text:
    STATE of Louisiana v. Howard CLOFER.
    No. 11-KA-494.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for PlaintifPAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

laThe defendant/appellant, Howard Gofer, appeals his convictions and sentences arguing that the trial court erred in denying the motion to suppress his statement because the proper procedures afforded a juvenile were not followed.

Factual and Procedural Background

On March 8, 2010, Howard Clofer was charged by bill of information with attempted first degree murder in violation of La. R.S. 14:27:30 (Count One) and two counts of armed robbery in violation of La. R.S. 14:64 (Counts Three and Four).' Howard pled not guilty at the arraignment and later moved to suppress his statement, identification, and the evidence seized from his home. All motions were denied. The State amended the bill on January 10, 2011, to dismiss Count One and to add Howard to Count Two of the bill. During the Boykin hearing, which occurred that same day, Howard withdrew his guilty pleas and pled guilty, under State v. Crosby, 338 So.2d 584 (La.1976), to two counts of armed robbery and one count of attempted armed robbery. Pursuant to a plea agreement, Howard was | ¡¡sentenced to 17 years imprisonment in the Department of Corrections without the benefit of probation, parole, or suspension of sentence, with the sentences to be served concurrently. In this appeal, Howard argues that the motion to suppress his statement should have been granted because the protective measures afforded a juvenile were not followed.

Sgt. Russell Varmall, of the Jefferson Parish Sheriffs Office, and Ms. Patrice Clofer, Howard’s mother, testified at the suppression hearing.

Sgt. Varmall testified that he participated in the investigation which led to Howard’s arrest. He testified that he arrested Howard at his home, a duplex housing unit, in which Howard’s aunt, Ms. Sharon Roussell, lived next door. As he perfected the arrest, Ms. Roussell came outside to see what was happening. Sgt. Varmall informed her that Howard was being arrested and that he needed to speak with Howard’s mother because he was a juvenile. Ms. Roussell then telephoned Ms. Clofer, and Sgt. Varmall spoke to her briefly. He testified that he informed Ms. Clofer that he needed to take Howard to the bureau for questioning but that a parent needed to be present. He further stated that Ms. Clofer told him she was hours away and gave Howard’s aunt permission to accompany him to the bureau. Sgt. Varmall testified that he transported Ms. Roussell and Howard in his unit to the bureau for questioning.

Once they arrived at the detective’s bureau, Sgt. Varmall presented Howard and his aunt with the “Juvenile Rights Form.” He testified that he reviewed the form with both of them and neither of them indicated they had questions about the form or their rights. He then gave Howard and his aunt an opportunity to discuss the rights among themselves but did not leave the room for them to do so privately. Both Howard and his aunt signed the form at 3:04 P.M. acknowledging that they understood the rights. Sgt. Varmall testified that Howard gave two audio-taped ^statements. The first statement commenced at 3:41 P.M. and concluded at 3:47 P.M. The second statement commenced at 3:59 P.M. and concluded at 4:05 P.M.

During the first statement, Howard stated that no one had used a gun during the robberies. When that statement concluded, Sgt. Varmall testified that he left the room to go speak with his supervisor about the facts of the case. After realizing there were some inconsistencies, specifically regarding the presence of a gun, Sgt. Var-mall returned to the interview room to question Howard further. It was during the second interview, while his aunt was still present, that Howard admitted that he was armed with a .38 silver and black gun during the first robbery.

Ms. Clofer also testified at the suppression hearing. She testified that her sister telephoned her and explained that the police were there to arrest Howard. She spoke to the detective who told her that Howard was in trouble and needed to be taken to the detective’s bureau for questioning. She stated that she informed the detective that she was in New Orleans and it would take her about three hours to get back. However once the officer told her that a parent needed to be present, she stopped what she was doing and immediately went to the detective’s bureau. She testified that she made it to the detective’s bureau within 45 minutes after speaking with the detective. Once she arrived there and identified herself, she had to wait an additional 30 to 45 minutes before she was allowed to see her son. When she finally saw Howard, the questioning was over. She was then presented with a form authorizing consent to search her home, which she signed at 5:00 P.M.

Ms. Clofer testified that she wanted to be there for the interview and that she arrived at the detective’s bureau as soon as she possibly could. She further testified that though her sister loved Howard, the two of them were not close and Howard’s aunt was not someone that he would confide in. She testified that Howard’s aunt did not have his best interest at heart.

UAt the conclusion of the hearing, the trial judge denied the motion to suppress the statement. The trial judge considered the totality of the circumstances and found that Howard made a knowing, intelligent, and voluntary waiver and that he had consulted with his aunt, whom she found to be a concerned adult.

Discussion

In his sole assignment of error, Howard contends that the trial court erred in failing to grant the motion to suppress his statement because the proper protective measures afforded a juvenile were not followed in this case.

At the hearing on a motion to suppress a statement, the State bears the burden of proving the admissibility of the purported statement. La.C.Cr.P. art. 703(D). Before introducing a defendant’s inculpatory statement made during a custodial interrogation, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, and that the statement was made “freely and voluntarily, and not under the influence of fear, intimidation, menaces, threats, inducement or promises.” State v. Rose, 05-770, p. 9 (La.App. 5 Cir. 2/27/06), 924 So.2d 1107, 1111, writ denied, 06-1286 (La.11/22/06), 942 So.2d 554. In reviewing a trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Barton, 02-163 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817. A trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. Barton, supra, at 1200.

Howard argues that, as a juvenile, he should have been provided with extra safeguards before being allowed to waive his rights. In State v. Fernandez, 96-2719, p. 5 (La.4/14/98), 712 So.2d 485, 487, however, the Louisiana Supreme | fiCourt held that the confession of an accused of any age is valid if it was knowingly and voluntarily given. The Supreme Court noted,

[t]he age of the accused, although an extremely important and extremely relevant factor in determining knowingness and voluntariness, is not absolutely determinative, and the rigid invalidation of an otherwise valid confession because the accused has not quite reached the age of seventeen has no federal or state basis. Id.

Thus, in determining the validity of a waiver, courts should consider the totality of the circumstances, which includes an assessment of the “juvenile’s age, experience, education, background, and intelligence and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fernandez, supra, at 487 (citation omitted).

In State v. Lathers, 09-0020, p. 6 (La.App. 5 Cir. 5/26/09), 15 So.3d 1068, 1072, writ denied, 09-1341 (La.2/12/10), 27 So.3d 841, this Court held, “the State is no longer required to affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other concerned adult before the juvenile waived his constitutional rights.” Yet, Howard argues that his aunt lacked authority to waive his rights. To support his position, Howard relies on State ex rel. J.E.T., 09-0067 (La.App. 3 Cir. 5/6/09), 10 So.3d 1264. But as the State points out, J.E.T. is distinguishable from the present case. In that case, the defendant was only 11-years old and had not quite completed the fourth grade when he confessed. Further, the Third Circuit found that he did not have an interested adult explain his rights as his stepfather was the biological father of the minor victim. That court also recognized that the officers employed questionable tactics to obtain the confession and that the juvenile’s parents made no attempt to protect his rights.

l7None of the factors present in J.E.T. are present in this case. First, Howard was a few days shy of turning 17-years old when he made his confession; while the defendant in J.E.T. had just turned 11-years old one week before confessing. Secondly, there is no allegation in this case that the police used coercive measures to obtain Howard’s confession. In fact, the record reflects that Sgt. Varmall advised Howard and his aunt of Howard’s rights, including Howard’s right to remain silent and talk to a lawyer. The record further reflects that Howard and his aunt signed and initialed the waiver form acknowledging that they understood those rights.

The admissibility of a statement or confession is first a question for the trial court, and its conclusions on the credibility and weight of testimony relating to volun-tariness of a statement will not be overturned on appeal unless not supported by the evidence. State v. Terrick, 03-0515, p. 10-1 (La.App. 5 Cir. 9/30/03), 857 So.2d 1153, 1159-60. Considering the totality of the circumstances, we find that the State met its burden of proving that the statement was knowingly and voluntarily made. Therefore, this assignment of error is without merit.

Error Patent Discussion

The record was reviewed for errors patent in conformity with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals there are errors patent.

The State amended the bill of information on January 10, 2011, to dismiss Count One and to add Howard to Count Two— attempted armed robbery. The record does not reflect, however, that Howard was arraigned as to Count Two. La.C.Cr. P. art. 555 provides:

[a]ny irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he | sdid not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

In this case, the commitment reflects that Howard withdrew his not guilty plea as to Count Two and pled guilty as to Count Two. The transcript from the Boykin hearing reflects the same. Because Howard entered upon the trial without objecting thereto, any irregularity in the arraignment is waived and no corrective action is necessary.

We also note that when Howard was sentenced, the trial judge imposed a sentence of 17 years in the Department of Corrections rather than stating the sentence was imposed at hard labor. Nevertheless, when the trial judge states that the sentence is to the Department of Corrections, the sentence is necessarily at hard labor. Rochon v. Blackburn, 97-2799, p. 4 (La.App. 1 Cir. 12/28/98), 727 So.2d 602, 604. Therefore, no corrective action is necessary.

Finally, we note that the transcript reflects that Howard was sentenced on two counts of armed robbery and one count of attempted armed robbery and that each count was to be served without the benefit of probation, parole, or suspension of sentence. However, the commitment only states, “sentence to be served without the benefit of parole, probation, or suspension of sentence.” It does not reflect that each sentence was imposed without benefits.

