author: ROBERTA. CHAISSON, Judge.

text:
    Donald SCARDINO v. LUBA and Favalora Constructors, Inc.
    No. 11-CA-645.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.

      William Ken Hawkins, Attorney at Law, Ponchatoula, LA, for Plaintiff/Appellee.
    Wade A. Langlois, III, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

12This is an appeal by Favalora Constructors, Inc., an employer, and LUBA, its insurer, from a judgment in this workers’ compensation action awarding benefits, penalties and attorney fees to Donald Scardino, an employee injured in a workplace accident. For the following reasons, we affirm the award of benefits, but vacate the awards for penalties and attorney fees.

Mr. Scardino spent most of the thirty-six years of his working life in the various construction trades. He eventually was employed by Favalora in late 2006, as a construction site superintendent. On May 19, 2008, while moving a portable on-site water meter, he reportedly wrenched something in his back. He reported the injury to his employer that morning and was instructed to seek medical attention. He initially reported for an emergency room examination, and was referred to his treating physicians. It was eventually determined that he has been disabled from working since the time of that incident due to spinal disc injuries, and that he will need surgery if his condition is to improve.

| ¡¡Mr. Scardino sought workers’ compensation benefits from his employer and LUBA. Other than payment for the initial emergency room treatment, his application was denied. After a hearing before a workers’ compensation judge, judgment was entered in his favor. That judgment included the following findings of fact:

From all of the above [evidence] the Court finds that Claimant was a credible witness; that he was involved in an accident at work on May 19, 2008, while in the employ of Favalora Constructors, Inc.; that said accident was witnessed; that Scardino suffered an injury to his lower back as a result of said accident; that his average weekly wage of $1,040.00 would entitle him to the maximum compensation rate as of the date of his injury of $522.00 per week; that he did not make a false statement for the purpose of receiving workers’ compensation benefits; that he is temporarily totally disabled; that he has received no weekly indemnity benefits to date; that of his medical costs to date, only his initial emergency room visit has been paid; that no mileage benefits have been paid; that the Employer/Insurer have failed to reasonably contravene Scardi-no’s workers’ compensation claim, and that penalties and attorney fees would be due under these circumstances.

Based on the above findings, the judge ordered the employer/insurer to pay all weekly indemnity benefits from the time of the accident, as well as all medical bills and related mileage. He imposed penalties of $8,000.00, and awarded attorney fees of $13,000.00. Favalora and LUBA now appeal. Mr. Scardino, for his part, seeks additional awards for attorney fees and costs occasioned by this appeal.

Six of appellants’ seven assignments of error raise issues involving the trial judge’s factual determinations. The standard of appellate review of factual determinations is manifest error. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). In Stobart, the court explained this standard as follows:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” This court has announced a two-part test for the reversal of a factfinder’s determinations:
|41) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Nonetheless, this Court has emphasized that the reviewing court must always keep in mind that if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
This court has recognized that the reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. (Citations omitted)

Thus, in order to reverse the judgment in the present case, we must find that no reasonable factual basis existed for the findings of the trier of fact, and also that based on the record those findings were manifestly erroneous.

The pertinent facts are these. As noted above, Mr. Scardino was hired by Favalora in late 2006, as a site superintendent. He was supervising a crew in the construction of the foundation of a self-storage facility. He testified that a part of | Bhis duties was to open the tool shed in the mornings and get the equipment for the day organized for the crew. On May 19, 2008, he picked up the portable water meter being used on the job to put it on a front-end loader for transportation to the hook up point. As he put it down, he felt something “pop” in his back, accompanied by pain in his lower back radiating down his right leg. There were at least three other workers at the scene when the accident happened. Mr. Scardino phoned his immediate supervisor to tell him of the accident, and he was instructed to seek medical attention.

Later that morning, Mr. Scardino reported to the North Oaks Medical Center in Hammond, Louisiana, a facility near his home. The initial clinical impression was “back strain.” He was discharged with instructions to see his own doctor. Three days later, he saw his family physician, Dr. David Gaudin. This doctor’s initial impression was “lumbosacral radiculitis with chronic pain syndrome.” He suggested that Mr. Scardino see Dr. Fred DeFran-cesch, a pain specialist who had been treating him for several years.

Dr. DeFrancesch testified by way of deposition. He stated that he had first seen Mr. Scardino in January of 2004, for complaints of left lower back pain, and the original diagnosis included lumbar pain, low back pain and sacroiliac joint dysfunction. He treated him conservatively with medication for these conditions through early 2008. He said that Mr. Scardino had intermittent mild pain radiating into the leg, but found “nothing neurologically prominent.” He noted that on a November 27, 2007, visit, Mr. Scardino reported that he had been in an .automobile accident on November 16, 2007, and had some diffuse soreness in his neck and back traveling up and down the spine. However, the doctor found “no red flags for low back pain or back pain,” and diagnosed cervical and lumbar strain. Mr. Scardino was given muscle relaxers for these problems through January of 2008. | ^During the entire period between 2004 and early 2008, the doctor never took him off work for any of the conditions for which he was treating him.

On February 14, 2008, Dr. DeFrancesch ordered an MRI which was conducted by Dr. Lawrence W. Glorioso, III. The injury at issue here occurred on May 19, 2008-, and a second MRI was done by Dr. Glorio-so on June 6, 2008. It was Dr. DeFran-cesch’s opinion that the second MRI showed changes for the worse, especially at the L5-S1 level, that he related to the work injury of May 19, 2008. He further elaborated, that to control Mr. Scardino’s increased pain, he eventually prescribed pain medication at about triple the dosage from the period prior to the injury. He concluded that Mr. Scardino remains disabled and that surgery is recommended for problems at the L4-L5 and L5-S1 levels.

On June 26, 2008, Mr. Scardino was examined by Dr. Bradley Bartholomew, a neurological surgeon, who also testified by way of deposition. This examination was arranged by the law firm representing Mr. Scardino in a suit arising out of the automobile accident of November 16, 2007. This doctor reviewed both of the MRIs and concluded that they were basically the same. He recited that Mr. Scardino told him of the automobile accident, but did not mention the workplace accident of May 19, 2008. He therefore assumed that the problems which were manifested at the L5-S1 level were related to the first accident. When, during the deposition, he was informed of the second accident and of Dr. DeFrancesch’s opinions, he said that he would defer to those opinions because Dr. DeFrancesch was the treating physician before the first MRI and also after the second one. His conclusion as to treatment was that surgery was recommended.

Yet another medical report, prepared by orthopaedic surgeon Dr. David Aiken, Jr., was introduced at the hearing. It was this doctor’s opinion that the second MRI of June 6, 2008, showed no changes from the MRI of February 14, 2008. He also 17mentions the automobile accident twice in the report, but makes no mention of the workplace accident of May 19, 2008. The report does recite that Mr. Scardino mentioned going to the North Oaks emergency room sometime after the automobile accident, and said he had not worked since May 8, 2008, because of low back pain. This doctor’s general findings were that Mr. Scardino suffers from long-standing degenerative disc disease. His final conclusion was that “I do not find any objective evidence that the patient is still suffering any low back problems from the reported motor vehicle accident of November 17 (sic.), 2007.”

Mr. Scardino testified that he had seen Dr. DeFrancesch for several years before either of the accidents at issue here. His general testimony was that he had been treated for upper and middle back pains and muscle spasms over this period. He admitted to some lower back pain, but described it as a “very little bit.” He also testified that whatever lower back pain he might have had prior to the workplace accident, it was minor compared to the pain he felt when he felt the “pop” in his back on the job. There were also seeming contradictions in his deposition and trial testimony, as well as in the alleged representations he had made to the various doctors, as to the injuries he may have suffered in the automobile accident. He testified, for example, that although the reports of Drs. Bartholomew and Aiken addressed injuries from the auto accident, he in fact had not been injured in that accident. In other testimony, he qualified that statement by saying that he had experienced mild pain in his neck and back with headaches, but these symptoms had disappeared within several months.

