author: SUSAN M. CHEHARDY, Judge.

text:
    Martin MANNING v. PFG-CARO FOODS, Travelers Indemnity Company of America, TeamWork Staffing Service/TSS of Maryland and 60196 Zurich American Insurance Co.
    No. 10-CA-1014.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Susan A. Repasky, Attorney at Law, Metairie, LA, for Plaintiff/Appellant, Martin Manning.
    Samuel R. Aucoin, Attorney at Law, Lafayette, LA, for Defendant/Appellee, PFG-Caro Foods, Inc.
    James A. Holmes, Christovich & Kear-ney, LLP, Attorney at Law, New Orleans, LA, for Defendant/Appellee, TeamWorks USA, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

| gThis is a worker’s compensation proceeding, in which the claimant appeals a ruling that dismissed his claim as prescribed. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Martin Manning, a delivery truck driver, suffered injuries to his back, neck, and jaw/teeth on November 19, 2005, when he slipped and fell while making a delivery to a restaurant. Manning is a New Mexico resident who was recruited by TeamWorks USA, Inc., a Maryland company, for temporary work at Caro Foods, Inc., a food product delivery service in Houma, Louisiana, following Hurricane Katrina.

On November 16, 2006 Manning filed a Disputed Claim for Compensation against TeamWorks USA, Inc. and its insurer. On June 18, 2007 he amended his worker’s compensation claim to add PFG-Caro Foods (hereafter “Caro”) as a defendant.

| «TeamWorks filed a motion for summary judgment, asserting it is not obligated to provide worker’s compensation benefits to Manning because it was not the claimant’s employer at the time of the accident. The court denied TeamWorks’ motion for summary judgment prior to trial.

On January 19, 2010, the day before trial, counsel for the claimant filed a Motion for Partial Dismissal without Prejudice as to TeamWorks USA, Inc. and Travelers Indemnity Company, asking for dismissal of all claims as to those defendants only, without prejudice.

The trial was held on January 20, 2010. At the outset counsel for the claimant announced that her client wished to dismiss TeamWorks and its insurer, Travelers, without prejudice. The court orally granted the motion to dismiss, and also pronounced TeamWorks’ motion for summary-judgment moot.

Immediately after the court orally granted the motion to dismiss TeamWorks and Travelers, counsel for Caro filed a handwritten peremptory exception of prescription. He argued that the claim on its face was prescribed as to Caro, because although the suit was filed timely against TeamWorks, TeamWorks was never the claimant’s employer and should not have been part of the suit, so the addition of Caro after the one-year anniversary could not relate back to the original filing date of the claim.

|4In the written exception, Caro asserted as follows: Caro Foods, Inc. was the claimant’s sole employer at the time of the accident. Caro did not share employment of the claimant at the time of the accident with anyone else. As Caro was not sued until more than one year after the accident date, Caro was not timely sued. Caro paid all of the claimant’s wages and had sole, complete control over the actions of the claimant. Caro never paid any medical benefits for the claimant. Medical bills paid by Caro immediately after the accident were not paid as worker’s compensation benefits. They were paid simply to insure that an injured employee did not require additional medical attention. Caro has never accepted the claimant’s claim as timely and compensable.

After an off-the-record discussion with counsel, the judge decided to rescind the granting of the motion to dismiss because of the issue raised by the exception of prescription. The judge stated from the bench:

Let the record reflect that the Court had rendered a decision with reference to the Motion to Dismiss before the Court was aware there was an issue as to the Exception of Prescription ... and the claimant did indicate that he did not want parties dismissed from this case.
So it is the opinion that the Court is not going to bifurcate any matters. So the issues that were dictated into the record earlier with reference to the Motion to Dismiss Teamworks and Travelers is rescinded and set aside and this matter will go forward to trial on the merits. The Court will consider ... the ruling on the exception before a decision is made in this case.
And the Court has rescinded its earlier decision because new information has been brought to the Court’s attention. And it’s the opinion of the Court that I’m going to try this case totally. I’m not going to bifurcate any issues, and we’re going to go forward with trial on the merits today. [Emphasis added.]

At that point the following joint stipulations by the claimant and Caro were read into the record:

|fil. Martin Manning registered with Teamworks to be put onto a list of people to call in the event Team-works negotiated a contract with a third-party to provide services to that third-party for which Manning was qualified to perform those services.
2. In August of 2005, Martin Manning was contacted by Teamworks and told to report to Caro Foods in Bayou Blue Louisiana where he would be told what Caro expected out of him while working to carry out Caro’s obligations to its customer.
3. Caro assigned Martin Manning and a supervisor, both of whom came to Caro only through Teamworks, to deliver products from Caro to various fast-food locations in Louisiana and Mississippi.
4. While making a delivery of products from Caro using a truck and trailer provided by Caro, Martin Manning and his supervisor from Teamworks teamed together to deliver products to a Popeye’s franchise location in Belle Chasse, Louisiana.
5. While performing the duties of the job assigned to him and his supervisor by Caro, Martin Manning slipped and fell, hurting his low back, back of his head, and several of his front teeth.
6. While working, Manning was paid for the services he performed on behalf of Caro, by Caro through Caro’s payroll department.
7. While still in Louisiana and before leaving to return to his home in New Mexico, Mr. Manning was examined and treated by at least one physician selected by Caro.
8. Without his “registration” with Teamworks as a laborer who was ready to be called to work wherever needed in the US, Mr. Manning had never heard of Caro and obviously would have never appeared at Caro to perform the duties on behalf of Caro but for Teamworks contacting him and requesting that he report to Caro for a job.

The claimant’s exhibits 1 through 19 in globo were admitted without objection from the defendants.

| ,;First Day of Trial: Testimony

At trial the witnesses were Martin Manning, the claimant; Jack Poulson, another worker who had been placed at Caro by TeamWorks; Ralph Boudreau, president of Caro; and Martin Herman, president of TeamWorks.

The claimant testified he got the job at Caro in November 2005, through Team-Works. The claimant testified to the events of the accident. He also testified that several days after the accident, when he still could not return to work, Jack Poulson took him to a doctor in Houma at the expense of Caro. The doctor told him he could return only to light-duty work, gave him medication, and recommended he see an orthopedic specialist.

The claimant reported the doctor’s findings to Poulson and to Matt Lowley, who was Caro’s human resources manager. Lowley initially told him they would take care of everything, then said he would “get back to” the claimant, but he never got back to him. Other than the initial visit to the doctor in Houma, neither Caro nor TeamWorks paid any further medical expenses on his behalf. They did not offer him light-duty work or pay him workers’ compensation benefits or send him to a vocational consultant to help him try to find work he was capable of doing.

He continues to have great back pain, and has been unable to return to work because of his pain levels and physical limitations. He continues to take pain medication, which prevents him from driving a truck. His medical treatment after the initial doctor visit in Houma has been paid by public assistance in the places where he’s lived (New Mexico and New Zealand).

The claimant testified that after it was determined he could not return to work at his regular duties, he was fired from the job by Jack Poulson. He said Poulson told him, “We’re going to send you home,” and Poulson specifically said |7he was fired. The claimant said that when he first met Poulson, Poulson told him, “I’m the supervisor for TeamWorks.”

On cross examination, the claimant testified he never filled out a job application for TeamWorks. Rather, he contacted Team-Works to be put on a list to make his name available for jobs. He had to provide TeamWorks with information, including his driver’s license, Social Security number, work history, and a medical certificate for a commercial driver’s license. He never went to the TeamWorks office, which was in Maryland, nor sat down with anyone from TeamWorks face-to-face. Team-Works did not provide any training, nor send him to another doctor for an examination.

The claimant testified that after he went to work in Houma, his paychecks were from Caro. His assignments and work schedules came either from Jack Poulson or from the Caro dispatcher. The trucks he drove and the equipment he used were provided by Caro. His housing while he worked at the terminal was provided by Caro.

Jack Poulson testified he got the job at Caro in 2005 through TeamWorks. He was the coordinator, which entailed bringing drivers in and making sure they got off on their routes. His paycheck was from Caro. All his drivers were working for Caro.

Poulson testified he was called after the claimant’s accident and arrived on the scene quickly. He said the claimant had slipped on the wet floor, and the hand truck came down on top of him with frozen food products on it. The claimant was hurt in the accident. When Poulson took the claimant to the doctor to be checked out, they learned his back was messed up.

