author: HUGHES, J.

text:
    Joe POLKEY v. LANDWORKS, INC. and Luba Casualty Insurance Company.
    No. 2010 CA 0718.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Rehearing Denied July 29, 2011.

      Laurie W. Maschek, Slidell, LA, for Claimant/Appellee Joe Polkey.
    Stephen W. Brooks, Jr., Richard J. Voelker, Covington, LA, for Defendants/Appellants Landworks, Inc. and LUBA Casualty Insurance Company.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

| ¡¡.This is an appeal from a judgment of the Office of Workers’ Compensation (“OWC”), awarding temporary total disability benefits. For the reasons that follow, we amend, and affirm as amended.

FACTS AND PROCEDURAL , HISTORY

On January 20, 2009 Joe Polkey, while in the course and scope of his work as an employee of Landworks, Inc. (“Land-works”) in Franklinton, Louisiana, allegedly sustained injury to his left knee when a stack of tires fell, knocking him to the ground. Landworks refused to pay workers’ compensation benefits. Thereafter, on March 17, 2009 Mr. Polkey filed a “Disputed Claim for Compensation” with the OWC, seeking to collect workers’ compensation benefits, penalties, and attorney fees from his employer, Landworks, and his employer’s insurer, LUBA Casualty Insurance Company (“LUBA”).

Following a hearing before the OWC, the defendants were ordered to provide follow-up medical treatment to Mr. Polkey, and he was further awarded: temporary total disability benefits from the date of his injury through August 7, 2009 (the date he became employed elsewhere), amounting to $6,083.04; a $2,000.00 penalty for the defendants’ failure to pay medical benefits; a $2,000.00 penalty for the defendants’ failure to pay indemnity benefits; attorney fees in the amount of $10,700.00; employee’s costs in the amount of $445.00; and judicial interest from the date of demand. Defendants have appealed this judgment and make the following assignments of error:

|sl. The Workers’ Compensation Judge committed manifest error in concluding that [Mr.] Polkey sustained his burden of proving an accident arising out of and in the course of his employment with Landworks, Inc. on January 20, 2009.
2. The Workers[’] Compensation Judge abused her discretion in not allowing proffered, relevant evidence, or in not granting a continuance to secure the testimony of a witness who was under subpoena, but did not appear at trial.
3. The Workers[’] Compensation Judge abused her discretion in not strictly construing the penalty provisions of the Louisiana Workers!’] Compensation Act and imposing penalties and attorney’s fees.

LAW AND ANALYSIS

OWC Finding of Compensable Injury

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. See LSA-R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature, and must establish that the accident was employment-related, the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Construction, 2001-0077, p. 2 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851.

As in other cases, in reviewing the OWC judge’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Lafleur v. Alec Electric, 2004-0003, p. 4 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 478, writs denied, 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003-2447, p. 4 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, 79, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, an appellate court may only 14reverse an OWC judge’s factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., 617 So.2d at 883. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfin-der, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Lafleur v. Alec Electric, 2004-0003 at p. 4, 898 So.2d at 478.

In this case, the defendants/appellants contend that the alleged accident was uncorroborated and that evidence presented before the OWC discredited Mr. Polkey and cast doubt on his claim. Defendants/appellants further assert that the alleged accident was contrived by the claimant because he was angry about being accused of theft in the workplace.

Following the conclusion of the trial in this matter, the OWC judge gave oral reasons for ruling in favor of Mr. Polkey, stating in pertinent part:

I’ve had the opportunity to listen to all the witnesses, both Mr. Polkey and the witnesses for Landworks. Right off the bat[,] I just want to say Mr. Polkey came across to me as a very credible witness. I didn’t see any real glaring inconsistencies with the description of the accident with the way it happened and the way the witnesses corroborated the incident on January 20th of 2009.
| ¿The first thing I wanted to start off with is I think there was a lot put on the fact that Mr. Polkey allegedly gave notice of some sort that he had quit or that he was going to give his two-week notice. He’s testified that he gave his two-week notice and he was intending to continue working for the rest of those two weeks.
Miss Emma, who testified today, actually corroborated that. She said that he had given his two-week notice that morning. And the more interesting thing was she testified about the phone call Mr. Polkey allegedly got from Detective Stubbs, and Miss Emma’s testimony was she said that Mr. Polkey said he had to take tomorrow evening off to meet with the sheriff.
So, in other words, that to me corroborates the fact that whether or not he told somebody, I quit, it’s more probable to me that he did tell Miss Emma, I’m giving my two-week notice, because otherwise he wouldn’t have a reason to say as far as my workday tomorrow is concerned, I’m going to have to take the evening off to meet with the sheriff. His timesheet shows that he worked that day. Apparently Miss Emma filled out that he had worked from 8 to 11 and then wrote “got hurt” on it.
The other thing, too, is, I mean, as far as just from a legal standpoint, the only thing I can really compare it to is if I resigned today and I gave my two-week notice, if I walk back to my office and trip and fall or hurt my back, I’m still entitled to Workers’ [Compensation] benefits.
Now, when I’m released to work eventually by my physician, I may not be entitled to any indemnity because I’ve already intended to resign and I wasn’t intending to go back to that job. But I think for all our purposes today just based on all the testimony I heard, it appears to me that Mr. Polkey did indicate to Miss Emma that he was giving his two-week notice. He was intending to actually be at work the next day but had to meet with the sheriff.
So for those reasons, you know, I don’t really give a lot of credibility to any defense based on the fact that he had told somebody he quit and then he got hurt after that. All the evidence indicates he was on the clock that day.
As far as the incident itself, Mr. Pol-key obviously didn’t have any witnesses to the incident. I’m solely going on his testimony. I’m entitled to rely on that testimony provided that it’s corroborated by the circumstances after the accident and nothing discredits it. You know, other evidence or other witnesses.
In this case, the actual incident of tires falling on him and knocking him to the ground and landing on the outside of his knee was corroborated by his — or he testified that he had water and [leaf] debris of some sort on him. That was actually corroborated by Mr. Raymond Miller and Mr. Barber who indicated that when they came upon the scene shortly after that, his pants were wet and he had said he had had an incident and he hurt his knee.
| fiIt’s also corroborated by the Riverside [Medical Center] records which indicate when he presented over there, he said that a pile of tires fell against the outside of his leg and then he had a small joint effusion on his leg. So there is objective evidence in this case, you know, to corroborate his version of the events.
... I think Mr. Polkey was a credible witness. And I guess in general, I think all of the defense witnesses were credible, too. It just turned into one of these situations where pretty much all of the testimony that I heard actually corroborated a lot of the aspects of Mr. Polkey’s claim.
As far as any attacks on his credibility, I think a lot was made of these post-hire questionnaires. If you’re looking at it from a 1208.1 aspect as far as, you know, did he make misrepresentations on the post-hire questionnaire that he filled out for Landworks, I don’t think I can make a finding of that sort given that Dee Myers testified that [the] post-hire questionnaire was a different one from the one that was originally filled out and she testified that his personnel file was missing the original post-hire questionnaire. So, you know, as far as that goes, I don’t know what was on any original post-hire questionnaire.
As far as the other post-hire questionnaires being used to impeach, I guess it just got to a point where I kept hearing over and over again the questioning about these prior accidents or incidents either job related or not job related. At the end of the day, there weren’t any that [were], in my opinion, serious. Nothing that required like an extensive hospitalization, no surgeries, anything like that.
I guess, you know, I can believe his testimony when he says, you know, I didn’t fill it out truthfully for those other employers because I was just afraid I wouldn’t get offered the job. I don’t think that’s sufficient to defeat any of his testimony regarding this incident. I don’t think the two really have a lot to do with each other mainly given the fact that they all seem like minor injuries.
He told the investigator Mr. Hillman about all the incidents except for the Wal-Mart incident with his ankle. You know, it’s clear from the statement he told him about the incident with the pumpkin at Fresh Market, the incident with his nose at Rouse’s, his non-work-related broken toe, his finger injury at the tree cutting service, and the car accident which he settled.
Again, I mean, I think there was much that was trying to be made of these incidents not being disclosed on post-hire questionnaires. My problem with it is it did nothing to impeach his credibility as far as this particular claim goes. He met with the investigator just nine days after the incident and he told him everything. So that line of questioning I guess really didn’t go anywhere for me.
|7Now, he did have the one visit with Dr. Chandler. I think Dr. Chandler actually even mentioned that he had some minimal swelling even on the date of that visit which was the 23rd.
After that point, it seems like based on all this other attention that was being given to the sweatshirt incident and this alleged missing money and the fact that he had given his two-week notice before the incident happened, I think maybe in this case the adjuster just probably lost sight of the big picture which was you’ve got an incident reported promptly immediately, you’ve got corroboration of that incident, but all this other extraneous business about the theft or alleged theft 1 think probably clouded the adjuster’s judgment on this one.
And obviously we’ve heard the testimony that Mr. Polkey wasn’t even working the day that the package was delivered with the allegedly missing sweatshirt....
And Mr. Hillman testified that his summary about the statement he took was actually inaccurate. If you read the summary and you actually read the body of the statement, it is inaccurate in some respects.
The testimony to me indicates that Landworks didn’t have light duty, you know, at the time he’s ready or at least attempting to go back to work at Land-works on a ... light-duty job. He’s being told that there is nothing for him to do light duty and that was essentially the end of it. You know, based on that fact scenario, you know, to me that’s a denial of returning him back to work in any capacity.
So I find that he’s met his burden by clear and convincing evidence that he’s entitled to temporary total disability benefits from the date of accident January 20, 2009, until — based on the Albert-son’s information — August 7th of 2009. And obviously he’s entitled to return to treatment with Dr. Chandler.
:¡: * ⅜
And as far as penalties and attorney fees, again, I do have to say there were a lot of things, you know, the incident with the sweatshirt and the incident with the alleged missing money and, you know, his giving them the two-week notice before the incident happened, again, I think this probably would have turned out to be a very simple claim. It may even have turned out to be a situation where he received some minimal conservative treatment and was good to go back at some type of job which would have cost a whole lot less than it’s already cost.
I don’t find that the adjuster’s denial in this situation was reasonable on any level. I think all this extraneous stuff not related to the work injury, again, kind of clouded the judgment on this one. So for those reasons, I find that the claim was not reasonably controverted.

