author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Joann JENKINS, Appellant.
    No. 45,830-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Louisiana Appellate Project by Paula Corley Marx, for Appellant.
    Douglas Lee Harville, Joann Jenkins, William Robert Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douci-ere, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, GASKINS and DREW, JJ.
   DREW, J.

12Joann Jenkins pled guilty to jumping bail and was sentenced in accordance with a plea agreement. This appeal followed. Her appellate counsel has filed a motion to withdraw, together with a Benjamin brief in support of the motion. We grant the motion to withdraw, and affirm the conviction and sentence.

FACTS

Defendant was charged by bill of information with one count of jumping bail for not appearing in the Fifth Judicial District Court on November 3, 2009, on a forgery charge. On May 4, 2010, as part of a plea agreement, defendant pled guilty with an agreed sentence of one year at hard labor, the first six months to be served concurrently with any other sentence, and the remaining six months to be served consecutively with any other sentences.

| -jDuring the plea colloquy, defendant admitted that she had pled guilty to an earlier charge and had been ordered to appear for sentencing on November 3, 2009, which she admittedly failed to do. The court accepted the guilty plea as being free and voluntary. Thereupon, the court sentenced Jenkins per the plea agreement.

Appellate counsel has filed a Benjamin brief, seeking to withdraw because there are no nonfrivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history and the Boykin compliant plea colloquy leading to the defendant’s conviction. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Counsel further verifies that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, and Benjamin, supra. The defendant has had an ample opportunity to file a brief, but has not done so.

We have conducted an error patent review of the appellate record and none were found. The record supports defendant’s conviction and [Ssentence. The motion to withdraw is granted. The conviction and sentence are AFFIRMED.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990). A Benjamin brief is also referred to as an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . While the record in this appeal does not unequivocally establish the underlying conviction for which Jenkins failed to appear for sentencing, her appeal in docket number 45,-771-KA (also currently pending before this Court) indicates she failed to appear for sentencing on a conviction for forgery, a felony.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana In the Interest of D.L.W.
    No. 45,989-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    John S. Evans, for Appellant, Father.
    Legal Services of N. La., by Angela M. Smith, for Appellant, Minor Child.
    Mike Daniel, for Appellee, State of La. Dept, of Social Services.
    Angela Waltman, for Appellee, Mother.

      Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

|2Both the father, DLW Sr., and the child, DLW Jr., appeal a “judgment of adjudication and/or disposition” finding the child in need of care and ordering him into the custody of the Department of Social Services. For the reasons expressed, we affirm the order of custody but vacate in part and remand for further proceedings in accordance with the law.

Procedural Background

The child, a boy, was born on December 21, 1999; the mother and father were never married. According to the petition, the child had been living with his father since 2001, but in April 2010 the mother told him (the father) that she was about to be incarcerated and wished to relinquish her parental rights.

On April 23, 2010, the father filed a petition in the 42nd JDC seeking permanent custody, subject to the mother’s reasonable visitation. However, when the district court judge saw the petition, he recognized that the father |3had convictions in 1985 for sexual battery in 1989 for aggravated sexual battery. He stated from the bench that neither he nor any court in any state would grant custody to a man with this kind of criminal record. He denied the father’s rule to show cause and promptly phoned the Office of Community Services (“OCS”), instructing that office to issue an instanter removal order. Even though it had no open case or reported complaints against the father, OCS complied.

OCS agent Quwanda Forest executed an affidavit stating that the father “has a lengthy criminal history which includes multiple aggravated rape charges, aggravated sexual battei'y, simple battery, child predator, simple criminal damage to property, and fugitive.” Further, the father “is illiterate and was presented a child custody and visitation agreement from [the mother] on August 13, 2009, which lists her as the custodian * * * granting her control and supervision of the child’s upbringing.” Finally, she alleged the child was too young to care for himself, and there was good cause to believe that he could not be adequately protected from “further abuse and/or neglect.” The court signed an instanter removal order on April 28, 2010, and appointed counsel for the child, father and mother.

14According to the court minutes, a continued custody hearing was held on April 29, after which the court ordered the child held in OCS’s continued custody; the record contains no transcript of this.

On May 26, the state filed the instant petition to declare the child in need of care. The petition recited that the district court had signed the instanter order and the continued custody order; it otherwise reprinted the paragraphs of Ms. Forest’s affidavit. Neither the child, father nor mother filed any responsive pleading. OCS filed a case plan noting that the child had done very poorly in foster care, that each parent wanted him placed in his or her respective home, and that the goal was reunification.

At the adjudication hearing on June 22, the only witness was Ms. Forest, the OCS child welfare specialist. She testified that OCS started this case because the judge ordered the child into care; her office had no investigation into or complaints about the father. She testified that the father had a criminal history of “aggravated rape charges, aggravated sexual battery and a child predator.” The district attorney offered copies of the father’s 1985 and 1989 convictions, but these have not been included in the appellate record. Finally, she testified that OCS’s action was based on “dependency” of the father and lack of supervision by the mother.

[ 5On cross-examination, Ms. Forest admitted that the father’s home was adequate, the child had suffered no physical injury, and there was no evidence that the father failed to provide food, clothes or shelter. Further, OCS performed no intake assessment, but merely followed the judge’s order, and there was no allegation that the father abused DLW Jr. or any other child of his. She added that she had never seen an order like this before. Counsel for the child offered into evidence a copy of the Department of Social Services’ Policy Manual, Chapter 4, Appendix 4-B, containing definitions of “child abuse and neglect,” “lack of adequate supervision/sexual abuse,” “passive sexual abuse,” “abandonment” and “dependency.”

The district judge upbraided Ms. Forest, reminding her that she was not there to represent the child’s wishes. He stated that he would never grant custody to a convicted sex offender. He also took judicial notice that the mother had relinquished her parental rights; however, the mother spoke up, denying that she did so. The judge stated that the issue was not dependency, but where to place a child whose mother relinquished parental rights and whose father was not fit for custody. He also refused to let the father call the child’s teacher to testify, declaring this was irrelevant; the state stipulated that DLW Jr. was “doing fine in school.”

IfiThe court ruled from the bench that it had to place a child with no order of custody, and the only place was with the State of Louisiana. It declared the child in need of care and recused itself from the father’s ongoing custody proceeding.

The father and child have appealed separately. The mother has not appealed or filed a brief.

Discussion: No Cause of Action, Judicial Confession

By their first assignments of error, the father and child urge that the state’s petition failed to state a cause of action under La. Ch. C. art. 606 A in that it did not allege that the child was a victim of abuse, a victim of neglect, or any of the other defined grounds. The child also argues that the state failed to show that the district court judge was a mandatory reporter under La. Ch. C. art. 603(15). The state responds that nobody filed an exception of no cause of action.

Generally, no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. However, the jurisprudence recognizes an exception that allows the court to consider evidence admitted without objection to enlarge the pleadings. City of New Orleans v. Board of Directors, 98-1170 (La.3/2/99), 739 So.2d 748; Gipson v. Fortune, 45,021 (La.App. 2 Cir. M/27/10), 30 So.3d 1076, writ denied, 2010-0432 (La.4/30/10), 34 So.3d 298. Considering that the parties neither filed an exception of no cause of action in the district court nor objected to the introduction of evidence, we consider the pleadings enlarged to incorporate the evidence admitted. The issue of whether the record will support the adjudication is discussed below.

By his fourth assignment of error, the father urges the district court erred in finding that the mother abandoned or failed to properly supervise the child. He contends that the court’s “judicial notice” was based solely on an allegation in his own petition for permanent custody, a case in which the court refused to hold a hearing. The state responds that it proved the mother wished to relinquish her parental rights because she was about to go to jail.

A judicial confession is a declaration made by a party in a judicial proceeding; it constitutes full proof against the party who made it, and may be revoked only on the ground of error of law. La. C.C. art. 1853; Cichirillo v. Avondale Indus. Inc., 2004-2894 (La.11/29/05), 917 So.2d 424; Anderson v. Houston, 44,766 (La.App. 2 Cir. 9/23/09), 22 So.3d 1029. A declaration made by a party’s attorney or mandatory has the same effect as one made by the party himself. La. C.C. art. 1853, Revision Comment (b); C.T. Traina Inc. v. Sunshine Plaza Inc., 2003-1003 (La.12/3/03), 861 So.2d 156. The father’s petition for custody, filed in the 42nd JDC, alleged in ¶ 11 Lthat the mother told him “she had outstanding criminal charges in Caddo Parish, would soon be incarcerated and desired to relinquish her parental rights to his son to him and her two other children to her mother.” This qualifies as a judicial confession by DLW Sr. While the mother may wish to contest it in the custody case, the father may not do so in this juvenile proceeding.

These assignments lack merit.

Judgment of Adjudication

By their second assignments of error, both the father and child urge the district court committed manifest error in assigning substantial weight to the father’s 20-year-old criminal history. They concede that under Ch. C. art. 606 A(5), the state may step in and protect a child who has not yet suffered abuse, if he is at substantial risk of abuse. State in Int. of KB, 32,350 (La.App. 2 Cir. 5/5/99), 737 So.2d 150. They argue there was absolutely no evidence that the father ever perpetrated any act of abuse on this child or any other child of his, that his sex offense convictions from the 1980s are no longer relevant, and that his status as a sex offender does not justify the finding of need of care.

By the father’s fourth and the child’s third assignments of error, they urge the court erred in finding a preponderance of evidence of abuse or | ^neglect. They show that preponderance is the standard under La. Ch. C. art. 665, and they cite the definitions in the Policy Manual to argue that the evidence does not satisfy any of them.

The state responds that the court was entitled to look at the father’s convictions and assign them any weight it deemed appropriate to protect the child’s safety. It also submits that the father was “unsuitable due to his criminal history of inappropriate sexual behavior.”

