on her statements; she decided to do so after the interview. On the bottom of plaintiffs final direct deposit voucher, Lowrie made the following handwritten notation: “Paycheck has been adjusted based on our exit interview and you informing me and Carla Durfee you have ‘barely worked a half-day since you started.’ ” We must yield to the trial court’s reasonable credibility evaluations and reasonable factual inferences in its finding that Lowrie’s actions were arbitrary and Acadiana Mortgage did not possess the good faith necessary to preclude the imposition of penalty wages.

Based on the foregoing, we find that plaintiff met her burden of proving that she was entitled to unpaid wages, and Acadiana Mortgage failed to prove an equitable defense to its liability for the unpaid wages. Accordingly, we affirm the award of penalty wages. This argument is without merit.

Attorney Fees

11?Acadiana Mortgage also contends the attorney fees awarded were excessive. It argues that the record does not support the award of $4,000 in attorney fees.

In employee payment cases, attorney fees are allowable under LSA-R.S. 23:632, which provides, in pertinent part:

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.

An award of attorney fees must be reasonable, based upon the degree of skill and work involved in the case, the number of court appearances, the depositions, and the office work involved. Linoski v. Fleetwood Homes of Texas, # 12, 38,338 (La.App.2d Cir.5/12/04), 873 So.2d 886; Gaston v. Bobby Johnson Equipment Co., Inc., 34,028 (La.App.2d Cir.11/3/00), 771 So.2d 848. Where the record does not detail the time and costs of an attorney’s services, a court may nonetheless fix the fee from the record. Mitchell v. Turner, 588 So.2d 1305 (La.App. 2d Cir.1991); James, Robinson, Felts & Starnes v. Powell, 303 So.2d 229 (La.App. 2d Cir.1974).

The factors to be taken into consideration in determining the reasonableness of attorney fees are as follows: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts | ^involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. State, Dept. of Transp. & Dev. v. Williamson, 597 So.2d 439 (La.1992).

The trial court is vested with considerable discretion in setting attorney fees and will not be disturbed absent an abuse of that discretion. Louisiana Safety Ass’n of Timbermen Self Insurers Fund v. Courtney Const. Co. of Alexandria, Inc., 41,564 (La.App.2d Cir.12/13/06), 949 So.2d 490; Minsky v. Shumate, 40,375 (La.App.2d Cir.3/10/06), 924 So.2d 488.

In the instant case, the following exchange took place:

THE COURT: [N]ow let’s talk about attorney’s fees here.
^[PLAINTIFF’S COUNSEL]: Yes, sir. I can only estimate. We’ve been up here one time before, Your Honor. There’s a brief. I would estimate twenty hours and that’s off the top of my head.
THE COURT: Okay, and what do you charge an hour?
[PLAINTIFF’S COUNSEL]: Two hundred.
THE COURT: That’s what four thousand, isn’t it?
[PLAINTIFF’S COUNSEL]: Yes, sir.
THE COURT: I think it’s worth that....

While no contract for legal services was introduced into evidence, plaintiffs counsel stated on the record his hourly rate and the hours he had expended preparing for and trying the case. Counsel’s work in this case resulted in an award of over $11,000 in favor of his client; preparing and carrying the case through trial entailed great responsibility by counsel, and counsel’s presentation of the case reflected the effort, skill and knowledge required of him. The case was tried in one day; however, the volumes of exhibits and the length of the trial are just a small reflection of the time required for preparation of the matter for trial. The facts of the case were not complicated, but the evidence to establish plaintiffs claim required investigation, diligence and skill of counsel. Moreover, handling the case on this appeal required additional legal work.

In Barrilleaux v. Franklin Foundation Hosp., 96-0343 (La.App. 1st Cir.11/8/96), 683 So.2d 348, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864, the plaintiff, who had resigned her employment, filed suit against her employer for compensation due. The court awarded the plaintiff attorney fees in the amount of $4,643.75. The court denied the plaintiffs request for 11sadditional attorney fees for the work performed on appeal, finding that an increase was not warranted because the amount awarded in the trial court was sufficient to compensate counsel.

In Kern v. River City Ford, Inc., 98-0407 (La.App. 1st Cir.2/19/99), 754 So.2d 978, a former employee filed suit against an employer seeking unpaid wages. The plaintiffs counsel submitted into evidence a bill, requesting attorney fees in the amount of $1,883.25. The court awarded $2,000 in attorney fees for work performed through the trial, and an additional $1,500 for work performed on appeal.

Considering the factors set forth in Williamson, supra, as well as the cases cited above, we find that the award of $4,000 in attorney fees was not an abuse of the trial court’s discretion. Accordingly, we affirm the trial court’s decision in this regard.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed. Costs of this appeal are to be borne by defendant/appellant, Acadiana Mortgage.

AFFIRMED.

      . LSA-C.C. art. 2747 provides:
      A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.