Decree

For the foregoing reasons, the convictions and sentences are affirmed. The matter is remanded to the district court to amend the commitment to reflect that each conviction is imposed without the benefit of probation, parole, or suspension of sentence. The district court is directed to make an entry in the minutes reflecting this change and the clerk of court is directed to transmit the amended | ncommitment and the minute entry to the officer in charge of the institution to which the defendant has been sentenced. La.C.Cr.P. art. 892(B)(2). State ex rel. Roland v. State, 06-0244, (La.9/15/06), 937 So.2d 846.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Howard’s two co-perpetrators were charged in Count Two with attempted armed robbery. Initially, Howard was not included in that count because the armed robbery was the predicate offense of Count One, attempted first degree murder.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    David E. ALLIE v. Sonja Ellis ALLIE.
    Nos. 11-292, 11-293.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 30, 2011.

      Charles J. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Plaintiff/Appellant, David E. Allie.
    Julie Vaughn Felder, APLC, Lafayette, LA, Bradford H. Felder, G. Andrew Veaz-ey, Huval, Veazey, Felder & Renegar, L.L.C., Lafayette, LA, for Defendant/Ap-pellee, Sonja Ellis Allie.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

|, Appellant, David E. Allie (hereafter David) appeals the trial court’s child support award. For the following reasons, we amend the judgment to provide the housing allowance and yard care expenses do not become payable until Sonja Ellis Allie (Sonja) moves from the townhouse into another home. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

David and Sonja were married on November 23, 2002. They subsequently established their matrimonial domicile in Lafayette Parish. On April 28, 2006, the parties’ only child, Vivian, was born. At the time of trial, she was four years old and attends St. Mary Early Learning Center.

On September 1, 2009, David filed a petition for divorce pursuant to La.Civ. Code art. 102. David’s petition included ancillary claims for custody and use and occupancy of the family home. In response, Sonja filed an Answer and Recon-ventional Demand asserting claims for custody, child support, and use and occupancy of the family residence.

David used various methods including protective orders to prevent Sonja from having access to the family home. Eventually, Sonja had the lessees living in the townhouse that David donated to her as her separate property move out so that she could move into the townhouse. The parties attempted to mediate support and initially agreed upon an award of $15,000.00 per month. Despite this, David reduced the support payments substantially down to $3,000.00 per month.

On October 16, 2009, David amended his original divorce petition and added a cause of action for immediate divorce alleging Sonja committed adultery. After a contradictory hearing, a Judgment of Divorce on the amended action was granted on March 29, 2010.

|2On October 25, 2010, Sonja filed a motion to fix for hearing the pending rules to establish child support and use and occupancy of the family residence. The trial court noted since Vivian was under five, and Sonja did not work, employability was not a consideration. The sole consideration was the best interests of the child based on the child’s needs and the ability of the parents to provide support. At the time of this hearing, custody of Vivian had not been decided and the parents enjoyed shared custody (50/50) by temporary order.

The trial court awarded use and occupancy of the family home to David. Noting there was no stability in Sonja’s housing situation, as David was currently suing Sonja for rescission of the donation of the townhouse in which she resided, the trial court granted Sonja $2,500.00 per month in her child support towards rental of another home.

Further, the trial court noted David’s income was in excess of the schedule in La.R.S. 9:315.19, because he earns approximately $110,000.00 per month. Thus, it reasoned the best interest of the child warrants that her lifestyle remain the same after the divorce as it was before the divorce while in the care of both the non-income earning parent as well as the income earning parent. Using the guidelines, the trial court determined the child’s expenses were $9,976.00 per month ($119,-712.00 annually) while in the care of the mother, and ordered the father to pay this amount directly to Sonja as basic child support. The trial court set forth the following reasons for her award:

As I stated before the Twenty-five Hundred Dollars ($2,500.00) is Vivian’s expense for the housing. And then I’m taking the estimates for monthly expenses of Eleven Dollars ($11.00) for the alarm, One Hundred Fifty Dollars ($150.00) for yard care, Twenty-three Dollars ($23.00) for pest control, Two Hundred Fifty Dollars ($250.00) for maid service, household expenses at One Thousand dollars ($1,000.00), and the clothing. Since David did not include clothing for Vivian the Court assumes that he would pay for at least half Qk) of her clothes, reducing Sonja’s cost from One Thousand ($1,000.00) to Five Hundred Dollars ($500.00). So, I’m using Five Hundred ($500.00) instead of One Thousand ($1,000.00). The car |3note lease is Seven Hundred Twenty Dollars ($720.00). These are all Vivian’s — the calculations for Vivian. Fifty Dollars ($50.00) for maintenance of the car, Three hundred Fifty Dollars ($350.00) for gas and oil, Seventy-five Dollars ($75.00) for repairs, One Hundred Twenty Dollars and Thirty-three Cents ($120.33) for insurance, prescriptions, Sixty-five ($65.00), expenses not covered by insurance, Fifteen ($15.00), routine exams Fifteen ($15.00), over the counter medications ($50.00), dental maintenance, Fifty ($50.00). Water at Kings Walk, since it’s One Hundred Fifty Dollars ($150.00), that’s the only amount I could use for what it would be at Rich-land or wherever she relocates to. And then I’m not allowing pool and pond costs because there’s no pool and pond cost at Richland and it would be speculative at any other place. Electricity, Three Hundred ($300.00), cable, One-ten ($110.00), natural gas, Two-Fifty, ($250.00), cellular phone, Ninety ($90.00). That’s half Qf¿) of the bill as well. And I considered not paying that until the testimony was that that’s the phone that she has in the home as well. And Vivian needs access to her dad by phone when she’s away. Laundry and cleaning, Fifty ($50.00), personal and grooming, One-Fifty ($150.00). I’m not allowing the furniture because I think that that’s not a monthly cost. I’m not allowing the life insurance on David’s life. And what I’m doing is combining the birthdays expenses and the holiday expenses and dividing that in half Qk), and it’s Two Hundred Thirty-three Dollars ($233.00). Also, the entertainment and meals away from home I’m combining that because going to Chuck-E-Cheese and going to the fairs and tickets for the ice shows, I think that some of the times it’s a combination, also. I’m giving One Thousand Dollars ($1,000.00) for that. Holiday expenses, Two Hundred Fifty ($250.00). Health club — Oh, no. I’m not going to allow the Two-Fifty ($250.00) because I believe that the holiday expenses are already included and it would be duplicative. Health club membership, Eighty Dollars ($80.00). The miscellaneous is too speculative. Charitable contributions, Twenty-five ($25.00), vacations with the child, I’m dividing that in half Qk) and it’s Twelve Hundred Eighty-nine Dollars ($1,289.00). And the Thirty Thousand Dollars ($30,000.00) that the Twenty-five Hundred Seventy-nine ($2,579.00) would come to was the amount spent and that was for both of them, and so I’ve divided that in half (%). Horses, Twenty-five ($25.00), grooming of the horses, Twenty-five ($25.00) and boarding Two Hundred Fifty-five ($255.00). And my total is Nine Thousand Nine Hundred Seventy-six Dollars ($9,976.00) with Dad paying the school expenses; tuition, registration fees, transportation, school lunches, fees, books and supplies, miscellaneous and whatever fees that they give. Plus the violin lessons, if she takes them, and the karate classes and the karate testing fees. Dad is required for that.
Now, I have something else to say. This ruling is made with what this Court considers the reasonableness of these party’s economics. It should be noted that this is not considered what would be reasonable for expenses of a four (4) year old child in the average or even above average income family. For example, the Court took into consideration other expenses paid by the parties, in particular, cost of clothing for the child, which unrefuted, was Four ($400.00) to Five Hundred Dollars ($500.00) for two (2) outfits, or the payment of |4over Fifty-seven Thousand Dollars ($57,000.00) paid to a private investigator after the necessity of proving adultery. And that was the payments made after March of 2010 when the divorce was granted. These are but two (2) examples of what this Court finds to be exorbitant. It should be considered in making their reasonableness judgment.

David appealed the trial court’s support award, contending, in general, that the overall award of $9,976.00 per month was “abusively excessive,” and that several of the individual expenses awarded were speculative.

ANALYSIS

This court in Falterman v. Falterman, 97-192 (La.App. 3 Cir. 10/8/97), 702 So.2d 781, 783, writ not considered, 98-0076 (La.03/13/98), 712 So.2d 863, addressed deviation from the child support guidelines in the instance of income exceeding the Louisiana Child Support Guidelines as follows:

La.R.S. 9:315.10(B) provides that, where the parties’ monthly combined adjusted gross income exceeds $10,000.00, “the court shall use its discretion in setting the amount of the basic child support obligation, but in no event shall it be less than the highest amount set forth in the schedule.” And, attached to this statutorily guaranteed discretion, the trial court’s judgment in such matters will not be disturbed in the absence of a showing of an abuse of discretion. Krampe v. Krampe, 625 So.2d 383 (La.App. 3 Cir.1993), writ denied, 93-2763 (La. 1/7/94); 630 So.2d 781. Furthermore, when setting the amount of child support to be paid by a parent, the court strives to maintain the lifestyle of the child, when possible, while considering the child’s reasonably proven expenses and the parent’s ability to provide. See Montet v. Montet, 629 So.2d 538 (La.App. 3 Cir.1993); Krampe, 625 So.2d 383 (Domengeaux, C.J., concurring); Hargett v. Hargett, 544 So.2d 705 (La.App. 3 Cir.), writ denied, 548 So.2d 1235 (La.1989).