At the adjudication hearing, the state has the burden to prove the allegations of the petition by a preponderance of evidence. La. Ch. C. art. 665; State in Int. of JK, 33,878 (La.App. 2 Cir. 6/23/00), 764 So.2d 287, unit denied, 2000-2637 (La.10/6/00), 771 So.2d 83. Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence, both direct and circumstantial, establishes that the fact or causation sought to be proved is more probable than not. Talbot v. Talbot, 2003-0814 (La.12/12/03), 864 So.2d 590; Pearce v. Medallion Const., 36,351 (La.App. 2 Cir. 11/6/02), 830 So.2d 576. The appellate court will not set aside the findings of fact in a juvenile matter in the absence of manifest error or unless those findings are plainly wrong. In re AJF, 2000-0948 (La.6/30/00), 764 So.2d 47; State in Int. of CH, 44,401 (La.App. 2 Cir. 5/20/09), 14 So.3d 601, writ denied, 2009-1581 (La.7/24/09), 17 So.3d 362. Upon a finding of manifest error, the appellate court shall render any judgment which is just, legal and proper upon the record on appeal. La. C.C.P. art. 2164; Fowler v. Fowler, 1998-953 (La.App. 3 Cir. 12/9/98), 722 So.2d 125.

On close review, we are constrained to find no proof that would satisfy the first three grounds for finding a child in need of care, La. Ch. C. art. 606 A(l)-(3). Ms. Forest testified that after an OCS investigation, there was no evidence that the child was the victim of abuse perpetrated, aided or tolerated by the father, or by any other person; that the child was the victim of neglect; or that the child was without necessary food, clothing, shelter, medical care or supervision because of the absence of the father. The state offered no other evidence with respect to these grounds. As for the fourth ground, the father alleged in his custody petition that the child’s mother was about to be incarcerated and would be unable to retain custody. This would satisfy Art. 606 A(4) with respect to the mother, but since the state conceded that DLW Jr. has been in the custody of his father since 2001, this fact does not appear relevant to the father’s custody.

As to the fifth and final ground, Ch. C. art. 606 A(5) provides an intermediate method whereby the state may step in and protect children who are at risk of abuse or neglect before they suffer actual abuse. State in Int. of KB, supra. The state alleged, and Ms. Forest testified, that the father had “multiple aggravated rape charges, aggravated sexual battery, simple battery, child predator, simple criminal damage to property, and fugitive.” These allegations, if proved, may indeed constitute a risk of abuse or neglect warranting a finding of need of care under Art. 606 A(5). However, by their nature these allegations are also subject to proof by court minutes and other documents. We are constrained to find that the only proof offered was the 1985 and 1989 convictions for sexual battery and aggravated sexual battery, respectively. With due respect to the discretion of the district court, making these the sole basis for a finding of need of care is not immediately clear, in that they predate this child’s birth by 10 years or more, the father has exercised custody since 2001, and in that time OCS has never had any cause to investigate the household. In its present state, the proof is insufficient to support the adjudication.

Nonetheless, the remaining allegations, especially that of child predator, are serious enough that the state should have the opportunity to prove them by proper evidence. Also, proof of more recent criminal conduct would be extremely relevant to show the need of care under Art. 606 A(5). For these reasons, we find the most appropriate remedy under La. C.C.P. art. 2164 is to affirm the order of custody pending final disposition, but |12otherwise to reverse the judgment of adjudication and remand the case for further proceedings in accordance with the law.

Conclusion

For the reasons expressed, the order of custody is affirmed pending final disposition of the case. However, the adjudication is vacated insofar as it found DLW Jr. in need of care and the case remanded for further proceedings in accordance with the law. No costs are assessed.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

      . Art. 606. Grounds; child in need of care
      A. Allegations that a child is in need of care must assert one or more of the following grounds:
      (1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
      (2) The child is a victim of neglect.
      (3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent.
      (4) As a result of a criminal prosecution, the parent has been convicted of a crime against the child who is the subject of this proceeding, or against another child of the parent, and the parent is now unable to retain custody or control or the child's welfare is otherwise endangered if left within the parent’s custody or control.
      (5) The conduct of the parent, either as principal or accessory, constitutes a crime against the child or against any other child of that parent.


text:
    Yvonne Sanders BARNETT, Plaintiff-Appellee v. Jimmie Carl BARNETT and his Agent for Power of Attorney, Julia Ann Budwah, Defendant-Appellant.
    No. 45,721-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 22, 2010.

      Mayer, Smith & Roberts, by Steven Eric Soileau, Jeffrey S. Norris, for Shreveport, LA, Defendant-Appellant, Jimmie Carl Barnett, and Defendant-Appellee, Julia Ann Budwah.
    Salley & Salley, by Sandra S. Salley, Laurel A. Salley, Lauren E. Checki, Ashley B. Schepens, Metairie, LA, for Plaintiff-Appellee, Yvonne Sanders Barnett.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

| ¡Jimmie Barnett appeals a judgment ordering him to pay to his former wife one-half of an early withdrawal penalty that was incurred when his sister, to whom he had granted power of attorney, removed former community property from an annuity.

Concluding that the trial court erred in denying Jimmie’s exception of insufficiency of service of process, we vacate the judgment and dismiss the claims against him without prejudice.

FACTS

Jimmie Barnett and Yvonne Barnett were married in 1970. Yvonne filed for divorce on January 20, 2004. A judgment of divorce was rendered on February 1, 2005.

On September 28, 2004, Jimmie granted a power of attorney to his sister, Julia Budwah. Jimmie revoked this power of attorney the next month. |sOn November 19, 2004, Jimmie again granted a power of attorney to Budwah. However, it was not until January 5, 2006, that Budwah accepted the power of attorney.

Jimmie and Yvonne each owned one-half of former community funds held in five annuities managed by AmerUS Annuity Group. Two of these annuity accounts, numbered 17168 and 32609, listed Jimmie as the policyholder. Four of the accounts contained less than $10,000. Account 17168 held over $400,000.

Jimmie had lingering health problems and had been placed in a nursing facility when Budwah accepted power of attorney in 2006.

Jimmie’s only income at the time was from Social Security benefits. Concerned about how Jimmie’s medical expenses would be paid, Budwah went to a local Medicaid office, where she was told that Jimmie was not eligible for Medicaid because of the annuities.

On February 14, 2006, Budwah wrote to AmerUS requesting the withdrawal of all funds and the closing of account 32609 and any other accounts at AmerUS. AmerUS wrote to Budwah 10 days later that it had received Budwah’s request, but because the annuity was community property subject to a pending divorce settlement, the funds from the annuity |4could not be distributed at that time. AmerUS added that upon receipt of a copy of the final settlement, it would process Budwah’s request.

On May 31, 2006, Yvonne requested a partial withdrawal of funds from account 32609. Yvonne wrote on the policy disbursement request form that the withdrawal was to be without penalty because Jimmie had been in a hospital or a nursing home since December of 2005. The next month, AmerUS wrote to Yvonne’s counsel that it was unable to process the request for withdrawal of funds by Yvonne because there was a restraining order.

Yvonne and Budwah, on behalf of Jimmie, executed an Act of Partition and Settlement of Community Property (“settlement”) on September 27 and October 3, 2006. The settlement provided, in relevant part:

[A]n agreement was made between the parties on November 22, 2004, that the AmerUS and Alliance annuities would be divided by withdrawing the maximum amount that could be withdrawn each year, without penalty, and that each party or their agent would sign the necessary forms to do so and that the party receiving the check would make a copy of the check and send one-half (1/2) of the amount to the other party along with a copy of the check. The parties are equal owners of these accounts and all injunctions and restraining orders are hereby vacated.
In the event either party makes a withdrawal from any of the aforementioned accounts, said party shall endorse the check, forward the check to Sandra S. Salley, attorney for Yvonne Sanders Barnett, who shall make copies of said | scheck, place it in the Salley & Salley, LLC, IOLTA account and issue individual checks for Jimmie Carl Barnett and Yvonne Sanders Barnett. Said check will be accompanied by a copy of the check received by and placed into the account of Salley & Salley, LLC.

The partition was approved by the court on July 25, 2007.

AmerUS wrote to Budwah on November 6, 2006, that it had received the papers granting her power of attorney over Jimmie. Four days later, Budwah completed a policy disbursement request form on behalf of Jimmie seeking all of the funds in accounts 17168 and 32609. She checked a box indicating that she elected to surrender the accounts for their outstanding balances “net of any applicable surrender charges.”

On November 13, 2006, AmerUS wrote to Jimmie to ensure that he understood that surrender penalties of approximately $48,000 in account 17168, and approximately $943 in account 32609, would be incurred as a result of the requested withdrawal of funds from those accounts. On November 20, 2006, Budwah completed and signed forms on behalf of Jimmie indicating that he still wanted to proceed with the withdrawals.

On November 29, 2006, AmerUS sent Jimmie checks in the amounts of $357,551.14 and $8,432.36. The gross distribution for account 17168 was $406,308.11, with a surrender penalty of $48,756.97. The gross distribution for account 32609 was $9,363.22, with a surrender penalty of $842.69.

|fiOn December 6, 2006, Budwah purchased a 6-month CD at Capital One for $300,000. The CD bore an interest rate of 4.89%, and its ownership was listed as Jimmie or Budwah. The remainder of the money was retained by Budwah to pay outstanding medical bills and future bills as they would be received.

Yvonne stated that in December of 2006, she received a $6,000 check from Budwah to repay her for money that she had loaned to Budwah to pay for Jimmie’s medical expenses. She assumed the money came from one of the smaller annuities. Yvonne considered Budwah to be evasive about the annuities, and claimed that she first found out that Budwah had closed the largest annuity when her attorney informed her of this in January of 2007.