| sAfter a thorough review of the record presented on appeal, we conclude that there was a reasonable factual basis presented for the OWC judge’s factual finding that Mr. Polkey sustained a work-related injury to his left leg on January 20, 2009, during his employment at Land-works. Notably, Mr. Polkey reported the injury to his employer immediately after its occurrence, demonstrated severe pain in his left knee to his co-workers, and received their assistance in seeking emergency medical care. Further, objective evidence of injury was documented by Mr. Polkey’s medical providers.

With respect to the defendants/appellants’ contention that Mr. Polkey “was angry about his being accused of theft” and in order to “strike back at his employer ... stage[d] an accident only hours later,” we cannot say the OWC judge was clearly wrong in rejecting this assertion. Although accusations had been made against Mr. Polkey concerning the alleged theft of the package containing the co-worker’s sweatshirt and missing petty cash, these allegations were not proven. The testimony reflected that Mr. Polkey was not working on the day the sweatshirt was delivered and that other employees had access to the petty cash.

We also find no error in the OWC judge’s finding that the evidence of Mr. Polkey’s failure to fully list all of his prior injuries on post-hire questionnaires was insufficient to defeat his credible testimony regarding the injury at Landworks. The judge emphasized that all of the prior injuries were relatively minor, in that no extensive medical treatment was required, and that she believed Mr. Polkey when he testified that he did not list these | ninjuries on post-hire questionnaires because he was afraid he would not get the job(s). Moreover, we note that Mr. Polkey did fully disclose these prior injuries to the defendants’ investigator, Justin Hillman, on January 29, 2009, nine days after the accident at issue herein; and, that none of the prior injuries were to Mr. Polkey’s left knee.

Defendants also argue on appeal that disability sufficient to warrant a finding of temporary total disability was not established. Defendants nevertheless acknowledge that Mr. Polkey was diagnosed with a left knee sprain and possible medial collateral ligament sprain and/or medial meniscus tear, and that he was placed on light duty, instructed to wear a brace, and bear weight on his leg as tolerated. It is also not disputed that after receipt of Mr. Hillman’s report, referenced hereinabove, the defendants informed Mr. Polkey that light-duty work was not available at Land-works.

We agree with the defendants/appellants to the extent that because Mr. Polkey was able to perform light-duty work, it cannot be said that he was totally disabled within the meaning of LSA-R.S. 23:1221(l)(c). Section 1221(l)(c) provides that compensation for temporary total disability shall be awarded only if the employee proves by dear and convincing evidence, |inunaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Although entitlement to temporary total disability was not established, the record on appeal nevertheless supports an award of supplemental earnings benefits. Under the provisions of LSA-R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn wages equal to ninety percent or more of his average monthly pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Seal v. Gaylord Container Corporation, 97-0688, p. 8 (La.12/02/97), 704 So.2d 1161, 1166.

Once the employee’s burden is met, the burden shifts to the employer, who, in order to defeat the employee’s claim for supplemental earnings benefits, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the Inemployer’s community or reasonable geographic region. Seal v. Gaylord Container Corporation, 97-0688 at p. 8, 704 So.2d at 1166. See also Hayes v. Louisiana State Penitentiary, 2006-0558, pp. 12-13 (La.App. 1 Cir. 8/15/07), 970 So.2d 547, 558, writ denied, 2007-2258 (La.1/25/08), 978 So.2d 758.

The OWC judge in this case determined that the injury to Mr. Polkey, sustained during his employment with Landworks, resulted in his inability to earn the wages that he earned prior to the accident at issue. We are unable to say the OWC judge manifestly erred in that determination. Likewise, the record supports a finding that Mr. Polkey was unable to earn ninety percent of his pre-accident wages. His physician assigned him to light duty, but there was no light-duty work available at Landworks. Mr. Polkey did not become employed again until August 2009, when he obtained a job with Albertson’s. Further, Landworks failed to provide Mr. Pol-key with the medical treatment necessary for him to obtain resolution of his knee injury. Thus, we conclude that Mr. Pol-key sustained his burden of establishing a right to supplemental earning benefits, which was uncontradicted by any evidence submitted on behalf of Landworks that would show light-duty |12work was otherwise available to Mr. Polkey within the community or reasonable geographic region.

Although we find supplemental earnings benefits were owed rather than temporary total disability benefits, no amendment to the amount of indemnity benefits awarded by the OWC is necessary, since, during the period of time for which the benefits were awarded, it was not established that Mr. Polkey earned any wages. The amount of an award of supplemental earnings benefits is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. Seal v. Gaylord Container Corporation, 97-0688 at p. 8, 704 So.2d at 1166. Therefore, Mr. Polkey was entitled to the full weekly workers’ compensation benefit amount, as awarded by the OWC.

Refusal to Admit Video Evidence or Order Continuance

Defendants/appellants next contend that the OWC judge erred in refusing to admit a video taken by an investigator allegedly showing Mr. Polkey engaged in assisting in the erection of a tent or canopy, even though the investigator in question failed to comply with his subpoena to appear at the trial of this matter, or to allow a continuance of the trial in order to secure the testimony of the investigator.

On the issue of video surveillance, the supreme court has stated that evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject; they do not show rest periods and do not reflect whether the subject is suffering pain during or after the activity. Orgeron v. Tri State Road Boring, Inc., 434 So.2d 65, 68 (La.1988). Though surveillance video evidence can be admissible in a workers’ compensation proceeding, at the discretion of the OWC judge, when the proponent of such evidence fails to | ^establish a proper foundation, and particularly when no witness is present to authenticate such evidence, an OWC judge’s refusal to admit such evidence is not error. See Rareshide v. Mobil Oil Corporation, 97-1376, pp. 16-17 (La.App. 4 Cir. 4/22/98), 719 So.2d 494, 503-4, writ denied, 98-1595 (La.10/9/98), 726 So.2d 28. In the instant case, the investigator who made the surveillance video, Warren Martin, was not available on the day of trial to authenticate the video evidence; therefore, we find no error in the refusal of the OWC judge to admit the evidence.

Defendants/appellants further contend it was error for the OWC judge to deny their motion for a continuance, requested in accordance with LSA-C.C.P. art. 1602, for the purpose of procuring the attendance of Mr. Martin to the trial. Louisiana Code of Civil Procedure Article 1602 provides:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

(Emphasis added.)

In order to be entitled to a continuance, the moving party has the burden of showing that he met the requisites set forth in Article 1602. Taking these factors into account, the trial judge must consider the particular facts in each case in deciding whether to grant or deny a continuance. Furthermore, the trial court should also consider the effect a continuance would have on the administration of justice. See Taylor v. Sauls, 99-1436, pp. 5-6 (La.App. 3 Cir. 9/6/00), 772 So.2d 686, 690, writs denied, 2000-2802, 2000-2805 (La.12/8/00), 776 So.2d 461.

After an in camera inspection of the surveillance evidence submitted on proffer to the OWC, this court concludes the OWC did not abuse its Indiscretion to deny a continuance to the defendants/appellants. At most the evidence would show: that on or about June 19, 2009, a man, who may have been Mr. Polkey, walked about a yard while talking on a cell phone without the aid of crutches or a knee brace for about two minutes; that on or about June 20, 2009, the same man, in two separate one to two minute video clips, was again walking around a yard; that he then in a third thirty second video clip walked to a truck, opened the passenger door, bent from the waist to pick up a small object that had fallen from the truck, and then got into the truck; and, that later that day, in four separate one to two minute video clips the same man assisted two other men to assemble an outdoor canopy, which was supported by what appeared to be PVC poles approximately four inches in diameter, and that during this activity the subject man walked around, used his arms to hold and manipulate the poles, bent from the waist about four times, and appeared to kneel for a few seconds to adjust a canopy tie onto a pole. Considering the fact that these video clips were taken some five months after the accident at issue and that Mr. Polkey did not deny being able to walk without assistance (other than immediately following the accident) or being able to lift objects, and based on the other evidence contained in the record, this video evidence would not have been sufficient to impeach Mr. Polkey’s claim of a knee injury in this case. Therefore, we are unable to say that the OWC judge erred in refusing to grant a continuance to allow defendants/appellants additional time to compel attendance of the investigator who made the surveillance videos.

