author: CARTER, C.J.

text:
    COMPENSATION SPECIALTIES, L.L.C. v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY.
    No. 2008 CW 1549R.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Ronald S. Haley, Jr., Jonathan Holloway, Sr., Baton Rouge, La., for Plaintiff/Respondent, Compensation Specialties, L.L.C.
    Virginia N. Roddy, Jennifer M. Lawrence, Mayra L. Scheuermann, New Orleans, La., for Defendant/Relator, New England Mutual Life Insurance Company.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

| aThis appeal concerns whether Plaintiffs suit is abandoned pursuant to La. Code Civ. P. art. 561.

FACTS AND PROCEDURAL HISTORY

On May 12, 1999, Compensation Specialties, L.L.C. (Plaintiff), filed suit against New England Mutual Life Insurance Company (Defendant). Defendant answered the petition on May 9, 2002. On May 6, 2005, Plaintiff propounded its first written interrogatories and request for production of documents to Defendant. There was no further action on the record until March 26, 2008, at which time Plaintiff filed a motion and order to substitute counsel.

On June 4, 2008, Defendant filed a motion seeking dismissal of Plaintiffs suit on the basis of lack of prosecution. Defendant accompanied its motion with an affidavit signed by defense counsel, attesting that “no steps have been taken in the prosecution or defense of the above referenced matter for over [three] years and, more particularly, no discovery pleadings have been served since the 6th day of May, 2005.”

Thereafter, on June 9, 2008, counsel for Plaintiff filed a motion to enroll additional counsel and to set a status conference for the purpose of setting a trial date. That same day, Plaintiff filed a memorandum in opposition to Defendant’s motion to dismiss.

| sThe trial court set the matter for a contradictory hearing, which was held on July 16, 2008. The hearing consisted solely of argument of counsel; no evidence was taken. At the conclusion of the hearing, the trial court denied Defendant’s motion to dismiss.

In denying Defendant’s motion to dismiss, the trial court relied on a May 11, 2005, letter from defense counsel to Plaintiffs counsel confirming an informal extension of time to reply to discovery as a step in the defense of the suit such that it interrupted the abandonment period. This letter is not in the record, and it was not offered into evidence at the hearing.

The judgment denying the motion to dismiss was signed on August 1, 2008. Defendant filed with this court an application for a supervisory writ, seeking reversal of the trial court’s denial of its motion to dismiss. On August 28, 2008, the writ was denied. Chief Judge Burrell J. Carter dissented, noting he “would grant the writ and dismiss the lawsuit as abandoned under La. C.C.P. art. 561. Satterthwaite v. Byais, 2005-0010 (La.App. 1 Cir. 7/26/06), 943 So.2d 390.”

On October 24, 2008, the Louisiana Supreme Court granted Defendant’s application for supervisory and remedial writs and remanded the case back to this court for “briefing, argument and opinion.” On October 27, 2008, this court issued a stay pending further orders of this court.

After careful review of the record and consideration of the controlling legislation and jurisprudence, we reverse the trial court judgment denying Defendant’s motion to dismiss and render judgment dismissing Plaintiffs suit as abandoned by operation of law on May 7, 2008.

[STANDARD OF REVIEW

The pertinent facts are undisputed, and the issues herein are limited to questions of law. Supervisory review of legal issues is simply to determine whether the trial court’s judgment was legally correct. Voisin v. International Companies & Consulting, Inc., 2005-0265 (La.App. 1 Cir. 2/10/06), 924 So.2d 277, 279, writ denied, 2006-1019 (La.6/30/06), 933 So.2d 132. Appellate courts owe no deference to the legal conclusions of the trial court. Jackson v. BASF Corp., 2004-2777R (La.App. 1 Cir. 11/4/05), 927 So.2d 412, 415, writ denied, 2005-2444 (La.3/24/06), 925 So.2d 1231.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 561 governs abandonment and pro-vides in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three yearsf.]
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years[.]
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been|fitimely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The Louisiana Supreme Court has held that Article 561 is self-executing; it occurs automatically upon the passing of three years without either party taking a step, and it is effective without a court order. Clark v. State Farm Mutual Automobile Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779, 784. It is unnecessary for a defendant to file a motion to dismiss with the court in order to make a plaintiffs abandonment of the case effective. Washington v. City of Baton Rouge, 99-1987 (La.App. 1 Cir. 2/18/00), 752 So.2d 367, 369.

Article 561 imposes three legal requirements: (1) a party must take some step toward the prosecution or defense of the lawsuit; (2) the step must be taken in the trial court and, with the exception of formal discovery, must appear on the record; and (3) the step must be taken within the legislatively-prescribed time period from the last step taken by either party. James v. Formosa Plastics Corporation of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335, 338. A party takes a “step” when it takes formal action before the trial court intended to hasten the matter to judgment. James, 813 So.2d at 338.

There are two jurisprudential exceptions to the abandonment rule. The first is a plaintiff-oriented exception based upon contra non valentem, | ¿which applies when the failure to prosecute is caused by circumstances beyond the plaintiffs control. The second exception is defense-oriented, based upon acknowledgement, which applies when the defendant waives the right to assert abandonment by taking actions inconsistent with intent to treat the case as abandoned. Clark, 785 So.2d at 784-785. Additionally, the supreme court has declined to allow suits to be dismissed as abandoned on technical formalities. Clark, 785 So.2d at 786. Any action or step taken to move the case toward judgment should be considered because Article 561 should not be used to dismiss those cases in which a plaintiff has clearly demonstrated no intent to abandon the action. Voisin, 924 So.2d at 280.

With these legal precepts in mind, we evaluate whether Plaintiffs claim is abandoned by operation of law. Our analysis begins with an identification of the events significant to this determination. Prior to the June 4, 2008, filing of Defendant’s motion to dismiss Plaintiffs suit as abandoned, the last action on the record was the March 26, 2008, motion to substitute counsel. Motions to withdraw, enroll, or substitute counsel are not considered formal steps before the court. Paternostro v. Falgoust, 2003-2214 (La.App. 1 Cir. 9/17/04), 897 So.2d 19, 22, writ denied, 2004-2524 (La.12/17/04), 888 So.2d 870; see James, 813 So.2d at 341. Therefore, the March 26, 2008, motion to substitute counsel did not constitute a step in the prosecution of this case.

Earlier, on May 6, 2005, Plaintiff propounded its first written interrogatories and request for production of documents to Defendant. Clearly, this formal discovery, filed into the record that same date, 17constitutes a step in the prosecution of the action. See La.Code Civ. P. art. 561 B.

On June 9, 2008, subsequent to the filing of Defendant’s motion to dismiss, Plaintiff filed a motion to enroll additional counsel and to set a status conference for the purpose of setting a trial date. As already discussed, a motion to enroll additional counsel is not a step in the prosecution of an action. Paternostro, 897 So.2d at 22. However, a motion to schedule a case for trial, if filed in the court record, is a step in the prosecution of an action. Tinsley v. Stafford, 93-1668 (La.App. 1 Cir. 10/7/94), 644 So.2d 677, 678-679, writ denied, 94-2753 (La.1/6/95), 648 So.2d 933. Likewise, the filing of a motion for a status conference for the purpose of setting a trial date is a step in the prosecution of the action. See Dendy v. City National Bank, 2006-2436 (La.App. 1 Cir. 10/17/07), 977 So.2d 8, 13. However, because the June 9, 2008, filing occurred more than three years from the May 6, 2005, step in the prosecution, the case appears to be abandoned by operation of law as of May 7, 2008, and the June 9, 2008, filing is without effect. It is well settled that actions taken by a plaintiff after abandonment has automatically accrued by operation of law are without effect and cannot revive an abandoned action. Paternostro, 897 So.2d at 24.

Plaintiff advances four arguments in support of its claim that the case was not abandoned on May 7, 2008:

1. May 11, 2005, correspondence from defense counsel to Plaintiffs counsel, confirming an informal extension of time (until June 24, 2005) to respond to discovery interrupted the abandonment period.
2. Executive Order KBB 2005-67 interrupted the legal calendar for two months, two weeks, and three days (89 days) beginning on September 6, 2005, and ending on November 25, 2005.
ls3. Because Plaintiffs case was filed prior to August 26, 2005, it is subject to the five-year exception to the general rules of abandonment.
4. Defense counsel’s actions after filing a motion for abandonment constitute a post-abandonment waiver.

May 11, 2005, Correspondence from Defense Counsel

We first address Plaintiffs claim that May 11, 2005, correspondence from defense counsel to Plaintiffs counsel is a step in the defense of this case, such that the abandonment period was interrupted until June 24, 2005. Accordingly, Plaintiff argues its June 9, 2008, motion to enroll additional counsel and to set a status conference for the purpose of setting a trial date was filed within three years of the last step taken in the prosecution or defense of the action.

As a preliminary matter, we address the appropriateness of this court’s consideration of the letter, as Plaintiff did not offer the letter into evidence at the hearing. During the hearing on Defendant’s motion to dismiss, counsel for Defendant responded to questioning from the trial court. Defense counsel acknowledged sending the letter to counsel for Plaintiff and indicated that the letter’s purpose was to confirm an informal extension of time, until June 24, 2005, to respond to discovery. It appears Defendant never responded to the discovery request, and a perusal of the record indicates Plaintiff did not file a motion to compel.