Yvonne’s counsel received a letter from Capital One on March 5, 2007, stating that in accordance with Budwah’s request, $57,551.14 from AmerUS had been deposited into an account to pay past-due bills and ongoing expenses for Jimmie.

PROCEDURAL HISTORY

On January 2, 2008, Yvonne filed a petition for return of funds against Jimmie and Budwah. It asserted that Budwah violated the settlement agreement when she removed the funds, incurred the penalty, and did not notify Yvonne. Yvonne prayed that she be reimbursed for the penalties |7caused by the violation of the settlement agreement. Service was requested only upon Budwah.

The petition was amended to assert jurisdictional and venue grounds. This time, service was requested upon Jimmy through Budwah.

Jimmie filed the exception of insufficiency of service of process, among other exceptions. The exceptions were denied in April of 2009 and reduced to judgment on June 15, 2009.

Following a trial on the merits, the exception of prescription was denied, and the trial court concluded that Jimmie owed $24,378 to Yvonne. Jimmie has appealed that judgment. The claims against Bud-wah were dismissed at the trial, and this dismissal is reflected in a separate judgment that has not been appealed.

DISCUSSION

Prescription

Jimmie contends on appeal that Yvonne’s January 2, 2008, lawsuit is prescribed as her claims are for conversion and accordingly subject to a prescriptive period of one year. He argues that Yvonne was aware of her cause of action no later than December 15, 2006. Yvonne replies that because Budwah failed to abide by the terms of a contract, the settlement, [swhen she incurred the penalties, the 10-year prescriptive period for contract claims is applicable.

When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Canter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261.

Ordinarily, the party raising the exception of prescription bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Id.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. An obligation may be the promise to do or not to do something. First Louisiana Bank v. Morris & Dickson Co., LLC, 44,187 (La.App.2d Cir.4/8/09), 6 So.3d 1047. A compromise is a contract. La. C.C. art. 3071.

The prescriptive period for a breach of contract claim is 10 years from the date that the cause of action arose. See La. C.C. art. 3499; Corbello v. Iowa Production, 2002-0826 (La.2/25/03), 850 So.2d 686.

In Huckabay v. Huckabay, 485 So.2d 165 (La.App. 2d Cir.1986), a former wife sued her former husband to enforce a community property settlement. She claimed that she was owed money to which she was entitled under the terms of the settlement. The former husband contended that her action had prescribed. This court disagreed, concluding that the former husband obligated himself in the settlement to give certain things to his former wife, and when he allegedly failed to perform, she was entitled to bring an action to demand performance. Accordingly, this court found that the prescriptive period of 10 years for contract claims was applicable to the former wife’s claim.

We note that La. C.C. art. 2369.3 states the following regarding the duty to preserve and to manage former community property under a spouse’s control:

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.

Comment (c) to art. 2369.3 reads that a claim for breach of the obligation imposed by that article is subject to the prescriptive period of 10 years found in La. C.C. art. 3499. However, comment (c) also reads that the |induty imposed by art. 2369.3 arises at the moment of termination of the community regime and continues until a partition of the former community property occurs. A partition, albeit one that had yet to be judicially approved, had already been agreed to by the parties when Budwah withdrew the funds. Accordingly, it does not appear that art. 2369.3 is applicable to the matter at hand.

This claim clearly arises from an alleged breach of an obligation imposed by the settlement and is subject to a prescriptive period of 10 years applicable to contract claims. The trial court was not clearly wrong in denying the exception of prescription.

Breach of Settlement

Jimmie contends that the trial court was clearly wrong in concluding that there was a breach of the settlement. He urges that the request for funds was made in February of 2006, before Budwah signed the settlement. We disagree.

The February 2006 request was denied at that time because AmerUS was under the impression that the annuity was community property subject to a pending divorce settlement. AmerUS acknowledged in November of 2006 that it was in receipt of the document granting the power of attorney. After Budwah signed the settlement in October of 2006, she successfully Insubmitted a disbursement request seeking all of the funds in accounts 17168 and 32609. The relevant request for funds was clearly made after the signing of the settlement. This argument is without merit.

Jimmie further contends that a surrender penalty is not recognized as a damage under Louisiana law. We again disagree.

In Gibson v. Gibson, 96-1472 (La.App. 3rd Cir.4/2/97), 692 So.2d 708, the former husband withdrew community funds from a retirement fund and incurred a tax liability on behalf of himself and his former wife. She sought reimbursement by filing a motion to traverse the detailed descriptive list. The appellate court concluded that the former husband was liable to the former wife for her share of the tax liability-

We note that in reaching its conclusion, the appellate court in Gibson found that the former husband had breached his duty under La. C.C. art. 2369.3, which we have already stated is not applicable to the case at hand. Although this point distinguishes Gibson from the instant case, in which the obligation arises by contract, Gibson remains relevant in that it recognized that a party can damage the other by incurring a charge as a result of a withdrawal from a joint investment or retirement account.

[12If the former wife in Gibson had been consulted about her former husband’s actions, she could have taken steps to avoid the tax liability, and at the very least, she could have decided how and when to withdraw her money. Likewise, Yvonne was deprived of the option of leaving her share of the funds in account 17168 and avoiding the substantial penalty when Budwah unilaterally withdrew all of the funds from that account.

In support of his argument, Jimmie cites Day v. Day, 2002-0431 (La.App. 1st Cir.5/28/03), 858 So.2d 483, writ denied, 2003-1845 (La.11/7/03), 857 So.2d 492; and Thibodeaux v. Thibodeaux, 93-1445 (La.App. 3rd Cir.6/1/94), 640 So.2d 713, writ denied, 94-1792 (La.10/28/94), 644 So.2d 659. Those cases can be readily distinguished as the damages sought were not for a penalty or other charge such as taxes, but rather were for an alleged decrease in the investment value of former community property.

In Day, the court concluded that the former wife could have withdrawn her share of funds from a 401(k) account, but when she left her share of the funds in the account, she had to accept whatever depreciation or appreciation in value occurred. In Thibodeaux, the former husband transferred former community assets in a retirement plan from a risky fund where it had lost over $10,000 the previous quarter to a less risky fund within the retirement plan. The former wife in Thibodeaux sought | ^reimbursement for the increase in investment value had it remained in the original fund. The court concluded that she was not entitled to reimbursement because the former husband made the transfer in an effort to salvage the value of their investment, the former wife failed to establish her alleged loss with sufficient specificity since she did not show the investment appreciation while in the less risky fund, and she did not show that a prudent administrator would have kept the investment in the more risky fund.

Yvonne did not suffer an inadvertent decrease in value of the annuity because of market conditions and investment choices. She suffered a loss because of Budwah’s intentional action.

Budwah knew that she would violate the settlement if she withdrew enough money from the annuity accounts to trigger penalties. She knew from correspondence from AmerUS how much the penalties could be.

Budwah contended that she did not know how much money was in the annuities when she requested the withdrawal in February 2006. Budwah claimed that she did not know that half of the funds in the annuity accounts belonged to Yvonne when she requested the money from AmerUS in November of 2006. She believed that because the accounts were in Jimmie’s name, the funds belonged to him.

114Budwah asserted that she was motivated by concern for her brother when she knowingly violated the settlement and withdrew over $400,000. Nevertheless, bitterness between the parties was evident. Budwah knew the CD interest would not make up for the penalty, but that fact did not bother her because she was worried only about her brother’s welfare. Budwah was unconcerned about Yvonne when she withdrew the money because she did not think that Yvonne was in desperate need of money.

Budwah admitted that she was evasive with Yvonne. She delayed telling Yvonne about the withdi'awal of over $400,000 as long as she could. Budwah testified that she did not care if Yvonne or her attorney knew about it because Jimmie needed the money.

Budwah admitted that she did not care if a large penalty was incurred by the full withdrawal because she did not want to fool around with withdrawing just enough each month to pay his expenses. Yvonne asserted that she discussed with Budwah that she could withdraw up to 20% without incurring a penalty because Jimmie had been confined to a hospital or nursing home for a lengthy period of time.

Jimmie’s outstanding medical bills were less than $50,000 when Budwah obtained the funds. Budwah estimated that the monthly nursing home fee was around $3,635. Another expense came from Jimmie’s high | isdrug bills that were not covered by Medicare. Jimmie’s only source of income was his monthly Social Security check, apparently just under $1,000 which was directly deposited into his nursing home account.

It is obvious that it was unnecessary for Budwah to make a full withdrawal of the funds in the accounts in order to cover Jimmie’s medical care. This is evident by the $300,000 CD with a six-month maturity that Budwah purchased.

Yvonne was entitled to be reimbursed for one-half of the penalty incurred because of the early withdrawal. The trial court determined this amount was $24,378. Jimmie contends the award should be no more than $12,309.20 because of various offsets. However, because we vacate this judgment on other grounds, we need not consider the issue of offsets.

Insufficiency of Service of Process

Jimmie contends that the trial court erred in denying his exception of insufficiency of service of process as service was made only on Budwah and never on Jimmie. We agree as Budwah was never designated as his agent for service of process.

La. C.C.P. art. 5251(2) states that “agent for the service of process” means the agent designated by a person or by law to receive service of 11ñprocess in actions and proceedings brought against him in the courts in this state.

The power of attorney document makes no mention of Jimmie designating Budwah as his agent for service of process. The closest it makes to any such declaration is as follows:

To represent me fully in all matters of litigation, whether as plaintiff or defendant, or in response to other claims or demands or to make claims or demands; including, without limitation, execution and filing of pleadings, responding to pleadings, hiring attorneys, agreeing to mediation or arbitration and making settlements.

Nevertheless, this is not an express designation of Budwah as Jimmie’s agent for service of process. Therefore, service on Jimmie through Budwah was without effect.