11 ^Imposition of Penalties

Pursuant to LSA-R.S. 28:1201(F), when an employer fails to commence payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely, both penalties and attorney fees are recoverable unless the claims are reasonably controverted. A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Zavala v. St. Joe Brick Works, 2007-2217, p. 9 (La.App. 1 Cir. 10/31/08), 999 So.2d 13, 20-21, writ denied, 2008-2827 (La.1/30/09), 999 So.2d 762. See also Joseph v. J.E. Merit Constructors, Inc., 2001-1666, p. 9 (La.App. 1 Cir. 6/21/02), 822 So.2d 72, 77-78, writ denied, 2002-2295 (La.4/4/03), 840 So.2d 1201.

In the instant case, the OWC judge found that the defendants had no reasonable basis to controvert Mr. Pol-key’s claim and that he was therefore Identified to penalties and attorney fees. We find no abuse of discretion in this ruling.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is amended to reflect that supplemental earnings benefits were awarded to Joe Polkey rather than temporary total disability benefits; we affirm the judgment in favor of Joe Polkey, as amended. All costs of this appeal are to be borne by defendants/appellants, Landworks, Inc. and LUBA Casualty Insurance Company.

AMENDED; AFFIRMED AS AMENDED.

      . Although Creel Brothers, Inc. ("Creel”) was originally named as Mr. Polkey's employer in his March 17, 2009 claim for workers' compensation, Mr. Polkey amended his claim on April 27, 2009, to substitute Landworks for Creel as the proper employer.

      . Before the OWC, the defendants presented testimony that Mr, Polkey was suspected of theft in the workplace, both from his employer (of cash fees paid by customers) and from a co-worker (who claimed to have had a package containing an "IRONMAN” sweatshirt delivered to the workplace that he did not receive); and, that he had not disclosed prior injuries on post-hire questionnaires submitted to the defendant/employer, as well as to other employers. Defendants/appellants further point to the fact that just prior to the accident, Mr. Polkey had informed his employer that he was tendering his two-week notice of resignation, as further casting suspicion on the veracity of his subsequent claim of accidental injury.

      . The testimony further revealed that the only reason Mr. Polkey was suspected with respect to the missing petty cash was that he was "newly hired;” however, he was not the only one under suspicion. Further, the testimony revealed that the cash was required by company policy to be kept in a locked box, but the policy was not being followed during the time the cash went missing.

      . We note the discrepancy between a letter prepared by Mr. Hillman, which summarized the content of the verbal interview and indicated that Mr. Polkey disclosed to him only one prior work-related injury, and the transcript of this interview, which clearly showed that Mr. Polkey made a full disclosure of his prior injuries.

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

      . We note that it is the employer who bears the burden of proving job availability and the claimant’s post-injury earning capacity, and the employer cannot shift this burden to the employee by pointing to his lack of effort in seeking post-injury employment. In any case, as noted above, an employer can discharge its burden by establishing the existence of a job within claimant's physical capabilities and within claimant’s or the employer’s community or reasonable geographic region, the amount of wages that an employee with claimant’s experience and training can expect to earn in that job, and an actual position available for that particular job at the time that the claimant received notification of the job’s existence. All of this can be proven without the cooperation or participation of the employee. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 12 n. 5 (La.7/1/97), 696 So.2d 551, 558 n. 5.

      . Mr. Polkey testified that he continued to suffer with the injury to his leg, which included intermittent pain, having a "rubbing” feeling in his knee, having his knee "give out” on a regular basis, and necessitating his continued use of Aleve and a knee brace. Mr. Polkey explained that he was unable to afford further medical treatment when the defendants refused to pay his medical bills, but he expressed the desire to return for medical treatments if the OWC would reinstate his medical benefits, because of continuing knee problems through the date of trial.

      . Louisiana Revised Statute 23:1201(F) provides, in pertinent part:
      Failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day. penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
      (1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

      . During oral arguments in this case, counsel for Mr. Polkey requested an additional sum of attorney fees for representation of the claimant in this appeal. However, an appellee who wishes to have a judgment modified, revised, or reversed must file an answer to an appeal in accordance with LSA-C.C.P. art. 2133. See LSA-C.C.P. art. 2133, Comment (a). See also Starr v. Boudreaux, 2007-0652, p. 11 (La.App. 1 Cir. 12/21/07), 978 So.2d 384, 392.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Melvin VERNELL, Jr.
    No. 2010 KA 0990.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Rehearing Denied Aug. 5, 2011.

      Hillar C. Moore, III, District Attorney, Charles Grey, Jaclyn C. Chapman, Assistant District Attorneys Baton Rouge, LA, for appellant State of Louisiana.
    James P. Manasseh, André Bélanger, Baton Rouge, LA, and Lewis 0. Unglesby, Baton Rouge, LA, for defendant/appellee Melvin Vernell, Jr.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

| ¡.The defendant, Melvin Vernell, Jr., was charged by bill of information with attempted second degree murder (count one), illegal use of weapons or dangerous instrumentalities (count two), aggravated assault with a firearm (counts three and four), and possession of a firearm or carrying a concealed weapon by a convicted felon (count nine), violations of LSA-R.S. 14:27, LSA-R.S. 14:30.1, LSA-R.S. 14:94, LSA-R.S. 14:37.4, and LSA-R.S. 14:95.1. The defendant entered a plea of not guilty and later filed a motion to quash. The trial court granted the defendant’s motion to quash as to counts one and two. The State now appeals, assigning error to the trial court’s partial granting of the motion to quash. For the following reasons, we deny the defendant’s motion to strike, reverse the ruling of the trial court, and remand for further proceedings.

STATEMENT OF FACTS

The facts of the underlying offenses have not been fully established and are not pertinent to the issue in this appeal. According to the bill of information, on or about July 4, 2005, the defendant attempted to murder Bruce Moore, intentionally discharged a firearm in a place where it was foreseeable that it might have resulted in death or great bodily harm to a human being, assaulted Bruce Moore and Demond Gaines with a dangerous weapon, and possessed a firearm and/or carried a concealed weapon after having been convicted of illegal use of a weapon.

The original bill of information instituting charges based on these facts was filed on September 16, 2005 and charged the defendant with |3attempted second degree murder and illegal use of weapons or dangerous instrumentalities. On February 3, 2006 the victims advised the district attorney’s office that they did not want to pursue the charges and requested that the case be dismissed. The victims executed affidavits stating that restitution had been made and that they would not testify against the defendants at trial. The State dismissed the prosecution on September 18, 2006. On May 6, 2009 the charges in the original bill were reinstituted in this case by a new bill of information as to counts one and two, along with new charges as listed above based on the same set of facts. The motion to quash was filed on November 10, 2009. The motion hearing was held on January 27, 2010, and the trial court took the matter under advisement. On March 8, 2010 the trial court granted the motion to quash as to counts one and two, finding that the time limitation for the commencement of trial had expired as to those reinstituted charges.

MOTION TO STRIKE

On appeal, the defendant has filed a “Motion to Strike Appellant’s ‘Statement of Facts,’ ” in which he contends that certain statements of fact and procedural history recited in the State’s appellate brief should be stricken on the grounds that “(1) they are untrue, and (2) they are based on highly inaccurate and self-serving documents which were never admitted into evidence and never made part of the record, and never will be.” In opposition to the motion, the State contends that since this case is in the pre-trial phase and the asserted facts have yet to be decided, it is entitled to present a factual synopsis and that the police reports, forming the basis of its synopsis, are contained in the record. Furthermore, the State points out that the defendant, in his appellate brief, based his recitation of the facts on a video recording, which is not contained in the record. This court’s review of |4the record reveals that the statements made in the State’s appellate brief are in accord with the warrant and police reports contained in the record presented on appeal, while the video tape referenced in the defendant’s brief as supporting his version of the facts is not contained in the record. Nevertheless, as we have stated hereinabove, the facts of the underlying offenses are not pertinent to the issue before this court on appeal; therefore, we deny the defendant’s motion to strike portions of the State’s appellate brief.

ASSIGNMENT OF ERROR

In the sole assignment of error, the State relies on LSA-C.Cr.P. art. 576 in arguing that the original charges were instituted timely. The State notes that the charges herein were dismissed before any witness was sworn at trial. The State contends that the charges were dismissed because the victims refused to testify or cooperate, not to circumvent trial commencement delays. In support of this contention, the State notes that the victims indicated their refusal to testify by affidavit, and the charges were dismissed one year before the two-year time limitation for commencement of trial expired. Finally, the State contends that the two-year time limitation contained in LSA-C.Cr.P. art. 578 does not run from the filing of the original prosecution if that prosecution is properly dismissed and reinstituted. The State concludes that the trial court erred in partially granting the defendant’s motion to quash and that the ruling must be reversed.