Appellants also introduced a “post-employment” questionnaire which Mr. Scardi-no filled out on October 29, 2007, shortly after he began working for Favalora. Mr. Scardino testified that he did not recollect the document, but it is evident that he did sign it. On that document, there are check marks indicating that |she did not have the following pertinent conditions: ruptured disc(s), bulging disc(s), leg pain, sore back, back pain and back ache. The records from Dr. DeFranceseh indicate that Mr. Scardino did suffer from many of these symptoms. However, Mr. Scardi-no’s general testimony was that he had never suffered an injury causing these symptoms, had never missed work because of them, and had never made a workers’ compensation claim. When pressed on the point of whether he had had previous injuries, he responded:

No. I haven’t had a previous injury. My injuries are caused from being overworked, if you call it an injury. I call it being wore out.

Appellants urge in two of their assignments of error that because of the various discrepancies in Mr. Scardino’s testimony, it was manifest error for the trial judge to credit any of his testimony and to find that there had actually been a workplace accident. Because of the interrelated factual issues raised in these assignments, we will address them together.

As noted above, the first inquiry is whether the factual findings made by the trier of fact are reasonable on the entire record. Stobart v. State through DOTD, supra. Here, Mr. Scardino showed that he had never been involved in a workplace accident in his entire work life. Although he had missed an occasional hour or two from the job with Favalora, none of these absences were attributable to any workplace injuries. He recounted the circumstances of the May 19, 2008, accident in detail, and it was not contested that he immediately reported it to his employer. His son, who was standing a few feet away when the accident occurred, testified that his father was in obvious pain at the job site. Both Mr. Scardino and his wife testified to his disabling pain subsequent to the injury.

Dr. DeFranceseh testified that he saw Mr. Scardino after the automobile accident of November 16, 2007, and found some minor problems in the cervical |9and lumbar regions which he treated with muscle relaxers through January of 2008. Mr. Scardino lost no work because of this accident. He again saw Mr. Scardino in late May of 2008, and was of the opinion that he had suffered an accident in his lower back which was disabling. He further opined that an MRI done in early June of 2008, showed changes from the MRI taken in February of 2008, and that these changes supported his conclusion that there was a disabling injury between those dates. The doctor also noted that the dosage of medication necessary to control the post-May 19th pain symptoms was three times the dosage prior to that accident.

Dr. Bartholomew, who saw Mr. Scardino only once, originally testified that he saw no difference in the two MRIs. However, he apparently was unaware of the May 19, 2008, incident when he formed this opinion. When informed of that May 19, 2008, accident, as well as Dr. DeFranceseh’s conclusions, he stated that he would defer to Dr. DeFranceseh as the treating physician who had seen Mr. Scardino for the period beginning before the automobile accident and continuing until after the workplace accident.

Dr. Aiken similarly saw Mr. Scardino only once. He indicated in his report that Mr. Scardino suffered from long-standing degenerative disc disease, and saw no difference between the two MRIs. For reasons not clear in the record, Dr. Aiken was operating under the assumption that he was seeing Mr. Scardino in regard to the automobile accident, and concluded that he had not been injured in that accident.

While admittedly Mr. Scardino gave sometimes conflicting testimony about his prior medical condition, as well as injuries suffered in the automobile accident, the trier of fact did not view these inconsistencies as being significant on the question of whether there was in fact a workplace injury on May 19, 2008. While this Court may well have made different factual findings on this point, that is not | mthe standard of review. Stobari v. State through DOTD, supra. Rather, the question is whether the facts found are based on a reasonable evaluation of the testimony and evidence of record, giving deference to the credibility determinations made by the trier of fact. Clearly, the findings that a disabling injury occurred on the job, and that Mr. Scardino is entitled to workers’ compensation benefits were reasonable, and we must therefore uphold those findings.

In two other assignments of error, appellants urge that Mr. Scardino forfeited entitlement to benefits pursuant to La. R.S. 23:1208 and 1208.1, in that he willfully made false statements or representations to obtain benefits, and made false statements on the employer’s medical questionnaire. In Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, the court explained the difference between these two anti-fraud forfeiture statutes. The first, La. R.S. 23:1208, applies to situations where during a pending claim a claimant makes a false statement or misrepresentation for the specific purpose of obtaining benefits, while the second, La. R.S. 23:1208.1, applies when a falsity is made on an employer’s medical questionnaire before the accident or injury. In either case, forfeiture of benefits is a harsh remedy, and these statutes are therefore to be strictly construed. Wise v. J.E. Merit Constructors, Inc., supra; see also Ocon v. Regency Motors of Metairie, LLC, 06-834 (La.App. 5 Cir. 4/11/07), 957 So.2d 816. Because of the differing applications of these two defenses, the employer’s burden of proof also differs. In the La. R.S. 23:1208 context, the employer has the burden of proving 1) a false statement or representation, 2) made willfully, 3) for the purpose of obtaining benefits. Where La. R.S. 23:1208.1 is applicable, the employer must prove that 1) an untruthful statement was made on the medical questionnaire, 2) that the statement prejudiced that employer, and 3) that the [ ii questionnaire was in compliance with the notice requirements of the statute. Ocon v. Regency Motors of Metairie, LLC, supra. When either defense is ruled upon in the workers’ compensation court, the standard of appellate review is that of manifest error. Ocon v. Regency Motors of Metairie, LLC, supra.

As to the La. R.S. 23:1208 issue, the trial judge found as a matter of fact that Mr. Scardino was a credible witness and did not lie or attempt to distort the truth in order to receive benefits. Appellants assert that this was manifest error because of various alleged inconsistencies in his testimony. They particularly point to the confusion in some of the medical testimony concerning injuries in the automobile accident and those in the workplace accident. We note, however, that Dr. De-Francesch, the only physician who treated him before, during, and after the periods of time encompassing both accidents, testified concerning injuries resulting from both. As to the automobile accident, he stated that Mr. Scardino had some temporary soft tissue injuries in his neck and back which resolved within two months with muscle relaxers. He did not find any disability from work because of this accident, and Mr. Scardino continued working. This doctor was equally convinced that there was a subsequent disabling workplace injury.

Dr. Bartholomew saw Mr. Scardino only once on referral from his attorney in the automobile accident case, and apparently assumed that that was the purpose of the visit. When he learned of the workplace accident, he deferred to Dr. DeFrancesch’s opinion. Similarly, Dr. Aiken assumed that he was seeing Mr. Scardino about the automobile accident, and his report makes no mention of the workplace incident. The trial court did not find that the impressions these doctors had of the cause of Mr. Scardino’s low back pains were given by Mr. Scardino for the purpose of obtaining workers’ compensation benefits; therefore, as to these statements, La. R.S. 23:1208 is inapplicable. Because | ^resolution of these inconsistencies turned in great part upon evaluation of the credibility of Mr. Scardino, and because it was reasonable on the entire record to find him credible, we may not set aside those factual determinations as to the occurrence of the workplace accident and resulting disability.

Appellants also urge that Mr. Scar-dino lied on the employer’s medical questionnaire, and thus forfeited benefits as per La. R.S. 28:1208.1. As noted above, to prevail on this defense the employer must prove a false statement, which prejudiced it, and that the form complied with the statutory notice requirements. The notice requirements are not at issue here, and for purposes of this discussion, we assume that certain answers given by Mr. Scardi-no were not accurate. We thus focus on the question of whether the employer was prejudiced by those answers.

Appellants argue that they have been prejudiced by the misleading answers on the questionnaire because it prevents them from being reimbursed by the second injury fund. The purpose of the fund, stated at La. R.S. 23:1371(A)(1) is to “Encourage the employment, re-employment, or retention of employees who have a permanent partial disability [PPD].” In order to recover from the fund, the employer must “knowingly” employ a person with a PPD. La. R.S. 23:1378. In Wise v. J.E. Merit Constructors, Inc., the court explained that:

Reimbursement occurs when the employee has a PPD, when the employer has knowledge of the PPD, and when the PPD merges with a subsequent injury to result in a greater disability. La. R.S. 23:1378(A); La. R.S. 23:1371(A). According to La. R.S. 23:1378(F), the employer has the benefit of the presumption of the existence of a PPD when the condition is [one listed in the statute]. (Supra at 1221).

Here, the pertinent listing from La. R.S. 23:1378(F)(25) is “ruptured or herniated intervertebral disc.” To show prejudice, the employer bears the burden of proving, inter alia, that the PPD merged with the injury to produce a greater disability as required by La. R.S. 23:1378(A). Wise v. J.E. Merit Constructors, Inc., supra. Appellants argue that Mr. Scardino had a ruptured disc and that by denying this condition on the questionnaire, he forfeited his right to benefits. To prevail on this point, appellants bore the burden of proving that there was a pre-existing ruptured disc, and that this ruptured disc merged with the subsequent accident to produce a greater disability.