Yvonne contends that because Jimmie did not seek supervisory review of this adverse ruling, he waived it and is precluded from raising this issue on this appeal.

Normally when an appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment. See Alexander v. Palazzo, 2008-1541 (La.App. 1st Cir.2/13/09), 5 So.3d 950. However, some adverse interlocutory rulings, such as the denial of the exception of Jjjimproper venue and the refusal of a request for arbitration, cannot as a practical matter be corrected on appeal after a final judgment. See Danny Weaver Logging, Inc. v. Norwel Equipment Co., 33,793 (La.App.2d Cir.8/23/00), 766 So.2d 701, and Tubbs Rice Dryers, Inc. v. Martin, 44,800 (La.App.2d Cir.2/24/10), 33 So.3d 926. In those instances, the party should either seek supervisory review pursuant to La. C.C.P. art. 2201, or file an appeal under La. C.C.P. art. 2083(C) if it is expressly provided by law. That is not the case with the denial of the exception of insufficiency of service of process.

La. C.C.P. art. 1201(A) provides that citation and service thereof are essential in all civil actions except summary and execu-tory proceedings, divorce actions under C.C. art. 102, and proceedings under the Children’s Code; without them all proceedings are absolutely null.

Under La. C.C.P. art. 1201, a judgment rendered against a defendant who has not been validly cited and served with the petition is absolutely null, even if there is actual notice of the suit. In re Justice of Peace Landry, 2001-657 (La.6/29/01), 789 So.2d 1271. Without such citation and service of process, the court does not have jurisdiction over the person of the defendant. Id.

| lsLa. C.C.P. art. 2002(A)(2) states that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

The exercise of personal jurisdiction requires the submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception. La. C.C.P. art. 6(A)(3).

When a judgment has been entered against a defendant, the question of sufficiency of service may not be raised for the first time on appeal. Hughes v. Sanders, 36,968 (La.App.2d Cir.5/14/03), 847 So.2d 165. Instead, the issue should be raised in a suit to annul the judgment. Id.

Jimmie timely raised the exception of insufficiency of service of process. Because the proper service of process is a cornerstone of judicial actions, and because a remedy remains to sue to annul a judgment, Jimmie did not waive consideration of the denial of his exception on appeal when he failed to seek supervisory review and instead opted to wait to raise the issue on appeal. The trial court erred in denying Jimmie’s exception of insufficiency of service of process.

CONCLUSION

1 isWith each party to bear its own costs, the JUDGMENT is VACATED and Yvonne Barnett’s claims against Jimmie Barnett are DISMISSED WITHOUT PREJUDICE.

      . The three remaining annuities, with account numbers 18495, 32606, and 32608, listed Yvonne as the policyholder.

      . There was also a charge of $88.17.

      . This amount is one-half of the penalty for account 17168.


author: GASKINS, J. STEWART, J.,

text:
    Patricia BROWN, Plaintiff-Appellee v. EAST CARROLL PARISH POLICE JURY, Defendant-Appellant.
    No. 45,851-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 22, 2010.

      Snellings, Breard, Sartor, Inabnett & Trascher, LLP by Michael Creighton, Monroe, LA, for Defendant-Appellant.
    Law Offices Of Raymond Lee, Cannon, LLC by Raymond Lee Cannon, Tallulah, LA, for Plaintiff-Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

lain this workers’ compensation case, the employer appeals the denial of its motion to dismiss. In its motion, the employer alleged that the claimant failed to obtain a court-ordered neuropathy workup within a reasonable period of time and should be penalized. We affirm in part and amend in part.

FACTS

In March 2002, the claimant, Patricia Brown, injured her right knee, leg and foot while working for the East Carroll Parish Police Jury. She slipped in a puddle of water at the Head Start office; the puddle was the result of a leaky ceiling.

In June 2004, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC). She asserted that the employer refused to pay her medical bills or authorize her to see an | sorthopedic doctor and a neurologist for treatment of her right knee, leg and foot. She requested that the employer be ordered to pay her medical bills relating to the accident and to pay for her to be seen by an orthopedic doctor and a neurologist. The employer answered with a general denial.

The parties stipulated that the claimant injured her right knee while performing services arising out of and in the course and scope of her employment with the employer; that some compensation and medical benefits were paid; and that she was released to return to work without restrictions by her treating physician, Dr. Douglas Brown, an orthopedist. The matter was tried on the issues of the nature and extent of her disability, the employee’s entitlement to payment of medical expenses, an order for her to be examined and treated by a neurologist of her choice, and her request for penalties and attorney fees.

Trial was continued on several occasions pursuant to motions by both sides. The matter was finally tried on January 5, 2007. The evidence showed that, following her March 2002 injury, the claimant was initially released by Dr. Brown to return to work in May 2002. However, she returned to the doctor in January 2003, complaining of numbness extending from her right knee to foot. She was found to have peripheral neuropathy in her lower extremities. In late January 2003, upon Dr. Brown’s referral, the claimant |4saw Dr. Vipul Shelat, a neurologist, whose report stated that she should have “a neuropathy work-up.” The record did not indicate that such a workup had been done.

The workers’ compensation judge (WCJ) ordered the employer to pay certain medical bills of the claimant that related to treatment of her right knee, leg or foot following the accident. The WCJ also found the claimant was entitled to have Dr. Lawrence Chenier as her physician of choice in general medicine. Penalties and attorney fees were denied. Most importantly for purposes of the instant appeal, the WCJ also ruled that the claimant was “entitled to a neuropathy work-up, as suggested by Dr. Shelat, to be performed by a neurologist designated by claimant.” Judgment was signed February 8, 2007.

On October 2, 2009, the employer filed a motion to dismiss for failure to comply with the judgment of the court. It asserted that in more than two years, the claimant had failed to obtain the court-ordered neuropathy workup, despite the employer’s efforts to assist her. The employer stated that it had recently learned that the doctor selected by the claimant as her neurologist, Dr. Gonzalo Hidalgo, did not accept workers’ compensation patients. Consequently, pursuant to the WCJ’s continuing jurisdiction under La. R.S. 28:1310.8, the employer requested that the claimant’s claim for | ¡¡benefits be dismissed with prejudice due to her failure to comply with the judgment in a reasonable amount of time. In support of its argument, the employer stated that since it would be sanctioned if it had failed to comply with the court’s order, the claimant should be held to the same standard. Also, the employer contends that it would be prejudiced if the claimant were permitted to undergo the neuropathy workup now due to the substantial amount of time that had passed since the 2002 injury.

The claimant filed an opposition in which she asserted that she had done all she could to comply with the court’s judgment. Specifically, she stated that she repeatedly encountered complications in making appointments (e.g., a doctor who relocated after Hurricane Katrina, her inability to make payment arrangements). She denied being told that Dr. Hidalgo, who was located in Alexandria, Louisiana, no longer accepted workers’ compensation cases until June 2009. The claimant further asserted that the WCJ was authorized under La. R.S. 23:1810.8 to make all appropriate orders to make her whole.

The matter was heard on November 6, 2009. The claimant testified about her many efforts to obtain a neuropathy workup after it was ordered, the exchanges of letters between the attorneys, the necessity of referrals, and the confounding issue of payment for the appointments. She stated that | r,every time she was asked about payment for the exam and she mentioned workers’ compensation, the doctors’ offices said they were full or could not help her. She emphatically denied the assertion that Dr. Hidalgo’s office told her several times that his office did not do workers’ compensation exams.

Around the fall of 2009, the claimant found a neurologist in Vicksburg, Mississippi, Dr. Mohammed Ahmed. He agreed to see her; however, due to the difficulties in getting paid, he would not accept workers’ compensation and she had to pay him out of pocket. The claimant testified that she was required to make a $500 down payment for an $1,800 MRI in October 2009. In order to get a neuropathy workup on her right leg, she testified that it would cost $1,375 and that she would have to pay 30 percent, or about $414, as a down payment. She also stated that she has continued to see Dr. Chenier in Tallu-lah and that he helped her stay as comfortable as possible. She said she paid for his services herself because no one asked her about seeing him.

The WCJ denied the employer’s motion to dismiss. She noted that all the parties had made efforts toward getting the neu-ropathy workup done; however, their efforts had been frustrated by the chosen doctors’ refusals to accept workers’ compensation or their confusion as to what a neuropathy workup included. The WCJ also ruled that the employer was required to pay 17the total cost of the MRI done on October 28, 2009, to the River Region Health System and that the claimant was entitled to be evaluated by Dr. Bernie McHugh, a neurosurgeon, at the employer’s cost. In so ruling, the WCJ stated that since it appeared Dr. Ahmed recommended the MRI as part of the neuropa-thy workup, it was included in the judgment. Additionally, the WCJ stated that she would not hold it against the claimant that she went to Mississippi to seek help. The WCJ specifically found the claimant to be credible in her account of unsuccessfully trying to obtain assistance from various doctors in Louisiana. As to her appointment of Dr. McHugh, the WCJ noted that he was a Louisiana doctor who accepted workers’ compensation patients and that payment to him would be made pursuant to the Louisiana workers’ compensation fee schedule. Judgment was signed November 24, 2009.

The employer applied for supervisory writs to this court. We treated the writ application as a motion for appeal and remanded the matter to the workers’ compensation court for perfection of the appeal.

