author: PETTIGREW, J.

text:
    Jerry M. McCAIN, Sr. and Margaret B. McCain, Individually and on Behalf of Their Minor Children Jerry M. McCain, Jr. and Colt E. McCain v. Sara A. HOWELL, Louisiana Indemnity Company, State of Louisiana Through Department of Transportation and Development and Allstate Insurance Company.
    No. 2006 CA 1830.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Writ Denied Dec. 14, 2007.

      Michael C. Palmintier, Baton Rouge, for Plaintiffs-Appellees Jerry M. McCain, Sr., et al.
    Christopher Moody, Hammond, for Defendant-Appellant LA DOTD.
    Before: CARTER, C.J., PETTIGREW, and WELCH, JJ.
   PETTIGREW, J.

|2The State of Louisiana, through the Department of Transportation and Development (“DOTD”), appeals from the tria court judgment in favor of plaintiffs, wherein the court apportioned 50 percent of the fault for causing the accident in question to DOTD and awarded plaintiffs damages totaling $7,786,018.73. For the reasons set forth below, we affirm.

FACTS

On May 3, 1992, at approximately 3:00 p.m., Sara A- Howell was operating a 1980 Chevrolet Camaro in a southerly direction on Highway 37 in St. Helena Parish, Louisiana, when, for some unknown reason, she lost control of the vehicle and veered off the roadway to the left. Once off the roadway, Ms. Howell encountered a ditch and was unable to steer back onto the roadway. According to the record, Ms. Howell’s vehicle then struck a culvert that was directly in her path but, apparently, not within view, because of thick vegetation that had grown over the culvert. Plaintiffs, Jerry M. “Mike” McCain, Margaret B. McCain, Jerry M. McCain, Jr., and Colt E. McCain, were passengers in the Howell vehicle at the time of the accident, and all sustained injuries as a result of this very violent collision.

PROCEDURAL HISTORY

Following this accident, plaintiffs filed an action for damages, naming as defendants Ms. Howell, Louisiana Indemnity Company, in its capacity as Ms. Howell’s liability insurer, DOTD, and Allstate Insurance Company, in its capacity as plaintiffs’ uninsured/underinsured motorist insurer. Prior to the trial of this matter, plaintiffs dismissed their claims against Ms. Howell, Louisiana Indemnity Company, and Allstate Insurance Company, leaving only their claims against DOTD viable for trial.

The matter proceeded to a bench trial in November 2005, at which time the trial court heard testimony from numerous witnesses and accepted various documents into evidence. At the close of evidence, the trial court rendered a verdict in favor of plaintiffs, assigning 50 percent of the fault to Ms. Howell and 50 percent to DOTD, and awarding plaintiffs damages totaling $7,786,018.73. DOTD subsequently filed a motion for new |strial, arguing that the trial court applied an improper legal standard in finding that the highway at issue posed an unreasonable risk of harm and in assigning liability to DOTD. On June 1, 2006, the trial court denied the motion for new trial. This appeal by DOTD followed, wherein the following specifications of error were assigned:

1. The trial court applied the improper legal standard in imposing liability on DOTD because liability cannot be imposed absent a defective condition of the roadway that contributed to or caused the accident.
2. DOTD cannot be responsible for accidents when the cause-in-fact of the accident was due to driver error because DOTD’s duty is to maintain public roadways in a condition that they do not pose an unreasonable risk of harm to motorists exercising ordinary care and reasonable prudence.
3. The trial court improperly admitted hearsay testimony into evidence over the objection of counsel for defense.
4. The trial court was manifestly erroneous in awarding approximately eight million dollars ($8,000,000) in damages to the plaintiffs.

LIABILITY OF DOTD

(Assignments of Error Numbers One and Two)

DOTD argues on appeal that the trial court erred in finding it liable for this accident, as liability cannot be imposed on DOTD absent a defective condition of the roadway. Noting the alleged defects found by the trial court, i.e., the placement of the culvert, the slope of the embankment, and the high vegetation obscuring the culvert, were not defects in areas intended for vehicular travel, DOTD contends the trial court’s finding of liability is manifestly erroneous and warrants reversal. Moreover, DOTD maintains it cannot be held liable for the accident because the cause-in-fact of the accident was driver error and not due to any defect in the actual roadway. Thus, DOTD concludes Ms. Howell should have been assessed with 100 percent of the fault for the accident.

JjTo the contrary, plaintiffs argue that the facts of this case establish a duty on the part of DOTD that extends beyond the paved surface of the roadway. Plaintiffs contend that the trial court’s ruling was based on “extensive evidence and the un-contradicted testimony of plaintiffs’ experts that a combination of unreasonably dangerous conditions substantially contributed to this terrible accident.” With regard to whether these unreasonably dangerous conditions were a cause-in-fact of their injuries, plaintiffs assert the trial court correctly employed the duty-risk analysis and concluded that DOTD and Ms. Howell were equally at fault in causing the accident. Thus, plaintiffs maintain the trial court’s finding cannot be disturbed on appeal. We agree.

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty-risk analysis. The determination of liability under a duty-risk analysis usually requires proof of five separate elements, all of which must be answered affirmatively for the plaintiff to recover: (1) proof that the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) proof that the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the injuries (the scope-of-liability or scope-of-protection element); and (5) proof of actual damages (the damages element). Conerly v. State of Louisiana ex rel. the Louisiana State Penitentiary and the Department of Corrections, 2002-1852, pp. 8-9 (La.App. 1 Cir. 6/27/03), 858 So.2d 636, 645, writ denied, 2003-2121 (La.11/14/03), 858 So.2d 432. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Perkins v. Entergy Corp., 2000-1372, p. 7 (La.3/23/01), 782 So.2d 606, 611.

Generally, the initial determination in the duty-risk analysis is cause-in-fact. Cause-in-fact usually is a “but for” inquiry that tests whether the accident would or would not have happened but for the defendant’s substandard conduct. Boykin v. Louisiana Transit Co., Inc., 96-1932, p. 9 (La.3/4/98), 707 So.2d 1225, 1230. When there are |ficoncurrent causes of an accident, which nevertheless would have occurred in the absence of one of the causes, the proper inquiry is whether the conduct under consideration was a substantial factor in bringing about the accident. Perkins, 2000-1372 at 8, 782 So.2d at 611. The Perkins court explained the “substantial factor” test as follows:

To satisfy the substantial factor test, the plaintiff must prove by a preponderance of the evidence that the defendant’s conduct was a substantial factor bringing about the complained of harm.
This court has made several different inquiries when applying the substantial factor test. For example, the court has stated that when there are multiple causes, clearly cause-in-fact exists when the plaintiffs harm would not have occurred absent the specific defendant’s conduct. The court has also applied the substantial factor test by asking whether each of the multiple causes played so important a role in producing the result that responsibility should be imposed upon each item of conduct, even if it cannot be said definitively that the harm would not have occurred “but for” each individual cause. Additionally, in LeJeune v. Allstate Ins. Co., 365 So.2d 471, 475 (La.1978), the court, in describing the substantial factor test, stated that “one must consider whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm.”

Perkins, 2000-1272 at 8-9, 782 So.2d at 612 (citations omitted).

The determination of cause-in-fact is a factual question to be decided by the fact finder and, thus, subject to the manifest error standard of review. See O’Connor v. Litchfield, 2003-0397, p. 11 (La.App. 1 Cir. 12/31/03), 864 So.2d 234, 242. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Further, on review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. The manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone [fiof voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In this case, the trial court found that the site of the accident on Highway 37 was unreasonably dangerous because of a combination of “unreasonably dangerous failures” that were created by DOTD. The trial court concluded that the “excessive slope of the ditch, the vegetation [obscuring the culvert], and the location of the culvert, all combined to cause the accident.” These findings by the trial court were based on extensive evidence presented by numerous witnesses and exhibits. Among the witnesses were plaintiffs’ two experts, who examined the evidence concerning the accident in question and testified as to their opinions regarding how the accident happened.

