author: PATRICIA RIVET MURRAY, Judge.

text:
    AVENUE SURGICAL SUITES v. JO ELLEN SMITH CONVALESCENT CENTER.
    No. 2011-CA-0026.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.

      Richard K. Leefe, Michael R. Gelder, Leefe Gibbs Sullivan Dupré & Aldous, Me-tairie, LA, for Plaintiff/Appellee.
    René S. Paysse, Jr., Rochelle Champagne Fahrig, Johnson Johnson Barrios & Yacoubian, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

Lin this workers’ compensation case, the parties dispute an alleged underpayment of medical expenses by the employer, Jo Ellen Smith Convalescent Center (“Jo Ellen Smith”), to the treating health care provider, Avenue Surgical Suites. Jo Ellen Smith admits that it authorized the treatment, but it disputes the amount that it was billed for the treatment. Jo Ellen Smith contends that the reduced amount it tendered to Avenue Surgical Suites was equal to the usual and customary charge for the services provided and thus satisfied its obligation under the Workers’ Compensation Act. From a judgment in Avenue Surgical Suites’ favor awarding additional reimbursement of medical expenses, penalties, and attorneys’ fees, Jo Ellen Smith appeals. For the reasons that follow, we amend the judgment to award additional attorneys’ fees for the work performed on appeal and affirm the judgment as amended.

FACTUAL AND PROCEDURAL BACKGROUND

On December 21, 2008, Jennifer Muse sustained a work-related injury to her lower back while employed by Jo Ellen Smith. As a result of her injury, she was | ^referred by her treating physician to Avenue Surgical Suites for pain management treatment, which her employer authorized. At Avenue Surgical Suites, she was treated by Dr. Norbert Ming, an interventional pain physician, on three service dates: June 22, 2009; July 27, 2009; and August 24, 2009. On each service date, Dr. Ming performed the same procedures: a bilateral SI transforaminal epidural steroid injection (“ESI”), a right L5 selective nerve root block, a fluoroscope of the sacral region, and a fluoroscope of the lumbar region. For each service date, Avenue Surgical Suites billed Jo Ellen Smith through its third party administrator, Workers’ Compensation-Risk Management Services, Inc. (“Risk Management”), the same amount: $10,300.

In response to each bill, Risk Management tendered a check for $3,500 accompanied by an explanation of benefits form (“EOB”). The EOB for each service date was virtually the same. On each EOB, Risk Management made two reductions to the $10,300 billed amount: $1,030 (“BR/Red”) and $5,770 (“Other/Red”). After unsuccessfully seeking reconsideration of the three bills from Risk Management, Avenue Surgical Suites submitted the bills to the Louisiana Workforce Commission, Office of Workers’ Compensation (the “Commission”), for a review of the disputed medical reimbursement. The Commission recommended reimbursement for these services in accordance with the Louisiana [¡¡Office of Workers’ Compensation Medical Reimbursement Schedule, Chapter 25, Hospital Reimbursement, § 2507 Outpatient Reimbursement, which provides:

Outpatient hospital and ambulatory surgery services will be reimbursed at covered charges less a ten percent (10%) discount. The formula for calculating payment amount is:
(BILLED CHARGES) - (NONCOV-ERED CHARGES) = COVERED CHARGES x .90 = PAYMENT AMOUNT [ (the “Formula”) ]

In its recommendation letters, the Commission instructed that “[i]f any party disagrees with this recommendation, a formal dispute may be filed with the appropriate hearing office by filing LWC-WC-1008, Disputed Claim for Compensation.”

In April 2010, Avenue Surgical Suites filed a 1008-Disputed Claim for Compensation seeking additional reimbursement from Jo Ellen Smith. In its claim form, Avenue Surgical described the bona-fide dispute as follows:

This patient underwent treatment at Avenue Surgical Suites (a state licensed ambulatory surgi-eenter) on 6/22/2009, 7/27/2009 and 8/24/2009. A dispute of reimbursement occurred for these dates. The appropriate protocol was followed. The Office of Workers’ Compensation recommended reimbursement per the state statute (documents 1 A, B & C dated 12/22/2009, 1/6/2009 and 4/5/2009 respectively) for these dates of service. Avenue Surgical Suites is asking for $17,310.00 (see attachment 2). This is the remaining balance of the amount recommended from the Louisiana Workforce Commission for the three dates of service. We are also asking for | ¿reimbursement of all costs including legal costs and any applicable statutory interest and penalties.

