author: EDWIN A. LOMBARD, Judge.

text:
    METAIRIE III v. POCHE’ CONSTRUCTION, INC. and Markel Insurance Company.
    No. 2010-CA-0353.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      W. Evan Plauche’ Justin E. Alsterberg Hailey McNamara Hall Larmann & Pa-pale, L.L.P., Metairie, LA, for Labiche Plumbing, Inc.
    George E. Escher, Law Offices of Sheryl Story, Metairie, LA, for Poche Construction Company.
    Larry G. Canada, Jeffrey P. Green, Galloway Johnson Tompkins Burr & Smith APLC, New Orleans, LA, for Perrin & Carter, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, and Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

11Poche Construction, Inc., original defendant and third party plaintiff in the present matter, appeals a judgment of the trial court granting an exception of per-emption filed by Labiche Plumbing, Inc., third party defendant, dismissing all third party demand claims raised against them by Poche. Poche. Construction also appeals the granting of an exception of per-emption filed by third party defendant Perrin & Carter, Inc., dismissing all third party demand claims against them raised by Labiche Plumbing. For the reasons provided below, the decisions of the trial court are affirmed.

Factual and Procedural History

Metairie III is the owner and operator of Metairie Manor, an assisted living center for the aged. On September 22, 1999, Metairie III entered into a general construction contract with Poche Construction, Inc. (“Poche”), appellant, to complete an additional housing complex on the Mé-tame Manor campus. Poche Construction entered into a subcontract with Labiche Plumbing shortly thereafter, to install the building’s plumbing system and under-slab plumbing. Labiche Plumbing then entered into a subcontract with Perrin & Carter, an'architectural and design firm, to provide the design specifications for the plumbing system. The | ^addition was completed with Metairie III taking acceptance on March 28, 2001, and the Owner’s Acceptance of Work was filed in court on April 2, 2001.

On July 24, 2002, a resident in Unit E107 complained of grease build-up and sewerage backup problems in the toilet line in her apartment. A technician from Earl’s Plumbing Service ran a camera line into the sewer lines and noted a “small sag and grease build up,” but that the line “appeared good” after service. On February 4, 2003, a separate unit resident complained that her shower stall was clogged. The following month, unit E107 allegedly experienced more sewerage back-up problems.

In May 2003, Christopher Homes, Inc., notified the Archdiocese of New Orleans, the owner of Metairie Manor, outlining in a letter numerous attempts to resolve the plumbing and sewerage back-up problems. By June 2003, it had become necessary for the Archdiocese to obtain a quote from a different plumbing service to examine and excavate drain services and check drainage connections to city sewerage drains. By August 13, 2003, a quote from Gootee Services on the proposed drainage work had been provided.

On March 21, 2006, Metairie III filed suit against Poche Construction, Inc., alleging that as the general contractor, Poche failed to properly construct a housing complex. Specifically, Metairie III alleged that the under-slab sewer system of the housing complex was not constructed properly nor in accordance with their construction contract. Metairie III seeks damages under the contract and damages for corrective and remedial work done. On September 28, 2007, Poche filed a third party demand petition against Labiche Plumbing, Inc. On March 12, 2008, La-biche filed a third party demand claim against Perrin & Carter for their alleged role in the specifications and design of the plumbing system. Poche Construction | Shas only filed a third party demand against Labiche, and has not filed any claims against defendant Perrin & Carter in this matter.

On May 23, 2008, Perrin & Carter filed an exception of peremption to dismiss the claims of Labiche Plumbing against it. On August 1, 2008, the district court granted Perrin & Carter’s exception of peremption. Labiche Plumbing appealed the decision, and .this Court reversed on the grounds that neither party had properly and officially introduced any evidence at the hearing on the exception of peremption. Metairie III v. Poche Construction, Inc., et al., 2009-0015 (La.App. 4 Cir. 7/1/09), 11 So.3d 1248.

On August 25, 2009, Perrin & Carter again filed an exception of peremption in the district court, alleging the applicability of a five-year peremptive period pertaining to suits against engineers and architects under La.Rev.Stat. § 9:5607. Labiche Plumbing did not oppose, and on September 18, 2009, Labiche Plumbing filed its own exception of peremption, on the grounds that Poche Construction’s claims should be dismissed under the five-year peremptive period provided for in La.Rev. Stat. § 9:2772. At the November 13, 2009 hearing on the exceptions of peremption, the district court granted both exceptions. A written judgment granting Perrin & Carter’s exception of peremption and dismissing all. claims against it was signed on November 24, 2009. A written judgment granting Labiche Plumbing’s exception of peremption was signed on December 9, 2009. Poche Construction, Inc. now timely appeals these two judgments to this Court. Standard of Review

A judgment granting a peremptory exception is reviewed de novo, because the exception raises a legal question, and an appellate court is to determine, whether in the light most favorable to the plaintiff, and with every doubt resolved |4in the plaintiffs behalf, the petition states any valid cause of action for relief. In re Tutorship of Washington, 2004-0465, p. 4 (La.App. 4 Cir. 7/20/05), 913 So.2d 165, 168.

When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription or per-emption. However, when prescription or peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not been perempt-ed. Rando v. Anco Insulations, Inc., 2008-1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082.

Appellate courts review peremptory exceptions by reviewing the entire record to “determine whether the trial court was manifestly erroneous with its factual conclusions.” Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 2006-0601, p. 3 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, 251, citing Roadhouse Bar-B-Que, Inc. v. Certain Underwriters at Lloyds, 2004-1697, p. 5 (La.App. 3 Cir. 5/4/05), 909 So.2d 619, 623.

Peremption

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period. La. Civ.Code art. 3458. The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action. La.Code Civ. Proc. art. 923. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. An exception of peremption is rightfully included in the nonexclusive list of peremptory exceptions provided in La.Code Civ. Proc. art. 927. Wong v. Hoffman, 2005-1483, p. 8 (La.App. 4 Cir. 11/7/07), 973 So.2d 4, 15-16; Rando, supra, p. 20, 16 So.3d at 1082. A ^peremptory exception may be raised at any stage of the proceeding in the trial court prior to the submission of the case for a decision. La. Code Civ. Proc. art. 928(B).

La. Civ.Code art. 3500 provides that “[a]n action against a contractor or an architect on account of defects of construetion, renovation, or repair of buildings and other works is subject to a liberative prescription of ten years.” Although this prescriptive period may be suspended or interrupted, La.Rev.Stat. § 9:2772 serves to terminate the existence of a right to sue contractors within the allotted time provided in the statute. La.Rev.Stat. § 9:5607 serves to terminate the existence of a right to sue architects and engineers for the defective design of an immovable.

Assignments of Error

Poche Construction, Inc., in its position as third party plaintiff, first argues that a cause of action for its third party claim against Labiche Plumbing arose before the five-year peremptive periods provided for in § 9:2772 and § 9:5607 went into effect. Therefore, Poche argues that the peremp-tive period is seven years, and that its third party demand against Labiche Plumbing was filed within this time period. Appellant also argues that the peremptive period for claims against architects and engineers under La.Rev.Stat. § 9:5607 is not applicable to dismiss Labiche Plumbing’s claims against Perrin & Carter. Poche also argues that the subsequent legislation reducing the peremptive period of § 9:2772 to five years is not retroactive in this matter.

Law and Analysis

Both the prior and current version of La.Rev.Stat. § 9:2772 call for the per-emptive period for actions involving deficiencies for construction of immovables to begin on “the date of registry in the mortgage office of acceptance |6of work by owner.” The current version of § 9:2772, amended by Act 919 of 2003 and effective August 15, 2003, provides as follows:

§ 2772. Peremptive period for actions involving deficiencies in surveying, design, supervision, or construction of im-movables or improvements thereon
A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9):
(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner, (b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner ...
... B. (1) The causes which are per-empted within the time described above include any action: ...
... (b) For damage to property, movable or immovable, arising out of any such deficiency ...
... (3) This peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods 17established by law for such actions. E. The peremptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
H. (1) The peremptive period provided by this Section shall not apply to an action to recover on a contract or to recover damages against any person enumerated in Subsection A of this Section, whose fraud has caused the breach of contract or damages sued upon. The provisions of this Subsection shall be retroactive.

(emphasis added).

Poche Construction argues that because the Owner’s Acceptance of Work was filed on April 2, 2001, the peremptive period begins on this date, and that the seven-year peremptive period in effect at that time should be applied. At the time the Owner’s Acceptance of Work was filed, Act 1024 of 1999 was the version of § 9:2772 in effect, and its provisions were nearly identical to the current version provided above, with the large difference that it provided for a seven-year peremptive period.

