author: PEATROSS, J.

text:
    AMERICAN CENTURY CASUALTY COMPANY, et al., Plaintiff-Appellee v. Charles F. SALE, Defendant-Appellant.
    No. 45,560-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      William D. Hall, P.L.C., for Appellant.
    Blanchard, Walker, O’Quin & Roberts, APLC by Paul M. Adkins, Scott R. Wolf, for Appellee.
    Before STEWART, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

[ Appellant, Dr. Charles F. Sale, sued appellees, American Century Casualty Company, Ashley Franklin and Michelle Barett (collectively referred to as “Appel-lees”), in a tort action for damages resulting from an automobile accident that occurred on August 9, 2008. Appellees filed a motion for summary judgment seeking a declaratory judgment that all of Dr. Sale’s personal injury claims against Appellees had been settled and compromised in full as a result of Dr. Sale’s act of negotiating and depositing a settlement check issued by ACCC in consideration of Dr. Sale’s medical bills and pain and suffering. The trial judge agreed with Appellees and granted summary judgment in their favor declaring as a matter of law that Dr. Sale had compromised and released all future personal injury claims against Appellees associated with the August 9, 2008 accident. Dr. Sale now appeals. For the reasons stated herein, we reverse the summary judgment in favor of Appellees and remand the matter for further proceedings.

FACTS

On August 9, 2008, an automobile accident occurred between Dr. Charles F. Sale and Michelle Barett, who was driving a vehicle owned by her mother, Ashley Franklin, and insured by ACCC. Shortly thereafter, ACCC was informed of the accident and ACCC representative Tammy Ducote contacted Dr. Sale to discuss settlement. Dr. Sale told Ms. Ducote that he had sustained $970 in medical bills to date and asked that ACCC pay for a Magnetic Resonance Imaging scan (“MRI”). Dr. Sale ultimately tasked for $1,500 plus payment of his medical bills to settle the matter. Ms. Ducote told Dr. Sale that ACCC would not pay for an MRI, but offered to settle the total claim for $1,820. Dr. Sale told Ms. Ducote to go ahead and send the check.

Ms. Ducote then mailed the following to Dr. Sale: (1) a letter describing the steps that Dr. Sale would be required to take to resolve the claim; (2) a settlement and release form; and (3) a settlement check in the amount of $1,820. The letter from ACCC to Dr. Sale stated in pertinent part:

Please find enclosed a copy of a release. To accept this offer please sign the release[.] Return the completed release in the enclosed envelope. Upon receipt of the properly executed release, the settlement check will be forwarded to you.

Athough the letter indicated that a settlement check would follow a “properly executed release,” ACCC mailed all three documents in the same envelope at the same time to Dr. Sale. The language on the front of the settlement check reads as follows: “CHARLES SALE, ONLY: IN F/F SETTLMT/RELEASE OF ACCC/ASHLEY FRANKLIN/MICHELLE BARRETT FROM ANY/ALL CLMS/LNS ON D/L 8/9/08, CLM L10995-9.”

On receiving the settlement check issued by ACCC, Dr. Sale opened the envelope, looked at the letter, release and check and then put all three documents back in the envelope. He then placed the envelope in a basket in his home designated for mail. Some time later, Dr. Sale’s wife removed the check from the envelope, stamped the back of the check “For Deposit Only” and deposited the check into Dr. Sale’s checking account. Dr. Sale did not [Ssign the settlement release form included with the letter and check issued by ACCC.

Then, on August 7, 2009, Dr. Sale filed a lawsuit against Appellees in Bossier Parish District Court. Appellees filed a Motion for Summary Judgment contending that Dr. Sale had previously compromised and released his claims against Appellees by signing the settlement check issued to him the previous year. Dr. Sale countered that his wife’s act of stamping the back of the check and depositing the same in his checking account, without his authorization, could not be considered a valid release of his personal injury claims against Appellees. As previously stated, the trial judge agreed with Appellees and granted summary judgment in their favor declaring as a matter of law that Dr. Sale had compromised and released all future personal injury claims against Appellees associated with the August 9, 2008 accident. This appeal ensued.

DISCUSSION

In Dr. Sale’s first and second assignment of errors, he argues that the trial court erred in granting summary judgment in favor of Appellees on the grounds that Dr. Sale had compromised his personal injury claims against them associated with the August 9, 2008 accident. Dr. Sale contends that Mrs. Sale’s act of stamping “For Deposit Only” on the back of the settlement check, filling out a deposit slip and depositing the check in the bank was not sufficient to release Dr. Sale’s personal injury claims against Appellees. Dr. Sale submits that, when the letter, check and release form from ACCC arrived at his home, he looked at the documents, put all three [ 4back into the envelope without signing the check or the release form and stated, “I’m not about to do this.” Dr. Sale states that he then put the envelope with the documents from ACCC back into a basket where he and his wife keep their mail and that he never saw the check again.

According to Dr. Sale, he only discovered that his wife had deposited the check some time later during a conversation with another couple. Dr. Sale points out that he never personally signed the check and did not authorize his wife to sign the check on his behalf. Dr. Sale further asserts that he never intended to settle or compromise his personal injury claims against Appellees and it was for that reason that he did not sign the settlement and release form that accompanied the check sent to him by ACCC. On these grounds, Dr. Sale avers that the trial court erred in granting summary judgment in favor of Appellees.

In response, Appellees argue that there is no genuine issue of material fact as to whether Dr. Sale signed the settlement agreement contained on the check thereby releasing his personal injury claims against them. Appellees point to the language on the front of the check indicating that it was in full and final settlement and release of all of Dr. Sale’s claims against Appellees for the accident occurring on August 9, 2008. They also contend that Dr. Sale’s wife has the authority to sign checks on his behalf and, when she informed him that she had deposited the check, Dr. Sale did not get upset with her or attempt to return the deposited funds to Appellees. Appellees assert that an enforceable settlement existed once the settlement check was presented to the bank for negotiation. Further, Appellees set forth the |Badditional argument that, in the event Dr. Sale did not authorize his wife to sign the check on his behalf, he tacitly ratified the settlement contract when Mrs. Sale informed him that she had executed and deposited the check and he did nothing in response. On these grounds, Appel-lees contend that a valid compromise exists between the parties in this case. We disagree.

On appeal, a trial court’s ruling on a motion for summary judgment is subject to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. La. C.C.P. art. 966(B) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(C)(2) sets forth the burden of proof applicable to a motion for summary judgment:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. A compromise shall be made in writing or recited in open court, in which case the | f,recitation shall be susceptible of being transcribed from the record of the proceedings. La. C.C. art. 3072. A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express. La. C.C. art. 3076.

This court has recognized that a check can serve as a compromise if it recites that it is in full payment for all claims and the draft is endorsed and negotiated. Merritt v. Safeway Ins. Co. of Louisiana, 36,771 (La.App.2d Cir.1/31/03), 836 So.2d 1256; Jerome v. Duggan, 609 So.2d 1119 (La.App. 2d Cir.1992). A compromise is only valid, however, if there is a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. Shell Oil Co. v. Jackson, 94-1267 (La.App. 1st Cir.5/5/95), 655 So.2d 482; Perault v. Time Ins. Co., 633 So.2d 263 (La.App. 1st Cir.1993), writs denied, 93-3133 (La.2/11/94), 634 So.2d 833 and 93-3156 (La.2/11/94), 634 So.2d 834.

In the case sub judice, a review of the entire record, including the settlement documents sent to Dr. Sale by ACCC, indicates that there was not a “meeting of the minds” between Dr. Sale and ACCC as to what they intended when the purported compromise was reached. At the time Dr. Sale discussed settlement with ACCC representative, Ms. Ducote, over the phone in mid-November 2008, he was clearly still in pain, wanted an MRI and was not prepared to settle the case for the amount of $1820. Furthermore, when the check arrived, it was Mrs. Sale who stamped and deposited the check; Dr. Sale did not sign, stamp or deposit the check and was unaware that Mrs. Sale had done so until some time later. When Dr. Sale finally 17discovered that his wife had stamped and deposited the check on his behalf, he did nothing to reverse the process because he was under the impression that his claims against Appellees would not be considered compromised unless he signed the settlement and release form which had been sent by ACCC with the letter and the check.