Jo Ellen Smith answered and asserted that it had fulfilled all its obligations under the Workers’ Compensation Act and that it owed no further payments. It further asserted that it acted reasonably and in good faith in investigating and handling the claim.

On September 8, 2010, a trial was held at which Dr. Ming was the sole witness. At the close of the trial, the Office of Workers’ Compensation (“OWC”) found that the charges were reasonable and necessary and accepted the Commission’s recommendation of payment in accordance with the Formula. The OWC thus ruled in favor of Avenue Surgical Suites awarding $17,310 for reimbursement of additional medical expenses, together with interest from the date of filing of the disputed claim for compensation; $2,500 in attorney’s fees; and $6,000 in penalties ($2,000 for each service date). This appeal followed.

DISCUSSION

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 04-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117; Masinter v. Akal Sec., Inc., 05-1236, p. 3 (La.App. 4 Cir. 6/07/06), 934 So.2d 201, 204. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Bell v. Mid City Printers, Inc., 10-0818, p. 7 (La.App. 4 Cir. 1.12/22/10), 54 So.3d 1226, 1232 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556).

On appeal, Jo Ellen Smith asserts two assignments of error. First, it contends that Avenue Surgical Suites failed to meet its burden of proof that the medical services as invoiced were usual and customary in accordance with the Louisiana Workers’ Compensation fee schedule. Second, it contends that it was not arbitrary and capricious in its reduced payment for medical services rendered by Avenue Surgical Suites; therefore, Avenue Surgical Suites is not entitled to penalties and attorneys’ fees. We separately address each issue. We additionally address Avenue Surgical Suites’ claim for additional attorneys’ fees for work performed on appeal.

(i) Reimbursement of medical expenses

An employer’s obligation to furnish medical expenses is governed by La. R.S. 23:1203, which provides that “the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” La. R.S. 23:1203(A). The employer’s obligation under this section, however, is limited by La. R.S. 23:1203(B), which provides:

The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less.

Pursuant to La.R.S. 23:1034.2, the director of the office of workers’ compensation is given the responsibility of establishing a reimbursement schedule and adopting rules and regulations for the establishment and implementation of that schedule. | fi“Should a dispute arise between a health care provider and the employee, employer, or worker’s compensation insurer, the parties shall submit the dispute to the office in accordance with the provisions of law governing disputes.” La. R.S. 23:1034.2(F).

Based on the above provisions, an employer’s obligation is to pay medical expenses according to the fee reimbursement schedule or the actual charges, whichever is less. James v. A & B Builders, 09-0781, p. 7 (La.App. 1 Cir. 10/23/09), 29 So.3d 541, 545. In the absence of a reimbursement schedule, the starting point for an award of medical expenses is the actual charge. Manuel v. River Parish Disposal, Inc., 96-302, 96-303, p. 8 (La.App. 5 Cir. 10/1/96), 683 So.2d 791, 795. However, implicit in the above provisions is a requirement that the charges be reasonable. See Manuel, 96-302, 96-303 at p. 8, 683 So.2d at 795 (noting that it is “contemplate[d] that the charges be reasonable.”) As this court has noted, “[t]he reasonableness of a particular medical fee depends on what is customary in a community for similar operations involving similar pre-operative and post-operative procedures and complications.” Adler v. Hospital Service Ass’n of New Orleans, 278 So.2d 177, 180 (La.App. 4th Cir.1973).

