text:
    Sheral A. FLUGENCE v. GREAT WESTERN CASUALTY COMPANY, et al. Warner Colbert v. Great Western Casualty Company, et al. Mary Flugence v. Great Western Casualty Company, et al.
    No. 2011-CC-2073.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re A & R Transport Inc.; Axis Specialty Insurance Co.; Great Western Casualty Company et al.; Serrette, Kent;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, Nos. 20081444, 20081445, 20081446; to the Court of Appeal, Third Circuit, No. CW 11-00726.

Denied.

VICTORY, J., would grant.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Debra Arlene SOULIER v. Warren SOULIER, Sr.
    No. 2010 CA 2256.
    Court of Appeal of Louisiana, First Circuit.
    July 15, 2011.
    C. Glenn Westmoreland, Livingston, LA, for Plaintiff/Appellee Debra Arlene Soulier.
    Edward G. Partin, II, Pride, LA, for Defendant/Appellant Warren Soulier, Sr.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

| gIn this case, pursuant to a stipulated judgment, a minor child resided with her paternal grandfather, and the minor child’s mother made monthly child support payments to the paternal grandfather.

On September 21, 2009, Debra Arlene Soulier (Ms. Soulier), the mother of the minor child, Candace Soulier (Candace), filed suit against the paternal grandfather (her former father-in-law), Warren Soulier, Sr. (Mr. Soulier), asserting that Mr. Soulier was unjustly enriched by her child support payments of $400.00 per month between December 18, 2007, and December 15, 2008. Ms. Soulier asserted that she stopped the support payments in December of 2008 because Candace had turned 19. Ms. Soulier asserted that Candace had moved in with Ms. Soulier’s brother on December 18, 2007, without Ms. Soulier’s knowledge, and stayed with him through her 19th birthday (December 22, 2008); thus, she asserted that Mr. Soulier had not used the child support payments for the support of Candace for that one-year period and he had been unjustly enriched by her payments. Ms. Soulier prayed for the return of the $4,800.00 in child support payments for that time period, as well as interest from date of judicial demand, and costs.

Mr. Soulier denied the claims, and the matter was set for trial. After trial on the merits, the trial court ruled in favor of Ms. Soulier and against Mr. Soulier, and ordered Mr. Soulier to pay Ms. Soulier $2,400.00 (one-half of the payments at issue), plus legal interest from date of judicial demand until paid, and ordered that each party pay their own court costs.

Mr. Soulier is appealing that judgment, and argues that the remedy of unjust enrichment is not available because Louisiana Civil Code article 142 specifically provides a remedy for this situation, as it allows for the modification or termination of child support awards.

|sWe agree. Louisiana Civil Code article 2298 provides in part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule. (Emphasis added.)

Louisiana Civil Code article 142 provides that an award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that is has become unnecessary. Ms. Soulier’s remedy was to have the child support award modified or terminated, which she tailed to do. Therefore, the trial court committed legal error in its award to Ms. Soulier.

Thus, the August 17, 2010 judgment of the trial court is reversed. Costs are assessed against Ms. Soulier.

REVERSED.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Michael FORTENBERRY.
    No. 2011-KA-0022.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, For State of Louisiana, Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Michael Fortenberry, Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

11 Michael S. Fortenberry (“Fortenber-ry”), the defendant, was charged with theft of goods, a violation of La. R.S. 14:67.10. He was arraigned on 19 March 2010, at which time he was informed of his right to a jury trial. On 23 April 2010, the trial court found no probable cause for continued detention after a preliminary hearing.

On 30 July 2010 Fortenberry was tried before a judge. The minutes reflect that he appeared represented by counsel, and that the court “advised the defendant of his right to trial by judge or jury.” The minutes also state that “the defendant elected to have a trial by judge.” The judge found him guilty as charged.

After being found a two-time multiple offender, Fortenberry was sentenced to one year at hard labor, with credit for time served. This appeal follows.

STATEMENT OF FACTS

Keith Evans is a manager at the Rouse’s Supermarket meat department located on Tchoupitoulas Street in New Orleans. On 4 February 2010, he observed Fortenberry empty meat from a four-foot section of the Rouse’s meat section into a shopping cart. The upper basket of the shopping cart had multiple empty Rouse’s plastic bags, and something else was sitting on top of the bags. Mr. |2Evans observed Fortenberry take the basket halfway down aisle 13. Fortenberry proceeded to place the meat into plastic grocery bags, like the bags in the upper basket, while walking slowly, as though shopping. His hands moved quickly as he filled the bags.

Mr. Evans returned to his department and called Robert James, the store director, to inform him of Fortenberry’s activities. Mr. Evans then went down aisle 14 — next to aisle 13 — and beat Fortenber-ry to the front of the store. Mr. Evans met Mr. James at customer service. He waited for Fortenberry at the exit.

Mr. Evans also told Edwin Callia, the assistant manager, what was happening. Mr. Callia observed Fortenberry filling the bags and estimated he had at least ten packs of meat. Mr. Callia also estimated the goods to be worth over three hundred dollars. Mr. James went to aisle 13 briefly too, saw Fortenberry, and went to wait for him at the front office. He has worked for Rouse’s for ten years, and he opined that it was very unusual for someone to bag their own groceries in an aisle. Based on this activity, Mr. James immediately thought Fortenberry was shoplifting. However, he elected to wait and see what would happen.

According to Mr. Evans, Fortenberry pushed the cart through a closed register lane when he came out of aisle 13. According to Mr. Callia and Mr. James, For-tenberry left the cart in front of the register and walked through the register aisle carrying the bags. He then proceeded out the exit. Based on his experience, Mr. James opined that walking through a register aisle without paying for merchandise shows “obvious intent” to shoplift. He always waits until shoplifters reach the door to stop them.

To exit the store, one must go through two sets of doors — one after the other. Mr. James generally waits until shoplifters cross the threshold of the first set |sof doors to stop them. Mr. Evans situated himself between the doors. As the doors opened for Fortenberry, he was asked for a receipt for the goods in the shopping cart. Fortenberry was unable to produce one.

Fortenberry insisted his wallet was in his truck. He was escorted outside, where a man and a woman were in the truck. No wallet was found. Fortenberry was escorted back into the store and the police were called.

Mr. Evans testified that he thought the value of the goods taken was over $300. According to him, the store manager directed the “front end manager” to “run a receipt” for the goods Fortenberry had in his cart. Mr. Evans identified the receipt in court as reflective of the items Forten-berry took. It identified the items and was dated 4 February 2010. Mr. James also identified “the receipt we scanned of the merchandise that [Fortenberry] walked out with.” It was introduced at trial as S-l and indicated a total of the items to be $322.30.

ERRORS PATENT

The record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

Fortenberry argues that this case must be remanded to determine whether he knowingly and intelligently waived his right to a jury trial because the record fails to show he knowingly and intelligently waived said right.

Pursuant to La.C.Cr.P. art. 780, a defendant to a non-capital charge may “knowingly and intelligently” waive the right to a jury trial. The trial court “shall” inform the defendant of the right to a jury trial at arraignment. La.C.Cr.P. art. 780(A). Moreover, a defendant “shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521.” La.C.Cr.P. art. 780 B. |„La. C. Cr. P. art. 521 requires that “[pjretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court ... upon a showing of good cause that fifteen days is inadequate.” However, at the time of Fortenberry’s trial, a defendant could exercise the right to waive the right to a jury trial at any time prior to commencement of trial with permission of the trial court. La.C.Cr.P. art. 780 B.

The docket master and the minutes reflect that Fortenberry was “INFORMED OF RIGHT TO TRIAL BY JUDGE OR JURY” at his arraignment; such complies with La.C.Cr.P. art. 780 A. The docket master shows Fortenberry waived his right to a jury trial on the day of trial, 30 July 2010. The docket master also reflects that he was represented by counsel and “DEFENDANT ELECTED TRIAL BY JUDGE.” The minutes reflect that For-tenberry appeared represented by counsel, and that the court “ADVISED THE DEFENDANT OF HIS RIGHT TO TRIAL BY JUDGE OR JURY.” The minutes also state that, “THE DEFENDANT ELECTED TO HAVE TRIAL BY JUDGE.” Mary Beth Meyer, the official court reporter for Section “A” of the Orleans Parish Criminal District Court, issued a 7 February 2011 certificate, stating that she had searched her notes and tapes for an 23 April 2010 hearing and the 30 July 2010 trial and “was unable to find on the record where the defendant, nor his lawyer, waived his right to a jury trial and selected a judge trial.” Ms. Meyer further stated, “[t]he fact appears in the minute entry of July 30, 2010, but is not confirmed in open court.”

A defendant’s decision to waive the right to a jury trial must be “knowingly and intelligently” made. La.C.Cr.P. art. 780 A. Waiver cannot be presumed and |smust be established by a contemporaneous record setting forth the articulated appraisal of the right followed by a knowing and intelligent waiver by the accused. State v. Jones, 99-2595, p. 8 (La.App. 4 Cir. 11/8/00), 773 So.2d 234, 239. Where no evidence in the record exists showing a defendant specifically waived the right to a jury trial, the case must be remanded for an evidentiary hearing to determine whether the defendant knowingly waived this right. State v. Thompson, 02-1682, 02-1683, 02-1684, 02-1685, p. 22 (La.App. 4 Cir. 5/21/03), 848 So.2d 703, 709; State v. Moses, 01-0909, p. 4 (La.App. 4 Cir. 12/27/01), 806 So.2d 83, 86, analyzing State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 964. Moreover, where a conflict exists between a minute entry and a transcript, the transcript controls. State v. Randall, 10-0027, p. 3 (La.App. 4 Cir. 10/27/10), 51 So.3d 799, 802; State v. Lynch, 441 So.2d 732 (La.1983).