The evidence relating to a pre-employment ruptured disc is as follows. Dr. De-Francesch testified that when he first saw Mr. Scardino in 2004, Mr. Sardino said that he had been told by his. previous doctor that he had a ruptured disc, but no particular disc was mentioned. Nowhere in Dr. DeFrancesch’s testimony is reference again made to a ruptured disc. Although Drs. Glorioso and Bartholomew mention herniated discs at several levels, Dr. Aiken, whose report was introduced by appellants, found herniations in the cervical and thoracic spine, but not in the lumbar spine. It was Dr. DeFrancesch’s opinion that the problem resulting from the workplace accident of May 19, 2008, was in the lower lumbar region, and not the cervical or thoracic regions where Dr. Aiken had identified the ruptured discs. While there was thus conflicting evidence as to whether Mr. Scardino had a ruptured disc at the level where the accident caused injury, it was reasonable on the entire record to find that his workplace injury did not merge with an existing PPD to produce a greater disability. In this circumstance, appellants did not carry their burden of showing that they would have been entitled to reimbursement from the second injury fund had the questionnaire been properly filled out, and in this circumstance no forfeiture under La. R.S. 23:1208.1 can occur.

The next issue concerns penalties and attorney fees. In Bordelon v. Cox Communications, 05-40 (La.App. 5 Cir. 5/31/05), 905 So.2d 1107, this Court noted that the inquiry as to awards for penalties and attorney fees in the workers’ | l4compensation context is whether the employer reasonably controverted the claim. This is a factual issue to be analyzed under the manifest error standard of review. Redler v. Giorlando’s Restaurant Corp., 07-658 (La.App. 5 Cir. 2/6/08), 979 So.2d 512. In the present case, appellants had evidence indicating that Mr. Scardino had made misrepresentations in the medical questionnaire, had reported at least some back symptoms from the automobile accident to Dr. DeFrancesch, and had potentially led Drs. Bartholomew and Aiken to believe that his symptoms after the workplace accident were related to the automobile accident. There were also reasonable questions raised about whether benefits had been forfeited under the provisions of La. R.S. 23:1208 and 1208.1. Considering all of these factors, it is this Court’s opinion that the imposition of penalties and attorney fees by the workers’ compensation judge was manifestly erroneous. We therefore set aside those awards. In this same regard, because of our disposition of this matter, we decline to award Mr. Scar-dino any attorney fees or costs for this appeal as requested, and instead determine that all parties shall bear their own costs.

The last two issues concern medical expenses. Appellants first argue that it was manifest error to award Mr. Scardino any medical expenses. Because we have affirmed the finding that Mr. Scardino suffered a work-related injury, appellants are liable for medical treatment as provided in the workers’ compensation laws. Appellants next argue that they are unable to determine which medical bills they are responsible for because the trial judge did not define or delineate specifically which bills they must pay. The record as developed in the trial court does not contain sufficient information for this Court to make any such detailed enumeration of which bills must be paid. We therefore remand the matter to the Office of Workers’ Compensation for consideration of this issue.

| ifiFor the foregoing reasons, the judgment awarding workers’ compensation benefits to Donald Scardino is affirmed, the award of penalties and attorney fees against Favalora Constructors, Inc. and LUBA are set aside, and the matter is remanded for further proceedings consistent with this opinion. Additionally, the request for attorney fees for this appeal is denied.

AFFIRMED IN PART, REVERSED IN PART, REMANDED


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    REGIONS BANK v. CABINET WORKS, L.L.C., Chad C. Adams and Christopher Adams.
    No. 11-CA-748.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.

      David M. Cohn, D. Brian Cohn, Bartley P. Bourgeois, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellee, Regions Bank.
    Kenneth C. Fonte, Attorney at Law, Metairie, LA, for Defendant/Appellant, Christopher Adams.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

      .The answer by Chris also included a cross-claim against Chad and a third-party demand against Chad's in-laws, Earl Juneau and Trudy Juneau, but those are not before us on this appeal.

   SUSAN M. CHEHARDY, Judge.

|2This is a suit by a bank on a promissory note, in which the district court granted the bank’s motion for summary judgment, finding that one of the guarantors of the note is liable for the amounts incurred, and granting attorney’s fees in amount of $10,000 to the bank. The defendant appeals and the bank answers the appeal. We affirm.

FACTS

On June 23, 2008, Regions Bank (“Regions”) filed suit for breach of a promissory note against Cabinet Works, L.L.C., as principal, and against Chad C. Adams and Christopher Adams as continuing guarantors. Regions sought to recover $242,810.97 in principal, with interest to June 5, 2008 in the amount of $2,549.40, and interest thereafter at the default rate of 18% per annum until paid, plus late fees in the amount of $194.00, attorney’s fees of 25% of the principal and interest due, and all costs of the proceedings.

The petition alleged that Regions is the holder and payee of a promissory note dated December 1, 2006, made payable to Regions Bank and executed by Cabinet Works, L.L.C., through Chad Adams (“Chad”) and Christopher (“Chris”) Adams as members of the limited liability company. The petition stated that to Insecure payment of the note, Chad and Chris each had executed a commercial guaranty dated December 1, 2006, copies of which were attached to the petition. The petition alleged further that, after giving all credits and rebates according to law, the entire balance on the note, plus interest, attorney’s fees and costs, was due and unpaid. Finally, the petition stated that the payment due on May 1, 2008 was not timely nor fully paid, nor had any subsequent payments been made, so that all sums were due and payable, pursuant to the acceleration clause in the note.

Because this appeal concerns only the claim against Chris, we address his pleadings alone, without regard to filings by the other defendants.

In his answer, Chris acknowledged the genuineness of both the promissory note he signed on behalf of Cabinet Works, L.L.C. and the commercial guaranty signed by him. However, he denied the claims as to the interest rates, the amounts due on the promissory note, and the amount of attorney’s fees sought.

Regions entered a preliminary default against Cabinet Works, which was confirmed on February 17, 2009, with judgment rendered in favor of Regions Bank and against Cabinet Works, L.L.C. for the full amount of the demand. The judgment reserved Regions’ rights against Chad and Chris, and also recognized the commercial guaranty given to secure payment of the amounts.

Regions filed a motion for summary judgment as to its claims against Chris and Chad. The district court granted summary judgment for the full amount of the debt against Chad on May 12, 2009, reserving Regions’ rights against Cabinet | ¿Works and Chris. The judgment also recognized the security agreement and commercial guaranty given to secure the payment of the debt. Neither the default judgment against Cabinet Works, nor the summary judgment against Chad, are before us on this appeal.

With respect to Chris, Regions asserted there were no genuine issues of material fact, because Chris had admitted the genuineness of the documents filed in support of the petition and his signature, and had admitted the existence of the account, although he challenged the attorney’s fee provision of the note as unenforceable on the ground it requires payment of an unreasonable and excessive fee. Regions alleged further that Chris had not raised any affirmative defenses.

Chris filed an exception of res judicata, on the ground that the dispute between Regions Bank and himself had been compromised and settled. He relied on documents filed in support of the exception and in opposition to the motion for summary judgment.

Chris asserted that on December 18, 2008, Regions’ attorney, David Cohn, emailed Chris’s attorney, Kenneth Fonte. In the e-mail message Cohn stated that Regions had agreed to accept $175,000 to release Chris from his guaranty related to the Cabinet Works debt. Cohn advised Fonte to prepare a release document to be signed by the bank and to e-mail it to Cohn for review and comment. Cohn further advised that the payment must be finalized before year-end.

Chris asserted that he obtained a cashier’s check in the amount of $175,000 payable to Regions Bank on December 18, 2008. On December 22, 2008, Regions, through Cohn’s co-counsel Bartley Bourgeois, submitted a release to Chris. On December 28, 2008, Chris and his wife signed the release. On | ¡¿December 24, 2008, Chris notified Regions that the cashier’s check had been obtained, the release signed, and that he was ready to perform. Regions, however, refused to sign the release prepared by its counsel. Instead, Regions announced that it would not release Chris from the continuing guaranty.

Chris argued that the e-mail message prepared, submitted, and electronically signed by David M. Cohn, as counsel for Regions Bank, on December 18, 2008, accepting the settlement offer made by Chris, established a compromise of this litigation between the bank and Chris.