A trial court’s ruling on a motion to quash should not generally be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 2002-2698, pp. 5-6 (La.App. 1 Cir.6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094, p. 3 (La.7/6/00), 766 So.2d 501, 504. In this case the trial court’s ruling on the motion to quash is based on a legal finding and is, therefore, subject to de novo review.

Louisiana Code of Criminal Procedure Article 578(A)(2) requires that trial of a non-capital felony be commenced within two years from the date of institution of the prosecution. “Institution of prosecution” includes the finding of an indictment, or, as in this case, the filing of a bill of information, which is designed to serve as the basis of a trial. LSA-C.Cr.P. art. 934(7); State v. Cotton, 2001-1781, p. 4 (La.App. 1 Cir.5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La.12/13/02), 831 So.2d 982.

Article 691 of the Louisiana Code of Criminal Procedure confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. Louisiana Code of Criminal Procedure Article 693 expressly provides, subject to narrowly delineated exceptions, that dismissal of a prosecution is not a bar to a subsequent prosecution. Louisiana Code of Criminal Procedure Article 576 provides:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

[Emphasis added.]

|fiLouisiana Code of Criminal Procedure Article 572, contained within the same chapter as Article 576, provides the time limitations for the institution of prosecution for non-capital offenses as six years after the offense has been committed for a felony necessarily punishable by imprisonment at hard labor and four years for a felony not necessarily punishable by imprisonment at hard labor.

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinsti-tuted charges should be decided on a case-by-case basis. State v. Love, 2000-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Love, 2000-3347 at p. 14, 847 So.2d at 1209.

Herein, the defendant’s motion to quash noted that more than two years had elapsed since the date the original prosecution was instituted and that the charges were dismissed by the State without any evidence of the defendant’s consent. The motion to quash concluded that the reinsti-tution was untimely, in violation of LSA-C.Cr.P. art. 578, as trial was not commenced within two years of the filing of the original prosecution. At the hearing on the motion to quash, the State argued, in part, that the charges were properly reinstituted pursuant to LSA-C.Cr.P. art. 576. In granting the motion to quash as to counts one and two, the trial court concluded the State 17failed to bring the charges to trial within the two-year time limitation and noted that there was no statutory reason for dismissing the charges. The trial court specifically stated, “[T]hey reinstituted the charges some, what, I don’t know, three years later or whatever it was, and there was nothing that gave them a new time to start, if that makes any sense.”

Based on the following analysis, we disagree with the trial court. The effect of a dismissal, or nolle prosequi, is to discharge the particular indictment, bill of information, or affidavit; however, it does not necessarily bar further prosecution if it was entered before the first witness was sworn. State v. Norwood, 351 So.2d 122, 124 (La.1977). See also LSA-C.Cr.P. arts. 576, 691, and 693. The second paragraph of Article 576 does not create a presumption that a prosecution has been dismissed in order to circumvent the time limitations for commencement of trial. State v. Hearin, 409 So.2d 577, 578 (La.1982). Rather, the second paragraph of Article 576 would preclude a new prosecution unless the State shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578. In this case, there is no evidence that the district attorney was avoiding the time limitation for commencement of trial or was flaunting his authority at the expense of the defendant. Instead, the record indicates a nolle prosequi was entered because the victims stated in their affidavits that: restitution had been made, they were “not interested in pursuing the criminal charges,” they would “not testify against the defendants at trial,” and they wished to dismiss or nolle prosequi the charges. Further, the charges were dismissed only twelve months after the institution of the original prosecution. There is no need to show that the defendant consented to the dismissal since there was no commencement of trial or swearing in of a witness prior to the dismissal of the original [¿prosecution. We find that the reinstitution of prosecution on the attempted second degree murder and illegal use of a weapon or dangerous instrumentality charges, though made after six months from the original dismissal, was timely under the limitations set forth in LSA-C.Cr.P. art. 572, as the prosecution was reinstituted on May 6, 2009, less than four years after the July 4, 2005 commission of the offenses.

In non-capital felony cases, the State has two years from the reinstitution of prosecution to commence trial, barring any interruption or suspension of the time delay. See Hearin, 409 So.2d at 578-79 (where the State’s re-indictment was not for the purpose of avoiding the time limitation established by Article 578, the new prosecution was found timely though instituted after the time limitations for corn-mencement of trial had elapsed but within the time limitations for a new prosecution provided by Article 576); State v. Van Dyke, 2003-437, pp. 6-8 (La.App. 3 Cir. 10/1/03), 856 So.2d 187, 192-93, writ denied, 2003-2777 (La.2/13/04), 867 So.2d 689; State v. Barley, 29,482, pp. 2-4 (La. App. 2 Cir. 6/18/97), 698 So.2d 36, 38-39. As previously stated, the effect of a dismissal, or nolle prosequi, is to discharge the particular indictment, bill of information, or affidavit. The two-year time limitation for commencement of trial cannot continue to run under a prosecution that no longer exists. Rather, this time period began to run anew with the filing of a new bill of information. See Van Dyke, 2003-437 at pp. 7-8, 856 So.2d at 193. Thus, the trial court erred in calculating |9the time delay for commencement of trial from the date of the original, discharged bill of information.

We find that the 2009 reinstitution of prosecution for the 2005 offenses was timely, as it was not in violation of Article 572 and was not precluded by Article 576. As noted, the charges were timely reinstituted on May 6, 2009 and the motion to quash was filed on November 10, 2009. Clearly, the two-year time limitation for the commencement of the defendant’s trial had not lapsed. The trial court erred in partially granting the motion to quash on this basis. Thus, we reverse the trial court’s order quashing the reinstituted charges in counts one and two, and the case is remanded for further proceedings.

MOTION TO STRIKE DENIED; RULING ON THE MOTION TO QUASH REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

GUIDRY, J., concurs.

      . The bill of information also contained several charges against co-defendant Marcus D. Roach. Counts five through eight pertained exclusively to Roach. The State has appealed as to the co-defendant on the same basis as the instant case. See State v. Roach, 2010-0991 (La.App. 1 Cir. 12/22/10), 68 So.3d 558.

      . A motion to quash is the proper vehicle to assert that the time limitation for the institution of prosecution or commencement of trial has expired. LSA-C.Cr.P. arts. 531 and 532(7).

      . The defendant does not argue that his speedy trial rights were asserted and violated.

      . Attempted second degree murder is necessarily punishable by hard labor and thus prosecution must be instituted within six years of the date of commission. Illegal use of a weapon or dangerous instrumentality is punishable by imprisonment with or without hard labor requiring institution within four years of commission, but necessarily punishable at hard labor if committed during the commission or attempted commission of a crime of violence or violation of the Uniform Controlled Dangerous Substances Law and requiring institution within six years of its commission. LSA-R.S. 14:27(D)(l)(a); LSA-R.S. 14:30.1(B); LSA-R.S. 14:94(B), (E), or (F); and LSA-C.Cr.P. art. 572(A)(1) and (2).


text:
    STATE of Louisiana v. Marcus D. ROACH.
    No. 2010 KA 0991.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Rehearing Denied Aug. 5, 2011.

      Hillar C. Moore, III, District Attorney, Charles Grey, Jaclyn C. Chapman, Assistant District Attorneys, Baton Rouge, LA, for Appellant State of Louisiana.
    James P. Manasseh, André Bélanger, Baton Rouge, LA, and Lewis O. Unglesby, Baton Rouge, LA, for Defendant/Appellee Marcus D. Roach.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

hThe defendant, Marcus D. Roach, was charged by bill of information with attempted second degree murder (count one), illegal use of weapons or dangerous instrumentalities (count two), aggravated assault with a firearm (counts three and four), possession of a firearm/earrying a concealed weapon by a convicted felon (counts five and six), aggravated battery (count seven), and armed robbery (count eight), violations of LSA-R.S. 14:27, LSA-R.S. 14:30.1, LSA-R.S. 14:94, LSA-R.S. 14:37.4, LSA-R.S. 14:95.1, LSA-R.S. 14:34, and LSA-R.S. 14:64. The defendant entered a plea of not guilty and later filed a motion to quash. The trial court granted the defendant’s motion to quash as to counts one, two, and eight. The State now appeals, assigning error to the trial court’s partial granting of the motion to quash. For the following reasons, we reverse the ruling of the trial court and remand for further proceedings.