The fact that this correspondence was exchanged and the general substance of its contents are not disputed by Defendant and, in this instance, constitute a judicial confession. A judicial confession is a party’s explicit |9admission in a judicial proceeding of an adverse factual element and has the effect of either waiving evidence as to the subject of the admission or withdrawing the matter from issue. Cichirillo v. Avondale Industries, Inc., 2004-2894 (La.11/29/05), 917 So.2d 424, 428-429. A judicial confession constitutes full proof against the party who made it, is indivisible, and may be revoked only on ground of error of fact. La. Civ.Code art. 1853.

Responses by counsel to questions posed by the court may constitute judicial confessions, thereby relieving the opposition of the necessity of introducing evidence. Cichirillo, 917 So.2d at 430; see also Bardwell v. Faust, 2006-1472 (La.App. 1 Cir. 5/4/07), 962 So.2d 13, 21 n. 7, writ denied, 2007-1174 (La.9/21/07), 964 So.2d 334 (During argument before the trial court, counsel made a judicial confession bearing upon a material fact of operative dates.); Jackson v. Moock, 2008-1111 (La.App. 1 Cir. 12/23/08), 4 So.3d 840, 844 (Correspondence was not offered into evidence; however, the fact that the correspondence was exchanged was not disputed.). Therefore, the fact that the May 11, 2005, correspondence was exchanged and the substance of the letter’s content can be considered by this court.

Plaintiff contends the May 11, 2005, letter exchanged between counsel regarding the informal request for an extension of discovery qualifies as a “step” in the defense of this case. However, extrajudicial efforts, such as informal discussions and correspondence between the parties, have uniformly been considered insufficient to constitute a step for purposes of interrupting or waiving abandonment. Jackson, 4 So.3d at 844; see Clark, 785 So.2d at 790.

10In Olavarrieta v. St. Pierre, 2004-1566 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 570, writ denied, 2005-1557 (La.12/16/05), 917 So.2d 1118, the court held that defense counsel’s written correspondence to the plaintiffs counsel inquiring as to the status of the plaintiffs responses to interrogatories did not constitute a step in the defense of the case sufficient to interrupt abandonment. Consider also the decision of Hica Steel Foundry & Upgrade Co. v. Arklatex Environmental Consultants, Inc., 39,460 (La.App. 2 Cir. 4/6/05), 899 So.2d 802, 807, wherein a letter written to suggest “future discovery” was held not to be a step in the prosecution of the case.

Accordingly, the informal written correspondence from defense counsel to Plaintiffs counsel confirming an informal extension of time to respond to discovery cannot be construed as formal discovery as contemplated by Article 561 and, as such, did not interrupt the period of abandonment. Such communications did not prevent Plaintiff from taking, or relieve Plaintiff of the duty to take, some formal action in or before the trial court to hasten the matter to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 533 (La.1983); Olavarrieta, 902 So.2d at 570.

Executive Order KBB 2005-67

Relying on the recent decision of the Louisiana Fourth Circuit Court of Appeal in True Gospel of Jesus Christ Church Ministry v. Doucette, 2008-0634 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, Plaintiff submits that liberative prescriptive and peremptive periods were suspended for a period of two months, two weeks, and three days (or eighty-nine days) pursuant to the executive orders issued by Governor Kathleen Babineaux Blanco inj^response to Hurricanes Katrina and Rita. Therefore, Plaintiff argues that it had three years plus eighty-nine days from May 6, 2005, (the date Plaintiff propounded interrogatories to Defendant) to take a step in the prosecution of its ease. We decline to follow the Fourth Circuit’s decision in True Gospel of Jesus Christ Church Ministry.

Executive Order KBB 2005-32 provided that all deadlines in legal proceedings, including liberative prescriptive and peremp-tive periods, were suspended until at least September 25, 2005. The order applied retroactively from August 29, 2005. By Executive Order KBB 2005A18, the suspension of all deadlines in legal proceedings was extended until at least October 25, 2005. Finally, by Executive Order KBB 2005-67, the suspension of liberative prescriptive and peremptive periods was extended until at least November 25, 2005.

Thereafter, by 2005 La. Acts. 1st Ex. Sess. No. 6, the Louisiana State Legislature enacted specific legislation in response to the statewide emergency created by Hurricanes Katrina and Rita, therein recognizing that public services were disrupted, certain courts were closed or displaced, and Louisiana citizens were prevented from exercising their legal rights. See La. R.S. 9:5821 A. The action of the governor in issuing Executive Orders KBB 2005-32, 48, and 67 was “approved, ratified, and confirmed subject to the provisions of R.S. 9:5822 through 5825.” (Emphasis supplied.) La. R.S. 9:5821 B. Louisiana Revised Statutes 9:5822 A provides:

All prescriptions, including liberative, acquisitive, and the prescription of non-use, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have | 12otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006. (Emphasis supplied.)

Louisiana Revised Statutes 9:5822 A was declared applicable “retroactively as well as prospectively.” 2005 La. Acts 1st Ex. Sess. No. 6, § 4. This court has expressly held that “Executive Orders KBB 2005-32, 2005-48, and 2005-67 and La. R.S. 9:5822(A) apply to abandonment as well as to other forms of liberative prescription.” Dendy, 977 So.2d at 15. Moreover, the Louisiana Supreme Court has recognized that the specific legislation found in La. R.S. 9:5822 “supercedes the general jurisprudential exception” to abandonment based on the doctrine of contra non valen-tem. Harris v. Stogner, 2007-1451 (La.11/9/07), 967 So.2d 1151, 1152.

Louisiana Revised Statutes 9:5822 A is clear that the suspension of the abandonment period is “limited and shall apply only if [the period] would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006.” (Emphasis supplied.) “The statute does not have the effect of extending all prescriptive periods for eight-nine days.” Assaleh v. Sherwood Forest Country Club Inc., 2007-1939 (La.App. 1 Cir. 5/2/08), 991 So.2d 67, 73.

The abandonment period in this case would have lapsed on May 7, 2008, not “during the time period of August 26, 2005, through January 3, 2006.” Therefore, La. R.S. 9:5822 A is not applicable to the facts of this case.

| iaArticle 561 A(2) Five-Year Exception for Hurricanes Katrina and Rita

Plaintiff alleges that pursuant to La. Code of Civ. P. art. 561 A(2) the applicable abandonment period in this ease is five years instead of three.

Article 561 A(2), as amended by 2007 La. Acts No. 361, § 1, effective July 9, 2007, provides an additional two-year delay to the three-year abandonment period if “a party whose action is ... claimed to be abandoned proves that the failure to take any step in the prosecution or defense in the trial court ... was caused by or was a direct result of Hurricane Katrina or Rita.” Therefore, for a party to avail himself of this additional two years, it must prove by a preponderance of the evidence that: (1) the action was initiated by a pleading filed before August 26, 2005; (2) failure to take any step was caused by or a direct result of Hurricanes Katrina or Rita; and (3) the action has not previously been abandoned pursuant to Article 561 A(l).

Although Plaintiffs action was filed pri- or to August 26, 2005, Plaintiff presented no evidence that its failure to take a step in the prosecution of its case during the three-year period following its May 6, 2005, filing was caused by or a direct result of Hurricanes Katrina or Rita. Plaintiffs “mere allegations of being affected by the hurricanes are insufficient to sustain the burden of proof.” Lambert v. Roussel, 2007-1109R, 2007-1172R (La.App. 1 Cir. 5/2/08), 991 So.2d 8, 13, writ denied, 2008-1193 (La.9/19/08), 992 So.2d 933. Therefore, Plaintiff has failed to establish his entitlement to relief under this provision.

Post-Abandonment Waiver by Defense Counsel

We also find no merit to Plaintiffs argument that Defendant waived its right to claim abandonment by participating in a September 25, 2008, |14status conference and responding to discovery after the trial court denied Defendant’s motion to dismiss.

Certain post-abandonment actions by a defendant may serve to waive its right to plead abandonment. See Clark, 785 So.2d at 789 n. 15. These actions, however, must be “steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute.” Satterthwaite, 943 So.2d at 393.

Once a party has formally raised the issue of abandonment, the fact that a party may respond to actions taken by the opposing party (which warrant a response or opposition should the claim of abandonment prove unsuccessful) will not serve to revive an abandoned claim. Slaughter v. Arco Chemical Co., 2005-0657 (La.App. 4 Cir. 4/26/06), 931 So.2d 387, 398. Article 561 does not require a defendant to forgo the filing of responsive pleadings or the taking of other appropriate defensive actions pending a final ruling on its motion for dismissal. See Slaughter, 931 So.3d at 398.

Defendant’s actions cannot be characterized as expressing an intention inconsistent with that of treating the case as abandoned. Rather, Defendant was proceeding in compliance with the orders and directives of the trial court while, at the same time, seeking appellate review of the correctness of the denial of its motion to dismiss. Such measures cannot be construed as a willingness to revive an action already abandoned by operation of law. The |ir,record is clear that Defendant did not waive its right to claim Plaintiffs suit is abandoned by operation of law.

CONCLUSION

For the foregoing reasons, the trial court’s judgment denying Defendant’s motion to dismiss Plaintiffs action as abandoned is reversed. Judgment is rendered granting Defendant’s motion to dismiss and dismissing Plaintiffs suit as abandoned by operation of law as of May 7, 2008. All costs of this appeal are to be paid by the plaintiff, Compensation Specialties, L.L.C. The stay issued by this court on October 27, 2008, is lifted.