Labiche Plumbing, however, first argues that Poche Construction’s right to sue has not yet vested, and argues alternatively, if a cause of action vested, it did not vest until after August 15, 2003, when the current five-year peremptive period under § 9:2772 came into effect. Perrin & Carter argues that Poche Construction and Labiche Plumbing’s rights of indemnity did not vest until the main demand |8was filed, and that La.Rev.Stat. § 9:5607 was already in effect and applicable to the per-emption of Labiche Plumbing’s claims against them. § 9:5607, created by Act 854 of 2003, provides as follows:

§ 5607. Actions against a professional engineer, surveyor, professional interior designer, architect, real estate developer; peremptive periods
A. No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architect intern, or agent as defined in R.S. 37:111, or professional interior designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five gears from:
(1) The date of registrg in the mortgage office of acceptance of the work bg owner; or
(2) The date the owner has occupied or taken possession of the improvement, in whole or in part, if no such acceptance is recorded; or
(3) The date the person furnishing such services has completed the services with regard to actions against that person, if the person performing or furnishing the services, as described herein, does not render the services preparatory to construction, or if the person furnishes such services preparatory to construction but the person furnishing such services does not perform any inspection of the work.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The five-year period of limitation provided for in Subsection |nA of this Section is a peremptive period within the meaning of Civil Code Article 3458 and in accordance with Civil Code Article 34-61, may not be renounced, interrupted, or suspended.
D. The provisions of this Section shall take precedence over and supersede the provisions of R.S. 9:2772 and Civil Code Articles 2762 and 3545.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
F.The peremptive periods provided in Subsections A and B of this Section shall not apply to any proceedings initiated by the Louisiana Professional Engineering and Land Surveying Board or the State Board of Architectural Examiners,

(emphasis added). Perrin & Carter further argues that because Poche Construction has never filed a third party claim-against it, Poche cannot appeal the granting of their exception of peremption, dismissing Labiche Plumbing’s claim against them.

Right to Appeal Judgment dismissing claims against Perrin & Carter

La.Code Civ. Proc. art. 2086 provides that “[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” A party appealing under art. 2086 must have an interest in the outcome of the litigation which would be effected by the Judgment. A party who has no interest in changing the judgment of the lower court cannot exercise the right of appeal. Conrad v. Swiss Chalet Picnic Grounds Catering Service, 96-606, p. 5 (La.App. 5 Cir. 12/30/96), 686 So.2d 1055, 1058.

Appellant Poche Construction argues that it has the right to appeal the granting of Perrin & Carter’s exception of peremption. However, we find appellant’s argument to be without merit. We agree with Perrin & Carter that Poche Construction has no right or interest in appealing the granting of their exception of peremption. Poche Construction has had ample time and opportunity [into file a direct third party petition against Perrin & Carter, and it has not chosen to do so. Me-tairie III, the original plaintiff, has also not chosen to pursue any claims or action against Perrin & Carter at any point in this litigation. Labiche Plumbing has also opted to not appeal the trial court’s decision dismissing their claims against Perrin & Carter. Therefore, we find that Poche Construction has no interest or right in appealing the trial court’s judgment granting Perrin & Carter’s exception of peremption, and is not an aggrieved party to this judgment. Appellant cannot benefit by any change in the judgment dismissing Perrin & Carter. Hoyle v. Schiro, 172 So.2d 759, 760 (La.App. 4 Cir.1965). See also Bankston v. B & H Air Tools, Inc., 486 So.2d 199 (La.App. 1 Cir.1986). The trial court’s judgment granting Perrin & Carter’s exception of peremption remains undisturbed.

Peremptive Period for Poche Construction’s Third Party Claim

Next, this Court must determine the applicable peremptive period for Poche Construction’s third party claims against Labiche Plumbing. It has been established that, under the previous and current versions of La.Rev.Stat. § 9:2772, the per-emptive period in this matter began on April 2, 2001, when the certificate of substantial completion on the Metairie Manor project had been filed. The next step is to determine when a cause of action accrued in this matter.

This Court has held that “[u]n-der Louisiana law, a cause of action accrues when a party has the right to sue.” Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 2006-0601, p. 5 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, 252. Fault, causation, and damages are required for a cause of action to accrue. Owens v. Martin, 449 So.2d 448, 451 (La.1984). “Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). “Damage is | n sustained for the purposes of prescription when it has manifested itself with sufficient certainty to support the accrual of a cause of action.” Bell v. Glaser, 2008-0279, p. 5 (La.App. 4 Cir. 7/1/09), 16 So.3d 514, 517. “Where a claimant has suffered some but not all damages, prescription runs from the day on which he suffered actual and appreciable damages even though he may thereafter realize more precise damages.” Id. .

In contending Labiche Plumbing’s exception of peremption, appellant introduced evidence allegedly establishing that the completed Metairie Manor complex began experiencing shower and sewerage back-up problems as early as July 2002 and through at least June 2003. While this may establish a cause of action for Metairie III, as the owner of the building, it does not establish a cause of action for Poche Construction’s third party claim against Labiche Plumbing.

In Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., supra, the appellant purchased a hotel building in 1997 that ultimately showed to have numerous construction defects. The appellant sued numerous parties, including the engineering firm handling the building’s renovation. The appellant argued that a cause of action arose in 1997, the time of purchase, and that the then ten-year peremptive period of La.Rev.Stat. § 9:2772 should apply to their claim. This Court disagreed, finding under the facts of the case that no cause of action had arisen by 2003, when the five-year peremptive period for actions against engineers provided by La. Rev.Stat. § 9:5607 went into effect. Therefore, this Court retroactively applied the peremptive period of § 9:5607 to dismiss the appellant’s claims against the engineering firm.

Similarly, in this matter, it is clear that appellant Poche Construction has not established a cause of action against La-biche Plumbing prior to the enactment of |12the current five-year peremptive periods of § 9:2772. Prior to the enactment of these statutes, Poche Construction had not yet been sued by Metairie III; therefore, no indemnification rights for Poche Construction’s claims had yet existed. See Ebinger v. Venus Construction Corp., 2008-379, pp. 2-3 (La.App. 3 Cir. 10/1/08), 995 So.2d 1224, 1225-6. Poche Construction’s third party claim, as it exists, is merely an “unvested inchoate right to indemnification prior to being cast in judgment.” Id., at p. 2, 995 So.2d at 1225; see also Orleans Parish School Board v. Pittman Construction, Inc., 384 So.2d 573 (La.App. 4 Cir.1980). Because it cannot be said that Poche Construction had established a cause of action for third party indemnification against Labiche Plumbing prior to the August 15, 2003 enactment of the current § 9:2772, the seven-year per-emptive period under the previous version of § 9:2772 cannot apply. As to Poche Construction’s third party claims against Labiche Plumbing, the five-year peremp-tive period under the current version of § 9:2772 applies.

Under La.Code Civ. Proc. art. 1067, “[a]n incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand or in the case of a third party defendant ninety days from service of the third party demand.” Metairie Ill’s main demand was filed on March 21, 2006, and the peremptive period in this matter for all claims related to the construction project were perempted under the five-year periods on April 2, 2006. Poche Construction was served with Me-tairie Ill’s main demand on April 11, 2006. Under La.Code Civ. Proc. art. 1067, Poche Construction had ninety days from April 11, 2006 to file their claim against Labiche Plumbing, but failed to do so within this time period. Poche Construction’s third party demand, filed on September 28, 2007, is therefore 11sclearly perempted on its face, and appellant has not met its burden of showing that their action has not been perempted.

Conclusion

Because Poche Construction did not have a third party indemnification cause of action prior to the 2003 amendment to La.Rev.Stat. § 9:2772 amending the per-emptive period for actions on construction defects to five years, and because it did not timely file its third party claim against Labiche Plumbing within the time frame of La.Code Civ. Proc. 1067, the trial court committed no legal error in granting La-biche Plumbing’s exception of peremption. And because Poche Construction has no right or interest in appealing the exception of peremption dismissing Labiche’s claims against Perrin & Carter, we find no error in the granting of Perrin & Carter’s exception of peremption as well.