Poulson testified that at some point he had to tell the claimant he was no longer needed on the job. Poulson first said it was because he wasn’t wearing the | sright footwear for the job, although he had been warned several times, and that is what caused him to slip. Poulson said he told the claimant they could no longer use him because he was hurt. Poulson said he had been instructed by a Caro employee name Gale that they no longer needed the claimant as an employee. Gale was in charge of the Caro drivers. Gale told Poulson he didn’t want the claimant on the job any more because he had hurt himself and they could no longer use him because he couldn’t work. Poulson told Gale he would get a replacement for the claimant. He said in letting the claimant go, he was following Gale’s instructions.

Poulson testified that for the entire time he worked at the Caro site, all of his payments were from Caro, and all instructions, routes, and equipment were provided by PFG-Caro Foods. Asked whether TeamWorks played any role in how he performed his job, Poulson said they controlled who he did or didn’t hire, as well as the pay schedule. TeamWorks did not tell him how to perform the job as to Caro; Caro instructed him on everything except for picking the drivers. He had a list of drivers he called to come in that was provided by TeamWorks.

Ralph Boudreau, president of Caro, testified the claimant came to work for his company after Hurricane Katrina. Because of the chaos and lack of employees to deliver products to their customers, they contacted TeamWorks to provide drivers. When the drivers arrived, all orders and directions regarding their jobs came through the Caro transportation department. TeamWorks did not exercise any authority over the people after they arrived at the PFG-Caro plant. Poulson coordinated the group of drivers from TeamWorks and directed them where they were needed. Poulson and the claimant were paid by Caro. Boudreau was not aware of the claimant receiving any payments or direction from TeamWorks while he worked for Caro.

13Boudreau stated that at all times the claimant was performing driving services for Caro. The transportation manager at the plant was Gale; Gale had authority to hire and fire workers. Under the contract with TeamWorks, Caro was responsible to provide a safe place to work, equipment, general or clinical supervision, all payroll, all benefits, application insurance, and to review the credentialing packages of the drivers to determine whether the driver had the skill and experience Caro required. Caro provided the workers’ compensation insurance.

Boudreau reviewed the contract between TeamWorks and Caro, reading at counsel’s direction clauses titled “Rate” and “BuyOut.” Under the Rate clause, TeamWorks charged Caro (referred to as “Client” in the contract) a “finders fee” of 15% of each person’s weekly bill rate. The Buy-Out clause states, “If at any time Client and professional both desire that professional become an employee of Client, this may be accomplished by written agreement between Client and TeamWorks. In doing so, Client agrees to pay a reasonable buyout fee, which will be determined by negotiation at the time of the proposed buyout.” Boudreau stated “professional” refers to a CDL driver. He interpreted the Buy-Out clause to mean that a CDL driver such as the claimant is not an employee until there’s a written agreement between the client and TeamWorks. He said Caro was paying TeamWorks a fee for all the people they brought in, which was a percentage of their weekly rate.

The final witness, Martin Herman, president of TeamWorks, testified TeamWorks is a staffing agency that provides both hourly placement and temporary placement of various workers, including truck drivers, warehouse people, and skilled plant staff.

| inHerman said the process starts with a call from a customer, who tells Team-Works what they’re looking for. Team-Works looks into its own resources to see what’s available, then calls back the customer to explain what is available and to see if there is a match.

Herman was familiar with the contract between TeamWorks and Caro. He testified that Caro called TeamWorks as a result of a labor shortage and asked for truck drivers to deliver their food products. They negotiated terms in the contract so that TeamWorks would not be the employer, but would act as a placement service.

Herman said at the time the state of Louisiana had a flood of contractor inquiries and responses and could not handle TeamWorks’ request for workers’ compensation coverage. TeamWorks was told it would take about three months just to get coverage. In order to lawfully fulfill the contract, TeamWorks had to act as a placement service and could not carry the benefits associated with the contract. TeamWorks was to act strictly as a placement service.

According to Herman, under the contract it was Caro’s responsibility to provide workers’ compensation and all insurance benefits. TeamWorks recruited the workers, but did not pay any wages of those workers. TeamWorks did pay travel expenses for the workers, but those were billed back to Caro.

Herman said Manning was referred to Caro under that contract. TeamWorks did not buy insurance for him or any of the drivers. After the workers arrived in Louisiana, TeamWorks did not provide any equipment, instruction, or supervision. Nor did TeamWorks prepare schedules or route plans.

According to Herman, once drivers were referred to Caro, TeamWorks could not fire them, It would be up to Caro to terminate them, because they were Lion the Caro’s payroll. TeamWorks never considered Manning to be its employee because he wasn’t under its direction and wasn’t on its payroll.

Asked about the Buy-Out clause, Herman explained that in some cases, rather than do the temporary arrangement such as they contracted in this agreement, the client may want to make an offer for long term. He said the Buy-Out clause opens the opportunity to offer clients a flat fee versus a continuous weekly basis fee. It’s a different way for TeamWorks to get paid. Caro, however, did not keep on TeamWorks’ people any longer than a few months.

On cross examination by counsel for Caro, Herman stated TeamWorks did not have workers’ compensation insurance or employee liability insurance for Caro. It had no direction or control over Manning; any supervisors he had were Caro employees. Herman denied that TeamWorks sent any of its own employees to the Caro job. He said Jack Poulson was on Caro’s payroll, but he was not on TeamWorks’ payroll. No one on the payroll of Team-Works as an employee worked at the Caro plant during the entire time TeamWorks and Caro had a contract together to fulfill Caro’s needs right after Hurricane Katrina.

On cross examination by the claimant’s counsel, Herman testified that TeamWorks would not have been able to re-assign a driver once the driver was assigned to Caro. He acknowledged that for each week that the drivers they sent to Caro worked at Caro, Caro paid TeamWorks an agreed-upon price.

If they wanted to make Manning a long-term employee, then TeamWorks would negotiate some type of buyout amount. Herman described the buy-out clause as “generic.” He said the idea behind it is that if the client wants to hire a guy for the next ten years, it gives the client a way to get off the weekly fee. According to Herman, the buyout clause was never exercised.

| ^Herman acknowledged that Team-Works describes itself as a temporary staffing agency, but he said that for this contract, Manning was not a temporary employee. Herman said “temporary staffing agency” is a generic term; in this case TeamWorks acted as a placement agency, not as the employer.

Herman said that typically, in recruiting workers the prospective worker will fax in a copy of his credentials that say he is an authorized CDL driver. In turn, Team-Works refaxes those credentials to the employer to make the hire of that individual. Herman testified that Jack Poulson was placed on Caro’s payroll by TeamWorks and that Poulson had a list of other drivers supplied to Caro from TeamWorks.

The trial was recessed until a later date to allow time for marshaling of other evidence and for counsel to file memoranda regarding Caro’s exception of prescription.

Activity Between Trial Days

On February 4, 2010 the claimant filed an opposition to the exception of prescription, attaching documentation of the following matters:

1. The claimant filed a worker’s compensation claim in Maryland on March 8, 2006, listing the employer as “Teamwork Staffing Service.” On June 26, 2006, he added Performance Food Group as employer. None of the documents indicate a resolution of the Maryland worker’s compensation claim; however, in brief to this Court, the claimant has acknowledged that the Maryland workers’ compensation claim was dismissed on the basis of improper venue and lack of jurisdiction. The claimant argued that Performance Food Group a/k/a Caro thus was timely sued and had full knowledge Manning was pursuing legal remedies against it regarding the worker’s compensation claim.
11⅞2. Manning filed a tort lawsuit on November 7, 2006 in the Jefferson Parish district court, naming as defendants Popeye’s, Inc., and others, including TeamWorks and Caro. TeamWorks filed its answer on April 20, 2007, pleading the exclusive remedy provisions of the Louisiana worker’s compensation laws. 8. Caro intervened in the tort suit.
4. The Louisiana worker’s compensation claim naming TeamWorks as employer/defendant was filed on November 16, 2006, and an amended claim was filed on June 18, 2007, naming Caro as an employer/defendant.

On March 17, 2010, the court issued a judgment that denied Caro’s exception of prescription and granted Travelers’ Motion for Summary Judgment, dismissing Travelers.

Second Day of Trial

On May 12, 2010 the trial resumed, but no further testimony was taken. Counsel for TeamWorks introduced the deposition of Martin Herman, TeamWorks’ president. The parties were granted time to file post-trial memoranda.

Post-Trial Rulings

On August 10, 2010, the court issued judgment finding that the claimant had a work-related accident on November 19, 2005, while he was employed by “Caro Foods, LLC.” The court granted the claimant’s voluntary motion to dismiss TeamWorks USA, granted the exception of prescription filed by “the employer, Caro Foods, LLC,” and dismissed the case.

| HThe claimant filed a timely motion for appeal on August 18, 2010 and the order of appeal was granted on August 19, 2010.