The jurisprudence in our state consistently has recognized that there is “no universal mathematical formula” for calculating the amount of child support to be paid where the parties’ combined adjusted income exceeds the child support guidelines contained in La.R.S. 9:315.14. Serrate v. Serrate, 96-1545, p. 7 (La.App. 1 Cir. 12/20/96); 684 So.2d 1128, 1133. However, this court has held that simple extrapolation of the guidelines, without considering the child’s needs, is not an acceptable method. Preis v. Preis, 93-569 (La.App. 3 Cir. 2/2/94); 631 So.2d 1349 (rejecting Aguilar v. Wilson, 613 So.2d 228 (La.App. 1 Cir.1992), writ denied, 614 So.2d 66 (La.1993)). In Preis, this court stated:

| sThe support for a child or children of a more affluent lifestyle, as in this case, is a concern for the courts to address on a case by case method. We find by simply extrapolating from the guidelines without concern and discretion by the court in balancing the needs and lifestyle of the child or children, could lead to excessive child support awards.

Id. at 1356. A trial court must consider the totality of circumstances present in each case and formulate an award of child support accordingly. Rosenbloom v. Rosenbloom, 94-1762 (La.App. 4 Cir. 4/26/95); 654 So.2d 877, writ denied, 95-1320 (La.9/1/95); 658 So.2d 1266. While this court has recognized that some evi-dentiary proof of the children’s needs is necessary, a trial court is not limited to an award of that amount. See Hector v. Raymond, 96-972 (La.App. 3 Cir. 4/2/97); 692 So.2d 1284, writ denied, 97-1134 (La.6/13/97); 695 So.2d 978; Preis, 93-569; 631 So.2d 1349. In Hector, this court affirmed a child support award where the mother did not present evidence of her child’s needs in the amount of the support award. Hector, 96-972; 692 So.2d 1284. In support of that disposition, we stated:

[H]er support requirements were based on a situation which did not take into consideration the standard of living that Cody would be entitled to were he to reside with his father. See Hargett, 544 So.2d 705. We do not find that Cody should be denied the opportunity of a certain lifestyle that would be available to a minor child born to a legal union. We find that an award of $6,000.00 per month is just, legal, and proper based on our review of the record in these proceedings. La.Code Civ.P. art. 2164.

Id. at p. 7; 692 So.2d at 1288.

In Abbott v. Dunlap, 541 So.2d 995 (La.App. 3 Cir.1989), this Court noted a father was not entitled to a reduction in child support where the mother’s income was inconsequential in comparison to his. The mother’s day-to-day care of the minor child was to be considered in reviewing her contribution to support. Id. “Moreover, it is well entrenched in Louisiana jurisprudence that children living with the mother are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit.” Abbott, 541 So.2d at 998 (citing Howell v. Howell, 391 So.2d 1304 (La.App. 4 Cir.1980); Davis v. Davis, 428 So.2d 1195 (La.App. 5 Cir.1983); Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2 Cir.1981); Hogan v. Hogan, 465 So.2d 73 (La.App. 5 Cir.1985)).

David sets forth numerous eases which involved lesser support awards. We find these cases of little merit here, as the case law establishes “the amount of child support in a specific matter is to be judged on a case-by-case basis; there is no mathematical formula.” Jones v. Jones, 38,790, p. 6 (La.App. 2 Cir. 6/25/04), 877 So.2d 1061, 1068; see also Falterman, 702 So.2d 781; Langley v. Langley, 07-754 (La.App. 4 Cir. 3/26/08), 982 So.2d 881. The primary factors are a parent’s ability to pay and the lifestyle that the children would have enjoyed had the parents not separated, with the overriding factor being the best interest of the children. Jones, 877 So.2d 1061. The trial court’s reasons for ruling indicate these were the factors she relied on in setting the support award. Thus, we find the trial court relied on the applicable law in rendering her award.

We turn to address the specific expenses which David claims were inappropriately awarded.

Housing Allowance.

David contends the trial court erred in awarding a sum of $2,500.00 in additional child support towards another home, because this expense “does not presently exist.” The trial court chose to include the housing expense in the award because the townhouse she resides in “offers no future stability since it is in litigation.” The record bears this out. Although David donated the townhouse in question to Sonja, he has instituted litigation to rescind this donation, which is pending. Further, there was testimony from Sonja that she was planning to move to a more suitable home with a yard on a less busy thoroughfare. However, as the record establishes Sonja still resides in the townhouse, she presently has no housing expense. Therefore, we will amend the judgment to provide that the 17housing allowance does not become payable until Sonja moves from the townhouse into another home.

Yard Care.

David argues this expense was unnecessary as the townhouse where Sonja resided did not have a yard. This argument ignores the fact that David is seeking to remove Sonja from the townhouse, as well as Sonja’s testimony that she intended to move into a suitable home with a yard for Vivian. The trial court included what it considered to be a reasonable amount for yard care for a home Sonja testified she intended to move into immediately. However, like the housing allowance, until Sonja moves into a new house with a yard, she presently has no yard expense. Therefore, we will amend the judgment to provide that the yard care expense does not become payable until Sonja moves from the townhouse into another home.

Vehicle Allowance.

David argues the amount awarded for a vehicle allowance inadvertently reflected expenses for two vehicles. This is without merit. The trial court’s award of $720.00 as a vehicle allowance is roughly one-half of the cost of the lease of the BMW at issue during the marriage. Sonja’s testimony established the lease of the BMW cost approximately $1,400.00 per month. Thus, this award is not an abuse of discretion.

Utility Expenses.

The trial court accepted Sonja’s testimony and Affidavit of Income and Expenses regarding utility expenses and it was not an abuse of discretion to award them based on that evidence.

Medical Expenses.

David contends the trial court abused its discretion in including an amount for uncovered medical expenses in its basic support obligation, and ordering David | Rto also pay any and all uncovered expenses. David argues this amounts to a “double-dip.” We disagree. The judgment orders that David must pay any uncovered medical expenses in excess of the amounts included in the basic child support award. There is no abuse of discretion in that award.

Household Expenses.

We find no error in the trial court’s award for household expenses. It considered all of the testimony and evidence adduced at trial and gave explicit reasons for granting some expenses and denying others.

Child Dependency Deduction.

David argues the trial court erred in not allocating the child dependency deductions to him, since it was concluded that the mother’s earning potential should not be taken into consideration. However, as Sonja points out, the matter of the child dependency deductions was not raised as an issue below, therefore; we cannot consider it on appeal. See Uniform Rules, Courts of Appeal, Rule 1-3.

CONCLUSION

Based on our review of the record of these proceedings, it is evident that the trial court properly exercised its discretion in setting the child support award. The record establishes this award will maintain Vivian in the lifestyle she has always enjoyed, and that David is capable of paying the stipulated amount. It is clear from the record that the trial court meticulously considered not simply the reasonable and necessary expenses, but also what would be necessary to maintain the child’s lifestyle at the same level she has experienced before the divorce. This complies with the law and cases, and thus, we find the trial court’s award was reasonable and fully supported by the record. However, as the record establishes Sonja still resides in the townhouse, and presently has no housing and yard care expense, we will amend the judgment to provide that the housing allowance and yard care expense do not become payable until Sonja moves from the townhouse | flinto another home. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant, David E. Allie.

AFFIRMED, AS AMENDED.


author: PICKETT, Judge.

text:
    Billy CARRIER v. CITY OF EUNICE.
    No. 11-748.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      John Fayne Wilkes, III, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendant-Appellee, City of Eunice.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff-Appellant, Billy Carrier.

      Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

|,The claimant-appellant, Billy Carrier, appeals the judgment of the workers’ compensation judge (WCJ), arguing that the judgment contains certain omissions and that the award of attorney fees is abusively low. The employer, City of Eunice, has answered the appeal, arguing that the claimant’s benefits should be changed from temporary total disability benefits (TTDs) to supplemental earnings benefits (SEBs), and that the attorney fees awarded are too high. The city also seeks damages for frivolous appeal.

STATEMENT OF THE CASE

Carrier was injured while in the course and scope of his employment with the City of Eunice on February 20, 2006. While the City of Eunice initially paid benefits, several disputes arose beginning in 2008. These included the proper calculation of benefits, the City of Eunice’s alleged failures to make certain payments or late payments, whether Carrier was actually injured on the job, and Carrier’s cooperation with the vocational rehabilitation specialist.

The parties negotiated agreements on most of these matters before trial, including the fact that Carrier was in the course and scope of his employment when he was injured. The City of Eunice acknowledged paying $8,000.00 in penalties before trial. The issues presented for determination at the hearing on September 13, 2010, were: (1) calculation of average weekly wage benefit; (2) attorney fees due to Carrier; and (3) whether Carrier’s benefits should be converted from TTD benefits to SEBs. The judgment in the case was delayed pending the supreme court’s opinion in Hargrave v. State of Louisiana through the Department of Transportation and Development, 10-1044 (La.1/19/11), 54 So.3d 1102. The WCJ issued a judgment on 12March 3, 2011, setting the average weekly wage, awarding $10,000.00 in attorney fees, and ordering a face-to-face meeting between Carrier and a vocational rehabilitation specialist. The WCJ found the issue of the conversion of benefits was premature, pending the results of the rehab consultation.

Both parties appeal the judgment of the WCJ.

ASSIGNMENTS OF ERROR

Carrier asserts five assignments of error:

1. The workers’ compensation judge failed to include in the judgment that Mr. Billy Carrier was injured in the course and scope of his employment with the City of Eunice on February 20, 2006.

2. The workers’ compensation judge erred in failing to include in the judgment the $8,000.00 award for penalties, subject to a credit for the payment made by defendant of $8,000.00

3. The attorney fee awarded by the workers’ compensation judge was unreasonably low.

4. The workers’ compensation judge erred in not including legal interest on all amounts due in the judgment.

5. It was error for the workers’ compensation judge to fail to award expenses in the judgment.

Answering the appeal, the City of Eunice asserts (1) that the WCJ erred in failing to convert Carrier’s benefits from TTD benefits to SEB benefits; (2) that the attorney fees award was abusively high and that Carrier is not entitled to additional attorney fees for work done on appeal; and (3) Carrier’s appeal is frivolous and the city is entitled to an award of attorney fees defending the appeal.