      . These factors are derived from Rule 1.5(a) of the Rules of Professional Conduct, which provides:
      (a) A lawyer’s fees shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) The fee customarily charged in the locality for similar legal services;
      (4) The amount involved and the results obtained;
      (5) The time limitations imposed by the client or by the circumstances;
      (6) The nature and length of the professional relationship with the client;
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) Whether the fee is fixed or contingent.


author: PETERS, J.

text:
    FRENCH MARKET FOODS OF LA., INC. v. ATTERBERRY IDEALEASE, INC., et al.
    No. 07-1035.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      R. William Codings, Codings & Codings, A.P.L.C., Lake Charles, LA, for Plaintiff/Appellee, French Market Foods of La., Inc.
    J. Patrick Hennessy, Attorney at Law, Shreveport, LA, for Defendant/Appellant, Twin State Trucks, Inc.
   Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.

PETERS, J.

bin this appeal, Twin State Trucks, Inc., d/b/a Twin State Idealease (Twin State), seeks reversal of a default judgment for $10,083.24 plus attorney fees rendered against it in favor of French Market Foods of Louisiana, L.L.C. (French Market). For the following reasons, we reverse the award of attorney fees but affirm the remainder of the judgment.

DISCUSSION OF THE RECORD

On May 21, 2007, French Market filed suit against Twin State and another defendant, Atterbery Idealease, Inc. (Atter-bery). In its petition, French Market stated the following concerning its claim for damages:

Plaintiff executed a Vehicle Lease and Service Agreement with Atterbery Idealease, Inc. on August 30, 2006 regarding a 2007 International 4300LP, VIN 1HTMNAAL07II525169. At the request of plaintiff, this vehicle underwent some modifications (installation of a handrail) which were performed at the facility of the defendant, Twin State Idealease. Defendant, Atterbery Ideal-ease, Inc. contracted with the defendant, Twin State Idealease, for the performance of these modifications. During the course of these modifications, the serviceman at Twin State Idealease disconnected the battery and failed to reconnect the battery after the modifications were completed. This vehicle is a refrigerated truck which contained plaintiffs product at the time the battery was disconnected. The prolonged disconnection of the battery resulted in the loss of plaintiffs product valued at $10,083.24, an itemization of which is attached hereto and made a part hereof.

French Market attached to its petition (1) a copy of an April 26, 2007 demand letter, addressed to both Twin States and Atter-bery, advising the two entities of the particulars of its claim and making demand for payment of $10,083.24 as the value of the lost product and an additional $3,357.72 (one-third of the amount of damage claimed) as attorney fees, and (2) an itemized statement setting forth the specific products lost and the value of each.

|aTwin State received service and citation of the petition on May 31, 2007, but failed to timely answer or otherwise respond to the suit. On July 3, 2007, at the written request of French Market, the trial court rendered judgment against Twin State and in favor of French Market in the amount of $10,083.24, interest, court costs, and attorney fees in the amount of one-third of the principal and interest. Twin State has appealed this judgment asserting three assignments of error: (1) the trial court erred in rendering a judgment in this matter without a hearing in open court; (2) the trial court erred in rendering a judgment in this matter on the basis of inadmissible and insufficient evidence; and (3) the trial court erred in awarding attorney fees.

OPINION

Assignment of Error No. 1

Twin State first asserts that the trial court erred in entering a default judgment without first having a hearing in open court. It bases this assertion on the argument that the underlying request for relief is delictual in nature, thus requiring a hearing before relief can be granted. In considering this assignment of error, we first note that La.Code Civ.P. art. 4904(C) provides that, in city court, “[w]hen the sum due is on an open account, promissory note, negotiable instrument, or other conventional obligation, a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held.” The obvious implication to this language is that if the claim does not fit within any of these categories, a hearing is required.

l,Jn the matter now before us, Twin State’s failure to reconnect the battery sounds in negligence, not in contract. However, as pointed out by French Market in its brief, the negligent act arose from a custodial arrangement whereby French Market delivered the truck it had leased from Atterbery to Twin State for the completion of certain modifications not related to the truck’s cargo. In doing so, it expected Twin State to preserve the truck and its cargo as delivered, and to return it in kind. This relationship, French Market asserts, is that of the conventional obligation of deposit. We agree.

Louisiana Civil Code Article 2926 describes a deposit relationship as “a contract by which a person, the depositor, delivers a movable thing to another person, the depositary, for safekeeping under the obligation of returning it to the depositor upon demand.” The delivery of a car to a repairman constitutes a compensated deposit. Alexander v. Qwik Change Car Ctr., 352 So.2d 188 (La.1977); Kirshner v. Johnson, 521 So.2d 697 (La.App. 1 Cir. 1988). Thus, defendant was a compensated depositary under Louisiana law.

Because a contract of deposit is a conventional obligation, La.Civ.Code art. 2927, a hearing in open court is not required. La.Code Civ.P. art. 4904(C). Therefore, we find no merit in this assignment of error.

Assignment of Error No. 2

In its second assignment of error, Twin State asserts that the trial court erroneously rendered its judgment on the basis of inadmissible and insufficient evidence.

In a suit against a depository, the depositor initially has the burden of proving the existence of the contract of deposit and that the thing deposited was not returned or was damaged. From proof of these facts, it may reasonably be inferred that the depository has not acted as a | ¿prudent administrator, and, thus, the depositor has established a pri-ma facie case of liability against the depository. Thereafter, the burden is on the depository to exonerate himself from fault.

Polk Chevrolet, Inc. v. Webb, 572 So.2d 1112, 1115 (La.App. 1 Cir.1990), writ denied, 575 So.2d 394 (La.1991) (citations omitted).