In this case, the minute entries and docket master indicate that Fortenberry waived his right to a trial by jury immediately prior to trial. However, Ms. Meyer’s certificate reflects that a review of her recordings and notes fails to show any waiver was made. Under these circumstances, the controlling documentation— the transcript — fails to show Fortenberry knowingly and intelligently waived his right to a jury trial. The trial transcript contradicts the minutes. If Fortenberry was informed by the court of his right to a jury trial and knowingly and intelligently waived that right, it would have been present in Ms. Meyer’s recording of the trial and her notes.

The state points to State v. Hall, 99-2887, p. 17 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 63, wherein this court stated:

| (¡The sentencing transcript does not reflect whether or not defense counsel was present prior to and/or at the moment of sentencing, but does affirmatively show he was present at the hearing after sentencing. This “silence” in the transcript and defendant’s interpretation of the postsentencing [sic] colloquy between defense counsel and the trial court is not sufficient to rebut the presumption established by the minute and docket master entries that defense counsel was in fact present for sentencing.

The state argues that silence in a transcript is insufficient to “rebut the presumption established by the minute and docket master entries.” However the state cites no authority to support its assertion that minute entries and docket masters establish a presumption. In Hall, we noted that the transcript showed that defense counsel was present to move for appeal. 99-2887, p. 17, 775 So.2d at 63. The transcript containing the motion appeared immediately after the sentencing transcript, and the docket master reflected that both the sentencing and the motion for appeal occurred on the same date. Id. The instant case is distinguishable. Nothing in the transcript confirms that Forten-berry knowingly and intelligently waived his right to a jury trial. Under the facts of this case — where the court reporter was unable to find any evidence in her notes or her recording of the trial of a knowing and intelligent waiver of the right to a jury trial — this case must be remanded for a hearing to determine whether Fortenberry knowingly and intelligently waived his right to a trial by a jury.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, Fortenberry asserts that the evidence is insufficient to support his conviction because the state failed to prove the value of the misappropriated goods was between $300 and $500. The significance of this argument is that it impacts his sentence. He also asserts that his defense on appeal 17suffers prejudice from the absence from the record of the receipt admitted at trial showing the value of the groceries after they were scanned. He does not challenge any other facts supporting his conviction other than the value of the goods taken.

When assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). If a rational finder of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Id. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Johnson, 619 So.2d 1102 (La.App. 4 Cir.1993), citing State v. Rosiere, 488 So.2d 965, 968 (La.1986). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404, p. 5-6 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Like all factual matters, credibility determinations are entitled to great weight and will not be disturbed unless contrary to the evidence. Id., citing State v. Vessell, 450 So.2d 938 (La.1984). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.

|sLa. R.S. 14:67.10 B(2), as written at the time of the offense, provided a penalty of up to two years for theft of goods valued at $300 to $500.

The state’s witnesses at trial testified that the value of the groceries was just over $300. Mr. Callia, the assistant manager, observed Fortenberry filling the bags in the aisle and estimated that he had at least ten packs of meat. Mr. Callia estimated their value at over $300. Both Mr. Evans — the meat department manager — and Mr. James — store director — testified that the items confiscated from For-tenberry were scanned, and a receipt was printed out, evidencing the value of the items Mr. Fortenberry was attempting to take. Both Mr. Evans and Mr. James testified that the value of the items was over $300. They also both identified the receipt as reflective of the items Forten-berry attempted to take. When the state introduced S-l without objection, the assistant district attorney noted that it was “the receipt indicating that the value of the items in this case is $322.30.” Viewing the testimony of Mr. Callia, Mr. Evans and Mr. James, along with the trial transcript evidencing introduction of a receipt at trial, in a light favorable to the state, we are able to conclude, even in the absence of Exhibit S-l, that the value of the meat was over $300. We reach this conclusion based upon the fact that the meat was scanned at the store to obtain a total of the value of the meat. We understand scanning to have been performed at a cash register. Wfliat we do not know is whether the scanned total of $322.30 included or excluded the applicable sales tax. To the store, the value of the meat is without sales tax; that is, as owner of the meat, the store, paid no sales tax on the meat. To someone outside the store who has purchased the meat, the value thereof is the cost of the meat plus the sales |9tax paid thereon. We take judicial notice of the fact that on 4 February 2010 the combined Louisiana and Orleans Parish sales tax on food, such as meat, was 4.5%. Assuming missing Exhibit S-l included the sales taxes, the value of the meat would be $308.42; that is, $308.42 plus the 4.5% sales tax equals $322.30. If the Exhibit S-1 merely showed the total value of the meat, then the value is $322.30. In either case, the value is over $300.

Fortenberry complains that the receipt introduced at trial is missing and that he is prejudiced thereby, citing State v. Walker, 02-1350 (La.App. 4 Cir. 4/9/03), 844 So.2d 1060.

In Walker, we said:

La. Const, art. 1 [sic], § 19 provides that “[n]o person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all the evidence upon which the judgment is based.” (Emphasis added.) In State v. Ford, 388 So.2d 107 (La.1976), the Louisiana State Supreme Court stated as follows:
Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial. Id. at 110.
In State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the Louisiana Supreme Court set forth guidelines to be used to determine whether 110missing portions of a transcript in a criminal trial require reversal on appeal. That Court stated:
Both this court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly, where as [sic] here, appellate counsel was not counsel at trial. See Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); State v. Robinson, 387 So.2d 1143 (La.1980). Further, in Louisiana, a defendant is constitutionally guaranteed the right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” La. Const. Art. I, § 19. Thus, material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal....
On the other hand, inconsequential omissions or slight inaccuracies do not require reversal, as an incomplete record may nonetheless be adequate for appellate review. Id. at p. 10-11 and at 1234.
In the Demise case, the Court also stated that “a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts”. Id. at p. 11 and at 1234.

Id., 02-1350, pp. 11-12, 844 So.2d at 1066 [emphasis in original].

In Walker, the factual issue was identification of an armed robber, and this Court found that he was prejudiced by the absence of the following evidence from the record: video tapes and photographic lineups from investigations in several armed robberies. See Id., 02-1350, p. 10, 844 So.2d at 1065-1066. In doing so, this court noted the absence of an in-court identification of the defendant. Id., 02-1350, p. 13, 844 So.2d at 1067. Walker is distinguishable and inapplicable to the facts of the case before us.

Inin this case, Mr. Evans and Mr. James identified the receipt at trial. The assistant district attorney noted the amount of $322.30 when it was introduced into the record. Fortenberry makes no attempt — other than a conclusive allegation and the citation to Walker — to show any prejudice from the absence of the receipt, Exhibit S-l. Mr. Evans, Mr. Cal-lia, and Mr. James all saw the items For-tenberry stole and are all experienced in knowing the value of groceries. The current absence of a single piece of paper from the record in no way vitiates the evidentiary value of the record on appeal, given the testimony about the receipt in the trial transcript. Accordingly, this assignment of error lacks merit.

CONCLUSION

The record contains sufficient evidence to sustain the conviction, and Fortenberry has shown no prejudice from any incomplete record. However, the record fails to show that Fortenberry knowingly and intelligently waived his right to a trial by jury. Accordingly, we conditionally affirm the conviction and sentence of Fortenberry; but the case is remanded, in accordance with State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, for a hearing to determine whether Fortenberry knowingly and intelligently waived his right to a jury trial. If he did not knowingly and intelligently waive his right to a jury trial, then he is entitled to a new trial in accordance with law.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . La. Const. Art. I, § 17, relative to jury trials in criminal cases, was amended by 2010 La. Acts No. 1053 § 1, approved 2 November 2010, to require that a defendant may waive his right to a jury trial no later than forty-five days prior to trial. Act 1053 is inapplicable to Fortenberry's case.

      . La. R.S. 14:67.10 B(2) was amended by 2010 La. Acts, No. 585, § 1, effective 15 August 2010. The crime in this case was committed on 4 February 2010, before the amendment.


author: GREMILLION, Judge.

text:
    In re Appeal of ANR PIPELINE CO., Mona Kelley, in her official capacity as Cameron Parish Tax Assessor v. ANR PIPELINE COMPANY, et al.
    No. 11-379.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 2011.
    Rehearing Denied Sept. 14, 2011.

      Hilton S. Bell, Angela W. Adolph, Milling Benson Woodward, L.L.P., New Orleans, LA, for Defendants/Appellants, Southern Natural Gas Company, Tennessee Gas Pipeline Company, ANR Pipeline Company.
    Brian A. Eddington, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellee, Mona Kelley, Assessor for Cameron Parish.
    Robert Dean Hoffman, Jr., Attorney at Law, Covington, LA, for Defendant/Appel-lee, Louisiana Tax Commission.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liA group of interstate pipeline companies, ANR Pipeline Company, Tennessee Gas Pipeline Company, and Southern Natural Gas Company (the companies), appeal the decision of the district court that reversed the ruling of the Louisiana Tax Commission. This is but one of similar ad valorem tax disputes that have spread across the State like the pipelines these companies own. Specifically, Mona Kelley, Cameron Parish Tax Assessor, sought judicial review of the ruling, which reversed the assessments of the companies in parishes across the state, including Cameron Parish. The procedural history of the current dispute is intertwined with the others to a great degree, as other assessors have also sought judicial review in their respective parishes of the commission’s ruling.

FACTS AND PROCEDURAL HISTORY

During the years 1994 through 2003, certain pipelines had their properties assessed for ad valorem tax purposes at 15% of their fair market values (FMVs). Not so the companies, whose properties were assessed at 25 percent. “Public service properties,” such as pipeline or gas companies, are required to be assessed at 25% of their FMVs. La. Const, art. 7, § 18.