On October 18, 2010, the court issued written Reasons for Judgment, as follows in pertinent part:

The claimant, Martin Manning ..., was employed by Performance Food Group, doing business as Caro Foods, as a truck driver. Claimant was also employed by Teamworks Staffing Services of Maryland, and he was assigned to work in Louisiana for Caro Foods. It is uncontested that the claimant was injured by accident in the course and scope of his employment, on November 19, 2005. Claimant filed a workers’ compensation claim in Maryland on March 8, 2006 against Teamworks Staffing Services. On June 26, 2006, he added Performance Food Group/Caro as his employer. A tort suit was filed in Louisiana in the 24th Judicial District Court on November 17, 2006 against various defendants, including Teamworks and Performance/Caro. Claimant filed a Louisiana Workers’ Compensation Claim on November 16, 2006 against Team-works. Claimant amended his claim to add Caro as a defendant on June 18, 2007. Teamworks and Caro were dismissed from the tort suit. The night before the trial on January 20, 2010, claimant’s attorney fax filed a “Motion to Dismiss Teamworks.” The claimant’s attorney agreed to the dismissal of Teamworks on the morning of the trial.
Thereafter, the court granted the request for dismissal of Teamworks. Thereafter, Caro filed an “Exception of Prescription” in open court. The court rescinded the order dismissing Team-works. The court deferred ruling on the “Exception of Prescription” until the end of trial. The trial was held and a judgment was rendered.
Findings of Fact
(1) Claimant was injured by accident on November 19, 2005, during the course and scope of his employment with Teamworks and Caro Foods.
(2) Claimant filed a workers’ compensation claim in Maryland on March 8, 2006 against Teamworks Staffing Services.
(3) Claimant added Performance Food Group, doing business as Caro, as defendant in the Maryland claim in June 2006.
11fi(4) The claim in Maryland was dismissed for lack of jurisdiction.
(5) Claimant filed a Louisiana Workers’ Compensation claim on November 16, 2006 against Teamworks.
(6) Claimant amended his Louisiana Workers’ Compensation claim to add Caro as a defendant on June 18, 2007.
(7) Claimant filed a tort suit in the 24th Judicial District Court in Louisiana on November 17, 2006 against various defendants, including Teamworks and Caro Foods.
(8) Teamworks and Caro were dismissed from the tort suit.
(9) On the night of January 20, 2010, claimant’s attorney faxed filed a “Motion to Dismiss Teamworks” as defendant.
(10)On the day of the trial, claimant’s attorney agreed to the dismissal of Teamworks and the court granted the dismissal.
(11) At trial, the attorney for Caro filed an “Exception of Prescription” which was heard. The court rescinded the dismissal and deferred ruling on the Exception of Prescription until the end of the trial.
(12) The medical claims of the claimant have not prescribed, because medical bills were paid by Caro.
(13) Teamworks was sued timely.
(14) Caro Foods was not sued timely for indemnity.
(15) The trial was held and the matter was taken under advisement after briefs were received.
(16) The court granted claimant’s “Motion to Dismiss” Teamworks.
(17) The court granted defendant’s “Exception of Prescription” filed by Caro Foods.
(18) Judgment was rendered.
(19) Written Reasons were requested.
Conclusion
The claimant, Martin Manning was injured by accident in the course and scope of his employment with Team-works Staffing Services and Performance Food Group/Caro Foods. Both of these employers exercised control over various aspects and duties during the claimant’s employment which is delineated in details herein.
Nevertheless, this claim has had various attorneys. It has been filed in several courts, Maryland Workers’ Compensation Court, 24th Judicial District Court, in | T fiLouisiana and Workers’ Compensation Court in Louisiana. There have been various rulings on jurisdiction, tort coverage, venue, etc.
After trial on the merits, it was established that the claimant worked for both employers. They both retained some control over various aspects of his job at the time of the accident. The claimant suffered a compensable work related accident. The claim was dismissed by claimant’s attorney against Teamworks. She did not ask for the dismissal to be rescinded. The defendant, Performance Food Group/Caro, was not added to the Louisiana Workers’ Compensation claim until June 18, 2007, almost 2 years after the accident. Therefore claimant’s rights to indemnity against Caro have prescribed, but the medical claim is still viable. Claimant had a valid claim for all workers’ compensation benefits against Teamworks, but they were dismissed by them. The claimant had a valid claim against both employers that became entangled in a coverage dispute to his detriment. These delays affected the outcome of the case.

LAW AND ANALYSIS

On appeal, the claimant raises the following assignments of error:

1. The trial court erred in failing to order Caro to pay medical benefits and failing to assess penalties and attorney fees against Caro for its termination of medical benefits and non-payment of medical bills.

2. The trial court erred in granting the Exception of Prescription in favor of Caro, when a claim had been timely filed and served in Maryland and a new claim filed within the one-year period after the Maryland claim was dismissed.

3. The trial court erred in granting Caro’s Exception of Prescription when the claimant had timely filed a tort suit in relation to the accident and injuries involved herein.

4. The trial court erred in dismissing TeamWorks pursuant to Claimant’s Motion to Dismiss TeamWorks, when claimant had already withdrawn the motion and the Court had already denied the motion.

117The applicable standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. S.J. v. Lafayette Parish School Bd., 2009-2195 (La.7/6/10), 41 So.3d 1119, 1127. An independent de novo review by the appellate court is proper only “[w]here one or more trial court legal errors interdict the fact-finding process” and “the record is otherwise complete.” Id., 41 So.3d at 1128. Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo standard of review. Louisiana Municipal Association v. State, 2004-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836.

La. R.S. 23:1209(A)(1) provides that claims for worker’s compensation payments are forever barred unless a formal claim has been filed within one year after the accident.

1. Medical Benefits

The Judgment was silent on medical benefits, although the later-filed Reasons for Judgment stated, “The medical claims of the claimant have not prescribed, because the medical bills were paid by Caro.” On appeal the claimant asserts the trial court erred in failing to order Caro to pay medical benefits and failing to assess penalties and attorney fees against Caro for its termination of medical benefits and non-payment of medical bills.

La. R.S. 23:1209(0 provides in pertinent part:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred ... unless within one year after the accident a formal claim has been filed with the office.... Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

The employer is required to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment” to workers’ compensation | isclaimants. La. R.S. 23:1203(A). The medical bills “shall be paid within sixty days after the employer or insurer receives written notice thereof.” La. R.S. 23:1201(E).

La. R.S. 23:1201(F) provides that failure to provide payment shall result in the assessment of a penalty, either a percentage of the unpaid medical benefits or a per diem amount, whichever is greater, with reasonable attorney’s fees, up to a maximum of $8,000.00.

“When an employer has failed to pay worker’s compensation benefits, the proper standard of review for that decision is whether the employer reasonably controverted the claim.” Branch v. New Orleans Saints, 09-910, p. 9 (La.App. 5 Cir. 2/23/2010), 31 So.3d 627, 632, writ denied, 2010-0769 (La.06/04/2010), 38 So.3d 304. “A claim for worker’s compensation benefits is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits.” Id.

It is uncontroverted that the claimant was injured in the accident and that he needs further medical treatment. It is uncontroverted that Caro paid and/or guaranteed the claimant’s medical bills shortly after he was injured. Hence, the plea of prescription cannot be applied to the medical benefits claim. Further, Caro did not respond to the claimant’s demands for payment of medical bills beginning in January 2008 and thereafter.

We find merit to this assignment. The court erred in failing to order that the medical bills be paid, and in failing to assess penalties and attorney’s fees against Caro. On remand the trial court is instructed to address the medical benefits, penalties and attorney’s fees in accordance with this opinion.

2. Prescription as to Caro

We combine discussion of the second and third assignments because they both concern prescription of the claim against Caro.

|1flIn his second assignment, the claimant asserts the trial court erred in granting the Exception of Prescription in favor of Caro, when a claim had been timely filed and served in Maryland and a new claim was filed within the one-year period after the Maryland claim was dismissed.

In his third assignment, the claimant contends the trial court erred in granting Caro’s Exception of Prescription when the claimant had timely filed a tort suit in relation to the accident and injuries involved herein.

Prescription is interrupted when the ob-ligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. “If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” Id.

“If prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption.” La. C.C. art. 3466.