In support of its written request for judgment, French Market attached copies of the invoice and collection letter which were made a part of the original petition, as well as an affidavit of Larry J. Avery, who is described in the affidavit as the limited liability company’s managing member. In his affidavit, Mr. Avery asserted that the allegations of fact found in the pleadings were “true and correct, to the best of his knowledge, information and belief.” Based on the record before it, the trial court rendered judgment as previously described.

Louisiana Code of Civil Procedure Article 4904(B) provides that, in city court, a final judgment must be based on “relevant and competent evidence which establishes a prima facie case.” Additionally, “[i]n order for a plaintiff to obtain a default judgment, ‘he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant.’ ” Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993), quoting Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). Twin State asserts that the evidence presented did not meet that burden.

The general rule is that a default judgment is presumed to be correct and to have been rendered upon sufficient evidence. Perkins v. Fontenot, 548 So.2d 369 (La.App. 3 Cir.1989). However, when, as here, the record of a default confirmed without a hearing contains the entirety of the evidence before the trial judge, the appellate court is able to determine whether the evidence was competent and | ¡¡sufficient. The presumption is then unnecessary and does not attach. House of Raeford Farms of La., L.L.C. v. Justus Osei-Tutu, 41,586 (La.App. 2 Cir. 11/1/06), 942 So.2d 601. The trial court’s conclusion concerning the evidence’s sufficiency presents a factual issue, which this court will not reverse absent a finding of manifest error. Bordelon v. Sayer, 01-717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. The manifest error standard of review obligates appéllate courts to give great deference to the trial court’s findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989).

We find no manifest error in the trial court’s conclusion that French Market proved a prima facie case. The evidence established that the refrigerated truck was delivered to Twin States for repair while it was loaded with $10,083.24 in perishable foods, and that the foods were irreparably-damaged while the truck was in the possession of Twin States. See House of Raeford Farms of La., 942 So.2d 601 (finding that a sworn affidavit of correctness and an invoice were sufficient to establish that chicken was delivered to the defendant in good condition, that the defendant failed to deliver the chicken, and further established the amount of loss to the plaintiff.)

Assignment of Error No. 3

Finally, Twin State asserts that the trial court erred in awarding attorney fees. We agree. It is well-established that attorney fees are not allowed except where authorized by statute or contract. State, DOTD v. Williamson, 597 So.2d 439 (La.1992). We have found no statute providing for attorney fees when a plaintiff sues to recover from a depositary, and French Market did not introduce evidence of a | flcontract providing for attorney fees. Accordingly, we find that the trial court erred in awarding attorney fees.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s award of attorney fees, and affirm the default judgment as amended. We assess all costs of this appeal to Twin State Trucks, Inc., d/b/a Twin State Idealease.

AFFIRMED AS AMENDED.

      . Atterbery was served and timely filed an answer. Therefore, any claim that French Market may have against that defendant is not before us.

      . Both litigants in this appeal make reference to La.Code Civ.P. art. 1701, et seq., in their arguments. However, default judgments in city courts are governed by La.Code Civ.P. art. 4904.


text:
    STATE of Louisiana v. Patrick LANDRY.
    No. 07-1013.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Kenneth R. Martinez, Support Enforcement Services, Department of Social Services, Ville Platte, LA, for Plaintiff, State of Louisiana.
    Glenda Huddleston, Decuir & Huddle-ston, New Iberia, LA, for Defendant/Ap-pellee, Patrick Landry.
    Katie Boudreaux, New Iberia, LA, In Proper Person.
   Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.

PETERS, J.

|-iKatie Boudreaux appeals that portion of a trial court child support judgment rendered against Ms. Boudreaux’s former husband, Patrick Landry, awarding him the right to claim federal and state tax dependency deductions for the children affected by the support decree and restricting the means of enforcing a support arrearage judgment. For the following reasons, we reverse the trial court’s award of the tax dependency deductions to Mr. Landry, award those tax deductions to Ms. Boudreaux, and reverse as premature that portion of the trial court judgment restricting the means of enforcing a support arrearage judgment.

DISCUSSION OF THE RECORD

The record of the legal proceedings which have taken place between Ms. Bou-dreaux and Mr. Landry is voluminous, but the issues now before us relate only to certain basic facts, and we will restrict our review accordingly. Mr. Landry and Ms. Boudreaux were married on July 1, 1994, and divorced by judicial decree on January 17, 2003. Two children were born of that marriage: Katelyn Claire Landry, born October 5, 1994, and Benjamin Sean Landry, born October 5,1999.

During the initial divorce proceedings, the parties entered into an interim consent judgment wherein they agreed, among other things, that Ms. Boudreaux would be named sole custodian of the children and that Mr. Landry would pay her $700.00 per month as child support, commencing on October 15, 2001. On February 1, 2002, the State of Louisiana (state) filed a motion on behalf of Ms. Boudreaux seeking to have the state exercise concurrent jurisdiction for the enforcement and collection of her child support award and to have the monthly support obligation paid directly to the Support Enforcement Division of the Department of Social Services (department). This filing resulted in a trial court order dated March 7, 2002, which | ¡.recognized the $700.00 per month obligation but reduced Mr. Landry’s monthly obligation for the period from March 7 to June 5, 2002, to $400.00.