MOTION TO DISMISS

The employer contends that the WCJ erred in not granting its motion to dismiss. It also contends that res judicata should have prevented the WCJ from modifying its prior judgment.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Player v. International Paper Company, 39,254 (La.App.2d Cir.1/28/05), 892 So.2d 781. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

Workers’ compensation judgments are treated differently from ordinary judgments. This is due to the fact that if the rules of finality applied to ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation system would be greatly restricted. Falgout v. Dealers Truck Equipment Co., 1998-3150 (La.10/19/99), 748 So.2d 399. The workers’ compensation statute addresses this difference, providing the workers’ compensation judge with continuing “power and jurisdiction” to modify former findings or orders regarding entitlement to compensation, La. R.S. 23:1310.8(A), and to modify prior compensation awards by “ending, diminishing, or increasing” such awards when “a change in conditions” is established. La. R.S. 23:1310.8(B). 19Importantly, this statute provides that “[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal,” but it does not address a judgment awarding benefits. La. R.S. 23:1310.8(E). Rivers v. Bo Ezernack Hauling Contractor, LLC, 2009-1495 (La.App. 3d Cir.5/5/10), 37 So.3d 1088.

Where the legislature has expressly provided that an award or judgment can be subject to a claim of modification, res judicata does not apply. Falgout, 1998-3150 at p. 9, 748 So.2d at 406; Degrasse v. Elevating Boats, Inc., 2002-2370 (La.App. 4th Cir.6/11/03), 850 So.2d 40, writ denied, 2003-1852 (La.10/31/03), 857 So.2d 479. Pursuant to La. R.S. 23:1310.8(A)(1), the WCJ has continuing jurisdiction and may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified. Romero v. Northhrop Grumman Corp., 2006-1210 (La. App. 3d Cir.3/7/07), 952 So.2d 855.

The nature of workers’ compensation proceedings require the WCJ to retain jurisdiction in order to continuously assess the employee’s condition. Furthermore, because the WCJ’s adjudication imposes an ongoing obligation on the employer, it retains jurisdiction to address continuous violations. Thus, these unique aspects of workers’ compensation create confusion as to | inm judicata’s application in workers’ compensation proceedings. Metoyer v. Roy O. Martin, Inc., 2003-1540 (La.App. 3d Cir.12/1/04), 895 So.2d 552, wit denied, 2005-1027 (La.6/3/05), 903 So.2d 467.

Discussion

The employer contends that the WCJ erred in not granting its motion to dismiss. Additionally, the employer argues that the WCJ erred in not finding that the prior judgment was res judicata. However, this is a workers’ compensation case. As discussed above, the WCJ retains continuing jurisdiction in such a case to make necessary modifications.

Here, in order to facilitate implementation of the original judgment which ordered that the claimant was to receive a neuropathy workup, the WCJ took steps to move the matter forward. The WCJ was impressed with the claimant’s credibility and obviously believed that she had earnestly tried to fulfill the obligation imposed upon her by the judgment, only to be frustrated at every turn. Primarily, the claimant repeatedly encountered difficulties finding a neurologist who was willing to accept a workers’ compensation patient such as herself. In order to ensure that the claimant received the benefit of the neuropathy workup recommended by Dr. Shelat, the WCJ exercised her discretion and continuing jurisdiction. She appointed Dr. McHugh, a neurosurgeon — not a neurologist — who she knew was ^willing to accept workers’ compensation patients. The WCJ was aware that his appointment would remove the uncertainties surrounding this matter and allow it to finally go forward. Furthermore, in appointing a Louisiana doctor like Dr. McHugh, the WCJ also intended to safeguard the employer and ensure that future payments would be made under the Louisiana workers’ compensation fee schedule.

We find no error in the WCJ’s decision to deny the employer’s motion to dismiss. Nor do we find res judicata applicable to the facts set forth before us in this case.

MEDICAL EXPENSES

The employer also claims that the WCJ erred in ordering that it pay the full amount for the MRI ordered by Dr. Ahmed in Mississippi. The employer argues that under La. R.S. 23:1142, there is a $750 cap on the amount it could be ordered to pay for a nonemergency procedure such as the MRI.

An employer must furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of the state as legal. La. R.S. 23:1203(A); Pardee v. Forest Haven Nursing Home, 42,321 (La.App.2d Cir.6/20/07), 960 So.2d 1216. Jurisprudence provides that an employee seeking payment for medical 112or surgical treatment must prove that the expenses are reasonably necessary for treatment of a medical condition caused by a work-related injury. Pardee v. Forest Haven Nursing Home, supra.

Generally, an employee must receive prior approval from his employer before he seeks nonemergency medical attention for a work-related accident or injury. INA v. Hayes, 93-1648 (La.App. 3d Cir.8/31/94), 643 So.2d 190, writ denied, 94-2471 (La.12/9/94), 647 So.2d 1113. La. R.S. 23:1142 provides, in pertinent part:

B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
(2)(a) When the payor has agreed to the diagnostic testing or treatment, the health care provider shall not issue any demand for payment to the employee or his family until the payor denies liability for the diagnostic testing or treatment. Notwithstanding the foregoing, the health care provider may reasonably communicate with the employee or his attorney or representative for the purpose of pursuing its claim against the payor.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no | ^approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

Thus, under the exception set forth in La. R.S. 23:1142(E), when an employer or insurer has denied that a claimant’s injury is compensable, the statutory cap does not apply. Washington v. Lyons Specialty Company, 96 0263 (La.App. 1st Cir.11/8/96), 683 So.2d 367, writ denied, 96-2944 (La.1/31/97), 687 So.2d 408. When an employer denies the claim from the beginning, it must pay the actual medical expenses incurred and cannot avail itself of the fee schedule. This is because the claimant is then forced to fund the costs of medical treatment himself and because, if the employer denies the claim from the outset, it has no right to preap-prove any treatment. Lemons v. Georgia Pacific Corporation, 42,950 (La.App.2d Cir.2/13/08), 976 So.2d 307, writs denied, 2008-0587 (La.5/2/08), 979 So.2d 1288, and 2008-0590 (La.5/2/08), 979 So.2d 1289; Spires v. Raymond Westbrook Logging, 43,690 (La.App.2d Cir.10/22/08), 997 So.2d 175, writ denied, 2008-2771 (La.2/20/09), 1 So.3d 495.

In interpreting La. R.S. 23:1142(E), it has been held that an insurance carrier’s refusal to authorize medical treatment can constitute a denial of compensability as provided in section E and, therefore, no approval from the payor may be required. Gros v. Gaudin, 2000-1015 (La.App. 5th Cir.10/31/00), 773 So.2d 172, writ denied, 2000-3242 (La.1/26/01) 782 So.2d [14635; Sneed v. RTA/TMSEL, 2003-1532 (La. App. 4th Cir.2/25/04), 869 So.2d 254. If the compensability of the claimant’s work-related injury was generally admitted but authorization for a specific medical treatment was denied, the refusal to authorize the medical treatment constituted a denial of compensability under La. R.S. 23:1142(E). Louviere v. Food & Fun, Inc., 2006-469 (La.App. 3d Cir.10/11/06), 941 So.2d 155.

In order to conclude that the statutory cap does not apply, we must find that the employer denied compensability of the claimant’s injury or denied authorization of a specific procedure. The MRI at issue was apparently ordered by Dr. Ahmed, the neurologist that the claimant arranged to see in Mississippi after encountering difficulties in securing an appointment with a Louisiana neurologist. The claimant went to see Dr. Ahmed for the express purpose of implementing the WCJ’s order to obtain a neuropathy workup; Dr. Ahmed apparently believed that such a workup included an MRI. Although the employer initially denied that the claimant suffered a com-pensable injury early in the proceedings, that was no longer the case. The employer did not deny authorization for the claimant to undergo the MRI; it was apparently unaware that she was seeing a Mississippi neurologist and was never given the opportunity to approve — or disapprove — of the procedure.

| ir,Given the unusual facts presented here, we are unable to say that the employer was not entitled to the benefit of the statutory $750 cap as to the MRI. Accordingly, we find that the WCJ erred in this regard and amend the judgment.

CONCLUSION

The decision of the WCJ is affirmed in part and amended in part. As to the MRI expenses, we find that the WCJ erred in finding that the employer was not entitled to the $750 statutory cap. Accordingly, that portion of the judgment is amended to order the employer to pay $750 of the cost of the MRI.

In all other respects, the judgment of the WCJ is affirmed. Costs of this appeal are assessed between the parties equally.

AFFIRMED IN PART, AMENDED IN PART.

STEWART, J., concurs with reasons.

STEWART, J.,

concurs.

hi would affirm this matter and not amend to limit the employer’s payment of the MRI to $750.00. Under La. R.S. 23:1310.8 and the compelling facts of the claimant’s inability to find a doctor who would accept the workers’ compensation payment, an exception is justified. I would affirm across the board.

      . The employer conceded in its August 17, 2004, pretrial statement that the employee's injury was work related.

      . In so ordering, the WCJ noted that the claimant was consistent in her complaints that there was a continuing problem with her knee.


author: LOLLEY, J.

text:
    Shakeya JOHNSON and Shirley Johnson, Plaintiffs-Appellants v. CITY OF SHREVEPORT, Shreveport Police Department, Chief Whitehorn, and Officer Jeffrey Couch, Defendants-Appellees.
    No. 45,819-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 29, 2010.

      Sheva M. Sims, Shreveport, LA, for Appellants.
    Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, LA, for Appellees.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

| gPlaintiffs Shakeya Johnson (“Shakeya”) and Shirley Johnson (“Shirley”) appeal the judgment by the First Judicial District Court for the Parish of Caddo, State of Louisiana, which found Shakeya at fault for the automobile collision in question, and dismissed plaintiffs’ claims for damages in favor of defendants City of Shreveport, Shreveport Police Department, Chief Henry Whitehorn, and Officer Jeffrey Couch (“Officer Couch”) of the Shreveport Police Department. For the following reasons, we affirm.