It is undisputed that Jo Ellen Smith authorized the medical treatment in question and that Avenue Surgical Suites performed that treatment. The dispute is solely over the amount billed. The director of the office of workers’ compensation administration has not established a reimbursement schedule for the specific procedures at issue. However, because Avenue Surgical Suites is an outpatient 17ambulatory surgical center, it is undisputed that the Formula set forth in § 2507 applies to these charges. As noted, the Formula is as follows: “(BILLED CHARGES) - (NONCOVERED CHARGES) = COVERED CHARGES x .90 = PAYMENT AMOUNT.” In this case, the EOBs did not indicate that any of the listed procedures that Dr. Ming performed on Ms. Muse were not covered; rather, the EOBs indicated that the charged amount for each procedure should be discounted. It is thus not disputed that the covered charge is equal to the billed charge of $10,300 per service date. Pursuant to the Formula, the payment amount is equal to 90% of $10,300 ($9,270). The OWC, agreeing with Avenue Surgical Suites, found the balance due is equal to $5,770 per treatment date ($9,270 minus the amount Jo Ellen Smith tendered, $3,500).

On appeal, Jo Ellen Smith contends that by tendering $3,500 — an amount equal to the usual and customary charge for the services provided — it satisfied its obligation under the Workers’ Compensation Act. It based this argument upon the recommendation of an “experienced third party bill review company,” Health Systems International, LLC (“HSI”). Jo Ellen Smith called no witnesses nor presented any evidence to support its position.

The only evidence in the record as to whether the actual charges were reasonable is the testimony of Dr. Ming, the head of Avenue Surgical Suite’s pain management section who performed the procedures at issue and who developed the fee schedule used to bill for the procedures.

Dr. Ming testified that Avenue Surgical Suites is a state and federally licensed outpatient ambulatory surgical center located in New Orleans. In 2004, Dr. Ming, who is board certified in multiple areas including pain management, became head of the center’s pain management section. In 2005, he developed a |snew fee schedule for the center; however, due to Hurricane Katrina the schedule was not implemented until 2007. The fee schedule remained in effect at the time of trial. Under the fee schedule, the center’s charge for the primary core injection procedure, which goes into the brain and spinal core area, was set at $5,000. (As explained below, this fee included $3,000 for the costs associated with the procedure and $2,000 for the center to assume the risks.) Dr. Ming testified that for multiple injections the center followed “either the AMA Guidelines, or the workline Guidelines.”

In developing the above fee schedule, Dr. Ming testified that he employed an unsophisticated cost-risk analysis. The cost component of his analysis was based on the number of procedures the center performed per week, the cost of the things the center used to perform those procedures, and the cost of things the center needed to have available in the event complications occurred. Insofar as the center’s costs, Dr. Ming differentiated an outpatient surgical center from the back room of a doctor’s office and from a hospital’s outpatient facility. Dr. Ming explained that he totaled the center’s fixed and variable costs — which were about $60,000 a week — and divided the total costs by the total number of procedures performed at the center each week — about twenty cases per week with half of those being interven-tional pain procedures. The cost per case was calculated to be $3,000.

Given the risk involved and the potential complications with interventional pain procedures, Dr. Ming testified that the center determined that $5,000 would be |9a fair charge for the primary core injection procedure — $3,000 for the costs, as determined above, and $2,000 for the center assuming the risks of performing the procedure. Dr. Ming testified that since the 1990s the number of malpractice claims for epidurals has tripled. He further testified that to minimize the risks and the potential complications Avenue Surgical Suites limited the number of interventional pain procedures it performed to ten per week.

After performing the cost-risk analysis, Dr. Ming determined that the fee schedule he had developed for the center was “in a competitive range.” He testified that “we were 30 percent of what the highest charges were.... [W]e were in the middle.” In response to the questions of the trial judge about the charges being in “the middle of the area” and whether this was the geographical area or the area of the procedure or across the country, Dr. Ming explained that “[i]t’s for what other ambulatory surgery centers are charging for that procedure” in south Louisiana where he estimated there were twenty to thirty independent state licensed ambulatory surgery centers. He further explained that other ambulatory centers were charging between $3,000 and $8,500 for the primary procedure and that the center was charging $5,000, which was “sort of competitive, in the middle.” He still further explained that “[w]e actually had some major institutions that charges [ (sic) ] $15,000 to $18,000 for that one injection.”