STATEMENT OF FACTS

The facts of the underlying offenses have not been fully established and are not pertinent to the issue in this appeal. According to the bill of information, on or about July 4, 2005, the defendant attempted to murder Bruce Moore, intentionally discharged a firearm in a place where it was foreseeable that it might have resulted in death or great bodily harm to a human being, assaulted Bruce Moore and Demond Gaines with a dangerous weapon, possessed a firearm and/or carried a concealed weapon after having been convicted of attempted simple burglary, and robbed and committed a battery with a dangerous weapon upon Timothy Carter.

|sThe original bill of information instituting charges based on these facts was filed on September 16, 2005 and charged the defendant with attempted second degree murder, armed robbery, and illegal use of weapons or dangerous instrumentalities. On February 3, 2006 the victims advised the district attorney’s office that they did not want to pursue the charges and requested that the case be dismissed. The victims executed affidavits stating that restitution had been made and that they would not testify against the defendants at trial. The State dismissed the prosecution on September 18, 2006. On May 6, 2009 the charges in the original bill were reinst-ituted by a new bill of information as to counts one, two, and eight, along with new charges as listed above. The motion to quash was filed on November 2, 2009. The motion hearing was held on January 27, 2010, and the trial court took the matter under advisement. On March 8, 2010 the trial court granted the motion to quash as to counts one, two, and eight, finding that the time limitation for the commencement of trial had expired as to those reinstituted charges.

ASSIGNMENT OF ERROR

In the sole assignment of error, the State relies on LSA-C.Cr.P. art. 576 in arguing that the original charges were instituted timely. The State notes that the charges herein were dismissed before any witness was sworn at trial. The State contends that the charges were dismissed because the victims refused to testify or cooperate, not to circumvent trial commencement delays. In support of this contention, the State notes that the victims indicated their refusal to testify by affidavit, and the charges were dismissed one year before the two-year time limitation for commencement of trial expired. Finally, the State contends that the two-year time limitation contained in LSA-C.Cr.P. art. 578 does not run from the filing of the original | ¿prosecution if that prosecution is properly dismissed and reinstituted. The State concludes that the trial court erred in partially granting the defendant’s motion to quash and that the ruling must be reversed.

A trial court’s ruling on a motion to quash should not generally be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 2002-2698, pp. 5-6 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094, p. 3 (La.7/6/00), 766 So.2d 501, 504. In this case the trial court’s ruling on the motion to quash is based on a legal finding and is, therefore, subject to de novo review.

Louisiana Code of Criminal Procedure Article 578(A)(2) requires that trial of a non-capital felony be commenced within two years from the date of institution of the prosecution. “Institution of prosecution” includes the finding of an indictment, or, as in this case, the filing of a bill of information, which is designed to serve as the basis of a trial. LSA-C.Cr.P. art. 934(7); State v. Cotton, 2001-1781, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La.12/13/02), 831 So.2d 982.

Article 691 of the Louisiana Code of Criminal Procedure confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. Louisiana Code of Criminal Procedure Article 693 expressly provides, subject to narrowly delineated exceptions, that dismissal of a prosecution is not a bar to a subsequent prosecution. Louisiana Code of Criminal Procedure Article 576 provides:

IsWhen a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

[Emphasis added.]

Louisiana Code of Criminal Procedure article 572, contained within the same chapter as Article 576, provides the time limitations for the institution of prosecution for non-capital offenses as six years after the offense has been committed for a felony necessarily punishable by imprisonment at hard labor and four years for a felony not necessarily punishable by imprisonment at hard labor.

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinsti-tuted charges should be decided on a case-by-case basis. State v. Love, 2000-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Love, 2000-3347 at p. 14, 847 So.2d at 1209.

Herein, the defendant’s motion to quash noted that more than two years had elapsed since the date the original prosecution was instituted and |Bthat the charges were dismissed by the State without any evidence of the defendant’s consent. The motion to quash concluded that the reinsti-tution was untimely, in violation of LSA-C.Cr.P. art. 578, as trial was not commenced within two years of the filing of the original prosecution. At the hearing on the motion to quash, the State argued, in part, that the charges were properly reinstituted pursuant to LSA-C.Cr.P. art. 576. In granting the motion to quash as to counts one, two, and eight, the trial court concluded the State failed to bring the charges to trial within the two-year time limitation and noted that there was no statutory reason for dismissing the charges. The trial court specifically stated, “[T]hey reinstituted the charges some, what, I don’t know, three years later or whatever it was, and there was nothing that gave them a new time to start, if that makes any sense.”

Based on the following analysis, we disagree with the trial court. The effect of a dismissal, or nolle prosequi ⅛ to discharge the particular indictment, bill of information, or affidavit; however, it does not necessarily bar further prosecution if it was entered before the first witness was sworn. State v. Norwood, 351 So.2d 122, 124 (La.1977). See also LSA-C.Cr.P. arts. 576, 691, and 693. The second paragraph of Article 576 does not create a presumption that a prosecution has been dismissed in order to circumvent the time limitations for commencement of trial. State v. Hearin, 409 So.2d 577, 578 (La.1982). Rather, the second paragraph of Article 576 would preclude a new prosecution unless the State shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578. In this case, there is no evidence that the district attorney was avoiding the time limitation for commencement of trial or was flaunting his authority at the expense of the defendant. Instead, the record 17indicates a nolle prosequi was entered because the victims stated in their affidavits that: restitution had been made, they were “not interested in pursuing the criminal charges,” they would “not testify against the defendants at trial,” and they wished to dismiss or nolle prosequi the charges. Further, the charges were dismissed only twelve months after the institution of the original prosecution. There is no need to show that the defendant consented to the dismissal since there was no commencement of trial or swearing in of a witness prior to the dismissal of the original prosecution. We find that the reinstitution of prosecution on the attempted second degree murder and illegal use of a weapon or dangerous instrumentality charges, though made after six months from the original dismissal, was timely under the limitations set forth in LSA-C.Cr.P. art. 572, as the prosecution was reinstituted on May 6, 2009, less than four years after the July 4, 2005 commission of the offenses.

In non-capital felony cases, the State has two years from the reinstitution of prosecution to commence trial, barring any interruption or suspension of the time delay. See Hearin, 409 So.2d at 578-79 (where the State’s re-indictment was not for the purpose of avoiding the time limitation established by Article 578, the new prosecution was found timely though instituted after the original time limitations for commencement of trial had elapsed, but within the time limitations for a new prosecution provided by Article 576); See also State v. Van Dyke, 2003-437, pp. 6-8 (La. App. 3 Cir. 10/1/03), 856 So.2d 187, 192-93, writ denied, 2003-2777 (La.2/13/04), 867 So.2d 689; State v. Barley, 29,482, pp. 2-4 (La.App. 2 Cir. 6/18/97), 698 So.2d 36, 38-39. As previously stated, the effect of a dismissal, or nolle prosequi is to discharge the particular indictment, bill of information, or affidavit. The two-year time limitation for commencement of trial cannot continue to run under a prosecution that no longer exists. Rather, this time period began to run anew with the filing of a new bill of information. See Van Dyke, 2003-437 at pp. 7-8, 856 So.2d at 193. Thus, the trial court erred in calculating the time delay for commencement of trial from the date of the original, discharged bill of information.

We find that the reinstitution of prosecution for the 2005 offenses was timely, as it was not in violation of Article 572 and was not precluded by Article 576. As noted, the charges were timely reinstituted on May 6, 2009 and the motion to quash was filed on November 2, 2009. Clearly, the two-year time limitation for the commencement of the defendant’s trial had not lapsed. The trial court erred in partially granting the motion to quash on this basis. Thus, we reverse the trial court’s order quashing the reinstituted charges in counts one, two, and eight, and the case is remanded for further proceedings.

RULING ON THE MOTION TO QUASH REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

GUIDRY, J., concurs.

      . The bill of information also includes several charges against co-defendant Melvin Vernell, Jr. The State has appealed as to the co-defendant on the same basis as the instant case. See State v. Vernell, 2010-0990 (La.App. 1st Cir. 12/22/10), 68 So.3d 553.

      . A motion to quash is the proper vehicle to assert that the time limitation for the institution of prosecution or commencement of trial has expired. LSA-C.Cr.P. arts. 531 and 532(7).

      . The defendant does not argue that his speedy trial rights were asserted and violated.

      . Attempted second degree murder is necessarily punishable by hard labor and thus prosecution must be instituted within six years of the date of commission. Illegal use of a weapon or dangerous instrumentality is punishable by imprisonment with or without hard labor requiring institution within four years of commission, but necessarily punishable at hard labor if committed during the commission or attempted commission of a crime of violence or violation of the Uniform Controlled Dangerous Substances Law and requiring institution within six years of its commission. LSA-R.S. 14:27(D)(I)(a); LSA-R.S. 14:30.1(B); LSA-R.S. 14:94(B), (E), or (F); and LSA-C.Cr.P. art. 572(A)(1) and (2).


author: GUIDRY, J.

text:
    Lorraine A. RYAN, Bill and Susan Wozniak, Individually and on behalf of their minor children, Crystal, Braden and Cody and James Ventle, Individually and on behalf of his minor children, Erica and Tracy v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al. Gus Hernandez v. Jackie Ventle; Paul Manifold; State Farm Mutual Automobile Ins. Co.; Credit General Ins. Co.; and, Cana-Tex International, Inc.
    Nos. 2010 CA 0961, 2010 CA 0962.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Writ Denied April 1, 2011.
    Rehearing Denied July 29, 2011.