Decree

The decisions of the district court in granting the exceptions of peremption dismissing all claims against Labiche Plumbing and Perrin & Carter are affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    WHITNEY NATIONAL BANK v. Autry McFARLAND Wife of/and Joe Richard Aidoo, Latisha V. Williams and Julia McFarland, Trustees for the A.L.A.A. Trust, a Louisiana Trust.
    No. 2010-CA-0417.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      William D. Aaron, Jr., DeWayne L. Williams, Rose Hager, Goins Aaron, P.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    Autry McFarland Aidoo, Joe Aidoo, New Orleans, LA, in proper persons.
    Edward B. Mendy, Mendy & Beekman, PLLC, Philadelphia, PA, for Joe Aidoo, Autry McFarland Aidoo and A.L.A.A. Trust, A Louisiana Trust.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

liThe appellants, Autry McFarland and Joe Richard Aidoo appeal a judgment rendered by the district court on June 15, 2009, granting the Exception of Prescription filed by Whitney National Bank. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

On August 13, 1998, Mr. Aidoo executed a promissory note to Whitney National Bank. On December 6, 1999, Whitney National Bank filed suit on the promissory note in the Civil District Court, Parish of Orleans. After Mr. Aidoo answered the suit through his attorney of record, Whitney filed a motion for summary judgment. After being served with notice of the hearing on the motion, counsel for Mr. Aidoo faxed correspondence to counsel for Whitney National Bank stating that Mr. Aidoo was willing to sign a consent judgment and that he (counsel for Mr. Aidoo) would not be appearing in court because his “client has no defenses.” Counsel for Whitney National Bank appeared at the hearing on May 26, 2000, to argue the unopposed motion. Finding the law and evidence in favor of Whitney National Bank, the district court granted summary judgment in favor of 12the bank and signed a judgment dated May 26, 2000. No appeal was taken from this judgment.

In January 2001, Whitney National Bank filed a rule against Mrs. Aidoo seeking authority to seize community property in order to satisfy the debt. The appellants were served with the rule and a hearing took place on October 25, 2002, wherein the district court granted the requested relief. After the appeal delays had run, Whitney National Bank filed a request for writ of fieri facias on February 6, 2003, and on March 10, 2003, the sheriff was instructed to seize and sell certain immovable property owned by the appellants.

Meanwhile, in March 2002, Whitney National Bank filed a Petition for Simulation, alleging that the appellants’ transfer of community property to the A.L.A.A. Trust was a simulation. In March 2005, the appellants filed a Reconventional Demand asserting that the original judgment obtained by Whitney National Bank was “false and improper” and seeking damages for the fraudulent conduct of both WTiitney National Bank and its counsel. As defendants-in-reconvention, Wdiitney National Bank and its counsel filed exceptions of no cause of action and res judicata and/or a motion for summary judgment. On June 2007, however, the district court denied the exceptions/motion, noting that the pro se appellants appeared to be alleging a claim for malicious prosecution and in their Reconventional Demand sought to annul the Judgment obtained in the suit on the promissory note. Subsequently, in response to the district court’s determination that the appellants were essentially seeking a nullity action under La.Code Civ. Proc. art. 2001, et seq., counsel for Whitney National Bank, as defendants-in-reconvention, filed a motion for partial summary judgment on March 17, 2009, asserting that the judgment was valid and enforceable, there were no material facts |ain dispute regarding the actions of counsel on behalf of WRitney National Bank, and, thus, there was no evidence to show that counsel committed fraud or ill practices under La.Code Civ. Proc. art. 2003. In the alternative, counsel pointed out that even assuming an action for nullity could be asserted, the claim had long since prescribed.

Several days later, on March 20, 2009, counsel filed as a separate pleading on behalf of Whitney National Bank as defendant-in-reconvention which included the Exception of Prescription underlying the instant appeal, arguing that the appellants claim in nullity prescribed well before the filing of their Reconventional Demand. At a hearing on May 1, 2009, the district court heard both the motion for partial summary judgment filed on behalf of counsel for WTiitney National Bank and the Exception of Prescription filed on behalf of WTiitney National Bank. On May 18, 2009, the district court rendered judgment granting the motion for partial summary judgment in favor of counsel for WTiitney National Bank. The appellants appealed and on April 14, 2010, this court affirmed the judgment of the district court.

In the instant matter, the district court issued a judgment on June 15, 2009, granting the exception of prescription filed on behalf of WTiitney National Bank. In its reasons for judgment, the district court found that the judgment against the appellants was signed on May 26, 2000, and pursuant to La.Code Civ. Proc. art. 2004, “the Aidoos’ claim for nullity is prescribed because it was not brought within one year of the date where the fraud of ill practices should have been discovered.” The appellants, in proper person, filed a Motion for a New Trial on the issue of prescription as to the Reconventional Demand. After a hearing, the trial court denied the Motion for New Trial on October 30, 2009. In its reasons for | ¿judgment, the trial court found (1) the original suit to enforce the promissory note was filed in December 1999; (2) summary judgment was granted on the note in May 2000; and (3) her review of the record revealed that “Mr. Aidoo had always maintained that ‘the suit might be illegal because the loan was for businesses’ and he executed them as an officer of the corporation without any warranty, collateral, or guarantee.’ ” After noting its prior finding that the appellants’ Reconventional Demand was, in effect, a Petition for Nullity, the trial court concluded that “[w]hile the Aidoos assert that they did not have enough information to file their reconventional demand until October, 2004, when they received the partial loan file from the Whitney National Bank, the court finds that at best, the loan file would have simply substantiated their long asserted claim of fraud” and, as it was not filed within a year, it is prescribed.

Discussion

The sole issue in this appeal is whether the trial court erred in finding that the appellants’ fraud claim is prescribed.

Pursuant to La.Code Civ. Proc. art. 2004, an action to annul a final judgment obtained by fraud or ill practices must be brought within one year of the date that the claimants knew or should have known of the fraud or ill practices. In their pro se brief, the appellants assert:

The Trail [sic] Court erred in finding that the Aidoos should have known that the actions of Whitney was [sic] fraud in 1999 and 2000 because in an earlier filing, December 14, 2004, Memorandum, Aidoo said he informed Attorney Holden that the suit may be illegal or the note may be enforceable. Louisiana Code of Evidence ART. 201(2) the Adjudicated facts must be facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably [sic] questioned. The undeniable evidence of fraud is in the loan file. [5 Without the evidence that was never released until October 4th 2004, the Ai-doos could have cried foul play until this date and would not have any evidence to support their claims.

Thus, paradoxically, in arguing that the district court erred in finding that they knew or should have known of the alleged fraud prior to October 2004, the appellants acknowledge that they knew or should have known of the alleged fraud and evidence of this knowledge is in the record relied upon by the district court. The prescriptive period is governed by the claimant’s knowledge not, as intimated by the appellants, the claimant’s ability to produce “undeniable evidence” necessary to succeed at trial. Accordingly, the appellant’s argument is meritless.

Conclusion

The judgment of the district court is affirmed.

AFFIRMED.

      . The appellants filed their brief pro se on March 31, 2010, but subsequently a motion to enroll as counsel was filed on May 5, 2010, and counsel filed a reply brief on behalf of the appellants on May 26, 2010.


author: JAMES F. McKAY III, Judge.

text:
    LOWE, STEIN, HOFFMAN, ALLWEISS & HAUVER, L.L.P. v. Colleen C. CHERAMIE.
    No. 2010-CA-0588.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      David M. Prados, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, Louisiana, for PlaintiffiAppellee.
    Alfred B. Shapiro, Shapiro & Shapiro, L.L.C., Baton Rouge, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   JAMES F. McKAY III, Judge.

Ii In this action on an open account, the defendant, Colleen C. Cheramie, appeals the trial court’s judgment in favor of the plaintiff, Lowe, Stein, Hoffman Allweiss & Hauver, LLP. We affirm.

FACTS AND PROCEDURAL HISTORY

Colleen C. Cheramie retained the law firm of Lowe, Stein, Hoffman, Allweiss & Hauver, LLP (Lowe, Stein) to represent her in a divorce suit against her former husband, Craig Cheramie, in the 24th Judicial District Court for the Parish of Jefferson. Ms. Cheramie was unable to pay the various invoices that accumulated between December 2007 and September 2008. After amicable demand was made and Ms. Cheramie failed to pay, Lowe, Stein filed suit.

The trial court rendered judgment in favor of Lowe, Stein and awarded them $79,839.74 with legal interest from the date of judicial demand plus $20,000.00 in attorneys’ fees and costs. Ms. Cheramie appeals this judgment. Lowe, Stein answered the appeal and prays for its costs and attorneys’ fees associated with this appeal.

I ^DISCUSSION

On appeal, Ms. Cheramie raises the following assignments of error: 1) the district court erred in ruling that the suit was one on “open account” and granting an award of attorneys’ fees; 2) the district court failed to follow existing jurisprudence in assessing reasonableness of plaintiffs attorney fees; and 3) plaintiffs attorneys’ fees were excessive and therefore unjustified.

In her first assignment of error, Ms. Cheramie contends that the trial court erred in ruling that the suit was one on “open account” and granting an award of attorneys’ fees. La. R.S. 9:2781(D) states:

For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

La. R.S. 9:2781(D).