These disparate assessments were challenged by the companies in a suit filed in the 19th Judicial District Court. Rather than granting the companies their requested relief, refunds of the ten percent difference, the trial court and the First Circuit Court of Appeal held that the companies’ refunds should be based on reassessments employing the same methods and at the 15% rate their competitors had enjoyed. ANR Pipeline Co. v. La. Tax Comm’n., 05-1142-69 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006). The rationale supporting this remedy |aholds that the goal of courts in redressing disparate assessment cases is to achieve uniformity and equality in assessments. See Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923).

The Louisiana Tax Commission then ordered the assessors to reassess the companies’ properties using the same valuation methods as they had used for the other pipelines. Bobby Conner, Cameron Parish Tax Assessor at the time, undertook such a reassessment. The companies argued that the reassessed value should factor all forms of depreciation, including the physical and external, or economic, obsolescence of the pipelines. The argument for factoring external obsolescence was based upon the fact that the pipelines were operating below their capacities.

In support of their obsolescence valuation, the companies submitted the affidavits of Ms. Sally Costley, their tax agent; Mr. Thomas K. Tegarden, an expert in public utility property appraisal; Mr. Richard Smead, an expert in regulation of interstate natural gas pipelines by the Federal Energy Regulatory Commission; and Dr. David E. Dismukes, an LSU economist and Associate Director of the Center for Energy Studies at LSU. These experts evaluated the total value of the companies’ pipelines, then assigned values for the portion within Louisiana. This appraisal method is known as “unit appraisal.” The companies then supported their arguments for external obsolescence with data on the total capacities and loads of the pipelines.

Conner declined to factor obsolescence into the assessment because, he maintained, the companies had supplied insufficient documentation to support their figures. Specifically, Conner identified the companies’ failure to furnish data demonstrating the degree to which their pipelines in Cameron Parish had suffered diminished use. Conner’s reassessment resulted, largely, in the companies being (abided for amounts in excess of the original 25% assessments. The companies then appealed to the Louisiana Tax Commission. Diming the proceedings before the commission, testimony was heard from several witnesses, including Costley and Conner. The commission reversed Conner and held that he had abused his discretion in failing to allow for obsolescence in determining the proper assessment.

Conner retired during the pendency of the proceedings and was succeeded as assessor by appellee, Mona Kelley. Kelley appealed the commission’s ruling by filing the present action, a petition for judicial review, in the 38th Judicial District Court in Cameron Parish. The companies appealed the commission’s ruling by filing for judicial review in the 19th Judicial District Court. In response to Kelley’s petition, the companies filed exceptions of lis pen-dens, lack of subject matter jurisdiction, no right of action, and prescription. Those exceptions were rejected. The companies sought writs of supervisory review from this court, which were denied. The matter proceeded to trial on September 15, 2010. The trial court vacated the commission’s ruling.

The companies appeal the trial court’s ruling in favor of Kelley.

ASSIGNMENTS OF ERROR

The companies assign the following errors:

1. The trial court erred in denying Taxpayers’ declinatory exceptions of lis pendens, improper venue and lack of subject matter jurisdiction and preemp-tory exceptions of no cause of action, no right of action and prescription.
2. The LTC and trial court erred in placing the burden of proof as to obsolescence on Taxpayers.
3. The evidentiary standard in overcoming a presumption of correctness in favor of an assessor is by a preponderance of the evidence.
4. The LTC and trial court erred in finding that the Assessor had 1 ^utilized the same methodology as used for nonpublic service pipelines in Cameron Par-ishe.[sic]
5. The LTC erred in adopting the Assessor’s determinations of fair market value and applying a deduction for throughput/capacity utilization.
6. The trial court erred in adopting the Assessor’s determinations of fair market value.
7. The LTC and trial court erred in failing to recognize additional obsolescence in Taxpayers’ property.
8. The LTC Guidelines, § 1301A, et seq., for the years 1998 through 2003 are invalid and conflict with La. R.S. 47:2323 C, which requires that Assessors recognize all depreciation under the cost approach, including all forms of obsolescence.
9. The use of the LTC Guidelines, La. Ad.Code 61 (Part V): 1301, et seq., in valuing the Taxpayers’ property for the tax years 1994 through 2003 violates the due process and equal protection clause of the Louisiana and U.S. Constitutions since the Taxpayers were not provided notice that the Guidelines would apply to their property and were thus not provided an opportunity to participate in the LTC’s annual rule-making process when adopting the Guidelines.
10. The LTC Guidelines, La. Ad.Code 61 (Part V): 1301, et seq., used by the Assessor in valuing the Taxpayers’ property for purposes of determining refunds do not specify the information the Taxpayers were to provide to the Assessor for purposes of determining obsolescence in their properties and are thus so vague that the Guidelines violate the Taxpayers’ rights to due process and equal protection under the Louisiana and U.S. Constitutions.
11. The Assessor’s practice of disclosing the information the Assessor will consider in granting an allowance for obsolescence only after the tax rolls have closed violates the Taxpayers’ rights to due process and equal protection under the Louisiana and U.S. Constitutions.
12. The actions of the LTC and the Assessor in valuing the Taxpayers’ property for purposes of determining refunds violates the uniformity require-merits of the Louisiana Constitution and the equal protection and due process clauses of the Louisiana and U.S. Constitutions.

ANALYSIS

This court is not the first to confront these issues. Our colleagues on the Second Circuit Court of Appeal have dealt with these same issues ^involving the same companies. See Jones v. S. Natural Gas Co., 46,347, 46,348, 46,351 (La.App. 2 Cir. 4/13/11), 63 So.3d 1080. We find the second circuit’s analyses of these issues highly persuasive.

Standard of Review

This matter involves an appeal by Kelley of the actions of an administrative body, the Louisiana Tax Commission. The Administrative Procedures Act, La.R.S. 49:951, et seq., governs judicial review of decisions of administrative bodies in this case. See La.R.S. 49:964. The Act provides that an administrative body’s decisions can be affirmed, remanded for further proceedings, or reversed or modified if substantial rights of the appellant have been prejudiced because of legal error or if the decision is “[n]ot supported and sustainable by a preponderance of evidence as determined by the reviewing court.” La. R.S. 49:964(G)(6). Only when the administrative body has the opportunity to judge the credibility of witnesses and the reviewing court has not is deference owed to the factual determinations made by the agency. Id. In this case, only the commission received testimony from any witness.

Assignment of Error 1:

The companies filed six exceptions to Kelley’s action. The trial court denied those, and the companies sought writs with this court. In denying writs, we found no error in the trial court’s ruling. Kelley v. ANR Pipeline Co. 10-670 (La.App. 3 Cir. 8/3/10) (unpublished denial of writs). Unless we refer an issue for appeal, this court does not reconsider matters when, in denying writs, we find no error. Uniform RulesCourts of Appeal 2-18.7; D’Amico, Curet & Dampf v. Jumonville, 458 So.2d 903 (La.1984).

1 (Assignment of Error 2:

The companies’ second assignment of error urges that the commission and the trial court placed the burden of proof of obsolescence on them rather than the assessor. They cite La. R.S. 47:2324, which provides, in pertinent part (emphasis theirs), “Each assessor shall gather all data necessary to properly determine the fair market value of all property subject to taxation within his respective parish or district.” They also contend that the commission’s regulations regarding the forms taxpayers must file, specifically the LAT 14 form, require the assessor to return insufficient forms for further compliance. La.Admin.Code 61:V.1303(B). Lastly, the companies cite our decision in Warren Energy Resources, Inc. v. Louisiana Tax Commission, 02-115 (La.App. 3 Cir. 8/28/02), 825 So.2d 572, writ denied, 02-2450 (La.12/13/02), 831 So.2d 985, for the proposition that La.R.S. 47:2324 requires the assessor to be more than a passive analyst of the sufficiency of the documentation submitted by the taxpayer.

The companies, though, ignore § 2324’s express approval of an assessor’s use of self-reporting forms to secure the data he needs in order to determine the FMV of property. And our courts have long held that the party seeking obsolescence bears the burden of producing sufficient evidence to the assessor. Dow Chemical Co. v. Pitre, 468 So.2d 747 (La.App. 1 Cir.1985), writ denied, 474 So.2d 1308 (1985); Bailey v. Enervest Operating Co., LLC, 45,553 (La.App. 2 Cir. 6/30/10), 43 So.3d 1046.

We find no merit to the companies’ second assignment of error.

17Assignments of Error 3 through 7:

The essence of the companies’ assignments of error three through seven is that the commission and the trial court failed to apply the principles of fair market valuation established by La. Const, art. 7, § 18. The companies not only disagree with Conners’ determination that they were not entitled to a reduction in the FMVs based upon external obsolescence, they also disagree with the commission’s decision to adopt Conners’ determination of raw FMV, and to then apply an obsolescence factor based on the data they supplied. In other words, they contend that the commission’s determination of FMV was too high even after reduction for external obsolescence. Because the pipelines are regulated by the Federal Energy Regulatory Commission, the price a buyer would willingly pay is diminished. The FMV is “the price for property which would be agreed upon between a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances!)]” La.R.S. 47:2321. Three forms of appraisal are approved by the revised statutes: 1) the market approach, in which the market estimate is based upon actual prices paid in transactions; 2) the cost approach, in which the assessor estimates the replacement or reproduction cost plus the market value of the land, then subtracts estimated depreciation; and 3) the income approach, “in which the anticipated net income is processed to indicate the capital amount of the investment which produces the net income.” La.R.S. 47:2323(0). Any or all of these approaches may be utilized. Id.