DISCUSSION

Carrier’s first two assignments of error have no merit. Before trial, the parties stipulated that Carrier was injured in the course and scope of his employment and that the City of Eunice had paid an $8,000.00 penalty to Carrier. The WCJ was not asked to decide these issues, so there was no reason for the judgment to include findings on either of the issues.

1 (¡Carrier and the City of Eunice both argue that the WCJ abused his discretion in awarding attorney fees. The amount of attorney fees rests within the discretion of the WCJ, as long as it is supported by the record, and will not be disturbed on appeal absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. Factors considered in setting the attorney fee award include the skill and ability of the attorney, the amount of the claim, the amount recovered, and the time devoted by the attorney to the case. Id.

The only evidence in the record to support the attorney fee award in this case is an affidavit from Carrier’s attorney indicating he worked 137 hours at a rate of $225.00 an hour. We find that the WCJ did not abuse his discretion by not awarding the full amount requested in the affidavit, as it is reasonable to find that there was work performed by Carrier’s attorney that was not related to the disputed issues set for trial or for which penalties were paid by the City of Eunice. Carrier’s third assignment of error and the City of Eunice’s second assignment of error lack merit.

Next, Carrier seeks $781.70 for expenses. Like attorney fees, these amounts are reviewed by this court for abuse of discretion. We find no abuse of discretion in the omission of these amounts.

Finally, Carrier seeks interest on the amounts awarded in the judgment. Specifically, he seeks interest on the attorney fees award. Because Carrier sought attorney fees in his initial demand, he is entitled to legal interest from the date of the judgment. See Hargrave v. State, Dep’t of Trans. and Dev., 09-818 (La.App. 3 Cir. 4/7/10), 35 So.3d 437, affirmed, 10-1044 (La.1/19/11), 54 So.3d 1102. Therefore, we will amend the judgment to award legal interest on the attorney fees award from the date of the judgment.

In its first assignment of error, the City of Eunice argues the WCJ should have converted Carrier’s TTD benefits to SEBs. The manifest error standard of appellate review governs this issue. Smith v. La. Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. The WCJ found that it was premature to convert the benefits and as part of his judgment ordered additional vocational rehabilitation in an effort to resolve the issue of whether Carrier was capable of returning to work. It is clear from the WCJ’s reasons for ruling that he found the rehabilitation services provided to Carrier were insufficient:

There’s no way that a reasonable, fair-minded person can look at both the transcript and the chronology of events and not conclude, or at least strongly suspect, that this vocational rehabilitation was conducted solely, totally, and completely in support of the employer’s motives and benefit. The entire exercise was self-serving for the employer and utterly useless for the worker.
I find it disingenuous for the defendant to complain that Mr. Carrier has been less than cooperative and enthusiastic in response to his vocational rehabilitation program which in my most charitable and expansive moments I’d describe as formulaic and bureaucratic.

The WCJ found that the medical evidence did show that Carrier could possibly engage in some employment. Thus, he ordered face-to-face meetings with a vocational rehabilitation counselor to determine what type of work, if any, Carrier could perform, taking into account not only his physical condition but also his skills and mental abilities. We find no manifest error in the determination of the WCJ’s order or in his decision to delay ruling on the issue of conversion to SEBs until after proper vocational rehabilitation had been accomplished. This assignment of error lacks merit.

In response to the City of Eunice’s request that we award damages for frivolous appeal, we find that Carrier was successful, at least partially, in his appeal. Thus, we find no merit in the argument that the appeal is frivolous.

Finally, Carrier seeks attorney fees for work done on appeal. Given that he was partially successful in his appeal and that he successfully defended the answer to the appeal, we award $2,000.00 for work done on appeal.

\r,CONCLUSION

The judgment of the WCJ is amended to include an award of legal interest on the attorney fees awarded to Carrier from the date of the judgment below. In all other respects, the judgment of the WCJ is affirmed. We award additional attorney fees to Carrier in the amount of $2,000.00. Costs of this appeal are assessed to the City of Eunice in the amount of $2,373.18

AFFIRMED AS AMENDED.


author: AMY, Judge.

text:
    George Keith DAY v. SUPERIOR DERRICK SERVICES.
    No. 11-749.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Robert B. Purser, Purser Law Firm, Opelousas, LA, for Defendant/Appellant, Superior Derrick Services.
    Daren Sarphie, Guillory, Scott & Associates, Metairie, LA, for Plaintiff/Appellee, George Keith Day.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

| j Alleging that he had injured his neck and shoulder in a work-related accident, the claimant sought workers’ compensation benefits from the defendant, his former employer. After a hearing, the workers’ compensation judge found in favor of the claimant and awarded medical and indemnity benefits, penalties, costs, and attorney fees. The defendant appeals, asserting that the workers’ compensation judge erred in finding that the claimant’s injuries were related to his employment accident. The claimant has answered the appeal, seeking additional attorney fees, penalties, and interest. For the following reasons, we affirm the judgment of the workers’ compensation judge; grant, in part, and deny, in part, the claimants’ request for additional penalties; grant the claimant’s request for judicial interest; and award additional attorney fees for work done on appeal.

Factual and Procedural Background

The record indicates that the claimant, George Day, was employed as a fitter-welder by the defendant, Superior Derrick Services. Mr. Day alleges that he was carrying heavy oak boards up to a derrick platform when he felt a sharp pain in his neck and a “pop” in his neck and shoulder. According to Mr. Day, his neck and shoulder began to hurt, but he continued working for several days until the pain became unbearable. At Superior Derrick’s direction, Mr. Day went to a medical clinic. Mr. Day alleges that, after several visits to the clinic, the staff told him that he needed to see a neurosurgeon, but that Superior Derrick refused to pay for it. Mr. Day testified that, because of Superior Derrick’s refusal, he told the doctor he was not in any pain so he could go back to work. The record indicates that Mr. Day was arrested later that night and incarcerated for five months, which effectively ended his employment at Superior Derrick.

12Approximately one year later, an MRI revealed degenerative disc disease in Mr. Day’s cervical spine. The MRI also indicated moderate amounts of central canal stenosis, or narrowing of the spinal canal, and some spinal cord compression. Mr. Day subsequently filed a disputed claim for compensation, seeking indemnity and medical benefits, penalties, and attorney fees. The record indicates that Mr. Day eventually had surgery on his right shoulder, but that Superior Derrick’s insurer refused to pay for surgery on Mr. Day’s neck. In 2009, before the matter went to trial, the record indicates that Mr. Day awoke to find himself unable to stand. Mr. Day was admitted to the hospital, diagnosed with “incomplete” quadriparesis, and an anterior discectomy was performed.

After a hearing, the workers’ compensation judge found that Mr. Day was injured in the course and scope of his employment on July 22, 2005. The workers’ compensation judge awarded Mr. Day temporary total disability benefits from the date of his shoulder surgery, subject to a credit for all amounts earned, medical benefits, and penalties in the amount of $2,000.00 for failure to authorize medical treatment. Additionally, the workers’ compensation judge awarded $8,000.00 in attorney fees, based on the defendant’s failure to reasonably controvert Mr. Day’s claim, $1,500.00 to Mr. Day’s former attorney, and costs.

Superior Derrick appeals, asserting that “[t]he trial court judge erred by awarding indemnity benefits to APPELLEE after finding that Claimant’s disability was causally related to the employment accident.” Mr. Day has answered the appeal, seeking additional attorney’s fees for work done on appeal, an increase in penalties, and legal interest.

Discussion

Fhidings of Fact

In its sole assignment of error, the defendant contends that the workers’ | ..compensation judge erred in finding that Mr. Day’s cervical problems were a result of his employment accident.

In workers’ compensation cases, findings of fact are reviewed under the manifest error or clearly wrong standard of review. Burkett v. LFI Fort Pierce, Inc., 10-1478 (La.App. 3 Cir. 5/4/11), 63 So.3d 365, writ denied, 11-1129 (La.9/16/11), 69 So.3d 1148. Thus, the appellate court must determine whether the factfinder’s conclusion was a reasonable one, not whether it was right or wrong. Id. Further, the factfinder’s choice between two permissible views of the evidence can never be manifestly erroneous or clearly wrong. Id. Even if the appellate court is convinced that it would have weighed the evidence differently if sitting as the trier of fact, the appellate court may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.

In Ardoin v. Firestone Polymers, LLC, 10-245, p. 5 (La.1/19/11), 56 So.3d 215, 218-19, the supreme court discussed the burden of proof for workers’ compensation cases where the alleged accident is unwit-nessed, stating:

As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwit-nessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert International, Inc., [593 So.2d 357 (La.1992) ] (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)). As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. (citing West, Nelson, and Malone and Johnson).

When making a determination as to whether the claimant has discharged his or her burden of proof, the workers’ compensation judge should accept as true a |4witness’s uncontradicted testimony, even where a witness is a party, absent circumstances casting suspicion on the reliability of his or her testimony. Lopez v. Town of Zwolle, 07-76 (La.App. 3 Cir. 7/5/07), 963 So.2d 1041. Further, the workers’ compensation judge’s findings regarding whether the claimant’s testimony is credible and whether the claimant has met his or her burden of proof are factual determinations subject to the clearly wrong — manifest error standard of review. Id.