In opposition to the exception of res judicata, Regions asserted that Chris could not plead compromise as a bar to Regions’ claims, because compromise is an affirmative defense that must be specifically pleaded, but Chris’s answer to the petition had contained merely a general denial. Therefore, Regions argued, Chris’s failure to raise the affirmative defense of compromise in his general denial precluded him from raising it in opposition to the motion for summary judgment.

Further, Regions contended, even if he were allowed to raise it, it is unsupportable and cannot be proven, so that it does not create a genuine issue of material fact. Regions asserted that the e-mail correspondence was not binding on it because the messages were signed with initials by the senders, but those were not intended to serve as binding electronic signatures pursuant to the Louisiana Uniform Electronic Transactions Act (La. R.S. 9:2601 et seq.).

In addition, Regions cited the Louisiana Banking Law, La. R.S. 6:1 et seq., as an exception to other general statutory or codal provisions dealing with compromises. Specifically, Regions relied on La. R.S. 6:1122, which states, “A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” Regions argued that the alleged Rcompromise forming the basis of Chris’s exception of res judicata is nothing more than a hodgepodge of selected e-mail correspondence pieced together to assert that the parties entered into a valid settlement agreement. Regions contended that Chris does not meet the requirements of La. R.S. 6:1122 to maintain an action on a compromise.

On January 11, 2010, the district court overruled the exception of res judicata. The court stated,

... [I]t is apparent from the numerous emails introduced into evidence at the hearing that there was not agreement on all language of the settlement, and it is clear that all terms of settlement had not been agreed upon by December 16, 2008. Some issues were still in negotiation. Regions’ Exhibit 1, page 18 is an email dated December 18, 2008 at 4:06 PM from Ken Fonte to Bartley Bourgeois. In it proposed language changes in the settlement was discussed, and Mr. Fonte stated that “it would be a deal breaker if his spouse is not release, [sic]” While this issue was ultimately resolved, other issues raised in subsequent emails were not. Nor were documents finalized by the end of the year, as Cohn had insisted as a condition of acceptance.
A question also exists as to whether the initials on the December 16, 2008 email [Exhibit CA-1] constitute an electronic signature. In light of all emails, it is difficult for the court to conclude that they were affixed with intent to sign a settlement within the meaning of La. R.S. 9:2601 et seq. Regardless, there is no purported signatures by the debtor and creditor.
When taken as a whole, the court cannot conclude that there was a settlement.

Regions’ motion for summary judgment was taken under advisement on July 23, 2010, and the court issued a written judgment on November 9, 2010. The court granted summary judgment in favor of Regions and against Chris, including attorney’s fees in the amount of $10,000. The following written reasons were incorporated in the judgment:

17After considering the law and evidence, hearing argument of counsel, and considering the denial of Christopher Adams[’] exception of res judicata, the court finds that there is no genuine issues of material fact that Christopher Adams is indebted to plaintiff for amounts incurred on the Promissory Note, Limited Liability Company’s Resolution to Borrow/Grant Collateral and the Continuing Guarantees, and the Security Agreement entered into between plaintiff and defendant. Christopher Adams did not contest that the note exists, that he signed it, that it contains continuing guarantee and it is secured. Christopher Adams failed to put forth any specific facts to show that genuine issues of material fact existed or that plaintiff was not entitled to judgment as a matter of law. Further, plaintiffs [sic] request for attorney fees in the amount of Sixty Thousand and 00/100 Dollars ($60,000.00) is not reasonable nor is it supported by any evidence in the record. The court finds that a conservative and appropriate award based on the record would be in the amount of Ten Thousand Dollars and 00/100 ($10,000.00) in attorney fees.

On appeal Chris contends the district court erred in following respects:

(1) By overruling Chris’s exception of res judicata;

(2) By granting summary judgment in favor of the bank; and

(3) By awarding the bank attorney’s fees of $10,000 against Chris, which is higher than the $2,000 awarded against Cabinet Works.

In answer to the appeal, Regions seeks an increase in the attorney’s fees award.

RES JUDICATA

Chris argues the demands against him are barred by res judicata because Regions agreed to compromise the dispute and to release him from liability. He contends the December 16, 2008 e-mail message by David Cohn to Kenneth Fonte, accepting the settlement offer made by Chris, established a compromise of Regions’ claim against him in this litigation. He asserts that Cohn’s initials on the email message constituted an electronic signature that binds Regions, as Cohn’s client.

In addressing this assignment, we must look at the entire sequence of e-mail correspondence between the parties’ counsel, which we set out below. These messages were among the documents submitted in connection with the motion for summary judgment and the exception of prescription. The messages were Re-mail correspondence between Chris’s counsel, Kenneth Fonte, and Regions’ attorneys, David Cohn and Bartley Bourgeois. The messages consisted of the following:

1. E-mail from Fonte to Cohn, December 16, 2008, 2:24 PM:
David: Please update me on status of your client’s consideration of Chris Adams’ $175,000.00 settlement offer. Thanks, Ken
2. E-mail from Cohn to Fonte, December 16, 2008, 4:03 PM:
Ken,
Regions Bank has said they will take the $175,000 to release Chris Adams from his guaranty related to the Cab Works debt only. The documents and payment must be finalized before year end as a condition for accepting the payment. Payment must be made by certified funds payable to Regions Bank. Please go ahead and prepare the release if you want a special release document to be signed by the bank and email it to me for review and comment. Make sure the release document reserves all rights against Chad Adams and any other responsible party. I will have some provisions to include myself that the bank will require. Thanks.
DMC
3. E-mail from Fonte to Cohn, December 18, 2008,1:31 AM:
David: See attached proposed act of compromise, release and discharge. I will deliver my client’s check to your office sometime today (12/18/08). Thanks. Ken Fonte
4. E-mail from Fonte to Cohn, December 18, 2008,1:10 PM:
David: My client said that he does not want any delay associated with check clearing. Therefore, I will deliver a cashier’s check tomorrow to replace his personal check. Please do not negotiate the personal check that I | delivered today. Also, if your client insists that Chris Adams sign an acceptance, then please try to complete your revisions this evening if possible, and email it to me. If you can accommodate me, then I will get Chris Adams to sign the acceptance tonight, and I will deliver it to you with the cashier’s check tomorrow. Thanks. Ken
5. E-mail from Cohn to Fonte, December 18, 2008,1:43 PM:
We will hold it for you to pick up when you bring the other check.
6. Cashier’s check No. 13708196 from Christopher P. Adams to Regions Bank, dated 12-18-2008 and drawn on Whitney National Bank, in the amount of $175,000.00.
7. E-mail from Bourgeois to Fonte, December 18, 2008, 3:01 PM:
Ken:
Attached are our revisions to the settlement agreement which have been reviewed by David. Regions has not had an opportunity to comment on this draft and suggestions may be forthcoming. Please let us know if you have any comments on the attached.
Thanks, Bartley
8. E-mail from Fonte to Bourgeois, December 18, 2008, 4:06 PM:
Bartley: ... I ask you to reconsider certain changes. First, you make use of the phrase “personally only” — while I understand your objective, it would be a deal breaker if his spouse is also not released — they have a community property regime, so to release Chris without releasing Lorri gains them nothing. Also, you make repeated use of the limiting language in the release language “under the Promissory Note” — I wouldn’t have a problem if you added “and the Commercial Guaranty signed by Christopher Adams” to that phrase. Chris’ liability under the Promissory Note is derivative through the Commercial Guaranty. Once again, it is a deal killer if the commercial guaranty for that note is also not clearly and unequivocally released, discharged, terminated, extinguished — Chris would be paying for nothing. Additionally, I don’t understand why Regions should expect a universal release from Chris, while it is pushing so hard (for reasons I understand and support) to limit the release given to him to the Promissory note and 24th JDC suit. It seems to me that any release by Chris should have the same limiting language that the bank expects tolmgrant him — to this deal only. While I need to review the document revisions in more detail, I offer the general comment that the remainder of the changes appear okay. Please review my comments, and try to make some adjustments to address my concerns, and send back to me — today if at all possible. It would be appreciated if we can conclude this matter tomorrow. Thanks. Ken
9. E-mail from Fonte to Bourgeois, December 18, 2008, 4:27 PM:
Bartley: In Paragraph 8, you use the phrase “as well as any other responsible party”, which if left unlimited would arguably include Chris and Lorri Adams. I request that you add to that phrase “except Christopher P. Adams and Lorri Adams”, then it[’]s okay. Ken
10. E-mail from Bourgeois to Fonte, December 19, 2008,10:31 AM:
Ken:
I have reviewed your comments. Please add Lorri to the document for release of any liability she may have through their community and add a place for her to sign with Chris (as well as an appearance clause for her).
The purpose of the limitation of the commercial guaranty release is in the instance the guaranty is used in connection with another loan. The guaranty will not be released for any loan other than the one associated with the promissory note described in the agreement. The language in the release as written extinguishes the promissory note and guaranty insofar as Chris (and Lorri for that matter) is concerned but will maintain the guaranty as it would apply to any other loans, notes, etc. I believe this to be language necessary to protect Regions from releasing a guaranty in its entirety that may be effective on other loans (if they exist which I do not know).
The release language to Regions is standard language for every Regions release or forbearance. We do not believe it to be onerous in nature, but will forward any changes you suggest to Regions.
If you wish to add Chris and Lorri to paragraph 8 as exceptions to the phrase “any other responsible party,” please do so as it is not meant to include them again as a responsible party as evidenced by the language/sections in the agreement whereby that liability is released.
Once you make the changes, I will review and forward to the client for same.
Thanks, Bartley
11.E-mail from Fonte to Cohn and Bourgeois, December 22, 2008, 10:13 AM:
InDavid and Bartley: See attached proposed comp/rel/disch which addresses the concerns expressed by your proposed revisions, and my comments with respect thereto. Hopefully, we can put this to bed asap. Let me know. Once you confirm by email that your client is willing to sign the attached document, I will have my clients sign it, and deliver the signed document together with the cashier’s check to you[r] office. Thanks. Ken
12. E-mail from Bourgeois to Fonte, December 22, 2008, 4:13 PM, with attached draft of “Compromise, Release, and Discharge” between Regions Bank and Christopher P. Adams and Lorri P. Adams.
13. E-mail from Fonte to Bourgeois and Cohn, December 22, 2008, 5:14 PM:
Bartley and David: Attached is the last version you sent to me slightly reformatted so that the signature lines would fall in an appropriate place on the last page. I did not make any changes to the text you submitted. Unless I hear to the contrary, I assume this version is acceptable, and I will have my clients sign it. Chris Adams will be available to deliver the signed document and the cashier’s check as soon as I receive work of your client’s final approval. Ken
14. “Compromise, Release and Discharge” signed by Christopher P. Adams and Lorri P. Adams, dated December 23, 2008, notarized by Kenneth C. Fonte, Notary Public, and signed by two witnesses.
15. E-mail from Fonte to Bourgeois and Cohn, December 24, 2008, 12:41 PM:
Bartley and David: The commercial guaranty attached to Regions’ petition has absolutely nothing to do with the Lakeview loan. I reviewed the document and it clearly and unequivocally identifies the borrower as Cabinet Works. The borrower on the Lake-view loan is Chad Adams. Cabinet Works has absolutely nothing to do with the Lakeview loan. I predict that if you contact Regions’ attorney handling the Lakeview loan ..., then a separate guaranty will probably surface. On the other hand, if your client is relying on the commercial guaranty attached to your petition as the basis for my client’s liability on the Lake-view loan, then my client has no liability on the Lakeview loan. If that is the case, then Regions ought to be appreciative of my clients’ warranties and representations concerning the Lakeview loan. Chris Adams does not have any documents | ^concerning the Lakeview loan, and Regions wouldn’t provide him with any documents when he requested them. My clients expect a termination of the commercial guaranty attached to your petition for their money. That document is a “continuing” guaranty, which means that Regions could advance lend fresh money to Cabinet Works and my client would be on the hook — my client is not going to allow a possibility, no matter how small the risk, of such an event happening. Let me know if Regions Bank wants the deal. As I told you, Friday December 26 is my last work day in Louisiana for the year. I am traveling to Texas on December 29, and I have a brief due ... on December 30.... I would like to hear good news from you; however, it is starting to appear that Regions is looking for a reason to kill it. I hope that I am wrong. Have a good Christmas. Ken
16.E-mail from Fonte to Bourgeois, December 24, 2008,1:15 PM:
Bartley & David: Chris Adams told me that he was a co-signer on Lake-view. He is not trying to run from that debt. He acknowledged it and excluded it from the settlement. My client is being forthright and forthcoming about the Lakeview loan, but he is not going to sign a document that links the unrelated commercial guaranty on the Cabinet Works debt to the Lakeview loan — because they are not related. My clients have signed the final draft version of the compromise, and have á cashier’s check for $175,000.00 READY TO PERFORM. Ken
17. E-mail from Bourgeois to Fonte, December 24, 2008,1:37 PM:
Ken:
I have spoken to Regions. They will not release the continuing guaranty of Chris as requested. They are only released the note and the debt associated therewith. Regions will not risk releasing any other debts that may be connected with the guaranty. I will be out of the office but will be available by email if you have any questions.
Merry Christmas,
Bartley
18. E-mail from Fonte to Bourgeois, December 26, 2008, 9:03 AM:
Bartley: How does the bank propose to protect my clients from the bank making future loans to Cabinet Works at the request of CHAD Adams based on my clients’ guaranty as part of some workout to benefit both the bank and Chad Adams? The problem with the | ^“CONTINUING” guaranty is not the Lakeview loan — it is the FUTURE!!! Is anyone at the bank reading its own documents? The termination provision of the guaranty (see: “Cancellation”) EXPRESSLY PRESERVES ALL EXISTING DEBT AGAINST THE EFFECT OF THE CANCELLATION!!! What more does the bank need? Does it make them more comfortable to put that already existing language in the text of the settlement? If so, then I have no problem adding the following (taken from the continuing guaranty): Termination of the commercial guaranty “shall affect only, and shall be expressly limited to,” Christopher Adams’ and Lorri Adams’ “continuing obligations and liability to guarantee” Cabinet Works, L.L.C.’s “indebtedness incurred, originated and/or extended (without prior commitment [sic]) after the date” of this act of compromise, release and discharge, with guarantor “remaining fully liable under the commercial guaranty for any and all of of [sic] Borrower’s indebtedness” (except for the compromised, release [sic] and discharged loan loan [sic] described by the petition and exhibits in the action pending before the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, Division “J”, No. 662-409, entitled “Regions Bank v. Cabinet Works, L.L.C., Chad C. Adams, and Christopher Adams”) “incurred, originated, extended or committed, to prior to the date of this act of compromise, release, and discharge.”
The foregoing language was lifted DIRECTLY out of the termination limitation language of commercial guaranty modified only to refer directly to my clients, the act of compromise and the released debt.
I find it hard to believe that your client would have a problem using its own contract language to solve this issue. Please give it a try. By the way, please do not take any of my criticism of your client’s response personally. I have not forgotten that you blessed (without having the authority to commit to) the final draft version that my clients have already signed.
As I previously explained to you, today is my last business day of the year with respect to availability to deal with this matter. Ken
19. E-mail from Fonte to Bourgeois, December 26, 2008,1:46 PM:
Bartley: See paragraph 7 of the attached revised final draft which incorporates the change mentioned in my earlier email of today. If you can get approval of this document, then we can proceed. I am going to have my chent’s [sic] execute it before I leave for Texas, so if Regions signs then the deal will be done. Let me know asap. Ken
[ ⅛20. E-mail from Fonte to Bourgeois, December 31, 2008, 9:55 AM:
Bartley: ... Any word from your client about the revision that I sent to you at the end of last week? Ken
21. E-mail from Bourgeois to Fonte, December 31, 2008,10:00 AM:
Ken,
I sent the doc to Regions for review and have not heard from her yet. She was out Monday and Tuesday like you but I believe was to be back today. I will try to reach her and let you know.
Bartley
22. E-mail from Fonte to Bourgeois, January 5, 2009, 1:23 PM:
Bartley: Status? Ken
23. E-mail from Bourgeois to Fonte, January 7, 2009, 8:48 AM:
Ken:
Regions is declining the settlement offer as the parties have been unable to get a release worked out that is agreeable to both parties. They will proceed accordingly against all named defendants.
Thanks, Bartley
24. E-mail from Bourgeois to Fonte, January 12, 2009,11:01 AM:
Ken:
We have spoken to Regions who has advised that they will settle this matter for payment in full from your client to release/dismiss him from the lawsuit. They wish to move forward with the lawsuit filed and do not want to settle for less at this time.
I will return your clients’ personal check previously sent to this office.
Thanks, Bartley
25.E-mail from Fonte to Bourgeois, January 12, 2009,1:25 PM:
Bartley: It is my client’s position that the matter has been compromised for the sum of $175,000.00. My client will request that the court enforce the settlement agreement. Ken

11fiTo be a valid compromise a contract must satisfy the requirements of the law relating to compromise. “A compromise shall be made in writing or recited in open court....” La. C.C. art. 3072. “A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” La. C.C. art. 3076.