In Totty v. Dravo Corp., 413 So.2d 684, 686 (La.App. 3 Cir.1982), the first circuit found the filing of a workers’ compensation claim in Illinois, along with notice thereof received by the defendants, all within Louisiana’s one-year prescriptive period, interrupted the running of prescription such that the Louisiana workers’ compensation suit filed two years and two months post-accident was timely. The court emphasized the reasons for the time limitation of the Workers’ Compensation laws and concluded those reasons were met in the case before it:

“The purpose of the requirement that a suit be brought by the claimant within one year after the accident under the penalty of barring his recovery is of a three fold nature; (1) to enable the employer to determine when his potential liability for an accident would cease; (2) as a matter of public policy to prevent suits based on stale claims where the evidence might be destroyed or difficult |anto produce; (3) to fix a statute of repose giving rise to a conclusive presumption of waiver of his claim on the part of an employee where he fails to bring his suit within the fixed period.”

Totty, 413 So.2d at 686, citing Harris v. Traders & General Ins. Co., 200 La. 445, 8 So.2d 289, 293 (1942).

The claimant contends the filing of the workers’ compensation claims against TeamWorks in Maryland on March 20, 2006 and in Louisiana on November 16, 2006, as well as the tort suit in Louisiana on November 17, 2006, interrupted prescription.

With respect to the Maryland claim, Caro was added to the claim in June 26, 2006, and Caro was one of the original defendants in the November 17, 2006 Louisiana tort suit. Both those dates are within the prescriptive period of one year from November 19, 2005.

Although the Maryland claim later was dismissed on the basis of improper venue and lack of jurisdiction, it is uncontested that the Maryland claim was still pending at the time the Louisiana workers’ compensation claim was filed on November 16, 2006. Although Caro was not added to the Louisiana claim until June 18, 2007 — past the one-year time bar — the claimant asserts it was nonetheless timely because the Maryland claim interrupted prescription and the interruption continued until the Maryland claim was dismissed. At that point prescription began to run anew pursuant to La. C.C. art. 3466.

Even without having a precise date for the dismissal of the Maryland claim, the claimant asserts the new prescriptive period would have begun running at earliest on November 17, 2006, the documented date of the last notification to Caro of a hearing in the Maryland case, giving the claimant at least until November 17, |⅞12007 to file his Louisiana claim. As such, the addition of Caro to the Louisiana claim on June 18, 2007 was within the renewed prescriptive period.

The claimant also asserts the purposes set out in Harris and Totty, supra, are clearly met, because Caro knew from an early date that the claimant was asserting a legal claim for workers’ compensation benefits against Caro; Caro had ample opportunity to conduct investigations and amass evidence; Caro knew, both from the Maryland claim and from the Louisiana tort suit in which it was a defendant, that the claimant was pursuing a legal claim against it.

With respect to the tort suit, the claimant points out the suit was filed on November 16, 2006, within one year of the date of his accident, and it named both Team-Works and Caro among the defendants. Some of the defendants have been dismissed, including TeamWorks and Caro, but the suit is still pending as to other defendants.

The interruption of prescription against one solidary obligor is effective against all solidary obligors. La. C.C. art. 1799. When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors. La. C.C. art. 3503.

A timely-filed tort suit filed in a court of competent jurisdiction and venue interrupts prescription as to a workers’ compensation claim where the defendant and the tortfeasor are solidary obligors. Bradley v. Mike Rougee Corp., 95-967, p. 5 (La.App. 5 Cir. 6/25/96), 676 So.2d 1111, 1114, writ denied, 96-1915 (La.11/1/96), 681 So.2d 1262.

Solidary obligors are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. Bradley, 95-967 at pp. 3-4, 676 So.2d at 1113. Obligations can be solidary even though they arise from separate acts or by different reasons. Id. In a | ^workers’ compensation claim, some elements of compensation damages are the same as those that may be recovered in tort damages, i.e., lost wages and medical expenses. See LSA-R.S. 23:1202-1203. Where workers’ compensation benefits and recovery in the tort action overlap, the defendant and the tortfeasor are obligated to the same thing even though the obligations arise from different sources. Id.

Further, the employer and tortfeasor share a common liability that is not subject to a plea of division. Id. Finally, payment of one solidary obligor would exonerate the other obligors as to the creditor. Id. The injured employee is not allowed to obtain double recovery on the elements of damage, which are coextensive, where the employer intervenes in the tort action for subrogation and offset for any workers’ compensation payments it must make to the claimant. Bradley, 95-967 at pp. 3-5, 676 So.2d at 1113-14, citing Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993) and Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982).

La. C.C.P. art. 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim or defense arises. Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272, 1275 (La.1980).

The claimant asserts that TeamWorks was a co-employer of the claimant and, hence, the addition of Caro past the prescriptive date is immaterial because the connexity between the claims and the defendants makes the addition of Caro relate back to the original filing date. The claimant concedes that “the tort suit appears not to have been filed in a court of competent jurisdiction and venue.” He argues, however, that the filing of the tort suit, which named Caro as a | ¡^defendant, “made it abundantly clear to Caro” that the claimant was seeking a legal remedy against Caro, thus giving the defendant timely notice of its potential liability, of its need to gather evidence at a timely point, and that it should not presume the claim had been waived, pursuant to the requirements set out in Harris and Totty, supra.

Reviewing all these factors and circumstances, we conclude the trial court was clearly wrong and erred as a matter of law in finding the claim against Caro prescribed.

3. Dismissal of TeamWorks

The effect of the dismissal of TeamWorks was to eliminate the party with whom Caro was solidarily liable, thus preventing the late addition of Caro to the Louisiana workers’ compensation claim from relating back to the original filing date. Pursuant to La. C.C. art. 3463, the dismissal placed the claimant in the position as if his claim had never been filed against TeamWorks and, hence, the addition of Caro beyond the one-year mark was clearly outside the prescriptive period.

The claimant asserts the trial court erred in dismissing TeamWorks pursuant to the claimant’s Motion to Dismiss Team-Works, when the claimant had already withdrawn the motion and the court had already denied the motion.

The defendants contend the claimant never withdrew his motion but, rather, it was simply in abeyance after the judge rescinded her order that granted it, until she re-granted it after trial on the merits.

In fact, the transcript shows that the court stated, “Let the record reflect that the Court had rendered a decision with reference to the Motion to Dismiss before the Court was aware there was an issue as to the Exception of Prescription ... and 124the claimant did indicate that he did not want parties dismissed from this case.” (Emphasis added.)

The judgment was rendered some eight months after the first day of trial, on which these events occurred. The reasons for judgment were issued ten months after the first day of trial. We can only conclude that the judge’s recollection of that part of the preliminaries was fading. We find the court erred in granting the Motion to Dismiss TeamWorks when the claimant had withdrawn it on the first day of trial.

Due to the dismissal of TeamWorks and Caro on the Motion to Dismiss and the Exception of Prescription, the court never considered the merits of the claimant’s case for indemnity benefits. Accordingly, on remand the court is ordered to address the evidence concerning the claimant’s injuries and disabilities, and rule thereon.

DECREE

For the foregoing reasons, the judgment is reversed. The case is remanded for further proceedings consistent with this opinion, including payment of medical expenses and assessment of penalties and attorney’s fees against Caro, and for evaluation of the plaintiffs injury status for award of indemnity benefits. Costs are assessed against the defendants-appellees.

REVERSED AND REMANDED

      . On the original LDOL-WC-1008 form the employer was designated as "Teamwork Staffing Service/TSS of Maryland,” but the claim was later amended to change that name to "TeamWorks USA, Inc.” The name "Teamworks” has been used throughout the pleadings to designate that defendant. The insurer was originally designated as "Zurich American Insurance Company," but that was later amended to "Travelers Indemnity Company.”

      . The defendant now appearing as "PFG-Caro Foods” has been called a variety of names in this suit and in related litigation: "Performance Food Group”; "Caro Foods, Inc.”; "Caro, Inc./PFG, Inc.”; "PFG-Caro Foods.” In its brief to this Court, PFG-Caro Foods advises that it has merged with another company and is now registered with the Louisiana Secretary of State as "Vistar Corporation.” For consistency, we use simply "Caro,” except in direct quotations of documents where another form of the name may appear.

      . In support of its motion for summary judgment, TeamWorks alleged as follows: It is a Maryland-based company that matches eligible employees with potential employers across the United States. It is not in the food distribution business nor is it in the business of training and/or employing CDL drivers in the State of Louisiana. TeamWorks entered into an agreement with Caro to locate licensed CDL drivers for Caro. The agreement lasted from October 21, 2005 through November 20, 2005. Under this agreement, Caro assumed all responsibility for payroll, benefits, insurance, per diem and travel expenses of the personnel TeamWorks located and referred to Caro. The contract called for Team-Works to be paid finder's fees for their services. TeamWorks referred Martin Manning to Caro pursuant to the professional service agreement. Based on these facts, Team-Works asserted it was not Manning’s employer at the time of this accident, and pursuant to the terms of the Service Agreement, Caro had the sole responsibility to provide worker’s compensation benefits to the claimant.

