text:
    Brian DOYAL v. VERNON PARISH SCHOOL BOARD.
    No. 2006-1088.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Rehearing Denied March 21, 2007.

      Maria A. Losavio, Losavio Law Firm, LLC, Alexandria, LA, for Plaintiff/Appel-lee, Brian Doyal.

      Stacy C. Auzenne, Auzenne Law Firm, LLC, Alexandria, LA, for Defendant/Appellant, Vernon Parish School Board.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

h The employee allegedly sustained injuries in an accident related to his employment as a cafeteria worker. The employer terminated benefits and sought a determination that the employee forfeited benefits due to what it asserted were fraudulent statements concerning the claim and failure to timely report wages from outside employment. The employee sought reinstatement of benefits as well as penalties and attorney’s fees. The workers’ compensation judge found in favor of the employee and awarded the relief sought. The employer appeals. The employee answers the appeal. We affirm.

Factual and Procedural Background

The record establishes that Brian Doyal was employed by the Vernon Parish School Board as a cafeteria cook at East Leesville Elementary School. Mr. Doyal asserts that he sustained injury on October 9, 2003 when a sheet pan rack toppled against him and knocked him to the ground. He contends that a faulty wheel caused the accident.

Marsha Mayo, the cafeteria’s assistant head cook, explained that she was nearby and that she responded to Mr. Doyal’s moaning. She testified that she and Mr. Doyal lifted the sheet pan rack to its upright position. Later that afternoon, she completed an accident report form for Mr. Doyal.

Mr. Doyal reported to the emergency department of the Byrd Regional Hospital on the afternoon of the alleged accident. The department’s records indicate that he complained of pain to the left shoulder, waist, hip, and lumbar spine and reveal a diagnosis of contusion to the left shoulder. He also complained of soreness over his rib cage. Mr. Doyal was instructed not to return to work until seeing his primary care physician. Although Mr. Doyal treated with various physicians, his complaints of |j>pain continued. Physicians ultimately recommended a diskectomy to alleviate pain from a herniated lumbar disc and a carpal tunnel release.

Initially, the School Board provided Mr. Doyal with temporary total disability benefits as well as medical benefits. However, the School Board provided its final indemnity payment in June 2004. According to Edyce Rivet, the Mor-Tem Risk Management claims representative assigned to the case, benefits were terminated after she learned that Mr. Doyal commenced summer employment as the kitchen manager for a local summer camp. Medical benefits were later terminated. The lumbar surgery and carpal tunnel release were not provided.

This matter was instituted on August 5, 2004 when the School Board filed a “Disputed Claim for Compensation” and, in its pre-trial statement, asserted that Mr. Doyal fraudulently accepted compensation benefits while earning in excess of ninety percent of his pre-accident wage, provided false statements regarding the occurrence of the accident, and failed to disclose preexisting back injuries in his employment questionnaire and in the history provided to physicians who treated him after the accident. The School Board sought reimbursement of all indemnity, medical, and mileage benefits. Mr. Doyal filed his own claim and asserted entitlement to TTD benefits as well as penalties and attorney’s fees due to the termination of benefits.

The workers’ compensation judge denied the School Board’s forfeiture claims, reinstated TTD benefits from the date they were last paid, and found Mr. Doyal entitled to continued medical care, including the recommended back surgery and carpal tunnel release. The trial court awarded $8,000.00 in penalties and $25,000.00 in attorney’s fees pursuant to La.R.S. 28:1201(1).

The School Board appeals and argues that the workers’ compensation judge erred in: 1) denying the claim for forfeiture of benefits under La.R.S. 23:1208 and La.R.S. 23:1208.1; 2) concluding that Mr. Doyal suffered a work-related accident; 3) | a awarding penalties pursuant to La.R.S. 23:1201(1); and 4) ordering continued medical care and the lumbar and carpal tunnel surgeries. Mr. Doyal answers the appeal and asserts that he is due additional penalties for failure to authorize medical benefits. He also seeks additional attorney’s fees for work performed on appeal.

Discussion

Forfeiture — Louisiana Revised Statutes 23:1208.1

The School Board first contends that the workers’ compensation judge erred in denying its claim for forfeiture under La.R.S. 23:1208.1 as Mr. Doyal failed to disclose previous injuries in his employment health questionnaire. The School Board points to back, hip, shoulder, and leg injuries Mr. Doyal sustained when he fell from a roof in 1991 and notes that he denied injury to these areas in the employment questionnaire. At trial, Mr. Doyal explained that he completed .the questionnaire with the assistance of School Board personnel and that he thought the inquiry pertained to whether he was currently having difficulty or whether he had suffered from the problems in the recent past.

Louisiana Revised Statutes 23:1208.1, entitled “Employer’s inquiry into employee’s previous injury claims; forfeiture of benefits[,]” provides:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury jund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

(Emphasis added.) In Nabors Drilling USA v. Davis, 03-0136, pp. 5-7 (La.10/21/03), 857 So.2d 407, 414-15, the supreme court explained:

14Forfeiture is a harsh remedy; therefore, statutory forfeiture' provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Id., citing Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the burden of proving each of the elements required by the statute. Wise, 707 So.2d at 1218. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Id.
The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The untruthful statement must “directly relate[] to the medical condition for which a claim for benefits is made,” or it must “affectf ] the employer’s ability to receive reimbursement from the second injury fund.” LSA-R.S. 23:1208.1

A workers’ compensation judge’s factual findings relating to a forfeiture claim are subject to the manifest error/clearly wrong standard of review. Chaisson v. Philip Services Corp., 05-340 (La.App. 3 Cir. 11/2/05), 917 So.2d 514.

A portion of the workers’ compensation judge’s reasons for ruling in its denial 1 r,of the La.R.S. 23:1208.1 claim related to the credibility findings it afforded the testimony of Mr. Doyal. Otherwise, the workers’ compensation judge focused on the School Board’s failure to satisfy the specific requirements of La.R.S. 23:1208.1. This | ^determination is supported by the record as the School Board failed to put forth evidence indicating how the previous injuries were related to those now alleged. At most, comparison of the medical records reveals complaints of pain to similar parts of the body. Of further significance, the School Board failed to put forth evidence indicating that any knowledge that it could have obtained by disclosure would have permitted it to recover under the second injury fund. See La.R.S. 23:1378.

This argument lacks merit.

Forfeiture — Louisiana Revised Statutes 23:1208

The School Board also appeals its La.R.S. 23:1208 claim and again asserts that it was entitled to forfeiture due to Mr. Doyal’s failure to apprise physicians of his past injuries and due to statements he made in his deposition regarding his earlier accidents and pre-existing injuries. The School Board also contends that Mr. Doyal accepted workers’ compensation benefits while he was earning wages as the kitchen manager at the children’s summer camp.

Louisiana Revised Statutes 23:1208, entitled “Misrepresentations concerning benefit payments; penalty,” provides, in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to ■willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The above provision requires only “that (1) there is a false statement or representation, (2) it is willfully made, and (B) it is made for the purpose of obtaining or defeating any benefit or payment” before the forfeiture required by La.R.S. 28:1208 is applied. Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660|7So.2d 7, 12. A workers’ compensation judge’s determination as to the existence of the above factors will not be reversed on appeal absent manifest error. Murphy v. Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d 1157. After review of the record, we find no such error in the workers’ compensation judge’s determination.

Many of the misstatements/omissions complained of by the School Board stem from remarks and notations made within various medical records. The School Board’s allegations presume that Mr. Doyal had a thorough and sophisticated understanding of his physicians’ reporting of his condition from the previous decade. The record supports a determination that Mr. Doyal could have been unaware of these notations and that this lack of understanding and related failure to report did not warrant forfeiture. As the reasons for ruling indicate, the workers’ compensation judge assessed Mr. Doyal’s credibility and, at various times, considered Mr. Doyal’s educational background and intellectual capacity before concluding that the statements complained of were not willfully made for the purpose of obtaining benefits. This type of credibility determination is solely within the workers’ compensation judge’s province. Derouen v. C & D Prod. Spec., 98-57 (La.App. 3 Cir. 6/3/98), 718 So.2d 460. In short, even if false, the statements/omissions, whether to physicians or in Mr. Doyal’s deposition, were not of the nature that required the workers’ compensation judge to conclude that they were made for the purpose of obtaining benefits.

Neither do we find merit in the assertion that forfeiture was required due to Mr. Doyal’s summer employment with the School Board. There is no indication that Mr. Doyal impermissibly withheld information regarding his employment or that he was working in any capacity unacceptable to his physicians. He was provided flexible working conditions and was able to work in response to his needs and abilities. | sEarnings were reported and compensation benefits that were paid were reimbursed. The workers’ compensation judge was not required to find that this occurrence warranted forfeiture.

This argument lacks merit.