Additionally, it is apparent from the statements made by Dr. Sale during his deposition that he believed that his claims would not be settled or compromised until he signed the release form. Further, it appears that Dr. Sale confused the procedure of signing the check at issue with the procedure used for signing checks issued during property damage claims. The following discourse took place during Dr. Sale’s deposition:

Counsel for Appellees: Okay. I mean, are you aware of how settlement checks work, as far as you get a settlement check; the case is settled.
Dr. Sale: No. You have to sign a release. I’ve always been told you have to sign a release.
Counsel for Appellees: Okay.
Dr. Sale: And until that release is signed, that’s it. I mean, you know, like the collision check, you know, I could still go have the car checked and they said if there’s more damage to let them know and they’ll communicate about it and — send additional funds to fix the car.
Counsel for Appellees: Okay.
Dr. Sale: You know, that’s left open. They didn’t send a release on that. I don’t know why. I guess since it’s left open. I don’t know.
Counsel for Appellees: Okay.
Dr. Sale: And this had a release. I hadn’t signed it, so | sto me, I consider it the same as the car repair.

Further, the wording of the letter sent by ACCC to Dr. Sale indicated that Dr. Sale would be required to sign the release if he wanted to accept their offer to settle the claim for the amount on the enclosed check:

To accept this offer please sign the release[.] Return the completed release in the enclosed envelope. Upon receipt of the properly executed release, the settlement check will be forwarded to you.

Considering the multiple discrepancies found in the record regarding Dr. Sale’s and Appellees’ understanding of the agreement, we do not find that there was a meeting of the minds to fully compromise Dr. Sale’s personal injury claims against Appellees associated with the August 9, 2008 accident.

CONCLUSION

For the reasons stated above, we reverse the summary judgment in favor of Appellees, American Century Casualty Company, Ashley Franklin and Michelle Barett, and remand the matter for further proceedings. Costs of this appeal are assessed to Appellees.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . At the time this call took place, it was approximately mid-November 2008.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Sherman HODGE, Plaintiff-Appellee v. MANPOWER TEMPORARY SERVICES, Defendant-Appellant.
    No. 45,648-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      Kevin W. Hammond, for Defendant-Appellant.
    Fischer & Associates, by Donald E. Hathaway, Jr., for Plaintiff-Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

b The defendant, Manpower Temporary Services (Manpower), has appealed from a decision by a workers’ compensation judge (WCJ) finding that the plaintiff, Sherman Hodge, is entitled to past and future wage benefits and treatment by a pain management physician. For the following reasons, we affirm in part and reverse in part the judgment of the WCJ.

FACTS

Mr. Hodge is a 48-year-old manual laborer who obtained work through Manpower Temporary Services. In December 2007, he was assigned to work at a company that produced frames for Hummer vehicles. On May 30, 2008, Mr. Hodge was working on a frame when he fell, hit his hand on the frame, and broke the little finger on his right hand.

On the day of the accident, the plaintiff was treated at Willis-Knighton Work Care and was diagnosed with a slightly displaced fracture of the fifth metacarpal. He was referred to Dr. Karl Bilderback for follow-up care. Mr. Hodge saw Dr. Bilderback on June 2, 2008. His hand was placed in a plastic splint and he was prescribed pain medication. At his next appointment with Dr. Bilderback, the plaintiff reported a pain level of 10 out of 10. The doctor found this to be an exaggeration based upon his evaluation. An MRI of the hand was ordered.

On August 18, 2008, Dr. Bilderback saw Mr. Hodge and found normal range of motion with no ulnar pathology and no objective findings related to the plaintiffs continued complaints of pain. He was released to return to work without restriction. The doctor noted in his report that the plaintiff was very resistant to returning to work.

|2Mr. Hodge requested a second medical opinion. Manpower referred him to Dr. Michelle Ritter. She ordered a functional capacity exam (FCE) which revealed that the plaintiff had an 8 percent impairment of his little finger and a 1 percent impairment of his right hand. Mr. Hodge returned to Dr. Ritter with complaints of continued severe pain in the hand. She determined that she could not give the plaintiff pain medication for a seven-month-old injury and referred the plaintiff to Dr. Kathleen Majors for pain management.

Manpower refused to pay for the referral to Dr. Majors. An expedited hearing was held on May 18, 2009. The court approved a one-time visit with Dr. Majors. She diagnosed a possible complex regional pain syndrome Type I or reflex sympathetic dystrophy (RSD) to the right upper extremity. She suggested medication, physical and occupational therapy evaluations, and recommended a possible nerve block.

After receiving the results of the FCE, Manpower advised the plaintiff that he was to return to work at the Hummer frame plant. He reported for work one day and underwent orientation. He then refused to return to work. The plaintiff filed a disputed claim for compensation on October 31, 2008, and an amended claim on June 29, 2009.

On October 21, 2009, a hearing was held on the plaintiffs claims to continued indemnity and to medical treatment with Dr. Majors. Manpower personnel testified that they paid indemnity benefits to the plaintiff through October 8, 2008, but stopped the payments when the plaintiff was released |ato return to work. Manpower offered the plaintiff a job inspecting Hummer frames and later offered him a janitorial job.

On December 8, 2009, the WCJ issued a judgment with written reasons. The disputed issues were the plaintiffs entitlement to indemnity and medical benefits and whether the defendant should be cast with penalties and attorney fees. The WCJ found that the plaintiff was entitled to pain management treatment with Dr. Majors and that the denial of treatment was not arbitrary or capricious. The WCJ ordered that Mr. Hodge was entitled to past due wages in the amount of $12,833.15 and ongoing benefits of $233.33 per week. The WCJ also found that the denial of wage benefits was not arbitrary or capricious. The plaintiffs claim for penalties and attorney fees was denied.

Manpower appealed suspensively, arguing that the WCJ erred in awarding Mr. Hodge wage indemnity benefits and in ordering that he receive treatment with Dr. Majors.

INDEMNITY BENEFITS

According to Manpower, the WCJ did not specify the classification of the indemnity benefits awarded to Mr. Hodge, but speculates it must be temporary total disability benefits because he is not working. Manpower asserts that there is no reasonable basis for the award of the indemnity benefits. It claims that the award is not supported by any facts in the record. Manpower argues that Mr. Hodge was released to return to full duty on August 18, 2008, and that it paid him indemnity benefits through October 2008 while he was treated by Dr. Ritter. After he was released to return to |4work by Dr. Ritter, Manpower had a job available for him, but Mr. Hodge unilaterally determined that he was not able to continue working. Manpower claims that none of the medical experts who treated or examined Mr. Hodge have determined that he cannot return to work. According to Manpower, the record in this case does not reveal a reasonable basis for the award of past and ongoing indemnity benefits.

Legal Principles

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. The issue to be resolved by the appellate court is not whether the workers’ compensation judge was right or wrong, but whether the factual conclusion was reasonable. Accordingly, where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Pardee v. Forest Haven Nursing Home, 42,321 (La.App.2d Cir.6/20/07), 960 So.2d 1216.

A claimant is entitled to temporary total disability (TTD) benefits if he proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Gasway v. Cellxion, 44,638 (La.App.2d Cir.1/27/10), 31 So.3d 566; Pardee v. Forest Haven Nursing Home, supra. A claimant who can perform light duty work is not entitled to TTD benefits. Gasway v. Cellxion, supra.

|fiLa. R.S. 23:1221(l)(d) provides:

An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. A claimant may prove disability through medical and lay testimony. Gasway v. Cellxion, supra. The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Read v. Pel-State Oil Company, 44,218 (La.App.2d Cir.5/20/09), 13 So.3d 1191; Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037.

Discussion

When the plaintiff was originally injured, he was treated at Willis-Knighton Work Kare on May 30, 2008. Following x-rays, he was diagnosed with a slightly displaced fracture of the fifth metacarpal and was referred to Dr. Bilderback for follow-up care. The plaintiff was also given a release to return to work with the restrictions that the work be sedentary, that he lift no more than 10 pounds, and that he should not drive while at work.