On October 28, 2002, Mr. Landry filed a motion seeking reduction of his support obligation. After a June 4, 2003 hearing, the trial court set Mr. Landry’s monthly support obligation at $460.00, effective April 1, 2003, and further determined that Mr. Landry was $1,272.70 in arrears. A motion to increase Mr. Landry’s support obligation, filed by Ms. Boudreaux on May 7, 2004, resulted in a recommendation of the hearing officer that Mr. Patrick’s obligation be increased to $613.00 per month. Ms. Boudreaux sought trial court review of this recommendation.

The trial court did not address Ms. Bou-dreaux’s request for review until November 2, 2006. At the hearing held that day, neither party presented any evidence. Instead, the parties announced to the trial court that they would stipulate that Mr. Landry’s support obligation should be set at $700.00 per month, that the support obligation should be made retroactive to June of 2004, and that Mr. Landry should be given credit for all amounts he had paid between June of 2004 and November of 2006 against the total amount now due. However, the parties | announced to the trial court that they could not agree to the division of federal and state dependency deductions for tax purposes.

The trial court accepted the stipulation with regard to the monthly support obligation, and proceeded to resolve the dispute with regards to dependency deductions in Mr. Landry’s favor. The trial court ultimately signed a judgment on March 8, 2007, wherein it recognized the stipulation concerning the amount of support and the credits to be awarded. With regard to the tax dependency exemption, the judgment provided that Mr. Landry would have the right to claim the tax dependency exemption for both children so long as he owed a balance on past due child support, and that once he became current on his child support obligation, he could still claim both children in even-numbered years and one child in odd-numbered years. With regard to collection efforts for past due child support, the trial court ordered that Ms. Boudreaux and/or the state could only collect the past due obligation through the interception of federal tax refunds that might be due Mr. Landry.

Ms. Boudreaux appealed this judgment, asserting three assignments of error:

1. The trial court committed manifest error by giving the non-domiciliary parent the dependency deductions when the non-domiciliary parent was in arrears.
2. The trial court committed manifest error by giving the non-domiciliary parent the dependency deductions which significantly harms the domiciliary parent.
3. The trial court committed manifest error by collecting the arrears of child support solely through tax intercepts and not on a monthly basis.

| ¿OPINION

The basic child support obligation owed by a parent to his or her child is normally calculated by use of the schedule found in La.R.S. 9:315.19. However, a trial court may deviate from the schedule. La. R.S. 9:315.17. With regard to the right to claim the federal and state tax dependency deductions, La.R.S. 9:315.18 provides:

A. The amounts set forth in the schedule in R.S. 9:315.19 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section.
B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.
C.The party who receives the benefit of the exemption for such tax year shall not be considered as having received payment of a thing not due if the dependency deduction allocation is not maintained by the taxing authorities.

(Emphasis added.)

In finding merit in Ms. Boudreaux’s first assignment of error, we first note that this issue only arose in the pretrial negotiations and was never addressed in pleadings. Thus, Mr. Landry never requested a contradictory hearing on this issue as required by La.R.S. 9:315.18(B)(1). Additionally, even assuming that the statements made by opposing sides in effecting the compromise of the support amount and the retroactive nature thereof could reasonably be considered a contradictory hearing, Mr. Landry [¿failed in his burden of proof. Specifically, in the stipulation, Mr. Landry acknowledges that he was in arrearage to some degree. Given the presumption of La.R.S. 9:315.18(A) and Mr. Landry’s failure to overcome that presumption by establishing that he was not in arrears, as required by La.R.S. 9:315.18(B)(1)(a), we find that the trial court erred in awarding Mr. Landry the tax dependency deductions. Because we find that Ms. Boudreaux’s first assignment of error has merit, we need not consider her second assignment of error.

We also find that the trial court erred in limiting the arrearage collection methods to tax refund intercepts, but not for the reasons raised in the assignment of error. Louisiana Code of Civil Procedure Article 1841 provides in pertinent part that-“[a] judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” Additionally, La.Code Civ.P. art. 3946(A) provides that

When a payment of support under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due support determined and made exec-utory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due support.

(Emphasis added.)

In the matter now before us, the amount of past due support has not been reduced to judgment. Thus, any consideration of limitations on the execution of judgment is premature. Therefore, the trial court erred in effecting the limitation. We note that, in finding that the trial court’s ruling is premature, we do not reach the issue of whether the trial court has authority to preclude Ms. Boudreaux or the state from | ¿using the collection vehicles available to them in collecting past due child support awarded by judgment.

DISPOSITION

For the foregoing reasons, we reverse that portion of the trial court judgment awarding Patrick Landry the federal and state tax dependency deductions and award those dependency deductions to Katie Boudreaux. We further reverse that portion of the trial court judgment prohibiting Katie Boudreaux and/or the State of Louisiana from collecting any past due child support judgment owed by Patrick Landry by any means other than by federal tax refund intercepts. We assess all costs of this appeal to Patrick Landry.

REVERSED AND RENDERED.

      . The order is silent as to Patrick’s obligation after June 5, 2002. However, we interpret the order to mean that Patrick’s obligation would again be $700.00 per month.