Workr-Related Accident

The School Board next questions the determination that Mr. Doyal suffered injuries as a result of a work-related accident. As it did at trial, the School Board contends that Mr. Doyal’s version of events regarding the sheet pan rack falling was fabricated and that it was not corroborated by surrounding circumstances.

As the claimant, Mr. Doyal was required to establish, by a preponderance of the evidence, that he received “personal injury by accident arising out of and in the course of his employment[.]” La.R.S. 23:1031(A). See also Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207. A workers’ compensation judge’s factual determinations regarding this burden are subject to the manifest error standard of review. Id. The workers’ compensation judge’s reasons for ruling reveal an assessment of credibility in favor of Mr. Doyal and those witnesses who corroborated certain aspects of his version of events. The workers’ compensation judge afforded little weight to those witnesses presented by the School Board in support of its position that the incident was fabricated. After review, we find that the record supports these determinations.

Mr. Doyal testified that the sheet pan rack fell onto him after a wheel gave way and knocked him to the ground. Ms. Mayo testified that she heard Mr. Doyal moaning and, finding both Mr. Doyal and the sheet pan rack on the floor, assisted with lifting the rack from the floor. She also explained that, although the rack’s wheel was intact, the adjoining metal flange was bent. Princess Dorsey, one of Mr. Doyal’s co-workers, also testified that she responded immediately afterwards. While the particulars of Ms. Dorsey’s accounting of the event were contested throughout the | Jitigation, Ms. Dorsey explained at trial that when she entered the kitchen, she saw Mr. Doyal lifting himself from the floor and that she asked him whether he was allright. Additionally, Johnnie Dubois testified that, although she was outside at the time of the incident, she returned to find Mr. Doyal sitting in a chair and holding his left arm. She explained that it appeared that he was “hurting” at the time. Ms. Mayo completed the accident report the same day and, later that afternoon, Mr. Doyal reported to the hospital. The hospital’s records indicate that he complained of soreness and include a notation of contusion to the left shoulder.

The School Board points to a variety of alleged inconsistencies within and between accounts of the event which it contends prevent a finding that Mr. Doyal’s evidence established a work-related accident and injury. At trial, the School Board focused on a lack of witness accounts regarding the noise that it asserts must have been produced by the pans and rack falling to the floor. All of these factors, including inconsistencies extracted from witness statements and medical records, were heard at trial. According to the reasons for ruling, they were generally accorded little weight. We find no manifest error in the workers’ compensation judge’s determination in this regard.

This assignment lacks merit.

Penalties and Attorney’s Fees

The School Board next questions the determination that penalties and attorney’s fees were due for termination of benefits. Louisiana Revised Statutes 23:1201(1) provides, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

| min determining whether an employer’s actions are arbitrary and capricious, the crucial inquiry is whether the employer can articulate an objective reason for terminating benefits at the time of the termination. Frith v. Riverwood, Inc., 04-1086 (La.1/19/05), 892 So.2d 7. Since the determination of whether an employer was arbitrary and capricious is essentially a question of fact, it is subject to the manifest error or clearly wrong standard of review. Id.

In awarding penalties and attorney’s fees, the workers’ compensation judge explained:

The Court finds that the employer’s termination of benefits in August of 2004 after they had received information that Mr. Doyal supplied them that he was working was arbitrary, capricious and unreasonable. The continued denial of his claims for benefits remained arbitrary, capricious and unreasonable in light of the fact that the employer chose to ignore all of the inconsistencies in their own witnesses’ versions of the incidents, chose to ignore the medical records and somehow argued that Mr. Doyal doesn’t have a significant problem when it’s all been found and substantiated by the medical professionals who agree that he needs surgery. In fact, he has a right leg atrophy due to the nerve damage associated with the disc herniation. They have not complied with their continuing duty to make themselves aware of the proper jurisprudence that resolves and addresses these types of issues....
The Court finds that, of course, the termination and the continued termination and refusal to reinstate^] arbitrary and capricious and unreasonable. I award an Eight Thousand Dollar ($8,000.00) penalty.

We find no manifest error in this determination.

The School Board asserts that it had an objective reason for terminating benefits as it learned that Mr. Doyal was employed by the summer camp and that he failed to timely inform the School Board of these earnings. The workers’ compensation judge was not required to find this point persuasive as testimony indicates that Mr. Doyal’s temporary work with the summer camp was extremely limited in terms of both hours and physical effort. A portion of his responsibilities involved training his replacement as he could no longer perform the work. Similar Inlight duty or sedentary work was not available with the School Board. Furthermore, while the School Board points to a failure to report earnings as a basis for the termination, the record indicates that Mr. Doyal, in fact, reported his earnings and returned TTD benefits that were erroneously paid after he began receiving wages. In any event, there is no indication that this information could not have served as a valid basis for the termination of medical benefits which occurred shortly after termination of indemnity benefits.

Again, the School Board points to inconsistencies in witness accounts and Mr. Doyal’s medical complaints. It argues that these provided it with a reasonable basis for questioning the occurrence of the accident. As reference to the reasons for ruling reveal, the workers’ compensation judge found the School Board’s reliance on these alleged inconsistencies unreasonable as it seized upon alleged inconsistencies in statements in support of Mr. Doyal, but ignored similar inconsistencies in its own witness accounts.

This assignment lacks merit.

Continued Medical Treatment

Neither do we find merit in the School Board’s final assignment of error in which it questions the award of continuing medical treatment of the low back condition and the carpal tunnel surgery recommended by his physicians. In a July 2004 report, Dr. Bradley Bartholomew, a neurosurgeon, recommended that, after further testing to rule out additional problems in the cervical spine, Mr. Doyal undergo a decompression and diskectomy at the L4-5 level. Dr. Donald Smith, a neurosurgeon who saw Mr. Doyal upon referral by the School Board, concurred in December 2004 that Mr. Doyal may require the recommended lumbar surgery and further recommended that he have the carpal tunnel surgery ordered by the workers’ compensation court. Although the School Board argues that these recommendations |1?.were made without knowledge of Mr. Doyal’s medical history, a February 2005 letter from Dr. Smith indicates, after he was provided with records revealing Mr. Doyal’s previous treatment and complaints, that: “No specific additional findings were recorded at any of these visits that would change my initial evaluation and impression as stated on the reports of 13 December 2004.”

This assignment lacks merit.

Additional Penalties

Penalties in the amount of $8,000.00 were awarded pursuant to La. R.S. 23:1201(1). In his answer to the appeal, Mr. Doyal contends that the workers’ compensation judge should have awarded separate $8,000.00 penalties under La.R.S. 23:1201(1) for termination of indemnity benefits and for termination of medical benefits. The wording of La.R.S. 23:1201(1), set forth herein, indicates otherwise. The paragraph speaks broadly of “claims” and subjects an employer to “a penalty not to exceed eight thousand dollars ...” In light of this language, the workers’ compensation judge did not err in awarding a single, $8,000.00 penalty.

Mr. Doyal also suggests that an additional penalty should have been awarded under La.R.S. 23:1201(F), the paragraph providing for penalties in the event that payments are not made. Again, we find no merit in this argument. In this case, both indemnity and medical benefits were initially provided and later terminated. Thus, the workers’ compensation judge appropriately limited penalties in this situation in accordance with La.R.S. 23:1201(1).

Attorney’s Fees

The workers’ compensation judge awarded $25,000.00 in attorney’s fees. The School Board did not appeal the quantum of that award in its appeal. In his answer, Mr. Doyal seeks additional attorney’s fees for work performed on appeal. In light of our earlier affirmation of the award of penalties and attorney’s fees under La.R.S. |1S23:1201(I), we award additional attorney’s fees for work performed on appeal in the amount of $2,500.00.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. Additional attorney’s fees in the amount of $2,500.00 are awarded to the appellee, Brian Doyal. Costs of this proceeding are assessed to the appellant, the Vernon Parish School Board, in the amount of $5,537.45.

AFFIRMED.