The plaintiff was seen by Dr. Bilderback on June 2, 2008. He noted that the plaintiff had a closed fracture of the small right finger on the | r,metacarpal neck. The plaintiff was given a splint to wear and Lortab was prescribed for pain. The plaintiff was released to return to sedentary work with no use of the right hand.

The plaintiff returned to Dr. Bilderback on June 11, 2008, reporting that on a scale of one to 10, his pain was at level 10. Dr. Bilderback stated in his notes that this was an exaggeration based upon his evaluation. The plaintiff stated that the pain killer prescribed for him caused itching and requested a stronger medication. Dr. Bild-erback observed that the plaintiffs range of motion was good and that he was reporting a considerable increase in pain over what would be expected. The plaintiff was again released to return to sedentary work with no use of the right hand.

Dr. Bilderback next saw the plaintiff on June 25, 2008, approximately one month after the accident. The plaintiff reported pain at a level five on a scale of one to 10. The plaintiff was able to make a fist with his right hand. An MRI was ordered.

The plaintiff had an appointment with Dr. Bilderback on August 18, 2008, after the MRI. Dr. Bilderback observed that the plaintiffs break had healed and he had normal range of motion with no edema and no ulnar pathology. The plaintiff was given a full work release on that date. Dr. Bilderback noted in his records that the plaintiff was very resistant to returning to work.

The plaintiff wanted a second opinion and was referred to Dr. Ritter who saw him on October 14, 2008. The plaintiff reported wrist pain that had resolved. He did not have any numbness or tingling, just aches in his 17right hand. Dr. Ritter opined that the plaintiff had muscle trauma from the injury that could take six to 12 months to heal. She found that the plaintiff was at maximum medical improvement from the injury. She ordered an FCE. Until the receipt of the test results, Dr. Ritter released the plaintiff to light/medium duty with no lifting over 10 pounds with the right hand, and limited use of tools. The plaintiff was not to use a hammer, ax, or pick, but could use a screwdriver. He was instructed to wear padded gloves when performing tasks at work.

The two-day FCE was performed on November 3-4, 2008. The report by Steve Allison, a doctor of physical therapy, showed that the plaintiff could perform light/medium duty work with a maximum lifting of 30 pounds and frequent lifting and carrying of up to 20 pounds. The plaintiff was found to be at maximum rehabilitation potential for his injury and would not benefit from physical therapy.

An impairment evaluation was completed for the plaintiff on November 17, 2008. Dr. Clinton McAlister determined that the plaintiff had an 8 percent impairment to the little finger, a 1 percent impairment to the hand and upper extremity, and a 1 percent impairment to the body as a whole. The plaintiff still claimed to have pain at the seven or eight level and the pain was worse in cold weather. He also claimed that his hand swelled. No swelling was observed at the evaluation. There was also no evidence of complex regional pain syndrome and no atrophy.

A progress note by Dr. Ritter on December 28, 2009, showed that she referred the plaintiff to a pain management specialist, Dr. Majors. Dr. Ritter |Rwould not prescribe pain medication to the plaintiff for a seven-month-old injury. Dr. Ritter found that no further treatment was needed and that the plaintiff could return to work on December 29, 2009, with a permanent light/medium duty work restriction.

A rehabilitation conference was held and on June 3, 2009, Dr. Bilderback issued a report in which he expressed disagreement with the referral to a pain management physician. He stated that the plaintiff should not need narcotic pain medications.

On June 5, 2009, Dr. Majors saw the plaintiff for a one-time evaluation. The plaintiff reported pain at level 10 all the time. Dr. Majors found that the plaintiff had decreased range of motion in his right wrist. He could not grip tightly and had a tremor in his right hand. Dr. Majors opined that these symptoms indicated possible changes of complex regional pain syndrome Type I or RSD. She recommended medication, physical and occupational therapy evaluations, and a right stellate ganglion block.

Mr. Hodge testified that he continues to have swelling and shaking in his hand, that he is unable to use tools, and that it takes two days for him to mow his lawn due to pain and swelling. He stated that he thinks he has nerve damage in his hand. He said that if the pain would go away, he would be all right.

Sandra Stafford Tanner, an employee with Manpower who processes workers’ compensation claims, testified that benefits were paid to the plaintiff through October 8, 2008, when he was released to return to work. Manpower offered the plaintiff a job inspecting Hummers. Mr. Hodge came |nto work one day, viewed safety videos and then told Manpower that he could not return to work. At the time of trial, Manpower currently had a janitorial job available for the plaintiff, cleaning office buildings. The job included some light yard work, but Ms. Tanner said that Manpower would accommodate the plaintiffs work restrictions.

The WCJ did not specify the type of indemnity benefits awarded in this matter. However, from the benefits previously awarded and the amount awarded here, it appears that the WCJ intended to grant TTD benefits. The WCJ gave no reasons for its decision to award indemnity benefits to the plaintiff. The combined written reasons and judgment of the WCJ merely states, “Further claimant is entitled to past due wage benefits in the amount of $12,833.15 and ongoing benefits in the amount of $233.33 per week.” Based upon the record before us, we find that the WCJ was manifestly erroneous in finding that Mr. Hodge was entitled to TTD benefits.

The plaintiff failed to show by clear and convincing evidence that he is physically unable to perform any employment or self-employment, regardless of its nature, including employment while working in pain. The medical evidence in this matter shows that the plaintiff is able to return to light/medium duty work with restrictions upon the amount of weight he can lift. Dr. Bilderback released the plaintiff to return to full duty on August 18, 2008. Dr. Ritter, who saw the plaintiff on several occasions and had an FCE conducted on Mr. Hodge, concluded that the plaintiff could return to work on October 14, 2008, with a light/medium duty work restriction. Dr. Ritter again said that the plaintiff could return to work on December 29, | 102QQ9, with a permanent light/medium duty work restriction. Mr. Hodge testified that, although it caused him pain, he was able to mow his lawn. Dr. Majors, who thought that the plaintiff would benefit from pain management, did not say that Mr. Hodge is unable to perform any work at all. Therefore, we find that the WCJ erred in concluding that the evidence supported a finding that the plaintiff is entitled to TTD benefits. Accordingly, we reverse that portion of the judgment awarding past and future TTD benefits to the plaintiff.

MEDICAL BENEFITS

Manpower contends that the plaintiff did not establish his need for treatment by the pain management physician. It notes that Dr. Bilderback, the plaintiffs treating physician, specifically recommended against pain management. Manpower asserts that as the treating physician, Dr. Bilderbaek’s opinion should be afforded great weight.

Mr. Hodge argues that he proved his entitlement to an award of medical treatment. He claims that Dr. Bilderback, the nurse case manager, and the adjuster all ignored his complaints of continued pain. However, Dr. Majors thought that Mr. Hodge might be experiencing complex regional pain syndrome Type I or RSD. Mr. Hodge points out that Manpower did not present the testimony of a second pain management specialist to rebut Dr. Majors’ opinion. He urges this court not to disturb the award made by the WCJ.

[1TLegal Principles

Under La. R.S. 28:1203, medical payments are separate and distinct from compensation indemnity benefits. An employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal. La. R.S. 23:1203(A). A workers’ compensation claimant must prove that the medical expenses are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Pardee v. Forest Haven Nursing Home, supra. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Read v. Pel-State Oil Company, supra; Whatley v. Nabors Drilling, USA, LP, 44,720 (La.App.2d Cir.11/12/09), 26 So.3d 253.

A WCJ’s determination with regard to medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Whatley v. Nabors Drilling, USA, LP, supra; Koenig v. Christus Schumpert Health System, supra.

The general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Kendrick v. Solo Cup, 44,303 (La.App.2d Cir.6/3/09), 15 So.3d 295.

| ^Discussion

In this matter, the plaintiff continued to complain of pain in his hand. Dr. Ritter, who saw him on several occasions, thought that he might benefit from treatment by a pain management physician. The WCJ ordered Manpower to pay for a visit to Dr. Majors. After examining the plaintiff, Dr. Majors thought the plaintiff might have complex regional pain syndrome Type I or RSD. She thought he could possibly benefit from medication and a right stellate ganglion block. She also suggested physical and occupational therapy evaluations. Although Dr. Bilderback and Dr. Ritter found no reason for the plaintiff’s continued complaints of pain, the WCJ did not err in ordering Manpower for pay for continued treatment by Dr. Majors. That portion of the judgment by the WCJ is affirmed.