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED; STAY LIFTED.

DOWNING, J., concurs.

      . Metropolitan Life Insurance Company is the successor in interest to New England Life Insurance Company.

      . The original affidavit indicated no steps had been taken within "five years.” On July 16, 2008, Defendant was granted leave to file a substitute affidavit that specified no steps had been taken within "three years.”

      . Article 561 has been amended numerous times, most recently by 2007 La. Acts No. 361, § 1, effective July 9, 2007.

      . Notably, May 11, 2005, is more than three years before Plaintiff's June 9, 2008, motion requesting a status conference for the purpose of setting a trial date. For this reason, the June 24, 2005, date is the date at issue.

      . The September 25, 2008, Case Management Schedule, bears a handwritten notation: "NOTE: OBJECTION TO PARTICIPATION TO [sic] STATUS CONFERENCE BY DEFENDANT.”


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    Bobby J. CLARK v. GODFREY KNIGHT FARMS, INC.
    No. 2008 CA 1723.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Denise A. Vinet, Baton Rouge, LA, for Plaintiff/Appellee, Bobby Clark.
    Robert D. Hoover, Baton Rouge, LA, for Defendant/Appellant, Godfrey Knight Farms, Inc.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   WHIPPLE, J.

|-.In this workers’ compensation case, the defendant employer appeals a judgment of the Office of Workers’ Compensation Administration (OWC) in favor of the claimant employee, awarding weekly indemnity and medical benefits and assessing penalties and attorney’s fees against the defendant employer. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 6, 2003, Bobby Clark was injured while in the course and scope of his employment with Godfrey Knight Farms, a business operating a sugar cane farm. Clark, a mechanic and a twenty-year employee of Godfrey Knight Farms, was injured when he and his boss, Godfrey Knight, were attempting to hook a row-covering tool to a tractor. Knight was attempting to align the tractor with the tool when he accidently backed the tractor into Clark, “mash[ing]” Clark between the tractor and the tool. According to Clark, Knight, in an apparent attempt to put the tractor in neutral, then moved the tractor backward and forward two or three times, causing the tractor tires to repeatedly hit Clark in the back and legs.

Clark attempted to continue working that day, but eventually he went home due to pain in his back and legs. By that evening, Clark’s pain had gotten progressively worse, and Knight scheduled an appointment for Clark with Dr. John Soignet the following day. Dr. Soignet saw Clark on three occasions in the following six weeks and recommended a lumbar MRI, After receiving the results of the MRI, he recommended that Clark see an orthopedic specialist.

| ¡¡Clark then began treatment for this injury with Dr. William Kinnard, an orthopedic surgeon, who had previously treated Clark. While initially Clark’s primary complaint was of lower back and leg pain, he also complained of pain in his neck and hands following the November 6, 2003 accident. Dr. Kinnard was of the opinion that Clark had aggravated a pre existing lower back condition, and he referred Clark to physical therapy. Dr. Kinnard continued to treat Clark conservatively for his complaints, and he restricted Clark from work during this time. Thus, LUBA Casualty Insurance Company (“LUBA”), Godfrey Knight Farms’ workers’ compensation carrier, paid Clark temporary total disability benefits.

Because Clark’s pain persisted, on September 1, 2004, Dr. Kinnard referred Clark to Dr. Donald Dietze, Jr., a neurosurgeon, for a neurosurgery opinion regarding Clark’s lower back pain. After examining Clark and reviewing lumbar x-rays and MRI reports, Dr. Dietze opined that Clark most likely had injured his previously operated L5-S1 disc and was suffering from segmental instability. Dr. Dietze recommended a lumbar discogram to confirm the diagnosis, noting that if the discogram was positive, Clark would be a candidate for lumbar surgery. Dr. Kin-nard agreed with Dr. Dietze that a disco-gram was indicated. However, this diagnostic test was not approved by LUBA.

|4On April 8, 2005, at the request of LUBA, Clark was also examined by Dr. Robert Applebaum, a neurosurgeon, who recommended an MRI of the cervical spine and cervical and lumbar myelograms with CAT scans. Dr. Kinnard was also in agreement with performing these diagnostic tests. However, LUBA would not authorize these diagnostic tests either.

With regard to Clark’s neck and arm pain, Dr. Kinnard noted that by June 2004, Clark’s neck was becoming the predominant area of complaint. Dr. Kinnard opined that Clark’s current neck problems were causally related to the November 6, 2003 accident, which he believed aggravated or re-injured Clark’s pre-existing neck problems.

Dr. Kinnard further explained that while EMG studies performed after the 2001 and 2003 accidents showed essentially the same abnormalities, a follow-up MRI revealed evidence of a worsening area of compression of the spinal cord at C3-C4, C4-C5, and C5-C6. Thus, eventually in May 2007, Dr. Kinnard recommended that Clark undergo an interior cervical discectomy and fusion. Dr. Kinnard opined that the November 6, 2003 accident aggravated Clark’s pre-existing condition and caused more degeneration to the point that Clark now needed cervical surgery. LUBA, however, did not authorize the cervical surgery.

Regarding Clark’s complaints of current and past pain in his arms and hands, Dr. Kinnard diagnosed carpal tunnel syndrome, and he recommended carpal tunnel release surgery. However, LUBA also would not authorize this medical treatment. In March 2006, Clark underwent a left carpal tunnel release, paid for by his private health insurance, but as of the time of trial of this matter, he had not yet undergone a right carpal tunnel release.

On November 6, 2006, Clark filed a Disputed Claim for Compensation against Godfrey Knight Farms and LUBA, contending that |5defendants had wrongfully denied authorization for the above-listed medical treatment and had refused to pay for prescription medication. Thus, Clark sought authorization for recommended medical treatment, payment for prescription medication, and penalties and attorney’s fees.

Thereafter, LUBA reduced Clark’s weekly indemnity benefits, effective November 1, 2006, from temporary total disability benefits (TTDs) to supplemental earnings benefits (“SEBs”), contending that Clark’s treating physician had approved certain jobs for him. Clark then filed several amended claims, averring that defendants had wrongfully reduced his indemnity benefits and had failed to reimburse him for mileage expenses and specifying the medical treatment for which authorization was sought.

Trial in this matter was held on January 30, 2008, and at the close of defendants’ case, defendants moved to amend their answer to assert a claim for LSA-R.S. 23:1208 fraud. Defendants contended that Clark’s testimony at trial, which they alleged differed from his prior deposition testimony, and Dr. Kinnard’s deposition testimony raised the issue of whether Clark had been truthful about his prior cervical problems, thus giving rise to a claim of fraud. The workers’ compensation judge granted defendants’ motion to so amend their answer, noting that even if she allowed the expansion of the pleadings, she was not bound to find that defendants had established a 1208 fraud claim. The workers’ compensation judge further reopened the hearing to allow Clark to present any evidence he wished to rebut the 1208 fraud defense.

Thereafter, on June 3, 2008, the workers’ compensation judge rendered oral reasons for judgment, finding that defendants had failed to establish that Clark had violated LSA-R.S. 23:1208 by willfully making a false statement or representation for the purpose of obtaining workers’ | ^compensation benefits. The workers’ compensation judge further found as a fact that Clark had proven that the November 6, 2003 work accident aggravated his preexisting back, leg, neck, and bilateral carpal tunnel conditions and that the aggravation of those conditions was continuing as of the date of the judgment. Thus, she found that Clark had proved his entitlement to temporary total disability benefits. Additionally, the workers’ compensation judge found that Clark had proven his entitlement to all medical treatment recommended and to reimbursement for prescriptions and mileage.

With regard to the issue of penalties and attorney’s fees, the workers’ compensation judge found as a fact that, while Clark proved his entitlement to these benefits, defendants were not arbitrary, capricious or without probable cause in reducing Clark’s indemnity benefits from TTDs to SEBs or in denying authorization for treatment and surgeries for Clark’s carpal tunnel syndrome. However, the workers’ compensation judge further concluded that defendants did not reasonably controvert Clark’s entitlement to medical treatment for his cervical problems and to the lumbar discogram. Accordingly, the worker’s compensation judge assessed penalties in the amount of $4,000.00 ($2,000.00 for each incident) and attorney’s fees in the amount of $7,500.00 against defendants for their failure to authorize that medical treatment.

From a judgment rendered in accordance with these findings, Godfrey Knight Farms appeals, contending that the workers’ compensation judge erred in: (1) failing to follow the provisions of LSA-R.S. 23:1208; (2) awarding temporary total disability benefits instead of supplemental earnings benefits; (8) authorizing carpal tunnel surgery on both wrists; (4) 17authorizing neck surgery for Clark; (5) approving a discogram; and (6) awarding penalties and attorney’s fees.

FINDING OF NO LSA-R.S. 23:1208 FRAUD

(Assignment of Error No. 1)

In this assignment of error, God-frey Knight Farms contends that the workers’ compensation judge erred in finding that defendants had failed to carry their burden of proving a violation of LSA-R.S. 23:1208 and, thus, in not dismissing Clark’s claim in its entirety. Specifically, Godfrey Knight Farms contends that in a statement to the employer and in his deposition, Clark denied that he had ever had any previous neck injury and that Clark also failed to admit at trial that he had any previous injuries to his neck and wrists.