As we view the matter, the issue here is not whether an obsolescence factor is mandatory. Through 1999, the commission’s guidelines provided that “economic and functional obsolescence shall be given,” and, “should be recognized.” La.Admin.Code 61:V.1301. In 1999, the language was changed to |sthe more permissive “may be recognized.” La. Reg. 25:316 (February 1999). In March 2009, the language was again changed to provide, “Functional and/or economic obsolescence shall be considered in the analysis of fair market value as substantiated by the taxpayer in writing.” Regardless of whether the assessor is mandated to recognize economic obsolescence, he still retains the discretion to determine whether the taxpayer has substantiated that obsolescence. Rather, the issue is whether the commission manifestly erred when it determined that Conner abused his discretion in determining that the companies failed to sufficiently substantiate their claims of economic obsolescence.

We find that the record does not reasonably demonstrate that Conner abused his discretion. The figures supplied to Conner by the companies consisted of their annual system-wide percentages of pipeline capacity used. These figures changed between the time the companies submitted their reports to Conner in May 2006 and when their attorneys submitted a letter with an affidavit from Costley in August 2006. The differences between these figures have never been explained. Further, Conner noted that the figures were never particularized to Cameron Parish. This is critical.

The case of Transcontinental Gas Pipeline Corp. v. Louisiana Tax Commission, 09-1988-92 (La.3/16/10), 32 So.3d 199, involved a constitutional challenge under the Commerce Clause to the assessment of intrastate pipelines at 15% and interstate pipelines at 25%. The Louisiana Supreme Court recognized that FMV is not a constant. The ad valorem tax scheme requires that assessors value the portions of the pipelines within their parishes, while the commission values the entire system. “What a willing buyer would pay for a particular piece of pipe in one parish, and the apportioned value of a certain amount of pipe in a | ¿parish based on what a willing buyer would pay for an entire pipeline transportation business throughout the state might be quite different.” Id. at 214. It was incumbent upon the companies to establish the economic obsolescence of those portions of their pipelines within Cameron Parish. The only information the companies supplied was the percentages of pipeline capacity used for each year at issue, without supporting financial information regarding economic loss. This information might be adequate for the commission, which assesses the entire pipeline system, but it is not for parish assessors.

Accordingly, the decision of the commission to reverse the assessor was not supported or sustainable by a preponderance of the evidence. The trial court is affirmed.

Assignments of Error 8 and 9:

The companies’ assignment of error eight argues that the commission guidelines from 1998 to 2003 were in conflict with La.R.S. 47:2323. They contend that § 2323 mandates assessors to consider economic obsolescence, while the guidelines made it permissible. Their ninth assignment contends that the changes in the guidelines violated the companies’ due process and equal protection rights because they were not given notice of the changes nor afforded an opportunity to participate in the decision-making process that resulted in the changes to the guidelines. In Jones, 63 So.3d 1080, the second circuit interpreted the guidelines as a change in the burden of proof of obsolescence. Changes in the burden of proof, without altering or abrogating substantive rights, do not violate due process. Id. The right to obtain a reduction for obsolescence was not affected. This rationale applies equally to both assignments of error. We agree with and adopt the second circuit’s analysis.

11(⅛Assignments of Error 10 and 11:

These assignments of error address the duty the companies claim the assessor owes to timely notify them of the information needed to substantiate their claims for obsolescence and that the commission guidelines are impermissibly vague. We have already noted that the statutes place an obligation on the assessor to gather all information needed to determine FMV. •La.R.S. 47:2324. But we have also noted that the statute provides that in fulfilling this obligation the assessor may rely on self-reporting by the taxpayer.

The guidelines provide for return of the LAT Form 14 if it was not properly prepared. La.Admin.Code 61:V.1303. While the companies supplemented their forms with memoranda letters explaining their contentions that they were entitled to reductions for economic obsolescence, the information they supplied, sufficient for commission purposes, was not sufficient for the purposes of the assessors, who are obliged to assess only that portion of the property within their parishes. The functions of the commission and the assessors are statutory. The companies, who have been litigating these issues for years, are not ignorant of these functions and cannot avail themselves of ignorance of the law. La.Civ. Code art. 5. We see no demonstration that the guidelines or statutory provisions are impermissibly vague.

The companies summarily maintain that they “did not have an opportunity to participate in the LTC annual rulemaking under the Administrative Procedures Act ...” There is, however, no showing that the commission failed to comply with the dictates of the Administrative Procedures Act regarding the adoption of rules. See La.R.S. 49:953. The guidelines changes ordered by the commission were | published in the Louisiana Register. This assignment of error is without merit.

Assignment of Error 12:

The companies, in this assignment of error, contend that the requirement of uniformity in assessments was violated because some assessors granted reductions for economic obsolescence and others did not. In Jones, 68 So.3d 1080, the second circuit in addressing the same argument ruled that because allowing obsolescence is a function of the evidence presented to the assessor, the fact that some assessors allowed for obsolescence while others did not does not amount to unequal treatment, and we agree with our colleagues. The requirement of uniformity in assessments merely requires that uniform methods of appraisal be employed and does not mandate uniformity in results, as we have already noted.

CONCLUSION

Parish tax assessors appraise the value of property within their parishes. It is incumbent upon taxpayers positioned to claim to a reduction of their ad valorem tax liability to prove they are entitled to that reduction. The value of property owned by a taxpayer in one parish will have a different value in another parish, even assuming properties of the same size. Property in one parish will prove economically more beneficial than property in another parish. Property in one parish will see more use than property in another parish. Thus, in claiming economic obsolescence before a parish assessor, one must demonstrate that obsolescence particular to the parish in question. The determination of whether the information provided is satisfactory rests within the sound discretion of the assessor, subject to review at several levels.

Here, the Cameron Parish Assessor was provided with no information particularized to his parish. It cannot be said under those circumstances that he abused his discretion in refusing the companies’ requests for recognition 112of their claims for economic obsolescence. The commission’s reversal of his decision was without basis.

AFFIRMED.

      . See La.R.S. 47:1851(M).

      . The language of the statute on which the companies premise their argument, La.R.S. 47:2323, provides in pertinent part, “each assessor shall gather all data necessary to properly determine fair market value of all property subject to taxation within his respective parish or district." (Emphasis added). This emphasizes the local nature of the information required by the assessors.


author: GENOVESE, Judge.

text:
    Mandy Louise LaCroix PERDUE, et al. v. Danny Doyle CRUSE, et al.
    No. CM 11-983.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 24, 2011.

      Ricky L. Sooter, George I. Fine, Pro-vosty, Sadler, et al., Alexandria, LA, for Plaintiffs/Appellants, Mandy Louise La-Croix Perdue, Mary Elizabeth LaCroix Parsons, Leven E. LaCroix, Judy Mae La-Croix Craigo.
    Danny Doyle Cruse, In Proper Person, Trout, LA, Pro Se Defendant/Appellee.
    Kathy Ann Meeks Cruse, In Proper Person, Trout, LA, Pro Se Defendant/Ap-pellee.
    Christopher Cruse, In Proper Person, Trout, LA, Pro Se Defendant/Appellee.
    Joy Cruse, Trout, LA, In Proper Person, Trout, LA, Pro Se Defendant/Appel-lee.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|, The plaintiffs, Mandy Louise LaCroix Perdue, Mary Elizabeth LaCroix Parsons, Leven E. LaCroix, and Judy Mae LaCroix Craigo, have filed a rule in this court seeking to have the defendants, Danny Doyle Cruse, Kathy Ann Meeks Cruse, Christopher Cruse, and Joy Cruse, adjudicated in contempt of this court’s ruling rendered in an earlier appeal in this matter. For the reasons given below, we deny the Rule for Contempt.

In Perdue v. Cruse, 09-1446, p. 10 (La.App. 3 Cir. 6/2/10), 38 So.3d 1235, 1242, this court wrote:

Accordingly, the Cruses are ordered to remove the water line within 90 days of the finality of this decision. They are additionally ordered to arrange removal of the telephone and electrical lines within 90 days of the finality of this opinion.

The plaintiffs have now filed a Rule for Contempt in this court. They assert that since no application for rehearing was filed and no application for supervisory review was sought in the Louisiana Supreme Court, this court’s decision is now final and definitive. Thus, the plaintiffs contend that more than 90 days have passed since this court’s ruling became final, and, yet, the defendants have failed to comply with the above orders of this court. Therefore, the plaintiffs ask that this court order the defendants to show cause in this court why they should not be held in contempt of court, ordered to pay all court costs associated with these proceedings, including reasonable attorney fees, and should not be ordered to serve jail time in order to purge themselves of their contempt of court.

In Central Community School Bd. v. East Baton Rouge Parish School Bd., 09-285 (La.App. 1 Cir. 5/15/09), 20 So.3d 1060, the first circuit had ordered the East Baton Rouge Parish School Board (EBRPSB) to return or to transfer 31 buses to the Central Community School Board (Central). When the EBRPSB failed to comply with the first circuit’s ruling, Central filed a motion for contempt with the first circuit |2seeking to have that court rule the members of the EBRPSB to show cause, at a heaxdng in that court, why they should not be held in contempt of the first circuit’s order commanding the return or transfer of the buses. Central sought judgment against the EBRPSB members assessing them with a fine, jail time, costs, and all general and equitable relief.

In denying this motion, the first circuit writes:

In filing this motion directly with this Court, Central has failed to follow the requirements of La.Code Civ. P. art. 2251 which provides that a judgment can only be executed by a trial court and that the party seeking to execute a judgment of an appellate court must first file a certified copy with the clerk of the trial court. In regard to judgments other than money judgments, La.Code Civ. P. art. 2501 provides that a party in whose favor a judgment of possession has been rendered may obtain from the clerk a writ of possession directing the sheriff to seize and deliver the property to the prevailing party if it is moveable property. If a judgment has ordered delivery of a thing and the sheriff cannot seize it, the party entitled to performance may obtain by contradictory motion in the trial court remedies such as contempt and damages. La.Code Civ. P. art. 2502.
This Court is a court of review, not first impression, and cannot order the execution of an opinion rendered by it, nor can it conduct a contempt hearing for a party’s failure to comply with its opinion. Thus, this motion is dismissed as not properly before this Court.