Clearly, debts incurred for legal services are on open account according to this statute. La. R.S. 9:2781(A) provides:

When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney’s fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.

La. R.S. 9:2781(A).

The law is clear. Lowe, Stein is entitled to attorneys’ fees according to the statute. Accordingly, we find no merit in Ms. Cher-amie’s first assignment of error.

| sWith regards to Ms. Cheramie’s second and third assignments of error, these were not raised in the court below. It is well established as a general matter, appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court below and which the trial court has not addressed. Billieson v. City of New Orleans, 2009-0410, p. 8 (La.App. 4 Cir. 11/12/09), 26 So.3d 796, 801-802. Appellate courts must disregard all arguments and assignments of error that relate to an issue not raised for consideration in the court below. Johnson v. State, 2002-2382, p. 4 (La.5/20/03), 851 So.2d 918, 921. Accordingly, Ms. Cheramie’s second and third assignments of error are not properly before this Court.

Although we found for the appellee and against the appellant, we do not find that the appellant’s appeal was frivolous. Accordingly, we will not award the appel-lee any additional costs or attorneys’ fees associated with this appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


author: TERRI F. LOVE, Judge. ARMSTRONG, C.J., BONIN, J.,

text:
    STATE of Louisiana in the Interest of K.M.
    No. 2010-CA-0649.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for The State of Louisiana.

      Joshua Perry, Juvenile Regional Services, New Orleans, LA, for Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

|,K.M. appeals the judgment of the Juvenile Court for the Parish of Orleans, adjudicating K.M. delinquent on the charge of illegal carrying of a weapon. We find no error in the juvenile court’s adjudication of K.M. delinquent. We find no error in the trial court’s denial of the motion to dismiss. We further find that the motion to suppress was properly denied, as the police officer had reasonable suspicion that K.M. was trespassing on school property and had authority to seize the knife pursuant to the plain view doctrine and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

On November 13, 2009, K.M. was charged by delinquency petition with violating one count of La. R.S. 14:95, relative to the illegal carrying of a weapon. K.M. denied the charge and appeared for an adjudication hearing on January 27, 2010.

Prior to hearing the merits, the trial court denied KM.’s motion to dismiss, which was based on the assertion that La. R.S. 14:95 is unconstitutional on its face. Proceeding with the merits, the trial court heard testimony from the arresting officer, Sergeant Mark Joseph. Sgt. Joseph testified that on November 6, 2009, at approximately 3:40 p.m., he was working a paid security detail for O. Perry 12Walker High School, a position he held for over two years. Sgt. Joseph stated that he observed K.M. and two other females outside of the school in the “common area” between O. Perry Walker and Delgado Community College, which is also the dismissal area for the O. Perry Walker students. He explained that some of the area belongs to Delgado and some to O. Perry Walker, but that K.M. was on 0. Perry Walker property. When questioned further regarding K.M.’s exact location, Sgt. Joseph stated that he observed K.M. and the two females walk from the Delgado parking lot onto 0. Perry Walker property.

Sgt. Joseph stated that he approached the three females because they were not wearing a school uniform. He explained that it was customary practice that students who are not in 0. Perry Walker uniforms are not allowed on campus. Sgt. Joseph inquired why the females were there; they stated they were waiting on an 0. Perry Walker student. Sgt. Joseph asked for identification; the other two females produced identification, but K.M. claimed she did not have proof of identification. At that time, K.M. voluntarily opened her purse (apparently to show Sgt. Joseph that she did not have identification), revealing a knife. Sgt. Joseph explained that he was standing within an arm’s reach of K.M. and could see right into her purse. Sgt. Joseph took possession of the knife, which had a reddish-brown substance on the blade, and placed K.M. under arrest. Sgt. Joseph stated that K.M. had possession of the purse, which he described as a large shoulder bag, the entire time he observed her. At trial, Sgt. Joseph made a positive identification of K.M. and the knife.

Kevin Comeaux, Dean of Students at 0. Perry Walker, was called to testify on behalf of K.M. Mr. Comeaux testified that he was not present when Sgt. Joseph initially stopped K.M. Consequently, he could not say whether K.M. was on 0, | ¡.Perry Walker property or Delgado property at the time. Mr. Comeaux could only confirm that he saw a police squad car in the Delgado parking lot when he came on the scene.

Following the testimony, the trial court denied KM.’s motion to suppress physical evidence, i.e., the knife, and adjudicated K.M. guilty as charged. On February 24, 2010, K.M. was committed to the Department of Public Safety and Corrections for a period of time not to exceed six months. The sentence was suspended, and K.M. was placed on inactive probation for six months. K.M.’s timely appeal followed.

On appeal, K.M. asserts three assignments of error: 1) The trial court erred in denying KM.’s motion to dismiss, which asserted that La. R.S. 14:95 is unconstitutional on its face; 2) The trial court erred in adjudicating K.M. delinquent absent proof beyond a reasonable doubt; and 3) The trial court erred in denying K.M.’s motion to suppress physical evidence.

MOTION TO DISMISS

La. R.S. 14:95(A) lists five circumstances meeting the definition of illegal carrying of a weapon. The circumstance applicable to this case is set forth in La. R.S. 14:95(A)(1), which includes the definition of illegal carrying of a weapon as “[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.”

K.M. argues that the statute, as written and as applied to K.M., is unconstitutional because it allows proof of the criminal intent element by preponderance, rather than beyond reasonable doubt. More specifically, K.M. maintains that the statute would allow a conviction on a mere showing that K.M. probably intended to use the knife as a dangerous weapon rather than that she | intended beyond a reasonable doubt to use the knife as a dangerous weapon. We find no merit in this assignment of error.

As a general rule, statutes are presumed to be constitutional; therefore, the party challenging the validity of a statute has the burden of proving its unconstitutionality. City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 2005-2548, (La.10/1/07), 986 So.2d 1. In the present case, K.M. has offered no such proof. The fact that La. R.S. 14:95 contains the language “intended for probable use as a dangerous weapon” does not diminish the requirement that the State prove all elements of the charged offense beyond a reasonable doubt. Accordingly, and considering the discretion afforded the trial court in dismissing matters for good cause under La. Ch.C. art. 876, we find no error in the trial court’s denial of the motion to dismiss.

ADJUDICATION OF DELINQUENT

The State’s burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove every element of the offense alleged beyond a reasonable doubt. State in the Interest of W.B., 2008-1458, (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61; La. Ch.C. art. 883. Likewise, in juvenile proceedings the appellate court grants deference to the trier-of-fact that observed the demeanor of the witnesses and was in the best position to determine credibility and the weight to be given the evidence. State in Interest of J.N., 2007-1229 (La.App. 4 Cir. 5/7/08), 984 So.2d 910.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1. It specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678 (La.1984). This standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 2000-1810 (La-App. 4 Cir. 4/11/01), 787 So.2d 414.

La. R.S. 14:95 provides, in pertinent part:

A. Illegal carrying of weapons is:
(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.

La. R.S. 14:2(3) defines “dangerous weapon” as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” The tei'm “dangerous weapon” is not limited to those instrumentalities which are inherently dangerous, but includes any instrumentality which in the manner used, is calculated or likely to produce death or great bodily harm. State v. Bonier, 367 So.2d 824, 826 (La.1979); See also State in the Interest of Ruschel, 411 So.2d 1216 (La.App. 4 Cir.1982); State v. Ragas, 2007-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266. Moreover, it is well established that the “dangerousness” of the instrumentality by reason of the manner in which it is used is a question for the trier of fact. Bonier, 367 So.2d at 826, citing State v. Murff, 215 La. 40, 39 So.2d 817, 823 (1949).

In State v. Fluker, 311 So.2d 863, 866 (La.1975), the. Louisiana Supreme Court enunciated the appropriate test to be applied in prosecutions for illegal carrying of weapons, that is, “under the facts and circumstances of the case as disclosed by the evidence, the manner in which defendant carried the weapon evinced an intent to conceal its identity.”

Sgt. Joseph asked KM. for identification. After K.M. stated that she did not have identification, she voluntarily opened her large purse and revealed a knife. Sgt. Joseph testified that he could see into her purse, and he took possession of the knife and placed K.M. under arrest. We find that the trial court was presented sufficient evidence to find that the manner in which K.M. carried the knife in her purse evinced intent to conceal the knife’s identity-

Under the circumstances presented in the case sub judice, we find no error in the trial court’s determination that the knife in KM.’s possession was considered a dangerous weapon.

MOTION TO SUPPRESS

Trial courts are vested with great discretion when ruling on motions to suppress. Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592 (La.9/9/04), 884 So.2d 1176.