Pursuant to LSA-R.S. 23:1208, an employee who makes a false statement for the purpose of obtaining workers’ compensation benefits shall forfeit any right to compensation benefits. The requirements for forfeiture of benefits under section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining any benefit or payment. Hull v. Flulcer Farms, 2000-0757 (La.App. 1st Cir.5/11/01), 787 So.2d 535, 539, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612. However, the burden of proof under LSA-R.S. 23:1208 requires more than a mere showing of inconsistent statements or inadvertent admissions by the claimant. Bernard v. Petro Stopping Centers, 2007-0387 (La.App. 1st Cir.11/2/07), 977 So.2d 49, 54, writ denied, 2008-0100 (La.3/7/08), 977 So.2d 917. Rather, there must be a showing that a misrepresentation was willfully made for the purpose of obtaining benefits.

The issue of whether an employee forfeited workers’ compensation benefits by willfully making false statements is one of fact, which should not | sbe reversed on appeal absent manifest error. Bernard, 977 So.2d at 54. When findings are based on a credibility determination, a factfin-der’s decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous. Moreover, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous Hull, 787 So.2d at 539-540.

In the instant case, Clark gave a statement to a representative of LUBA on March 16, 2004, approximately four months after the work accident in question. When questioned about whether he had experienced any problems or injuries with his neck, back, leg, or shoulders prior to the accident in question, Clark responded that he had had back surgery as a result of the 2001 work accident. The next question presented to Clark was as follows: “How about the neck or the shoulders or the—no problems ever before with those. That back surgery was that an accident, as a result of an accident?” To this multipart question, Clark responded, “Yea.” The LUBA representative then asked Clark if he had recovered completely from that surgery, and Clark responded, “I did everything I was doing before.”

Clark was then asked how he felt on the day that the instant work accident occurred, November 6, 2003, and Clark responded that he felt good that day and felt like he was “100%.” When later asked whether he had any shoulder or neck pain when he reported to work on November 6, 2003, Clark related that he did not have any shoulder or neck pain that day.

Later in that statement, when asked if he had ever had any stiff or sore neck symptoms before the accident in question, Clark responded that he had not. However, when Clark was thereafter asked about any previous neck injury in that same statement, the following exchange occurred:

IsQ Ever suffered from or been treated for injuries or problems of any kind involving your neck or shoulders?
A (unintelligible).
Q Did it require medical treatment?
A (Unintelligible).

While it is unclear from the transcript what Clark’s exact response was to the first question, we note that his response apparently prompted the second question about whether such an injury had required medical treatment.

In that statement to the LUBA representative, Clark also denied that he had ever filed a workers’ compensation claim prior to filing the instant claim, when in fact the evidence introduced at trial established that he had filed a prior claim, albeit over twenty years earlier in 1983.

Clark was later deposed on February 13, 2007. When questioned in his deposition about whether he had injured his neck in the 2001 work accident, Clark responded, “No, sir. It happened in 2003.” On the other hand, when questioned about any back injuries prior to the 2001 work accident, Clark recalled at that time the work accident that had occurred twenty years earlier, noting that he was out of work for some time after that accident, but did not have any surgery then.

With regard to prior neck problems, Dr. Kinnard testified that following the earlier 2001 work accident, Clark had complaints of pain in his neck with referral into the arms. However, Dr. Kinnard stated that there was very little treatment for. the neck at that time. Additionally, Dr. Kin-nard testified that when he released Clark to return to work in January 2003, Clark’s neck and hand symptoms had improved.

At the trial of this matter, defense counsel again questioned Clark about whether he had injured his neck in the 2001 accident, and Clark responded that he did not recall. Also, in response to questioning about 110whether he had made neck complaints to Dr. Kinnard following the 2001 accident, Clark stated, “It’s like I said, it’s been a long time ago. It’s possible I did say so.” Similarly, when asked if he remembered injuring his neck in a 1983 work accident, Clark responded that he remembered injuring his back in 1983, but could not recall whether he had also injured his neck in that accident. Clark specifically responded, “I remember it happening. But I don’t remember what parts of my body got hurt.” Additionally, Clark noted that “all these things could have happened in between that time[,] ... [b]ut nothing never [sic] stopped me from working on a job I was on now.”

Defense counsel also asked Clark whether he recalled his earlier deposition testimony wherein he denied hurting his neck in the 2001 work accident, and Clark responded, “That could have been said to [sic], I don’t remember saying it. But if you got it on paper, I must has [sic] said it.”

A review of the above testimony and of the record as a whole reveals some inconsistencies in Clark’s statements and testimony, and it is clear that Clark, a physical laborer with an eighth grade education, was a poor historian and had problems recalling past injuries and related complaints. However, the workers’ compensation judge obviously concluded that there was no deliberate attempt by Clark to willfully mislead anyone about his prior injuries. Based on our review of the record, we cannot conclude that the workers’ compensation judge’s factual findings, which obviously involved a determination as to Clark’s credibility, were manifestly erroneous. Accordingly, we find no merit to the argument by Godfrey Knight Farms that the workers’ compensation judge erred in refusing to find that defendants had proven that Clark had willfully made a false statement for the purpose of obtaining workers’ compensation benefits. On the record before us, there is no evidence of such fraud.

| nCAUSATION OF NECK INJURY AND CARPAL TUNNEL SYNDROME AND AUTHORIZATION OF MEDICAL TREATMENT

(Assignments of Error Nos. 3 and 4)

In assignments of error three and four, Godfrey Knight Farms avers that the workers’ compensation judge erred in concluding that Clark’s carpal tunnel syndrome, and resulting need for carpal tunnel release surgery, and current neck complaints, and resulting need for surgery, were related to the November 6, 2003 accident.

With regard to the carpal tunnel syndrome and neck injuries, the issue of Clark’s entitlement to medical treatment for those problems depended upon a finding by the workers’ compensation judgment that those conditions were causally related to the November 6, 2003 work accident. A workers’ compensation claimant bears the burden of establishing a causal connection between the work accident and the resulting disability by a preponderance of the evidence. Roberts v. Thibodaux Healthcare Center, 2005-0774 (La.App. 1st Cir.3/24/06), 934 So.2d 84, 92.

When an employee has suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. The employee is entitled to a presumption that the injury at work either aggravated, accelerated or combined with a pre-existing injury to produce disability if he can prove that before the accident the disabling symptoms had not manifested, but that beginning with the accident they manifested, and there is either medical or circumstantial evidence indicating a reasonable possibility of causation. Hayes v. Louisiana State Penitentiary, 2006-0553 12(La.App. 1st Cir.8/15/07), 970 So.2d 547, 556, writ denied, 2007-2258 (La.1/25/08), 973 So.2d 758. Authement v. Consolidated, Water Works District No. 1, 2005-0877 (La.App. 1st Cir.5/5/06), 935 So.2d 158, 162-163;

Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability. Authement, 935 So.2d at 163.

In the instant case, the evidence establishes that Clark did have pre existing neck and hand problems, having had complaints of pain in his neck with referral pain into the arms following the earlier 2001 work accident. However, Clark testified that after he returned to work in October 2002, following lower back surgery, he did not have any pain or any problems with his neck or hands until the accident in question. Similarly, Dr. Kin-nard testified that when he released Clark to return to work in January 2003, Clark related to him that his neck and hand symptoms had improved. Moreover, as noted by the workers’ compensation judge, there were no medical records of Dr. Kinnard documenting any problems after January 3, 2003, when he had released Clark to return to work following the previous work accident, until after the accident in question. Additionally, the workers’ compensation judge noted that Clark had returned to full-duty work with no modifications following the earlier 2001 work accident. His neck and hand symptoms manifested themselves again only after the accident in question.

1 ^Moreover, Dr. Kinnard, Clark’s treating physician, opined that Clark’s current neck problems were causally related to the November 6, 2003 accident, which he believed aggravated or re-injured Clark’s pre-existing neck problems. Dr. Kinnard further testified that there were two possible causes of Clark’s carpal tunnel syndrome. Specifically, these causes were identified as resulting from either repetitive use of Clark’s hands from his job, or from a condition called double-crush syndrome. He explained that double crush-syndrome refers to a situation where there is evidence of nerve root irritation at the neck or cervical spine level, and it renders the nerve more susceptible to even small amounts of pressure at a more distant site. Thus, double-crush syndrome is a condition whereby a patient has a neck injury and may then develop carpal tunnel syndrome because of the irritation present at the neck level.

On the other hand, Dr. Kinnard noted that symptoms of carpal tunnel syndrome were present after the 2001 accident, but that they had subsided prior to the instant accident. Thus, Dr. Kinnard stated that while Clark’s repetitive use of his hands at work could have caused his carpal tunnel syndrome, the nerve root irritation in Clark’s cervical spine, which he related to the November 6, 2003 work accident, could also be identified as a contributing cause of his carpal tunnel syndrome. Regarding Clark’s current pain in the left hand, Dr. Kinnard further stated, “I believe that the persistent pain, at this point, has probably originated from the level of the neck,” explaining that there is some overlap in nerve patterns whereby the C-6 nerve root compression will cause symptoms in a similar distribution as carpal tunnel syndrome.