As this alleged accident is unwit-nessed, we must decide whether Mr. Day’s testimony is corroborated by the circumstances and whether “serious doubt” exists regarding his account of what occurred. See Butterfield v. Turner Indus., 06-1098 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, writ denied, 07-507 (La.4/27/07), 955 So.2d 692. In this case, Mr. Day alleged that on July 22, 2005, he injured his neck and back while carrying heavy boards up a flight of stairs. Mr. Day also testified that he informed his immediate supervisor that he might have pulled something, but that he thought he could keep working. According to Mr. Day, he worked for several more days before he sought medical attention.

At Superior Derrick’s direction, Mr. Day went to the Occupational Medical Clinic of New Iberia on July 28, 2005. Mr. Day’s medical records from that date indicate that he was diagnosed with a strain. The records from Mr. Day’s last day of treatment with Occupational Medicine indicate that his pain had either resolved or was very minimal. Mr. Day contends that the clinic staff recommended that he be seen by a neurosurgeon, but that Superior Derrick’s personnel and safety manager told him that Superior Derrick would not pay for workers’ compensation benefits. According to Mr. Day, he said that he was fine so that he could go back to work. Mr. Day was arrested later that day and did not return to work at Superior Derrick.

lain August of 2006, Mr. Day had an appointment with his family doctor, Dr. Robert Lahasky. According to Dr. Laha-sky, Mr. Day complained of “electrical shocks,” numbness in his hands, and a history of right shoulder pain. Mr. Day attributed these symptoms to the July 22, 2005 accident. Dr. Lahasky ordered an MRI, which revealed degenerative disc disease at C5-6 and C6-7. The MRI also showed a moderate amount of central canal stenosis and some cord compression. Dr. Lahasky referred Mr. Day to Dr. Ricardo Leoni, a neurosurgeon.

Dr. Leoni testified at his deposition that, based on the history provided by Mr. Day, he attributed Mr. Day’s neck and shoulder conditions to the July 22, 2005 accident. In a letter to Superior Derrick’s insurer, Dr. Leoni contemplated that Mr. Day would need surgery on his neck. Mr. Day was also referred to Dr. James Domingue for a neurologic consultation. In Dr. Do-mingue’s opinion, the “vast majority” of Mr. Day’s pain came from his right shoulder injury. With regard to Mr. Day’s neck condition, Dr. Domingue felt that surgery would eventually become necessary, but it would be best to delay surgery for Mr. Day so that he could keep working. In the meantime, Dr. Domingue suggested physical therapy.

According to medical records, on February 25, 2009, Mr. Day awoke to find that he was paralyzed from the neck down. Mr. Day was admitted to the hospital, diagnosed with “incomplete” quadriparesis, and an anterior discectomy was performed. Mr. Day spent several months in rehabilitation and eventually regained his ability to walk, although he testified that he still has problems with |fimuscle spasms, headaches, and incontinence. The doctor that performed Mr. Day’s neck surgery, Dr. Ilyas Munshi, testified at his deposition that:

[Mr. Day] had some event that caused pressure on the spinal cord from the herniation at 5-6 and 6-7 that necessitated the surgery. If those herniations were present prior to this, meaning if those herniations are the same hernia-tions that Dr. Leoni had recommended surgery on, and they had progressed farther, then his — the reason for the herniation in his neck is from the worker’s comp injury. It subsequently had progressed further, without the fall or not, that necessitated the surgery.

Superior Derrick contends that several events cast suspicion on Mr. Day’s credibility and that his neck injuries could have been caused by several other incidents. Specifically, Superior Derrick contends that Mr. Day could not have been seriously injured when he was initially treated on July 22, 2005, as he rode his bicycle to Occupational Medicine and he was intoxicated when he arrived. Further, Mr. Charles Albert, Superior Derrick’s personnel and safety manager, denied that the accident was reported to him on July 22, 2005 and testified that neither Mr. Day’s supervisor nor his co-workers had reported or witnessed an accident. With regard to Mr. Day’s allegation that Mr. Albert told him that Superior Derrick would not pay for a neurosurgeon, Mr. Albert denied both that he received a phone call from Occupational Medicine and that he said that Superior Derrick would not pay for further medical treatment.

In further support of its argument, Superior Derrick points to Mr. Day’s arrest several hours after his appointment at Occupational Medicine. The police report, which was introduced into evidence, indicates that Mr. Day was highly intoxicated and that he threw his keys at his wife. Further, according to the police report, “[o]nce Mr. Day was placed into custody, [he] was hitting his head against the patrol car window and the safety cage of the patrol unit.” At trial, Mr. Day 17testified that he “might have” hit his head on the window or the grate. However, he later admitted that he was hitting his head on the patrol unit, but asserted that it “wasn’t that hard.” Superior Derrick contends that Mr. Day’s shoulder could not have been seriously injured if he was able to throw his keys at his wife and hit his head repeatedly on the patrol unit. Additionally, Superior Derrick asserts that Mr. Day’s inconsistent testimony on this issue reflects negatively on his credibility.

Superior Derrick also points to an incident in August, 2006. Mr. Day’s medical records from that time indicate that, on August 2, 2006, he was hospitalized with heat stroke and seizures. According to the records, Mr. Day was hitting his head on the spine board. Further, the records indicate that Jody Day, Mr. Day’s wife, said that Mr. Day was “rolling around on the concrete at the house, hitting [his] head on the cement, growling and shaking [his] head back and forth like an alligator with prey in its mouth.”

We find that the workers’ compensation judge was not manifestly erroneous in finding that Mr. Day suffered a work-related injury on July 22, 2005. The record permits a finding that Mr. Day’s testimony is corroborated by circumstances following the alleged incident. The record, reviewed in its entirety, reveals that Mr. Day had no symptoms prior to the July 22, 2005 accident. Further, his description of the accident to his many treating physicians was consistent over many years. We note that the record indicates that, at the latest, Superior Derrick was aware of the alleged accident on July 28, 2005, when it sent Mr. Day to Occupational Medicine. Notably, several of his doctors testified at their depositions that they considered Mr. Day’s neck and shoulder problems to be consistent with or causally linked to the July 22, 2005 accident. See Faulkner v. Better Servs., Inc., 10-867 (La.App. 5 Cir. 5/24/11), 67 So.3d 646; Hamilton v. Compass Group USA/Morrison, 07-501 (La.App. 5 Cir. 11/27/07), 973 So.2d 803. Cf. Ardoin, 56 So.3d at 216; Butterfield, 951 So.2d 476.

We note that it was the workers’ compensation judge’s prerogative to assess credibility, and she found that Mr. Day was credible. Specifically, the workers’ compensation judge found that Mr. Day was “extremely motivated and was going to do his best to overcome his limitations” and that “it was more important to [Mr. Day] to earn a living.” With regard to Mr. Day’s subsequent employment, the workers’ compensation judge stated that she was not going to penalize Mr. Day for “trying to go about his business until he [couldn’t] do it anymore.” Although there were inconsistencies in Mr. Day’s testimony, especially concerning his arrest on July 28, 2005, we find that the record supports the workers’ compensation judge’s findings that these inconsistencies were not significant enough to cast serious doubt on Mr. Day’s case and that Mr. Day’s other medical issues were “not of such a nature as to be intervening from a causal standpoint.”

This assignment of error is without merit.

Answer to the Appeal

In his answer to the appeal, Mr. Day seeks an increase in penalties awarded under La.R.S. 23:1201(F). Further, Mr. Day requests that this court amend the judgment to award judicial interest. Finally, Mr. Day seeks an award of additional attorney fees for work done on appeal.

Penalties

With regard to his request for an increase in penalties, the workers’ compensation judge awarded Mr. Day $2,000.00 in penalties for failure to authorize medical treatment, “including the cervical surgery,” under La.R.S. 23:1201(F). The workers’ compensation judge stated that Superior Derrick should have authorized Mr. Day’s neck surgery after Dr. Munshi opined that Mr. Day’s neck injury was related to the accident. However, in the workers’ compensation 1 ¡judge's view, given the full work release generated by Occupational Medicine, Superior Derrick otherwise reasonably controverted the claim. In addition to these penalties, Mr. Day seeks additional penalties for: 1) Superior Derrick’s alleged failure to pay TTD benefits from the date of his shoulder surgery on December 15, 2006; 2) Superior Derrick’s failure to pay medical bills related to his cervical surgery; and 3) Superior Derrick’s discontinuance of benefits on August 27, 2007.

Louisiana Revised Statutes 23:1201 governs penalties under the workers’ compensation statutes. Subsection (E) requires payment of medical bills “within sixty days after the employer or insurer receives written notice thereof.” Failure to pay these benefits results in penalties under Subsection (F), in the maximum amount of $2,000.00 per claim, with the caveat that penalties and attorney fees are not warranted if the “claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2). See Alexander v. Autozone, Inc., 04-871 (La.App. 3 Cir. 12/8/04), 889 So.2d 366. “The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.” La.R.S. 23:1201(F). The burden of establishing that medical bills were not paid within sixty days of receipt lies upon the claimant seeking sanctions for failure to timely pay medical bills. Weingartner v. La. Ice Gators, 05-1211 (La.App. 3 Cir. 11/2/06), 942 So.2d 68.

A claim is reasonably controverted where there is a nonfrivolous legal dispute and/or the employer “possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. | inFurther, the employer has a continuing duty to assess facts and to investigate an employee’s claim before it denies benefits. Evans v. Hampton Inn, 08-1195 (La.App. 3 Cir. 3/4/09), 6 So.3d 380. Finally, the workers’ compensation judge’s determination of whether penalties and attorney fees are warranted is a question of fact which will not be disturbed on appeal absent manifest error. Ebare v. Cubic Applications, Inc., 08-1095 (La.App. 3 Cir. 3/4/09), 5 So.3d 1028.