The right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Atkins, 2005-0823 (La.App. 5 Cir. 3/14/06), 926 So.2d 591. The requirements for a valid Terry stop and for any search incident to the stop was codified in La. C.Cr.P. art. 215.1(A), which |7provides in pertinent part: “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

The Fourth Amendment to the U.S. Constitution and La. Const, art. I, § 5 protect individuals from unreasonable searches and seizures. A search conducted without a warrant is per se unreasonable unless justified by one of the specifically established exceptions. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

The plain view doctrine is an exception to the rule that a search and seizure conducted without a warrant is presumed unreasonable. See Coolidge, 403 U.S. at 465, 91 S.Ct. at 2037. Seizure of evidence under the plain view doctrine is permissible when: (1) there is prior justification for an intrusion into the protected area; and (2) it is immediately apparent without close inspection that the items are evidence or contraband. Horton v. California, 496 U.S. 128, 135-136, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990); See also State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108.

In the instant case, Sgt. Joseph was justified in approaching K.M., considering the evidence that K.M. was on O. Perry Walker property and was not wearing a school uniform. We find that Sgt. Joseph had reasonable suspicion that K.M. was trespassing on school property. Moreover, based on Sgt. Joseph’s testimony, which was accepted as credible by the trial court, the knife was immediately apparent when K.M. voluntarily opened her purse. Thus, we find that |sSgt. Joseph had authority to seize the knife pursuant to the plain view doctrine, and the motion to suppress was properly denied.

DECREE

For the foregoing reasons, K.M.’s adjudication is affirmed

AFFIRMED

ARMSTRONG, C.J., Concurs in the Result.

BONIN, J. Concurs with Reasons.

ARMSTRONG, C.J.,

Concurs in the Result.

hi respectfully concur in the result reached by the majority.

BONIN, J.,

Concurs with Reasons.

hi respectfully concur in the affirmation of the delinquency adjudication for the offense of illegal carrying of a weapon. I write separately on two issues.

First, I address KM.’s argument that the language of that portion of La. R.S. 14:95 A(l) upon which her adjudication is founded is unconstitutional. The statute provides, in pertinent part that the “[i]lle-gal carrying of weapons is ... [t]he intentional concealment of ... [an] instrumentality ... intended for probable use as a dangerous weapon, on one’s person ...” (emphasis supplied). K.M. only argued in the juvenile court that the above italicized language allows the prosecution to convict a person of the crime of illegal carrying of weapons on burden of proof that the person probably intended to use a concealed instrument as a dangerous weapon. Because of this, K.M. suggests, this statute permits a criminal conviction on a less demanding standard of proof than that of proof beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“[T]he Due Process Clause [of the federal constitution] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). KM. asserts that the statute is unconstitutional on its face and as it has been applied to her.

|2The source of the current R.S. 14:95 is Section 1, Article 95 of the old Criminal Code, enacted by the Louisiana Legislature in 1943. See Acts 1942 No. 43 § 1. The text of that statute defined the illegal carrying of weapons as “[t]he intentional concealment of any firearm, or other instrumentality customarily used as a dangerous weapon, on one’s person ...” This portion of the statute remained the same until 1956, when the definition was slightly altered to read: “[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for use as a dangerous weapon, on one’s person ...” See Acts 1956 No. 345 (italics supplied to indicate the amended portion of the statute). In 1958, this clause of the statute was amended again to insert the word “probable,” reflecting the current version of this part of the statute. See Acts 1958 No. 379.

But our review is restricted to a consideration of the precise claim raised by K.M. in the juvenile court. See Scott v. American Tobacco Co., Inc., 09-461, p. 8-9 (La.App. 4 Cir. 4/23/10), 36 So.3d 1046, 1052-53. K.M. did not argue in the juvenile court that the statute is unconstitutional on account of vagueness or overbreadth, see Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) and Skilling v. United States, 561 U.S. -, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (Scalia, J., concurring); see also. State v. Griffin, 495 So.2d 1306, 1308 (La.1986).

Second, I write separately to emphasize that the proper standard of review of an adjudication in a delinquency proceeding is, as provided by La. Const, art. V, § 10 B, civil, not criminal. See State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979); see also State in Interest of S.O., 10-551 (La.App. 4 Cir. 9/3/10), 49 So.3d 1 (Bonin, J., concurring).

Although the proper standard of review of the sufficiency of the evidence is less deferential to the lower court’s findings, there is nevertheless no clear error in the juvenile judge’s adjudication of K.M. as delinquent. This Court reviewed the physical evidence in this case. In brief defense counsel mischaracterized the knife |sas a “cheese knife” with harmless attributes, when in fact it is fully capable of being used to physically harm another person. The juvenile judge was reasonable and not clearly wrong in finding beyond a reasonable doubt (1) that this knife was intentionally concealed on K.M., and (2) that the concealed knife was intended for probable use as a dangerous weapon.


author: SAUNDERS, Judge.

text:
    TRAVCAL PROPERTIES, LLC v. Gregory J. LOGAN, et al.
    No. 10-323.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Rudie Ray Soileau, Jr., Lundy, Lundy, Soileau & South, LLC, Lake Charles, LA, Counsel for Defendant Appellee: Gregory J. Logan.
    Kenneth Warren DeJean, Attorney at Law, Lafayette, LA, Counsel for Defendant Appellee: Hit or Miss, LLC.
    Francis X. Neuner, Jr., Laborde & Neuner, Lafayette, LA, Counsel for Defendant Appellee: William E. Logan Jr. (Trustee for Sa-Jes).
    Michael Reese Davis, Hymel Davis & Petersen, LLC, Baton Rouge, LA, Counsel for Plaintiff Appellant: Travcal Properties, LLC.
    Camille Bienvenu Poche’, Babineaux, Poehe’, Anthony & Slavich, Lafayette, LA, Counsel for Defendant Appellee: Gregory J. Logan.
    Tim P. Hartdegen, Hymel Davis & Petersen, LLC, Baton Rouge, LA, Counsel for Plaintiff Appellant: Travcal Properties, LLC.
    Daniel J. Poolson, Jr., Laborde & Neuner, Lafayette, LA, Counsel for Defendant Appellee: William E. Logan Jr. (Trustee for Sa-Jes).
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

| herein, we address whether the Calca-sieu Parish court abused its discretion in sustaining an exception of lis pendens in favor of the Appellees, Gregory Logan and William Logan. For the following reasons, we find that it did not and affirm the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY:

At issue before this court is an exception of lis pendens sustained by the trial court in favor of the Appellees, Gregory Logan and William Logan. The matter arises out of a dispute over the management and operation of Hit or Miss, L.L.C. (hereinafter referred to as “Hit or Miss”), a Wyoming limited liability company — specifically, Gregory Logan’s status as manager of the company and the authority with which the position carries.

Hit or Miss is owned in equal parts by Travcal Properties, L.L.C. (hereinafter referred to as “Travcal”) and The Sa-Jes Trust (hereinafter referred to as “Sa-Jes”). Travcal is a single member Louisiana limited liability company that is owned by Texada Trust and managed by Edwin K. Hunter. Gregory Logan is the initial income beneficiary of Sa-Jes.

The dispute between the parties began when Gregory Logan was notified that he would no longer continue to serve in the role as manager of Hit or Miss. The company’s operating agreement stated that Gregory Logan would serve as the initial manager of the company until such time as his successor was elected and qualified.

Legal action commenced on April 9, 2009, when Gregory Logan filed a petition in Lafayette Parish seeking a declaratory judgment confirming his authority to continue to serve as manager of Hit or Miss until such time as a successor manager is elected and qualified. Gregory Logan named Hit or Miss and its two members, |2Travcal and William Logan (as trustee of Sa-Jes), as defendants in the original petition.

On May 7, 2009, Travcal filed a derivative suit in Calcasieu Parish alleging various acts of mismanagement and breaches of fiduciary duties by Gregory Logan.

On June 11, 2009, Gregory Logan filed an amended petition in the Lafayette Parish proceeding. In the amended petition, Gregory Logan expanded on the original claim by seeking specific rulings confirming his authority as manager of Hit or Miss and relating to certain actions taken by him in that capacity. Included in the amended petition are requested rulings on the following: (i) that no person other than the duly-appointed manager of Hit or Miss has the right to act for, or on behalf of Hit or Miss, or to take any action enumerated in Section 3.1(b) of the Operating Agreement for or on behalf of Hit or Miss; (ii) that Travcal has no right or authority to take any action by or on behalf of Hit or Miss; and specifically that Travcal had no right or authority to register Hit or Miss to do business in the State of Louisiana, to designate a principal business address in the State of Louisiana or to appoint a registered agent for Hit or Miss in the State of Louisiana; (iii) that Appellee, as the manager of Hit or Miss has authority under the Operating Agreement to establish a working capital reserve for Hit or Miss and to withhold such amounts from distributions to the members of Hit or Miss; and, (iv) that Appellee, as manager of Hit or Miss, properly classified payments made by certain Mexican entities to Hit or Miss as ordinary income on the tax filings of Hit or Miss and on the K-ls issued to the members of Hit or Miss.