      . Despite the temporary nature of the March 7, 2002 judgment, Mr. Landry asserted in his motion that his current obligation was $400.00 per month.

      . The judgment does not specify whether Mr. Landry’s arrearage was as of April 1 or June 4, 2003.

      . According to the discussions between the trial court and the attorneys for the litigants, this compromise represented a $154.00 downward deviation from the support schedule found in La.R.S. 9:315.19. However, the judgment executed by the trial court describes the difference as only $54.00. Additionally, the discussion concerning Mr. Landry's support obligation established that his contribution of $700.00 per month would exceed fifty percent of the total support obligation owed by both parents.

      .None of the pleadings leading up to this hearing mention this issue. However, at the hearing on the motion, both parents indicated to the trial court that each sought the full tax dependency exemptions for both children.

      . No specific amount of arrearage was stipulated to. However, the fact that the parties agreed that Mr. Landry was to be given credit against what he owed for past months against that which he had paid during those months was evidence of an arrearage against which he presented no evidence to counter.

      . In addition to the remedies provided to judgment creditors in the execution of judgments as found in La.Code Civ.P. art. 2251 et seq., special collection vehicles have been established by statute to assist in the collection of past due child support. See La.R.S. 9:315.26 (seizure of federal tax refunds); La.R.S. 9:315.30 et seq. (judicial suspension of licenses which otherwise authorize an individual to drive a vehicle, hunt or fish, or participate in his or her profession or business); La.R.S. 9:315.40 et seq. (administrative suspension of licenses which otherwise authorize an individual to drive a vehicle, operate a motorboat or sailboat, hunt or fish, or participate in his or her profession or business).


author: PICKETT, Judge.

text:
    Dr. Fayez K. SHAMIEH (Rudolph Jackson) v. LIQUID TRANSPORT CORP., et al.
    No. 07-1282.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Rehearing Denied March 12, 2008.

      Thomas Allen Filo, Cox, Cox, & Filo, Lake Charles, LA, for Secondary Plaintiff/Appellant, Dr. Fayez K. Shamieh.
    Henry Clay Ward III, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Liquid Transport Corp. and Great West Casualty Company.
    Perry R. Staub Jr., Mark VanHorn, Larry E. Demmons, Taggart, Morton, Ogden, Staub & O’Brien, L.L.C., for Interve-nor, CCN Managed Care, Inc.
    Judy Y. Barrasso, Stephen L. Miles, Edward R. Wicker Jr., Barrasso, Usdin, Kup-perman, New Orleans, LA, for Other-Ami-cus for CCN: Liberty Mutual Insurance Co., Helmsman Management Services Co., Employers Insurance of Wausau.
   Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PICKETT, Judge.

11 Both appeals before this court, 07-1159 and 07-1282, come from the same proceedings, 05-4552, in the Office of Workers’ Compensation (OWC). In appeal 07-1159, the defendants, Liquid Transport Corporation and Great West Casualty Company, appeal a judgment from the OWC ordering the defendants to pay the plaintiff, Dr. Fayez Shamieh, $122.50 in under-payment on a medical bill for the plaintiffs treatment of Rudolph Jackson, a workers’ compensation claimant. The OWC also awarded Dr. Shamieh $4,000.00 in penalties ($2,000.00 for under-payment and $2,000.00 for late payment) and $3,950.00 in attorney’s fees. The plaintiff, Dr. Shamieh, also appeals seeking additional attorney’s for the work necessitated by this appeal. In appeal 07-1282, Community Care Network, Inc. (CCN), appeals a judgement of the WCJ denying its petition to intervene. We reverse the judgment of the Workers’ Compensation Judge (WCJ), on CCN’s petition to intervene, nullify the judgment signed July 25, 2007 (in appeal 07-1159), and remand the case for additional proceedings consistent with this opinion. We defer consideration of the plaintiffs request for additional attorney’s fees.

FACTS

The plaintiff, Dr. Shamieh, sought to recover the difference between what he was paid for his services to a patient, a workers’ compensation claimant, under a Preferred Provider Organization (PPO) agreement and what the workers’ compensation schedule of payments allowed. Dr. Shamieh is a member of the Lake Charles Physicians Hospital Organization (PHO). The PHO entered into a PPO contract with the intervenor/appellant CCN. In order to have claims(bills) processed [¡.and paid, CCN, either directly or indirectly, entered into contracts with Reny Co., Me-data Inc., and with one of the original defendants, Great Western Casualty Co.

The contract between CCN and PHO states in pertinent part as follows:

1. DEFINITIONS

1.01 “Beneficiary” or “Claimant” is a person as defined in the applicable Insuring Agreement who may be entitled to Health Care Services or Benefits.
1.02 “Insuring Agreement” is the contract, certificate, policy, plan document, or any other legally enforceable instrument issued or sponsored by a Payer under which a Beneficiary or Claimant may be entitled to or receive Health Care Services or Benefits.
1.03 “Health Care Services or Benefits” shall be any and all covered medical services or benefits for such services rendered or provided to a Beneficiary or Claimant under an Insuring Agreement.
1.04 “Reimbursement Amounts” are the amounts payable to Provider for Health Care Services or Benefits rendered or provided to a Beneficiary or Claimant pursuant to Payer Agreements between CCN and the respective Payors. Such | aReimbursement Amounts shall be established solely by CCN and Payers as specified in Exhibit A attached hereto and incorporated herein or as established by any state regulatory agency, whichever is less. Providers shall not individually or collectively with other providers determine or establish such Reimbursement Amounts.
1.05 “Payor” is an employer, insurance carrier, claims administrator, health care service plan, trust, nonprofit facility service plan, any governmental unit or any other entity which has an obligation to provide Health Care Services or Benefits to a Beneficiary or Claimant.
1.06 “Payor Agreement” is an instrument between a Payor and CCN or its authorized representative which provides for CCN providers, including Provider pursuant to this Agreement, to render Health Care Services or Benefits at Reimbursement Amounts determined and established by CCN and such Payor.
1.07 “Provider” is the provider group composed of members listed in Exhibit B, attached hereto, and incorporated herein.

2. HEALTH CARE SERVICES OR BENEFITS

2.01 Provider hereby agrees to provide Health Care Services or Benefits to Beneficiaries or Claimants as set forth in Beneficiary Agreements, at the Reimbursement Amounts determined and established by CCN through Payer Agreements with Payers, which Payer Agreements are incorporated herein by reference. Such Reimbursement Amounts are set forth in Exhibit A attached hereto and incorporated herein.
2.02 Provider agrees to accept the Reimbursement Amounts as payment in full for Health Care Services or Benefits rendered or provided, and not to seek additional payments or compensation from Beneficiaries or Claimants unless required or permitted to do so by the applicable Payer Agreement. The foregoing restriction shall not apply to deductibles and co-payments which may be collected by Provider in accordance with the provisions of the applicable Insuring Agreement, nor to services or benefits rendered to Beneficiaries or Claimants which are not covered by the applicable Insuring Agreement.
_1⅛ • •

4. AUTHORIZATION TO CONTRACT

4.01 Provider hereby specifically authorizes CCN to act on its behalf to contract for the provision of Health Care Services or Benefits at Reimbursement Amounts as set forth on Exhibit A.
4.02 Provider further authorizes CON, if applicable under the respective Payor Agreement, to coordinate and transmit billings to Payors for payment, on behalf of Provider.

6. COVENANTS OF CCN

CCN covenants and agrees to The following:

6.01 To accept sole responsibility for filing reports, obtaining approvals and complying with applicable laws and regulations of state, federal and other regulatory agencies having jurisdiction over CCN, provided however, that Provider agrees to cooperate by providing CCN with any | ^information and assistance reasonably required in connection therewith;

Even though CCN was a party to the contract with PHO, CCN was not originally a party in this suit. The record, i.e., testimony and documentary, indicates that CCN sought to intervene on more than one occasion. CCN’s last attempt to intervene, a written motion to intervene, filed June 19, 2007, the morning of the hearing, was denied. That action by the WCJ led to the filing of appeal 07-1282 which makes up part of this case.

LAW AND DISCUSSION

The linchpin of this appeal is the determination of whether CCN is an indispensable party to this litigation. Louisiana Code of Civil Procedure Article 641 provides as follows (emphasis ours):

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

It is well settled that the lack of an indispensable party to a proceeding in the trial court is fatal to any adjudication of the dispute. La.Code Civ.P. art. 641; Frey v. American Quarter Horse Ass’n, 95-157 (La.App. 5 Cir. 7/25/95), 659 So.2d 849. A party shall be deemed necessary for just adjudication when that party’s presence |7is absolutely necessary to protect its substantial rights. Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207.

The WCJ, in his reasons for judgment, stated: “In accordance with the aforementioned agreements and stipulation, the Court concludes that there is connexity between the defendants in this case and the CCN contract, and Dr. Shamieh.” He then went on to rule that “[a]ny contract which purports to reduce medical bills below the Louisiana Workers’ Compensation Reimbursement Schedule are invalid and unenforceable, and the same are a violation of Louisiana Workers’ Compensation Act, and the reimbursement schedule, and against public policy.” The WCJ also stated: “The CCN contract, in and of itself, is not notice sufficient to constitute compliance with Revised Statute 40:2201 or 2203.”

Before issuing his ruling, the WCJ denied CCN’s petition for intervention. He then went on to rule CCN to be a party to the contracts at issue in this suit and finally ruled adversely to CCN on the contracts. The effect of the judgment issued was to invalidate that portion of CCN’s contract that pertained to workers’ compensation claims. Considering the foregoing, we find that the presence of CCN was absolutely necessary to protect its substantial rights, that the WCJ’s denial of its petition to intervene was clear error, and that the judgment entered was, thus, a nullity.

Accordingly, for the reasons stated, the judgment of the Office of Workers’ Compensation judge rendered on June 6, 2007, denying CCN’s motion to intervene is reversed; the judgment rendered on July 25, 2007 is annulled and set aside. The case is remanded for further proceedings consistent with this opinion. Costs of this appeal are deferred, pending the outcome of the case.