We turn to Mr. Day’s assertion that he is entitled to an additional $2,000.00 penalty for Superior Derrick’s alleged failure to pay Mr. Day’s medical bills related to his 2009 cervical surgery. In support of this allegation, Mr. Day points to two packets of medical bills, which were submitted into evidence. One packet, dated July 20, 2009, is addressed to Superior Derrick’s counsel and requests that the bills therein “be placed in line for payment.” A copy of a certified mail receipt is attached, but there is no return receipt or other information in the record indicating that Superior Derrick’s counsel received the packet. The other packet is also addressed to Superior Derrick’s counsel and dated September 1, 2009. The cover letter for the second packet indicates that the medical bills “will be introduced at the trial on this matter.” Mr. Day also testified that he still had medical bills outstanding as of September 11, 2009. A review of the record indicates that, although Superior Derrick paid some of his medical bills, it did not submit any evidence that it did or did not receive the bills in the two packets or that it did or did not pay those bills.

When presented with this evidence, the workers’ compensation judge did not award penalties for failure to timely pay medical bills. Given the deferential In standard of review for such findings of fact and the lack of specificity regarding the payment timeline, we find that the workers’ compensation judge did not err in not awarding such penalties. See Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261.

Mr. Day also contends that he is entitled to additional penalties under La. R.S. 23:1201(B) and (F) for Superior Derrick’s alleged failure to pay TTD benefits from the date of his shoulder surgery until the date of his release. Mr. Day contends that, although the surgery was performed in 2006, Superior Derrick did not pay any TTD benefits until September 11, 2009. We note that the workers’ compensation judge found that both Mr. Day’s neck and shoulder injuries were related to the July 22, 2005 accident and awarded Mr. Day benefits from the time of the “shoulder surgery, December 15, 2006, and ongoing, subject to credit for all wages earned.” Superior Derrick has not contested this award on appeal. We also note that the record indicates that Superior Derrick paid for Mr. Day’s shoulder surgery and related medical benefits. According to Mr. Day’s testimony, he missed between four to six weeks of work due to the shoulder surgery and did not receive any TTD benefits during that time.

Given that the workers’ compensation judge found that Mr. Day was entitled to TTD benefits from the date of his shoulder surgery, that Superior Derrick paid for the shoulder surgery, and that the record does not indicate that Superior Derrick submitted any evidence to show that it reasonably controverted Mr. Day’s claim for TTD benefits, we find that Mr. Day is entitled to an additional penalty award in |12the amount of $2,000.00 for Superior Derrick’s failure to pay TTD benefits after his shoulder surgery.

In addition, Mr. Day asserts that he is entitled to an additional penalty because Superior Derrick terminated medical benefits on August 21, 2007, with no reasonable basis to do so. A letter from Superior Derrick’s attorney from that date, stating that Superior Derrick’s insurer would not pay for any of Mr. Day’s future medical expenses or prescriptions, was submitted into evidence.

Where an employer discontinues benefits, as opposed to nonpayment of benefits, the applicable penalties are delineated in La.R.S. 23:1201(1), which states:

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. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(0 shall be applicable to claims arising under this Chapter.

The supreme court further discussed such penalties in Iberia Medical Center v. Ward, 09-2705, pp. 18-19 (La.11/30/10), 53 So.3d 421, 433-34, stating:

Awards of penalties and attorneys’ fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 1998-2271 (La.6/29/99), 737 So.2d 41, 46. Although the Worker’s Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id. “Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown [721 So.2d at] 890.

| isHere, the workers’ compensation judge found that the claim was reasonably controverted under Subsection (F), with the exception of Superior Derrick’s decision to authorize Mr. Day’s cervical surgery “at the later date.” We note that unreasonably controverting a claim “requires action of a less egregious nature than that required for arbitrary and capricious behavior.” Brown, 721 So.2d at 890. However, the workers’ compensation judge did not address the propriety of penalties under Subsection (I). Where the judgment is silent as to a litigated issue, that demand is considered rejected in the absence of a special reservation. Cotton v. Delta Queen Steamboat Co., Inc., 09-736 (La.App. 4 Cir. 1/6/10), 36 So.3d 262 (citing R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980)).

The record indicates that Dr. Schutte released Mr. Day to full duty on January 25, 2007. Although Mr. Day contends that penalties are warranted in part because of Superior Derrick’s failure to authorize the anterior discectomy recommended by Dr. Leoni, we note that the workers’ compensation judge found that Mr. Day’s claim was reasonably controverted until Superior Derrick received information from Dr. Munshi, some two years later, that the surgery performed in 2009 was substantially similar to the surgery recommended by Dr. Leoni. Thus, the record before us indicates that Superior Derrick continued to pay for Mr. Day’s medical benefits almost seven months after he was released from Dr. Schutte’s care. In light of this evidence, we find no error in the determination that the 1u termination of benefits was not arbitrary and capricious. Therefore, we do not award additional penalties on that basis.

Judicial Interest

In his answer to the appeal, Mr. Day requests that this court amend the judgment to award judicial interest on the penalties and attorney fees awarded by the workers’ compensation judge. Mr. Day asserts that he requested judicial interest.

“In order to obtain interest on an award, a litigant must pray for interest unless interest is allowed by law.” Smith v. Quarles Drilling Co., 04-0179, p. 5 (La.10/29/04), 885 So.2d 562, 565-66. Louisiana Revised Statutes 23:1201.3(A) provides that “[a]ny compensation awarded and all payments thereof directed to be made by order of the workers’ compensation judge shall bear judicial interest from the date compensation was due until the date of satisfaction.” However, penalties and attorney fees in workers’ compensation cases are not considered compensation. Burns v. Interstate Brands Corp., 09-705 (La.App. 3 Cir. 2/3/10) 30 So.3d 271. Thus, in order to receive interest on penalties and attorney fees, a party must pray for interest in his pleadings. Id. We note that interest on penalties and attorney fees begins to run from the date of judgment. Broussard v. Lafayette Parish Sch. Bd., 06-268 (La.App. 3 Cir. 9/27/06), 939 So.2d 662, writ denied, 06-2591 (La.1/12/07), 948 So.2d 152.

A review of the record reveals that Mr. Day sought judicial interest in his pleadings for any award of penalties and attorney fees. Therefore, we amend the judgment to reflect that Mr. Day is entitled to judicial interest on the awards of penalties and attorney fees from the date of judgment. See LeJeune v. State of La., DOTD, 10-121 (La.App. 3 Cir. 6/2/10), 40 So.3d 458, writ denied, 10-1568 (La.4/8/11), 61 So.3d 680.

| Additional Attorney Fees

Mr. Day also seeks additional attorney’s fees for work performed on appeal. “An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” McKelvey v. City of DeQuincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. In light of our earlier affirmation of the judgment of the workers’ compensation judge, as well as an increase in the award of penalties, we award additional attorney fees for work performed on appeal in the amount of $2,000.00.

DECREE

For the above and foregoing reasons, the judgment of the Office of Workers’ Compensation is amended to award the claimant, George Keith Day, an additional $2,000.00 in penalties for failure to pay temporary total disability benefits from the date of his shoulder surgery. The judgment is further amended to reflect that judicial interest is assessed on the awards of penalties and attorney fees from the date of judgment. The judgment finding that the claimant was injured in the course and scope of his employment and awarding penalties for failure to authorize medical treatment, as amended, is affirmed. An additional $2,000.00 in attorney fees is awarded for work performed on appeal. Costs of this proceeding are assessed to the defendant, Superior Derrick Services.

AFFIRMED AS AMENDED AND RENDERED.

      . With regard to Mr. Day's right shoulder injuries, Mr. Day was referred to Dr. John Schutte, who performed arthroscopic surgery on Mr. Day's right shoulder in December of 2006. According to Dr. Schutte’s records, the surgery resolved Mr. Day’s shoulder problems, but he did not expect it to resolve any of Mr. Day's other problems. The record indicates that, in 2006, Superior Derrick's insurer authorized the shoulder surgery, but did not authorize any surgery on Mr. Day’s neck. A letter from Superior Derrick’s attorney indicates that, on August 21, 2007, the insurer informed Mr. Day that they would not be paying for any further medical benefits.

      . Dr. Ilyas Munshi testified that this surgery was similar to the one recommended by Dr. Leoni.

      . Records from Occupational Medicine indicate that, on July 28, 2006, at 1:54 p.m., Mr. Day had a BAC of 0.182 and that, at 2:12 p.m., Mr. Day had a BAC of 0.192.

      . In brief, Mr. Day asserts that demand for payment of medical bills was made on March 10, 2009.

      . Specifically, we note that there was evidence indicating that Superior Derrick paid for Mr. Day’s visits to Occupational Medicine in 2005 and for his shoulder surgery and related treatment in 2006.

      . Louisiana Revised Statutes 23:1201(B) states that "[t]he first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.”

      . We note that Mr. Day initially argues that additional penalties for the termination should be awarded under La.R.S. 23:1201 (E), which addresses the failure to pay medical benefits within sixty days, as well as La.R.S 23:1201(F). Considering that Mr. Day contends that he is entitled to additional penalties for improper termination of benefits, we examine his claim under the provisions of La. R.S. 23:1201(1).