      . The reasons for ruling, as it relates to both the forfeiture claims under La.R.S. 23:1208.1 and La.R.S. 23:1208 claims, reveals, in part:
      [W]ith regard to a 1208.1 claim and the Medical Questionnaire, there's certain things in Revised Statute 23:1378 that are presumed to be permanenVpartial disabilities. None of those were available or present in Mr. Doyal's case. They were asked of him, and he denied them. The sine qua non of a 1208.1 is that the employer must show that the claimant had a known preexisting permanent/partial disability that he lied about or that he failed to inform the employer about on the Post-hire Medical Questionnaire. In my perusal of the medical evidence, I have found no perma-nenVpartial disability pre-existing the disability associated with the job accident. The case of Weis versus J.E. Merit Constructors, Incorporated addresses this issue. The case of — in fact, what happened in this case was the Medical Questionnaire was very broad and over vague with regard to, "Have you ever had” — the assertion that Mr. Doyal misinformed anybody about headaches, hip problems or arthritic problems. Mr. Doyal, in this Court’s view, was a very simple man. He did — despite the argument presented by the employer in Brief, he did very poorly in school. I reviewed his school records.... He as [sic] just an ordinary fellow. Plain and genuine. True blue. Very credible. Never once did he waiver. Never once did he fidget. The simple showing of misstatements with regard to past medical activities is insufficient to sustain a 1208.1 defense. There are other things the employer must do. They must show that they were prejudiced by the failure to disclose a known pre-existing perma-nenl/partial disability. I have searched in vain to see if there is any medical records to show that this was inevitable to follow from the accident described. And, of course, I relied upon the case of Nabors Drilling, U.S.A. versus Davis, a Supreme Court case, 857 So.2d, 407 [ (La.2003) ], and Hickman versus Jim Smith Lagging, 883 So.2d, 1072 [ (La.App. 3 Cir.9/29/04) ], a third circuit case September 2004. Now, I note with regard to the argument made by the employer that, "Look, Mr. Doyal signed the Post-hire Medical Questionnaire.” And so look at the Price versus Breaux Brothers case. It’s well settled that, you know, he signed it, he has to live with it. However, in Hickman versus Jim Smith Logging the Third Circuit declined to follow the Price versus Breaux Brothers case with regard to the effect of a signature on an instrument which the individual signer did not read. I am not convinced at all that Mr. Doyal had any clear understanding of the questions being asked him giving [sic] his educational record. Hickman talks about what is necessary to prove directly related to, and somehow the employer argues that he had this T-9 fracture. He had some hip problems. He had some headache problems. He had a multiplicity of problems. None of which Mr. Doyal really denied at trial, although he failed to recall all of those at his deposition. And, in fact, he — after his deposition was taken, he made an effort to correct his deposition. And before he could correct that deposition, an amended claim was filed that he lied about these previous problems. So I thought I’d have to take a look at that type of issue, and I note the case of Freiman[Freeman] versus Triad Builders, a 902 So.2d 1220 [ (La.App. 2 Cir.5/11/05) ], Second Circuit case decided May 11th of 2005, where the employer said, "Look, Mr. Freiman's lied about his driving capabilities. We took his deposition, and he said he can’t drive more than a hundred yards. Look at our video. He drove from Shriever, Louisiana to Shreveport, Louisiana.!”] After his deposition was taken, Mr. Freiman's wife corrected him and said, "Hey, didn’t you remember your driving?” So he thereafter corrected his deposition testimony. Mr. Doyal had no significant problems after his T-9 fracture of any great merit. It's true that he sued his brother, but his testimony at trial was, "The only reason I sued my brother and his insurance was because I needed somebody to pay the medical bills I had.” Now, as any great attorney would do when the suit was filed, they alleged a multiplicity and a sundry of things just like a criminal prosecutor brings great charges in an effort to have, perhaps, a plea bargain to something much less. Now, Mr. Doyal said the claim was settled and there was no trial, and he got his medical bills paid. And that’s what happened with respect to falling off the trailer.
      Moreover, with regard to the case of Hickman versus Jim Smith Logging, there was no medical evidence or testimony presented that because he had a T-9 fracture, headaches, hip problems, et cetera, that the injuries he sustained when the pan rack fell on him were inevitable or very likely to occur. The fact of the matter is that once all of the past medical records were made known to the various physicians, they said it wouldn't change their opinion about the cause of Mr. Doyal’s injuries, that being his injuries sustained from the pan rack fall. This being the case, it has been found in the case of Hutchinson[Hutchison] versus Aid-worth Company, Incorporated, 888 So.2d, Page 1052 [(La.App. 4 Cir. 11/10/04)], that when the employer failed to put forth any evidence that the physicians' opinions would be changed, they have not sufficiently proved a 1208 violation. I guess there appears to be some argument as well by the employer that he had some degenerative type problems and that his continuing complaints are all associated with that. However, the fact of the matter is Mr. Doyal has a disc injury, a severe disk injury, which the physicians say given his age, is traumatic in nature and not the result of any degenerative condition. Since I have concluded that Mr. Doyal has proven by a preponderance of the evidence that the accident occurred, the 1208 argument made with respect to his alleged misrepresentations about that are really mute [sic].


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Roger R. ARNOLD, et al. v. Donald S. HANCOCK.
    No. 2006-632.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Marshall Leon, Monroe, LA, for Defen-dani/Appellant Donald. S. Hancock.
    Henry James Lossin, Sr., Jonesville, LA, Richard F. Zimmerman, Jr., Jennifer Aaron Hataway, Kantrow, Spaht, Weaver, et al., Baton Rouge, LA, for Plaintiffs/Ap-pellees Roger R. Arnold, Anita Neal Arnold and Roger B. Arnold.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

h This case involves a suit to enforce a 1993 owner-financed mortgage loan on immovable property against the defendant, Donald S. Hancock, by the plaintiffs/mortgage-holders, Roger R. Arnold and his parents, Anita Neal Arnold, and Roger B. Arnold (“the Arnolds”). In 1998, following numerous defaults by Mr. Hancock on the original 1993 mortgage note, the parties executed a second note. The 1998 note added a monthly late charge fee for any delinquent payments and increased the loan rate by one percent.

In 2004, following numerous defaults by Mr. Hancock on the 1998 note, the Arnolds filed suit, seeking to enforce the mortgage loan and to have their lien on the property recognized. Mr. Hancock defended the suit on the grounds that the second note, executed in 1998, operated as a novation that extinguished the 1993 note, and he further argued that the 1998 note was unsecured. Following the bench trial in 2005, the district judge determined that the 1998 note did not extinguish the secured 1993 note, and she entered a judgment in favor of the Arnolds, recognizing their special mortgage, lien, and privilege on the immovable property. She further granted the Arnolds a judgment against Mr. Hancock in the total amount of $213,418.77, which covered Mr. Hancock’s indebtedness on the loan and the Arnolds’ attorney fees. Mr. Hancock appeals.

For the reasons set forth below, we affirm the portion of the trial court’s judgment finding that the 1998 note did not by novation extinguish the 1993 note and the portion recognizing the Arnolds’ mortgage, lien, and privilege on the immovable property. However, we amend the portion of the judgment awarding a total of $213,418.77 and increase the total award to $215,548.56.

_1⅛1.

ISSUES

We must decide:

(1) whether the trial court erred in finding that novation of the secured note had not occurred and in recognizing the mortgage, lien, and privilege against the immovable property; and
(2) whether the trial court erred in calculating the indebtedness on the note, including the amount awarded for attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

On August 4, 1993, the Arnolds sold a restaurant and motel located in Jonesville, Louisiana, to Mr. Hancock for the purchase price of $150,000.00. Mr. Hancock paid $10,000.00 down and executed a promissory note for $140,000.00 in favor of the Arnolds. The August 4, 1993 promissory note was paraphed “Ne Varietur” by the notary public, identifying the note with a mortgage on the property as evidenced and described in the Act of Credit Sale of the same date, thereby creating a lien and privilege on the subject property. The 1993 promissory note and the Act of Credit Sale provided the terms of the sale and indebtedness, including the purchase price of $150,000.00, the down-payment of $10,000.00, and the finance terms for the balance of $140,000.00.

The 1993 note and Act of Credit Sale further provided for a $140,000.00 mortgage loan with an interest rate of eight and one half percent (8.5%) per annum from date, and with payments due in increments of $5,000.00 on November 1, 1993 and $5,000.00 on February 1, 1994, followed by 120 consecutive and equal payments of $1,128.79 due on the 15th of each month beginning March 15, 1994, and ending |awith a final balloon payment of $104,720.42 on March 15, 2004. The Act of Credit Sale also provided that Mr. Hancock would maintain insurance coverage on the property in the amount of at least $130,000.00 and would pay all taxes on the property when they became due. In case of default, the 1993 note provided for attorney fees of twenty-five percent (25%) “on the amount to be collected.”

Mr. Hancock defaulted on the loan in 1995 when he failed to maintain insurance coverage, and further defaulted by missing three payments in 1996, one payment in 1997, and one payment in 1998. During this time, Mr. Hancock enjoyed possession of, and ostensibly derived income from, the mortgaged commercial property. Dr. Roger B. Arnold, testifying on behalf of himself and his parents, stated that Mr. Hancock paid only $10,243.25 on the original note from 1993 to 1998, that the Ar-nolds made several foreclosure attempts, and at one time they prepared a dation en paiement. The record does not explain why these attempts failed. Notwithstanding, because of the numerous delinquencies and deviations from the payment schedule, the due dates became unclear, and in 1998 the Arnolds asked Mr. Hancock to execute another promissory note for the balance due, primarily to clarify the amount of the unpaid balance and to reschedule the remaining payments.