Central Community School Bd., 09-285, p. 2, 20 So.3d at 1061.

In the instant case, the plaintiffs have failed to inform this court whether they have sought to execute this court’s prior opinion as provided by La.Code Civ.P. art. 2251. Even more specific to the issue presented by the instant Rule for Contempt, we find that, as did the first circuit in Central Community School Bd., 09-285, 20 So.3d 1060, this court is not a court of first impression, and we cannot conduct a contempt hearing on the facts presented in the instant ease. Thus, while this court recognizes the authority granted to it by La.Code Civ.P. art. 225 and La.R.S. 13:4611, we must dismiss the Rule for Contempt at plaintiffs’ cost.

RULE FOR CONTEMPT DENIED.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Gerard MENDONCA v. TIDEWATER, INC.
    No. 2011-CA-0318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 7, 2011.
    Rehearing Denied Sept. 28, 2011.

      Gerard Mendonca, Sydney, Australia, In Proper Person, Plaintiff/Appellant.
    Walter W. Christy, Coats Rose, A P.C., New Orleans, LA, for Defendant/Appellee Tidewater, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

|! This is a nullity action. Gerard Men-donca, the pro se plaintiff, appeals the judgment of the trial court which granted the peremptory exceptions of res judicata and no cause of action filed by the defendant, Tidewater, Inc.; granted Tidewater’s motion for La. C.C.P. art. 863 sanctions; and revoked, on the court’s own motion, Mr. Mendonca’s in forma pauperis status. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Over a decade ago, Mr. Mendonca, who currently resides in Australia, commenced the underlying suit in Orleans Parish Civil District Court against Tidewater. In the underlying suit, Mr. Mendonca sought to recover for injuries he allegedly sustained as a result of his termination from employment in Dubai, United Arab Emirates (“U.A.E.”), in 1999. Mr. Mendonca’s claims included a tort claim for Tidewater’s alleged intentional interference with his employment contract with Al Wasl Marine, Ltd., and its successor, Al Wasl Marine, L.L.C. (collectively “Al Wasl”), U.A.E. companies in which Tidewater had an indirect interest.

|2A11 of Mr. Mendonca’s claims against Tidewater have been dismissed. Mendonca v. Tidewater, Inc., 03-1015 (Lapp. 4 Cir. 12/17/03), 862 So.2d 505, writ denied, 04-0426 (La.4/8/04), 870 So.2d 272 (‘‘Tidewater I ”)(affirming trial court’s dismissal of all claims except for a tort claim for intentional interference with employment contract and remanding to allow Mr. Men-donca an opportunity to establish this tort claim); Mendonca v. Tidewater, Inc., 05-1166 (La.App. 4 Cir. 5/31/06), 938 So.2d 233, writ denied, 06-1808 (La.10/27/06), 939 So.2d 1280, cert denied, 549 U.S. 1309, 127 S.Ct. 1883, 167 L.Ed.2d 371, reh’g denied; 550 U.S. 954, 127 S.Ct. 2299, 167 L.Ed.2d 1127 (2007)(Tidewater II”)(affirming trial court’s grant of summary judgment finding that Mr. Mendonca could not establish this tort claim due to an absence of supporting evidence).

In an attempt to revive his claim against Tidewater, Mr. Mendonca has filed multiple nullity actions. See Mendonca v. Tidewater, Inc., 08-0264 (appeal), 08-0894 (writ) (La.App. 4 Cir. 11/5/08), 996 So.2d 74 (unpub.), writ denied, 08-2820 (La.1/30/09), 999 So.2d 738 (“Tidewater III ”)(finding Mr. Mendonca’s motion to annul the trial court’s judgment dismissing his claim, which was affirmed in Tidewater II, lacked merit). Through almost all of these proceedings Mr. Mendonca has been allowed to proceed in forma pauperis, has represented himself, and has waived appearance at hearings.

In this appeal Mr. Mendonca challenges the trial court’s dismissal of his latest nullity action based on Tidewater’s exceptions of no cause of action and res judicata. As noted, the trial court also granted Tidewater’s motion for La. C.C.P. art. 863 sanctions and awarded $10,000 in attorneys’ fees and the costs of opposing Mr. Men-donca’s various petitions. As an additional sanction the trial court, on its own motion, revoked Mr. Mendonca’s right to proceed informa pauperis.

13On appeal, Mr. Mendonca assignments of error can be grouped into three categories: (i) nullity action under La. C.C.P. art. 2005; (ii) sanctions under La. C.C.P. art. 863, and (iii) revocation of right to proceed in forma pauperis under La. C.C.P. art. 5181. We separately address each category.

(i) Nullity action under La. C.C.P. art. 2005

The trial court sustained Tidewater’s peremptory exceptions of no cause of action and res judicata and thus dismissed Mr. Mendonca’s nullity action. Appellate courts review a trial court’s decision sustaining peremptory exceptions of no cause of action and res judicata using a de novo standard. See Insurance Co. of North America v. Louisiana Power & Light Co., 08-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267 (“[t]he standard of review of a peremptory exception of res judicata requires the appellate court to determine if the trial court’s decision is legally correct or incorrect”); Tuban Petroleum, L.L.C. v. SIARC, Inc., 09-0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522, writ denied, 09-945 (La.6/5/09), 9 So.3d 877 (“[t]he peremptory exception of no cause of action is reviewed using the de novo standard of review because it involves a legal question, which is based on the sufficiency of the petition.”) We thus apply a de novo standard in reviewing the dismissal of Mr. Mendonca’s nullity action.

In sustaining Tidewater’s exceptions the trial court reasoned as follows:

In the present case, the “judgment” [by this court in Tidewater I ] was not rendered against Al Wasl Marine, but rather it reversed a ruling that Mendonca had not stated a cause of action in his petition and held that he had a potential cause of action against Tidewater for intentional interference with a contract. There was no final judgment against a defendant, but rather a finding by the Fourth Circuit that Mendonca had a potential claim against Tidewater. Hence, there was no final judgment to vacate, even assuming that Mendonca had standing to assert a claim to vacate, which the Court finds he does not. Mendonca fails to state a cause of action and Tidewater’s exception of no cause of action is granted. Mendonca’s claim has also been | previously denied and, hence, Tidewater’s exception of res judicata is granted.

As the trial court correctly noted, this court’s decision in Tidewater I was not a decision against Al Wasl. Indeed, this court’s decision was an interlocutory one in Mr. Mendonca’s favor, finding that he had pled a tort cause of action. This court remanded to give Mr. Mendonca an opportunity to establish that tort claim. On remand, the trial court granted Tidewater’s motion for summary judgment on the tort claim; and this court affirmed that decision in Tidewater II. Mr. Mendonca’s attempts to nullify the decision in Tidewater II were rejected by the trial court, and this court affirmed the trial court’s decision in Tidewater III.

In the instant nullity action, Mr. Men-donca is attempting to nullify this court’s decision in Tidewater I based on one of the same grounds that he raised regarding the nullity of Tidewater II — the failure to join Al Wasl as a defendant. Because the “judgment” Mr. Mendonca is seeking to nullify is one “rendered by an appellate court,” the governing provision is La. C.C.P. art. 2005, which provides:

A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.

La. C.C.P. art. 2005. Article 2005 limits a litigant’s right to bring a subsequent nullity suit by providing two exclusive, disjunctive grounds for annulling a judgment that an appellate court has rendered: (i) when the ground for nullity was not in the record of appeal, or (ii) when the ground for nullity was not considered by the appellate court. New Orleans Redevelopment Authority v. Lucas, 02-2344 (La.App. 4 Cir. 8/25/04), 881 So.2d 1246 (citing Weller v. Brown, 01-0314, p. 5 (La.App. 1 Cir. 3/28/02), 813 So.2d 635, 638; and Meldean’s, Inc. v. Rivers, 410 So.2d 837, 839 (La.App. 3rd Cir.1982)). “When a judgment has been affirmed by an appellate court, which considered the moving party’s arguments that the judgment should be annulled, the judgment cannot thereafter be annulled.” Steven R. Plotkin, Louisiana Civil Procedure, Book II, Commentary to La. C.C.P. art. 2005 (1994). Such is the case here.

Mr. Mendonca contends that Article 2005 does not preclude his nullity action because the issue of whether this court’s decision in Tidewater I is an absolute nullity on the ground of the failure to join A1 Wasl — an alleged La. C.C.P. art. 641 defendant — “has never been considered in a written opinion/reasons for judgment by any court to-date.” Contrary to Mr. Men-donca’s contention, the requirement of Article 2005 that “the ground for nullity ... was not considered by the appellate court” has not been interpreted so narrowly. The requirement has been interpreted to preclude a subsequent nullity action not only when an appellate court has made an express ruling on an issue, but also when it has found implicitly that the issue raised was unpersuasive. New Orleans Redevelopment Authority, 02-2344 at p. 13, 881 So.2d at 1254 (rejecting similar argument and finding nullity action precluded because prior decision “implicitly found unpersuasive all the issues Dr. Alden [who was the plaintiff in the nullity action] raised.”)