Dwayne Evans, accepted by the trial court as an expert in traffic engineering, testified that the American Association of State Highway and Transportation Officials (“AASHTO”) have established guidelines for what they refer to as a “clear zone” area within which there should be no physical obstruction that would cause damage to a vehicle that would come within that “clear zone.” Mr. Evans explained that the “clear zone” area is determined by the type of roadway the design speed of the roadway, the volume of traffic on the roadway, and certain other conditions such as the slope of the embankment. He added that AASHTO standards for Highway 37 would require a minimum “clear zone” of 30 feet, but that a desirable “clear zone” would be 40 feet. When asked how far the culvert in question was from the edge of the roadway, Mr. Evans indicated that he measured it to be approximately 28 feet from the edge of Highway 37. Thus, Mr. Evans noted, the culvert was built within the highway’s “clear zone,” a violation of AASHTO’s standards and an unreasonably dangerous condition created by DOTD. When asked about mitigation of the potential hazard from such a condition, Mr. Evans indicated the culvert could have been moved further away from the edge of the roadway or the speed limit could have been reduced.

|7In addition to the problem with the placement of the culvert, Mr. Evans testified that the visual obstruction of the culvert itself and the non-recoverable slope of the embankment (greater than a 4-to-l slope) were also unreasonably dangerous conditions. Noting that the culvert was completely covered with grass and shrubs, Mr. Evans explained: “If the driver could have seen that culvert, I don’t believe she would have ever steered in that direction. She would have gone on across the ditch, taken a chance the other way. But she could not see what was behind those bushes, so she went in that direction.”

Plaintiffs’ second expert witness, John Bates, accepted by the trial court as an expert in civil engineering, specializing in traffic accident reconstruction and evaluation of highway design and maintenance, concurred with Mr. Evans regarding the unreasonably dangerous conditions that combined to cause the accident. With regard to the slope of the embankment, Mr. Bates testified that it was too steep and prevented Ms. Howell from recovering once her vehicle was off the roadway. Mr. Bates stated that he took measurements near the culvert and found the slope to be 3-to-l in some places and even steeper than that in other areas of the embankment. Concerning the culvert, Mr. Bates explained that either it should not have been built within the “clear zone” or it should have been shielded to prevent an errant vehicle from crashing into it. Finally, Mr. Bates testified regarding the vegetation obstructing the culvert. Mr. Bates indicated that according to DOTD standards, all vegetation in front of the culvert should have been trimmed to a height of not greater than 12 inches. Mr. Bates noted that at the time of the accident, the vegetation was so high that Ms. Howell was unable to see the culvert as she was approaching it.

After considering the testimony of the many witnesses and the documentary evidence, the trial court found that although there was driver error in this case, the unreasonably dangerous conditions created by DOTD also combined to cause the accident in question. The trial court’s reasons for judgment were extensive and well reasoned:

I do not believe that the vehicle left the roadway on the right. The only evidence of this happening was the testimony of Mrs. McCain, the plaintiff, that there was a bump, and that was it, a four letter word, bump, upon | swhich the experts based a tremendous amount of testimony. But, having said that, I don’t believe that it makes a lot of difference in this case, except when we get to the attribution of fault against the driver. Either way there’s driver error, whether or not she left the roadway to the right, or whether or not this is one of those unexplained jerk-the-steering-wheel accidents, which is I think the only conclusion I can draw. Eliminating leaving the roadway on the right, and having eliminated a sudden distraction or an animal in the roadway, then driver error is the only possible conclusion in all probability, probably a simple jerk or double jerk of the steering wheel, driver inattentiveness .... I believe she lost control of the vehicle in the right lane, and I do believe, however, that the lines in the photographs are in fact yaw marks, and I believe that the opinions of the [plaintiffs’] experts are very valid from that point forward. I further believe that the slope in general of the ditch on the left side was a steep slope, at least a 3-to-l slope. I believe this was an old roadway and was overlaid at least once, based upon, you know, making an old traditional thoroughfare more amenable to the public’s needs, and I don’t necessarily think that there was any particular obligation because it was overlaid to go back and [change] the slope at that time to a 4-to-l. I don’t think that there’s been any specific evidence to that effect. But not withstanding the standards of the department, a 3-to-l slope for a paved highway, regardless of when the standards went into effect, is an unreasonably dangerous condition, even if it did not violate standards at the time of the overlay. And [plaintiffs’ counsel’s] comments in opening are well taken, I mean this is a combination of problems, it’s not a single, one causation problem that we’re dealing with here. ...
The placement of that culvert, that huge culvert — this is a very, very huge culvert. It was almost six (6) feet in diameter — that close to the roadway was a violation of departmental standards. It violated DOTD’s own standards, the location where it was placed. Many other things that could have been done rather than place that culvert where it was including, perhaps, a smaller culvert, I don’t know, there’s no testimony of that, but certainly moving it farther away from an outside clear zone, which in this case was clearly at least thirty (30) feet, and perhaps as much as sixty (60) feet, according to the testimony of the experts. A ditch could have been channeled farther back, at very low expense to move the culvert back. And f the culvert were farther back, even just a few feet, even outside the thirty (30) feet clear zone, I find specifically that this accident would not have occurred. But even more than that, the culvert, which, because of its placement, did create an unreasonable dangerous condition, was further obscured by ... high and uncut vegetation. Now this is Louisiana and I don’t expect the department to maintain in a perfect condition, you know, the height of the adjacent right-of-way to a highway, but I certainly would expect them to keep unreasonably dangerous conditions open and clear, or clearly viewable to the public. This was a trap. This was a trap for people who are unfortunate enough to leave the roadway and enter that clear zone. The driver’s reactions I find were appropriate once she had gotten herself into trouble. She was steering right, back towards the roadway, using efforts to retain control of her vehicle. I think the excessive slope of the ditch, the vegetation, and the location of the culvert, all combined to cause the accident. Perhaps she could have taken other evasive measures had she been able to see the culvert as she approached. But she couldn’t see it, she didn’t know. It is impossible for me to believe that she would consciously and knowingly guide that vehicle in a head-on collision with a six (6) foot, quarter inch, steel culvert. I think she would [9have taken any means available to have avoided that, and that which she could not see, she could not avoid. And so that was an unreasonably dangerous condition, the high vegetation obscuring the culvert.
There’s been testimony that attenuation of the culvert could have reduced the severity of the impact or, perhaps, even avoided any injuries whatsoever. The defense expert has testified that, well, no duty to attenuate when you’re traveling in the opposite direction, and yet a representative of the State, the trooper, himself, testified that [it was] not at all uncommon in a leave-the-roadway-on-the-right situation for a person to lose control and wind up on the left shoulder, not at all uncommon. Well, if the troopers know it, why don’t the engineers know it. And so I find that that testimony from the defense safety engineer to be totally unconvincing. I mean, safety is safety is safety, whether it is with directional traffic or with non-directional traffic, and so I think the culvert easily could have been attenuated which would have avoided this accident, and from a safety standpoint, very, very inexpensive to do, and I think that the State had to know of this problem. I’m not sure under the date of the accident in question that there was a duty or a requirement of actual notice, but I find under the facts of this case that it is impossible to conceive of anyone, any inspector, riding up and down that highway, would not have seen the high vegetation and the location of the culvert, and the reason they knew it, is because they issued the cotton picking permit for the culvert. So they not only knew, but they created the unreasonable dangerous situation. And so under both strict liability analysis and negligent analysis, the State is responsible for this combination of unreasonably dangerous failures. And I know the State is not an insurer, but, quite frankly, in this district, we’ve had a whole rash of these culvert cases, and they’re dangerous. Those culverts located within the clear zone, the emergency zone for motorists who either get themselves into trouble or who are placed into trouble by other motorists, are just really dangerous, and the accidents that result as a result of these culvert accidents tend to be profound injuries, and so the risk is extremely high. The benefit of the culverts are clear, they allow property owners access to the property. But the cost of treatment of these culverts is relatively small in terms of rechanneling the ditches or attenuation. So when I apply a cost benefits analysis to counterweight the high risk created by these culverts, I find that it would be a very inexpensive process. It’s not like rebuilding bridges to replace substandard bridges. It’s a very inexpensive analysis to address these culverts. Nor is it like having to put a railroad arm at every crossing in the State. All those measures are extremely expensive. This is not. This is not. And so when I apply that balancing test I’m still convinced that this was an unreasonable risk of harm.
The question is apportionment of fault, and I really think that whether or not this is a leaving-the-roadway-on-the-right case may have some affect on the apportionment of fault. No doubt the driver is at fault, but the fault is because of the driver’s inattentiveness, and a logical assessment is a 50-50 split on fault.

Having thoroughly reviewed the record, we find no error in the trial court’s ruling. Under the facts and circumstances of this case, we agree with the trial court that the failure of Ms. Howell to maintain control of her vehicle did not relieve DOTD of its duty to |1flmaintain this off roadway area so that it did not pose an unreasonably dangerous condition to the motoring public. See Aucoin v. State Through Dept. of Transp. and Development, 97-1938, 97-1967, p. 8 (La.4/24/98), 712 So.2d 62, 66-67. The fact that more than one party can contribute to the harm is the reason for our comparative fault system. See Campbell v. Louisiana Dept. of Transp. & Development, 94-1052, p. 7 (La.1/17/95), 648 So.2d 898, 902. The combination of the unrecoverable slope of the embankment, the overgrown vegetation obscuring the culvert, and the placement of the culvert in the “clear zone” rendered this off roadway area unreasonably dangerous to the motoring public. Thus, the trial court was correct in its finding regarding the liability of DOTD and in its assessment of 50 percent of the fault to DOTD for causing the accident in question. DOTD’s first two assignments of error are without merit.