      . The discussion contained in the workers’ compensation judge's oral reasons for ruling indicate that she awarded “penalties and attorney[ ] fees for the failure to pick up treatment at the later time frame, and failure to authorize the surgery and treatment. And it’s not going to be for the entirety of the case because I do think some of the issues were reasonably controverted.” Although Mr. Day’s counsel specifically argued that the case was not reasonably controverted at the point where Dr. Leoni recommended the anterior discectomy, the workers’ compensation judge noted that Mr. Day was able to work despite his injury until he woke up paralyzed. Further, the workers’ compensation judge found that authorization of the surgery did not become "incumbent upon the employer” until Dr. Munshi opined that the surgery he performed in 2009 was substantially similar to the procedure recommended by Dr. Leoni.


author: THIBODEAUX, Chief Judge.

text:
    Timothy BERNARD, Sr., et ux. v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 11-816.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      F. Douglas Wimberly, Cloyd, Wimberly & Villemarette, L.L.C., Lafayette, LA, for Defendants/Appellees, Lafayette City-Parish Consolidated Government and Thomas R. Carroll.
    Timothy Bernard, Sr., In Proper Person, Lafayette, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|TThe plaintiffs, Timothy Bernard Sr., his wife, Sheman Bernard, and his mother, Evelyn Bernard (the Bernards), appeal a judgment dismissing their suit against the defendants, Lafayette City-Parish Consolidated Government through Thomas R. Carroll III, Joey Durel, and the Public Works Department (LCG). Following a pre-trial hearing on LCG’s exception of prescription, the trial court found that the Bernards’ action prescribed one year after the LCG completed its drainage project adjacent to the Bernards’ property.

Finding that the damages claimed by the Bernards are subject to a two-year prescriptive period and that they filed suit within the two-year period, we reverse the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court erred in granting the defendants’ exception of prescription and dismissing the plaintiffs’ suit with prejudice.

II.

FACTS AND PROCEDURAL HISTORY

On October 30, 2008, LCG completed drainage improvements adjacent to the Bernards’ property. These improvements allegedly caused erosion and a hazardous sink hole on their property. The date of the completion of the project is not in dispute and is supported by the defendants’ affidavits.

On October 29, 2010, the Bernards, who are unrepresented, pro se plaintiffs, due to the withdrawal of their former attorney, filed a two-sentence, hand-written petition for $5,000.00 in small claims court, alleging: “Damages \9caused by wrongful conduct of defendants as poor drainage system was installed by defendants herein.” The petition further stated that a sink hole was due to the defendants’ negligence and mismanagement.

LCG transferred the suit to the district court and filed an exception of prescription, asserting that the Bernards’ delictual action had a one-year prescriptive period and had prescribed on October 30, 2009.

One month before the hearing on LCG’s exception of prescription, the Bernards filed a letter with the Clerk of Court, requesting a hearing on the prescriptive period. They cited La.R.S. 19:102 and 19:103 and quoted the language providing for a two-year prescriptive period on claims for damages caused by a procedural expropriation of property through petition and hearing.

At the hearing on the exception, the trial judge told the Bernards that they would have to provide evidence of an expropriation proceeding in order to avail themselves of the two-year prescriptive period. She directed them to the public records at City Hall and gave them ten days to obtain the evidence. The only “evidence” that the Bernards produced was a letter from their former attorney, dated October 18, 2010, signifying that he had returned their client file and advised them that they must file suit against the LCG before October 30, 2010. The letter itself did not mention expropriation or any specific cause of action, but it led to the Bernards’ filing of their petition on October 29, 2010.

The trial judge granted the LCG’s exception of prescription and dismissed the Bernards’ suit with prejudice. The judge inserted a handwritten revision in her judgment, stating: “The plaintiffs were afforded additional time to provide to the court evidence to support their claim that their property had been the subject of expropriation. No such evidence was provided.”

The Bernards filed a motion for an appeal and for a new trial under La.Code Civ.P. art. 1971. LCG filed an answer in the district court asserting [ ^frivolous appeal. The Bernard’s motion for appeal was granted, but the trial court’s order did not address the request for a new trial. The new trial was, therefore, denied.

We now consider whether the Bernards’ suit against the LCG had prescribed when they filed it on October 29, 2010.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the 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). “Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.” Id. at 844, n. 2.

IV.

LAW AND DISCUSSION

The Bernards contend that the trial court erred in granting the LCG’s exception of prescription. We agree. Under the applicable statute, not cited or discussed by the parties or the trial judge in this case, the Bernards’ suit had not prescribed, and we reverse.

It is clear from the Bernards’ efforts at self-representation at the hearing, that their claim was for “damages” caused to their property by public work on their property and along their property lines, not for a procedural or statutory expropriation of their property by LCG, which was the only issue addressed by the trial court. The Bernards did not understand expropriation under |4the statutes they cited, La.R.S. 19:102 and 19:103. Those statutes are inapplicable in this case because they provide for (1) statutory or procedural expropriation of property by municipal corporations; (2) exercised by the filing of a petition and a hearing on the petition, which did not occur in this case. There was no procedural or statutory expropriation by LCG under the cited statutes in this case. The cited statutes do provide for a two-year prescriptive period if the property owner claims damages caused by the expropriation, which was the thrust of the Bernard’s arguments. Notwithstanding the mistaken citations, the Bernards articulated at the hearing that LCG had used their property while installing a drainage system and that the result was damage to their property, unsafe erosion on them property, a hazardous sinkhole that they had to rope off in order to prevent injury to their children and guests, loss of enjoyment, and devaluation of property.

Those damages are covered under La. R.S. 9:5624, which also provides for a two-year prescriptive period: “When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” La.R.S. 9:5624. The fact that the Bernards cited the wrong statute is of no moment. “[A] pro se litigant who lacks formal training in the law and its rules of procedure ... should be allotted more latitude than those plaintiffs represented by counsel.” Brooks v. Tradesmen Int'l, Inc., 03-1871, p. 5 (La.App. 4 Cir. 9/1/04), 883 So.2d 444, 447, writ denied, 04-2432 (La.12/10/04), 888 So.2d 843.

Under the damage statute, La.R.S. 9:5624, specifically addressing damage without expropriation, and the kind of damage alleged against LCG’s Department of Public Works in the Bernards’ petition, the Bernards timely filed their suit one year and 364 days after LCG completed the drainage project adjacent to their property. The purpose of the two-year prescriptive period, applicable when private property is damaged for public purposes, is “to limit the exposure of the State and its political subdivisions to liability in connection with a public work to a reasonable period of time.” Avenal v. State, 03-3521, p. 33 (La.10/19/04), 886 So.2d 1085, 1108, cert. denied, 544 U.S. 1049, 125 S.Ct. 2305, 161 L.Ed.2d 1090 (2005).

The party urging the exception of prescription bears the burden of proving facts sufficient to support the exception. The standard controlling review of a peremptory exception of prescription requires that the court of appeal strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Dauzart v. Fin. Indem. Ins. Co., 10-28 (La.App. 3 Cir. 6/2/10), 39 So.3d 802.

At the trial of a peremptory exception of prescription, evidence may be introduced to support or controvert the defense of prescription, if its grounds do not appear from the petition. La.Code Civ.P. art. 931. “Generally, in the absence of evidence, the objection of prescription must be decided based upon the facts alleged in the petition, which must be accepted as true. But [this] principle applies | (¡only to properly pleaded material allegations of fact, as opposed to allegations deficient in material detail, conclusory factual allegations, or allegations of law.” Kirby v. Field, 04-1898, p. 6 (La.App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 05-2467 (La.3/24/06), 925 So.2d 1230 (citations and footnote omitted).

In support of its exception of prescription, LCG provided the trial court with three affidavits by the director, associate director, and a supervisor, of LCG’s Department of Public Works. The affidavits confirmed that the drainage project was surveyed and constructed within LCG’s drainage right of way, adjacent to the Ber-nards’ property; that the drainage improvements met all applicable design and operational standards; and, that the project was completed on October 30, 2008.

The Bernards did not provide affidavits, but Timothy Bernard, Sr. and Sheman Bernard appeared pro se in open court on the date of the pre-trial hearing on prescription and testified on their own behalf. While the transcript of the hearing does not indicate a swearing-in of the plaintiffs, the court’s minutes state that Timothy and Sheman Bernard appeared in “proper person” and that “[o]ral argument and testimony was presented by and between the respective parties.” The trial judge herself questioned the plaintiffs and limited their responses.

Both of the Bernards attempted to provide a factual background to explain the nature of their claims for damages, and Sheman Bernard, in particular, tried to focus her remarks on evidentiary matters for the court. Ms. Bernard explained to the court that they had filed their petition in small claims court within the two year prescriptive period as advised by their former attorney, and that the petition was filed “for the damages to be fixed on the property.” The court specifically asked Ms. Bernard under what statute she was making her claim, and Ms. Bernard found the language of La.R.S. 19:103 and read it to the court. It is unknown why the Ber-nards chose to cite that statute, as it was not mentioned in the 17letter from the former attorney. Nor was it ever cited or specifically addressed by LCG. It was very clear from the transcript that the Bernards did not understand the meaning of expropriation in the legal sense, or have knowledge of other statutes that could address their claims for damages. Once the statute was cited, however, the trial court limited their testimony to that statute. Because Louisiana eschews the “theory of the case” pleading, that procedure was flawed.

We note at this juncture that the brief record in this case indicates a two-year-plus battle between the parties, during which there were complaints of flooding and requests for culverts and drainage boxes, alleged property damage during construction of the drainage project, attempts by the Bernards to stop the construction, anger, police intervention, arrest, and a failed attempt by LCG to get an injunction against the Bernards to prevent them from filing complaints against LCG. At the hearing on the exception, the trial court asked if there had been an expropriation proceeding, and it eventually became clear through their efforts to explain, that the Bernards believed the injunction brought against them by LCG, due to their continuing complaints, was the expropriation proceeding mentioned in the inapplicable statute, La.R.S. 19:103.

The trial judge told the Bernards that expropriation meant that LCG would have filed a petition for expropriation, taken some of their property, and paid them for it. The court continued to ask for proof of an expropriation proceeding and a taking, and she told the Bernards that without it, they would be subject to a one-year prescriptive period.