To place Mr. Mendonca’s argument regarding the applicability of Article 2005 in context, a brief outline of the procedural history of this case focusing on the nullity actions is necessary. The procedural history is as follows:

|(i* July 2007: Mr. Mendonca filed a petition to annul the trial court’s judgment granting Tidewater’s motion for summary judgment, which was affirmed by this court in Tidewater II.
• November 2007: The trial court granted Tidewater’s peremptory exceptions of prescription and no cause of action and dismissed Mr. Mendonca’s motion for summary judgment on the same grounds. In its reasons for judgment, the trial court rejected Mr. Mendon-ca’s argument regarding the failure to join Al Wasl as a defendant providing a ground to declare the judgment in Tidewater II null and void. In so doing, the trial court noted that “Plaintiff made this same argument to this Court in his motion for new trial and motion to amend judgment filed in February 2005.” The trial court further noted that Al Wasl was not a La. C.C.P. art. 641 defendant and that “the failure to join Al Wasl Marine as a defendant does not affect the validity of this Court’s summary judgment.” From this decision, Mr. Mendonca filed both an appeal and a writ application, which this court consolidated and decided together in Tidewater III, discussed below.
• July 2008: While Mr. Mendonca’s consolidated writ-appeal was pending in this court, he filed a petition to annul, two final judgments, which he described as “Final Judgment of Tidewater Inc.’s Exceptions Reversed by the Fourth Circuit on 17 December 2003 [Tidewater I ] and Final Judgment of 16 February 2005 Affirmed on 31 May 2006 [Tidewater II].” Mr. Mendonca sought to have these judgments declared null and void pursuant to La. C.C.P. art. 2002 A(2) based on the failure to join AI Wasl as a defendant.
• November 2008: This court decided the consolidated writ-appeal in Tidewater III. This court affirmed the trial court’s dismissal of the nullity action and denied the writ. In so doing, this court expressly noted that the grounds Mr. Mendonca urged in his nullity petition appeared in the record on appeal and were argued by him to the appellate courts. Quoting with approval the trial court’s reasons for judgment, this court further noted that “the failure to join Al Wasl Marine as a defendant does not affect the validity of ... [the trial court’s] summary judgment.” In so finding, this court implicitly rejected Mr. Mendonca’s argument he raises in the present nullity action regarding the nullity of the judgment in Tidewater I.
• May 2009: Mr. Mendonca filed this nullity action. It was entitled: “First Supplemental and Amending Petition to Annul Final Judgment on Tidewater’s Inc.’s Exceptions Reversed by the Fourth Circuit on 17 December 2003 and 15 January 2004,” Tidewater I. (As the trial court pointed out, this is the same judgment that Mr. Mendonca previously sought to annul.) In response, Tidewater filed peremptory exceptions of prescription, res judica-ta, and no cause of action. Tidewater also filed a motion for Article 863 sanctions.
17* July 2009: Mr. Mendonca filed a motion to recuse the trial court judge and a motion to annul.
• November 2009: Mr. Mendonca’s motion to recuse was denied.
• June 2010: This court denied Mr. Mendonca’s writ application (which he filed as an appeal, but this court converted to a writ) seeking review of the denial of his motion to recuse the trial court judge. In his brief to this court on that writ (appeal), Mr. Mendonca asserted the same argument regarding the nullity of the decision in Tidewater I that he asserts in this nullity action.
• October 2010: The trial court held a hearing on Tidewater’s exceptions and its motion for sanctions under La. C.C.P. art. 863. Mr. Mendonca opposed the exceptions and the motion, but waived his appearance at the hearing. The trial court sustained Tidewater’s exceptions and awarded it sanctions. This appeal followed.

Mr. Mendonca’s contention that Article 2005 does not preclude his nullity action is belied by the above outline of the procedural history of this case. As noted above, in Tidewater III this court implicitly rejected the ground Mr. Mendonca raises regarding the nullity of the judgment in Tidewater I. Regardless, Mr. Mendonca’s contention regarding the nullity of Tidewater I appears in the record of his prior appeal and writ. As the trial court noted in its reasons for judgment, Mr. Mendon-ca’s contention “does appear in the record of the Fourth Circuit with regard to Mendonca’s appeal to the Fourth Circuit which affirmed the judgment of this Court on November 5, 2008 [Tidewater III], and Mendonca’s application for supervisory writs [on the recusal issue] which the Fourth Circuit | sdenied on June 10, 2010.” The trial court thus found Article 2005 provided a basis for sustaining Tidewater’s exceptions and precluded Mr. Mendonca’s nullity action. We agree.

(ii) Sanctions under La. C.C.P. art. 863

Mr. Mendonca next contends that the trial court erred in granting Tidewater’s motion for sanctions under La. C.C.P. art. 863. Appellate court review of the fact finding of an Article 863 violation is under the manifest error standard. See Mathis v. Mathis, 06-1589, p. 3 (La.App. 4 Cir. 7/25/07), 964 So.2d 426, 428; Loyola v. A Touch of Class Transp. Service, Inc., 580 So.2d 506 (La.App. 4 Cir.1991). Article 863 provides:

[T]he signature of an attorney or party [who is not represented by an attorney] shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

La. C.C.P. art. 863 B. Article 863 thus imposes a duty of reasonable inquiry on a party — including a pro se litigant — signing pleadings. Article 863 imposes a duty to make an objective inquiry into the facts and law; hence, “[s]ubjective good faith will not satisfy the duty of reasonable inquiry.” Loyola, 580 So.2d at 510.

In finding Mr. Mendonca violated Article 863, the trial court reasoned that “in filing the petitions to annul final judgments and in the related pleadings, Men-donca did not make a reasonable inquiry that such pleadings were grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” The trial court further reasoned that “such pleadings were interposed for the purpose of harassment and causing 19needless increase in the cost of litigation.” As the procedural history of this case outlined earlier in this opinion reflects, Mr. Men-donca has filed multiple nullity actions seeking to revive his claim against Tidewater. Such “repetitive and duplicitous actions” constitute an abuse of the judicial system and warrant the imposition of Article 863 sanctions. Zeno v. Flowers Baking Co., 10-1413, p. 7 (La.App. 3 Cir. 4/6/11), 62 So.3d 303, 307; see also Succession of Harvey v. Dietzen, 97-2815 (LaApp. 4 Cir. 6/24/98), 716 So.2d 911, 920 (citing Rochon v. Roemer, 93-2444 (La.1/7/94); 630 So.2d 247)(finding Article 863 sanctions are an appropriate remedy to prevent abuse of the judicial process). We thus find no manifest error in the trial court’s finding that Mr. Mendonca violated Article 863.

Mr. Mendonca next contends that the sanctions awarded are excessive. As noted, the trial court awarded Tidewater sanctions of $10,000 in attorneys’ fees plus costs in opposing Mr. Mendonca’s various petitions. Appellate review of a challenge to the type or amount of Article 863 sanctions imposed is under an abuse of discretion standard. Dubois v. Brown, 01-0816, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 864, 866.

Once the court finds an Article 863 violation, the imposition of sanctions is mandatory. La. C.C.P. art. 863 D (providing the court “shall” impose an appropriate sanction). Article 863 provides that an appropriate sanction may include “an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorneys fees.” Id. The term “reasonable” in this context has not been construed as equivalent to actual expenses; rather, “[t]he ‘reasonableness’ finding must also include the | in[Article’s] goals of deterrence, punishment, and compensation.” Derouin v. Champion Ins. Co., 580 So.2d 1043, 1046 (Lapp. 3d Cir.1991).

In reviewing the reasonableness of such an award, an important factor to consider is the trial court’s own knowledge of the facts. “The trial judge is in the best position to review the factual circumstances and render an informed judgment as he is intimately involved with the case, the litigants, and the attorneys on a daily basis.” Thomas v. Capital Security Services, Inc., 836 F.2d 866, 873 (5th Cir.1988). In this case, we cannot conclude that the sanction imposed by the trial judge, who has been involved in this case for many years, was an abuse of discretion.

(iii) Revocation of right to proceed in form,a pauperis under La. C.C.P. art. 5181

As noted earlier, Mr. Mendonca has been allowed to proceed informa pau-peris through most of this lengthy litigation. As an additional sanction, the trial court, on its own motion, revoked Mr. Mendonca’s in forma pauperis status. Mr. Mendonca contends that the trial court erred in so doing. A trial court has great discretion in deciding to revoke a litigant’s in forma pauperis status. Ainsworth v. Ainsworth, 03-1626, p. 2 (La.App. 4 Cir. 10/22/03), 860 So.2d 104, 108. Appellate courts thus review a trial court’s revocation of in forma pauperis status under an abuse of discretion standard. Ainsworth, 03-1626 at p. 4, 860 So.2d at 109; see also Benjamin v. National Super Markets, Inc., 351 So.2d 138 (La.1977).

A litigant’s informa pauperis status is a “privilege, not a luxury or a right.” Martin v. Martin, 39,631, p. 11 (La.App. 2 Cir. 5/18/05), 903 So.2d 619, 625. The privilege is codified in La. C.C.P. art. 5181, which provides that “an individual who is unable to pay the costs of court because of his poverty and lack of means | nmay prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.” La. C.C.P. art. 5181(A). In order to fulfill the purpose of the privilege of enabling indigent individuals to assert their claims in court, the jurisprudence has liberally construed the privilege. Benjamin, 351 So.2d at 140.

The trial court has the duty and authority not only to ensure that the purpose of the privilege is fulfilled, but also to monitor that the privilege is not abused. Benjamin, 351 So.2d at 142; Roy v. Gulf States Utilities Co., 307 So.2d 758, 761 (La.App. 3d Cir.1975)(noting that trial court has the duty and authority to subject in forma pauperis orders to continuing scrutiny to prevent abuse); La. C.C.P. art. 5183 B (providing that “[t]he court may reconsider such an order [allowing in for-ma pauperis status] on its own motion at any time in a contradictory hearing.”) The jurisprudence has recognized that “it is vital that the right to file in forma pauperis not to be encumbered by those who would abuse the integrity of the judicial process by frivolous filings.” Martin, 39,631 at p. 12, 903 So.2d at 626 (citing Zatko v. California, 502 U.S. 16, 17, 112 S.Ct. 355, 116 L.Ed.2d 293 (1991)). The jurisprudence also has recognized that “[i ]n forma pauperis petitioners lack the financial disincentive — filing fees and attorney’s fees — that help to deter other litigants from filing frivolous petitions.” Id. For these reasons, imposing reasonable restrictions on litigants who abuse the judicial system, including restricting their right to proceed in forma pauperis, is warranted. Martin, 39,631 at p. 12, 903 So.2d at 626.