CONCLUSION

For the reasons stated above, we reverse that portion of the WCJ’s ruling ordering the payment of indemnity benefits to the plaintiff, Sherman Hodge. We affirm that portion of the WCJ’s ruling ordering Manpower to pay medical expenses for continued treatment of Mr. Hodge by Dr. Majors. Costs in this court are assessed one-half to the plaintiff and one-half to the defendant.

REVERSED IN PART; AFFIRMED IN PART.


author: CARAWAY, J.

text:
    Judith Woods FRYE, Plaintiff-Appellant v. Olan MILLS, Defendant-Appellee.
    Nos. 45,557-WCA, 45,558-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.
    Rehearing Denied Oct. 28, 2010.

      Judith Woods Frye, In Proper Person.
    Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley by Denis P. Juge, Keith E. Pittman, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

1, Claimant in this workers’ compensation suit appeals the decision of the workers’ compensation judge (WCJ) sustaining the defendant’s exception of res judicata, finding that all issues raised in the current claim had been previously adjudicated. For the following reasons, we affirm.

Facts

The work-related accidents and injuries now asserted are the same as addressed by this Court’s prior decision in Frye v. Olan Mills, 44,192 (La.App.2d Cir.4/8/09), 7 So.3d 201 (hereinafter “Frye J”). Despite the fact that claimant, Judith Frye (“Frye”), suffered work-related injuries to her foot in 2001 and her hand in 2004, the court in Frye I found that both of these injures were appropriately treated and thereafter completely resolved. Accordingly, the court held that Frye was not entitled to any further indemnity or medical benefits as a result of the two work-related accidents. After the decision of this court became final, Frye attempted to file two additional disputed claims for compensation with the Office of Workers’ Compensation (OWC) regarding the same accidents and injuries litigated in Frye I.

In response to these filings, Olan Mills answered and motioned the court to dismiss further claims on the basis of res judicata, contending Frye had already received judgment denying her claims. By judgment dated September 14, 2009, the WCJ sustained defendant’s first filed exception of 12res judicata and dismissed the disputed claims with prejudice. Frye did not appeal this judgment. Instead, she continued to file numerous, additional disputed claims for compensation with the OWC. Frye also filed a motion to recuse the presiding WCJ. This motion was denied on December 3, 2009 by a judgment which assessed Frye with $250 in attorney’s fees for the filing of a frivolous pleading. In response to additionally filed disputed claims by Frye, Olan Mills filed a second exception of res judicata, which was sustained by the WCJ on February 11, 2010. Sanctions were once again assessed against Frye in the amount of $1,500 for the filing of a frivolous pleading. It is from this judgment that Frye now appeals. In her pro se brief, Frye argues that she continues to suffer from debilitating conditions arising from the two accidents occurring in 2001 and 2004 and that further compensation is needed for her medical expenses.

Discussion

Frye contends the WCJ erred in sustaining the defendant’s exception of res judicata. The law of res judicata in Louisiana is set forth in La. R.S. 13:4231, which provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
|s(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Under the law of workers’ compensation, “[a] judgment denying benefits is res judi-cata after the claimant has exhausted his rights of appeal.” La. R.S. 28:1310.8(E). Under La. R.S. 23:1310.8(B), a claimant cannot seek modification of an adverse judgment denying benefits because the statutory language requires a prior award of compensation. Matthews v. Farley Industries, 95-1387 (La.2/28/96), 668 So.2d 1144; Johnson v. Fresenius Medical Care, 43, 952 (La.App.2d Cir.2/4/09), 4 So.3d 187.

In Johnson v. Fresnius Medical Care, supra, the claimant, who was originally denied reinstatement of benefits for a work-related injury, filed a subsequent disputed claim seeking workers’ compensation benefits for the recurrence of her previous work injury. This court stated:

In that prior proceeding, the issue of whether the claimant was entitled to further compensation benefits as a result of the June 2003 work injury was litigated between the parties. Thus, the prior judgment denying workers’ compensation benefits is conclusive and bars the claimant’s present claim alleging a recurrence of the same non-compensable injury. Consequently, we cannot say the WCJ erred in sustaining the exception of res judicata and dismissing the claims of the claimant.

In the present case, the WCJ denied claimant any further compensation benefits for the 2001 and the 2004 work injuries by judgment dated December 3, 2007. That decision was later affirmed by this court in Frye I. The claimant did not further appeal that judgment, which became final. Pursuant to La. R.S. 23:1310.8(E), once the claimant’s rights of appeal were exhausted the judgment denying compensation benefits was res | judicata and barred another claim for the same accident. Thus, the defendant’s exception of res judicata dismissing all claims with prejudice was properly granted.

In its appeal, defendant requests that Frye be assessed with sanctions for the filing of a frivolous appeal under La. C.C.P. art. 2164. However, a proper method for requesting damages for frivolous appeal is through an answer to the appeal. Official Revision Comment (a) to La. C.C.P. art. 2133; State in Interest of Muse v. Ross, 26,554 (La.App.2d Cir.3/1/95), 651 So.2d 364. Defendant filed no answer and thus may not seek damages or attorney’s fees for frivolous appeal.

Conclusion

For the foregoing reasons, the judgment appealed is affirmed. Costs of this appeal are assessed to the plaintiff, Judith Frye.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS and MOORE, JJ.

Rehearing denied.

      . Apparently Frye received medical and indemnity benefits immediately after each of the two work-related accidents before filing individual disputed work claims with the Office of Workers' Compensation.

      . Defendant additionally requests that Frye be held in direct contempt of court for the use of insulting and discourteous language in her brief. Ms. Frye is a pro se litigant and unrepresented by counsel. Although certain statements are discourteous, we choose to caution her against any further use of such comments in filings before this court.


author: RANDOLPH, Justice, GRAVES, Presiding Justice,

text:
    CITY OF JACKSON, Mississippi and Jackson Water Partnership v. UNITED WATER SERVICES, INC. and United Water Services of Mississippi, LLC.
    No. 2009-SA-01105-SCT.
    Supreme Court of Mississippi.
    Nov. 18, 2010.
    Pieter John Teeuwissen, James A. Pe-den, Jr., Lara E. Gill, Ridgeland, Dale Danks, Jr., Jackson, attorneys for appellants.
    Robert L. Gibbs, Katie Lofton Wallace, Jackson, attorneys for appellees.
   RANDOLPH, Justice,

for the Court:

¶ 1. Aggrieved by the Jackson City Council’s decision to award a contract to Jackson Water Partnership (“JWP”), United Water Services and its affiliate, United Water Services of Mississippi, LLC (collectively “UWS”), appealed the City Council’s decision, pursuant to Mississippi Code Section 11-51-75 (Rev.2002), in the Circuit Court of the First Judicial District of Hinds County, Mississippi. JWP filed a motion to intervene, which the circuit court denied. JWP and the City of Jackson (“City”) timely perfected this appeal of the order denying JWP’s motion to intervene. We affirm.

FACTS

¶ 2. In March 2008, the City issued a Request for Proposals (“RFP”) for the Operation, Maintenance and Management of the Wastewater Facilities. Various vendors, including UWS and JWP, submitted proposals on or about May 20, 2008. An “Evaluation of Proposals for the Operation, Maintenance and Management of Wastewater Facilities” prepared by the City’s Department of Public Works revealed a “pricing comparison” of the three submitted bids, as follows: Southwest Water Company — $8,019,170.31; UWS— $2,615,996.05; JWP — $4,689,018.13. Following multiple special meetings reflected in the bill of exceptions, the Jackson City Council, by a four-to-one vote, awarded the contract to JWP on November 10, 2008.

¶ 3. Aggrieved by this decision, UWS filed a notice of appeal with the circuit court pursuant to Section 11-51-75. UWS claimed that the City, in awarding the wastewater contract, had engaged in an unlawfully executed RFP process. JWP moved to intervene in the action, to which the City filed a joinder. Thereafter, the circuit court denied JWP’s motion to intervene. JWP and the City now appeal.