REVERSED AND REMANDED.


text:
    Dr. Fayez K. SHAMIEH (Rudolph Jackson) v. LIQUID TRANSPORT CORP., et al.
    No. 07-1159.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Rehearing Denied March 12, 2008.
    Thomas Allen Filo, Cox, Cox, & Filo, Lake Charles, LA, for Secondary Plaintiff/Appellant, Dr. Fayez K. Shamieh.
    Henry Clay Ward III, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Liquid Transport Corp. and Great West Casualty Company.
    Perry R. Staub Jr., Mark VanHorn, Larry E. Demmons, Taggart, Morton, Ogden, Staub & O’Brien, L.L.C., for Interve-nor, CCN Managed Care, Inc.
    Judy Y. Barrasso, Stephen L. Miles, Edward R. Wicker Jr., Barrasso, Usdin, Kup-perman, New Orleans, LA, for Other-Ami-cus for CCN: Liberty Mutual Insurance Co., Helmsman Management Services Co., Employers Insurance of Wausau.
   Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PICKETT, Judge.

Both appeals before this court, 07-1159 and 07-1282, come from the same proceedings, 05-4552, in the Office of Workers’ Compensation (OWC). In appeal 07-1159, the defendants, Liquid Transport Corporation and Great West Casualty Company, appeal a judgment from the OWC ordering the defendants to pay the plaintiff, Dr. Fayez Shamieh, $122.50 in under-payment on a medical bill for the plaintiffs treatment of Rudolph Jackson, a workers’ compensation claimant. The OWC also awarded Dr. Shamieh $4,000.00 in penalties ($2,000.00 for under-payment and $2,000.00 for late payment) and $8,950.00 in attorney’s fees. The plaintiff, Dr. Shamieh, also appeals seeking additional attorney’s for the work necessitated by this appeal. In appeal 07-1282, Community Care Network, Inc. (CCN), appeals a judgement of the WCJ denying its petition to intervene. For the reasons assigned in appeal number 07-1282, we reverse the judgment of the Workers’ Compensation Judge (WCJ) rendered June 6, 2007 denying CCN’s motion to intervene, nullify the judgment signed July 25, 2007 (in appeal 07-1159), and remand the ease for additional proceedings consistent with this opinion. We defer consideration of the plaintiffs request for additional attorney’s fees.

ANNULLED AND SET ASIDE; REMANDED.


author: PAINTER, Judge.

text:
    Patrick GIBSON v. Ashley M. PACKETT and Shelter Mutual Insurance Company. Jennifer K. Jones v. State Farm Mutual Insurance Company and Lacy Shaw.
    Nos. 07-1165, 07-1233.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      David A. Hughes, Hughes & LaFleur, APLC, Alexandria, LA, for Defendants-Appellants: Ashley M. Packett and Shelter Mutual Insurance Company, Lacy Shaw and State Farm Mutual Insurance Company.
    Thomas O. Wells, Alexandria, LA, for Plaintiffs-Appellees: Patrick Gibson, Jennifer K. Jones.
   Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

LTwo unrelated automobile accident cases have been consolidated since they present the same issue for determination: whether the provisions of Act 365 of the 2006 Regular Session of the Louisiana Legislature, effective August 15, 2006, which amended La.Code Civ.P. art. 4843 to increase the jurisdiction of the city court of Pineville and the city court of Alexandria from $35,000.00 to jurisdiction “concurrent with the district court in cases where the amount in dispute, or the value of property involved, does not exceed the amount provided in Article 1732(1) for purposes of demanding a jury trial” are retroactive in application. The city court judges in Pine-ville and Alexandria found that the statute was procedural in nature and, therefore, applied retroactively. We agree.

FACTUAL AND PROCEDURAL BACKGROUND

In the Pineville city court case, Patrick Gibson filed suit on April 4, 2006, regarding an automobile accident that occurred on September 25, 2005. On March 15, 2007, Gibson filed a motion in limine, which was considered as a petition for declaratory judgment, alleging that his damages exceeded $35,000.00 but were below $50,000.00 and sought an order from the court that the increase in the jurisdictional limit provided by Act 365, which became effective August 15, 2006, applied to his case. The city court judge granted the petition for declaratory judgment and ruled that the jurisdictional increase should be applied retroactively.

In the Alexandria city court case, Jennifer K. Jones filed suit on April 20, 2006, regarding an automobile accident that occurred on September 22, 2005. On April 18, 2007, Jones filed a petition for declaratory judgment alleging that her damages exceeded $35,000.00 but were below $50,000.00 and sought an order from the court that the increase in the jurisdictional limit provided by Act 365, which became Ineffective August 15, 2006, applied to her case. The city court judge granted the petition for declaratory judgment and ruled that the jurisdictional increase should be applied retroactively.

Since both cases present the same issue for decision by this court and since Plaintiffs in both cases are represented by the same attorney and Defendants in both cases are represented by the same attorney, Plaintiffs filed a motion to consolidate in this court. We granted the motion, consolidated the cases, and now issue this opinion affirming both of the city court judgments at issue.

DISCUSSION

The statute at issue is La.Code Civ.P. art. 4843. At the time these suits were filed, the relevant portions of Article 4843 read:

I. In the Pineville City Court, the City Court of Leesville, the City Court of Minden, the City Court of Springhill, the City Court of Slidell, and the City Court of Alexandria, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed thirty-five thousand dollars.
K In the City Court of Alexandria, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed thirty-five thousand dollars, except as provided in Article 4850.1.