William Logan, on June 19, 2009, in' response to Gregory Logan’s amended' petition, filed an answer and cross-claim against Travcal in the Lafayette Parish Isproceeding. Among other things, the cross-claim sought a declaratory judgment (i) confirming Gregory Logan as manager of Hit or Miss and confirming that Gregory Logan will continue to serve as manager of Hit or Miss until such time as his successor may be elected and qualified, (ii) declaring that no person other than the duly appointed and qualified manager of Hit or Miss has a right to act for or on behalf of Hit or Miss, (iii) declaring that Gregory Logan, as manager of Hit or Miss, is the sole person to act for and on behalf of Hit or Miss, (iv) declaring that the members of Hit or Miss, in their capacity as members, do not have the authority to act for or on behalf of Hit or Miss.

Travcal responded to the amended petition and cross-claim by filing an exception of lis pendens in the Lafayette parish court. A hearing on the exception was held on August 17, 2009, and the court overruled the exception on August 24, 2009. Thereafter, Travcal requested supervisory writs with this court regarding the August 24, 2009 overruling of its exception of lis pendens. Writs were denied by this court and subsequently by the supreme court.

Gregory Logan and William Logan filed exceptions of lis pendens in Calcasieu Parish related to the May 7, 2009, derivative suit filed by Travcal. A hearing on that exception was held on September 4, 2009, and on September 25, 2009, the Calcasieu Parish court sustained the exception. It is from this ruling that Travcal now appeals. APPELLANT’S ASSIGNMENT OF ERROR:

The trial court abused its discretion in granting [Appellees’], Hit or Miss, L.L.C.’s, and William Logan, Jr.’s exceptions raising the objection of lis pendens.

LAW AND DISCUSSION ON THE MERITS:

At issue before this court is whether the Calcasieu Parish trial court was correct Inn sustaining an exception of lis pendens in favor of Appellees, Gregory Logan and William Logan.

The basis for the exception of lis pen-dens lies in La.Code Civ.P. art. 531. It reads as follows:

When two or more suits are pending in a Louisiana court or courts of the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

The article lays out three requirements that must be satisfied in order for a lis pendens exception to be properly sustained. First, there must be two or more suits pending. Second, the suits must involve the same transaction or occurrence. Third, the suits must involve the same parties in the same capacities.

In Coury Moss, Inc. v. Coury, 07-1578, p. 4 (La.App. 3 Cir. 4/30/08), 981 So.2d 936, 939-40, writ denied, 08-1174 (La.9/19/08), 992 So.2d 944, this court stated that, “[t]he test for ruling on an exception of lis pen-dens is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corp., 96-1224, p. 3 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248.”

Looking to the three requirements laid out by La.Code. Civ.P. art. 531, there is no dispute between the parties that two suits are pending in Louisiana courts and that the Lafayette Parish suit was instituted prior to the Calcasieu Parish suit, nor is there a dispute that Gregory Logan’s amended petition relates back to the filing of the original petition. There is also no dispute that the same parties exist in the same capacities in both suits. Thus, the issue comes to rest on whether the two proceedings involve the same transaction or occurrence.

|sBefore we begin our discussion on the transactions or occurrences at the root of the suits at issue, we will address Travcal’s argument in brief that the Calcasieu Parish court’s sustaining of the lis pendens exception was improper because the initial suit filed was a declaratory judgment. Travcal asserts that because the Lafayette Parish proceeding was a declaratory judgment, as a matter of law, it cannot be res judicata as to the instant suit. We find no merit in this argument and direct attention to this court’s decision in Spallino v. Monarch Sign Co., 00-447 (La.App. 3 Cir. 10/11/00), 771 So.2d 784, wherein we found that an eviction suit was barred by an exception of lis pendens because of the existence of a suit seeking declaratory judgment on the ownership of the property-

We now turn our attention to the remaining unresolved prong of La.Code Civ.P. art. 531 — whether the two suits arise out of the same transaction or occurrence. There is no one test to determine what constitutes the same “transaction or occurrence.” The idea that the expression carries a broad meaning was addressed by this court in Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057.

The term “transaction or occurrence” is used in seven articles of the Code of Civil Procedure. In addition to its use in Article 1061, it is found in Article 425, which deals with preclusion by judgment; it is used in Articles 531 and 532, both dealing with lis pendens; in Article 891, the term enumerates one of the required formalities of a petition; in Article 1071 it defines the parameters of a cross-claim; and in Article 4845, the term helps define the jurisdictional limits of city and parish courts. Another provision, Article 1153, uses the slightly different expression “conduct, transaction, or occurrence” as part of the formula for when an amendment to a pleading relates back for prescription purposes.
Although none of these articles specifically define the expression “transaction or occurrence,” they variously equate the term with “the subject matter of the litigation” (Articles 425 & 891), “the subject matter of the principal action” or “principal demand” (Article 1061 & 4845), | fiand “the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action” (Article 1071). What the transaction or occurrence is that is the subject matter of the litigation, or the principal demand or action, or the original action, has been determined on a case-by-case basis, according to the annotations under these articles.
Some definitions are available, however. Black’s Law Dictionary defines “transaction” as, inter alia, “a broader term than ‘contract,’” and “a group of facts so connected together as to be referred to by a single legal name; as a crime, a contract, a wrong.” Among the definitions of “transaction or occurrence” found in 42 Words and Phrases, Supp. p. 201 (1997), is “whether pertinent facts of different claims are so logically related that issues of judicial economy and fairness mandate that all issues be tried in one suit.” The federal courts have given the words “transaction or occurrence” a broad and liberal interpretation in order to avoid a multiplicity of suits. All logically related events entitling a person to institute legal action against another generally are regarded as comprising a “transaction or occurrence.” Lasa Per L’Industria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143 (6th Cir.1969).

Id. at 1060.

In Hy-Octane, the court ultimately decided that the transaction or occurrence must be determined on a case-by-case basis. In that case, the court was addressing whether a claim for a breach of contract was a compulsory reconventional demand to a claim for wrongful termination of the same contract. G & B Oil products entered into a motor fuel supply agreement with Hy-Octane Investments. The agreement stated that G & B would be the sole supplier for all of Hy-Octane’s motor fuels. Subsequently, Hy-Octane leased its store to another company that ultimately terminated the agreement with G & B. G & B filed suit against Hy-Octane for wrongful termination of the contract. Hy-Octane responded by filing a separate suit against G & B for breach of contract. Ultimately, the court found that the two suits clearly originated from the same transaction or occurrence, the contract.

| 7In the instant case, the Calcasieu Parish court based its ruling, in large part, on the court’s holding in Hy-Octane. We agree, and we find that the two suits at issue each find their basis rooted in the interpretation of the Hit or Miss operating agreement, the genesis of Gregory Logan’s authority as manager of Hit or Miss.

Travcal argues that the material facts and the evidence required in its suit against Gregory Logan are not consistent with those in the Lafayette Parish proceeding and that there is no logical relation between the suits. We disagree. In its suit against Gregory Logan, Travcal asserts various breaches of fiduciary duties, mismanagement and abuse of control of Hit or Miss, wasting of Hit or Miss assets, and breach of contract. Specifically, they argue that the Hit or Miss operating agreement generally prohibits the payment of management fees and that Gregory Logan, in violation of the agreement, paid himself and Edwin K. Hunter such fees. Travcal also makes allegations of improper payments made to Hunter as non-employee compensation, unpaid loans lent to Gregory Logan by Travcal, and failure to make periodic distributions to the members of Hit or Miss.

The Appellees, Gregory and William Logan, argue and we agree that the Hit or Miss operating agreement, specifically section 3.1, creates a logical relationship in the subject matter of the two suits such that there can be little doubt that the two proceedings result from the same transaction or occurrence.