      .TeamWorks’ insurer, Travelers Indemnity Company, filed a motion for summary judgment that adopted and incorporated by reference TeamWorks' motion for summary judgment, asserting that as insurer for Team-Works, Travelers cannot be liable if Team-Works is not liable. Subsequently, however, it was determined that the Travelers insurance policy itself did not provide coverage within the State of Louisiana. Based on that provision, counsel for the other parties withdrew opposition to dismissal of Travelers and the court granted Travelers' motion for summary judgment.

      . Poulson’s and Herman’s testimony was through deposition.

        . Manning v. Popeyes, Inc., No. 638-925, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.

      . "IX. Further answering, defendant pleads the exclusivity provisions of the La. Workers’ Compensation statute which acts as a bar to this lawsuit.” Answer by Teamworks, Inc. in Manning v. Popeye’s, Inc., No. 638-925, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.

      . The location of the restaurant where the claimant fell was in Belle Chasse, which is in Plaquemines Parish, not in Jefferson Parish.


source: Caselaw Access Project

license: Public Domain

text:
    David A. HOLLAND v. Lisa Marie SPELLMAN.
    No. 10-CA-982.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Phyllis C. Coci, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant, David Holland.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12This appeal arises in a much-disputed child custody and visitation case. The father of the child appeals a judgment that denied his rule to change custody. We affirm.

FACTS

The parties, David Holland and Lisa Spellman, were never married to each other. They had a dating relationship that ended bitterly. Unknown to Holland, Spellman became pregnant as result of the relationship. The baby, a boy (“A.M.S.”), was born on July 8, 2005. Holland learned of the birth shortly afterward, and sought to visit the baby. Spellman allowed him to see the baby twice in August 2005.

Hurricane Katrina struck at the end of August 2005 and both parties evacuated the New Orleans area. Holland ended up in Lafayette, Louisiana, and Spellman ended up in Fort Walton Beach, Florida. Holland attempted to re-establish contact so he could visit the baby, but Spellman refused to allow him contact with the child and refused to accept child support from Holland.

In December 2005 Holland initiated this action as a filiation suit to establish his paternity of A.M.S. Spellman resisted, but in due course Holland’s paternity |swas proven. Eventually the court ordered Spellman to return with the child to Louisiana.

Holland sought custody and visitation, resulting in a December 2006 consent judgment under which the parties received joint custody of the child, with Spellman being designated as domiciliary custodian. The judgment provided for a parenting facilitator to assist the parties in developing a co-parenting relationship.

In February 2009, Holland filed a rule to set a physical custody schedule, requesting additional times for physical custody. In March 2009, a domestic hearing officer issued Stipulations and/or Recommendations, in which he recommended that Holland be given increased visitation and that Holland and Spellman participate in court-ordered facilitation with Dr. Karen Van Beyer. In April 2009 the district judge awarded Holland increased physical custody and ordered the parties to participate in facilitation with Dr. Van Beyer, pursuant to the hearing officer’s recommendation.

In May 2009 Holland filed a rule for contempt against Spellman, stating he had repeatedly requested facilitation as required by the April 2009 order, but Spell-man had refused to schedule an appointment with Dr. Van Beyer. Spellman failed to appear for the scheduled hearing. As a result the hearing officer issued Stipulations and/or Recommendations in June 2009, in which he recommended that Spell-man be found in contempt and that she be required to pay Holland’s attorney’s fees. On August 4, 2009, the district court found Spellman in contempt, ordered her to schedule an appointment with Dr. Van Beyer within 15 days, and awarded Holland attorney’s fees.

On October 23, 2009, Spellman filed a petition for protection from abuse, alleging that Holland had sexually abused A.M.S. The court issued a temporary restraining order that day. Three days later Holland filed a motion for an ex parte |4order of custody and for the child to be examined at Children’s Hospital. He also filed a rule to change custody and for child support, and a rule for contempt for failure to allow visitation.

After a hearing on November 5, 2009, the court dismissed the protective temporary restraining order. On the same day the court appointed Dr. Van Beyer as mental health expert, ordering both parties to contact Dr. Van Beyer for an appointment. In a judgment signed on November 17, 2009, the court ordered that Holland have the same schedule of visitation as before, but under supervision by his parents pending further proceedings.

On November 25, 2009, Holland filed another rule for contempt against Spell-man because she had not complied with the order to contact Dr. Van Beyer. Holland also filed a motion for issuance of a civil warrant, alleging that Spellman had wrongfully withheld A.M.S. from Holland when he sought to pick up the child for visitation. The warrant directed law enforcement authorities to compel Spellman to release the child to Holland for scheduled visitation. The warrant was issued that day. Accompanied by police officers, Holland was able to pick up the child.

On December 15, 2009 the court again found Spellman in contempt and sentenced her to a suspended term of 30 days in parish prison, plus a fine of $500, and ordered her to pay $1,000 in attorney’s fees to Holland’s attorney.

On February 19, 2010, Dr. Van Beyer filed the custody evaluation with the court. After a hearing on May 25, 2010, the hearing officer issued Stipulations and/or Recommendations adopting the recommendations in Dr. Van Beyer’s custody evaluation report, and awarding Holland increased visitation. Holland objected to the hearing officer’s recommendations and requested a hearing before the district judge.

| fiFollowing a hearing on June 16, 2010, on July 6, 2010 the district judge issued an order that denied Holland’s request to become domiciliary custodian, but only on the condition that Spellman stop suggesting to A.M.S. that. Holland was an abuser or unfit parent, that Spellman participate in weekly psychotherapy sessions for a minimum of one year, and that Spellman make arrangements to start her psychotherapy within 15 days.

On July 13, 2010 Holland filed a motion for new trial, asserting that Spellman had failed to meet any of the conditions of the July 6, 2010 order. The motion for new trial was heard on August 16, 2010, after which the court denied Holland’s motion and issued an order directing Spellman to contact the Jefferson Parish Human Services Authority and Dr. Van Beyer to determine what services were available to her for mental health treatment.

A review hearing was held on September 20, 2010, which established that Spell-man had not yet fully complied with the court’s order. The court did not modify custody, however, despite the statement in the July 6, 2010 judgment. On September 20, 2010, Holland filed an appeal of the July judgment.

The evidence at the hearings establishes that Spellman has consistently refused to communicate or cooperate with Holland, has twice filed petitions for protection from abuse against him that were dismissed for lack of evidence, and has failed repeatedly to comply with the court orders that regulate the terms of the joint custody arrangement. Spellman failed or refused to cooperate with the court’s orders concerning meeting with the parenting facilitator. When Holland pressed Spellman to agree to let him have A.M.S. for overnight visits, she argued with him and subsequently refused to have direct communication with him.

For several months thereafter they communicated through writing in a notebook that went back and forth with the child on his visits with his father. 1 fiHolland desired to discuss with Spellman the child’s developmental milestones, but she refused. They communicated exclusively through Spellman’s mother.

Spellman testified she refused to talk to Holland because any time they tried to talk it became ugly, disrespectful and humiliating. She gave no specifics as to what occurred, however. Spellman stated she initiated the use of the notebook, but they eventually stopped using it after A.M.S. became able to speak for himself.

Dr. Van Beyer, who had been appointed to be the parties’ parenting facilitator in May 2008, testified that shortly after the court appointment Holland contacted her and sent her a check for her services. Dr. Van Beyer said she contacted Spellman to arrange a time for a meeting, but Spell-man was not willing to meet with Dr. Van Beyer if Holland was there.

Spellman ignored an April 2009 order that she attend facilitation and in July 2009 was held in contempt for failing to obey that order — more than a year after she was first directed to participate in facilitation with Dr. Van Beyer. The contempt order further directed Spellman to schedule an appointment with Dr. Van Beyer within 15 days. Dr. Van Beyer testified that Spellman did appear for an appointment shortly after July 28, 2009, but she refused to attend a meeting with Holland because she did not want to be in the same room with him.

Dr. Van Beyer stated she was unable to persuade Spellman to change her mind. In her individual meeting with Dr. Van Beyer, Spellman said she had already given in to what Holland wanted, and so there were no more issues for her to discuss with him. Based on that, Dr. Van Beyer decided the case could not be facilitated and she resigned as facilitator. She suggested to the court that a full custody evaluation be undertaken.