In this case, the trial court, on its own motion, revoked Mr. Mendonca’s in forma pauperis status as an additional sanction for his Article 863 violation. In its reasons for judgment the trial court explained that it imposed the additional sanction because of Mr. Mendonca’s repeated filing of frivolous pleadings. The 112trial court reasoned that notwithstanding that this case has been over since at least May 2007 when the United States Supreme Court denied certiorari in Tidewater II, Mr. Mendonca has continued to file motions to annul the final judgments “based on frivolous and nonexistent grounds.” The trial court thus concluded that “Mondonea has clearly abused the process thereby warranting the revocation of his right to file in forma pauperis.” Given the factual circumstances presented in this case, we cannot conclude that the trial court abused its discretion in revoking Mr. Mendonca’s in forma pawperis status.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed against the appellant, Mr. Mendonca.

AFFIRMED

      . Mr. Mendonca initially filed suit in federal court; that suit was dismissed.

      . This court in Tidewater I also instructed that on remand the trial court "should reconsider” the various motions Mr. Mendonca filed after the trial on the exceptions insofar as those motions related to the tort claim. Tidewater I, 03-1015 at p. 9, 862 So.2d at 511. Although those motions included a motion to annul, this court's decision in Tidewater I that Mr. Mendonca had pled a cause of action in tort against Tidewater mooted his motion to annul the trial court's decision that had dismissed that tort claim.

      . Article 641 provides that "[a] person shall be joined as a party in the action when ... [i]n his absence complete relief cannot be accorded among those already parties.” La. C.C.P. art. 641 A(l).

      . Although Mr. Mendonca contends that Tidewater failed to serve him by certified mail with notice of the hearing on its exceptions and motion for Article 863 sanctions as required by La. C.C.P. art. 1313, the trial court in its reasons for judgment stated that Mr. Mendonca "opposed the exceptions and the motion, but waived his appearance at the hearing.” Mr. Mendonca acknowledges that he had notice of the hearing and that he waived his presence. His real argument regarding improper service of notice is that he would not have waived his presence at the hearing if he was informed that his in forma pauperis status would be revoked at the hearing. As discussed elsewhere in this opinion, the trial court, on its own motion, revoked Mr. Mendonca’s in forma pauperis status. The ground on which the trial court did so was not due to a change in his financial circumstances, which would have presented factual issues and thus required a contradictory hearing under La. C.C.P. art. 5183 B. Rather, the trial court relied on the same ground on which it found an Article 863 violation — repeated filing of frivolous pleadings. Mr. Mendonca had notice of the hearing of the Article 863 motion, but waived his presence at that hearing. Mr. Mendonca’s argument regarding lack of proper service of notice is thus unpersuasive.

      . As separately discussed below, the trial court, on its own motion, also imposed as an additional sanction the revocation of Mr. Mendonca’s right to proceed in forma pauper-is.


author: PICKETT, Judge. KEATY, J.,

text:
    David HARRELL v. BROOKSHIRE GROCERY COMPANY.
    No. 11-108.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 2011.
    Rehearing Denied Oct. 19, 2011.

      Dale G. Cox, Jr., Attorney at Law, Shreveport, LA, for Defendant/Appellant, Brookshire Grocery Company.
    Dorwan G. Vizzier, Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiff/Ap-pellee, David Harrell.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

liThe defendant, Brookshire Grocery Company (Brookshire), appeals a judgment rendered by the workers’ compensation judge (WCJ) in favor of the claimant, David Harrell, finding that he was injured in a work-related accident and awarding him workers’ compensation benefits, medical expenses, and a power wheelchair.

STATEMENT OF THE CASE

Harrell, an overnight stocker at a Brookshire-owned Super 1 grocery store in Alexandria, Louisiana, testified that on the evening of April 23, 2005, he was stocking groceries in the glass aisle of the store when his supervisor, James Newman, called out for help. Harrell ran to the end of the aisle and saw Newman backing a forklift off the foot of Jonathan Ridder, another Brookshire employee. Harrell put Ridder into a wheelchair and rolled him to the front of the store where another stocker was waiting with a car to take Ridder to the hospital. Harrell lifted Rid-der to put him into the back of the car, but because Ridder did not put a foot down, he was “dead weight,” and Harrell almost dropped him. Harrell stated that he asked Newman for help, explaining that he had a “catch” in his back, and together they got Ridder into the car.

According to Harrell, something popped in his back when he was picking Ridder up, and then his back began burning and tingling. He testified that as they were walking back into the store, he told Newman that he thought he had hurt his back because it felt funny and was burning. Harrell then resumed his stocking duties, working an additional four hours or so before leaving his shift. He did not seek medical attention at the time, thinking that his back was just tired and that the pain would go away.

1 gHarrell testified that, during the next shift that he worked, he told his head supervisor, Alphonsa Lenyard, that he had been injured during his previous shift. When Newman asked Lenyard for an accident report form for Harrell, Lenyard replied that they had used the last form for Ridder’s accident. A day or two later, Harrell reported his injury to Scott Lach-ney, the assistant store director, who gave him a form to fill out regarding the accident. He completed the form in front of Lachney, returned it to him, and never saw it again. Harrell reported his injury to the store director, Randy Randall, around the same time, and Randall filled out a Partner’s First Report of Injury form.

Harrell continued working for several days after the accident, but one evening he was not able to unload a truck because of his back pain. Either Lachney or Randall told him to go home and not come back until he had seen a doctor. He sought treatment at the St. Frances Cabrini Hospital Emergency Room (ER) on April 29, 2005. The initial triage information noted that Harrell’s complaints were of back, right groin, and right neck pain since helping an injured co-worker six days prior. Harrell was discharged that same date with diagnoses of sprain/strain of the lumbar and cervical regions. He was given a note to i*eturn to work on May 2, 2005, and was told to follow up with his physician. Harrell returned to Brookshire after his ER visit, and Randall referred him to Dr. Gregory Bevels, a family practitioner. Harrell has not worked since that time.

Dr. Bevels referred Harrell to Dr. Ray-land Beurlot, a physical medicine and rehabilitation specialist, in August of 2005. Harrell then began treatment with Dr. Gerald Leglue, another physical medicine and rehabilitation specialist, in September of 2005. In May of 2006, Dr. Leglue referred Harrell to Dr. Michael Dole, |sa pain management physician. Dr. Dole sent Harrell to Dr. James Quillin, a psychologist, for treatment for depression. Around that time, Harrell was also seen by Dr. Anil Nanda, a neurosurgeon. At the time of trial in May and June of 2010, Harrell was treating regularly with Drs. Dole and Quillin.

Brookshire instituted indemnity benefits and began paying Harrell’s medical expenses shortly after his injury. Brook-shire began surveillance of Harrell in April 2006, which continued until September 2010. Brookshire sent Harrell to Dr. Rennie Culver, a psychiatrist, on March 20, 2007, and to Dr. Karl Bilderback, an orthopedic surgeon, on July 9, 2008, to have them render second medical opinions regarding Harrell’s mental and physical condition. Shortly after receiving Dr. Bilderback’s report in late July of 2008, Brookshire terminated Harrell’s indemnity benefits and restricted payment of his medical benefits to treatment with Dr. Dole to wean him off of narcotics.

Harrell filed a 1008 Disputed Claim for Compensation (1008) against Brookshire on August 7, 2008, seeking reinstatement of indemnity benefits, payment for a power wheelchair, payment of behavioral pain management expenses, and penalties and attorney fees pursuant to the Louisiana Workers’ Compensation Act, La.R.S. 23:1021-1415. According to the 1008, Harrell claimed to be totally, or temporarily totally, disabled, “or alternatively disabled to return to his former employment under supplemental earnings benefits.”

Brookshire answered Harrell’s claim, denying that he suffered any injury or disability, and asserting that because Harrell had made willful misrepresentations and engaged in fraudulent conduct in order to obtain compensation benefits, he forfeited his right to continue receiving workers’ compensation benefits.

| thereafter, Harrell filed a supplemental 1008 to allege that Brookshire had failed to authorize prescribed medication and that Brookshire had willfully made false statements and representations for the purpose of defeating his workers’ compensation claim.

The matter was tried over the course of three days in May and June of 2010. Oral reasons for judgment were read into the record on September 29, 2010. A written judgment was signed on October 27, 2010, decreeing the following:

1. Ordering Brookshire to pay Harrell temporary total disability (TTD) benefits at the rate of $278.38 per week for each weekly period from July 28, 2008, together with legal interest on each payment from its due date until paid;
2. Ordering that Harrell was and is entitled to continued medical care through Michael Dole, M.D. and continued care with the psychologist, James W. Quillin, Ph.D., including behavioral pain management prescribed by Dr. Quillin;
3. Ordering Brookshire to pay for Harrell’s past medical expenses incurred in connection with the diagnosis and treatment of the on-the-job injuries in the amount of $12,295.68, together with legal interest from the date of judicial demand until paid in full;
4. Denying Harrell’s claims that Brookshire committed fraud under La.R.S. 23:1208;
5. Denying Brookshire’s claims that Harrell committed fraud under La. R.S. 23:1208;
6. Denying Harrell’s claims against Brookshire for statutory penalties and attorney fees for the termination of weekly benefits, for failure to pay medical expenses, and for failure or refusal to authorize medical treatment;
7. Setting the amounts due for the bills for certified medical records and the fees of experts testifying on Harrell’s behalf, and the costs of court reporters for trial deposition, and taxing those amounts as costs, which Brookshire was ordered to pay.
Brookshire now appeals.