Section 3.1 of the Hit or Miss operating agreement reads as follows:

Section 3.1. Management by Managers). (a) The Company shall be managed by one or more Managers. Gregory J. Logan shall serve as initial Manager of the Company and shall serve until his successor is elected and qualified, (b) Except for situations in which the approval of the Members is required by this Operating Agreement or by non-waivable provisions of applicable law, (i) the powers of the Company shall be exercised by or under the authority of, and the business and 1 Saffairs of the company shall be managed under the direction of, the Manager (s); and (ii) the Manager(s) may make all decisions and take all actions for the Company not otherwise provided for in this Operating Agreement, including, without limitation, the following:
(i) entering into, making, and performing contracts, agreements, and other undertakings binding the Company that may be necessary, appropriate, or advisable in furtherance of the purposes of the Company and making all decisions and waivers thereunder;
(ii) opening and maintaining bank and investment accounts and arrangements, drawing checks and other orders for the payment of money, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements;
(iii) maintaining the assets of the Company in good order;
(iv) collecting sums due the Company;
(v) to the extent that funds of the Company are available therefor, paying debts and obligations of the Company;
(vi) acquiring, utilizing for Company purposes, and disposing of any asset of the Company;
(vii) borrowing money or otherwise committing the credit of the Company for Company activities and voluntary prepayments or extensions of debt; (viii) selecting, removing, and changing the authority and responsibility of lawyers, accountants, and other advisers and consultants;
(ix) obtaining insurance for the Company;

(c) Notwithstanding the provisions of Section 3.1(b), the Manager(s) may not cause the Company to do any of the following without complying with the applicable requirements and procedures set forth in the Act:

|fl(i) sell, lease, exchange or otherwise dispose of (other than by way of a pledge, mortgage, deed or trust or trust indenture) all or substantially all the Company's property and assets (with or without good will), other than in the usual and regular course of the Company’s business;
(ii) be a party to a merger or conversion, and
(iii) amend or restate the Articles.

The Hit or Miss operating agreement, particularly Section 3.1, establishes the authority of the manager of the company; and, the trial court’s requested interpretation of the authority vested in that agreement should resolve the principal issues presented in both proceedings, including the propriety of the actions taken by Gregory Logan as manager of Hit or Miss. We also note that a number of Travcal’s claims against Gregory Logan are directly addressed in Logan’s amended petition in prayers for relief numbers 4 and 5. Specifically addressed therein is a requested judicial declaration as to the authority of Gregory Logan to establish working capital reserves and to withhold such amounts from distributions and a declaration as to the propriety of the classification on K-l tax documents of payments made to Hit or Miss by certain Mexican entities. Accordingly, we find that the suits at issue arose out of the same transaction or occurrence and, thus, that the Calcasieu Parish court did not abuse its discretion in sustaining the exception of lis pendens.

CONCLUSION:

For the foregoing reasons, we find that the two proceedings at issue arose from the same transaction or occurrence and that the Calcasieu Parish court did not abuse its discretion is sustaining the exception of lis pendens. Accordingly, the judgment of the court is affirmed. All costs of this appeal are to be assessed to the Appellant.

| in AFFIRMED.


author: EZELL, Judge.

text:
    Ronald BABIN v. ERNEST P. BREAUX ELECTRICAL, INC.
    No. 10-305.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Terrel A. Thomas, Johnson, Stiltner & Rahman, Baton Rouge, LA, Counsel for Defendant/Appellee: Ernest P. Breaux Electrical.
    Jennifer K. Barber, The Barber Law Firm, Sulphur, LA, Counsel for Plaintiff/Appellant: Ronald Babin.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION Judges.
   EZELL, Judge.

| j Ronald Babin appeals the decision of the workers’ compensation judge finding that he forfeited his right to workers’ compensation benefits pursuant to La.R.S. 23:1208.1. For the following reasons, we affirm the decision of the workers’ compensation judge.

Mr. Babin was injured on January 29, 2008, while in the course and scope of his employment with Ernest Breaux Electrical (EBE). Mr. Babin was suspended above the ground in the bucket of a truck, working on an electrical transformer when the bucket lift malfunctioned, crushing the bucket into the transformer for several minutes. Mr. Babin was forced to ball up in the bottom of the bucket to prevent himself from being crushed. As a result, Mr. Babin suffered an aggravation of a prior L5-S1 disc injury. When Mr. Babin filed the present workers’ compensation claim, EBE discovered that, despite his assertions on pre-employment medical questionnaires, he had several prior back injuries. EBE sought forfeiture of Mr. Babin’s workers’ compensation benefits under La.R.S. 23:1208.1. The workers’ compensation judge agreed with EBE that Mr. Babin had been untruthful in his statements and that EBE suffered prejudice as a result, as they were unable to recover from the Second Injury Fund due to Mr. Babin’s misstatements. Accordingly, the workers’ compensation judge ruled that Mr. Babin forfeited his rights to compensation. From that decision, Mr. Babin appeals.

On appeal, Mr. Babin asserts four assignments of error: that the workers’ compensation judge erred in allowing EBE to file an amended answer; that the workers’ compensation judge erred in finding that his statements on a pre-employment medical questionnaire were unambiguous; that the workers’ compensation judge erred in finding prejudice against EBE without proof that his |2employment was hindered by a pre-existing permanent partial disability (PPD); and, that the workers’ compensation judge erred in finding the accident was in the scope of his normal job duties.

Mr. Babin first claims the workers’ compensation judge erred in allowing EBE to file an amended answer including the present La.R.S. 23:1208.1 claim. We disagree. It is clear that La.Code Civ.P. art. 1005 requires that a fraud claim pursuant to La.R.S. 23:1208.1 must be specifically pled in the answer. However, as noted in Roussell v. St. Tammany Parish School Bd., 04-2622, pp. 8-9 (La.App. 1 Cir. 8/23/06), 943 So.2d 449, 456-57, untimely writ not considered, 06-2362 (La.1/8/07), 948 So.2d 116 (alteration in original):

Historically, pursuant to LSA-R.S. 28:1315, the judge in a workers’ compensation case had discretion to allow amendments of the petition and answer at any stage of the proceedings. See Wade v. Calcasieu Paper Co., Inc., 95 So.2d 725, 727 (La.App. 1st Cir.1957). Before its amendment by 1983 La. Acts, 1st Ex.Sess., No. 1, § 1, LSA-R.S. 23:1315 read:
The petition shall be filed with the clerk of court and the judge shall fix by order a time and place for the hearing thereof, not less than three weeks after the date of service of the petition. A copy of the petition and of the order shall be served as a summons in a civil action upon the adverse party within four days after the filing of the petition.
Within ten days after the service of the petition the adverse party shall answer the same and shall admit or deny the substantial averments thereof and shall state the contention of the defendant with reference to the matter in dispute as disclosed by the petition. The answer shall be verified in like manner as required for a petition. The court may in its discretion grant further time for filing the answer or hearing the petition and allow amendments of the petition and answer at any stage of the proceedings. [Emphasis added].
Act 1 of 1983 eliminated the language relating to the amendments of the petition and answer. Section 1315 was repealed in its entirety by 1988 La. Acts, No. 938, § 3, effective January 1, 1990. Currently, the time for the hearing, service of the petition, and filing of an answer are 1 ..¡governed by LSA-R.S. 23:1310.3, which has no reference to amendment of the petition or answer.
The WCJ is not bound by the technical rules of procedure, other than as provided in the workers’ compensation law. LSA-R.S. 23:1317(A). Because the worker’s compensation law no longer addresses the timing or procedure for amendments to pleadings, we conclude that the decision as to whether to allow the filing of an amended answer under these circumstances was a matter within the WCJ’s discretion.

In this matter, the deadline for filing amendments to pleadings was January 5, 2009. EBE filed its amended answer on December 12, 2008, well before the deadline set for amendments. We can find no abuse of the workers’ compensation judge’s discretion in allowing EBE to amend its answer. Therefore, this claim is without merit.

Next, Mr. Babin claims the workers’ compensation judge erred in finding statements on his pre-employment medical questionnaire unambiguous. Louisiana Revised Statutes 23:1208.1 (emphasis ours) provides:

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

|4“[A]mbiguous answers cannot satisfy an employer’s burden of proving knowledge regarding the presence of a PPD. Absent an employer’s attempt to clarify ambiguous answers, an employer fails to prove that claimant has knowingly made an untruthful answer for which forfeiture is justified.” Wise v. J.E. Merit Constructors, Inc., 97-684, p. 15 (La.1/21/98), 707 So.2d 1214, 1222. However, our jurisprudence indicates that an employee “fails to answer truthfully when he clearly indicates ‘no’ on the employer’s questionnaire, denying the existence of a known medical condition.” Alexis v. Alton Ochsner Found. Hosp., 03-1775, p. 4 (La.App. 4 Cir. 2/25/03), 869 So.2d 121, 124.

In this case, Mr. Babin marked “No” on his pre-employment medical questionnaire when asked if he had current or prior back injuries or problems. He also clearly denied any residual impairment or restrictions or that any doctor had ever restricted his activity. He again denied ever having back trouble or disc injuries on a separate questionnaire at the time of his employment physical. However, he claims that his answers were ambiguous because, on the first questionnaire, he also stated that he once missed four months of work with a “strained back.”