In a letter dated September 22, 2009, Dr. Van Beyer reported that Holland felt that Spellman was mentally unstable, and he was concerned about her lack of [ 7communication with him, the child’s failure to be potty-trained at the age of four, that the child was still using a bottle, and the fact that the child was not interacting with other children under Spellman’s eai’e. Holland told Dr. Van Beyer he was concerned it would be detrimental to the child’s well-being to remain in Spellman’s care.

Dr. Van Beyer verified that Holland was unable to communicate with Spellman and she indicated she shared Holland’s concerns about Spellman’s mental instability.

Shortly after Dr. Van Beyer’s letter was sent to the parties, Spellman accused Holland of sexually abusing A.M.S. during visitation on October 4, 2009. She called the police and said that A.M.S. told her they had “played the bathtub games,” “where we washed all of the parts.” Police came by and made a report, but took no action. On October 9, 2009, Spellman again accused Holland of abuse when A.M.S. told her as he took a bath that “my daddy plays with me.” When Spellman asked what that meant, the child replied, “Nothing.” Spellman claimed further abuse after the October 18, 2009 visit, alleging that A.M.S. told her that his father “is putting toys in my booty.”

On October 23, 2009, Spellman filed a petition for protection from abuse based on that incident, which resulted in Holland’s having visitation only with supervision. Holland’s motion to have A.M.S. examined at a hospital was granted, but the examination revealed nothing to indicate the child had been abused. The Office of Community Services investigated, and on April 21, 2010, issued a letter finding the allegations of sexual abuse were invalid.

Following the November 5, 2009 court order, Dr. Van Beyer and Dr. Jeremy Handy conducted a mental health evaluation. Dr. Van Beyer testified that Spell-man failed to answer the questions on the parent and child questionnaire 18administered by Dr. Van Beyer as part of the evaluation, but that Holland complied fully.

Dr. Van Beyer reported that A.M.S. told Holland that his mother would be “sad” to see him after a visit with Holland “because I have to tell her you put something in my booty,” although A.M.S. knew it was not true. A.M.S. also stated that Spellman wanted him to tell the story to her and to the police. Dr. Van Beyer testified that when Spellman would tell A.M.S. to say bad things about his own father, when he knew they were not true, it had to be terribly confusing, destructive, and harmful to him.

Dr. Van Beyer testified that Spellman’s insight and judgment are questionable. She further stated that Spellman does not have clear-cut symptoms of one of the disorders in the Diagnostic and Statistical Manual, but she evidenced symptoms of a persistent type of post-traumatic stress disorder, resulting in a mental condition for which she needs treatment. Dr. Van Beyer testified that Spellman is delusional about the topic of sexual abuse, and concluded that Spellman was incorrect about what has happened to her son, and that she needs help.

Dr. Van Beyer also noted that Spell-man’s mother, who had functioned as liaison between Spellman and Holland prior to the abuse allegations, now believed that Holland was a sexual abuser, which had a negative impact on the nature of the communication between Holland and Spellman. Dr. Van Beyer testified further she believed that although he was almost five years old, A.M.S. had almost no interaction with other children.

Spellman testified she planned on sending A.M.S. to kindergarten, but admitted at the June 16, 2010 hearing she had not yet made any arrangements to register the child for a school, although classes were to start in mid-August. |3Spellman also admitted that she had not gathered any information about schools, but instead she was relying on her mother to do that.

Dr. Van Beyer recommended to the court that Spellman remain domiciliary custodian only if she met certain conditions. These included attending psychotherapy with an experienced mental health professional on a weekly basis for a minimum of one year, cessation of all accusations against Holland regarding abuse or misconduct in the presence of A.M.S., and cessation of her questioning A.M.S. every time he returned to her from visitation with his father. Dr. Van Beyer emphasized that if Spellman failed to get mental health assistance, then Holland should become domiciliary custodian.

Spellman indicated in her trial testimony that she did not have enough money to pay for therapy. She acknowledged, however, that she had never cashed the child support checks Holland had been giving her. Spellman acknowledged receipt of the May 25, 2010 finding of the hearing officer, which stated she must obtain psychotherapy, but she did nothing and decided instead to wait for the district judge to issue an order. Spellman also admitted that although she is a trained pharmacist, she had not worked since 2004, and she did not want to return to work as a pharmacist because “[fit’s not in my heart to really be a pharmacist again.”

After, the trial the court adopted Dr. Van Beyer’s recommendations as follows. The parties were ordered to remain joint custodians of A.M.S.; Spellman was to remain as domiciliary custodian only if she met the following conditions: (a) she was not to unduly influence A.M.S. to inappropriately see his father as an abuser or otherwise unfit father; (b) she was to participate in psychotherapy with an experienced mental health professional on a weekly basis for a minimum of one year; (c) she was to immediately make arrangements to see a therapist and to notify 11ftthe court within 15 days — on or before July 1, 2010 — of the name of the therapist; and (d) she was to require the therapist to submit a report to the court on a monthly basis as to Spellman’s attendance at the weekly therapy sessions.

The court further ordered Spellman to set aside her animosity toward Holland and to communicate directly with him, and to stop questioning A.M.S. about possible abuse. In response to questions by Holland’s counsel as to how it would be known if Spellman was actually going to therapy, the court responded, “because she’s going to report to me that she’s doing it.” The court set “the end of the week” as the time limit for Spellman to arrange psychotherapy-

The court also informed Spellman that if she did not communicate with Holland to enable his being a joint parent, then the court would make the change. The court set up a time frame of 15 days for Spell-man to inform the court of the name of her therapist and to make arrangements to see the therapist.

At the hearing on Holland’s motion for new trial, however, on August 16, 2010— two months after the time when the court had ordered her therapy was to begin— Spellman admitted she had not started therapy, because she had not found a therapist. She stated she had called four different organizations, but was told she did not qualify for free treatment. She admitted she had not called Dr. Van Beyer as the court had directed in June. Spellman also acknowledged she still had not cashed any of the child support checks from Holland; she had not used the checks to pay for A.M.S.’s school tuition, but instead had taken out a loan.

Holland testified that for over a month after the June 2010 trial, A.M.S. complained to him that Spellman asked about abuse every time he went home.

Spellman stated she had declined an offer of counseling sessions with a student from Xavier University because the court required her to have a licensed medical professional. In response the court pointed out that the judgment stated |1t“an experienced mental health professional,” and did not require licensing. On being asked by the court why she had not reported back to the court after 15 days, Spellman simply stated she had not contacted the court because she did not have a name of a counselor.

Although the court indicated frustration with Spellman’s failure to follow the prior orders, the court did not adhere to its June 16, 2010 ruling that it would designate Holland domiciliary parent if Spellman failed to follow the conditions set out in the judgment. Instead, the court gave Spell-man another opportunity to get a therapist within a week and scheduled another hearing for a month later.

At that review hearing on September 20, 2010, Spellman reported she still had not obtained a therapist. She had called the Jefferson Parish Mental Health Clinic on August 17, but was unable to arrange for a therapist because that clinic no longer does individual counseling. Spellman also testified she had phone Dr. Van Beyer twice, on August 19 and 20, but did not receive a return call. She admitted she never tried again. Spellman stated Dr. Van Beyer left a message on Spellman’s mother’s cell phone on September 2, indicating she had names of two therapists to recommend, but Spellman never followed up on that call.

Spellman said she did nothing because she believed the court would make a decision about whom she should get as a therapist. Spellman admitted she made no efforts to contact the persons whom Dr. Van Beyer recommended.

The judge chastised Spellman, telling her he expected her to be in treatment by that day, and warning her of adverse consequences if she failed to comply. Nevertheless, the court did not designate Holland the domiciliary parent but instead gave Spellman another opportunity to begin therapy.

|12On appeal, Holland asserts the trial court abused its discretion in denying his rule to change custody and in allowing Spellman to repeatedly disregard and flout the orders of the court.

LAW AND ANALYSIS

The court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131. “In the absence of agreement, ... the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.” La. C.C. art. 132. Where there is joint custody, “to the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.” La. R.S. 9:335(A)(2)(b).

In seeking to modify a consent judgment, the moving party must show that a material change in circumstances has occurred since the entry of the consent judgment, and that the proposed modification is in the best interest of the child. Pizzolato v. Hihar, 02-53, p. 5 (La.App. 5 Cir. 6/26/02), 822 So.2d 835, 838. In ruling on this issue, the trial judge makes credibility determinations and findings of fact, which this Court will not overturn absent an abuse of discretion. Id.