Thus, given that Clark was symptom-free for months prior to the accident in question and that his treating physician identified a causal |uconnection between Clark’s current conditions and the work accident in question, we find no error in the workers’ compensation judge’s conclusion that Clark established his entitlement to the presumption that the injury at work either aggravated, accelerated or combined with his pre-existing injuries to produce his disability. Thus, defendants then had the burden of proving that it was more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability.

On appeal, Godfrey Knight Farms challenges the workers’ compensation judge’s finding of causation, contending that the amount of time that elapsed between the accident and Clark’s first complaints of neck pain, the fact that Clark had previously injured his neck and wrists, and the fact that the accident in question involved the lower back and not the neck or wrists demonstrate that Clark’s current neck and wrist problems were not causally related to the accident in question.

Godfrey Knight Farms also relies on the opinion of Dr. Joe Morgan, an orthopedic and hand surgeon who examined Clark on one occasion at the request of LUBA, in asserting that the workers’ compensation judge erred in finding Clark’s neck problems causally related to the November 6, 2003 work accident. Dr. Morgan issued a report dated June 15, 2006, wherein he summarized the medical records he had reviewed and his findings upon physical examination of Clark. Dr. Morgan then concluded that none of Clark’s current problems were related to the November 6, 2003 work accident. However, with regard to Clark’s neck condition, Dr. Morgan stated only as follows, “His other symptoms of problems with his neck I do not consider to be related to the accident of 2003.” Dr. Morgan gave no reasoning for this conclusion.

11RWhile there was some question raised about the amount of time that elapsed between the accident in question and Clark’s first complaints of neck pain, we note, as did the workers’ compensation judge in finding causation, that, in addition to complaining of lower back and leg pain on the initial visit with Dr. Kinnard, Clark had also indicated on the pain drawing at the visit with Dr. Soignet immediately following the November 6, 2003 accident that he was experiencing neck and arm pain. Additionally, when Clark began physical therapy in December 2003, the month after the accident in question, he reported neck complaints to the physical therapist at that time. And again, in March 2004, Clark related that he was experiencing neck problems in a statement given to a LUBA representative.

In addition, while Godfrey Knight Farms contends that the November 6, 2003 work accident involved the lower back only, and not the neck, we note that Clark’s description of the accident, which was not disputed by Knight or any other potential witness, belies such an argument. Clark described being thrust back and forth several times between the row-covering tool and the tractor tire while Knight attempted to regain control of or maneuver the tractor. Thus, while the direct impact was to the lower back area, clearly such an accident could reasonably be found to have caused other less direct injuries also. Consequently, we find no error in the workers’ compensation judge’s finding that defendants had failed to rebut the presumption of causation with regard to Clark’s current neck complaints.

With regard to the carpal tunnel syndrome, Godfrey Knight Farms relies on the opinions of Dr. Morgan and Dr. Eric George, a hand surgeon who examined Clark on one occasion for an independent medical examination. Dr. Morgan and Dr. George opined that Clark’s carpal tunnel syndrome was not related to the accident at issue. Dr. Morgan based his | lfiopinion on the documentation of Clark’s complaints in his medical records and the fact that, according to his review of those records, Clark did not mention any hand problems until March 4, 2005, a year and four months after the work accident. Although Dr. George did not specifically state in his report why he did not relate Clark’s carpal tunnel syndrome to the November 6, 2003 work accident, he did note in his report that Clark’s first complaints of hand problems appeared to be in March and April 2005.

In concluding that Clark’s carpal tunnel syndrome and related need for surgery were causally related to the November 6, 2003 accident, the workers’ compensation judge chose to credit the opinion of the treating physician over those of Drs. Morgan and George. As a general rule, while the trier of fact is required to weigh the testimony of all medical witnesses, the testimony of the treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Scott v. Wal-Mart Stores, Inc., 2003-0858 (La.App. 1st Cir.2/23/04), 873 So.2d 664, 669. On the other hand, an independent medical expert’s (IME) medical conclusions should also be given significant weight because the IME is an objective party. Scott, 873 So.2d at 669; see also LSA-R.S. 23:1123.

In crediting Dr. Kinnard’s opinion herein, the workers’ compensation judge specifically noted that neither Dr. Morgan nor Dr. George discussed the possible correlation between Clark’s neck injury and subsequent symptoms relating to carpal tunnel syndrome and, thus, that she was relying on the treating physician’s opinion and conclusions regarding injury, disability, and causation. Under these circumstances, we cannot conclude that the workers’ compensation judge erred in giving greater weight to the |17opinions and conclusions of Dr. Kinnard, the treating orthopedic surgeon. See Scott, 873 So.2d at 669-670.

Considering the foregoing and the record as a whole, we find no manifest error in the workers’ compensation judge’s factual determinations that Clark had established a presumption of causation with regard to his neck complaints and carpal tunnel syndrome, that defendants had failed to rebut the presumption, and, consequently, that Clark’s current neck complaints and need for cervical surgery and carpal tunnel syndrome and need for surgery were causally related to the November 6, 2003 work accident. See Authement, 935 So.2d at 163.

AUTHORIZATION OF DISCOGRAM

(Assignment of Error No. 5)

In this assignment of error, God-frey Knight Farms avers that the workers’ compensation judge erred in authorizing an unnecessary discogram, contending that Dr. Kinnard made his own decision about the need for cervical surgery without the necessity of a discogram and that both Drs. Morgan and George concluded that cervical surgery was not necessitated as a result of the work accident in question.

An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. LSA-R.S. 23:1203(A). To recover medical expenses authorized under LSA-R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Roussell v. St. Tammany Parish School Board, 2004-2622 (La.App. 1st Cir.8/23/06), 943 So.2d 449, 460, writ not considered, 2006-2362 (La.1/8/07), 948 So.2d 116. Whether a claimant is entitled to medical benefits is ultimately a question of fact, and the fact finder’s resolution of liRthat issue may not be disturbed by the appellate court in the absence of manifest error. Roussell, 943 So.2d at 460.

At the outset, we note that while God-frey Knight Farms challenges the need for a discogram on the bases that Dr. Kinnard made his own decision about the need for cervical surgery without the necessity of a discogram and that both Drs. Morgan and George concluded that cervical surgery was not necessitated as a result of the work accident in question, the discogram ordered by Dr. Dietze was actually a lumbar discogram, not a cervical discogram. Furthermore, Dr. Kinnard agreed with Dr. Dietze that a lumbar discogram was indicated. Defendants offered no evidence to counter the need for this diagnostic test.

Accordingly, we find no manifest error in the workers’ compensation judge’s finding that Clark proved his entitlement to have the lumbar discogram as recommended by Dr. Dietze. This assignment of error lacks merit.

TEMPORARY TOTAL DISABILITY BENEFITS

(Assignment of Error No. 2)

In this assignment of error, God-frey Knight Farms contends that it properly reduced Clark’s benefits to supplemental earnings benefits (SEBs) and that the workers’ compensation judge erred in returning Clark to temporary total disability benefits (TTDs) where Godfrey Knight Farms established that Dr. Kinnard had approved several jobs for Clark presented to Dr. Kinnard by the vocational rehabilitation counselor.

Pursuant to LSA-R.S. 23:1221(1)(c), the claimant has the burden of proving his temporary total disability by clear and convincing evidence. Clear and convincing proof requires objective medical evidence of the disabling condition causing the employee’s inability to engage in any | ^employment. The claimant must provide objective, expert testimony as to his medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to meet this standard, Roussell, 943 So.2d at 457-458. The factual finding of whether a claimant is entitled to TTDs is subject to the manifest error or clearly wrong standard of appellate review. Roussell, 943 So.2d at 458.

As stated above, Godfrey Knight Farms contends that the workers’ compensation judge erred in finding that Clark was entitled to TTDs because Dr. Kinnard approved several jobs for Clark. However, as noted by the workers’ compensation judge in support of her finding, Dr. Kin-nard explained his position regarding Clark’s ability to return to work in his deposition. Specifically, Dr. Kinnard explained that if it were determined that Clark’s current neck and hand problems were not related to the work accident at issue, then, from a workers’ compensation standpoint, he would have nothing further to offer Clark. If, however, it were determined that the neck and hand problems were related to the work accident at issue, then Dr. Kinnard would proceed with recommending the surgical discectomy and fusion and the right carpal tunnel release, and, under those circumstances, Clark would not be released to return to work.

Thus, having determined above that the workers’ compensation judge did not manifestly err in finding that Clark had established that his current neck injury and carpal tunnel syndrome were causally related to the work accident at issue, we likewise find no error in the conclusion that Clark established his temporary total disability status by clear and convincing evidence. This assignment of error also lacks merit.

| ^PENALTIES AND ATTORNEY’S FEES

(Assignment of Error No. 6)

In its final assignment of error, Godfrey Knight Farms contends that the workers’ compensation judge erred in imposing penalties and attorney’s fees where it reasonably controverted the causal relationship between the work accident at issue and the need for carpal tunnel release surgery and neck surgery and where Clark’s weekly indemnity benefits were reasonably reduced to SEBs.

At the outset, we note that the workers’ compensation judge did not impose penalties or attorney’s fees against defendants for either their failure to authorize treatment for Clark’s carpal tunnel syndrome or for them reduction of his weekly indemnity benefits to SEBs. Rather, penalties and attorney’s fees were imposed specifically for defendants’ refusal to authorize the lumbar diseogram and their refusal to authorize treatment and surgery for Clark’s cervical injury. Accordingly, we review the workers’ compensation judge’s determination that an assessment of penalties and attorney’s fees were warranted for those actions.