The record before us shows four serious prior back injuries. Mr. Babin’s medical records indicate that prior to his employment with EBE, he had two herniated lumbar discs at L4-5 and L5-S1 and had been recommended for surgery on more than one occasion. Despite his assertions otherwise, Mr. Babin had been assigned a twenty-percent total body impairment by Dr. Louis Blanda in 1991, and had been restricted from heavy labor by Dr. Blanda, who testified that he never released Mr. Babin to return to heavy labor. At one point, Mr. Babin received workers’ compensation benefits for one of the prior back injuries for twenty-one months. He admitted at trial that injury forced him to miss work for that same twenty-one months, [fithough he could not explain why he claimed on his questionnaire that he had missed only four months of work due to his “strained back.” Thus, even the statements Mr. Babin alleges are ambiguous are patently false. The record is clear that Mr. Babin was aware of these injuries, and we find it impossible to believe that he thought they amounted only to a mere back strain.

A workers’ compensation judge’s factual findings relating to a forfeiture claim are subject to the manifest error/clearly wrong standard of review. Chaisson v. Philip Servs. Corp., 05-340 (La.App. 3 Cir. 11/2/05), 917 So.2d 514. Based on the record before us, we can find no manifest error in the finding that Mr. Babin’s statements were untruthful and unambiguous.

Mr. Babin next claims that the workers’ compensation judge erred in finding EBE had proved prejudice because it failed to prove his PPD hindered employment. The workers’ compensation judge found that EBE was prejudiced because Mr. Babin’s untruthful statements affected its ability to receive reimbursement from the Second Injury Fund. In Nabors Drilling USA v. Davis, 03-136, pp. 5-9 (La.10/21/03), 857 So.2d 407, 414-16 (alterations in original, footnotes omitted), the supreme court explained:

Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Id., citing Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the burden of proving each of the elements required by the statute. Wise, 707 So.2d at 1218. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Id.
As we noted in Wise, 707 So.2d at 1219, untruthful answers alone do not result in the forfeiture of benefits under LSA-R.S. 23:1208.1. The employer must also prove that it provided the employee with notice comporting with the dictates of the statute. Notice is not an issue in this 16case.
In addition to the notice requirement, the legislature has decided to specifically impose a requirement that the untruthful statement concerning a prior injury will result in forfeiture of benefits only when the false statement causes prejudice to the employer. Louisiana Revised Statute 23:1208.1 states: forfeiture only occurs “provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund.” See Resweber, 660 So.2d at 16. This proviso strikes a careful balance. It reflects the legislature’s recognition of the harshness of the forfeiture penalty and attempts to ameliorate the harshness of that penalty for the individual who is simply in the position of trying to obtain or maintain gainful employment, while at the same time preserving the goal of the second injury fund, which is to enhance employment opportunities for those who have been previously disabled. Thus, it is not every untruthful statement on a medical history questionnaire that will result in the forfeiture of workers’ compensation benefits for a subsequent work-related injury. It is only those statements that rise to the level of meeting the statutory proviso of LSA-R.S. 23:1208.1 that will subject the employee to forfeiture.
The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The untruthful statement must “directly relate[ ] to the medical condition for which a claim for benefits is made,” or it must “affect[ ] the employer’s ability to receive reimbursement from the second injury fund.” LSA-R.S. 23:1208.1....
It is the second prong of the “prejudice to the employer” test that is at issue in this case. This second prong requires that the employee’s answer to the employer’s medical history questionnaire “affect[ ] the employer’s ability to receive reimbursement from the second injury fund.” LSA-R.S. 23:1208.1.
To determine the effect on the employer’s right to collect from the second injury fund, we must evaluate LSA-R.S. 23:1378(A) which provides that an employer shall be reimbursed from the second injury fund when the employer “knowingly employs or knowingly retains in his employment an employee who has a permanent partial disability,” as defined by the statute. However, reimbursement is limited to those situations where the permanent partial disability “merges” with a subsequent injury “to cause a greater disability than would have resulted from the subsequent injury alone.” LSA-R.S. 23:1371(A).
As we explained in Wise, supra, an employer’s right to reimbursement is not automatic. The employer is not entitled to reimbursement from the second injury fund merely because an employee with a pre-existing disability is subsequently injured. The employer has [7the burden of proving each element entitling him to reimbursement. Wise, 707 So.2d at 1220, citing Commercial Union Insurance Co. v. Workers’ Compensation Second Injury Board, 94-1202 (La.App. 3 Cir. 3/1/95), 651 So.2d 933. Thus, to be reimbursed from the second injury fund, an employer must prove three elements. Id. First, the employer must prove that the employee had a permanent partial disability satisfying the requirements of LSA-R.S. 23:1378(F), i.e. that the employee’s preexisting condition is of “such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.” Second, the employer must prove that he had actual knowledge of the employee’s permanent partial disability before the occurrence of the injury forming the basis of the compensation claim. LSA-R.S. 23:1378(A)(4); Chandler Parts and Service, Inc. v. Louisiana Worker’s Compensation Second Injury Board, 576 So.2d 1133 (La.App. 3 Cir.), writ denied, 580 So.2d 383 (La.1991). Finally, the employer must prove that the permanent partial disability merged with the injury to produce a greater disability. LSA-R.S. 23:1371(A); LSA-R.S. 23:1378(A); Wise, 707 So.2d at 1220.

Mr. Babin does not challenge the workers’ compensation judge’s finding that the pre-employment injuries merged with the current injury or that EBE’s claims to the Second Injury Fund were destroyed because he prevented it from obtaining the required knowledge. He merely challenges the finding that he suffered from a disability that hindered employment, making the blanket assertion that the fact that he has worked as an electrician proves he is unhindered. We disagree.

“To aid the employer’s collection of reimbursement from the second injury fund, our legislature established ‘a presumption that the employer considered the condition to be permanent and to be or likely to be a hindrance or obstacle to employment’ where the condition was one of the thirty listed in the statute. La.R.S. 23:1378(F).” Trent v. Triad Elec. & Controls, Inc., 09-1192, p. 11 (La.App. 3 Cir. 4/7/10), 34 So.3d 484, 492-93. One of the conditions listed by La.R.S. 23:1378(F) is a ruptured inter-vertebral disc. Moreover, even if this presumption of disability |Rwere not available, Dr. Blanda testified that his previous disc herniations made him prone to re-injury and would make the effects of any subsequent injury worse. Most damningly, he also testified that Mr. Babin’s prior spinal condition was permanent and that it would be a hindrance to employment, preventing him from any heavy work. This testimony is uncontradicted. In fact, Mr. Babin advanced this point himself when he testified that he sought only jobs that would not affect his back injury and actively avoided jobs that involved heavy manual labor. The fact that Mr. Babin could perform his job as an electrician in a relatively unhindered manner has no bearing on the fact that he has still not been released to any kind of heavy labor by Dr. Blanda and that he simply can not perform that type of work according to his own physician. We can find no error in the workers’ compensation judge’s finding that Mr. Ba-bin had a PPD prior to his hiring by EBE that hindered his employability.

Finally, Mr. Babin claims that the trial court erred in applying La.R.S. 28:1208.1 where the injury in question was outside the scope of his normal job duties. We find this argument uncompelling, if not completely disingenuous. Part of Mr. Ba-bin’s job as an electrician was to perform work in buckets. While the mechanism of injury in this case was unusual, ie. the mechanical malfunction, Mr. Babin cannot realistically claim he was not performing his regular job duties when this injury occurred. Moreover, Mr. Babin himself stipulated that he was in the course and scope of his employment when the accident occurred. This assignment of error has no merit whatsoever.

For the above reasons, the decision of the workers’ compensation judge is hereby affirmed. Costs of this appeal are hereby assessed against Ronald Babin.

AFFIRMED.

      . Mr. Babin argues that our ruling in Messina v. Isle of Capri Casino, 04-1061 (La.App. 3 Cir. 12/22/04), 891 So.2d 780, writ denied, OS-535 (La.4/29/05), 901 So.2d 1071, dictates that because EBE did not assert its 1208 claim in its initial answer, it can no longer assert that claim. This case is clearly distinguishable from Messina in that the defendant therein failed to amend its answer to include the defense and made no mention that fraud would be asserted until the claim was raised in the employer’s pre-trial statement one week before trial. In this matter, EBE timely filed an amended answer so as to be in compliance with La.Code Civ.P. art. 1005. Mr. Babin’s reading of Messina is incorrect as it applies to this case.

        . Disc herniations such as Mr. Babin's have been discussed in jurisprudence in a manner interchangeable with the ruptured discs listed in La.R.S. 23:1378(F)(26). See Trent, 34 So.3d 484.