To evaluate whether a modification of custody is in the child’s best interests, the court must be guided by La. C.C. art. 134:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
|1S(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4)The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The weight to be given each factor is left to the discretion of the trial judge. Pizzolato, supra.

A reviewing court may reverse a trial court determination with regard to the best interests of the child only if there is a clear showing of abuse of discretion. Estes v. Estes, 261 La. 20, 258 So.2d 857, 859 (1972).

Holland argues that since the consent ruling of December 2006, several material changes in circumstances have occurred: (1) Spellman’s refusal to communicate directly with Holland in facilitation and her insistence on using her mother as an intermediary for ordinary communication with Holland; (2) |uSpellman’s unproven accusation of sexual abuse against Holland, which came directly after Dr. Van Beyer recommended more visitation time for Hoi-land; (3) Spellman’s persistent questioning of A.M.S. about abuse every time he returned from visitation with his father; (4) Spellman’s apparently deteriorating mental condition; (5) Spellman’s reluctance to have the child socialize with other children on a regular basis; (6) Spellman’s delay in making timely arrangements for A.M.S. to attend school; and (7) Spellman’s failure to share information and decision-making with Holland as the child grew older.

Notwithstanding the court’s repeated admonitions and orders, Spellman continued to delay and avoid obtaining therapy. Her behavior persisted despite the court’s repeated attempts to explain and define the scope of the rulings over successive hearings.

Despite Holland’s understandable concerns, we do not find that these occurrences satisfy the requirement of material changes in circumstances such as to establish that the trial court abused its discretion.

Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the children. Bridges v. Bridges, 09-742, p. 6 (La.App. 5 Cir. 2/9/10), 33 So.3d 914, 918. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Thompson v. Thompson, 532 So.2d 101, 101 (La.1988).

The transcript of the hearing shows the trial court was deeply concerned with the matter and paid close attention to the issues and problems in the case. The testimony also established that the child currently is a “happy, normal little boy,” living in a warm, stable, and loving environment with his mother at his 11sgrandmother’s home (described by Dr. Van Beyer as the child’s “secure base”). The child is comfortable in his father’s environment also, and he enjoys the time he spends with his father.

Considering the record as a whole, we are unable to find that the trial court abused its discretion in denying the father’s rule to change custody.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . We designate the child by initials to protect his privacy. See La. S.Ct. Rules, Rule XXXII, section 3.

      . Dr. Van Beyer recommended the parents be given 50-50 shared custody, but the trial judge did not follow that recommendation. Although we consider that recommendation very persuasive, we are unable to find the judge’s rejection of 50-50 shared custody a clear abuse of the trial court's great discretion.


author: GASKINS, J.

text:
    Bobby Ray BARNES, Plaintiff-Appellee v. Karen Jeannette BARNES, Defendant-Appellant.
    No. 46,417-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Carol D. Powell Lexing, Monroe, LA, for Defendant-Appellant.
    Ronald J. Miciotto, Shreveport, LA, for Plaintiff-Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

1 [Karen Jeannette Barnes appeals from a trial court judgment finding that Ms. Barnes failed to carry her burden of proving entitlement to final child support from her former husband, Bobby Ray Barnes, and dismissing the claim with prejudice. For the following reasons, we reverse the trial court judgment and remand for further proceedings.

FACTS

The parties were married in June 1991. They had a son, Devin Duane Barnes, born February 22, 1995, and a daughter, Danielle Rae Barnes, born December 31, 1997. On September 19, 2008, Mr. Barnes filed a petition for a divorce under La. C.C. art. 102. He asked for joint custody of the children, with Ms. Barnes named as the domiciliary parent. Mr. Barnes alleged that the parties separated on September 17, 2008, and claimed that Ms. Barnes was not free from fault.

Ms. Barnes filed an answer and a reeon-ventional demand on October 15, 2008, asking for a divorce, joint custody with Ms. Barnes as the domiciliary parent, child support from Mr. Barnes, division of the community property, interim and permanent spousal support, and other incidental matters. She requested that Mr. Barnes produce his financial records and his income tax returns from 2005 through 2007. Ms. Barnes asserted that she was free from fault.

Mr. Barnes filed an amended petition for a La. C.C. art. 102 divorce and an answer to the reconventional demand. He asked to be named the domiciliary parent and sought child support from Ms. Barnes. In the alternative, Mr. Barnes sought sole custody of the children, use of the | ¿family home, and other incidental matters. He sought interim spousal support, claiming that he was free from fault.

On May 21, 2009, based upon the agreement of the parties, judgment on the rule was entered granting joint custody of the children, with Ms. Barnes designated as the domiciliary parent. Mr. Barnes was ordered to pay $1,275 per month in interim child support. The issues of interim spousal support and final child support were ordered to be reset by motion. Mr. and Ms. Barnes each hired new counsel.

On December 15, 2009, Ms. Barnes filed a rule to show cause why a divorce should not be granted, claiming that more than 365 days had passed since the filing of the original petition. Ms. Barnes also filed an affidavit of nonreconciliation. On the same date, Mr. Barnes filed a petition for a final divorce. On February 25, 2010, a judgment of divorce was entered in favor of Ms. Barnes.

On April 14, 2010, Mr. Barnes filed a petition for reduction of child support. His pleading noted that an interim judgment of child support was entered on May 21, 2009, ordering him to pay child support in the amount of $1,275 per month. He asserted that, since the rendition of that judgment, a substantial change in circumstances had occurred. He claimed that Ms. Barnes had been fired from her nursing job. He maintained that she was an RN with three degrees and was voluntarily unemployed. He sought to have his child support obligation reduced and requested production of her financial records.

|sOn August 19, 2010, the parties appeared before the trial court for a hearing on several issues including Mr. Barnes’ petition for reduction of child support. Concerning that issue, the following exchange took place:

[Mr. Barnes’ attorney]: ... I filed something calling it a motion to decrease and it really wasn’t a motion to decrease. I think we both agree that it’s really just a motion to set support. Is that correct?
[Ms. Barnes’ attorney]: That’s correct, Your Honor.
The Court: All right.
[Mr. Barnes’ attorney]: And the Court made me aware of that and so—
The Court: Right, so our — our issue, then, is the amount of child support?
[Mr. Barnes’ attorney]: Correct.
[Ms. Barnes’ attorney]: Yes, Your Hon- or.

Mr. Barnes’ attorney then called Ms. Barnes to the stand. Before beginning to question her, a further exchange took place:

[Mr. Barnes’ attorney]: ... Your honor are we going — was the other case in recess, is the way I understood it?
The Court: Well—
[Mr. Barnes’ attorney]: And do you have your notes from that day?
The Court: I’m going to suggest that we just — I don’t think we got that far into it. I was — when I recessed it I really just think we need to start from square one.
[Mr. Barnes’ attorney]: That’d be fine. The Court: Now having said that looking back through the record the original rule requesting child support was filed on behalf of Ms. Barnes. Now I know the pleading that has brought us here today is your petition to reduce the interim child — or reduce the child support but it’s actually — we’re |4going to say that we’re going on the — to set child support I think actually the burden is on the — Ms. Barnes.
[Mr. Barnes’ attorney]: That’d be fine, Your Honor. I’ll defer to [Ms. Barnes’ attorney].

The trial court inquired of Ms. Barnes’ attorney whether she understood that the issue before the court was the fixing of child support. The attorney responded that she understood and called her client, Ms. Barnes, to the stand. Ms. Barnes’ attorney asked her client only questions dealing with her quest to find employment. Ms. Barnes stated that she had applied for several jobs, but was only working part-time and was selling Mary Kay cosmetics. No evidence was offered as to what Ms. Barnes was earning or the amount of Mr. Barnes’ income. Mr. Barnes’ attorney did not question Ms. Barnes, and Ms. Barnes rested her case.

Mr. Barnes’ attorney moved for a directed verdict, claiming that Ms. Barnes did not offer any evidence whatever on the issue of entitlement to child support. The attorney noted that Ms. Barnes did not even establish that the couple had children.

Ms. Barnes’ attorney basically responded that she was trying to establish that her client was not voluntarily unemployed or underemployed. The court then stated:

Well, I think you — maybe you’re not understanding what [Mr. Barnes’ attorney] has moved for. When we started this hearing today, I think we were really here on your petition to set child support. So the burden is on you to present the case to ^establish what, if any, child support your client would be entitled to. And the objection raised by [Mr. Barnes’ attorney] is that you didn’t, I mean, you’ve rested your case and you have not presented any evidence about any income of your client, nor have you introduced any evidence about any income for the other party, Mr. Barnes. So the burden is on you to present the evidence and you failed to do that. So I don’t see how we can go forward because you haven’t produced any evidence. So I suppose this would be an action for involuntary ... dismissal at the conclusion of the plaintiffs case, or in this case the plaintiff in reconvention’s case. And I’m — I will grant that.