EXPERT TESTIMONY OF JOHN BATES

(Assignment of Error Number Three)

DOTD asserts on appeal that the trial court improperly relied on inadmissible hearsay testimony from plaintiffs’ expert, Mr. Bates, in reaching a decision concerning the liability of DOTD. We find no merit to this argument.

The testimony in question concerned the permitting of the culvert by DOTD and the timing of same. Plaintiffs’ counsel questioned Mr. Bates as follows:

BY [PLAINTIFFS’ COUNSEL:]
Q. You submitted to the court a drawing giving an explanation of how AASH-TO recommends that this kind of defect be corrected. Why do we look at the 1989 guide and take guidance for a highway that was constructed in — let’s say in the ‘40s?
A. Okay. Your Honor, this big culvert and the driveway above it that we’ve been talking about leads to property that is owned by Autry Jones.... [H]e inherited the property in 1980 and it was just a very few years ... after that that he decided that he wanted a farm entrance at the location we’re talking about. As required by DOTD, he went to the division office, to the permit office, to obtain a driveway permit and presented to them a sketch of the driveway that he had in mind and that includes the culvert location.
He was issued a driveway permit and according to the regulations of DOTD, an inspection needs to be made by the permit office upon completion of that work being done. Mr. Jones doesn’t know if the inspection was made because he wasn’t just standing around waiting for Inthat to be made. But presumably that inspection was made but it was also permitted by the DOTD in approximately 1985, would be the last date that he had been talking about.
Q. And that’s why the 1989 regulations apply?
A. Well, that’s what I was trying to show as to what the understanding was of the engineering community of the highway engineers in that era of time....
[COUNSEL FOR PLAINTIFFS:]
We will once again offer, file and introduce the 1989 standards, Judge, as being relatively, at least contemporaneous, with the permitting in 1985 of this driveway.
[COUNSEL FOR DOTD:]
Your Honor, my problem is that — is that the expert just gave us quite a considerable amount of hearsay testimony. All that information brand new to us. When we took their' depositions[,] they had no ■ information about when this culvert was put in, how long it had been there, whether it was permitted, that sort of thing. And so now they’ve got into evidence all this evidence from a witness that I suppose could have been called, that foundation could be laid, we could have our chance to cross-examine them, we could go check the records ourselves. Instead, at the last minute, they use this expert to testify to that. And even if it’s correct, that a culvert was put there in the early to mid-‘80s, the ‘89 standards wouldn’t apply to that.
THE COURT:
All right. Yes, we have hearsay testimony into evidence. But there it is, it’s into evidence. The 1989 Roadside Design Guide has some relevance, albeit, I will note not very much for a 1985 culvert. So the objection is overruled. I’ll let it go to the weight.

Louisiana Code of Evidence article 703 provides as follows with regard to opinions and expert testimony:

The facts or data in the particular case upon which an expert bases an' opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Comment (d) to Article 703 adds further that “the facts ... underlying the expert witness’ opinion may properly be ... under designated circumstances, facts ... not admissible in evidence (because, for example, their source is inadmissible hearsay), if they are of a kind reasonably relied upon by experts in the particular field in arriving at their opinions or inferences.”

As correctly noted by plaintiffs in response to DOTD’s appeal, Mr. Bates testified that field interviews, such as the one he conducted with Autry Jones, were one of the |12many sources of information he relied on in formulating his opinion in this case. The information he learned from Mr. Jones proved helpful to Mr. Bates in determining that the culvert was installed in approximately 1985 and what DOTD standards were in effect at the time of the installation and permitting of the culvert. Based on the unique facts and circumstances of this case, and the guidance from Article 703, we find no error in the trial court’s ruling to admit Mr. Bates’ testimony into evidence over the objection of counsel for DOTD and allowing it to “go to the weight” of the matter.

DAMAGES

(Assignment of Error Number Four)

In its final assignment of error, DOTD contends the trial court’s awards are excessive and higher than other jurisprudential awards for similar injuries. Thus, DOTD maintains, the awards should be reduced.

It is well settled that the trier of fact has much discretion in awarding damages. La. Civ.Code art. 2324.1. The standard for appellate review of general damages is set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein the Louisiana Supreme Court stated that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” The appellate court’s first inquiry should be “whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Youn, 623 So.2d at 1260. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.

In the instant case, the evidence adduced at trial revealed a family who suffered catastrophic losses as a result of this tragic accident. Jerry, Jr., who was 5 years old at the time of the accident, sustained the most serious injuries. According to the record, Jerry suffered damage to the frontal and right temporal lobes of his brain. As a result of 11sthe strain placed on their relationship in the years following the accident, Margaret and Mike, who had been married since October 1987, separated in 2001, and ultimately divorced in 2005. Mike and the couple’s two younger children moved to Nebraska to live, while Margaret and Jerry remained here in Louisiana where she could best provide for him. Although Margaret and Mike both described how they have remained friendly and work together to care for their three children, it is clear from the record that the injuries sustained by Jerry have taken a toll on the entire family.

As previously indicated, the trial court awarded plaintiffs damages totaling $7,786,018.73 in connection with this tragic accident. The damages were broken down as follows:

Colt McCain $ 15,000.00 (general damages) $ 167.52 (special damages)
Jerry M. “Mike” McCain $ 125,000.00 (general damages) $ 15,386.07 (special damages) $ 50,000.00 (loss of consortium-in globo)
Margaret McCain $ 200,000.00 (general damages) $ 16,297.07 (special damages) $ 300,000.00 (custodial care)
Jerry McCain, Jr. $ 3,000,000.00 (general damages) $4,000,000.00 (special damages-life care plan) $ 64,168.07 (special medical damages)

The trial court issued written reasons for judgment regarding the damages awarded. In so doing, the court adopted, as its own, the plaintiffs’ memorandum of fact on damages, which provides, in pertinent part, as follows:

COLT E. MCCAIN
On the day of the accident, Colt McCain sat next to his older brother Jerry, seat-belted in the backseat of the vehicle. As a result of the crash, Colt sustained limited physical injuries but suffered from continuous nightmares for five to six months after the accident. Additionally, Colt’s emotional distress stemming from the accident forced him to repeat kindergarten.
Colt was seen at the Baton Rouge General Medical Center Emergency
Room on the day of the accident. Medical specials for Colt total $167.52....
JERRY M. “MIKE”MCCAIN, SR.
JERRY M. MCCAIN, SR., was admitted to Lane Memorial Hospital following the accident, where he remained for approximately seven days before being discharged home. His treating physician, Dr. Howard L. Martin, testified at trial that Mr. McCain was diagnosed with a closed head injury, lacerations to his face, oblique fractures to his mandible and multiple abrasions and contusions. Oral surgical fixation of the fractured mandibles required Mike’s jaw being wired shut for several weeks.
As a result of the injuries sustained in the accident, Mike McCain’s special damages totaled $15,386.07-
MARGARET B. MCCAIN
MARGARET B. MCCAIN was 2⅜ months pregnant at the time of the accident and sustained injuries consisting of a severely displaced mandibular left angle fracture, a severely displaced mandibular right body fracture, a right clavicular fracture, and a right ankle fracture. Furthermore, Margaret experienced complications with her pregnancy resulting from the accident.
As her treating physician, Dr. Marshal Harrison, (an Oral Surgeon) testified, after being admitted to the Baton Rouge General Medical Center on May 3, 1992, Margaret was taken into surgery where she underwent open reduction and internal fixation of her left mandibular angle fracture and right body fracture of the mandible. Her right leg and ankle were subsequently placed in a cast. Following a dietary consult due to limitation created by the fixation of her jaw, Margaret was discharged home on May 7,1992.
Special damages for Margaret McCain total $16,297.07....
Additionally], Margaret is entitled to special damages for her custodial care of Jerry over the past 12 years....
JERRY M. MCCAIN, JR.
JERRY M. MCCAIN, JR., suffered the most severe injuries of the four plaintiffs as a result of the May 3, 1992 accident. Before that day, Jerry was a bright inquisitive 5 year old boy, but after the accident, his life was dramatically altered. On that afternoon, Jerry was transported to Baton Rouge General Medical Center emergency room where he was diagnosed with Coma secondary to closed head injury. After a
few weeks, Jerry was transferred to Children’s Hospital in New Orleans under the care of pediatric neurosurgeon, Dr. Joseph Nadell. In his trial testimony, Dr. Nadell described Jerry’s injuries as follows:
“Predominantly the frontal lobes and his right temporal lobe were damaged .... And clinically he exhibits both language, which is temporal and frontal lobe and personality and things like that which is predominantly frontal-lobe dysfunction.” ...
11RFollowing his release from Children’s Hospital, Jerry returned home to begin the long and often impossible process of daily life. Over the past 12 years, Jerry has been unable to attend regular schools, requiring special educational classes and eventually being unable to perform, even in such specialized courses. As his family testified, he has problems with his memory and attention span, which make normal daily activities impossible and which require almost constant supervision.
As his current treating psychiatrist, Dr. Ann Arretteig, testified, Jerry is and always will be a danger to himself and to those around him. This is so because the injuries to his brain, especially the frontal lobe injuries, have permanently eliminated his inhibitions, judgment and maturity, making him susceptible to violent outbursts, both verbal and physical. Thus, all social activities, such as courtship and marriage, maintenance of friendships and normal family relations, education and employment are out of the question for Jerry McCain. What remains is a life of constant agitation, uncontrolled anger and inappropriate and offensive behavior.
Without constant monitoring by his mother, he would not have survived over the past 12 years. The passage of time has demonstrated the profound and devastating impact Jerry’s injuries have had on him and his family. The future cost of caring for Jerry was demonstrated at trial, as was the overwhelming emotional loss to him and his family.
Medical specials sustained as a result of the accident total $64,168.07....
Although Jerry McCain is not a qua-draplegic [sic], the injuries to his brain, caused by the accident are of similar magnitude. He can walk and use his extremities, but the destruction of his frontal lobes creates a different set of medical challenges ....
The need to supervise and manage Jerry’s daily activities (to prevent injury to himself and others) is a permanent and ongoing requirement. The cost of such care is taken into account in the testimony of Thomas Mungall, plaintiffs’ life care planner. At trial, the physical and emotional cost of these terrible injuries was clearly demonstrated in the testimony of Jerry’s family members and his physicians.
Before this accident, Jerry was an active, intelligent and normal child. Since the accident, his parents had to reconcile themselves to the fact that their healthy, loving child no longer existed. In his place was one who required constant attention, who exposed himself and his family to dangerous outbursts, violent and abhorrent behavior, irrational actions and who showed none of the affection and loving nature which had previously defined him as their son.

Based on our thorough review of the evidence in the record, we find no abuse of discretion by the trial court in the damages awarded. Given the “particular injuries and | ifitheir effects under the particular circumstances” on the plaintiffs, the trial court’s damage awards are not beyond that which a reasonable trier of fact could assess. See Youn, 623 So.2d at 1260.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgment in all respects. Appeal costs in the amount of $1,132.00 are assessed against DOTD.

AFFIRMED.

      . We note that DOTD actually appealed from the trial court’s denial of its motion for new trial, which is not an appealable judgment absent a showing of irreparable harm. Pittman v. Pittman, 2001-2528, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 369, 372, writ denied, 2003-1365 (La.9/19/03), 853 So.2d 642. However, the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case. Shultz v. Shultz, 2002-2534, p. 3 (La.App. 1 Cir. 11/7/03), 867 So.2d 745, 746-747 (quoting Carpenter v. Hannan, 2001-0467, p. 4 (La. App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La.10/25/02, 827 So.2d 1153). 827 So.2d 1153). It is obvious from DOTD's brief that it intended to appeal the judgment on the merits. Thus, we will treat the appeal accordingly.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    Richard J. BRIEN v. TERRY SMITH/AMERICAN PLUMBING.
    No. 2006 CA 1712.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      James L. Maughan, Baton Rouge, Counsel for Plaintiff/Appellee, Richard J. Brien.
    Richard D. Bankston, Baton Rouge, Counsel for Defendants/Appellants, Terry Smith and American Plumbing.
    Before: WHIPPLE, GUIDRY and HUGHES, JJ.
   WHIPPLE, J.

|«>This is an appeal from a judgment of the Nineteenth Judicial District Court, which affirmed the judgment of the Small Claims Division of the Baton Rouge City Court, granting plaintiff’s motion for summary judgment and dismissing defendant’s petition to annul a previous default judgment rendered by the Baton Rouge City Court, Small Claims Division. For the following reasons, we vacate the August 2, 2006 judgment of the Nineteenth Judicial District Court, vacate the December 14, 2005 judgment of the Baton Rouge City Court, and remand.

FACTS AND PROCEDURAL HISTORY

On June 25, 2003, Richard J. Brien filed a “Statement of Claim and Citation” in the Small Claims Division of the Baton Rouge City Court, bearing docket number 0306-05303, against American Plumbing, a plumbing business owned by Terry Smith. In the claim, Brien contended that he and Smith had had a misunderstanding regarding charges for plumbing services and that they had agreed to compromise their dispute for a payment of $40.00 by Brien. According to Brien, in exchange for Brien’s payment of $40.00, Smith agreed in writing to have the disputed collection removed from Brien’s credit report. Brien further contended that despite his tender of a check for $40.00, Smith did not uphold his agreement in their compromise to have the collection removed from Brien’s credit report. Thus, Brien alleged, his credit rating had been negatively affected, preventing him from obtaining the best possible rate on loans. Accordingly, Brien sought damages of $3,000.00.

On July 18, 2003, Brien obtained a default judgment against American Plumbing in the amount of $3,000.00, based on American Plumbing’s alleged failure to file an answer. Thereafter, on February 3, |s2004, Smith, doing business as American Plumbing (referred to herein as “American Plumbing”), filed a motion to vacate the default judgment, contending that he had filed an answer via the United States mail, return receipt requested, but that the answer had been lost in the mail. American Plumbing’s motion to vacate the default judgment was orally granted on April 21, 2004, but a judgment to that effect was not signed until October 21, 2004.

Meanwhile, on July 19, 2004, Smith, on behalf of American Plumbing, filed a motion to transfer the case from the Small Claims Division of City Court to the regular civil docket. Given the untimeliness of this motion, the motion was properly denied by the judge on August 2, 2004. However, an October 11, 2004 minute entry, apparently signed by an arbitrator of the Small Claims Division, was entered with the following language: “Please reset and send notice to attorneys on regular civil docket (Both atty agree).” Thus, apparently based on an agreement of the parties, the matter was transferred from the Small Claims Division to the regular civil docket of the city court.

Thereafter, on January 25, 2005, the scheduled trial date, the city court judge, on a minute entry worksheet, wrote that she was vacating “all judgments back to [the] default judgment,” apparently vacating the October 21, 2004 judgment that had vacated the original July 18, 2003 default judgment. The judge further ordered that the matter be set for hearing on ^February 23, 2005, to determine if the default judgment should be vacated, noting that American Plumbing would have to “show proof [that an] answer was filed before [the] default judgment [was] signed.” While no written judgment to this effect was ever signed, the minute entry worksheet setting forth that all judgments “back to the default judgment” were vacated was signed by the city court judge. However, when American Plumbing failed to appear for the February 23, 2005 hearing, the city court rendered judgment denying his motion to vacate, stating that the July 18, 2003 default judgment would stand. A written judgment denying the motion to vacate the default judgment was signed on April 11, 2005.

Meanwhile, on February 9, 2005, American Plumbing, filed a Petition to Annul Default Judgment, contending that the July 18, 2003 default judgment should be annulled because: (1) the city court lacked subject matter jurisdiction over this federally based claim, (2) Brien had failed to establish a prima facie case in support of the judgment in his favor, (3) the judgment was obtained by fraud and ill practices because Brien made false statements in his petition and the evidence was misleading or false, and (4) confusion over who lost his answer and when it was filed should not preclude him from asserting his defenses on the merits.