Pursuant to LSA-R.S. 23:1201(F), an employer or insurer may be assessed with penalties and attorney’s fees for failure to timely pay weekly indemnity or medical benefits where the employer or insurer has failed to reasonably controvert the claim. A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Roussell, 943 So.2d at 462. A determination of whether an employer or insurer has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review. Poole v. Guy Hopkins Construction, 2007-0079 (La.App. 1st Cir.11/2/07), 984 So.2d 43, 50.

12i In the instant case, in finding that defendants had failed to reasonably controvert the need for the lumbar diseogram, the workers’ compensation judge stated as follows:

Dr. Dietz[e], on September 27, 2004, suggested a diseogram needed to be conducted in order to determine more about claimant’s back.
The defendants] did not approve a diseogram during this whole time and did not come up with anything to contradict the need for a diseogram or for any relationship where the back was not related until Dr. Morgan’s report of June 15, 2006. Therefore, penalties in the amount of $2,000 are being applied.

We find no manifest error in these factual findings. Specifically, we note that defendants had absolutely no evidence to refute plaintiffs claims or even suggest that the aggravation of Clark’s lower back condition was not causally related to the work accident in question until almost two years after the diseogram was recommended, when Dr. Morgan opined that any need for lumbar surgery would be related to the earlier 2001 work accident and that Clark had reached maximum medical improvement from any injury he had suffered from the 2003 accident.

Furthermore, in finding that defendants had failed to reasonably controvert Clark’s need for medical treatment for his neck injury, the workers’ compensation judge further stated:

The claimant mentioned that he injured his neck early on the case [sic]. You can see the physical therapy notes of December of 2003. And you can see the employee statement, saying his neck was involved.
There was nothing to contradict any relationship with the neck. Therefore, any medical treatment with the neck should have been paid for. Therefore, the defendants are being assessed $2,000 for not authorizing treatment for the neck.

As discussed in detail in our discussion of causation, these findings regarding Clark’s complaints of neck problems were amply supported by the record, and Clark’s treating physician related these complaints to the work accident in question.

IzgThus, considering the foregoing and the record as a whole, we cannot conclude that the workers’ compensation judge manifestly erred in concluding that defendants did not reasonably controvert Clark’s entitlement to such medical treatment and testing. This assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, the June 4, 2008 judgment of the OWC is affirmed in its entirety. Costs of this appeal are assessed against Godfrey Knight Farms.

AFFIRMED.

      . Clark had a previous work-related injury in May 2001, while employed by Godfrey Knight Farms, when a tractor tire that Knight was changing fell on Clark. As a result of that accident, Clark suffered a lumbar disc herniation at the L5-S1 level. Following that injury, Clark continued to work until Dr. Kinnard performed lower back surgery in June 2002. While Dr. Kinnard released Clark to return to work in January 2003 following the lower back surgery, Clark had already returned to work in October 2002.
      Clark also had some cervical complaints with referral pain into the arms following the 2001 work accident. While a cervical MRI revealed disc pathology at C5-C6 and C6-C7, Dr. Kinnard testified that there was little treatment for Clark's neck after that accident. Moreover, by the time Dr. Kinnard released Clark to return to work in January 2003, Clark's symptoms in his neck and upper extremities had improved. Clark worked from October 2002 until the date of the accident in question on November 6, 2003, without incident.

      . In these assignments of error, Godfrey Knight Farms challenges the authorization of medical treatment for Clark’s neck condition and carpal tunnel syndrome on the basis of causation only.

      . Other prior occasions of pain in the neck and hands were also documented in the record.


author: DECUIR, Judge.

text:
    FRANK'S CASING CREW & RENTAL TOOLS, INC. v. David L. SIPOS, et al.
    No. 08-640.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2009.

      William W. Stagg, Tiffany C. Babineaux, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendants/Appellants: Vermilion River Tool & Equipment, Co., Inc. David L. Sipos.

      Edward C. Abell, Jr., Onebane Law Firm, Lafayette, LA, Guy E. Matthews, Bruce R. Coulombe, Matthews, Lawson & Bowick, PLLC, Houston, TX, Richard J. Putnam, Jr., Richard Johnson Putnam III, Putnam Law Firm, Abbeville, LA, for Plaintiff/Appellant: Frank’s Casing Crew & Rental Tools, Inc.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

| prank’s Casing Crew and Rental Tools, Inc. (Frank’s) filed suit against its former employee, David L. Sipos, and his company, Vermilion River Tool & Equipment Co., Inc. (VERTECO), alleging breach of a confidentiality agreement and violations of the Louisiana Unfair Trade Practices Act, La.R.S. 51:1401 et seq., and the Uniform Trade Secrets Act, La. R.S. 51:1431 et seq. After a jury trial, judgment on the merits was rendered in favor of the defendants, and the plaintiffs claims were found to be in bad faith, warranting an award of attorney fees. Frank’s now appeals the jury verdict alleging jury misconduct and manifest error in the decision reached by the jury. Sipos and VERTECO also appeal the trial court’s ruling on Frank’s motion for summary judgment and preliminary and permanent injunctions. For the following reasons, we affirm in toto the decisions rendered below.

David Sipos worked for Frank’s for ten years, from 1994 through 2004. He was the head of the Special Operations Group, a design and engineering group charged with the responsibility to conceive, invent, and construct new oilfield tools for Frank’s. Sipos was an experienced tool designer when he came to work for Frank’s, having a number of patents to his credit. At the start of his employment with Frank’s, Sipos signed a confidentiality agreement, a contract which precluded Si-pos from disclosing to third parties any of Frank’s confidential and proprietary information.

At issue in this case is a tool known as a flush mounted rotary spider, which is a piece of oilfield equipment used to handle casing or drill pipe on a drilling rig. After leaving Frank’s, Sipos set up his own company, VERTECO, and shortly thereafter obtained a contract to design a new rotary spider for a competitor of Frank’s. The new design produced by Sipos is the subject of this suit. Frank’s [¿contends that Sipos relied on confidential and proprietary information belonging to Frank’s in the design of the new tool. In his defense, Sipos contends the information consisted of his own drawings and calculations, as well as generally known and readily available information obtained from textbooks, patent records, experts in the field, and the internet. This case does not involve any allegations of patent infringement.

Prior to trial, Frank’s moved for summary judgment on the limited question of whether Sipos violated the terms of the confidentiality agreement with regard to six specific pieces of information: (1) the design of a flush mounted spider with a universal profile, (2) a computer aided design (“CAD”) template adapted by Frank’s to aid in the design of flush mounted spiders and other oilfield tools, (3) a spring calculator algorithm used within the context of EXCEL spreadsheet applications, (4) the concept for the manufacture of flush mounted spiders by the use of bolted plate construction, (5) the design and concept of a dual rail slip, and (6) the design and concept of a slip retracting spring. All other issues, including other disputed information, damages, and statutory trade practices and trade secrets violations, were deferred to the jury trial. After thorough consideration, summary judgment was rendered in Frank’s favor based on the finding that items (1) through (4) were confidential and proprietary information taken by Sipos in violation of the confidentiality agreement signed by him. The court enjoined Sipos and VERTECO from using or disclosing any of the four items “until trial on the merits of this case.” Sipos and VERTECO have now appealed the summary judgment and injunction.

The remaining issues in the case were then presented to a jury in a three and a half week trial. The jury was asked to consider the confidential and proprietary |onature of thirteen other pieces of information to which Sipos may have had access after he left his employment with Frank’s and found that none of that information was confidential and proprietary. Regarding the information which was the subject of the prior summary judgment, the jury found that the products developed by Sipos and VERTECO were not substantially derived from Frank’s confidential and proprietary information, including specifically the CAD template and the design of a flush mounted spider with a universal profile. The jury also found that Frank’s suffered no damages as a result of Sipos’ breach of the confidentiality agreement. On the unfair trade practices claim and the trade secrets claim, the jury found in favor of Sipos and further found that those claims were pursued by Frank’s in bad faith. The trial court then rendered judgment in favor of the defendants and awarded attorney fees in the amount of $526,662.62, expert witness fees, and costs. Frank’s has appealed the judgment, alleging jury misconduct, the use of invalid evidence, and manifest error in the finding of bad faith and the denial of damages.

Our review of the voluminous record reveals no error in the judgments rendered below. The basic dispute in this case is whether Sipos, in his design of a new rotary spider, improperly and illegally relied on information that belonged exclusively to Frank’s. Frank’s contends that Sipos gathered a variety of information from the public domain only after Frank’s confronted him about breaching the confidentiality agreement by using and disclosing programs, drawings, calculations, and concepts he obtained or created while working for Frank’s. Sipos counters that argument by showing that his design is different from anything produced by Frank’s and is not derived from any particular source misappropriated from Frank’s. Rather, the new design is derived from his experience, general engineering principles, Dpublished patent applications, documents readily provided by colleagues in the oilfield engineering industry, and other public domain sources. Si-pos also states that some of the concepts Frank’s has accused Sipos of copying are detailed in brochures published by Frank’s for distribution to customers and the general public.