While the suits were pending, the legislature amended Article 4843, by several acts, which resulted in a complete re-write of the article. The act relative to this case is Acts 2006, No. 365, which read, in pertinent part:

Section 1. Code of Civil Procedure Article 4843(1), (K), (L), and (M) are hereby amended and reenacted to read as follows:
<<LA C.C.P. Art. 4843> >
Art. 4843. City court jurisdiction; amount in dispute; injunctive actions by state or political subdivision
⅜ ⅜ ⅜ ⅜; ⅜ ⅜
|aI. In the Pineville City Court, the City Court of Leesville, the City Court of Minden, the City Court of Springhill, and the City Court of Slidell, and the City Court-of-Alexandria, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed thirty-five thousand dollars.
⅝ ⅜ ⅝ ⅜ ⅜
⅛ — In the City Court of Alexandria, the ⅛⅛¾ — jurisdi&tion-is concurrent with the distr-ict court-in-cases where the amount in dispute, or-the value of the property involved, does — not exceed thirty-five thousand dollars, except as provided in Article 4850.1.
LtK. In the city courts of Bunkie and Marksville, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed twenty thousand dollars.
MtL. In the city courts of Abbeville and Kaplan, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed twenty-five thousand dollars.
M. In the City Court of Alexandria and the City Court of Pineville, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed the amount provided in Article 1732(1) for purposes of demanding a jury trial.

The act became effective August 15, 2006. Shortly thereafter, Plaintiffs in both suits filed petitions for declaratory judgment in order to take advantage of the higher jurisdictional amount. However, neither Plaintiff alleged that his or her damages exceeded $50,000.00. Thus, entitlement to a jury is not at issue in either case.

Louisiana Civil Code Article 6 provides, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Louisiana Revised Statutes 1:2 provides that “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.” However, the Louisiana Supreme Court has stated that the literal interpretation of La.R.S. 1:2 is inconsistent with civilian principles and, as such, its application has |4been limited to substantive, and not procedural or interpretative, legislation. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992). In order to determine whether Acts 2006, No. 365 should be applied retroactively, we must perform the two-step approach outlined in Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992): “First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, our inquiry is at an end. If the legislature did not, we must classify the enactment as substantive, procedural or interpretive.”

We note that Article 4843 has been amended numerous times since 1986. In only two of those amendments did the legislature provide a specific date on which the amendment would become effective and specifically state that the amendment would only apply to civil actions filed after the stated effective date. See Acts 1997, No. 193 and Acts 2001, No. 343. Acts 2006, No. 365 did not provide for a specific effective date, and it did not contain any expression of intent as to retroactive or prospective application of the amendment. As a result, the general effective date of all laws enacted at the 2006 Regular Session was August 15, 2006, and this act became effective at that time.

Having determined that the legislature did not express any intent as to whether the provisions of Acts 2006, No. 365 were to be limited to prospective application only, we must now determine whether the amendment is substantive or procedural. Substantive laws are those which establish new rules, rights, and duties or change existing ones. Rousselle v. Placquemines Parish Sch. Bd., 93-1916 (La.2/28/94), 633 So.2d 1235. “Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws.” Id at 1244.

^Defendants contend that the amendment at issue, which effectively increases the jurisdiction of the city courts of Pineville and Alexandria, is a substantive change in the law which applies only prospectively. Defendants’ argument is that the amendment is substantive because their liability exposure is changed and increased by the retroactive application of the amendment. Plaintiffs, on the other hand, argue that Defendants are exposed to the same liability both before and after the amendment because Plaintiffs, even before the amendment, could have filed their suits in either city court or district court and Defendants would have been exposed to the same level of liability — the venue or forum that will decide the amount of exposure may change by the retroactive application of the act, but the liability would be the same whether the suit is filed in city or district court.

Our inquiry is whether Acts 2006, No. 365 effected “a change in substance (right, obligation, or duty) or a change in procedure (remedy)?” Wooley v. Amcare Health Plans of La., Inc., 05-2025, p. 8 (La.App. 1 Cir. 10/25/06), 944 So.2d 668, 673. Even had this amendment not been enacted, Plaintiffs could have amended their petitions to allege damages in excess of $35,000.00 and moved to have their suits transferred to district court. See Beard v. Circle K, Inc., 554 So.2d 825 (La.App. 1 Cir.1989). We agree with the city court judges of Pineville and Alexandria in their conclusions that Defendant’s exposure is no greater because of the retroactive application of the amendment since the right to a jury trial has not been affected and the amount of exposure pursuant to a judge trial has not been increased. Further, “it is well settled that there is no vested right in any given mode of procedure.” Wooley, 944 So.2d at 674. Thus, we find that the change effected by this amendment was procedural in that it deals with the remedy rather than with the right itself.

| «DECREE

Following our de novo review of the records in both cases, we find that the city courts applied the law appropriately. Therefore, for all of the foregoing reasons, the judgments appealed from are affirmed. Acts 2006, No. 365 applies retroactively such that Plaintiffs are entitled to seek damages in excess of $35,000.00 but not to exceed $50,000.00 in the city courts of Pineville and Alexandria. Costs of this appeal are assessed equally to Defendants-Appellants, Ashley M. Packett and Shelter Mutual Insurance Company and Lacy Shaw and State Farm Mutual Insurance Company.

AFFIRMED.