Facts

The automobile accident in question occurred on July 4, 2007, around midnight at the intersection of Creswell Avenue and Marshall Street in Shreveport, Louisiana. Shakeya was operating a minivan owned by her mother, Shirley. Shakeya was traveling east on Creswell Avenue which was |;¡regulated by a flashing red traffic light. Officer Couch was operating a police vehicle proceeding south on Marshall Street, which was regulated by a flashing yellow traffic light. Near the middle of the intersection the front end of Shakeya’s vehicle collided into the passenger side of the police vehicle driven by Officer Couch. Shakeya claims Officer Couch was at fault for the collision and, therefore, responsible for her damages, namely, medical bills and loss of wages for injuries sustained to her head, neck, back, and shoulder. Shirley claims defendants are responsible for the property damage to her vehicle.

Plaintiffs filed suit against the defendants asserting the personal injury claim as well as the property damage claim and a bench trial was held on the matter. Testimony was heard from all passengers and drivers, a police officer who witnessed the accident while working a detail at a business located at the intersection, and an officer who responded to the incident after it occurred. After considering the evidence, the trial court dismissed all claims stating:

The Court finds, of course, that the accident in question was caused solely by Ms. Shakeya Johnson inasmuch as she disregarded the red flashing signal which required her to come to a complete stop and make sure that it was okay to proceed safely through the light, in which the evidence clearly shows that she failed to do.

[ 4Judgment was entered in favor of the defendants, and the plaintiffs then filed the instant appeal.

Law and Discussion

On appeal, plaintiffs claim the trial court erred in failing to find either that the defendant was negligent or that Shakeya lawfully entered the intersection. Because of this error, plaintiffs request a reversal of the trial court’s decision which favors the defendants.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Touchard v. Slemco Elec. Foundation, 1999-3577 (La.10/17/00), 769 So.2d 1200. When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Menard v. Lafayette Ins. Co., 2009-1869 (La.03/16/10), 31 So.3d 996; Belin v. Dugdale, 45,405 (La.App.2d Cir.06/30/10), 43 So.3d 272. The issue for the reviewing court is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable under the evidence presented. Rosell v. ESCO. 549 So.2d 840 (La.1989). A factfin-der’s determination regarding the credibility of witnesses is afforded great deference since only it can be aware of the variations in demeanor and 1 stone of voice that bear heavily on its evaluation. Id. Therefore, when a factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Touchard, supra.

Upon review of the record in its entirety, we cannot conclude the trial court was manifestly erroneous or clearly wrong in its finding. The trial court heard from each passenger in Shakeya’s vehicle, including Shakeya, and each stated Officer Couch ran into the automobile Shakeya was driving. However, a review of the photographs of the damaged vehicles shows that, due to the nature of that damage, the minivan Shakeya was driving was actually the vehicle that collided into the police unit. Additionally, the passengers in Shakeya’s vehicle lost credibility before the trial court when there was a discrepancy over whether or not a fifth passenger, who filled out an accident report at the time of the accident, was actually in the vehicle at the time of the accident at all. The trial court heard from Officer Couch, as well as Shreveport Police Officer Ryan Robinson who witnessed the accident from the sidewalk. Their testimony made sense in reference to one another and in reference to the damage shown on the vehicles. The trial court had all the evidence necessary and came to a reasonable conclusion | fibased on such. The judgment of the trial court was not manifestly erroneous, and the plaintiffs’ arguments are without merit.

Conclusion

For the foregoing reasons, the judgment in favor of the defendants is affirmed, and all costs of this appeal are assessed to the plaintiffs Shakeya Johnson and Shirley Johnson.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge. MURRAY, J.,

text:
    George A. FARBER, Sr., M.D. v. John BOBEAR, M.D., Rita Arceneaux, Stacy Gaudin, and Federation of State Medical Boards.
    No. 2010-CA-0985.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      Robert N. Clarke, Metairie, LA, John 0. Pieksen, Jr., John Pieksen & Associates, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Richard C. Stanley, Jennifer L. Thornton, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Defendants/Appellees, John Bobear, M.D., Rita Arceneaux and Stacy Gaudin.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|!Plaintiff, George A. Farber, Sr., M.D., appeals to this Court a judgment of the district court sustaining an exception of prescription filed by John Bobear, M.D. and Stacy Gaudin, resulting in the dismissal of plaintiffs’ defamation claim against them. Dr. Farber also appeals, from the same judgment, the granting of summary judgment in favor of Rita Arceneaux, dismissing a separate claim of defamation against her. Finally, plaintiff appeals the awarding of attorney’s fees and costs pursuant to La.Rev.Stat. § 37:1287 from a separate judgment of the trial court. For the reasons provided below, we affirm the judgments of the district court.

Factual and Procedural History

Dr. George A. Farber is a dermatologist in the greater New Orleans area. In the past decade, Dr. Farber has become involved in various complaints and investigations before the Louisiana State Board of Medical Examiners (“LSBME” or “the Board”), the state’s governing entity for qualifications and the quality of practice of medical doctors and other healthcare professionals. Dr. Farber has also filed multiple lawsuits in federal and state courts against the Board and its members. In 2002, an investigation by the Board had “developed information indicating that” Dr. Farber had “provided care to a patient in a substandard matter Rand routinely administered Lincocin contrary to current standards of practice and Board warnings.”

As a result of a patient complaint against Dr. Farber, a Consent Order (hereafter known as the “2002 Consent Order”) was issued by the Board, reprimanding Dr. Farber for “clinical mismanagement” of the complaining patient and for “the inappropriate prescriptions of Lin-cocin.” As part of the 2002 Consent Order, Dr. Farber was prohibited from prescribing or administering Lincocin to any patient for any reason. It was further ordered that Dr. Farber must obtain a second opinion from another dermatologist or oncologist for the malignancy management of all melanoma and similar skin cell diseases, and continue to obtain such second opinions as treatment itself continues. Finally, the 2002 Consent Order, dated March 19, 2002, required that Dr. Farber obtain additional continuing medical education credits in dermatology over the next five years. Dr. Farber signed an “Acknowledgment and Consent” by Authentic Act, accepting the findings of the 2002 Consent Order.

On August 9, 2004, plaintiff filed a lawsuit in federal court against the LSBME, Dr. Cecilia Mouton and Dr. John Bobear as members of the Board, and the Louisiana Attorney General, alleging violation of constitutional rights, civil rights, and an un-described claim for defamation. On September 21, 2004, the entirety of plaintiffs first federal suit was dismissed on summary judgment, with the federal district court declining to exercise jurisdiction over Dr. Farber’s state law claim for defamation.

|3On August 15, 2005, the Board issued a second consent order (the “2005 Consent Order”) against Dr. Farber. On the basis of a new administrative complaint, the Board concluded that Dr. Farber violated the 2002 Consent Order by prescribing Lincocin. Dr. Farber again waived all rights to formal adjudication of the matter and again freely acknowledged the 2005 Consent Order via Authentic Act, which placed him on probation for five years.

On July 3, 2006, plaintiff filed a second federal lawsuit, naming as defendants the LSBME, Rita Arceneaux, and the Attorney General of the State of Louisiana. In this second federal suit, plaintiff pled the two claims of defamation that are raised in the lawsuit at hand. First, he alleged that Dr. Bobear defamed him by submitting in a subpoena duces tecum response to an attorney incorrect information regarding professional discipline in Rhode Island. Second, he alleged that Rita Arceneaux committed defamatory actions by providing allegedly false information to various national practitioner databanks regarding his medical license and conduct in Louisiana. The federal court dismissed plaintiffs second federal suit, including the defamation claim concerning Dr. Bobear, and the federal court’s reasons included a discussion of plaintiffs defamation claim against Ms. Arceneaux:

Finally, without any allegation of “malice,” Plaintiffs claim of defamation against Defendant Arceneaux (an employee of the Board) must be dismissed because she has statutory immunity pursuant to LSA-R.S. 37:1287 ...
... To the extent that Plaintiff is seeking (in this instant case) either declaratory and/or injunctive relief against the 2002 Consent Order, or raising constitutional challenges to the 2002 Consent Order, he is barred from doing so by the doctrines of collateral estoppel and res judicata based on this court’s findings |4in Plaintiffs 2004 federal suit and the dismissal of his Petition for Judicial Review filed in Civil District Court (CDC).

The first case in Civil District Court, in which Dr. Farber filed a “Petition for Judicial Review of Administrative Action,” was dismissed by this Court on an exception of no cause of action filed by the Board. Farber v. Louisiana State Bd. of Medical Examiners, 2009-0301 (La.App. 4 Cir 9/9/09), 22 So.3d 962.

Dr. Farber filed the present lawsuit on May 19, 2008 against Dr. John Bobear, for his role as the former Chief of Investigations for the LSBME, and against Stacy Gaudin and Rita Arceneaux, in their role as employees of the Board. In this suit, Dr. Farber raised a claim for defamation against Dr. Bobear and Ms. Gaudin, and raised a separate claim for defamation against Ms. Arceneaux for a different alleged publication. Dr. Bobear and Ms. Gaudin filed an exception of prescription as to the defamation claim alleged against them, and Ms. Arceneaux filed a motion for summary judgment to dismiss Dr. Far-ber’s defamation claim against her. The district court sustained the exception of prescription and granted summary judgment, respectively. Later, on motion by all defendants, the district court awarded attorney’s fees to the defendants in the amount of $25,223.79, to be paid by Dr. Farber. It is these judgments that Dr. Farber appeals to this Court.