In response to the petition to annul the default judgment, Brien filed a motion for summary judgment and a peremptory exception raising the objection of prescription. In support of his motion for summary judgment, Brien argued that the Small Claims Division had jurisdiction at the time it rendered the default judgment and there was no evidence to support the assertion that the judgment was obtained through fraud or ill practices.

| fiIn opposition to the motion, American Plumbing argued that an issue of fact existed as to whether Brien had ever paid the agreed-upon $40.00 in compromise of their dispute, because American Plumbing had not negotiated that check. It further asserted that there was an issue of fact as to whether Brien had actually suffered any damages as a result of the disputed bill being listed on his credit report and that if, in fact, Brien had lied to the court about being damaged, these misrepresentations would constitute ill practice. American Plumbing further argued that it had timely filed an answer, which had apparently been lost by the United States Postal Service. American Plumbing then filed a cross motion for summary judgment, contending that it was entitled to judgment in its favor vacating the default judgment, because the federal court had exclusive jurisdiction over this matter pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

Following a hearing on the motions and exception, the city court, by judgment dated December 14, 2005, denied the exception of prescription, but granted Brien’s motion for summary judgment, dismissing with prejudice American Plumbing’s petition to annul the default judgment. From the December 14, 2005 city court judgment dismissing its petition to annul the default judgment, American Plumbing appealed to the Nineteenth Judicial District Court. By judgment dated August 2, 2006, the district court, after review of the city court record, affirmed the December 14, 2005 city court judgment.

American Plumbing now appeals from the August 2, 2006 judgment of the district court, setting forth six assignments of error.

DISCUSSION

Through the Small Claims Procedures Act, LSA-R.S. 13:5200, et seq., each city court is authorized to establish by court rule a small claims | (¡division. LSA-R.S. 13:5201(A). A plaintiff may choose to file his suit in the small claims division rather than the regular civil docket of the city court if the claim is within the jurisdictional amounts of the small claims division. LSA-R.S. 13:5201(C). The small claims division is not a court of record, and the judges and clerks of the respective city courts serve as the judges and clerks of the small claims divisions. LSA-R.S. 13:5202. One of the stated purposes of the Small Claims Procedures Act is to “provide an efficient and inexpensive forum with the objective of dispensing justice in a speedy manner.” LSA-R.S. 13:5200. Thus, the statutory scheme provides for short and strict time delays.

Specifically, a defendant must answer the claim filed in the small claims division within ten days of service of citation. LSA-R.S. 13:5203 & LSA-C.C.P. art. 4903. If the defendant fails to answer timely, and the plaintiff proves his case, by producing relevant and competent evidence which establishes a prima facie case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary. LSA-R.S. 13:5203 & LSA-C.C.P. art. 4904.

A judgment in a small claims division becomes final and executory three days after it is signed or notice of judgment, if necessary, is mailed, unless within that period, a motion for new trial is filed. LSA-R.S. 13:5208(B). Notably, there is no appeal from a judgment rendered by a small claims division of city court, and a plaintiff who files a complaint in a small claims division shall be deemed to have waived his right to appeal unless the matter is removed or transferred from the small claims division docket. LSA-R.S. 13:5209(A). Additionally, a defendant shall be deemed |7to have waived his right to appeal unless, within ten days of service of citation, he files a written motion seeking “removal” of the action (ie., transfer) to the ordinary civil docket of the court in which the complaint is filed. LSA-R.S. 13:5209(B), LSA-R.S. 13:5203(A), and LSA-C.C.P. art. 4903.

In the instant case, while a question may have existed as to when or if American Plumbing filed an answer, it is undisputed that it did not file a motion to transfer this matter from the Small Claims Division to the regular civil docket of the Baton Rouge City Court until July 19, 2004, more than one year after service of citation was perfected and one year after the default judgment was obtained. Thus, given the clear mandates set forth for small claims actions, in the absence of a timely request for transfer to the ordinary civil docket, the Small Claims Division was prohibited- by law from entertaining or granting such a request, notwithstanding any seeming consent of the parties. See LSA-R.S. 13:5209(B); O’Quin v. Kinder Paint Company, Inc., 616 So.2d 879, 881 (La.App. 3rd Cir.1993). Specifically, the transfer procedure set forth in the statutory scheme envisions more than a transfer for the convenience of the parties; the timeliness of the request for a transfer from the Small Claims Division to the regular civil docket governs whether rights to further review are gained or lost.

More importantly, we further conclude that the city court lacked jurisdiction under its regular civil docket to consider the petition to annul the default judgment filed by American Plumbing on February 9, 2005. An action to annul a judgment must be instituted in the court that issued the |¡judgment. O’Quin, 616 So.2d at 881. The default judgment forming the subject of American Plumbing’s petition to annul was rendered by the Small Claims Division of the Baton Rouge City Court. Thus, American Plumbing was required to file its petition to annul in the Small Claims Division, and the city court lacked subject matter jurisdiction under its regular civil docket to consider American Plumbing’s petition to annul. Hence, the judgment granting Brien’s motion for summary judgment and dismissing American Plumbing’s petition to annul is an absolute nullity as a matter of law. O’Quin, 616 So.2d at 881.

Accordingly, we must vacate the December 14, 2005 judgment, which granted Brien’s motion for summary judgment and dismissed American Plumbing’s petition to annul the default judgment. We further order that the petition to annul be transferred to the Small Claims Division of the Baton Rouge City Court for further proceedings. Because of our holding herein, |9we pretermit consideration of American Plumbing’s other assignments of error.

CONCLUSION

For the above and foregoing reasons, the August 2, 2006 judgment of the Nineteenth Judicial District Court, which reviewed and affirmed the December 14, 2005 judgment of the Baton Rouge City Court, is vacated. The December 14, 2005 judgment of the city court, which granted Richard Brien’s motion for summary judgment and dismissed American Plumbing’s petition to annul the July 18, 2003 judgment of the Small Claims Division, is likewise vacated. The matter is remanded to the Baton Rouge City Court, with instructions to transfer American Plumbing’s petition to annul to the Small Claims Division of the court and for further proceedings consistent with the views expressed herein. Costs are assessed one-half each to the parties.

VACATED; REMANDED WITH INSTRUCTIONS.

      . We note that the judgment of default and the subsequent judgment of December 14, 2005, before us on appeal both contain the caption "Baton Rouge City Court” and bear the same docket number. There is nothing in these judgments to allow this court to determine that one was rendered by the Small Claims Division and the other by the city court on its regular civil docket. Thus, we rely on the above-referenced minute entry (and the fact that an appeal was granted to the Nineteenth Judicial District Court) as establishing, for purposes of our review, that the matter was in fact transferred from the Small Claims Division to the regular civil docket of the city court.

      . Although the file stamp on the petition to annul is not legible, the February 9, 2005 minute entry indicates that the petition was filed that date.

      . The small claims division has subject matter jurisdiction in cases where the amount in dispute does not exceed $3,000.00. The small claims division of the city court also has authority to grant equitable relief. LSA-R.S. 13:5202(A) & (B).

      . If the defendant does file such a written motion within ten days of service of citation, the motion "shall be granted forthwith.” LSA-R.S. 13:5209(33). Thus, the statute clearly grants a defendant the absolute right to transfer to the regular docket (and its attendant rights of review) provided the request is timely made.

      . We recognize that the absolute nullity of a judgment may be asserted in a collateral proceeding at any time and before any court, without resort to an action in nullity. LSA-C.C.P. art. 2002(B). However, this court has held that where a party brings a direct action for the sole purpose of annulling an alleged absolutely null judgment, the direct action for nullity must be filed in the court where the original judgment was rendered. Knight v. Sears, Roebuck & Company, 566 So.2d 135, 137-138 (La.App. 1st Cir.), writ denied, 571 So.2d 628 (La. 1990). Additionally, we note that while American Plumbing alleged in its petition to annul one ground of absolute nullity, i.e., that the rendering court lacked subject matter jurisdiction, albeit on a different basis {i.e., that federal law governed), it also alleged several additional grounds of purported fraud or ill practices. LSA-C.C.P. arts. 2002(A)(3) & 2004. An action for nullity based on those grounds could only be asserted in a direct action in the rendering court. O'Quin, 616 So.2d at 881.

      . Although the parties herein have not raised the issue of the absolute nullity of the December 14, 2005 judgment of the city court, we are compelled to raise this issue insofar as it may affect this court's jurisdiction. See Whittenberg v. Whittenberg, 97-1424 (La.App. 1st Cir.4/8/98), 710 So.2d 1157, 1158. Moreover, we are empowered to “render any judgment which is just, legal, and proper upon the record on appeal.” LSA-C.C.P. art. 2164; see generally Francis v. Lafon Nursing Home of Holy Family, 2002-1863 (La.App. 4th Cir.3/19/03), 840 So.2d 1281, 1290, writ denied, 2003-1373 (La.9/19/03), 853 So.2d 643.