\-ASSIGNMENTS OF ERROR

Brookshire asserts four assignments of error:

1. The trial court erred in finding that claimant sustained an accident that produced a disability in the course and scope of his employment.

2. The trial court erred in finding that claimant had proved by clear and convincing evidence his entitlement to temporary, total disability benefits.

3. The trial court erred in finding that defendant had failed to prove its defense of intentional misrepresentation.

4. The trial court erred in finding that claimant was entitled to medical treatment with Dr. Michael Dole and Dr. James Quillin and payments for the motorized wheelchair.

DISCUSSION

Workplace Accident

A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

We recently discussed the standard of review to be employed in workers’ compensation cases, noting:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error 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, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfin-der’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Green v. Nat’l Oilwell Varco, 10-1041, p. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 357-58 (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied 02-1164 (La.6/14/02), 818 So.2d 784) (alterations in original).

Harrell suspected that something was wrong with his back immediately after he lifted Ridder into the car on April 23, 2005, and he informed his various supervisors of his back pain either during that shift or within a few days of the accident. He also sought medical treatment once he realized that the pain was not just routine soreness that would resolve on its own. Although Harrell’s supervisors were unsure about the exact date of when they learned of his accident, none disputed having learned of it before the accident report was filled out on May 2, 2005.

The WCJ’s factual finding that Harrell suffered injuries as a result of a workplace accident is reasonable in light of the record evidence. Brookshire’s first assignment of error is without merit.

\7Entitlement to Temporary Total Disability Benefits

Brookshire argues that surveillance videos and the reports of Dr. Bilderback show that Harrell is lying about the extent of his injury and that he is capable of returning to work. It also alleges that there are no objective findings of injury to support a claim of (TTD) benefits.

A workers’ compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment because of his physical condition. Greis v. Lake Charles Mem’l Hosp., 97-1258 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, writs denied, 98-937, 98-939 (La.5/15/98), 719 So.2d 467.

In this case, the WCJ weighed testimony from Dr. Leglue and Dr. Dole, Harrell’s treating physicians, who discussed the injuries, symptoms, and results of diagnostic tests they performed on Harrell over several years. The WCJ chose to accept that evidence as credible. In doing so, the WCJ discounted the surveillance video of Harrell engaged in different activities and the opinion of Dr. Bilderback, who saw Harrell only once for an evaluation. Our supreme court has made clear that an appellate court should not substitute its opinion for the credibility determinations made by the finder of fact. Leal v. Dubois, 00-1285 (La.10/13/00), 769 So.2d 1182.

We find that the record before us supports the finding made by the WCJ that Harrell is entitled to TTD benefits, and to have his medical treatment with Dr. Dole and Dr. Quillin paid for by Brookshire. We find no merit in the second and fourth assignments of error.

intentional Misrepresentation

Louisiana Revised Statutes 23:1208(A) provides that it shall be unlawful for any claimant or employer “to willfully make a false statement or representation” “for the purpose of obtaining or defeating” any workers’ compensation benefit or payment. The statute further provides that if the WCJ determines that a claimant has violated the statute, he or she will forfeit their right to workers’ compensation benefits.

“The requirements for forfeiture of benefits under Section 1208 governing misrepresentations concerning workers’ compensation benefits are that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” R & R Steel Erectors v. Watson, 01-1322, pp. 3-4 (La.App. 3 Cir. 3/6/02), 809 So.2d 1228, 1231. An appellate court reviews a WCJ’s factual findings with regard to a claim of forfeiture of benefits under the manifest error/clearly wrong standard. Doyal v. Vernon Parish Sch. Bd., 06-1088 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190.

Brookshire contends that Harrell intentionally misrepresented the extent of his injuries in order to receive benefits. To support its claim, Brookshire introduced video surveillance to show that Harrell was able to perform more strenuous activities than he claimed to his doctors. In rejecting Brookshire’s defense of intentional misrepresentation, the WCJ determined that although Harrell had exaggerated his symptoms and his abilities, and although the video surveillance showed him doing activities that he claimed to be unable to do, “the evidence did not present significant ^credibility issues” and Harrell’s actions did not amount to a sufficient showing of fraud so as to trigger forfeiture of benefits under La.R.S. 23:1208.

The WCJ’s finding is supported by the deposition testimony of Dr. Dole, who stated:

Q. Okay. Doctor, if in fact over the course here, let’s say from 2006, 2007, 2008, 9 or even 10, that on occasions David Harrell had, let’s say he’d used a push mower in his front yard for ten or fifteen minutes or twenty minutes to mow part of his yard, that he’d used a riding mower, whether he had ridden on a motorcycle or a dune buggy or that he lifted a piece of veneer plywood or that he went fishing on occasions or that he’d lifted a tire, an aluminum wheel into his van or that he picked up paper or cleaned up his place, his yard kind of policing action or that kind of stuff, would any of those individually change any opinions that you’ve issued here today?
A. I don’t think so. Mr. Harrell has told me he has done those things. I think he has a horse he rides on occasion that he really — you know, that’s the most enjoyment he gets out of life is getting on his horse. When he does that, he states that it really flares up his back pain, but he really enjoys doing it but it generally kind of lays him out for a day or two after that, and he takes care of his yard and, you know, there’s things that he has to do around the house, but he’s able to do those at his own pace, you know, when he’s feeling better and then, you know, if he needs to take a break or if he needs to lay down for a day or two after that, then he can do that.
Q. That would be expected given his circumstances?
A. That’s very typical of patients that I treat.

We find that the WCJ weighed the medical evidence and the surveillance videos, and its finding that Harrell did not intentionally misrepresent his condition in order to receive benefits is not manifestly erroneous. Brookshire’s third assignment of error lacks merit.

1 ^CONCLUSION

The judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to the employer, Brookshire Grocery Company.

AFFIRMED.

KEATY, J., dissents in part and assigns written reasons.

KEATY, J.,

dissenting in part.

1 ] Although I agree that Harrell was injured as a result of the April 28, 2005 workplace accident, I respectfully dissent from the remainder of the majority opinion.

In Magee v. Abek, Inc., 04-2554, p. 5 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287, the first circuit noted that “[a] claimant’s lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician,” and that “in many cases, the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history.”

In support of its claim that Harrell forfeited his right to continue receiving workers’ compensation benefits, Brookshire offered video surveillance showing Harrell participating in a multitude of strenuous activities with apparent ease. The surveillance also showed that while Harrell routinely used a cane at his doctor appointments and therapy visits, he quickly discarded his cane after those visits, and he did not use a cane around his yard.

The surveillance taken before and after Harrell’s July 9, 2008 IME visit with Dr. Karl Bilderback shows him ambling about his yard without using a cane, squatting down while washing his truck tires, and lifting a tire into the back of his [struck •with no apparent difficulty. In contrast, Harrell reported to Dr. Bilderback that his pain was eight out of ten, that he had difficulty in forward bending, and that he needed to use his cane during the examination because he “was about to fall.” During testing and despite his statements to the contrary, Harrell’s reflexes and motor strength were normal and he reported more back pain than leg pain. Before Harrell’s scheduled appointment, Dr. Bild-erback read Harrell’s records from Drs. Michael Dole, Gerald Leglue, Rayland Beurlot, Anil Nanda, and James Quillin, along with some of Harrell’s physical therapy notes, Harrell’s two EMG/nerve conduction studies, and the films from his October 18, 2005 and September 5, 2006 lumbar MRIs. Based on his physical examination of Harrell, together with the information gleaned from Harrell’s medical records, Dr. Bilderback found no evidence to show that Harrell suffered from lumbar radiculopathy or that he was a surgical candidate. Given the fact that the records indicated that Harrell had tried various forms of conservative treatment such as physical therapy and epidural injections, none of which had provided him with lasting relief, Dr. Bilderback opined that Harrell had reached maximum medical improvement (MMI) with regard to his back. He also believed that Harrell could return to work in at least a medium capacity.

After Dr. Leglue released Harrell to return to work, Brookshire offered Harrell a position as an attendant at the fuel center of its Pineville store, a job which met the light/sedentary duty restriction set by Dr. Leglue. Harrell rejected the job.

Our supreme court noted, in regard to La.R.S. 23:1208, the workers’ compensation anti-fraud statute:

The legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to make the penalties stiffer. It is clear from the history of the statute that the legislature intended that any false |.^statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits, and this legislative intent cannot be ignored.

Resweber v. Haroil Constr. Co., 94-2708, p. 8 (La.9/5/95), 660 So.2d 7, 12-13.

A workers’ compensation judge’s factual findings with regard to a claim of forfeiture of benefits are reviewed under the manifest error/clearly wrong standard. Doyal v. Venion Parish Sch. Bd., 06-1088 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190. After carefully reviewing the record, exhibits, and surveillance, the only conclusion that I can reach is that the information Harrell gave to his doctors regarding his pain and his abilities amounted to far more than mere exaggerations; it was gross misrepresentations of the truth made with the intent of obtaining and/or prolonging his entitlement to workers’ compensation benefits. Thus, I am convinced that the workers’ compensation judge committed manifest error in concluding that Harrell’s misrepresentations did not amount to fraud sufficient to forfeit his right to continue receiving workers’ compensation benefits.

Finally, I find it especially troubling that Harrell often included one or more members of his family, including his children, in his perpetration of fraud, vacillating between ambulating with great ease one moment and pretending to struggle with significant and debilitating pain the next.