The April 20, 1998 note was for $129,756.75. It was paraphed “Ne Varie-tur” by the notary for identification with the mortgage of “August 4, 1993” which date was typed above the handwritten date of “April 20, 1998” and the notary’s signature. The new 1998 note did not change the signatories, the payees, the security or object of the loan, and it did not contain any notation or other evidence that it was paying off or replacing the 1993 note. Likewise, the 1993 note was not stamped paid or released to Mr. Hancock. The 1998 note rescheduled the payments and increased the interest rate on the loan by one percent, from eight-and-one-half 14percent (8.5%) to nine-and-one-half percent (9.5%); it provided for 96 consecutive installments of $1,187.15, due on the 15th of each month, with a final balloon payment of $108,219.56 due on April 15, 2006. As an incentive to pay timely, the new note also provided for a $100.00 late charge fee on payments that were over two weeks late. Mr. Hancock testified that he received around three thousand dollars from the Arnolds for repairs and new air conditioners at the time of the execution of the new note. However, this testimony was uncorroborated, and Mr. Hancock provided absolutely no paperwork, receipts, or cancelled checks as evidence.

Following the execution of the new note for $129,756.75 in 1998, Mr. Hancock began making monthly payments of $1,187.15. His first payment, properly calculated, applied $1,027.24 to interest and applied $159.91 to principal. After making the first five payments on time, Mr. Hancock became delinquent. According to the Arnolds’ payment schedule appearing in the record as an exhibit, Mr. Hancock made a total of forty-one (41) payments, most of which were paid late. Even though he made a payment in October 2003, his last payment only brought the loan current to September 15, 2001. As of that date, thirty-six (36) late charges had accrued, and Mr. Hancock never increased his payments to cover the late fees. This resulted in the Arnolds’ adding the $100.00 late charge fees to the balance of the loan each month. Because the monthly late charges were almost as much as the principal portion of Mr. Hancock’s monthly payment, as of the last payment posted on September 15, 2001, the balance on the note had decreased by only a few thousand dollars.

The Arnolds filed suit to enforce the mortgage against Mr. Hancock on June 15, 2004, and they amended their petition for the last time in September 2004. At that time, the Arnolds were seeking principal, interest, and late charges totaling $170,392.56, plus attorney fees of $42,598.14, representing twenty-five percent |s(25%) of the amount requested on the note. Mr. Hancock filed hand-written answers to the petitions. Mr. Hancock filed for bankruptcy under Chapter 7 of the United States- Bankruptcy Code, and the matter was automatically stayed. In May of 2005, Mr. Hancock filed a motion to dismiss and/or convert the bankruptcy proceeding, and his attorney filed an answer to the Arnolds’ suit, asserting that the 1993 note was not enforceable as it had been novated, that the [1998] note had not been paraphed and identified with a mortgage, and that attorney fees were at the discretion of the court.

The bench trial was ultimately conducted on November 14, 2005; testimony was provided by Dr. Arnold and Mr. Hancock; and dates were set for post-trial briefs on the issue of novation. The trial judge subsequently found in favor of the Ar-nolds, issuing her Reasons for Judgment in January and her judgment in February of 2006. Finding Dr. Arnold’s testimony more credible than Mr. Hancock’s testimony, the trial judge determined that there had been no agreement to extinguish the first note via the execution of the second note, and she entered judgment recognizing the Arnolds’ mortgage, lien, and privilege on the immovable property.

The trial judge further awarded the Ar-nolds a judgment against Mr. Hancock in the total amount of $213,418.77. This amount included $126,326.46 in principal on the note; $61,184.66 in total interest on the note; $3,500.00 in late fees; $2,407.65 for insurance coverage, and $20,000.00 in attorney fees, for one hundred hours of work at $200.00 per hour. Mr. Hancock •appealed. Following his appeal, the matter was again stayed by the bankruptcy court for several months, due to Mr. Hancock’s proceedings there. The stay was lifted and briefs were ultimately | (¡received. We amend the judgment to correct the principal, interest, and late fees for a total award of $215,548.56. We affirm in all other respects.

III.

LAW AND DISCUSSION Standard of Review

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

17Novation and Extinguishment

Mr. Hancock contends that the trial court erred in finding that the execution of the 1998 note did not operate as a novation to extinguish the 1993 secured note. He argues in the alternative that, if the 1993 note was not novated, the secured indebtedness should be calculated on the 1993 note, and the unsecured indebtedness should be figured on the 1998 note. We disagree. The trial court correctly articulated the applicable law on novation in her Reasons for Judgment, which included the text for Louisiana Civil Code Articles 1879, 1880, and 1881. Those articles provide as follows:

La.Civ.Code art. 1879. Extinguishment of existing obligation
Novation is the extinguishment of an existing obligation by the substitution of a new one.
La.Civ.Code art. 1880. Novation not presumed
The intention to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed.
La.Civ.Code art. 1881. Objective novation
Novation takes place when, by agreement of the parties, a new performance is substituted for that previously owed, or a new cause is substituted for that of the original obligation. If any substantial part of the original performance is still owed, there is no novation.
Novation takes place also when the parties expressly declare their intention to novate an obligation.
Mere modification of an obligation, made without intention to extinguish it, does not effect a novation. The execution of a new writing, the issuance or renewal of a negotiable instrument, or the giving of new securities for the performance of an existing obligation are examples of such a modification.

|sAt trial, Dr. Arnold testified that due to the number of defaults and missed payments on the 1993 note, it was difficult to determine what payments were due. He stated that the second note, dated April 20, 1998, was executed for the purpose of reorganizing the payments and reiterating the obligations due. Dr. Arnold further testified that when the 1998 note was executed, a substantial part, over ninety-two percent (92%), of the performance on the original 1993 note was still owed. He specifically testified that the debt on the first note was not paid off, that the second note was just a rescheduling of the same obligation, that neither the object nor the parties had changed, that the original debt was never extinguished, and that he never released the defendant from the original obligation. The trial judge was very active in questioning the parties and obtaining clarification regarding the parties’ intent. She specifically asked Dr. Arnold whether it was ever his intent to release the mortgage on the .property, to which he responded, “No.” She also asked him what triggered the execution of the new note, and he responded that they wanted to add an incentive to pay the notes on time and keep the insurance current.

When Mr. Hancock testified, the trial judge asked him numerous questions regarding the status of his payments, and he denied knowing when or how much he was behind, claiming that his mother ran the office. Mr. Hancock did not provide the court with any paperwork, receipts, or proof of payment, indicating that the court would have to rely on the Arnolds’ documentation. He admitted to signing the promissory notes but claimed that he did not know the interest rate on either and denied ever reading the documents, even at the time of trial. Mr. Hancock admitted to filing bankruptcy but denied knowing the date he filed or the amounts on the debts that he turned in to the bankruptcy court. He stated that he filed for bankruptcy because his business went down after 9-11, testifying that he owned a shrimp boat 19and motel. He further testified that he ceased ownership of the shrimp boat after Hurricane Katrina struck. He admitted however that he filed for bankruptcy before the hurricane struck. Mr. Hancock subsequently contradicted his earlier testimony by saying that he never owned the shrimp boat, but was only the self-employed captain of the boat.

The trial judge specifically asked Mr. Hancock about the reasons for the second note and the status of the mortgage. Mr. Hancock acknowledged that the second note involved rescheduling the payments. However, he testified that he did not know “one way or the other” whether the mortgage was released when he signed the second note in 1998, and stated that he “did not even think about it.” He testified that when he filed for bankruptcy, he did not know what he was thinking about the mortgage, then stated that he “figured” it was “released off of the last one [note].” When asked why he thought the Arnolds would give him a new note without collateral when he was already behind and still owed so much on the original note, he merely responded that it was a “friendly gesture.” It was clear from the trial judge’s questions at trial that she did not find Mr. Hancock’s answers plausible or credible, and at one point she reminded him that there is a penalty for providing incorrect information to the bankruptcy court. In her Reasons for Judgment, the trial judge stated that Dr. Arnold’s testimony was more credible, and found that there was no intent to extinguish the original note and mortgage.

In her Reasons for Judgment, the trial judge cited Pike Burden Printing, Inc. v. Pike Burden, Inc., 396 So.2d 361 (La.App. 1 Cir.1981), stating that the burden of proving novation falls on the party seeking its protection, and that the court will not presume that a creditor in the course of business affairs releases a debt- or. In the Pike case, where the court found that two endorsers had failed to bring Imforth convincing proof that the creditor intended to novate their debts, the court stated that, “[Creditors are not in the business of releasing debtors who have not paid. A debtor must present convine-ing proof to show that his creditor has voluntarily released him from his obligation.” Id. at 366.