Louisiana law recognizes electronic communications and electronic signatures, through the Louisiana Uniform Electronic Transactions Act, La. R.S. 9:2601 et seq. “A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.” La. R.S. 9:2607(A). “A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.” La. R.S. 9:2607(B). If a law requires a record to be in writing, or if the law requires a signature, an electronic record or an electronic signature satisfies the law. La. R.S. 9:2607(C)-(D). “ ‘Electronic signature’ means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” La. R.S. 9:2602.

E-mail can fulfill the requirement of La. C.C. art. 3072 as a writing. To constitute an electronic signature, however, the “electronic sound, symbol, or process ... associated with a record” must be executed or adopted by a person with the intent to sign the record. La. R.S. 9:2602. There must be a showing that the signer intended to do a legally significant act.

Here, the initials or other name indications on the messages here do not establish that Cohn and Bourgeois intended those to be electronic signatures for purposes of the Louisiana Uniform Electronic Transactions Act.

| lf,Despite the fact that Chris signed the draft agreement provided by counsel for Regions and obtained a certified check for the amount of $175,000 on the same day, it is clear from the verbiage in the e-mail messages that both Regions’ counsel and Chris’s counsel contemplated further discussion and negotiation regarding terms of the release agreement.

Further, “evidence of ‘settlement’ consisting only of correspondence between attorneys is not sufficient to bind the parties.” Lizama v. Williams, 99-1040, p. 5 (La.App. 5 Cir. 3/22/00), 759 So.2d 865, 868.

It is of no moment that a party’s attorney finds a negotiated settlement satisfactory; a settlement must be in writing. Nor is the requirement of a writing to effect a compromise satisfied by the signature of a party’s attorney alone (unless such authorization is express under LSA-C.C. art. 2997). The general authority granted to an attorney in an attorney/client contract of employment to settle the client’s case constitutes only authority to negotiate a settlement. [Footnotes omitted.]

Sims v. USAgencies Cas. Ins. Co., 2010-1120, p. 8 (La.App. 1 Cir. 12/22/10), 68 So.3d 570, 575, writ denied, 2011-1927 (La.11/14/11), 75 So.3d 943, citing Bennett v. Great Atlantic & Pacific Tea Company, 95-0410 at p. 4, 665 So.2d at 86, and Lizama v. Williams, 99-1040, p. 5 (La.App. 5 Cir. 3/22/00), 759 So.2d 865, 868.

Considering the messages between the parties, we find no error in the trial court’s determination that the parties did not agree on all language of the settlement and that all terms of the settlement had not been agreed upon and some issues were still in negotiation. Although some issues raised were resolved, others were not. The documents were not finalized by the end of the year as required in the December 16, 2008 message from Cohn to Fonte.

Further, as pointed out by the trial court, there is no showing that any initials or other “signature” on the messages from Cohn and Bourgeois were affixed with 117intent to sign a settlement as required by La. R.S. 9:2602. Finally, there was never a document that was signed by both the debtor and the creditor, as required by La. R.S. 6:1122.

Accordingly, the trial court did not err in overruling the exception of res judicata.

SUMMARY JUDGMENT

Chris asserts Regions was not entitled to summary judgment because the relief sought is barred by res judicata, the con-clusory affidavit of a bank officer was insufficient to carry the burden of proof, the promissory note was extinguished by a judgment against Cabinet Works, the bank acted with bad faith by obtaining a judgment that confirmed a continuing guarantee without giving Chris notice and an opportunity to be heard, and the bank failed to comply with the district court’s rules in its memorandum.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact, and summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”
On a motion for summary judgment, the burden of proof is on the movant. If, however, the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his eviden-tiary | isburden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment.
Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the movant-appellant is entitled to judgment as a matter of law. [Citations omitted.]

Power Marketing Direct, Inc. v. Chris Foster, 2005-2023, pp. 8-9 (La.9/6/06), 938 So.2d 662, 668-69.

Whether the Relief Sought Is Barred by Res Judicata

In our discussion above, we uphold the trial court’s ruling denying the exception of res judicata. Hence, res judicata is no defense to the motion for summary judgment in this case.

Whether the Bank Officer’s Affidavit Was Insufficient and Whether the Bank’s Failure To Comply With the District Court’s Rules in Its Memorandum Precluded Summary Judgment

The first direct defense Chris raised to the motion for summary judgment is that the affidavit provided by Regions was insufficient. The document, titled “Affidavit of Correctness” was made by Debbie Ren-froe. It stated that Renfroe is “a duly authorized representative of Regions Bank, judgment creditor in the above captioned matter, and is duly qualified and authorized to make this affidavit.” It continues as follows:

That she has under her care, custody and control, the account file of Cabinet Works, L.L.C., Chad Adams and Christopher Adams, and that she has reviewed the entire account file of REGIONS BANK and all records of plaintiff regarding the account of defendants. She therefore makes this affidavit based on facts of her own personal knowledge, and that the records of plaintiff reflects [sic] that the defendants have an outstanding balance on their account in the sum of TWO HUNDREDJjgFORTY TWO THOUSAND EIGHT HUNDRED TEN AND 97/100 ($242,810.97) DOLLARS, plus interest to June 5, 2008 in the amount of TWO THOUSAND FIVE HUNDRED FORTY NINE AND 40/100 ($2,549.40) DOLLARS, plus interest after June 5, 2008 at the default rate of eighteen (18%) percent of the principal and interest due and owing, and for all costs of these proceedings. That all proper credits and rebates have been applied and that the allegations contained in the petition of plaintiff are true and correct to the best of her knowledge and belief.

Chris contends Regions was not entitled to judgment as a matter of law.

In opposition to the motion for summary judgment, Chris filed an affidavit by his attorney, Kenneth Fonte, in which Fonte related the various events on which Chris relied as the basis for his assertion that Regions had compromised its claim and that res judicata should apply. Although the Fonte affidavit set out the e-mail communications between the parties in detail, it did not offer information to rebut the statements made in Renfroe’s affidavit.

In his memorandum opposing the motion for summary judgment, Chris asserted that Regions’ memorandum submitted in support of its motion for summary judgment violated La. Dist. Ct. R. 9.10(1), in that it fails to include a list of the legal elements necessary for the mover to be entitled to judgment, as required by La. Dist. Ct. R. 9.10(l)(a). Chris contended the Renfroe affidavit is deficient because it speaks of the balance due on an “account” without any mention whatsoever of a continuing guaranty or promissory note. In contrast, the petition alleges a cause of action against Chris based on a continuing guaranty securing a promissory note — not an action on an “account.”

Chris asserted that the legal elements for recovering on an open account are distinct from those applicable to enforcing a continuing guaranty that secures a promissory note.

12nChris pointed out, further, that Regions’ memorandum failed to include a list of material facts that the mover contends are not genuinely disputed, as required by La. Dist. Ct. R. 9.10(b)(2), and that Regions’ memorandum failed to associate each “not genuinely disputed fact” claimed with a specific reference to the document proving it, together with a designation of the pertinent part of the containing proof, as required by La. Dist. Ct. R. 9.10(l)(c).

Chris stated those omissions unjustly impaired his ability to comply with La. Dist. Ct. R. 9.10(2)(a) in preparing his opposition to the motion. Chris argued he should not be required to guess which material facts Regions claims are “not genuinely disputed.” Further, he stated his answer to the petition, about which Regions stated he admitted “to the existence of the amount due,” in fact expressly denied Regions’ claimed “amount due.” He asserted that is a disputed fact that Regions ignores.

Chris also asserted that summary judgment should have been denied because the promissory note was extinguished by the judgment against Cabinet Works, L.L.C., pursuant to La. R.S. 13:4231(1). Hence, he contended, the guaranty he signed was extinguished as a matter of law.