      Donald A. Hoffman, Mary Ann Weg-mann, New Orleans, LA, for Intervenor-Appellant American Home Assurance Company a/k/a AIG Worker’s Compensation.
    Gerald A. Melchiode, Mary E. Lorenz, New Orleans, LA, for Defendant-Appellee Evanston Insurance Company.
    Andrew P. Sellers, Jr., Baton Rouge, LA, for Defendant-Appellee National Union Fire Insurance Co. of Pittsburgh, Pennsylvania.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

| .-¡American Home Assurance Company, also known as American International Group, Inc. Worker’s Compensation (“AIGWC”), appeals a summary judgment of the trial court dismissing its claim for reimbursement against the Evanston Insurance Company (“Evanston”). The underlying facts of this case, which has previously come before this court twice on appeal, are not in dispute and will only be recounted as necessary herein.

In this appeal, AIGWC has asserted several assignments of error that largely center on two main allegations: (1) that the trial court denied it “due process of law and fundamental fairness by setting aside its January 20, 2009 Ruling of the Court without notice and by failing to provide [it] notice that Evanston’s and National Union’s[] Motions for Summary Judgment would be heard on September 11, 2009”; and (2) that the trial court erred in failing to find that the facts surrounding the high-low agreement executed by Ev-anston and the plaintiffs constituted a “compromise” made in violation of La. R.S. 28:1102(0(1), for which Evanston is liable to AIGWC for reimbursement of the full amount of compensation benefits and medical benefits paid to the plaintiffs.

AIGWC’s first assignment of error is without merit. As acknowledged by AIGWC, following remand of this matter to the trial court, AIGWC, Evanston, and National Union all filed cross motions for summary judgment on the issue of whether the high-low agreement between Ev-anston, National Union, and the plaintiffs constituted a compromise for which the insurers could be held liable under La. R.S. 28:1102(0(1). A hearing on the cross motions was held on August |48, 2008, following which the trial court issued a “Ruling of the Court,” signed January 20, 2009, wherein it stated that for the reasons stated in AIGWC’s brief, it granted AIGWC’s motion for summary judgment and denied Evanston’s motion for summary judgment. The “Ruling of the Court” concluded with the instruction “judgment to be submitted accordingly.”

Thereafter, AIGWC filed a motion for entry of final judgment, wherein it contended that it had drafted a proposed judgment in conformity with the trial court’s January 20, 2009 “Ruling of the Court.” Evanston, however, objected to the proposed judgment. On the date the motion for entry of judgment was scheduled to be heard, the trial court held a status conference instead, following which the trial court issued a judgment with reasons signed September 28, 2009. In that judgment, which is the judgment appealed herein, after reciting certain “findings of fact and conclusions of law” intended to “clarify and supersede” its ruling on January 20, 2009, the trial court decreed that it was granting the motions for summary judgment filed by Evanston and National Union on February 27, 2008, and March 27, 2008, respectively. Pursuant to that decree, the trial court dismissed AIGWC’s claims against Evanston and National Union, with prejudice, and denied AIGWC’s motion for entry of final judgment as moot.

A final judgment can be inconsistent with the written reasons for judgment. Written reasons for judgment are considered to be interlocutory rulings and do not carry the finality of a judgment. Prior to final judgment, a trial judge may, at his discretion, change the substance or the result of interlocutory rulings. Thurman v. Thurman, 521 So.2d 579, 581 (La. App. 1st Cir.1988). As previously stated, a hearing on AIGWC’s, Evanston’s, and National Union’s cross motions for summary judgment on the issue of whether the high-low agreement would constitute a compromise under La. R.S. 28:1102(0(1) was held on August 8, 2008; thus, all interested parties were heard on the issue. Although the trial court ^initially indicated that it would render judgment in favor of AIGWC, it still acted within its authority and with due process in rendering the judgment appealed. Hence, we reject this assertion of error.

Accordingly, we must now consider the primary issue in this appeal — whether the trial court erred in not finding that the high-low agreement was a compromise pursuant to La. R.S. 23:1102(0(1). That statute provides:

When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.

Lorraine A. Ryan, Bill and Susan Wozniak, individually and on behalf of their minor children, and James Ventle, individually and on behalf of his minor children (“plaintiffs”), filed suit against several defendants, including Evanston and National Union, relative to a car accident that occurred in Pointe Coupee Parish on February 27, 1997. Soon after the plaintiffs filed suit in this matter, AIGWC filed a petition for intervention, seeking reimbursement of any workers’ compensation and medical payment benefits it paid to or on behalf of the plaintiffs. Prior to litigating the issues of liability and damages, the parties sought a ruling from the trial court on the issue of coverage under the policies issued by Evanston and National Union. Pending the trial court’s ruling on the coverage issue, Evanston [fiand National Union negotiated a high-low agreement with the plaintiffs that is central to the present appeal.

Evidence of the high-low agreement crafted by Evanston and National Union with the plaintiffs is presented in a series of letters dated October 22, 2001, November 7, 2001, November 12, 2001, and November 26, 2001. Essentially, the terms of the agreement are outlined in the October 22, 2001 letter from Evanston, which provided that in exchange for an immediate payment of $350,000 from Evanston and $200,000 from National Union, the plaintiffs agreed to cap their total recovery at $5,000,000, in the event a jury found the insured liable and awarded damages in excess of that amount. In negotiating the agreement, the right to try the case to a jury on the issues of liability and damages was expressly reserved, as well as a request that “any further litigation of the liability and damage issues [be] postponed until the issue on coverage is resolved” on appellate review. In addition to limiting exposure for damages, Evanston stated in the letter that the “cost savings in discovery is the incentive for payment on the low end.”

Although the October 22, 2001 letter stated that the high-low agreement was conditioned upon National Union’s and AIGWC’s acceptance, the condition that AIGWC accept the terms of the agreement was eliminated pursuant to the November 7, 2001 acceptance letter from National Union. In that letter, National Union acknowledged that a teleconference had been conducted by counsel for the plaintiffs, Ev-anston, and National Union, and pursuant thereto, National Union was confirming in writing its agreement to the terms of the high-low agreement as outlined in Evans-ton’s October 22, 2001 letter; however, National Union also confirmed that the terms of the high-low agreement were to be kept confidential between the plaintiffs, Evanston, and National Union.

Finally, by a letter dated November 12, 2001, the plaintiffs confirmed in writing their acceptance of the high-low agreement, as outlined in Evanston’s |7October 22, 2001 letter and modified by National Union’s November 7, 2001 letter. By a letter dated November 26, 2001, Evanston remitted payment to the plaintiffs in the amount of $350,000.

At the time the parties negotiated the high-low agreement, La. C.C. art. 3071 provided, in pertinent part:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.[]

AIGWC relies on Lavergne v. Quality Fabricators of Eunice, Inc., 02-0548 (La. App. 3d Cir. 12/11/02), 832 So.2d 1176, writ denied, 03-0127 (La.3/21/03), 840 So.2d 540, for the proposition that a high-low agreement constitutes a compromise under the prior version of La. C.C. art. 3071. We reject the assertion that the holding of that case mandates that all high-low agreements be deemed compromises in accordance with the prior version of La. C.C. art. 3071. It was expressly noted in the Lavergne opinion that in exchange for the high-low agreement, “the parties agreed that there would be no post-trial motions or appeals filed by the parties.” Lavergne, 02-0548 at 2, 832 So.2d at 1178. Consequently, the court found that the agreement put an end to the lawsuit between the injured employee and the third-party tortfeasor. Lavergne, 02-0548 at 3, 832 So.2d at 1179; see also Lavergne v. Quality Fabricators of Eunice, Inc., 04-125, pp. 4-5 (La.App. 3d Cir. 12/8/04), 888 So.2d 1147, 1151, writ denied,, 05-0046 (La.3/18/05), 896 So.2d 1007.

In the matter before us, the plaintiffs, Evanston, and National Union confected the high-low agreement prior to the parties receiving a ruling by the trial | Rcourt on the issue of insurance coverage and prior to any determination of the liability of the insured. Consequently, and unlike the agreement in Lavergne, the subject high-low agreement expressly reserved to Evanston and National Union “the right to try the case to a jury on liability and damages” and further indicated that appellate review would not only be allowed, but would be sought to “resolve” the issue of coverage. Indeed, the June 24, 2002 judgment of the trial court declaring coverage for the plaintiffs’ claims under the Evans-ton and National Union policies was not only appealed to this court by the insurers, but the plaintiffs sought subsequent review of this court’s decision by the Louisiana Supreme Court.