Frank’s urges this court to adopt pertinent federal court holdings such as Reingold v. Swiftships, Inc., 126 F.3d 645, 652-53 (5th Cir.1997), which stated “Protection will be accorded to a trade secret holder against disclosure or unauthorized use gained by improper means, even if others might have discovered the trade secret by legitimate means.” See also, Standard Brands, Inc. v. Zumpe, 264 F.Supp. 254 (E.D.La.1967). The evidence before us, however, reveals the fallacy of this argument as it pertains to this particular case: Frank’s failed to prove that anything actually relied upon by Sipos was a trade secret of Frank’s or otherwise confidential. While it is certainly true that Frank’s does in fact own proprietary information, in this case, Frank’s has been unable to show that any of that information was stolen by Si-pos and then used to design his new spider. Rather, Sipos, an experienced tool designer with specialized skill and knowledge who was referred to as the “Einstein of flush mounted spiders,” was able to show that the information he relied on was not only part of his own knowledge and skill, but was also available to the industry as a whole and, therefore, was not secret. The Standard Brands case actually highlights the public interest in “the reasonable mobility of such skilled persons from job to job in our fluid society ... [who] must be afforded a reasonable opportunity to change jobs without abandoning the ability to practice [their] skills.” 264 F.Supp. 254, 259.

| .^Therefore, Frank’s evidentiary arguments regarding improper, public domain “hindsight” information gathered after misappropriating the same information from Frank’s is simply untenable.

The jui’y rejected Frank’s claims that numerous pieces of information available to Sipos were confidential, and it also rejected the contention that certain information found to be confidential by the trial court was used by Sipos in his design of a new spider. Frank’s urges this court to find that jury misconduct led to these conclusions and requires reversal. The allegation of misconduct was addressed by the trial court, and nine members of the jury were deposed post-trial, as were other witnesses. The evidence showed that some jurors may have spoken briefly about the case prior to the start of deliberations, and the alternate juror may have heard these comments. Other alleged misconduct included one juror bringing a legal dictionary into the jury room and another presenting a “CAD” drawing he had done himself. The trial court thoroughly considered the testimony and determined that Frank’s was not deprived of a fair and impartial trial. A new trial was not warranted. We agree. As this court has previously held, “the burden falls upon the mover to prove that the level of behavior was of such a grievous nature as to preclude the impartial administration of justice.” Lavergne v. Family Dollar Stores, Inc., 97-1005 (La.App. 3 Cir. 2/4/98), 706 So.2d 1088. Frank’s did not meet its burden of proof on this issue.

Frank’s next contends the trial court erred in failing to award damages. The absence of damages was a factual determination by the jury. Knowing that the trial court had previously found Sipos breached the confidentiality agreement with regard to four pieces of information, the jury nevertheless found Frank’s had not suffered any damage or injury as a result of that breach. Indeed, a review of Frank’s economic | r,evidence supports that finding. Frank’s failed to show any damages related to the alleged misappropriation of information or specific concepts or designs. Instead, Frank’s attempted to show a loss of market share because VER-TE CO now makes flush mounted spiders, but the testimony included no market share analysis other than the admission that Frank’s market share had actually increased in recent months, as had its gross profits. Frank’s witnesses also admitted knowing that its other competitors now manufacture flush mounted spiders. Damages were properly denied.

We likewise find no merit to Frank’s dissension from the jury’s finding of bad faith. Both the Louisiana Unfair Trade Practices Act and the Uniform Trade Secrets Act provide for damages in the event a plaintiffs claims are found to have been brought in bad faith. Louisiana Revised Statutes 51:1409 authorizes an award of reasonable attorney fees and costs. Likewise, La.R.S. 51:1434 provides for reasonable attorney fees. Frank’s does not dispute the amount awarded to the defendants in this case. Rather, Frank’s contends any award is erroneous because the trial court’s prior summary judgment in its favor negates any finding of bad faith. To the contrary, the summary judgment was merely a determination that the confidentiality agreement had been breached in what was later found to be insignificant ways. The claims pursued by Frank’s in bad faith are alleged unfair trade practices and the alleged misappropriation of trade secrets. The totality of the evidence shows that Frank’s, a multimillion dollar company, intended to put Sipos out of business. The trade practice at issue was the engineering work in development by Sipos and his company. The trade secrets at issue mainly involved mathematical formulae, computer software, and concepts advertised freely by Frank’s. These claims went far beyond the contract issues decided by the trial court.

17Finally, we address the permanent injunction issued by the trial court. After trial on the merits, a permanent injunction “in conformity with the prior rulings of the Court, the verdict of the jury as to the questions presented to the jury, the law and the evidence” was issued, permanently enjoining the defendants from “using or disclosing any one or more of the ... four items of Frank’s Confidential and Proprietary Information” as found in the summary judgment. The injunction, though permanent, was “intended to remain in force until final termination of the suit” as stated by the trial court in reasons for judgment issued after the jury trial was concluded. Therefore, the constraints of the injunction will terminate after all appeal delays have run. We affirm that ruling and decline to expand or extend the injunction as requested by Frank’s.

Finally, considering the goals of efficient judicial administration discussed by this court in Fakier v. State of LA, Bd. of Sup’rs, 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, we decline to conduct a de novo review of the trial court’s ruling on summary judgment, as the ruling is moot given the limitations of the injunction and the conclusions reached by the fact finder after trial on the merits.

Finding no manifest error in the judgment rendered below, we affirm. Because both parties pursued separate appeals, costs are assessed equally to the defendants and the plaintiff.

AFFIRMED.

GENOVESE, J., concurs in the result.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Kendall Michael DELANEY, Appellant.
    No. 43,913-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.
    Louisiana Appellate Project by Annette Roach, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

_JjT'he defendant was convicted of Armed Robbery with a Firearm, and pursuant to an habitual offender bill of information, sentenced to 50 years at hard labor. His conviction was affirmed but the habitual offender proceedings were reversed and remanded for new proceedings in State v. Delaney, 42,990 (La.App. 2 Cir. 2/13/08), 975 So.2d 789. The defendant’s appellate counsel has filed a motion to withdraw, together with an Anders/Benjamin brief in support of the motion. The state has filed an appellate brief in this matter concurring that there are no non-frivolous issues to raise on appeal. This court notified the appellant on September 17, 2008 of the filing of the Anders/Benjamin brief and of his right to file a brief in this appeal within 30 days of its order. No brief was filed and the delays have now lapsed. The motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

This appeal addresses only the proceedings occurring after remand. On remand, the appellant admitted to being a habitual offender, and the trial court imposed a sentence of 50 years, only slightly in excess of the 49.5-year minimum mandated for a second felony offender convicted of armed robbery with the 5 years of jail time for a firearms enhancement time imposed concurrently with the 50-year sentence.

All other issues were addressed in the previous appeal, and because the sentence imposed is only slightly more than the mandatory minimum, there is no non-frivolous sentencing claim that can be made based on this record. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). The brief outlines the procedural history of the case. Defense counsel further verifies that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders; Mouton; and Benjamin, supra.

The motion to withdraw is granted and the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: DREW, J.

text:
    Kathleen COLON, Plaintiff-Appellee, v. Richard COLON, Defendant-Appellant.
    No. 43,956-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.

      Roland Virgil McNeely, III, for Appellant, Richard Colon.
    Onebane Law Firm by Frank H. Spru-iell, Jr. for Appellee, Richard Pool, Representative of the Succession of Kathleen, Pool Colon.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

| following the 2006 death of Kathleen Pool Colon, the executor of her estate sought a declaratory judgment that the decedent’s divorce from Richard Colon was legally valid. Richard reconvened, petitioning the court to declare his divorce from Kathleen a nullity. The trial, court denied him any relief, granting a motion for summary judgment in favor of the Executor of the Succession of Kathleen Colon and dismissing all of Richard’s claims. Richard appeals. We affirm.

CHRONOLOGY

11/15/1988 Richard and Kathleen married.

10/18/2005 Kathleen filed a C.C. art. 103 divorce petition against Richard, alleging that they separated 3/1/03 and had never reconciled, a period of time far in excess of 180 days.

10/18/2005 Richard accepted service by affidavit, waiving citation, service of process, legal delays, notice of trial, and appearance at trial.

12/14 or 15/2005 Kathleen executed an affidavit of non-reconciliation.

12/16/2005 The trial court signed a default judgment in favor of Kathleen, granting her a C.C. art. 103 divorce.

12/23/2005 The Caddo Clerk mailed notice of judgment to Kathleen’s lawyer, with the notation that Richard had waived notice. Notice of judgment to Richard was not required. La. C.C.P. art. 1701(B).

2006 Kathleen died.

Late 2006 Richard learned that he would not inherit from Kathleen, pursuant to La. C.C. art. 1608(5).

1/9/2007 Roland McKneely enrolled as counsel for Richard.

1/18/2007 Richard, through counsel, filed a motion for a new trial, asserting that he had not waived notice of judgment and that no notice had been sent to him by the clerk. Richard also further alleged that:

|.;(1) Kathleen had been manic-depressive and he believed her to have been noncompliant about taking medication;

(2) When he signed the waiver of notice of suit, he apparently had no reason to believe she lacked mental capacity to sue on that date;

(3) Only subsequent to the divorce did he learn that commitment proceedings had been filed against her during May of 2005;

(4) This constituted new evidence proving that Kathleen was mentally incompetent to sue for divorce;

(5) He could not have discovered this information with due diligence before the divorce judgment was signed;

(6) Kathleen was mentally incompetent to proceed with the divorce;

(7) He cared for Kathleen, paid her bills, and ran her errands up until her death, although they continued to live separate and apart; and

(8) He did not learn of the divorce judgment until after she died.