Ultimate facts and conclusions of law contained in supporting affidavits cannot be considered on a motion for summary judgment. Jones v. Gray Ins. Co., 07-650, p. 7 (La.App. 5 Cir. 2/6/08), 980 So.2d 1, 4; ACMG of Louisiana, Inc. v. Jones, 35,102, p. 5 (La.App. 2 Cir. 9/26/01), 796 So.2d 704, 707, writ denied, 01-2869 (La.1/11/02), 807 So.2d 240.

|j>TA trial court has discretion to dispense with the strict application of local rules when unnecessary to the resolution of a dispute. Hunt Petroleum Corp. v. Texaco, Inc., 2004-0729, p. 3 (La.App. 4 Cir. 12/1/04), 891 So.2d 36, 38. Where documents submitted in support of a motion for summary judgment are sufficient, the court is warranted in waiving the requirement for a statement of uncontested facts. Hibernia Nat. Bank v. Rivera, 07-962, p. 7 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 538. Where the mover’s memorandum lists the essential legal elements necessary for the mover to be entitled to judgment, including a list of material facts which the mover contends are not genuinely disputed as well as the documentation that supports the facts it contends are undisputed, the requirements of Rule 9.10(b)(2) are satisfied. Id., 07-962 at 6, 996 So.2d at 538.

Here, Regions asserted in the memorandum in support of the motion for summary judgment,

The plaintiff, Regions Bank, (hereafter, “Regions”), instituted suit in this matter by filing a Suit on a Lost Note with Commercial Guaranty. The defendant, CHRISTOPHER ADAMS, in proper person, answered the petition with a general denial, admits to the genuineness of the documents and his signature, admits to the existence of the account, and states that the attorney fee provision of the note is unenforceable; because it requires the payment of an unreasonable and excessive fee....
... [A] nonmoving party who opposes motion for summary judgment [is required] to submit evidence of specific facts establishing genuine issue of material fact. [Citation omitted.] Christopher Adams has submitted no such evidence nor made any allegations to raise any genuine issue of material fact and/or knowledges [sic].
... Christopher Adams has not raised any affirmative defenses....
In this matter, Christopher Adams admits the genuineness of the Promissory Note, Resolution and his signature on the same, the Continuing Guarantee [sic] and his signature thereon, as well as the Security [ ¡^Agreement and admits the existence of the amount due but states that the attorney fee provision of the note is unenforceable ... because it requires the payment of an unreasonable and excessive fee....
There being no contested genuine issue [of] material fact[,] Christopher Adams admitting to the genuineness of the Promissory note, Resolution and his signature on same, the Continuing Guarantee [sic] and his signature thereon, as well as the Security Agreement, and admitting to the existence of the account, ... the Court should render summary judgment in favor of Plaintiff....

Considering the documents filed in support of the motion, which include copies of the promissory note and the continuing guaranty, we find the statements in the memorandum and the content of the documents themselves sufficiently prove the claim made by Regions. Hence, these issues were not grounds to deny summary judgment.

Whether the promissory note was extinguished by the judgment against Cabinet Works

There is no merit to this assignment because, first, the judgment against Cabinet Works specifically reserved Regions’ rights against Chris. Further, the promissory note and the continuing guaranty each contain language preserving rights against the signers of those documents regardless of actions involving other signatories. The Promissory Note states, in pertinent part:

WAIVERS. ... Borrower and each guarantor further severally agree that discharge or release of any party who is or may be liable to Lender for the indebtedness represented hereby ... shall not have the effect of releasing any other party or parties, who shall remain liable to Lender_ Any partial exercise of any rights and/or remedies granted to Lender shall furthermore not be construed as a waiver of any other rights and remedies; it being Borrower’s intent and agreement that Lender’s rights and remedies shall be cumulative in nature....

Similarly, the Commercial Guaranty provides:

1 ^GUARANTOR’S WAIVERS. Guarantor hereby waives:
(F) Any “one action” or “anti-deficiency” law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender’s commencement or completion of any foreclosure action, or any action in lieu of foreclosure.
(G) Any election of remedies by Lender that may destroy or impair Guarantor’s subrogation rights or Guarantor’s right to proceed for reimbursement against Borrower or any other guarantor, surety or endorser of Borrower’s indebtedness, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging Borrower’s indebtedness.
Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor’s full knowledge of its significance and consequences, and that, under the circumstances, such waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law.

The Commercial Guaranty provides further:

NO IMPAIRMENT OF GUARANTOR’S OBLIGATIONS. No course of dealing between Lender and Borrower (or any other guarantor, surety or endorser of Borrower’s Indebtedness), nor any failure or delay on the part of Lender to exercise any of Lender’s rights and remedies under this Guaranty or any other agreement or agreements by and between Lender and Borrower (or any other guarantor, surety or endorser), shall have the effect of impairing or releasing Guarantor’s obligations and liabilities to Lender, or of waiving any of Lender’s rights and remedies under this Guaranty or otherwise. Any partial exercise of rights and remedies granted to Lender shall furthermore not constitute a waiver of any of Lender’s other rights and remedies; it being Guarantor’s intent and agreement that Lender’s rights and remedies shall be cumulative in nature. Guarantor further agrees that, should Borrower default under any of Borrower’s indebtedness, any waiver or forbearance on the part of Lender to pursue Lender’s available rights and remedies shall be binding upon Lender only to the extent that Lender specifically agrees to such waiver or forbearance |⅞4⅛ writing. A waiver or forbearance on the part of Lender as to one event of default shall not constitute a waiver or forbearance as to any other default.

Thus, under the language of the Continuing Guaranty, the judgment against Cabinet Works did not release Chris from his obligations to Regions.

Whether the bank acted with bad faith by obtaining a judgment that confirmed a continuing guarantee without giving Chris notice and ah opportunity to be heard

We do not address this issue, because it is a collateral attack on the judgment and is improperly raised in the proceeding on the judgment before us.

“A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it.” Corcoran v. Gauthier, 97-0516 (La.App. 4 Cir. 1/7/98), 705 So.2d 1233, 1236, writ denied, 98-0342 (La.3/27/98), 716 So.2d 888.

A final judgment obtained by fraud or ill practices may be annulled. LSA-C.C.P. art. 2004. Such a judgment is not an absolute nullity. To annul a judgment obtained by fraud or ill practices a direct action, i.e., a new and separate proceeding, must be brought for that purpose in the court which rendered the judgment. Such a nullity may not be asserted collaterally. Filing a petition of nullity of judgment in existing proceedings, including the proceedings in which the judgment complained of was rendered is not a direct action. It is a collateral attack. (Citations omitted.)

Succession of Schulz, 622 So.2d 693, 695 (La.App. 4 Cir.1993), writ denied, 631 So.2d 1161 (La.1994).

ATTORNEY’S FEES

Chris’s final assignment is that the trial court erred by awarding the bank attorney’s fees of $10,000 against Chris, which is higher than the $2,000 awarded against Cabinet Works. At the same time, Regions’ answer to the appeal seeks an ^increase in the attorney’s fees award to 25% of the principal and interest awarded by the trial court.

The note states, “If Lender refers this Note to an attorney for collection, or files suit against Borrower to collect this Note, ... Borrower agrees to pay Lender’s reasonable attorneys’ fees in an amount not exceeding 25.000% of the principal balance due on the loan.”

The key here is the phrase “reasonable attorney’s fees.” The trial court made a determination of reasonableness by reviewing the record and assessing the amount of work involved. Regions pursued this lawsuit against three defendants and obtained separate judgments against each. Each was bound under the Promissory Note and/or a Continuing Guaranty to pay attorney’s fees in the event that Regions was required to litigate to recover on the debt. Regions is entitled to recover attorney’s fees from each defendant. We find no abuse of discretion in the amount awarded.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against Christopher Adams.

AFFIRMED

      . Regions asserted the promissory note was in the original sum of $250,000.00, and recited that the principal was due in full on December 1, 2007, with regular monthly payments to be made of all accrued unpaid interest due as of each payment date, beginning on January 1, 2007, with all subsequent interest payments due on the same day of each month after that until the note was paid in full.