Hence, the high-low agreement in this case did not terminate the litigation between Evanston, National Union, and the plaintiffs. Nor could it be said to restrict or limit any of the issues presented in the lawsuit; rather, the agreement simply provided that in exchange for receiving a guaranteed minimum recovery, the plaintiffs agreed to waive their right to receive any money in excess of the maximum amount allowed. There was no waiver or restriction on the plaintiffs’ right to seek a judicial determination of what amount of compensation, if any, may be owed to them. Instead, the high-low agreement at issue in this case is best characterized as a “sale” of the plaintiffs’ right to take full advantage of a potentially favorable judgment or to fully enforce any rights potentially to be conferred by judgment. In either case, the litigation is maintained, and as such, would not constitute a valid compromise under the law as it existed at the time the high-low agreement was con-fected. See Reinecke v. Pelham, 199 So. 521, 523-24 (La.App.Orleans 1941)(holding that an agreement purporting to be a compromise, but not meeting the technical requirements of a compromise, should be regarded as a sale, if made for consideration, and a donation, if made without consideration).

| nNor do we find that the mere negotiation of the check issued by Evans-ton was sufficient to convert the agreement into a compromise for which the provisions of La. R.S. 23:1102(0(1) would attach. For there to be a valid accord and satisfaction of a debt or claim, there must be a disputed claim, a tender of a check for less than the amount of the claim by the debtor, and an acceptance of the tender by the creditor. Essential to a valid accord and satisfaction is that the creditor understands that the payment is tendered in full settlement of the dispute. Harrington v. Aetna Life and Casualty Company, 441 So.2d 1255, 1256 (La.App. 1st Cir.1983); McClelland v. Security Industrial Insurance Company, 426 So.2d 665, 669-70 (La. App. 1st Cir.1982), writ denied, 430 So.2d 94 (La.1983). The check negotiated in this case referenced a claim number, the date of loss, and simply stated “settlement” on the payment stub attached to the check. Notations on the back of the check indicate that the check was deposited on November 28, 2001.

A creditor must fully understand and be aware that if payment is accepted, the claim will be deemed to have been paid in full, and if the written notation is insufficient to put the creditor on notice of the nature of the compromise being offered, there can be no accord and satisfaction. See Cowley Corporation v. Shreveport Packing Company, Inc. of Kansas, 440 So.2d 1345, 1352 (La.App. 2d Cir.1983), writ denied, 444 So.2d 122 (La.1984). In the subject case, the use of the word “settlement” alone does not unequivocally convey that the payment was tendered in full payment of any debt or claim that may be owed. But more importantly, no accord and satisfaction can be premised on the subject negotiated check, because the accompanying letter by which the check was tendered to the plaintiffs plainly stated that the check was being offered “pursuant to the high/low agreement.” As provided in La. C.C. art. 3073, prior to the 2007 amendment:

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the | mnecessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.

The letter accompanying the check in this case, plus the preceding letters of October 22, 2001, November 7, 2001, and November 12, 2001, all clearly indicate that the check was issued in fulfillment of the high-low agreement and not as full payment of the plaintiffs’ claim.

Also, we note that prior to 2007, while it has been held that an accord and satisfaction is similar to a compromise, it was not, strictly speaking, a compromise. Prior to 2007, accord and satisfaction was solely a jurisprudentially recognized method by which an obligation could be extinguished, whereas the law of compromise has always been established by statute to prevent or put an end to a lawsuit. See Aufrichtig v. Aufrichtig, 34,909, pp. 12-13 (La.App.2d Cir. 8/22/01), 796 So.2d 57, 65; Harrington, 441 So.2d at 1256; McClelland, 426 So.2d at 670 n. 2. See also La. C.C. art. 3079, comment (a).

CONCLUSION

Having carefully considered the applicable facts and law governing this matter, we find that the high-low agreement confected by Evanston, National Union, and the plaintiffs did not constitute a compromise under the applicable version of La. C.C. art. 3071. Thus, neither the agreement, nor the cashing of the check issued pursuant thereto, can be construed as being confected in violation of La. R.S. 28:1102(0(1). Therefore, finding the judgment of the trial court to be correct under the applicable law, we affirm. All costs of this appeal are assessed to the appellant, American Home Assurance Company, also known as AIG Worker’s Compensation.

AFFIRMED.

HUGHES, J., concurs.

      . See Ryan v. State Farm Mutual Automobile Insurance Company, 02-2303 (La.App. 1st Cir. 6/27/03), 848 So.2d 165 (unpublished opinion), writ denied, 03-2132 (La. 11/7/03), 857 So.2d 503, and Ryan v. State Farm Mutual Automobile Insurance Company, 05-0268 (La.App. 1st Cir. 02/10/06), 924 So.2d 514 (unpublished opinion).

      . National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”), also referred to as "AIG,” "AIG Business Auto” and "AIG Primary” in the record, filed a separate motion for summary judgment on the same grounds asserted by Evanston.

      . A separate suit regarding the February 27, 1997 accident, filed by Gus Hernandez, was consolidated with the plaintiffs’ suit. A separate high-low agreement was offered to Hernandez, but is not at issue in this appeal.

      . By 2007 La. Acts, No. 138, § 1, Articles 3071 through 3083 of the Louisiana Civil Code, under the title "Of Transaction or Compromise,” were amended and re-enacted. Following amendment and re-enactment in 2007, La. C.C. art. 3071 now provides "[a] compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.”

      . While we are troubled by this conclusion, we observe that under the current version of La. C.C. art. 3071, such a result would now be precluded.


text:
    James SIMS v. USAGENCIES CASUALTY INSURANCE COMPANY and McHenry Jackson.
    No. 2010 CA 1120.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Rehearing Denied Aug. 5, 2011.

      Stephanie M. Possa, Joseph C. Possa, Baton Rouge, LA, for Plaintiff/Appellant James Sims.
    Anthony M. Butler, Shonda D. Le-Grande, Baton Rouge, LA, for Defendants/Appellees USAgencies Casually Insurance Company and McHenry Jackson.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

| pThis is an appeal from a summary judgment in an action, arising out of a vehicular accident, for personal injuries, property damage, and penalties for the alleged breach of a settlement agreement. For the reasons that follow, we affirm the judgment, which awarded property damages as having been unconditionally tendered, but dismissed the remaining claims, which were found to have been barred by Louisiana’s “No Pay, No Play” Statute (LSA-R.S. 32:866).

FACTS AND PROCEDURAL HISTORY

On November 22, 2007 James Sims and McHenry Jackson were involved in an automobile accident on North Foster Drive in Baton Rouge, when Mr. Jackson’s vehicle rear-ended Mr. Sims’ vehicle. At the time of the accident, Mr. Jackson was insured by USAgencies Casualty Insurance Company (“USAgencies”); Mr. Sims was uninsured. Mr. Sims allegedly suffered both personal injury and property damage as a result of the accident.

Although USAgencies had initially denied Mr. Sims’ claim for damages, on the basis that he was uninsured and therefore in violation of the No Pay, No Play Statute and not entitled to recover the first $10,000.00 of his damages, counsel for Mr. Sims represented that Mr. Jackson had been intoxicated at the time of the accident, which provided an exception to the penalty provisions of the statute. | (¡Thereafter, USAgencies agreed to settle Mr. Sims’ claim for damages for the amount of $10,000.00 for his personal injuries and $4,126.81 for his property damage. On May 8, 2008 USAgencies forwarded settlement documents and checks in the amounts of $10,000.00 and $4,126.81 to Mr. Sims’ attorney, but stopped payment on the checks on May 15, 2008, stating that it had determined that the assertion that its insured was intoxicated at the time of the accident was incorrect, that “any agreements reached based upon this assertion have been vitiated” and Louisiana’s No Pay, No Play Statute applied to exclude coverage for the accident.

On May 28, 2008 Mr. Sims filed suit against Mr. Jackson and USAgencies for the damages he sustained in the accident and for additional penalties and attorney fees against USAgencies for failure to fund the settlement agreement. USAgencies filed a motion for summary judgment contending that because Mr. Sims did not have compulsory motor vehicle liability coverage on the date of the accident, LSA-R.S. 32:866(A) required that he forfeit the first $10,000.00 of recovery of both personal injuries and property damages, and asserting it was entitled to dismissal of the suit. Mr. Sims also filed a motion for summary judgment contending that a transaction and compromise had been agreed to by the parties, but was breached by USAgencies, and that he was entitled to judgment in his favor enforcing the settlement and awarding penalties and attorney fees. Following an October 5, 2009 hearing on the motions, judgment was rendered in favor of Mr. Sims for his property damage, in the amount of $4,126.81, on a finding by the court that this amount had been unconditionally tendered to Mr. Sims by USAgencies. The court further rendered judgment decreeing that the $10,000.00 settlement of Mr. Sims’ bodily injury claim was invalid and unenforceable, as it violated public policy; the court further declared that “James Sims shall not be entitled to recover the first ten thousand dollars of bodily injury Land any further damages up to the first ten thousand dollars of property damage as a result of his failure to own or maintain compulsory motor vehicle liability security.” Following signing of the trial court’s judgment on November 30, 2009, Mr. Sims filed an application for a supervisory writ, which resulted in the following March 16, 2010 ruling by this court:

WRIT GRANTED WITH INSTRUCTIONS. The judgment rendered by the trial court disposes of all issues and parties in this matter, which would render it a final and appealable judgment, not appropriate for this court’s review as a supervisory writ. However, it appears that the judgment as written lacks the requisite decretal language pursuant to LSA-C.C.P. arts. 1911 and 1918 in that it fails to dismiss the defendants, in whose favor the summary judgment was rendered, and to dismiss plaintiffs claim for the liability policy limits. Accordingly, we remand the matter back to the trial court with instructions to amend the judgment to include the requisite decretal language. Once amended, the judgment will be final and appealable, and the trial court is further instructed to grant the relator an appeal pursuant to the December 3, 2009 pleading notifying the trial court of relator’s prior intention to seek writs....