On September 20, 2010, the trial court signed and filed a judgment reflecting that the matter came up on the motion of Bobby Ray Barnes and that the court denied with prejudice the rule nisi for child support filed by Karen Barnes retroactive to October 15, 2008, pursuant to La. C.C.P. art. 1672(B). Ms. Barnes hired new counsel and appealed the trial court judgment.

INVOLUNTARY DISMISSAL

On appeal, Ms. Barnes argues that the trial court erred in dismissing the rule for child support as the parental obligation of support to minors may not be abandoned. Ms. Barnes argues that parents have a duty to support their children and the legal duty of support may not be permanently set aside by parents or court judgment. She contends that the trial court did not consider that the mother is the domiciliary parent and entitled to receive child support from the noncustodial parent. Ms. Barnes asserts that the court should have asked questions of the parties concerning their income. She maintains that the trial court should have continued the matter pending submission of income information in compliance with La. R.S. 9:315.2 and then should have calculated support pursuant to the statutory child support |f,guidelines. Ms. Barnes claims that the involuntary dismissal was contrary to the interest of justice and public policy and left the children without support.

Discussion

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children. La. C.C. art. 227. In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support. The court may award an interim allowance only when a demand for final support is pending. La. C.C. art. 141.

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 it has become unnecessary. La. C.C. art. 142. An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award. La. R.S. 9:311(A)(1). The party seeking a reduction of his child support obligation has the burden of proving that modification is warranted, i.e., that a change of circumstances sufficient to justify the decrease has occurred. Armstrong v. Rayford, 39,-653 (La.App.2d Cir.5/11/05), 902 So.2d 1214.

La. C.C.P. art. 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, 17without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Upon a motion for involuntary dismissal in a bench trial, the judge must evaluate all the evidence, without any special inferences in favor of the opponent of the motion, and grant the dismissal if the plaintiff has not established proof by a preponderance of the evidence. The appellate court will not reverse an involuntary dismissal under La. C.C.P. art. 1672(B) in the absence of manifest error. The trial court has great discretion in the granting of an involuntary dismissal. Smith v. Knight, 39,781 (La.App.2d Cir.6/29/05), 907 So.2d 831. See also Clifton v. Coleman, 32,612 (La.App.2d Cir.12/23/99), 748 So.2d 1263, writ denied, 2000-0201 (La.3/24/00), 758 So.2d 151; Chandler v. Chandler, 45,308 (La.App.2d Cir.5/19/10), 37 So.3d 569.

Upon the facts presented in this record, the trial court erred in granting a judgment of involuntary dismissal. The trial court mistakenly amended the issue before the court, contrary to the pleading which brought the matter into court for a hearing, and changed which party had the burden of proof. Public policy and the statutory scheme governing child support awards were circumvented in the judgment which dismissed the matter with prejudice, and allowed Mr. Barnes to leave court with no judicially determined child support obligation at all.

|sBoth parties, in their petitions for divorce, requested domiciliary custody and child support. Thereafter, the parties agreed that the mother would be given domiciliary custody and the father would pay $1,275 per month in interim child support. The divorce was granted approximately nine months later. The father later filed his petition for reduction of child support, complaining that the mother was voluntarily unemployed/underemployed. Attached to his petition was a signed order that a “rule nisi [is] herein directed unto the defendant in rule, Karen Barnes, ordering her to show cause, if she can, ... why there should not be judgment herein in favor of plaintiff in rule, Bobby Ray Barnes, and against defendant in rule, Karen Barnes, reducing Bobby Ray Barnes’ child support obligation in accordance with the Louisiana Child Support Guidelines.” Based upon the pleading filed by Mr. Barnes, the issue before the court was whether Ms. Barnes was voluntarily unemployed/underemployed. The burden would have been on Ms. Barnes to show that she was not voluntarily unemployed/underemployed. However, if Mr. Barnes had filed for final support in this proceeding, he would have had the burden of proof.

At the hearing, the trial court intervened and specified that the issue before the court was final child support, based upon a prior pleading filed on October 15, 2008, by Ms. Barnes in connection with her petition for a divorce. In so doing, the trial court changed the issue before the court, ignored the pleading that actually instituted the hearing, and switched the burden of proof from Mr. Barnes to Ms. Barnes. Ms. Barnes’ attorney had no notice prior to coming to court that the issue to be considered on the day |9of the hearing was final child support, rather than whether her client was voluntarily unemployed/underemployed.

After the intervention by the trial court specifying that the issue was final child support, Mr. Barnes’ attorney also thought that the issue of final child support was raised pursuant to the motion he had filed and believed that he had the burden of proof. We observe that his petition before the court in this instance did not address final support. A motion to set final child support could have been properly filed by Mr. Barnes under La. C.C. art. 105 which provides that, in a proceeding for divorce or thereafter, either spouse may request a determination of support of a minor child.

In addressing Mr. Barnes’ attorney, the trial court stated, “Now I know the pleading that has brought us here today is your petition to reduce the interim child — or reduce the child support but it’s actually— we’re going to say that we’re going on the — to set child support I think actually the burden is on the — Ms. Barnes.” The trial court made this statement in spite of its judgment of May 21, 2009, awarding Ms. Barnes interim child support and ordering that the issue of final child support be reset by motion. Ms. Barnes had neither filed a new claim for child support nor had she taken steps to reset the issue of final child support.

Even though Ms. Barnes’ attorney responded to the court that she understood that the issue before the court was the fixing of final child support, it became abundantly clear after Ms. Barnes’ testimony that the attorney did not understand that the issue was final child support rather than the voluntariness of Ms. Barnes’ unemployment/underemployment. This | ]nconfusion is understandable since Ms. Barnes did not instigate this proceeding, and she was in court pursuant to Mr. Barnes’ rule to show cause.

The trial court’s decision granting the involuntary dismissal with prejudice relieved Mr. Barnes of any judicially enforced child support obligation and prevented Ms. Barnes from asserting another claim for child support absent a showing of a change in circumstances. The trial court’s action violates public policy and the Louisiana statutory scheme concerning child support awards.

Parents have a duty to support their children. Children cannot live on light and air; they need and are entitled to not only love and affection, but also the financial support of their parents. Leger v. Leger, 2000-0505 (La.App. 1st Cir.5/11/01), 808 So.2d 632. The support obligation imposed on a parent is firmly entrenched in Louisiana law and is a matter of public policy. The obligation to nourish and rear one’s children has its source in a person’s status as father or mother. Each parent owes an obligation to support, maintain, and educate his or her children in proportion to his or her resources. Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346.

The amount of child support to be awarded is governed by La. R.S. 9:315 et seq. In no event shall the court set an award of child support less than one hundred dollars, except in cases involving shared or split custody as provided in La. R.S. 9:315.9 and 315.10, or when the obli-gor has a medically documented disability that limits his ability to meet the mandatory minimum. See La. R.S. 9:315.14.

^DISMISSAL WITH PREJUDICE

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action. La. C.C.P. art. 1673.

In this matter, by entering a judgment of involuntary dismissal with prejudice, the trial court allowed Mr. Barnes to walk away from these proceedings with no judicially established obligation to provide support for his children, a result clearly not in the best interest of the children. By granting the involuntary dismissal with prejudice, the trial court denied child support to the children of the marriage and prevented Ms. Barnes from filing to set child support in the future, barring a change in circumstances. Such a result is contrary to the statutory and judicial scheme of this state. The trial court abused its discretion in ordering the involuntary dismissal with prejudice and we reverse that decision.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment granting an involuntary dismissal with prejudice and remand for further proceedings. We reinstate the interim award of child support retroactively. Costs in this court are assessed to the plaintiff, Bobby Ray Barnes.

REVERSED; INTERIM CHILD SUPPORT REINSTATED RETROACTIVELY; REMANDED FOR FURTHER PROCEEDINGS.

      . As established later in the transcript, the correct motion was for an involuntary dismissal, which is appropriate in a bench trial, rather than a directed verdict, which is applicable in a jury trial. However, the error is one of form rather than substance, as the ultimate object of both motions is the same. See Tate v. Tate, 2009-2034 (La.App. 1st Cir.6/11/10), 42 So.3d 439.