      . In doing so, we note that even if we were to conclude that the parties could somehow confer jurisdiction by agreement to an untimely transfer from the Small Claims Division to the regular city court docket, the motion for summary judgment was nonetheless improvidently granted. Specifically, we note that the record before us contains a July 1, 2003 minute entry stating that an answer was filed that date on behalf of defendant, American Plumbing. Also, while the answer contained in the record does not contain a legible file stamp date, we further note that a reconventional demand apparently filed by American Plumbing contains a faint file stamp that appears to list the date filed as July 1, 2003, which, of course, would correspond with the July 1, 2003 minute entiy.
      Regarding nullity of a judgment for fraud or ill practices pursuant to LSA-C.C.P. art. 2004, this article is not limited to cases of actual fraud or ill practices, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure. Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La.10/16/01), 800 So.2d 762, 766. If, in fact, American Plumbing did timely file its answer on July 1, 2003, and the July 18, 2003 default judgment was then rendered on the basis that American Plumbing had not filed an answer, the judgment could be subject to annulment on the basis of fraud or ill practices, as having been rendered through an improper procedure. Certainly, the above-referenced July 1, 2003 minute entry and file-stamped reconventional demand of record raise a genuine issue of material fact that should have defeated the grant of summary judgment to Brien herein. This issue would clearly have to be resolved by the Small Claims Division on remand.


author: HUGHES, J. GUIDRY, J.,

text:
    Cleuonia WINBORNE v. SANDERSON FARMS.
    No. 2006 CA 2272.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Rehearing Denied Nov. 7, 2007.

      J. David Smith, Baton Rouge, Counsel for Claimant/Appellant Cleuonia Win-borne.
    John T. Roethele, Denham Springs, Counsel for Defendant/Appellee Sanderson Farms.
    Before: WHIPPLE, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

I pThis is an appeal from an action seeking workers’ compensation benefits, which were denied. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 9, 2005, claimant, Cleuonia Winborne, filed a “Disputed Claim for Compensation” with the Office of Workers’ Compensation (OWC). On that form, Ms. Winborne stated that her “Date of Hire” was “7-_-04,” and that her “Date of Injury/Illness” was “8-10-04.” Ms. Win-borne asserted that while working as a chicken “deboner” for the defendant, Sanderson Farms, in late July through August of 2004, she began to experience debilitating pain in her arms, forearms, and hands “to the point that she could no longer continue working.”

Ms. Winborne was diagnosed with carpal tunnel syndrome in both hands and surgery was recommended; her activities were restricted pending surgery. Ms. Winborne alleged that when she reported back to Sanderson Farms with this information on August 12, 2004, she was fired.

Sanderson Farms asserted that Ms. Winborne’s condition first arose when she was working for her previous employer, that the previous employer was responsible for payment of any workers’ compensation benefits that were due, and that the claimant failed to overcome the presumption contained in LSA-R.S. 23:1031.1(D).

| ^Following a hearing on July 6, 2006, the OWC judge ruled in favor of defendant and dismissed Ms. Winborne’s claim. Ms. Winborne has appealed the ruling to this court, asserting the following assignments of error:

(1) The [OWC] erred by failing to determine if Appellant’s employment at Sanderson Farms aggravated a preexisting occupational disease resulting in manifestation of a disabling condition.
(2) The [OWC] erred by failing to consider whether Sanderson Farms was responsible for workers’ compensation benefits if Appellant’s employment therewith aggravated a preexisting occupational disease.
(3) The [OWC] erred in failing to award workers’ compensation benefits retroactive to the date of carpal tunnel diagnosis.
(4) The [OWC] erred in failing to award Appellant penalties and attorney fees for the employer/carrier failing to institute workers’ compensation benefits after it had knowledge that the claim was compensable.

LAW AND ANALYSIS

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature, and must establish that the accident was employment-related, that the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Construction, 2001-0077, p. 2 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851. Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Once the employee proves the occurrence of a work-related accident, he must next establish proof of a causal connection between the accident and the resulting injury by a preponderance of the evidence. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more Aprobable than not. Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the workers’ compensation judge based on all credible evidence. Id.

As in other cases, in reviewing the OWC judge’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Lafleur v. Alec Electric, 2004-0003, p. 4 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 478, writs denied, 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003-2447, p. 4 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, 79, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, an appellate court may only reverse an OWC judge’s factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Lafleur v. Alec Electric, 2004-0003 at p. 4, 898 So.2d at 478.

Prior to the legislative extension of workers’ compensation coverage to include occupational diseases, a workers entitlement to compensation hinged on the occurrence of an “accident,” which can only be established by the claimant’s proof of an “identifiable precipitous event” that caused injury. While enlarging workers’ compensation coverage to cases of occupational | r,disease, LSA-R.S. 23:1031.1 retains the requirement that an employee establish that the disease arises from his work, i.e., from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. The causal link between a claimant’s illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of only a possibility that the employment caused the disease or that other causes not related to the employment are just as likely to have caused the disease. Dunaway v. Lakeview Regional Medical Center, 2002-2313, p. 5 (La.App. 1 Cir. 8/6/03), 859 So.2d 131, 134-5.

In the case sub judice, the OWC judge found that Ms. Winborne had failed to establish her right to workers’ compensation benefits because she failed to rebut the statutory presumption applicable to her claim as contained in LSA-R.S. 23:1031.1(D), which provides, in pertinent part:

§ 1031.1. Occupational disease
A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence. [Emphasis added.]

Carpal tunnel syndrome is considered an occupational disease; however, where the claimant has been employed for less than a year, there is a rebuttable statutory presumption under LSA-R.S. 23:1031.1(D) that the employment did not cause the carpal tunnel syndrome. This presumption can be overcome and the claimant can receive compensation if the claimant proves by a preponderance of evidence that the disease was contracted during her employment. See Killett v. Sanderson Farms, 2001-0277, p. 6 (LaApp. 1 Cir. 5/10/02), 818 So.2d 853, 859 (citing Thornell v. Payne and Keller, Inc., 442 So.2d 536, 541 (La.App. 1 Cir.1983), writ denied, 445 So.2d 1231 (La.1984)).

In ruling against the claimant in this case, the OWC judge gave the following reasons for judgment:

I can’t get around Subsection D’s specific reference to contracting a disease within the course and arising out of such employment. In other words, I have many situations I can recall where I’m dealing with an employer like Sander-son — and, in fact Sanderson specifically — where I have an employee who worked less than the 12-month presumptive period in the statute.
The main thing I struggle with in those cases is I don’t have any previous reports, documentation, testimony of the same type problem. So I’m left to decide ... what are the doctors saying about the probabilities of this happening within whatever timeframe we’re talking about. ...
In reviewing the evidence, it looks like the first report of any problem with the hands, it actually came on July 14, 2004. And this is in Exhibit P16. There’s a— this is the little 17computerized printout of the nurse — I guess on-duty nurse visits. It was 7/14/2004 at 19:55 which would have been 7:55 p.m., and that corresponds with her testimony as far as she reported it to the night nurse.
But it’s reporting problems of a swollen left thumb. It confirmed that she was given Aleve. So, I mean, that’s the short timeframe that I’m having to struggle with.... The evidence suggests she started there either... late June, early July. There’s a handwritten note that says her employment actually started June 30, 2004. So, I mean, I’m dealing with a period of two weeks.[]
And, you know, I guess the bigger problem is the medical evidence that I have in front of me. Dr. Acosta’s report which is P7-B I’m referring to. The history is a little curious because according to his history and his narrative report, he states the following, “Chief complaint is pain in her arms and hands. She noticed it about one or two years ago when she would wake up in the middle of the night with her arms hurting;
“She noted she had pins and needles in the hands. She also notices that as time went on, she began dropping things. And she noticed that when it was cold outside, she would start hurting more in her forearms and in her arms. She said that she used to work as a produce helper and she could not do that since her arms were really hurting really bad so she stopped.”
I mean, in that sense, the history almost sounds like she was aware of this problem in her hands and arms so much so that she had to quit the job as the produce helper.
Then Dr. Stokes ... specifically notes the history dating back to November 2003. So, again, typically when I’m dealing with a 1031.1(D) case — in other words, the 12-month presumption case — I’m really just trying to figure out from date of employment forward could this repetitive type employment cause whatever you’re suffering from now.
In this case, I don’t find that she’s met the burden by a preponderance under Subsection D because there’s a fairly well documented prior history, you know, since at least November of 2003 up until when she was hired on at Sand-erson Farms. And I think obviously the biggest hurdle that I have to overcome is Ms. Winborne’s own testimony.
I mean, I guess the irony in my situation is she’s an extremely credible person. But the problem is she’s telling me that, yes, I was having these problems. I don’t know, medically, you know, I’d have to rely on the doctors for that kind of thing. But I don’t know that it’s convincing me enough that you’re describing one type of pain as a toothache type pain and one type of pain as a numbness.
In other words, the overriding factor for me I guess is she’s telling me — she’s telling at least one doctor these hand | sproblems, let’s just say, started at least seven months before her employment with Sanderson. So I guess for those reasons, I can’t conclude that she’s contracted as it says in Subsection D the carpal tunnel syndrome from working at Sanderson.
.. .And, again, you know, Ms. Win-borne is extremely credible. But even just listening to the chronology of events as she’s explaining it, it didn’t do anything to tip the scale past the preponderance under Subsection D. It’s like [counsel for Sanderson Farms] says ... the Legislature says “contracted in the course of and arising out of such employment.” ... I don’t find that she’s met her burden under that standard.