The trial judge also cited Polk Chevrolet, Inc. v. Vicaro, 162 So.2d 761 (La.App. 1 Cir.1964), which also found that a second note executed by one obligor served to rearrange the installments but did not no-vate the pre-existing mortgage note. There the court stated that, “[t]o constitute a novation there must simultaneously occur both the cancellation of a present or outstanding obligation and the substitution in its place of a new obligation with the consent of the parties concerned.” Id. at 764-65. In the present case, there was clearly no cancellation of the original 1993 note and its outstanding obligation, or the mortgage securing it, and there was no consent by the Arnolds to substitute a new obligation.

Finally, the trial court cited the case of Studebaker Bros. Mfg. Co. v. Endom, 51 La.Ann. 1263, 26 So. 90 (1899), which held that the defendant’s indebtedness for carriages and vehicles sold to him prior to the death of his wife was not novated after her death by the taking of new notes. The court articulated that the obligor’s intention alone does not suffice, and further stated that, “[t]he intention, too, of the other party must appear. To constitute the contract of novation, in the essential point of the extinguishment of the preexisting obligation, there must be shown the consent of both contracting parties.” Id. at 91 (emphasis added).

Even the factually dissimilar and non-analogous cases cited by Mr. Hancock to support his argument for novation, provide that, “[t]he most important factor in determining whether a novation has been effected is the intent of the parties.” Scott v. Bank of Coushatta, 512 So.2d 356, 360 (La.1987). While Mr. b-,Hancock cites Scott in support of his argument that a novation occurred herein, the facts and circumstances in Scott are entirely different from the facts and circumstances in the present case and serve only to emphasize the missing elements for a finding of novation in the present case. In Scott, the first note was novated by the second note where the signatories, the financed object, and the security on the notes were different, and where there was a will to extinguish, i.e., an intent to novate, the first note, evidenced by notations on both notes; the first note was marked “paid” by the Bank and released, and a handwritten notation on the second note indicated that it had paid off the first note.

It is well-settled that a debtor’s mere execution of a new obligation in the creditor’s favor does not novate the original obligation; and the taking of a new note in renewal of one secured by a mortgage does not operate as a novation, where the first note was not surrendered by the creditor, unless surrounding circumstances clearly indicate that the parties intended a novation. Union Bldg. Corp. v. Burmeister, 186 La. 1027,173 So. 752 (1937); Phillips v. Gillaspie, 176 So. 647 (La.App.Orleans 1937). The original debt must be extinguished in full before there can be a novation. McConnell Motors Co. v. Succession of Tompkins, 4 So.2d 566 (La.App. 1 Cir.1941) (the original chattel mortgage note was not extinguished where evidence showed that the original note remained outstanding and enforceable, and the second note was merely evidence of the balance due thereon).

In the present case, the record is clear that the Arnolds did not cancel, mark “paid,” release, or in any way intend to novate the first note or the mortgage securing it. Accordingly, novation did not occur. Mr. Hancock’s assertion to the contrary is without merit. We find untenable Mr. Hancock’s alternative argument that, even if novation of the first note did not occur, the second note and balances |12due under it are unsecured. If the first note, which is paraphed “Ne Varietur” and secured by the mortgage on the property described in the Act of Credit Sale, is not extinguished by novation, as we have found, then the loan is secured.

More specifically, Mr. Hancock calls the court’s attention to La.Civ.Code art. 3325, which governs the paraph of notes or written obligations secured by a mortgage, privilege, or other encumbrance, and provides in pertinent part as follows:

B. A notary before whom is passed an act of mortgage, or an act evidencing a privilege or other encumbrance that secures a note or other written obligation, shall paraph the obligation for identification with his act if the obligation is presented to him for that purpose. The paraph shall state the date of the act and shall be signed by the notary. The notary shall also mention in his act that he has paraphed the obligation. Failure to do so shall render the paraph ineffective. The paraph is prima facie evidence that the paraphed obligation is the one described in the act.

In the present case, the August 4, 1993 promissory note contains the notary’s “Ne Varietur” stamp identifying the note with a mortgage of the same date. Likewise, the Act of Credit Sale, dated August 4, 1993 and signed by the same notary, sets forth the same terms as those contained in the note and states that the note was “paraphed ‘Ne Varietur’ by me, Notary, to identify the same herewith .... ” and indicates that the note was delivered and accepted by the vendors. Accordingly, the requirements of La.Civ.Code art. 3325(B) are met. Moreover, Mr. Hancock himself states that the first note, executed on August 4, 1993, is secured by the mortgage. Again, where we find that the first note is not extinguished, the security provided by the mortgage as described in the 1993 Act of Credit Sale is still valid. In other words, the loan is still secured. The second note executed in 1998 | ^rearranges the installments but it does not invalidate or extinguish the underlying obligation which is secured by the mortgage on the subject property.

Moreover, where the 1998 note also contains the notary’s “Ne Varietur” stamp purporting to identify the note with the mortgage dated August 4, 1993, it is clear that the Arnolds intended that the second note be secured by the mortgage as well. Even if the paraph of the 1998 note is ineffective, which finding we pretermit, the attempt to paraph is further evidence that the Arnolds never intended to release the original note or the mortgage securing the debt. Likewise, Mr. Hancock’s argument that the Arnolds made a mistake in allowing the novation negates his argument that intent was there. Mr. Hancock fails to clarify why he believes that the 1998 note is not also secured by the mortgage, except that he apparently ignores the par-aph.

In any event, we do not have to decide the issue of security on the second note because the security on the first note was never released. There is only one debt, and it, is secured by a special mortgage, lien, and privilege on the immovable property described in the 1993 Act of Credit Sale. The amount of the debt is to be calculated on the terms provided in the 1998 renewal note.

Calculation of the Monetary Award

As a threshold matter, we note that the Arnolds’ calculated the interest on the 1998 note for $129,756.75 using the simple interest method (charging 9.5% on the decreasing principal balance) as most commercial lenders do, for the first five payments that Mr. Hancock paid in a timely manner. However, when Mr. Arnold began paying late payments without including the late fees, the Arnolds began adding the late fees of $100.00 per month to the principal balance, and they calculated the next month’s interest on the higher balance, causing Mr. Hancock to |14pay interest on the late fees. Likewise, when Mr. Hancock stopped making payments altogether, the Arnolds added the unpaid late fees and the unpaid interest to the principal balance each month, such that the interest was calculated each month on an ascending balance. This is known as compounding interest, or charging interest on interest.

“Interest on interest is not favored in the law and should not be awarded absent express legislative authority.” Seals v. Morris, 465 So.2d 140, 141 (La. App. 1 Cir.1985). This is because the charging of interest on interest results in a higher rate than the rate stated on the note. Charging interest over and above the rate agreed upon can result in a usurious transaction and lead to a lender’s forfeiture of the interest. See La.R.S. 9:3501. Louisiana Civil Code Article 2001, entitled “interest on interest” provides that, “[interest on accrued interest may be recovered as damages only when it is added to the principal by a new agreement of the parties made after the interest has accrued.” In the present case, neither the notes nor the Act of Credit Sale contained an agreement to compound the interest, and no new agreements were entered into after the interest accrued. However, our legislature has provided for exceptions to the laws on usury and the laws on interest upon interest, which apply in this case.

More specifically, La.R.S. 9:3508 provides that the amount of simple conventional interest on a note secured by a mortgage on immovable property cannot exceed twelve percent per annum. However, La.R.S. 9:3504 provides exemptions from the conventional rate limitation of twelve percent and from the interest on interest laws for various kinds of loans such as adjustable rate mortgages. Subsection (E) specifically provides that an obligation secured by a mortgage on immovable property where the mortgagee is the former owner of the property, may lifibear an agreed upon rate that exceeds the conventional interest rate authorized by law, and in such case, a claim of usury is prohibited. It further provides that “in no instance shall the interest rate exceed seventeen percent.” La.R.S. 9:3504(E).

In the present case, the rate quoted on the note is nine-and-one-half percent (9.5%), and that is the actual rate used by the Arnolds in calculating the interest portion of each payment. While the monthly compounding (adding to principal) of the unpaid late charges and interest increase the stated APR (annual percentage rate), it is clear that the actual rate charged did not exceed 17%. Using rounded figures for illustrative purposes, our calculations indicate that 17% interest on $126,000.00 (roughly the balance due after the last payment was posted in September 2001), is $1,785.00 per month. Fifty months later, at the time of trial, the total interest on $126,000.00 at 17% would be $89,250.00. In the present case, even after the late charge fees and interest were added to the balance and compounded monthly at 9.5% using the Arnolds’ method of calculation, the total interest charged as of the time of trial, based upon our calculations, is $62,063.20, well under the amount calculated at 17%. Accordingly, the laws against charging interest on interest do not apply in this case.