Assignments ofEiror

Plaintiff first argues that the district court erred in granting summary judgment to Ms. Arceneaux and dismissing his claim of defamation against her. Secondly, Dr. Farber argues that the district court erred in sustaining the exception of prescription filed by Dr. Bobear and Ms. Arceneaux, and argues that his defamation claim constitutes a continuing tort which has not prescribed. Alternatively, plaintiff asserts that this defamation claim is not prescribed because |fiof the existence of joint solidarity by all defendants as a result of the alleged defamatory publication by Ms. Arceneaux. Lastly, Dr. Farber argues that the district court erred in awarding attorney’s fees and costs to defendants under La.Rev.Stat. § 37:1287. Defamation

The Louisiana Supreme Court has recently addressed defamation in Costello v. Hardy, 2003-1146, pp. 12-13 (La.1/21/04), 864 So.2d 129, 139-140, wherein it was noted that “defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name.” By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Id. A successful claimant in a defamation action must establish the following elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Wood v. Del Giorno, 2006-1612, p. 4 (La.App. 4 Cir. 12/19/07)974 So.2d 95, 98; Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Costello, 2003-1146 at p. 12, 864 So.2d at 139. Thus, in order to prevail on a defamation claim, a plaintiff must prove “that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” Id.; Trentecosta, 96-2388 at p. 10, 703 So.2d at 559. “If even one of the required elements of the tort is lacking, the cause of action fails.” Wood, 2006-1612 at p. 4, 974 So.2d at 98. Even when a plaintiff makes a prima facie showing of the essential elements of defamation, | ^recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified. Id.

In Louisiana, defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Kennedy v. Sheriff of East Baton Rouge, 2005-1418, p. 5 (La.7/10/06), 935 So.2d 669, 674-75. Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se. Kennedy, 2005-1418 at p. 5, 935 So.2d at 675. When a plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Wood, 2006-1612 at p. 5, 974 So.2d at 99. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Wood, 2006-1612 at pp. 5-6, 974 So.2d at 99.

Summary Judgment: Defamation claim against Rita Arceneaux

Appellate courts review motions for summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Champagne v. Ward, 2003-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. Summary judgment is appropriate when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather point out to the court that there is an absence of 17factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ. Proc. art. 966(C)(2). Summary judgment is favored under our law and shall be construed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. Proc. art. 966(A)(2).

Appellant’s assertion that the determination of malice in a defamation action is rarely appropriate for summary judgment is without merit. On the contrary, this Court has held that “because of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment.” Wood, 2006-1612 at p. 3, 974 So.2d at 98. The Louisiana Supreme Court has held that “summary adjudication is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.” Kennedy, p. 25, 935 So.2d at 686.

In the matter sub judice, upon de novo review, we find that the granting of summary judgment to Rita Arceneaux was appropriate, and that plaintiff presents no genuine issue of material of fact in his defamation claim against her. Plaintiff alleged in his petition that Rita Arceneaux, as an employee of the LSBME, knowingly provided false or erroneous information an LSBME to the National Practitioner Databank (“NPDB”) and the American Board of Medical Specialties (“ABMS”), and doing so with malicious intent. Plaintiff alleges that Rita Arceneaux published incorrect information concerning his restrictions on practicing medicine and his conduct of practice.

In support of her motion for summary judgment, Rita Arceneaux attached an affidavit stating that Dr. Farber’s allegations against her relate to her position as Direct Assistant to the Executive Director of the LSBME. As part of her work | ¿responsibilities, Ms. Arceneaux stated that following the 2005 Consent Order issued against Dr. Farber, she submitted a report to the data banks from the LSBME. According to Ms. Arceneaux’s motion for summary judgment, the report stated:

“... information indicated that George Allen Farber, M.D. violated the terms of the Consent Order entered into with the Louisiana State Board of Medical Examiners in March 2002 relative to care provided to a patient and administration of Lincocin contrary to current standards of practice and warnings of the LSBME.”

Dr. Farber, through means unknown, disputed the language of this report, and the LSBME responded, through Ms. Arcen-eaux, with the following statement:

“George Allen Farber, M.D. issued prescriptions for Lincocin in violation of his March 2002 Consent Order with the Louisiana State Board of Medical Examiners.”

Ms. Arceneaux moved for summary judgment on the basis that neither of the above statements that she prepared and issued to the databanks can be considered false. She also argued that plaintiff can present no evidence that these two statements were published with malice. Finally, Ms. Arceneaux argued that, as an employee of the LSBME, she is immune from liability for defamation under La.Rev.Stat. § 37:1287(A). We agree with Ms. Arcen-eaux on all three fronts, and affirm the granting of her motion for summary judgment.

Upon our review of the 2002 and 2005 Consent Orders, we do not find that either of the two statements allegedly written by Ms. Arceneaux, on behalf of the LSBME, can in any way be considered false. First, plaintiff argues that Ms. Arceneaux’s statement “relative to care provided to a patient” is an incorrect, and thus false, interpretation of the 2002 Consent Order. We agree that Dr. Farber’s 2002 Consent Order points out that the procedures performed by him that led to the |3patient’s administrative complaint were “not alleged to be below standards of practice.” However, plaintiff was clearly reprimanded for “clinical mismanagement” and “inappropriate prescriptions of Lincocin.” Then, in the 2005 Consent Order, plaintiff was reprimanded again and fined for prescribing Lincocin in violation of the prior 2002 Consent Order. We do not find the LSBME’s original statement, issued through Ms. Ar-ceneaux, to be false. By prescribing Lin-cocin in violation of his Consent Order after well-documented warnings of its use by the Board, plaintiff clearly violated the 2002 Consent Order “relative to care” of a patient by prescribing Lincocin, and doing so in a manner contrary to standard practices.

Secondly, plaintiff provided no evidence that Ms. Arceneaux acted with malice. The mere act of publishing a second, clarifying statement focusing more narrowly on Dr. Farber’s prescription of Lincocin does not make the initial statement malicious. “Malice (or fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation.” Costello, 2003-1146 at p. 18, 864 So.2d at 143. The LSBME, through Ms. Arceneaux, believed in the truth of the statements, and the statements to the databanks were in fact true. Most importantly, after Ms. Arceneaux presented her affidavit and the Consent Orders in support of summary judgment, Dr. Farber presented no evidence of any kind that show malice on the part of Ms. Arceneaux or the LSBME.

Furthermore, as for liability from immunity for agents and employees of the LSBME, La.Rev.Stat. § 37:1287(A) provides as follows:

§ 1287 Protected action and communication
[inA. There shall be no liability on the part of and no action for damages against any member of the board, or its agents or employees, or any member of an examining committee of physicians appointed or designated by the board, for any action undertaken or performed by such person within the scope of the duties, powers, and functions of the board or such examining committee as provided for in this Part when such person is acting without malice and in the reasonable belief that the action taken by him is warranted.

As to civil immunity, plaintiff presented no significant or persuasive opposition to summary judgment on these grounds, and this Court finds it clear that Ms. Arcen-eaux was merely acting within the scope and duties of her employment with the LSBME when the alleged statements were published. The alleged statements cannot be considered defamatory per se, as they merely stated the facts of his punishment by the Board. Any injury done to Dr. Farber’s reputation was the result of his disciplinary actions before the LSBME; and they are actions that plaintiff agreed had occurred as evidenced by his signed acknowledgment of both consent orders. Because plaintiff offered no evidence of the essential element of falsity and malice, and the publication was privileged under La. Rev.Stat. 37:1287(A), we find no error in the granting of Ms. Arceneaux’s motion for summary judgment dismissing Dr. Far-ber’s defamation claim against her.

Exception of Prescription: Defamation claim against Dr. Bobear, Ms. Gaudin

Next, plaintiff argues that the district court erred in sustaining the exception of prescription filed by Dr. Bobear and Ms. Gaudin. Ms. Gaudin was an investigative assistant to Dr. Bobear, the Medical Consultant / Director of Investigations for the LSBME. Plaintiff argues that as employees of the Board, they are jointly or solidarity liable with Ms. Arceneaux. Appellant contends that “the conduct of Bobear, Gaudin and Arceneaux, all occurred under the auspices of the Board, and thus constitutes a continuing tort.”

InAn exception of prescription is a type of peremptory exception. La. Code Civ. Proc. art. 927. The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action. La.Code Civ. Proc. art. 923. Prescription is purely a factual determination. Bell v. Glaser, 2008-0279, p. 4 (La. App. 4 Cir. 7/1/09), 16 So.3d 514, 516. Therefore, in reviewing a peremptory exception of prescription, an appellate court should not disturb the factual findings of the trial court unless it is clearly wrong. Ramelli Group, L.L.C. v. City of New Orleans, 2008-0354, p. 3 (LaApp. 4 Cir. 10/22/08), 997 So.2d 612, 615. In the absence of manifest error, the trial court should not be reversed, since the issue to be decided by the trial court is not whether was right or wrong, but whether the fact finder’s conclusion was reasonable. Turnbull v. Thensted, 99-0025, p. 5 (La. App. 4 Cir. 3/1/00), 757 So.2d 145, 149. “Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it.” Bailey v. Khoury, 2004-0620, 2004-0647, 2004-0684, p. 9 (La.1/20/05), 891 So.2d 1268, 1275. When addressing an exception of prescription, the burden of proof lies with the party asserting prescription. However, in the event the plaintiffs claim is barred on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Eastin v. Entergy Corp., 2003-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.

Defamation sounds in tort and therefore is subject to the one-year prescriptive period for delictual actions set forth in La. Civ.Code art. 3492. Rozas v. Department of Health & Human Resources, State of La., 522 So.2d 1195, 1196 (La.App. 4 Cir.1988); Doughty v. Cummings, 44,812, p. 5 (La.App. 2 Cir. 11⅞12/30/09), 28 So.3d 580, 583. Under La. Civ.Code art. 3492, prescription commences to run from the day injury or damage is sustained.

Dr. Farber’s defamation claim against Dr. Bobear and Ms. Gaudin stem from an April 2004 response, on behalf of the LSBME, to a subpoena duces tecum issued in an unrelated case, mistakenly declaring that Dr. Farber has received disciplinary action regarding a medical license in the state of Rhode Island. The report allegedly erroneously stated that Dr. Far-ber’s medical license in Rhode Island was suspended for three years for unprofessional conduct. However, Dr. Farber has never had a medical license in Rhode Island. The LSBME soon recognized that the mistake was the result of a computer typographical error in which the wrong information was cut-and-pasted into the subpoena duces tecum response concerning Dr. Farber.