ISSUE

¶ 4. This Court will consider:

Whether the circuit court erred in denying JWP’s motion to intervene in the underlying appellate proceedings between UWS and the City.

ANALYSIS

¶ 5. The right to appeal the City’s action was created by the Legislature. UWS filed the appeal pursuant to Section 11-51-75, which provides that “[a]ny person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal....” Miss.Code Ann. § 11-51-75 (Rev.2002) (emphasis added). JWP clearly was not “aggrieved,” because it was awarded a contract paying it $2 million more than what UWS had bid to perform the same services. The rationale behind permitting only the “aggrieved” to appeal is logical. It is not the act or conduct of a prevailing bidder which is subject to examination at the appellate level. Rather, the circuit court sitting as an appellate court was charged with determining whether the “decision of the board of supervisors, or municipal authorities” was arbitrary, capricious, or contrary to applicable law. See Falco Lime, Inc. v. Mayor & Aldermen of the City of Vicksburg, 836 So.2d 711, 721 (Miss.2002); Cooper v. City of Picayune, 511 So.2d 922, 923 (Miss.1987); Miss.Code Ann. § 11-51-75 (Rev.2002). Although the prevailing bidder may be interested, it is not a necessary or indispensable party, nor a proper party under the statute granting the right of appeal solely to the “aggrieved.” Miss.Code Ann. § 11-51-75 (Rev.2002). UWS, an “aggrieved” party, sought appellate relief. JWP moved to intervene in the appeal, despite the absence of a right to appeal or intervene under Section 11-51-75.

¶ 6. JWP claims its right to intervene arises from Mississippi Rule of Civil Procedure 24. But this Court in Cooper clearly pointed out that “the Mississippi Rules of Civil Procedure ... apply to trial proceedings only, except where therein expressly provided to the contrary.” Cooper, 511 So.2d at 923. Moreover, post-Cooper, the Mississippi Rules of Appellate Procedure were adopted and now control appeals. See “Order Adopting the Mississippi Rules of Appellate Procedure” (“the Mississippi Rules of Appellate Procedure will promote the prompt, fair, and efficient administration of justice on appeal .... [T]he [Rules] ... are[ ] adopted as rules governing all proceedings in the Mississippi Supreme Court and the Court of Appeals of the State of Mississippi, and the trial courts of this State to the extent provided ....”) (emphasis added). The Mississippi Rules of Appellate Procedure clearly and unequivocally do not provide for intervention at the appellate level.

¶ 7. Mississippi Rule of Appellate Procedure 1 provides that:

[t]hese rules govern procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the State of Mississippi, and proceedings on petitions for writs or other relief which the Supreme Court or the Court of Appeals or a justice of the Supreme Court or judge of the Court of Appeals is empowered to grant. When these rules provide for the making of a motion in the trial court, the procedure for making such motion shall be in accordance with the practice of the trial court.

M.R.A.P. 1. The Comment to Rule 1 adds that the enumerated:

[r]ules which provide for the making of a motion in the trial court include Rules 4(g), extension of time to appeal; 6, determination of in forma pauperis status; 8(b), stay on appeal to be first sought in trial court; and 10(e)[,] correction of record on appeal. Trial court practice is governed by the Mississippi Rules of Civil Procedure, Mississippi Rules of Evidence, applicable uniform rules, and local rules where adopted pursuant to M.R.C.P. 83. The term “trial court” in these rules includes a circuit or chancery court sitting as an appellate court.

M.R.A.P. 1 cmt. Based upon this Comment, the dissent maintains that “the Rules of Appellate Procedure ... require the application of the Mississippi Rules of Civil Procedure to a circuit court sitting as an appellate court.” (Diss. Op. at ¶ 31). This Court agrees that the Rules as enumerated in the Comment can be applicable in an appealed case. But common sense dictates that the applicability of certain Mississippi Rules of Civil Procedure, Mississippi Rules of Evidence, uniform rules, and local rules adopted pursuant to Mississippi Rule of Civil Procedure 83, will depend upon the nature of the appeal. In a trial de novo (for example, a direct appeal from justice court or municipal court), the Mississippi Rules of Civil Procedure (including Rule 24 on intervention) and the Mississippi Rules of Evidence would apply. See URCCC 5.01, 5.07 (“[a]ll proceedings on an appeal de novo will be governed by the Mississippi Rules of Civil Procedure, where applicable, the Mississippi Rules of Evidence, and these Rules”). But the dissent’s reliance on language from Cooper contained in Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996), does not support intervention on appeal in the present case. (Diss. Op. at ¶ 19). Cummings involved a primary election contest, which also is a trial de novo. See Miss.Code Ann. § 23-15-931 (Rev.2007) (“[t]he special tribunal ... shall fully hear the contest or complaint de novo....”).

¶ 8. Likewise, the dissent’s proposition that “[t]his Court repeatedly has allowed a circuit court to proceed de novo in an action appealed under Section 11-51-75 where a board failed to conduct a hearing on the matter in issue [,]” is not only delusive, but also altogether inapplicable in the present case. (Diss. Op. at ¶ 21) (emphasis added). It is delusive because “where no hearing is held, the action does not really proceed under Section 11-51-75 at all[,]” and because the proposition from Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990), cited by the dissent, was later questioned in Falco Lime insofar as Cook failed to provide citation to similar cases, “[n]or does our research readily yield a list of them.” Falco Lime, 836 So.2d at 717-18 n. 4.

¶ 9. A de novo appeal under Section 11-51-75 is inapplicable here because sufficient “hearing” proceedings were held. The dissent’s argument to the contrary is a red herring, distracting focus from the only issue presented on appeal, i.e., intervention. The appellate briefs filed herein in no way assert a lack of “hearing” or claim that the trial court erred in failing to conduct a de novo trial. JWP’s brief proclaims this certainty, unequivocally stating that following the submission of competing proposals:

there ensued lengthy and complex administrative proceedings, in which the City negotiated with both [JWP] and [UWS]. The matter was considered by the Jackson City Council on several different occasions. At different times during the course of the proceedings, the Director of Public Works, acting for the Mayor, made different recommendations as to which of the competing entities ... should be awarded the contract. The details of these involved proceedings are beyond the scope of the present appeal, which involves the limited issue of intervention. Suffice it to say that at a special meeting held on November 10, 2008, the Jackson City Council, by a vote of 4-1, accepted the final recommendation of the Public Works Director and of the Mayor to award the contract to [JWP].

(Emphasis added.) UWS argues that its circuit court appeal “alleges ... that the City acted arbitrarily, capriciously, and contrary to law throughout the procurement process and in its ultimate decision to deny the award of contract to [UWS].”

¶ 10. Moreover, this Court has stated that the hearing requirement is “not necessarily one according to the form of a trial in a court of law.” Cook, 571 So.2d at 934. This Court has declined:

to limit the application of Section 11-51-75 to those instances where city or county governing boards call in witnesses or interested parties pro and con and listen to them express their opinions before reaching a decision. Such a limitation would drastically limit the application of Section 11-51-75 and would also be inconsistent with our already-cited holding that the statute applies to “any act” that aggrieves a party. City and county government does not require a straw vote of interested parties whenever an action is proposed, however pragmatically desirable such participation may be in some cases. Numerous statutes mandate a formal hearing by board or council, but Falco has adduced none of these as controlling the present case. On the contrary, we have stated that a county board need not “recite all the evidence that appeared before them, or ... set out in full, in them order, all the eviden-tiary matters pertinent to the controversy” in order for its órder to be valid. Hall v. Franklin County, 184 Miss. 77, 86, 185 So. 591, 594 (1939) (holding that absence of such evidence in board’s order did not justify circuit court in going beyond bill of exceptions).

Falco Lime, 836 So.2d at 718-19. See also Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144-15 (Miss.2003) (sufficient evidence of “hearing” through Board minutes discussing subject contract, hearing regarding qualifications of bidders, motion to award contract, and unanimous vote). The voluminous bill of exceptions presented in this case includes, inter alia, the RFP issued by the City, the “Evaluation of Proposals” prepared by the City’s Department of Public Works, multiple sets of minutes from special meetings of the City Council, an excerpt from the September 18, 2008, special meeting, and the November 11, 2008, “Order Authorizing May- or to Execute Contract with [JWP] for the Management of [the City’s] Wastewater Treatment Facilities.” Accordingly, unlike Cook, this is not an exceptional case bereft of hearing, “where a party with standing challenges board action on grounds it is ultra vires and where that party is entitled to proceed de novo.” Cook, 571 So.2d at 934.