Having said that, we have noted some mistakes in the trial court’s calculation of the principal, interest, and late fees, and in the calculations made by the Arnolds, and we amend the award accordingly. First, the calculations made by the Arnolds, pursuant to their payment schedule in the record, indicate that they did not calculate the interest on a per diem basis, but rather charged one month’s interest on every payment and posted it on the 15th of the month then due, no matter when they actually received the payment. This method was to the benefit of Mr. Hancock, and we have adhered to that method in our calculations. However, we note that prior |1Bto posting the payment, the Arnolds’ added the $100.00 late charge fee to the balance on the 15th of each month and calculated the entire month’s interest on the higher balance that included the $100.00 late fee. According to the note itself, the 15th is the due date for each payment, and the late charge does not accrue until the payment is “over two weeks late,” which is the 30th of each month. Therefore, part of each month’s interest should be calculated on the lower pre-late-charge balance, and part should be calculated on the higher post-late-charge balance.

Using this method of calculation, we arrive at figures slightly lower than the Ar-nolds indicate, but higher over all than those awarded by the trial court, whose method of calculation is unclear. Accordingly, we make the following corrections in the award. The principal portion of the award is hereby changed from $126,326.46 to $126,077.71, which was the balance due after the last payment was posted on September 15, 2001, using our two-part interest calculation. Because this balance included all late charges posted as of that date, which we count at thirty-six, we delete the trial judge’s award of an additional $3,500.00 for late charges, which appears to be her calculation of the late charges that had accrued as of September 15, 2001. Because they were already included in the balance, the charges should not be added again.

However, after the last payment on September 15, 2001, late charges continued to accrue until the time of trial fifty months later in November 2005, and the trial court did not include an award for those late fees. Accordingly, we award $5,000.00 in late charge fees from September 15, 2001 up to the time of trial. The interest portion of the award, representing interest from September 15, 2001 through trial on November 14, 2005, is hereby changed from $61,184.66 to $62,063.20. We 117affirm the trial court’s $2,407.65 award for insurance coverage, bringing the indebtedness due on the note to $195,548.56.

With regard to the attorney fees, the Arnolds requested 25% of the amount due on the note. However, the trial court awarded only $20,000.00, for 100 hours of work at $200.00 per hour. On appeal, Mr. Hancock’s asserts that there was no proof of the work done and seeks a decrease in the attorney fees. In their brief to this court, the Arnolds defend the award of $20,000.00 but do not seek an increase. The Arnolds assert that over a twelve or thirteen year period, during which five foreclosures and a dation en paiement were attempted before the current suit was filed, and where bankruptcy proceedings were attended, there were clearly one hundred hours of work performed, thereby justifying the $20,000.00 award. We agree. We note that Mr. Hancock earlier argued that attorney fees were at the discretion of the court, but now complains that the court’s award is too high. We believe that the trial court could have awarded more in attorney fees, but cannot say that she was clearly wrong in the amount awarded.

IV.

CONCLUSION

Based upon the foregoing, we affirm the portion of the judgment finding that the 1998 note did not extinguish, or act as a novation of, the 1993 note, and we affirm the portion of the judgment recognizing the Arnolds’ special mortgage, lien, and privilege on the subject property. We further affirm the amount of $2,407.65 awarded for insurance coverage, and we affirm the award of $20,000.00 for attorney fees. However, we amend the principal portion of the award to $126,077.71, and amend the interest award to $62,063.20. We further amend the award of late fees, deleting the $3,500.00 awarded by the trial court and adding an award of $5,000.00 |18in late charge fees. The total amount of the Ar-nolds’ judgment against Mr. Hancock and their mortgage lien against the subject property is $215,548.56.

All costs are assessed to Donald S. Hancock.

AMENDED AND, AS AMENDED, AFFIRMED.


author: GENOVESE, Judge.

text:
    David LANNINGHAM, et al. v. Benjamin F. WALTON, M.D., et al.
    No. 2006-1103.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Joseph T. Dalrymple Rivers, Beck, Dal-rymple & Ledet, Alexandria, Louisiana for Plaintiffs/Appellants, David Lanningham and Sandra Double.
    Eugene J. Sues Gold, Weems, Bruser, Sues & Rundell, Alexandria, Louisiana, for Defendants/Appellees, Dr. Benjamin F. Walton and Louisiana Medical Mutual Insurance Company.
    Court composed of MARC T. AMY, DAVID J. PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Plaintiffs, David Lanningham and Sandra Double, appeal an adverse judgment following a bench trial on their medical malpractice claim. The trial court found that Plaintiffs failed to satisfy their eviden-tiary burden of proving that Defendant, Dr. Benjamin F. Walton, breached the requisite standard of care. For the following reasons, we affirm.

STATEMENT OF THE CASE

On May 16, 2000, Mrs. Billie Cloninger, seventy-five years of age, was hospitalized at the instruction of her primary treating physician, Dr. Alejandro Perez, at Christus St. Frances Cabrini Hospital (Cabrini Hospital) in Alexandria, Louisiana. According to the testimony of Dr. Perez, Mrs. Clo-ninger’s chief complaints, upon admission to Cabrini Hospital, were generalized weakness, shortness of breath, and edema. During Mrs. Cloninger’s hospitalization, Dr. Perez consulted the Defendant, Dr. Benjamin F. Walton, a pulmonologist, to evaluate Mrs. Cloninger for shortness of breath. Dr. Perez was aware that Mrs. Cloninger had previously been under Dr. Walton’s care for treatment of bronchiec-tasis. On the evening of May 19, 2000, Mrs. Cloninger was discharged from the hospital. At some time after arriving at her home, she suffered cardiopulmonary-arrest. Mrs. Cloninger was then transported by ambulance to Cabrini Hospital’s emergency room in acute respiratory failure. On May 20, 2000, Mrs. Cloninger expired soon after being removed from life support. An autopsy was not performed on Mrs. Cloninger.

On May 18, 2001, two of Mrs. Cloning-er’s children, David Lanningham and 1 P,Sandra Double, filed a complaint of medical malpractice against Dr. Walton with the Louisiana Patients’ Compensation Fund. On May 7, 2002, a medical review panel unanimously determined that Dr. Walton met the applicable standard of care in his treatment of Mrs. Cloninger. Thereafter, David Lanningham and Sandra Double instituted the present lawsuit against Dr. Walton and Louisiana Medical Mutual Insurance Company (LAMMICO), his medical malpractice liability insurer. A bench trial was held on February 21 and 22, 2006, wherein the trial court rendered judgment in favor of Dr. Walton. Plaintiffs appeal.

ISSUE

Plaintiffs assert that the trial court erred as a matter of law in holding them to an improper burden of proof. Specifically, Plaintiffs direct this court to the trial court’s oral reasons for judgment, wherein the trial court stated, “[tjhere is nothing to indicate to the court that the [Pjlaintiffs have proven either through clear and convincing evidence, or beyond a reasonable

doubt, that Dr. Walton fell below the reasonable standard of care as required by physicians who practice similar medicine.”

STANDARD OF REVIEW [1-4] A trial court’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Fuselier v. State, through Dep’t of Transp. & Dev., 05-681 (La.App. 3 Cir. 1/11/06), 919 So.2d 867, writ denied, 06-334 (La.4/28/06), 927 So.2d 289. “This standard, however, is not applicable when one or more legal errors by the trial court interdicts the fact-finding process, and, when permitted by the record, the appellate court should conduct a de novo review to determine the preponderance of the evidence.” Trahan v. Deville, 05-1482, p. 2 (La.App. 3 Cir. 5/10/06), 933 So.2d 187, 190, writ denied, 06-2103 (La.11/17/06), 942 So.2d 534 | ^(citation omitted). “Legal errors occur when trial courts prejudicially apply incorrect principles of law.” Id. “These errors are prejudicial when they materially affect the outcome of the matter.” Id. “In these cases, appellate courts are bound, if possible, to apply the correct principles of law, determine material facts, and render judgment on the record.” Id. After reviewing the record, we agree with Plaintiffs that the trial court, through its articulation of the wrong burden of proof applicable to this type of case, committed legal error. The burden of proof in a medical malpractice case is by a preponderance of the evidence, not by clear and convincing evidence or beyond a reasonable doubt. See La.R.S. 9:2794. Thus, finding legal error present, we shall review this matter de novo.

J^DISCUSSION

Plaintiffs, pursuant to La.R.S. 9:2794 and the jurisprudence interpreting said statute, had the burden of proving, by a preponderance of the evidence, the following: (1) the standard of care for treating a patient such as Mrs. Cloninger; (2) that Dr. Walton breached that standard of care; and (8) that the breach caused Mrs. Cloninger’s injuries. See also Browning v. West Calcasieu Cameron Hosp., 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La.2/13/04), 867 So.2d 691.

Plaintiffs assert that Mrs. Cloninger died due to the breach of the standard of care by Dr. Walton in either treating or failing to treat Mrs. Cloninger’s lung condition. Plaintiffs contend that Mrs. Clo-ninger was likely septic when discharged, a condition that they assert Dr. Walton should have discovered through reasonable diligence. Plaintiffs argue that Dr. Walton’s failure to order farther tests, i.e., sputum cultures, blood tests, and chest x-rays, exemplifies a lack of reasonable care or diligence on the part of Dr. Walton.