      . There is a discrepancy between the amount of principal set out in Paragraph 1 of the petition ($242,810.97) and the amount of principal stated in both Paragraph 9 and the Prayer of the petition ($251,619.32). We find no explanation of the discrepancy. The higher figure may be an error, because the eventual judgments against Cabinet Works and Chad Adams both stated the principal amount as $242,810.97. Another discrepancy is that the petition is titled "Suit on Lost Note with Commercial Guaranty,” but the petition recites, "The original note is attached hereto and made a part hereof as Exhibit ‘A’."

      . The full amount in the judgment against Cabinet Works is $242,810.07, plus interest to June 5, 2008 in the amount of $2,549.40, interest after June 5, 2008 at the default rate of 18% per annum until paid, plus late fees of $194, plus attorney’s fees of $2,000, and all costs.

      . Like the judgment against Cabinet Works, the judgment against Chad was in the amount of $242,810.07, plus interest to June 5, 2008 in the amount of $2,549.40, interest after June 5, 2008 at the default rate of 18% per annum until paid, plus late fees of $194, and all costs. Against Chad, however, the court awarded attorney’s fees to Regions of 25% of the principal and interest due and owing.

      . "If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered in an electronic record capable of retention by the recipient at the time of receipt.” La. R.S. 9:2608(A)(1).

      . La. Dist. Ct. R. 9.9 requires that a party who files a motion shall furnish a supporting memorandum that cites both the relevant facts and applicable law. La. Dist. Ct. R. 9.10(b)(2)-(3) require that a memorandum in support of a motion for summary judgment shall contain a "list of the material facts that the mover contends are not genuinely disputed,” and a "reference to the document proving each such fact, with the pertinent part containing proof of the fact designated.”


author: MARC E. JOHNSON, Judge.

text:
    JEFFERSON FEDERATION OF TEACHERS, Ethel M. Austin, Shelia M. Baskin and Barbara Crosby Harney v. JEFFERSON PARISH SCHOOL BOARD.
    No. 11-CA-836.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.
    Larry Samuel, Attorney at Law, New Orleans, LA, Louis L. Robein, Attorney at Law, Metairie, LA, for Plaintiffs/Appellants.
    Michael G. Fanning, Attorney at Law, Gretna, LA, for DefendantyAppellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 yThis matter arises from the denial of a petition for preliminary and permanent injunction concerning the imposition of a one-day unpaid furlough in favor of Defendant/Appellee, Jefferson Parish School Board (“the Board”), and against Plaintiffs/Appellants, Jefferson Federation of Teachers, Ethel M. Austin, Shelia M. Bas-kin and Barbara Crosby Harney, from the 24th Judicial District Court, Division “J”. For the following reasons, we reverse the trial court’s ruling and grant the preliminary and permanent injunctions.

FACTS AND PROCEDURAL HISTORY

On June 7, 2011, the Board passed a motion which imposed a one-day unpaid furlough for the 2011-2012 school year on all non-instructional personnel, Appellants, due to budgetary considerations. The motion eliminated one work day for Appellants and reduced their pay by that day’s salary. On June 13, 2011, | ^Appellants filed a petition for preliminary injunction against the Board to prohibit it from imposing the one-day furlough.

The matter was heard before the trial court on June 30, 2011. Appellants and the Board stipulated that the hearing would serve as a hearing on both the preliminary injunction and the permanent injunction. The parties also stipulated that the furlough would result in a reduction in non-instructional employees’ salaries as compared to the previous school year. Ruling from the bench, the trial court denied the preliminary and permanent injunctions. The trial court found that LSA-R.S. 17:422.6 was not ambiguous and did not prohibit the Board from implementing a decrease in pay prior to the academic year, and the clauses in paragraph A of the statute were to be read separately. No written reasons for judgment were issued. Appellants filed a motion for devolutive appeal on July 7, 2011.

The sole issue raised by Appellants before this Court is whether the Board should be enjoined from reducing the annual salary of non-instructional school employees for the 2011-2012 school year below the amount of the annual salary paid to those employees during the 2010-2011 school year because it violates LSA-R.S. 17:422.6.

Parties may agree to consolidate the trial on the merits of a permanent injunction with the judgment issuing a preliminary injunction. Mary Moe, L.L.C. v. Louisiana Board of Ethics, 03-2220 (La.4/14/04); 875 So.2d 22, 29. A permanent injunction, after the parties agree to a consolidation of the trial on the merits and the rule of the preliminary injunction, is not subject to a manifest error standard of review; it is subject to de novo review. Id. As such, we will conduct a de novo review of the issue before us.

| .Appellants argue that under the rules of statutory construction, the Board’s decision to reduce the annual salary of school employees below the amount of annual salary paid during the previous school year violates LSA-R.S. 17:422.6. Appellants assert that the first paragraph of the statute mandates that school boards avoid two separate types of conduct: 1) reducing salaries below the amount paid the previous school year, and 2) reducing salaries during an academic year.

In opposition, the Board asserts that the true interpretation of the statute provides that the rate of pay, e.g., the amount of hourly wage or annual salary, an employee receives from one year to the next cannot be reduced. The Board argues that only the annual income is affected by the one-day furlough. Therefore, since the employees are being paid the same rate of hourly wage and annual salary, the Board avers the statute has not been violated. The Board further avers that the legislature meant to prevent the revision of the rate of pay rather than the amount of pay; otherwise, the second clause of the statute would be superfluous. We disagree with the Board’s interpretation of the statute.

According to LSA-C.C. art. 2, legislation is a solemn expression of legislative will. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Durio v. Horace Mann Ins. Co., 11-84 (La.10/25/11); 74 So.3d 1159, citing Sultana Corp. v. Jewelers Mutual Ins. Co., 03-360 (La.12/3/03); 860 So.2d 1112. The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter, and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. Id. The statute must, therefore, be applied and [ ^interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature had in enacting it. Id.

LSA-R.S. 17:422.6 provides,

A.Notwithstanding any other provisions of law to the contrary, the amount of the hourly wage or annual salary paid to any school employee shall not be reduced for any school year below the amount paid to the school employee in hourly wage or annual salary during the previous school year, nor shall the amount of the hourly wage or annual salary paid to any school employee be reduced at any time during an academic year.
B. For purposes of this Section, the term “school employee” shall mean, without limitation, a teacher aide, paraprofessional, school bus driver, food service worker, clerical, custodial, and maintenance personnel, and any other employee of a city or parish school board, of a state school for the deaf, blind, spastic, or cerebral palsied, or of State School District No. 1 who is not required to hold a teacher’s certifícate as a condition of employment.
C. The provisions of this Section shall not apply to the reduction of any local salary funded, in whole or in part, from a revenue source requiring voter approval when such voter approval has not been obtained or when the reduction is necessary as a result of a decrease in revenues received from the production of or exploration for minerals, including severance taxes, royalty payments, bonus payments, or rentals.
D. Nothing in this Section shall be construed to prevent local school boards from reducing personnel or staff as may be necessary.

[Emphasis added].

From our interpretation, we find the statute is clear and unambiguous. The Board is prohibited from reducing a school employee’s hourly wage or annual salary to amount less than the amount paid during the previous school year; specifically, a reduction cannot be imposed during the academic year. However, a reduction can be imposed if it is within the confínes of paragraph C and is imposed prior to the commencement of the academic year.

In this matter, the Board is attempting to impose a one-day furlough that reduces Appellants’ annual salary to an amount that is less than the amount paid to | fithese employees during the 2010-2011 school year, without having the requisite provisions of paragraph C of the statute. No matter which terminology is used, annual income or annual salary, the non-instructional school employees will not be allowed by the Board to earn the amount paid during the previous school year with a one-day furlough in place. While we acknowledge the Board’s attempt to find a suitable compromise between the employees’ interests and the monetary shortfall it has in the budget, we conclude that the imposition of a one-day furlough on non-instructional school employees is not allowed pursuant to LSA-R.S. 17:422.6.

For the foregoing reasons, we reverse the trial court’s denial of the preliminary and permanent injunctions and grant the preliminary and permanent injunctions sought by Jefferson Federation of Teachers, Ethel M. Austin, Shelia M. Baskin and Barbara Crosby Harney. It is hereby ordered, decreed and adjudged that the Jefferson Parish School Board is enjoined, restrained, and prohibited from imposing a one-day unpaid furlough on the non-instructional school employees for the 2011-2012 school year. The Jefferson Parish School Board is assessed the costs of this appeal.

REVERSED; JUDGMENT RENDERED