¶ 11. Regarding appeals under Section 11-51-75:

the circuit court sits only as an appellate court, and may consider no evidence presented outside the bill of exceptions .... This has been in place for over 150 years: “An appeal by bill of exceptions would necessarily confine the revising Court to the matters of law arising upon the exceptions.” Yalabusha Coun ty v. Carbry, 11 Miss. 529, 548 (1844), overruled on other grounds by Dismukes v. Stokes, 41 Miss. 430, 435 (1867)....

Falco Lime, 836 So.2d at 716. The circuit court sitting as an appellate court applies the same standard of review “to the Board’s legislativefact” as to the “review of administrative agency decisions.” Id. at 721. That is, the Board’s action will be reversed only “if it is arbitrary and capricious, or is not supported by substantial evidence.” Malone, 841 So.2d at 143. In this context, little beyond Uniform Circuit and County Court Rules 5.02 through 5.10 applies. See URCCC 5.02 to 5.10. As the present case involves this type of appeal, intervention was not an option available to JWP under the Rules.

¶ 12. But this is not to say that the participation of additional parties should be barred. As Cooper aptly recognized, “[a]ny court of this state sitting as an appellate court has the inherent authority to allow additional parties to participate in the appeal upon timely application or upon the court’s invitation.” Cooper, 511 So.2d at 923. Mississippi Rule of Appellate Procedure 29 provides an avenue for persons other than the parties to participate in the appellate process via the filing of an amicus curiae brief. See M.R.A.P. 29; Cooper, 511 So.2d at 924 (endorsing participation in the appellate process through filing an amicus curiae brief).

¶ 13. JWP certainly had the right to seek participation at the appellate level by seeking leave to file an amicus curiae brief, however, intervention was not an available option. As no constitutional provision, statute, or court rule permits intervention, the adoption of the Mississippi Rules of Appellate Procedure effectively supplanted that portion of Cooper’s holding which provides, without citation, that “the [c]ircuit [c]ourt, when sitting as a court of appeals, has the authority to allow third parties to intervene in the appeal.” Cooper, 511 So.2d at 923. If the year was 1910, rather than 2010, this Court might agree with the dissent that Gates controls. Likewise, if it was 1987, this Court might agree with former Justice Robertson that Cooper was controlled by Gates. See id. But, at present, the Mississippi Rules of Appellate Procedure control exclusively.

¶ 14. The circuit court properly denied JWP’s Motion to Intervene, but that denial should have been premised upon the absence of any authority for a circuit court sitting as an appellate court to grant JWP’s Motion to Intervene. “It is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal.” Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 572 (Miss.2009) (citations omitted).

CONCLUSION

¶ 15. As no authority existed for JWP to intervene, the circuit court’s denial of JWP’s motion to intervene was proper, albeit for the wrong reason. The order of the Circuit Court of the First Judicial District of Hinds County is affirmed.

¶ 16. AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, CHANDLER AND PIERCE, JJ., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

GRAVES, Presiding Justice,

Dissenting:

¶ 17. Jackson Water Partnership (JWP) had a right to intervene in the circuit court action contesting the award of a contract to it by the City of Jackson. Because I would find that the circuit court erred in denying JWP’s motion to intervene, I respectfully dissent.

¶ 18. The majority’s statement that “the adoption of the Mississippi Rules of Appellate Procedure effectively supplanted” the applicable portion of Cooper v. City of Picayune, 511 So.2d 922, 923 (Miss.1987), is erroneous. (Maj. Op. at ¶ 13). Specifically, the majority states:

JWP certainly had the right to seek participation at the appellate level by seeking leave to file an amicus curiae brief, however, intervention was not an available option. As no constitutional provision, statute, or court rule permits intervention, the adoption of the Mississippi Rules of Appellate Procedure effectively supplanted that portion of Cooper’s holding which provides, without citation, that “the [cjircuit [cjourt, when sitting as a court of appeals, has the authority to allow third parties to intervene in the appeal.” Cooper, 511 So.2d at 923. If the year was 1910, rather than 2010, this Court might agree with the dissent that Gates controls. Likewise if it was 1987, this Court might agree with former Justice Robertson that Cooper was controlled by Gates. See id. But, at present, the Mississippi Rules of Appellate Procedure control exclusively.

(Maj. Op. at ¶ 13).

¶ 19. The Mississippi Rules of Appellate Procedure were adopted effective January 1, 1995. On September 12, 1996, this Court decided Cummings v. Benderman, 681 So.2d 97 (Miss.1996), and said:

Any court of this State sitting as an appellate court has the inherent authority to allow additional parties to participate in the appeal upon timely application or upon the court’s invitation. Cooper v. City of Picayune, 511 So.2d 922, 923 (Miss.1987). Indeed, there may be occasions when the court should decline to act until all necessary parties have been joined. See Gates v. Union Naval Stores Co., 92 Miss. 227, 229, 45 So. 979 (1908).

Cummings, 681 So.2d at 100. This Court further said that the “Circuit Court, when sitting as a court of appeals, has the authority to allow third parties to intervene in the appeal.” Id. at 101. Applying Rule 24 of the Mississippi Rules of Civil Procedure, this Court found that:

It is the opinion of this Court that the State Committee’s interests were not adequately represented by Cummings in the election contest, and consequently the State Committee should have been allowed to intervene permissively, if not by right.

Id. at 102.

¶ 20. This Court has clearly applied the Mississippi Rules of Civil Procedure to appellate intervention actions since the effective date of the Mississippi Rules of Appellate Procedure. As a result, the Mississippi Rules of Appellate Procedure do not “exclusively control,” as the majority states. (Maj. Op. at ¶ 13).

¶ 21. The majority attempts to distinguish Cummings on the basis that it involved a trial de novo and by asserting that the matter before this Court does not. However, the majority’s attempted distinction is erroneous. This Court repeatedly has allowed a circuit court to proceed de novo in an action appealed under Section 11-51-75 where a board failed to conduct a hearing on the matter in issue. See Cook v. Bd. of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990) (“This becomes one of those cases where a party with standing challenges board action on grounds it is ultra vires and where that party is entitled to proceed de novo.”). See also Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144 (Miss.2003) (“It is true that where a county fails to hold any kind of hearing, a party with standing is entitled to de novo review.”); Falco Lime, Inc. v. Mayor & Aldermen of City of Vicksburg, 836 So.2d 711, 717-18 (Miss.2002) (“[E]rgo, where no hearing has been held, the circuit court does not sit in its appellate capacity, and that court may thus proceed de novo with respect to the evidence it may consider.”); and Newell v. Jones County, 731 So.2d 580, 582 (Miss.1999).

¶ 22. The majority refers to the citation of this authority as “delusive” and states that it is “inapplicable in the present case.” (Maj. Op. at ¶ 8). However, the majority’s attempted perversion of this authority is erroneous and does not overcome the majority’s inability to cite to any portion of the record in the instant case to establish that a hearing was held. Further, the majority’s reasoning is contradictory. First, the majority states that the proposition established by this authority is “delusive because ‘where no hearing is held, the action does not really proceed under Section 11-51-75 at all [,]’ and because the proposition from Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990), cited by the dissent [footnote omitted] was later questioned in Fal-co Lime insofar as Cook failed to provide citation to similar cases, ‘[n]or does our research readily yield a list of them.’ ” (Maj. Op. at ¶ 8) (citing Falco, 836 So.2d at 717-18 n. 4). The majority is acknowledging that an action does not really proceed under Section 11-51-75 when no hearing is held, thus proceeding de novo. But then the majority appears to be claiming that there is no authority for proceeding de novo because Cook cited no cases for such a proposition. Yet, Falco, on which the majority relies, cites Cook extensively. Falco, 836 So.2d at 717-19. Further, this Court did not question Cook in Falco, but merely said:

The Court labeled the action in Cook “one of those cases where a party with standing challenges board action on grounds it is ultra vires and where that party is entitled to proceed de novo,” though unfortunately it did not provide citations to “those cases.” Id. [n. 4].
[n. 4]. Nor does our research readily yield a list of them. To the extent that the facts surrounding an action are not in dispute, the claim that it was ultra vires is reviewed de novo as a matter of law, but that is not the same as dispensing with the bill of exceptions.