To support their contention that the lack of diligent testing by Dr. Walton caused Mrs. Cloninger’s ultimate demise, Plaintiffs offered into evidence both a written report by and the deposition testimony of Dr. Vlassi Baktidy, a pulmonologist presently licensed and practicing in the areas of pulmonary and critical care in Plain-view, New York. In his written report, Dr. Baktidy opined: “I feel, with a reasonable degree of medical certainty that there was significant deviation from the standard of medical care in the management of [Mrs. Cloninger].” However, in his deposition, Dr. Baktidy admitted that the only material he reviewed before rendering his written report in this matter was: (1) Mrs. Cloninger’s records from Cabrini | r,Hospital from May 16, 2000 thorough May 19, 2000; (2) Mrs. Cloninger’s records from Cabrini Hospital from May 19, 2000 through May 20, 2000, her date of death; and (3) Dr. Walton’s deposition. Dr. Bak-tidy testified as follows:

[BY MR. DALRYMPLE:]
What, in your opinion, as [Mr. Sues] questioned you about in your report, is the most likely cause of [Mrs. Cloning-er’s] death?
[BY DR. BAKTIDY:]
I think that the sepsis, the presumed sepsis in this patient was a major contributing factor to whatever caused her ultimate cardiopulmonary arrest.
[BY MR. DALRYMPLE:]
Do you think she had pneumonia more likely than not?
[BY DR. BAKTIDY:]
I believe that she had a respiratory infection, probably pneumonia.

However, we find the record devoid of any sufficient and tangible evidence which supports the assertions of Dr. Baktidy and Plaintiffs. Dr. Baktidy’s theory is more speculative than definitive.

Plaintiffs contend that Mrs. Cloninger should not have been discharged on May 19, 2000, because her condition was obviously markedly worse than when she was admitted into the hospital on May 16, 2000. Plaintiffs assert that Mrs. Cloninger, for the first time ever while hospitalized, required assistance to perform simple tasks such as bathing, eating and walking; thus, Plaintiffs contend that Dr. Walton’s failure to observe this decline in her abilities supports their position that he was lax in his treatment of Mrs. Cloninger. However, the record reflects that Mrs. Cloninger | ^presented to Dr. Perez’s office with the assistance of a wheelchair on May 11, 2000 because she felt weak and could not walk, but declined to be admitted to the hospital on that date, only to return and be admitted to the hospital a week later. We also find this argument unpersuasive and insufficient to satisfy Plaintiffs’ burden of proof.

Plaintiffs, David Lanningham and Sandra Double, both testified that neither believed their mother’s health had improved nor did they believe she had expressed a desire to be discharged; however, neither had personal knowledge of their mother’s condition at the time of her discharge on May 19, 2000. The only two family members who were present on the date of discharge, Mrs. Cloninger’s husband and another daughter, were not called by Plaintiffs to refute the testimony offered by Drs. Perez and Walton that Mrs. Clo-ninger’s vital signs were stable, her overall condition had improved, and that she had expressed to Dr. Perez her desire to be discharged.

Dr. Walton testified that he had treated Mrs. Cloninger for bronchiectasis since she was diagnosed with the disease in 1998. He stated that because of his familiarity with Mrs. Cloninger’s medical history and personal demeanor, he noted an overall improvement in her condition from May 16, 2000 through May 19, 2000 by both objective as well as subjective standards. According to Dr. Walton, Mrs. Cloninger’s respiratory distress subsided with the administration of a broad spectrum antibiotic and with the diuresis medication for her edema, as ordered by Dr. Perez. Because of the improvement in her pulmonary condition since being admitted into the hospital on May 16, 2000, Dr. Walton noted on May 19, 2000 that from a pulmonological standpoint, Mrs. Cloning-er’s condition was acceptable for discharge.

Upon her admission, Dr. Perez stated that Mrs. Cloninger’s respiratory rate was 40, an abnormally high rate. He prescribed Levaquin, a broad spectrum antibiotic, |7for exacerbation of chronic bronchitis. According to Dr. Perez, Mrs. Cloninger’s breathing improved during the course of her hospitalization due to the administration of Levaquin; her respiratory rate at discharge was 18. He stated that he did not obtain sputum cultures because of Mrs. Cloninger’s positive response to the antibiotic. Because of her edema, Dr. Perez ordered a neph-rological consult to rule out nephrotic syndrome and consulted Dr. Walton, a pulmonologist, because Dr. Walton was familiar with Mrs. Cloninger’s bronchiec-tasis. On May 18, 2000, Dr. Perez noted that Mrs. Cloninger’s shortness of breath was “better.” Dr. Perez also opined that Mrs. Cloninger did not have sepsis at any time during her hospitalization from May 16, 2000 through the date of her discharge, May 19, 2000, nor did he observe that she was in respiratory distress upon her discharge on May 19, 2000.

Dr. William Brooks Emory was called by the defense and was accepted by the trial court as an expert in emergency pulmonary care and internal medicine. Dr. Emory opined that there was no breach in the standard of care in Dr. Walton’s treatment of Mrs. Cloninger. From his review of Mrs. Cloninger’s medical records from Dr. Perez, Dr. Walton, and Cabrini Hospital, Dr. Emory testified that Mrs. Cloning-er’s overall condition did improve during her initial hospitalization, and her demise was not a result of the failure of Dr. Walton to meet the applicable standard of care in his treatment of Mrs. Cloninger’s lung condition. Dr. Emory stated that Dr. Walton was not required to order further blood tests as suggested by Dr. Baktidy in order to meet the requisite standard of care. Dr. Emory also refuted Dr. Bakti-dy’s opinion that Mrs. Cloninger had sepsis, testifying as follows:

[BY MR. SUES:]
Doctor, what is sepsis?
|S[BY DR. EMORY:]
Sepsis is an inflammatory response by the system to an insult, usually an infected organism or a toxin from an infected organism. It’s a body’s response to an insult.
[BY MR. SUES:]
In this particular case, did you find any evidence whatsoever that would support a diagnosis of sepsis at any time? [BY DR. EMORY:]
No, sir.
[BY MR. SUES:]
After this patient was discharged from the hospital, she went home, is that correct?
[BY DR. EMORY:]
That is correct.
[BY MR. SUES:]
And then based on your review of the records, what happened?
[BY DR. EMORY:]
[Mrs. Cloninger] had what is called “sudden death.” She had been home several hours. The description that is quoted in the chart is, “[s]he sat bolt upright in bed, rolled her eyes back and stopped breathing.” That’s called a “sudden death.”

The record further reflects that Mrs. Cloninger was admitted and discharged upon the instruction of her primary treating physician, Dr. Perez, not Dr. Walton. Therefore, Plaintiffs’ claim of wrongful discharge against Dr. Walton is misplaced. After a de novo review of the record, despite the trial court’s misapplication of the requisite burden of proof in this medical malpractice action, we conclude that | gPlaintiffs failed to satisfy their burden of proving, by a preponderance of the evidence, that Dr. Walton breached the applicable standard of care in his treatment of Mrs. Cloninger.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Defendant, Dr. Benjamin F. Walton, is affirmed. Costs of this appeal are assessed against Plaintiffs/Appellants, David Lanningham and Sandra Double.

AFFIRMED.

      . As defined in The Signet Mosby Medical Encyclopedia, bronchiectasis is “a chronic pulmonary condition which makes one highly susceptible to contraction of pneumonia.” According to the record, Mrs. Cloninger was diagnosed with bronchiectasis in 1998.

      . Specifically, La.R.S. 9:2794 states in pertinent part as follows:
      A. In a malpractice action based on the negligence of a physician ... the plaintiff shall have the burden of proving:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specially and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specially.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician .... The jury shall be further instructed that injury alone does not raise a presumption of the physician’s ... negligence.


author: SULLIVAN, Judge.

text:
    Brandy ADAY v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2006-1181.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Rehearing Denied March 21, 2007.

      L. Paul Foreman, Raggio, Cappel, Cho-zen & Berniard, Lake Charles, Louisiana, for Defendant/Appellant, State of Louisiana, through the Department of Transportation and Development.
    W. Jay Luneau, Luneau Law Office, Alexandria, Louisiana, for Plaintiff/Appellee, Brandy Aday.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

liThe Department of Transportation and Development appeals the grant of summary judgment on the issue of liability in favor of Brandy Aday. For the following reasons, we affirm.

Facts

On October 20, 2002, Brandy Aday was driving in a westerly direction on Highway 8 in Vernon Parish when the passenger-side tires of her vehicle crossed over the fog line onto the shoulder of the highway. She testified that she slowed her speed and attempted to reenter the highway travel lane, but her right tires struck a four and one-half inch drop-off which caused her vehicle to jerk to the left side of the highway; she attempted to correct the direction of her vehicle, but her vehicle crossed back to the right side of the highway, then left the highway completely, and finally came to rest among some trees. She was seriously injured as a result of the accident.