During the trial of this matter, Ms. Win-borne testified regarding her job with Sanderson Farms and circumstances leading to her disability. She stated that it was her job to cut the wings of chickens as they came down a conveyor belt. Ms. Winborne stated that typically she cut up between 80 and 100 chickens per hour and between 800 to 1,100 chickens per her six to seven hour work day. Ms. Winborne also testified that her working environment at Sanderson Farms was very cold and that sometimes the chickens were frozen, making the job of cutting more difficult. Ms. Winborne pointed to her work activities of “grabbing” knives and chickens as causing her arms and hands to hurt. She stated that her hands would get cold and “ache like a toothache.”

However, Ms. Winborne admitted that when she began working at Sanderson Farms in July of 2004 she already had problems with her hands and arms. When asked whether she ever experienced “that problem with [her] hands and arms” while working for Trabona’s, Ms. Winborne responded, “Yes.” Ms. Winborne indicated she began having problems with her hands in 2003. However, Ms. Winborne stated the pain she experienced at Trabona’s and at Sanderson Farms was different:

At Trabona’s, it was like just the deadness and the numbness. At Sand-erson Farms, they ache[d] like a toothache. The coldness of it. I would go home at night and I had to actually — the only way I could get them to stop was to sit on them and warm them up. They would hurt so bad, I would cry.

|hMs. Winborne testified that when her hands and arms bothered her at Trabo-na’s, she could “shake it off a little and it [would] go away.” Ms. Winborne never sought medical treatment for her condition while she was working at Trabona’s. Ms. Winborne described her hand and arm condition at the time of trial as follows:

They tingles [sic] a lot. My hands never did stop tingling. They tingle 24 hours a day like they do now. But I’m so used to it that, you know, I’m just used to it. But they swelled a lot. I have to — my ring, I had to take it off because they just [swell] and get too tight. And by me trying to twist and get it off, it ... caused a sore on my hand like I have now. They swelled a lot.
Every now and then they’ll ache if they get cold. Like if I go in my refrigerator and get cold meat out or something, they will ache. But I take Aleve or Advil or something like that to stop it, you know. That’s what I go through now.

Ms. Winborne further testified that after she left her employment with Trabona’s in June of 2004 she was unemployed for approximately two weeks before going to work for Sanderson Farms. During that time, Ms. Winborne stated that her condition improved “because I didn’t have the symptoms no more [sic].”

Ms. Winborne estimated that she first reported pain in her hands to Sanderson Farms via the “night nurse.” The following day, Ms. Winborne went to her family physician, Dr. Kumar, who told her she had carpal tunnel syndrome and gave her pain medication. When she returned to work, the Sanderson Farms “day nurse” gave her “some more pills, [and] sent [her] back on the line.” Ms. Winborne also testified that when she told Sanderson Farms that she had carpal tunnel syndrome on August 12th, she was fired.

Ms. Winborne was also treated by Dr. Joseph Acosta, who verified to her that she had bilateral carpal tunnel syndrome and recommended that she not “do any kind of activity until [she had] surgery.” The medical report and |inrecords of Dr. Acosta were introduced into evidence and contained a diagnosis of carpal tunnel syndrome and recommendation of surgery. While Dr. Acosta indicated in his medical report that Ms. Winborne’s employment at Sanderson Farms may have aggravated her condition, he did not opine that her occupational disease was contracted as a result of this employment. See LSA-R.S. 23:1031.1(A). Dr. Acosta did not testify at trial.

The deposition of Dr. Harold Stokes, who examined Ms. Winborne as an independent medical examiner, was introduced into the record before the OWC. Based on the history obtained, his examination of the medical records, and his examination of Ms. Winborne, Dr. Stokes testified that he found it unlikely that Ms. Winborne’s carpal tunnel syndrome developed from her work at Sanderson Farms. Dr. Stokes testified that the carpal tunnel syndrome was more likely to have been idiopathic in nature because he stated that it is a common condition developed by women in their early forties, which is generally hormone related. Dr. Stokes did not associate the development of Ms. Winborne’s carpal tunnel syndrome with either her employment at Trabona’s or her employment at Sanderson Farms, but rather to other personal factors. However, Dr. Stokes admitted that Ms. Winborne’s repetitive work activities could have aggravated her carpal tunnel syndrome. Dr. Stokes explained that a person with carpal tunnel syndrome will get symptoms under many different conditions, including reading a newspaper or driving a car.

In this case, the OWC judge ruled that Ms. Winborne failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was caused by her employment with Sanderson Farms. After a thorough review In of the testimony and evidence presented in this case, we are unable to say the OWC judge manifestly erred in this ruling. Because Ms. Win-borne was able to show only a possibility that her Sanderson Farms employment contributed to her condition, she failed in the burden of proof required to overcome the presumption present in LSA-R.S. 23:1031.1(D). See Dunaway v. Lakeview Regional Medical Center, 2002-2313 at p. 5, 859 So.2d at 134-5. Therefore, we must affirm the judgment of the OWC in favor of Sanderson Farms.

CONCLUSION

For the reasons assigned, we affirm the judgment of the OWC, and assess all costs to appellant, Cleuonia Winborne.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

hThe issue in this case is whether the claimant’s disease (carpal tunnel syndrome) is compensable as an occupational disease when the disease was ‘pre-existing and symptomatic prior to the claimant’s employment with the defendant employer, but only became disabling while the claimant was working for the defendant employer. The majority interprets La. R.S. 23:1031.1(D) as precluding the claimant’s recovery of workers’ compensation benefits because the evidence clearly establishes that her injury pre-existed her employment with the defendant employer; however, the majority improperly relies on only the first portion of La. R.S. 23:1031.1(D) in reaching its conclusion.

The second portion of La. R.S. 23:1031.1(D) provides “however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence.” (Emphasis added). It is undisputed that the record shows, by more than a preponderance of the evidence, that Ms. Winborne contracted carpal tunnel syndrome during her prior twelvejmonth’s2 employment with Trabona’s IGA Food Store. Thus, in accordance with the plain language of the statute, Ms. Winborne’s claim for her carpal tunnel syndrome became “compensable.”

This conclusion that Ms. Winborne’s claim for her carpal tunnel syndrome is compensable is further supported by this court’s decision in Thornell v. Payne and Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984), in which case the claimant’s doctors stated that the claimant contracted the disease during his prior employment, but nevertheless further opined that the current employment also contributed to the claimant’s development of the disease. This court therefore held that since the claimant’s disease became disabling during the most recent employment and there was evidence that the most recent employment was “a causative factor in the development” of the claimant’s condition, the claimant was deemed to have contracted the disease during the most recent employment, as well as the prior employment. It was therefore held that the claim was compensable and the claimant’s most recent employer was liable for the payment of workers’ compensation benefits. See Thornell, 442 So.2d at 542-543 and 545-546.

Accordingly, based on the language of the statute and this court’s Thomell opinion, I respectfully dissent from the decision rendered herein.

      . The claimant had worked for Trabona's IGA Food Store (Trabona’s) between 2001 and July 2004, in the produce department, prior to working for Sanderson Farms. The claimant named Trabona’s as a defendant in the OWC action. Ms. Winborne stated that the repetitive tasks she was required to perform in her job at Trabona’s caused numbness and pain in her arms and hands, though not to such an extent as to keep her from working or to the degree later caused by her job at Sand-erson Farms. Trabona's was dismissed from the OWC action pursuant to a settlement agreement with the claimant prior to trial.

      . Evidence introduced into the record shows that Ms. Winborne worked the following hours for Sanderson Farms over the entire course of her employment: July 3, 2004 through July 9, 2004 — 15 hours; July 10, 2004 through July 16, 2004 — 23.8 hours; July 17, 2004 through July 23, 2004 — 28.2 hours; July 24, 2004 through July 30, 2004 — 31.9 hours; July 31, 2004 through August 6, 2004 — 23.4 hours; and August 7, 2004 through August 13, 2004 — 34.7 hours (for a total of 157 hours).