This is not an accurate statement of the law, as takings occur without expropriation proceedings, and a plaintiffs action for such a taking under La.R.S. 13:5111, has a three-year prescriptive period. More importantly, as indicated above, La.R.S. 9:5624 addresses the very nature of damages claimed by the Bernards, without a taking, and it has a two-year prescriptive period.

lain Avenal, the Louisiana Supreme Court articulated the distinction between a taking, under La.R.S. 13:5111, and damage to property under La.R.S. 9:5624, neither of which was considered by the trial judge in her examination of the Bernards.

[T]he relevant consideration is whether plaintiffs’ property was “taken” for a public purpose, or whether it was “damaged” for a public purpose. A distinction between a taking and a damaging is necessary because of the existence of two relevant prescription statutes, La. R.S. 13:5111 and La. R.S. 9:5624. Section 5111 of Title 13 is entitled “Appropriation of property by state, parish, municipality or agencies thereof; attorney, engineering and appraisal fees; prescription” and provides in pertinent part: “[A] proceeding brought against the state of Louisiana ... or other political subdivision ..., for compensation for the taking of property by the defendant, other than through an expropriation proceeding, ... shall prescribe three years from the date of such taking.” Section 5624 of Title 9 provides: “When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” Thus, although the Louisiana Constitution provides that just compensation shall be paid when property is taken or damaged, La. R.S. 13:5111 provides a three-year prescriptive period for takings and La. R.S. 9:5624 provides a two-year prescriptive period for damage. A.K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, 237 La. 541, 547-48, 111 So.2d 765, 767 (1959) (Prescriptive period of La.R.S. 9:5624 applies only when private property is damaged for public purposes, but not actions for recovery of private property taken for public purposes).

Avenal v. State, 03-3521 (La.10/19/04), 886 So.2d 1085, 1104-05.

In Avenal, oyster fishermen who owned leases in Breton Sound claimed that the State’s action in diverting fresh water over their leased oyster beds (to stop erosion by salt water, for the public good), amounted to a taking of their property rights in violation of Article 1, § 4 of the Louisiana Constitution. After eliminating all but twelve of the 204 leases involved due to hold harmless clauses in the leases, the Louisiana Supreme Court analyzed the twelve remaining leases |nunder La.R.S. 9:5624 and La.R.S. 13:5111. The court cited Columbia Gulf Transmission Co. v. Hoyt, 252 La. 921, 215 So.2d 114 (La.1968), where it had found that property is “taken” when the public authority acquires the right of ownership, but property is considered “damaged” when the action of the public authority “results in the diminution of the value of the property.” Avenal, 886 So.2d at 1105 (quoting Columbia Gulf Transmission Co., 215 So.2d at 120). Diminution of property value due to the erosion and the sink hole are claims that the Bernards made at the hearing on the exception.

In Avenal, where the plaintiffs’ claims were brought under Article I, § 4 of the Louisiana Constitution, the court stated that:

We have no trouble classifying this case as a “damage” case under Art. I, § 4 rather than a “takings” case, for numerous reasons. It is undisputed that the state owned and continues to own the water bottoms. La. R.S. 9:1101. The state owns the waters. Id. The state owns the oysters. La. R.S. 56:3. Thus, the State could not take its own property. As Judge Tobias aptly noted in dissent, “[t]he State cannot appropriate or inversely condemn that which it already owns.” Avenal [v. State ], 01-0843 [ (La.App. 4 Cir. 10/15/03) ], 858 So.2d [697] at 740 (Tobias, dissenting).

Avenal, 886 So.2d at 1106.

In this case, LCG focused all of its proof, by affidavits, upon the fact that the project was completed within the right of way, or servitude, that it already owned, when the nature of the plaintiffs’ claims revolved around the “damage” caused during and following the construction. Because LCG used and damaged part of their property while installing the drainage improvements, it is not difficult to understand how the Bernards confused the legal distinctions between damages, procedural expropriation, and appropriation by taking, all of which can be performed by a public body.

Here, with regard to proof of the nature of their claim for damages against LCG, Timothy Bernard told the court that he had pictures, DVD, and film | mof the damages caused by the drainage work and that he would bring the judge whatever proof she wanted. Because he had complained that the LCG had come upon his property illegally and damaged it, the trial court focused upon LCG’s affidavits stating that it had placed the drainage improvements inside its right of way. In response, Ms. Sheman Bernard articulated her own legal inexperience and expressed her concern that she was not “explaining it right.” Ms. Bernard specifically stated, “They used our property.” When pressed by the court for proof of an expropriation, Ms. Bernard stated, “They crossed over private property. When they were digging, they went over their servitude, causing damages along private property as well as their right of way.” The court’s response to this was that an action for trespass also had a one-year prescriptive period.

Yet, when Mr. Bernard tried to explain that “the property was all concreted ... ”, apparently attempting to discuss the nature of the damages, the court interrupted him and stated as follows:

Okay. Okay. But again, ya’ll are getting into facts. And here’s the problem. And I know you’re not lawyers. But the nature of the claim that you’re making determines how long you have to bring suit.

While it is true that the plaintiffs were inexperienced in legal matters, for which they repeatedly apologized, some of the factual testimony that they gave went to clarifying the “nature of the claim” they were bringing as pro se plaintiffs on their own behalf; and the nature of their claims was “damages” to their property, rather than a permanent “taking” or “expropriation” in the legal sense.

In addition to the testimony of the plaintiffs in open court, additional proof of use of and damage to the plaintiffs’ property lies in the defendant’s own affidavit. More specifically, the affidavit of Terry Cordick, the Associate Director of Public Works, Operations and Management, states: “That Tim Bernard was advised that his driveway would be restored to its existing condition once the Indrainage improvements were made but that LCG could not ‘upgrade’ the Bernard’s driveway.” This is proof that LCG used the plaintiffs’ property to install the drainage next to their property, and that the damage alleged, including any subsequent erosion and diminution of property value due to the construction, is subject to a two-year prescriptive period under La.R.S. 9:5624.

While we are aware that there were complaints and confrontations by both parties in this dispute, and that some angry and unrealistic expectations may have been expressed, the record reveals that the Bernards repeatedly stated the nature of their claims as “damages” to their property rather than a “taking” or a statutory expropriation of their property. “Damage” was the first word in their two-sentence petition, and it reverberated in their claims at the exception hearing — for relief and reparation of the hazardous erosion and sinkhole created by the work of the LCG in the interest of the public.

In Avenal, the court stated that in order for a lawsuit for damages caused by a public works project to fall within the purview of La.R.S. 9:5624, the damage must be incurred for public purposes. “Damage is incurred ‘for public purposes’ when the damaging is ‘intentional or occurs as a necessary consequence of the public undertaking.’ ” Avenal, 886 So.2d at 1108-09 (quoting Estate of Patout v. City of New Iberia, 98-0961, p. 14 (La.7/7/99), 738 So.2d 544, 549). “[E]ven unintentional damage can be inflicted ‘for public purposes’ if it is a ‘necessary consequence’ of the public project.” Id. at 809 (alteration in original).

Lyman v. Town of Sunset, 500 So.2d 390 (La.1987), dealt with a claim for diminution of the value of the plaintiffs property caused by a landfill operated by the defendant. That damage was found to be a necessary consequence of the public purpose, making La.R.S. 9:5624 applicable. Similarly, here, the Bernards assert that the erosion and sink hole caused by LCG’s drainage work, in addition to creating an unsafe condition, has caused their property value to decline.

| ^Accordingly, we find that, for purposes of prescription, the Bernards have stated a claim for damages under La.R.S. 9:5624; hence, their suit against LCG was timely filed within the two-year prescriptive period of that statute.

V.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s judgment granting the defendant’s exception of prescription and remand the matter to the trial court for further proceedings consistent with this opinion. Court costs of $738.22 are assessed against the defendants, Lafayette Consolidated Government, et al.

REVERSED AND REMANDED.

      . "Where a price cannot be agreed upon with the owner, any municipal corporation of Louisiana may expropriate property whenever such a course is determined to be necessary for the public interest by the governing authority of the municipality....” La.R.S. 19:102. "The rights of expropriation granted in R.S. 19:102 shall be exercised in the following manner: (1) A petition shall be filed by the plaintiff [municipal corporation] in the district court of the parish in which the property to be expropriated is situated....” La. R.S. 19:103(A). Procedural requirements are further detailed in La.R.S. 19:103(A)(2) and (3), including the payment of compensation to the owner; and the two-year prescriptive period for an owner’s damages due to the procedural expropriation is addressed in La.R.S. 19:103(B).

      . In their motion for a new trial and appeal, the Bernards cited La.R.S. 19:2, et seq., which provides for procedural expropriation as well, by the state, its political corporations and subdivisions, and certain other corporations and limited liability companies, also with a two-year prescriptive period. However, this set of statutes is similarly inapplicable because there was no procedural expropriation here.

      . Pro se litigants are similarly considered in other jurisdictions; see, e.g., Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987), cert. denied, 485 U.S. 1023, 108 S.Ct. 1579, 99 L.Ed.2d 894 (1988) ("[T]he trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish....’’); Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983) (noting that pro se litigant "should be accorded every consideration that may reasonably be indulged.”) (quoting Heathman v. Hatch, 13 Utah 2d 266, 372 P.2d, 990, 991 (1962)); City of New Haven v. Bonner, 272 Conn. 489, 863 A.2d 680, 685 (2005) (" '[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.’ ”) (quoting Vanguard Engineering, Inc. v. Anderson, 83 Conn.App. 62, 848 A.2d 545, 548 (2004)).