In support of the exception of prescription, Ms. Gaudin submitted an affidavit describing the mistake as follows:

On or before April 20, 2004,1 received from attorney Michael L. Vincenzo an inquiry as to the status of license of George Allan Farber, M.D. I keep such information on a computer disk, and I accessed Dr. Farber’s name on the disk. Immediately adjacent to Dr. Farber’s name was the name of another physician whose disciplinary information included a charge of unprofessional conduct in the state of Rhode Island. By mistake, I cut and pasted this information onto the response to inquiry regarding Dr. Farber and sent the response to Mr. Vincenzo.
I learned of the error on September 9, 2004, upon being presented with a copy of my April 20, 2004 response to Mr. Vincenzo, my learning that Dr. Farber had denied ever receiving or applying for a license to practice medicine in Rhode Island and my again accessing the data on Dr. Farber and the other physician.

Plaintiffs claim against Dr. Bobear and Ms. Gaudin for this April 2004 publication was prescribed on its face when the petition in this matter was filed in 113May 2008, and plaintiff has provided no evidence to show that the action has not prescribed. Plaintiff argued in the trial court that all defendants (Ms. Arceneaux, Dr. Bobear, and Ms. Gaudin) are jointly and solidarily liable. However, his claim for defamation against Ms. Arceneaux, which all parties admit was not prescribed due to the 2006 federal lawsuit by Dr. Farber, is a wholly separate claim for defamation than the April 2004 erroneous publication regarding Rhode Island disciplinary action. Therefore, the three defendants cannot be considered solidary obligors interrupting prescription against all. While plaintiff did file a prior federal action in August 2004, the defamation claim in this first federal suit made no mention of Ms. Gaudin, nor did it describe any allegedly defamatory conduct. This federal action was dismissed in September 2004, with the federal judge allowing the re-filing of the yet-described defamation claim to be re-filed in state court. In fact, the Rhode Island-defamation claim was prescribed on its face before plaintiffs July 2006 federal lawsuit (one year following the April 20, 2004 subpoena duces tecum response). Plaintiff waited nearly four years, until May 19, 2008, to re-file his claim against Dr. Bobear and Ms. Gaudin.

Finally, we decline to consider plaintiffs argument that Di*. Bobear’s and Ms. Gau-din’s actions constitute a continuing tort. It is well established that as a general matter, appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court and which the trial court has not addressed. Billieson v. City of New Orleans, 2009-0410, p. 8 (La.App. 4 Cm. 11/12/09), 26 So.3d 796, 801-802. For these reasons, we find no error in the trial court’s sustaining of the exception of prescription filed by Dr. Bo-bear and Ms. Gaudin regarding Dr. Far-ber’s defamation claim against them.

| ¡¡Awarding of Attorney’s Fees

Following the trial court’s judgment granting summary judgment to Ms. Arcen-eaux and sustaining Dr. Bobear and Ms. Gaudin’s exception of prescription, all three defendants filed a Motion for Award of Costs and Attorneys’ Fees. Defendants argued that both of Dr. Farber’s separate defamation claims against them were “frivolous, unreasonable, without foundation, and/or brought in bad faith,” and requested that the court grant attorney’s fees and costs under La.Rev.Stat. § 37:1287(0, which provides as follows:

C. In any suit brought against the board, its employees or agents, any member of an examining committee appointed by the board or any person, firm, or other entity providing information to the board, when any such defendant substantially prevails in such suit, the court shall, at the conclusion of the action, award to any such substantially prevailing party defendant against any such claimant the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim was frivolous, unreasonable, without foundation, or in bad faith. For the purposes of this Section, a defendant shall not be considered to have substantially prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief.

(Emphasis added). Louisiana courts have long held that attorney’s fees may not be awarded except where authorized by statute or contract. Audubon Orthopedic and Sports Medicine, APMC v. Lafayette Ins. Co., 2009-0007, p. 21 (La.App. 4 Cir. 4/21/10), 38 So.3d 963, 978, writ denied, 2010-1153, 2010-1155 (La.10/8/10), 46 So.3d 1266. The trial court is afforded with great discretion in arriving at an award for attorney’s fees. ORX Resources, Inc. v. MBW Exploration, L.L.C., 2009-0662, p. 12 (La.App. 4 Cir. 2/10/10), 32 So.3d 931, 938, writ denied, 2010-0530 (La.5/7/10), 34 So.3d 862.

In the same spirit in which La.Rev.Stat. § 37:1287 protects employees of the LSBME from liability for publication of disciplinary conduct, the Louisiana | ^Legislature has set forth a penalty of attorney’s fees and costs for such suits that are done with frivolity or in bad faith. In this matter, and in the numerous state and federal actions preceding this one, plaintiff has made meritless claims in defamation against the three defendants, in which he has been unable to provide any evidence of fault or malice that would give rise to a legitimate or actionable claim. It is clear from the record that Ms. Arcen-eaux was merely acting in her duties as an employee of the LSBME in publishing and communicating factual information concerning the disciplinary actions taken against Dr. Farber. It is also clear that even if plaintiffs claim against Dr. Bobear and Ms. Gaudin was not clearly prescribed, a singular subpoena response to a private attorney mistakenly including information from disciplinary action against another doctor cannot be considered to be defamatory in nature. This Court finds no abuse of discretion in the trial court’s awarding of $25,223.79 for attorney’s fees and costs under La.Rev.Stat. § 37:1287(C).

The public interest requires that government officials such as employees of the LSBME be able to freely publish correct, factual information concerning the conduct and discipline of medical doctors who avail themselves to the public for the offering of vital medical services. It would be self-defeating for society to impose civil liability on such persons who have “no intent to mislead.” Kennedy v. Sheriff of East Ba ton Rouge, 2005-1418, p. 19 (La.7/10/06), 935 So.2d 669, 683.

Conclusion

For the reasons stated above, this Court affirms the judgment of the district court in granting the motion for summary judgment filed by Ms. Arceneaux and sustaining the exception of prescription filed by Dr. Bobear and Ms. Gaudin. Because we find no abuse of discretion in the trial court’s awarding of attorney’s |1tifees, the district court judgment awarding attorney’s fees under La.Rev.Stat. § 37:1287(0 is affirmed.

AFFIRMED.

MURRAY, J., concurring with reasons.

MURRAY, J.,

concurring with reasons.

| ^though I agree with the result the majority reaches, I write separately to address in more detail the issue of the trial court’s award of attorneys’ fees and costs totaling $25,223.79 pursuant to La. R.S. 37:1287(0). The majority finds the statutory requirement that the claims were “frivolous, unreasonable, without foundation, or in bad faith” was met. The majority further finds no abuse of discretion in the amount of attorneys’ fees and costs awarded. The majority, however, fails to address directly two of Dr. Farber’s contentions regarding the award. First, he contends the award was improper because the Louisiana State Board of Medical Examiners (the “Board”) — a non-pai'ty — paid the attorneys’ fees and costs. Second, he contends that the amount awarded is excessive given the nature of the proceedings — a simple, garden-variety defamation claim that did not involve complex or novel legal issues.

Insofar as the Board’s payment of the attorneys’ fees and costs, the statute does not condition the award of attorneys’ fees and costs on the personal payment of such fees and costs by the individual defendants. Rather, the plain language of the statute simply states that the court shall, under the appropriate circumstances, award “the cost of the suit attributable to such claim, including reasonable attorney’s fee.” La. R.S. 37:1287(C). The Board’s payment of the attorneys’ fees 12and court costs to defend its current and former employees against this suit does not preclude the trial court from casting Dr. Far-ber in judgment for these amounts under La. R.S. 37:1287(C).

Nor do I find the total amount awarded either unsupported or excessive. The Board established the actual amount of attorneys’ fees and court costs that were incurred by providing the trial court with a certified revised certificate of cost, which is dated March 29, 2010, and is signed by Robert L. Marier, M.D., in his capacity as the Board’s Executive Director. The Board certified that the total attorneys’ fees were $23,556.75, the total court costs were $1,667.04, and the grand total was $25,223.79. As Defendants contend, the trial court apparently found that the attorneys’ billing invoices attached to Dr. Mari-er’s certificate related to this case, were credible, and that the total amount claimed of $25,223.79 was reasonable.

The circumstances in this case, as Defendants contend, are similar to those presented in Baer v. Cabiran-Baer, 09-1484 (La.App. 4 Cir. 7/28/10), 44 So.3d 840, a domestic case in which this court affirmed an award of attorney’s fees and costs of $22,000.00 pursuant to a provision in a premarital agreement. In so doing, this court in Baer, supra, noted that the case had involved multiple motions, exceptions, and court conferences and had spanned over a two-year period. This court also noted in Baer, supra, that a trial court has great discretion in determining the amount of attorneys’ fees to be awarded. Id. (citing ORX Resources, Inc. v. MBW Exploration, L.L.C., 09-0662, p. 12 (La.App. 4 Cir. 2/10/10), 32 So.3d 931, 938, writ denied, 10-0530 (La.5/7/10), 34 So.3d 862). Given the circumstances of this case, I cannot conclude that the trial court abused its great discretion in fixing the award of attorneys’ fees and costs.

      . In the 2002 Consent Order, the Board stated that Dr. Farber routinely used Lincocin, an antibiotic medication, "in spite of the Board's publication of FDA-mandated warnings that Lincocin was associated with fatal colitis and should not be administered routinely but ‘reserved for serious infections where less toxic anti-microbial agents are inappropriate.’ ”

      . In a matter unrelated to the case sub judice, a subsequent administrative complaint to the Board in 2007 led to the revoking of Dr. Farber’s medical license in 2009.