      . "Idiopathic” means "a disease whose cause is unknown or uncertain.” Webster’s New World Dictionary, Third College Edition, p. 670 (1988).


author: HUGHES, J.

text:
    Nick J. BRUNO v. Sarah C. BRUNO.
    No. 2006 CA 2302.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Writ Denied Dec. 14, 2007.

      Patrick K. Reso, Glen R. Galbraith, Richard L. Traína, Nicole R. Dillon, Hammond, Counsel for Plaintiff/Appellant Nick J. Bruno.
    Lila Tritico Hogan, Hammond, Counsel for DefendanVAppellee Sarah C. Bruno.
    Before: WHIPPLE, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

|2This appeal arises from a judgment granting an exception of res judicata. For the following reasons, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Nick and Sarah Bruno were married in June of 1976 and divorced by judgment of the 21st Judicial District Court in July of 1992. A trial in an action to partition community property was set for October 7, 1993. Prior to the trial, the parties entered into an agreement resolving the community property issues. The agreement was incorporated by reference into a judgment dated October 8, 1993. Section (IV) of the agreement is entitled “Retirement” and provides the method by which each party will calculate their interest in the other’s retirement plan. The parties each had state employment retirement plans and they agreed to calculate his or her respective community interests under the formula set forth in Sims v. Sims, 358 So.2d 919 (La.1978). Furthermore, the agreement states that “[t]he properties received herein by each party are received in full ownership and each party renounces any interest therein ... except as otherwise stipulated herein.” A review of the record reveals there is no stipulation or reservation regarding the division of the retirement plans.

Mr. Bruno contends that his subsequent employment with the State of Louisiana has “advanced tremendously” such that he is currently the Vice President of Operations and Facilities for the University of Louisiana System. This advancement has allegedly created a substantial post-community increase in the value of his retirement fund. Consequently, on May 5, 2006 Mr. Bruno filed a “Petition for Supplemental Partition or To Amend Prior Judgment” asking the trial court to amend the 1993 judgment. Ms. Bruno, on May 30, 2006, filed a “Motion & Order to Continue and | ^.Exception of No Cause of Action, Transaction & Compromise and Res Judi-cata and Unauthorized Use of Summary Proceeding.” A hearing was held and on August 30, 2006 a judgment was signed maintaining Ms. Bruno’s exception of res judicata and dismissing with prejudice Mr. Bruno’s petition for supplemental partition. This appeal followed.

LAW AND ANALYSIS

Appellant alleges that the trial court erred in maintaining Ms. Bruno’s exception of res judicata. Specifically, Mr Bruno alleges that: (1) in matters ancillary to divorce, res judicata is precluded as to causes that could have been, but were not pleaded, (2) all necessary elements of res judicata were not present in this case; and (3) the October 1993 judgment was not a final judgment because it had not been “approved” by the Louisiana State Employee’s Retirement System (LASERS).

The applicable general principles of res judicata are set forth in LSA-R.S. 13:4231, which states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment

^Therefore, the central inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action.

Mr. Bruno correctly notes that under LSA-R.S. 13:4232(B), there is a bar to the res judicata effect concerning matters ancillary to divorce and which were not adjudicated. Mr. Bruno urges this court to conclude that the issue in this case is whether there was a substantial increase in his pension plan due to his own post-community efforts and achievements. On that basis, Mr. Bruno argues that we should determine the exception applies to bar the application of res judicata. Mr. Bruno also cites the case of Ortiz v. Ortiz, 2001-1252, p. 5 (La.App. 5 Cir. 05/15/02), 821 So.2d 35, 37, which held that “in a contest concerning the res judicata effect of a community property partition judgment, the res judicata effect, or the authority of the thing adjudged, takes place only with respect to what was the object of the judgment.”

The October 1993 judgment addresses the entire community estate, particularly Sarah Bruno’s interest in Nick Bruno’s retirement plan. As such, the retirement plan was an object of the judgment and was dealt with in the first action. Therefore, any claims concerning said pension plan are susceptible to an exception of res judicata and Mr. Bruno’s argument is without merit.

Mr. Bruno also argues that all essential elements of res judicata were not shown. Specifically, Mr. Bruno argues that the same claim or cause of action was not involved in both instances.

The essential elements of res judi-cata are as follows: (1) The parties to the actions must be identical, (2) the prior judgment must have been | ^rendered by a court of competent jurisdiction, (3) there must have issued a final judgment on the merits, and (4) the same claim or cause of action must be involved in both cases. Id., at 38.

As stated above, the claim at issue in both the original action and this action is Sarah Bruno’s interest in Nick Bruno’s pension plan. The pension plan claim was adjudicated, reduced to an agreement, and incorporated into the 1993 judgment of the trial court. Again, we are not persuaded by appellant’s argument.

Mr. Bruno urges that Hare v. Hodgins, 586 So.2d 118 (La.1991), provides authority to bring the instant action, defeat the exception of res judicata, and overturn a judgment rendered thirteen years ago.

In Hare, the community property partition did not address the husband’s retirement plan. In that case the husband and wife, married twenty-four years, divorced and voluntarily partitioned some of their community assets in 1977. The partition did not allocate the relative entitlements of the parties in pension benefits earned as a result of the husband’s participation in a retirement plan. The pension was simply overlooked and was omitted from the partition. The husband in Hare retired in 1988 and that same year, his former wife filed an action to partition the community interest in the pension benefits. Hare, 586 So.2d at 121.

Since the husband’s pension plan had never been allocated, each party continued to own the plan in indivisión. The trial court overruled the husband’s exception of res judicata, holding that the exception did not apply since ownership of the plan had not been adjudicated in the previous action. Id., at 121.

The trial court divided the benefits pursuant to the Sims formula and the husband appealed. The court of appeal affirmed the procedural rulings, Rbut reversed the partition decree and substituted its own partition judgment, awarding the pension to the husband and granting the former wife a lump sum based on the “Termination of Employment” provisions of the retirement plan. Id., at 121. The supreme court granted writs and remanded the matter to the trial court with a directive to render a new partition judgment after conducting further proceedings “to determine whether the community fraction rule underlying the fixed percentage method applied [by the trial court] should be modified to reflect that some of the post-community increases in earnings by the employee spouse should be attributed solely to [the husband’s] personal effort or skill and not related to the prior community earnings.” Id. at 129.

Thus, the Hare case dealt with the method of allocation of a previously un-partitioned community asset, not the reallocation of an asset addressed in a previous partition judgment. Since the Hare case dealt with the equitable distribution of a pension plan that had never before been partitioned, that case is distinguishable from the case at hand. The Hare opinion does not hold that after community property is voluntarily partitioned and a final judgment regarding that property has issued, res judicata is inapplicable to bar a re-adjudication of that property.

This court distinguishes Terrebonne Fuel & Lube Inc. v. Placid Refining Company, 95-0654, 95-0671 (La.1/16/96), 666 So.2d 624, which dealt with a judgment that contained a specific exclusion of the claim asserted, therefore barring the application of res judicata. Instead, as recognized in Allen v. Allen, 01-0213 (La.App. 3 Cir. 06/06/01), 787 So.2d |71226, absent a showing that community property exists which was not previously partitioned, the exception of res judicata will apply.

In the instant case Mr. Bruno was informed and represented by counsel. The parties negotiated the terms and chose to take the risks inherent in the Sims formula. They could have, but did not, reserve any rights to re-negotiate the pensions in the future. We find that they intended the 1993 judgment to be a final adjudication on of their retirement plans. We decline to re-allocate the previously partitioned asset. As the trial court found, “a deal is a deal.”

Finally, Mr. Bruno argues that because the judgment was not “approved” by LASERS, it is not a final judgment and on that basis, his action is not barred by res judicata. At the hearing on the exception of res judicata, Ms. Bruno’s attorney offered some “stipulations” and also offered as “Sarah Bruno One” documentation that the settlement of the parties had been approved by LASERS, all without objection. This issue was not raised in the trial court and cannot be reviewed for the first time on appeal. We find this argument has no merit.

CONCLUSION

For the reasons assigned, the action of the trial court, granting the exception of res judicata and dismissing with prejudice Nick Bruno’s petition for supplemental partition is affirmed. All costs of this appeal are to be borne by appellant, Nick Bruno.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . We note the Second Circuit's decision of Welker v. Welker, 41,945 (La.App. 2 Cir. 3/7/07), 954 So.2d 225, insofar as it purports to interpret the holdings of the Hare court. The facts of Welker are distinguishable from the instant case in that the Welker court found that “in certain language the QDRO allows instances for adjustments for events that might call for the recalculation of benefits or through court modification of the QDRO’s effect.” Welker, 954 So.2d at 231. In the instant case, Mr. Bruno voluntarily entered into an agreement with no reservation of rights for the future.