Ms. Aday sued the State, through the Department of Transportation and Development (DOTD), alleging that the shoulder of Highway 8 was defective and that the defect was the cause of her accident and her injuries. DOTD answered the suit and denied liability. After discovery was conducted, Ms. Aday filed a motion for summary judgment on the following issues:

1. Custody of the highway/shoulder;
2. Whether the highway/shoulder was defective;
3. Whether DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time;
4. Whether the defect was a cause-in-fact of her injuries; and
5. Whether the State is liable for her injuries.

The motion for summary judgment was supported with DOTD’s answers to interrogatories in which it acknowledged that it had custody of Highway 8, and the ^[¿depositions of Ms. Aday, her expert witness, Duaine Evans, and DOTD’s former maintenance superintendent for Vernon Parish, G.W. Sumney. DOTD filed a brief opposing Ms. Aday’s motion but did not produce any evidence in opposition to the motion.

Mr. Evans testified in his deposition that there was a drop-off of four and one-eighth inches to four and one-half inches for approximately 440 feet in the area where Ms. Aday’s accident occurred. He also testified that the shoulder was not level with the roadway and that the shoulder was made of recycled aggregate. He explained that recycled aggregate erodes easily because it will not compact. He characterized any drop-off greater than two inches in depth as a hazard, a four-inch drop-off as a significant hazard, and any drop-off greater than four and one-half inches as an extreme hazard. In Mr. Evans’ opinion, Ms. Aday’s accident would not have happened if not for the drop-off.

Mr. Sumney agreed with Mr. Evans’ testimony that recycled aggregate erodes quickly and that a four-inch drop-off is dangerous and should be repaired immediately. Mr. Sumney acknowledged the existence of the eroded shoulder but testified that it had not been properly repaired due to lack of materials and/or equipment necessary for the repair.

DOTD contends that the trial court erred in concluding that there was no material issue of fact concerning: 1) the reasonableness of DOTD’s response to the knowledge it held; 2) whether the defect in the highway shoulder was a cause in fact of Ms. Aday’s accident; and 3) the comparative negligence of Ms. Aday.

\ Summary Judgment

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

Discussion

(1) To prevail on her claim, Ms. Aday must prove that:

|4(1) the DOTD had custody of the thing which caused her damages;
(2) the thing was defective because it had a condition which created an unreasonable risk of harm;
(3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect was a cause-in-fact of her injuries.

Netecke v. State ex rel. DOTD, 98-1182, 98-1197 (La.10/19/99), 747 So.2d 489. As noted above, DOTD admitted in answers to interrogatories that it had custody of the highway, and it does not contest the trial court’s grant of summary judgment that the four and one-half inch drop-off where Ms. Aday’s accident occurred was a defect. Therefore, we need not address these issues.

In Netecke, 747 So.2d at 494^495 (citations omitted), the supreme court explained DOTD’s duty with respect to public roadways:

DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. DOTD must maintain the shoulders and the area off the shoulders, within its right-of-way, in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway and to others, such as pedestrians, who are using the area in a reasonably prudent manner. DOTD’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive.
This duty, however, does not render DOTD the guarantor for the safety of all the motoring public. Further, DOTD is not the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Moreover, not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Whether DOTD breached its duty to the public, by knowingly maintaining a defective or unreasonably dangerous Broadway, depends on all the facts and circumstances determined on a case by case basis.

With these principles in mind, we address DOTD’s assignments of error.

DOTD’s Response to Knowledge It Held

DOTD first argues that the trial court did not address whether its actions were negligent based on information known and/or available to it. The trial court determined that “the State did have notice of the existence of the defective condition and failed to take appropriate corrective measures within a reasonable time.” The trial court also enumerated the facts which led it to this conclusion:

1) Mr. Evans and Mr. Sumney’s testimony established that “the State’s usual method of using [recycled] aggregate to fill the drop-off area was of a very temporary nature.”
2) Mr. Sumney conducted inspections approximately every two weeks.
3) Mr. Sumney further testified that “he was fully aware of the area of the highway in question and that the development of the drop-off [where this accident occurred] was a recurring problem.”

Mr. Sumney also testified that he did not have ready access to the necessary materials and equipment to adequately repair defects in the state roads in Vernon Parish. In fact, he stated that Vernon Parish was treated as though it were part of Texas and called it “the stepchild of District 08.”

DOTD argues that Mr. Sumney’s testimony created a material issue of fact that a jury should address. It urges that a jury should determine whether its prioritization of repairs based on fiscal and physical limitations is appropriate in light of its statutory responsibility to maintain state highways. We do not agree. There is no jurisprudential or statutory support for DOTD’s argument. DOTD’s liability is premised on knowledge and timeliness of repairs. Accepting DOTD’s argument [ f,would allow it to ignore defects and escape liability although it had knowledge and sufficient time to repair them. This assignment is without merit.

Cause-in-Fact

The trial court determined that the four and one-half inch drop-off along Highway 8 was a cause-in-fact of Ms. Aday’s accident. It explained that Ms. Aday did exactly what a motorist should do in that situation — she reduced her speed and attempted to gradually regain entry onto the roadway, but the drop-off prevented her from reentering the roadway. The trial court observed that Ms. Aday’s accident “occurred just as Mr. Evans described it would happen under these circumstances” and concluded that she “took the appropriate and proper action, however, because of the defect it was impossible to prevent the accident.”

DOTD urges this conclusion was error, arguing that there would not have been an accident if Ms. Aday had not veered from the travel lane onto the shoulder of the highway. In Lasyone v. Kansas City Southern Railroad, 00-2628, p. 9 (La.4/3/01), 786 So.2d 682, 691 (citations omitted), the supreme court explained the concept of cause-in-fact, stating:

A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. For example, the act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder.

As the supreme court explained, an act need not be the only cause of harm to be a cause-in-fact of the harm. If not for the drop-off, Ms. Aday would have been able to steer her car from the shoulder back onto the highway without incident. The |7trial court did not err in concluding that the drop-off was a cause-in-fact of Ms. Aday’s accident and injuries.

Comparative Negligence

The trial court next found that there was no issue of material fact regarding comparative fault. DOTD contends this finding was error, arguing in part: “Inadvertence by a driver, which results in her vehicle leaving the travel portion of the roadway is, in every other instance, the very definition of negligence. The percentage of negligence attributable to Ms. Aday should be determined by a jury.”

Counsel for DOTD asked Ms. Aday what caused her to lose control of her vehicle; she responded:

[M]y passenger-side tires went off the road. And when I went to — and when I let off the gas and went to come back onto the road, it threw me across the road.
I let off the gas and tried to let it slow down, and then I eased it back on. And when I did, it threw me to the other side of the road.

In Bozeman v. State, 34,430 (La.App. 2 Cir. 4/4/01), 787 So.2d 357, writ denied, 01-1341 (La.6/29/01), 794 So.2d 813, an accident similar to Ms. Aday’s accident was at issue. The court addressed the motorist’s duty:

Prudent behavior for a motorist who inadvertently drives off the paved road onto the shoulder is first to reduce speed and then to attempt a gradual reentry after the motorist has regained control of the vehicle. The DOTD’s duty to maintain highway shoulders is imposed to protect a motorist from the risk of injury produced by a combination of the motorist’s inadvertent encounter with an unexpected, sharp drop-off from the roadway and his consequent instinctive over steering of the vehicle. In the absence of knowledge and a reasonable opportunity to avoid shoulder defects, the motorist is entitled to assume that a highway shoulder is maintained in a reasonably safe condition, and that his inadvertent deviation onto it will not lead to disastrous consequences. Further, in LeBlanc [v. State, 419 So.2d 853, 856 (La.1982),] the court stated, “a motorist’s instinctive overreaction to an unexpected ... |sdrop-off from a paved highway to its shoulder, produced by a combination of the Department’s failure to provide a continuous even surface and the plaintiffs inadvertent straying onto the shoulder, is within the scope of protection of the rule of law which requires the Department to maintain safe highway shoulders.”

Id. at 362-68.

DOTD’s duty and scope of protection to the motoring public includes protecting a motorist who inadvertently strays from the highway to the shoulder. DOTD has not produced any evidence which contradicts Ms. Aday’s description of how her accident occurred, and there is no evidence that she had knowledge of the drop-off before her accident. Therefore, she had the right to assume that if she inadvertently veered from the travel lane, she would be able to safely steer her vehicle back into the travel lane. The trial court’s conclusion that Ms. Aday was not negligent is not error.

Disposition

Summary judgment in favor of Ms. Aday is affirmed. All costs are assessed to DOTD.

AFFIRMED.