2/27/2007 The trial court signed a judgment denying Richard’s motion for a new trial because

(1) it was untimely under C.C.P. art.1974 and because

(2) Richard had waived the dilatory exception of lack of procedural capacity by failing to timely raise the exception prior to confirmation of the default judgment of divorce. La. C.C.P. art. 928.

3/7/2007 The executor of Kathleen’s succession sued Richard, seeking a declaration that the default judgment of divorce obtained by Kathleen was and is valid and legally enforceable.

3/22/2007 Richard reconvened, seeking a judgment declaring the default divorce judgment an absolute nullity because of lack of jurisdiction.

|a« 4/3/2008 The executor filed a motion for summary judgment, requesting that Richard’s demands to annul the judgment be dismissed, predicated upon Richard’s acquiescence in the granting of the divorce judgment.

5/1/2008 The trial court granted the executor’s motion for summary judgment, thereby dismissing all of Richard’s claims which had sought to have the divorce judgment declared a nullity.

5/1/2008 Notice of judgment was mailed by the Caddo Clerk of Court to counsel for both parties.

5/1/2008 Richard filed this appeal.

DISCUSSION

| .[Currently before this court for review is Richard’s appeal from the summary judgment dismissing with prejudice Richard’s demand to have the divorce judgment declared a nullity. In this appeal, Richard argued that his divorce from his deceased ex-wife was invalid because she was insane and never possessed the requisite intent to divorce. In addition, Richard argued that the default judgment was invalid because no competent evidence was entered to support the default judgment. These arguments are without merit.

|5A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hubbard v. AP3 Investments, LLC, 43,673 (La.App.2d Cir.11/19/08), 997 So.2d 882.

That Kathleen suffered from episodes of bipolar disorder which on occasion required hospitalization and for which she took medication is acknowledged by the parties. Her ex-husband’s view is that because she was hospitalized in the months prior to her divorce, she was insane and lacked the mental capacity to obtain a divorce. A competent major has procedural capacity to sue. La. C.C.P. art. 682. La. C.C.P. art. 684 states that a mental incompetent does not have procedural capacity to sue. Comment (c) of art. 684 provides:

(c) This article is declaratory of the prior procedural rules that a mental incompetent has no procedural capacity to sue; and the proper plaintiff to enforce the rights of a mental incompetent is the curator appointed after his interdiction.
Though a mental incompetent not interdicted has no procedural capacity to sue, if the defendant does not timely except thereto, the judgment rendered is not void, but only voidable. Cf. Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922). The defendant may protect himself in such a case by challenging the procedural capacity of the plaintiff through the timely filing of the dilatory exception. See Arts. 926 and 928, infra.

Richard accompanied his wife to her attorney’s office in December 2005 and, at her request, accepted service by affidavit and waived citation, | (¡service of process, legal delays, notice of trial, and appearance at trial. On December 14 or 15, Kathleen signed her affidavit of non-reconciliation in which she averred that she and her husband separated in 2003 and had not reconciled. The default judgment of divorce was signed on December 16, 2005.

According to the executor, Richard learned following his ex-wife’s death that he would not inherit from the decedent and informed the executor that he would seek to have the judgment declared a nullity. The executor for Kathleen’s succession sought a declaratory judgment that the divorce judgment was properly obtained. Richard responded with pleadings in which he sought to have the divorce judgment declared a nullity. The trial court properly rejected Richard’s demand.

Richard waived any complaint about Kathleen’s capacity to bring the suit when he did not object via a dilatory exception of lack of procedural capacity. La. C.C.P. art. 926(A)(6) and (B). The time for filing that exception was prior to the confirmation of a default judgment. La. C.C.P. art. 928. Moreover, a final judgment may not be annulled by a defendant who voluntarily acquiesced in the judgment and who was present in the parish at the time of its execution and did not seek to enjoin its enforcement. La. C.C.P. arts. 2002 and 2003.

Aside from the fact that the record does not show Kathleen to be insane, the cases cited by Richard for the proposition that separation cannot be voluntary if a spouse is insane are factually distinguishable. In Cory v. Cory, 395 So.2d 937 (La.App. 2d Cir.1981), writ denied, 399 So.2d 609 (La.1981), a wife who was reduced to an infantile state by brain deterioration was brought to Louisiana to be cared for by a sister who initiated interdiction proceedings. Prior to that, the husband cared for his wife in California, where the couple had resided for many years. This court found that under those particular circumstances, the husband had not abandoned his wife. In Ridell v. Hyver, 215 La. 358, 40 So.2d 785 (1949), the husband’s insanity did not bar a divorce. When the parties separated, the husband was sane. Eleven months later, he was hospitalized for mental illness, and years later was interdicted.

The executor correctly argued in brief that Richard was not assisted by reliance on Parker v. Parker, 95-1373 (La.App. 3d Cir.4/3/96), 671 So.2d 1143. The parties could not receive an immediate divorce under La. C.C. art. 103(1) on proof that they had been living separate and apart continuously for a period of six months or more on the date the petition was filed. The husband’s petition was filed only 3½ months after the parties separated. The Parker court concluded that the court did not have jurisdiction to grant a 103(1) divorce.

On the date of the divorce, December 16, 2005, Richard and his deceased ex-wife had been married for over 17 years and had continuously lived separate and apart for two years and nine months. Although Kathleen was hospitalized during that time, there is no proof that Kathleen lacked mental capacity. There is no evidence of interdiction and scant indication from the evidence in the record that Kathleen was so disabled by her bipolar illness that she did not intend to divorce her husband.

[ ^Although Richard engaged in detailed discovery, the only documentation opposing the executor’s motion for summary judgment was Richard’s own affidavit that Kathleen told him as he drove her home from her lawyer’s office that she had to divorce him because she was already married to a Christian singer. The psychiatrist who examined Kathleen’s medical records opined, based on Richard’s statement about Kathleen’s belief that she was married to another, that the decedent did not have the mental capacity to understand the nature of what she signed. Richard’s unsubstantiated and self-serving evidence did not support a denial of the summary judgment.

According to Richard, Kathleen was hospitalized because she failed to take her medicine and her condition deteriorated. Apparently, like many living with bipolar illness, she was treatable and functional if she took her drugs. Millions of people in this country have various mental ailments, including bipolar illness; relatively few are insane, requiring interdiction and the resultant loss of capacity to act for themselves. To accept Richard’s argument that the divorce judgment is a nullity would potentially jeopardize thousands of divorces in this state, if one of the parties had ever experienced mental problems.

Richard signed his waiver relative to the divorce, after being with Kathleen for almost two decades, which time period should have been more than sufficient for him to know her better than anyone else in the world. Certainly, he would have been aware of her mental foibles. His signature on |flthe waiver had legal implications and meaning, one of which was his agreement for Kathleen to proceed on the divorce.

Richard alleged that the trial court lacked jurisdiction. We disagree. The trial court was presented with two residents of Caddo Parish who had, though married, lived separate and apart without reconciliation for 2½ years, even though only 180 days was required. Kathleen prayed for the divorce, per La. C.C. arts.103(1) and 103.1(1)(a), and asked Richard to sign a waiver. Richard drove Kathleen to her lawyer’s office, he signed the affidavit, and he then drove Kathleen back to her home. During this time frame when he was in Kathleen’s physical presence, Richard would have been able to assess her intent to divorce him. Yet he still filed a general waiver of the proceedings, and for years did nothing to indicate his disinclination to divorce. Without question, the First Judicial District Court had jurisdiction to hear the case and grant the divorce.

Likewise, Richard’s complaint that the default judgment was invalidly entered without competent evidence is without merit. Richard’s assertion that Kathleen’s signed and dated affidavit of non-reconciliation is undated is belied by the document filed into the record. Obviously, the document was signed and notarized on December 14, 2005. The notary apparently erred in writing December 15 and then corrected the date by overwriting the number 14. Regardless of whether Kathleen signed on December 14 or 15, Richard accepted service and waived delays. This Imtie minim,is technical error certainly did not somehow void the propriety of the divorce decree, which was granted either one or two days after the signing of the contested affidavit. The trial court correctly signed the default judgment granting the La. C.C. art. 103 divorce.

Richard’s attorney presented detailed, industrious, and interesting arguments to the trial court and to this court. There is nothing in this record evidencing a flaw in the rendering of the default judgment. Thousands of divorces have been granted in this state, utilizing exactly the same documentation and procedure.

This court’s review of the summary judgment dismissing Richard’s attack on the divorce judgment was all that was properly before this court. Richard sought to undo exactly what he facilitated and accepted years ago. The executor was entitled to the summary judgment dismissing Richard’s efforts to nullify the divorce judgment.

DECREE

At the cost of appellant, Richard Colon, the judgment is AFFIRMED.

      . If he entertained any doubts relative to her capacity to seek a divorce, he kept these thoughts to himself,

      . The 30-month physical separation, without reconciliation, is not disputed.

      . This would satisfy the requirements of Adams v. Adams, 408 So.2d 1322 (La.1982).