Thereafter, an amended judgment was signed by the trial court on May 3, 2010, reiterating its previous rulings and additionally dismissing the claims of Mr. Sims against both Mr. Jackson and USAgencies.

Mr. Sims has appealed the trial court rulings, contending that summary judgment was inappropriate in this case, and asserting that the trial court erred in failing to enforce the transaction and compromise agreement between the parties. Mr. Sims further contends that the trial court erred in failing to order penalties, attorney fees, and costs against USAgencies for refusing to pay the agreed settlement amount within thirty days, in accordance with LSA-R.S. 22:1892 and LSA-R.S. 22:1973.

LAW AND ANALYSIS

Motion for Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. |sart. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover 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. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Moriah-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., 2004-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will |fibe able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir.2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 2003-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 2003-1714 at p. 3, 879 So.2d at 738-39. Accordingly, we first examine whether there was a valid and enforceable settlement in this case.

Settlement of Claims

A settlement or compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. An out-of-court oral agreement is unenforceable. See LSA-C.C. art. 3072; Felder v. Georgia Pacific Corp., 405 So.2d 521, 523 (La.1981); Bennett v. Great Atlantic & Pacific Tea Company, 95-0410, pp. 3-4 (La.App. 1 Cir. 11/9/95), 665 So.2d 84, 86, writ denied, 95-2981 (La.2/9/96), 667 So.2d 536. The purpose of the writing requirement is to serve as proof of the agreement and the acquiescence therein. Bourgeois v. Franklin, 389 So.2d 358, 361 (La.1980); Bennett v. Great Atlantic & Pacific Tea Company, 95-0410 at p. 4, 665 So.2d at 86. A compromise, as any other contract, may be contained in two writings rather than one. See LSA-C.C. art. 3072, 2007 Revision Comment (c); Felder v. Georgia Pacific Corp., 405 So.2d at 523-24; Brasseaux v. Allstate Insurance Company, 97-0526, p. 5 (La.App. 1 Cir. 4/8/98), 710 So.2d 826, 829.

In the instant case, Mr. Sims contends that the letters that passed between his attorney and USAgencies constituted a written settlement agreement between the parties. The letters between the parties in this case were filed into the record and reveal the following facts. On March 24, 2008 USAgencies representative Gilbert Sumba forwarded a letter to Mr. Sims’ attorney, which stated: “After careful consideration of the facts surrounding the loss, we find that we must respectfully deny your claim for the following reason(s): your client did not have an active liability insurance coverage on the date of loss — (LA No Pay No Play statute.)” Counsel for Mr. Sims responded in a letter dated April 3, 2008, in pertinent part: “Please be advised that your insured was drunk at the time of the accident, therefore the Louisiana No Pay No Play Statute does not apply in this case.” Further, on April 23, 2008, Mr. Sims’ attorney forwarded a letter to USAgencies enclosing the medical bills of Mr. Sims (amounting to $2,981.00), disclosing that he had been diagnosed with a cervical/lumbar strain, and demanding that USAgencies tender the policy limits “to settle the matter.” On May 8, 2008 USAgencies representative Mia Williams sent a letter to Mr. Sims’ attorney, which stated: “Please allow this letter to confirm settlement reached on behalf of James |8Sims for the amount of $10,000.00. We have enclosed the Release of all Claims and Indemnity Agreement for your client’s signature. Please be advised that the settlement draft will follow under separate cover.” Thereafter, on May 15, 2008, USAgencies Casualty Claims Director Eric C. Raby communicated, in a letter to Mr. Sims’ attorney, USAgencies’ decision to stop payment on the settlement checks, based on its information that Mr. Jackson was not intoxicated and the applicability of the No Pay, No Play Statute.

After a careful review of the facts of this case, applicable law, and jurisprudence, we find the correspondence between USAgen-cies and Mr. Sims’ attorney insufficient to constitute a valid contractual settlement of Mr. Sims’ damage claims.

It is of no moment that a party’s attorney finds a negotiated settlement satisfactory; a settlement must be in writing. Nor is the requirement of a writing to effect a compromise satisfied by the signature of a party’s attorney alone (unless such authorization is express under LSA-C.C. art. 2997). The general authority granted to an attorney in an attorney/client contract of employment to settle the client’s case constitutes only authority to negotiate a settlement. Bennett v. Great Atlantic & Pacific Tea Company, 95-0410 at p. 4, 665 So.2d at 86. See also Lizama v. Williams, 99-1040, p. 5 (La. App. 5 Cir. 3/22/00), 759 So.2d 865, 868. In the instant case, the correspondence that Mr. Sims relies on to establish a compromise in this case did not contain his signature, and no evidence was submitted to establish that Mr. Sims expressly authorized his attorney to settle his claims.

|9Until the parties signed a written document or documents evincing their consent to the terms of their earlier negotiated agreement, either party was free to change his mind. Doiron v. Louisiana Farm Bureau Mutual Insurance Company, 98-2818, p. 7 (La.App. 1 Cir. 2/18/00), 753 So.2d 357, 362. In light of USAgen-eies’ timely withdrawal of its written offer, Mr. Sims has failed to prove the existence of a valid compromise in compliance with LSA-C.C. art. 3071. See Doiron v. Louisiana Farm Bureau Mutual Insurance Company, 98-2818 at p. 7, 753 So.2d at 362. The offer was withdrawn before accepted. Therefore, we are unable to say the trial court erred in refusing to enforce the uncompleted “settlement” in this case, insofar as Mr. Sims’ personal injury damages were concerned. Further, since Mr. Sims does not contend on appeal that he was in fact insured at the time of the accident, so that the provisions of the No Pay, No Play Statute, LSA-R.S. 32:866(A)(1), were inapplicable to him, we find no error in the dismissal of this suit.

| ^CONCLUSION

For the reasons assigned herein, the summary judgment, in favor of USAgen-cies Casualty Insurance Company and McHenry Jackson, dismissing the plaintiffs suit is affirmed. All costs of this appeal are to be borne by the plaintiff, James Sims.

AFFIRMED.

      . At the time of the instant accident, LSA-R.S. 32:866(A)(1) provided:
      There should be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.

        See also Progressive Security Insurance Company v. Foster, 97-2985, p. 2 (La.4/23/98), 711 So.2d 675, 678.

      . Subsection (3)(a) of LSA-R.S. 32:866(A) provides, in pertinent part:
      The limitation of recovery provisions of this Subsection do not apply if the driver of the other vehicle:
      (i) Is cited for a violation of R.S. 14:98 [operating a vehicle while intoxicated] as a result of the accident and is subsequently convicted of or pleads nolo contendere to such offense.

      . Article 3072 provides: "A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.”

      . Article 2997 provides, in pertinent part: "Authority also must be given expressly to: ... [ejnter into a compromise or refer a matter to arbitration.”

      . We note that this court has previously held that a draft may serve as a written compromise where it recites that it is in full payment for all claims as a result of an accident and the draft is endorsed and negotiated. However, no evidence was submitted in this case to establish that Mr. Sims endorsed and negotiated the USAgencies drafts that were forwarded to his attorney. See Doiron v. Louisiana Farm Bureau Mutual Insurance Company, 98-2818, p. 5 (La.App. 1 Cir. 2/18/00), 753 So.2d 357, 361.

      . We find City of Baton Rouge v. Douglas, 2007-1153 (La.App. 1 Cir. 2/8/08), 984 So.2d 746, writ denied, 2008-0939 (La.6/20/08), 983 So.2d 1284, cited by Mr. Sims to this court, distinguishable on the facts as the parties in Douglas had entered a settlement agreement on the record in open court (at the hearing, the trial court questioned Mr. Douglas on the record regarding his understanding that the settlement agreement "puts an end to all of the litigation between you and the City 1/Par-ish];” Mr. Douglas indicated that he understood and that he desired to put an end to the litigation; Mr. Douglas agreed to the City/Parish’s condition of settlement that he must never seek employment with the City/Parish in the future; and the trial court stated, "[a]ll right. This case is fully settled.”).

      . Since USAgencies filed no appeal, or answer to this appeal, to contest the trial court's award of $4,126.81 for Mr. Sims’ property damage or the court’s finding that this amount had been unconditionally tendered to Mr. Sims by USAgencies, the propriety of this award is not before this court.

      . Because of our disposition of the issues on appeal on the basis stated, we find it unnecessary to address other issues raised by the parties, in particular, Mr. Sims’ argument as to penalties and attorney fees and USAgencies argument, in support of the judgment in its favor, that a settlement agreement cannot create obligations that conflict with the "No Pay, No Play” Statute (LSA-R.S. 32:866).