Id. at 717-18 n. 4. Then the majority states that “[a] de novo appeal under Section 11-51-75 is inapplicable here because sufficient ‘hearing’ proceedings were held.” (Maj. Op. at ¶ 9). However, again, the majority is unable to cite any portion of the record in this matter to establish that a hearing including JWP and UWS was held, because there was no hearing. The majority’s finding that “sufficient ‘hearing’ proceedings were held” based on the “voluminous bill of exceptions,” documents prepared by the City, or meetings of the City Council is wholly unsupported by the facts. (Maj. Op. at ¶¶ 9,10).

¶ 23. The majority’s contention that the position that no hearing was held is a “red herring, distracting focus from the only issue presented on appeal, i.e., intervention” is absurd. (Maj. Op. at ¶ 9). The majority is correct that the appellate briefs do not assert a “lack of ‘hearing’ or claim that the trial court erred in failing to conduct a de novo trial.” (Maj. Op. at ¶ 9). JWP would first have to be allowed to intervene before the assertion of any claim regarding a lack of a hearing on the merits. Further, the issue regarding a de novo standard was raised solely by the majority in its attempted distinction of Cummings. (Maj. Op. at ¶ 7). This dissenting opinion is being written because I would find that the circuit court erred in denying JWP’s motion to intervene. (Diss. Op. at ¶¶ 17, 41).

¶ 24. The majority is correct that this Court appears to have found that a proper hearing had been held in Falco. Falco, 836 So.2d at 718-19. However, the majority fails to acknowledge the context of the decision or the facts of that case. Falco was a consolidated appeal of two cases. Id. at 713. Specifically, this Court said:

In the first case, Mayor Robert M. Walker, and aldermen Samuel D. Ha-beeb and Gertrude A. Young of the City of Vicksburg (hereinafter “the Board”) appeal the July 7, 1999, judgment of the Warren County Circuit Court, which permanently enjoined the Board from closing the Vicksburg Municipal Airport (hereinafter “VKS”).... The Board also appeals the circuit court’s entry of partial summary judgment against it on December 14, 1998, in which the court found that the Board was required to create a “separate corporate authority” ... before it could “act under the Airport Authorities Law” to jointly operate the Vicksburg Tallulah Regional Airport (“VTR”) with Warren County and a Louisiana city and parish.
A host of Vicksburg businesses, as shown in the style of this case, and for convenience and clarity referred to as “Fiasco” after Falco Lime, Inc., the party first named therein, filed a cross-appeal. ...
The second case consolidated in this appeal is Falco’s own appeal from another judgment of the Warren County Circuit Court, dated June 30, 1999, which dismissed Falco’s appeal of the Board’s decision to create a municipal authority and to appoint two commissioners to that authority

Falco, 836 So.2d at 713-14. This Court further noted that:

The “Falco” parties, all of whom used VKS or otherwise benefitted from it, filed a flurry of actions in chancery, circuit and county courts on March 6, 1998, seeking to keep VKS open and to recover from the Board in their individual capacities all the tax money that the Board had expended on VTR, as well as Falco’s reasonable attorney fees and expenses. The circuit court considered these claims under Falco’s bill of exceptions (seeking to permanently enjoin the closure) as well as under its amended complaint (seeking to enjoin the closure and to impose personal liability). The circuit court granted a temporary restraining order on March 23, which was converted to a preliminary injunction on April 20. In December 1998, it granted partial summary judgment against the Board....

Id. at 714.

¶ 25. All of the parties on appeal in Falco participated in the action in the trial court. There was no issue of a party not being permitted to intervene. Further, the issue raised on appeal by the Board and from which the majority here quotes was actually: “Whether Falco’s exclusive remedy was by notice of appeal and bill of exceptions as per § 11-51-75, not by a suit for a temporary restraining order and preliminary injunction.” Falco, 836 So.2d at 715 (emphasis added). Only the portion quoted by the majority in paragraph 10 actually comes from the trial de novo discussion in Falco. Further, that portion quoted by the majority in paragraph 10 is actually preceded by a detailed discussion of the Board’s actions in Falco, to which this Court then said: “Does this amount to a “hearing” for the purpose of determining whether Cook applies? To rule otherwise would be to limit the application of § 11-51-75.... ” Falco, 836 So.2d at 718 (emphasis added). Clearly this Court’s consideration was limited to the applicable facts of Falco, i.e., the actions of the Board, which then raised the very issue being considered on appeal.

¶ 26. The majority then cites Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144 (Miss.2003) for the proposition that “sufficient evidence of ‘hearing’ through Board minutes discussing subject contract, hearing regarding qualifications of bidders, motion to award contract, and unanimous vote.” (Maj. Op. ¶ 10). In Malone, this Court explicitly found that the “Board held a hearing on October 16, 2000, regarding the qualifications of Malone and Carthage Ambulance Service.” See Malone, 841 So.2d at 144 (emphasis added). There also was no intervention issue in Malone.

¶ 27. In the instant case, the City merely issued a Request for Proposals, which were evaluated by the City of Jackson Department of Public Works. There was no hearing. Therefore, a de novo review is proper. See Cook v. Bd. of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990); Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144 (Miss.2003); Falco Lime, Inc. v. Mayor & Aldermen of City of Vicksburg, 836 So.2d 711, 717-18 (Miss.2002); and Newell v. Jones County, 731 So.2d 580, 582 (Miss.1999).

¶ 28. Notwithstanding the applicability of a de novo standard, this Court’s decision in Cummings is consistent with the Mississippi Rules of Appellate Procedure.

¶ 29. The “Order Adopting the Mississippi Rules of Appellate Procedure” does state:

(1) that the Mississippi Rules of Appellate Procedure in the form attached hereto be, and hereby are, adopted as rules governing all proceedings in the Mississippi Supreme Court and the Court of Appeals of the State of Mississippi, and the trial courts of this State to the extent provided in the Rules.

Miss. R.App. P. Order (emphasis added).

¶ 30. However, Rule 1 specifically states:

These rules govern procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the State of Mississippi, and proceedings on petitions for writs or other relief which the Supreme Court or the Court of Appeals or a justice of the Supreme Court or judge of the Court of Appeals is empowered to grant. When these rules provide for the making of a motion in the trial court, the procedure for making such motion shall be in accordance with the practice of the trial court.

Miss. RApp. P. 1 (emphasis added). The comment to Rule 1 further clarifies:

Rules which provide for the making of a motion in the trial court include Rules k(g), extension of time to appeal; 6, determination of in forma pauperis status; 8(b), stay on appeal to be first sought in trial court; and 10(e) correction of record on appeal. Trial court practice is governed by the Mississip pi Rules of Civil Procedure, Mississippi Rules of Evidence, applicable uniform rules, and local rules where adopted pursuant to M.R.C.P. 83. The term “trial court” in these rules includes a circuit or chancery court sitting as an appellate court.

Miss. R.App. P. 1 cmt. (emphasis added).

¶ 31. The term “trial court” as used in the Rules of Appellate Procedure includes a circuit court sitting as an appellate court. Clearly, the Rules of Appellate Procedure also require the application of the Mississippi Rules of Civil Procedure to a circuit court sitting as an appellate court. Therefore, the majority’s attempt to exclude the application of the Mississippi Rules of Civil Procedure is erroneous.

¶ 32. Moreover, even if the Mississippi Rules of Civil Procedure did not apply and only the Rules of Appellate Procedure were controlling, the majority’s finding still would be erroneous. Rule 29 addresses only leave to file an amicus brief and in no way limits relief sought from an appellate court through a motion to intervene filed pursuant to Mississippi Rule of Appellate Procedure 27. See Miss. R.App. P. 27. Further, this Court has the authority to “suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion” pursuant to Rule 2. See Miss. R.App. P. 2(c).

¶ 38. The holdings in Cummings, Cooper, and Gates v. Union Naval Stores Co., 92 Miss. 227, 229, 45 So. 979 (1908), also are supported by other authority, which the majority attempts to distinguish by virtue of an intervention provision in the Federal Rules of Appellate Procedure. (Maj. Op. at n. 2). However, the majority’s attempted distinction fails because, as set out previously herein, this Court has found that the intervention provision of the Mississippi Rules of Civil Procedure is clearly applicable in post-Mississippi Rules of Appellate Procedure matters.

¶ 34. The United States Court of Appeals for the Fifth Circuit has said that either intervention or amicus curiae status is an available option. In Bush v. Viterna, 740 F.2d 350, 359 (5th Cir.1984), the Fifth Circuit Court found intervention by right was not appropriate because the interve-nor’s interests were adequately represented by an existing party. However, with regard to permissive intervention, the court said, in relevant part:

In acting on a request for permissive intervention, it is proper for the court to consider the fact that the Association has been granted amicus curiae status in this case. [Citation omitted]. Indeed, this seems to be the very type of case envisioned by Judge Wyzanski in Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F.Supp. 972, 973 (D.Mass.1943), when he stated:
It is easy enough to see what are the arguments against intervention where, as here, the intervenor merely underlines issues of law already raised by the primary parties. Additional parties always take additional time. Even if they have no witnesses of their own, they are the source of additional questions, briefs, arguments, motions and the like which tend to make the proceeding a Donnybrook Fair. Where he presents no new questions, a third party can contribute usually most effectively and always most expeditiously by a brief amicus curiae and not by intervention.
We believe that, in a case such as this, the position of amicus, which the Association already possesses, is more appropriate than an intervention with full-party status.
In sum, as to permissive intervention, we do not find any extraordinary cir-eumstances in this case as would justify our determining that the district court clearly abused its discretion. We accordingly dismiss this portion of the appeal.

Id. at 359.

¶ 35. In State of Texas v. U.S. Dep’t of Energy, 754 F.2d 550 (5th Cir.1985), the Fifth Circuit found that appellate intervention was not appropriate “because the utilities have no claim or defense involving common questions of law or fact with those in the ongoing proceeding as required by the rule.” Id. at 553. However, the court further found as follows:

The utilities may seek to present their views as amicus curiae, and leave to do so is here granted. As this court noted in Bush v. Viterna, 740 F.2d 350, 359 (5th Cir.1984), “when he presents no new questions, a third party can contribute usually most effectively and always most expeditiously by a brief amicus curiae and not by intervention.”

State of Texas v. U.S. Dep’t of Energy, 754 F.2d at 553. See also Ingebretsen v. Jackson Public Sch. Dist., 864 F.Supp. 1473, 1484-85 (S.D.Miss.1994).

¶ 36. Therefore, it is appropriate to consider whether JWP should be allowed to intervene by right or by permission.

¶ 37. JWP’s application was timely. JWP was awarded the contract at issue and clearly has “an interest relating to the property or transaction which is the subject of the appeal.” Cooper, 511 So.2d at 923. JWP is further “so situated that disposition of the appeal may as a practical matter impair or impede his ability to protect his interest.” Id. The sole issue to be resolved is whether “the party’s interest is adequately represented by the existing party.” Id.

¶ 38. JWP has an interest that is not adequately protected by the City. While the City of Jackson and JWP may have overlapping interests, they also clearly have separate interests. Common sense dictates that the City merely has an interest in awarding the contract to the lowest and best bidder and ensuring the fulfillment of the contract by whoever that bidder may be. JWP has proprietary and financial interests in being awarded the contract. Further, the majority fails to explain the appropriate course of action JWP would need to take if United Water Services should prevail in its underlying action. Presumably JWP would then need to file a separate lawsuit challenging the award of the contract to United Water Services. In any event, JWP would be placed at a substantial disadvantage in protecting its legitimate interests if not allowed to participate in these proceedings regarding its contract.

¶ 39. This Court in Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So.3d 1209, 1215 (Miss.2010), clarified that a trial court has little, if any, discretion in such an action, and then reversed a chancellor’s denial of a motion to intervene by a second prospective buyer in an action by a first prospective buyer to enforce a purchase agreement. Madison HMA, 35 So.3d at 1214. Yet here, the majority finds that an actual party to a contract should not be allowed to intervene. Those results are inconsistent. If the putative intervenor in Madison HMA was allowed to intervene in a case where it had no contract and no award of a bid, then surely the putative intervenor in this case should be allowed to intervene as a matter of right. Unlike the putative intervenor in Madison HMA, JWP has a demonstrable and genuine “interest related to the property or transaction.” Based on the record in this matter, I would find that the requirements necessary to establish intervention of right have been met and that the circuit court decision to deny the motion to intervene must be reversed.

¶ 40. However, even if JWP did not meet the requirements for intervention by right, it should not be excluded from the action involving a contract which it was awarded. Under the authority cited herein, it should be allowed permissive intervention or, at the very least, be granted amicus curiae status.

¶ 41. Because I would find that the requirements necessary to establish intervention of right have been met, I would reverse the judgment of the circuit court. Therefore, I respectfully dissent.

KITCHENS, J., JOINS THIS OPINION.

      . These figures were a "5 year Fixed Fee Total (assume 3% per Year).” Contrary to the dissent’s assertion that, "[cjommon sense dictates that the City merely has an interest in awarding the contract to the lowest and best bidder[,]” the City Council actually awarded the contract to the highest bidder, a bid more than $2 million greater than that of UWS. (Diss. Op. at ¶ 38).

      . This is in contrast to the Federal Rules of Appellate Procedure. See F.R.A.P. 15(d) (intervention permitted under Title IV — "Review or Enforcement of an Order of an Administrative Agency, Board, Commissioner, or Officer”). This important distinction between the Federal Rules of Appellate Procedure and the Mississippi Rules of Appellate Procedure renders State of Texas v. U.S. Department of Energy, 754 F.2d 550 (5th Cir.1985), cited by the dissent, distinguishable. See id. at 551 ("Rule 15(d) of the Federal Rules of Appellate Procedure governs interventions in administrative appeals such as this one.”). Again, the Mississippi Rules of Appellate Procedure do not provide for intervention at the appellate level. The remaining federal cases cited by the dissent are plainly distinguishable as they each address a federal district court sitting as a trial court, not an appellate court. See Ingebretsen v. Jackon Pub. Sch. Dist., 864 F.Supp. 1473 (S.D.Miss.1994); Bush v. Viterna, 740 F.2d 350 (5th Cir.1984). While each case provides an excellent discussion of intervention under Federal Rule of Civil Procedure 24, ultimately denying intervention in both cases, that is not the scenario before this Court. See Ingebretsen, 864 F.Supp. at 1485; Bush, 740 F.2d at 358-59.

      . For instance, Mississippi Rule of Appellate Procedure 31(c) requires the filing of "[a]n original and three (3) copies of all briefs....” M.R.A.P. 31(c). But in the context of a circuit court sitting as an appellate court, Uniform Circuit and County Court Rule 5.06 logically requires "only an original and one copy of each brief.” URCCC 5.06.

      . Uniform Circuit and County Court Rule 5.01 states, "[ejxcept for cases appealed directly from justice court or municipal court, all cases appealed to circuit court shall be on the record and not a trial de novo.” URCCC 5.01.

        .See Cook, 836 So.2d at 717-18 (stating that it is “one of those cases where a party with standing challenges board action on grounds it is ultra vires and where that party is entitled to proceed de novo ....”) (emphasis added).

      . Extending the dissent's argument on the comprehensive application of the Mississippi Rules of Civil Procedure to circuit courts sitting as appellate courts, could either party here invoke Rule 38 of the Mississippi Rules of Civil Procedure by demanding that a jury consider its appeal, or Rules 26-37 seeking depositions and discovery on appeal? See M.R.C.P. 26 to 38. See also Falco Lime, 836 So.2d at 717 ("[b]ecause Falco was required to proceed under Section 11-51-75, the circuit court was required to function in its appellate role and no discovery or testimony outside the bill of exceptions should have been allowed on the Board’s decision to close VKS.”)