Dr. Ming identified the data that his office compiled reflecting Avenue Surgical Suites’ composite payment history for its workers’ compensation cases that involved similar procedures. The data covered the period from 2007 to 2010 during which the fee schedule he developed was in place. The data included |inredacted explanation of benefit forms for these unrelated claims. Dr. Ming testified that the center generally collected between 85% to 90% of the invoiced amounts for these procedures. He explained that the center occasionally collected a lower amount. He acknowledged that on one occasion the center was only paid 22% and 32% because he missed the deadline to appeal.

On each of the three service dates Dr. Ming performed the same procedures on Ms. Muse. For safety reasons he does not put the patient to sleep for the primary core procedure, but he does give the patient sedation. He estimated that it takes him fifteen to thirty minutes to perform the procedure. He also sees the patient pre-operatively for fifteen to twenty minutes. Following the procedure, the patient has one-on-one nursing coverage through recovery. There is no follow-up examination, but there is a follow-up phone call. Dr. Ming testified that the entire cycle for each patient is about one hour. As to Ms. Muse, in particular, Dr. Ming testified that he did not recall her having any complications and thus she probably was in and out of the center in about one hour and fifteen minutes on each service date.

Turning to the bills in question, Dr. Ming testified that for each service date the center billed Jo Ellen Smith, through Risk Management, $10,300. For each bill, Risk Management tendered the reduced amount of $3,500 accompanied by an EOB. Each of the EOBs had four codes listed for discounting the billed amount:

• Charges exceed maximum allowance.
• The charge for this procedure exceeds the fee schedule allowance.
In* In accordance with Title 40, Section 5101 titled statement of policy of the Louisiana Administrative Code, reimbursement reflects the mean of the usual and customary charge.
• This charge has been reviewed to reflect a fair, current, and reasonable reimbursement amount based on comparisons to industry benchmarks and reimbursements for comparable services by national payors’ payment schedules.

Dr. Ming was asked to compare the above four codes with those used in the historical payment data from 2007 to 2010, discussed above. He testified that only one of the four codes was different — the last one which states that this “refleet[s] a fair, current, and reasonable reimbursement amount based on comparisons to industry benchmarks and reimbursements for comparable services by national payors’ payment schedules.” Dr. Ming testified that this code was new. He also noted that when Avenue Surgical Suites sought reconsideration it also formally requested Risk Management’s data and the methodology it used to calculate the reductions it made to the invoiced amounts. He explained that he wanted this information so that he could make a comparison and determine what the center was doing differently. Risk Management not only denied the request for reconsideration, but also failed to respond to the request for information.

| ^Following the protocol, Avenue Surgical Suites then filed for a review with the Commission, which recommended that the reimbursement be made based on the Formula. The trial judge questioned Dr. Ming whether the Commission’s recommendation was that Jo Ellen Smith pay 90% of the billed amount, $10,300. Answering in the affirmative, Dr. Ming explained:

[Risk Management] recognized the bill as $10,300. They — no one’s disputing that the charges weren’t covered. Because the insurance covered — paid on each service. It says, how much.
And so they recognize the bill as $10,300. And so I don’t think it was they were disputing that what we did was inappropriate or uncovered. And so we assume they are saying that — then to pay 90 percent of it.

Given Dr. Ming’s testimony supporting the reasonableness of the charged amount coupled with the lack of any evidence to the contrary, we find no manifest error in the OWC’s award of $17,310 in additional reimbursement of medical expenses to Avenue Surgical Suites.

(ii) Penalties and attorneys’ fees

The other issue Jo Ellen Smith raises on appeal is whether the OWC erred in awarding $6,000 ($2,000 per service date) in penalties and $2,500 in attorneys’ fees. The determination of whether an employer should be cast with penalties and attorneys’ fees is essentially a question of fact subject to the manifest error or clearly wrong standard of review. James v. A & B Builders, 09-0781, p. 8 (La.App. 1 Cir. 10/23/09), 29 So.3d 541, 546. The failure to timely pay medical benefits subjects the employer to a penalty of $50 per calendar day for each day that the medical benefits remain unpaid, not to exceed $2,000, plus reasonable attorneys’ fees, for each disputed claim. La. R.S. 23:1201(F). Section 1201(E) |1sprovides that “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” La. R.S. 23:1201(E). The record in this case supports the OWC’s finding that Jo Ellen Smith was arbitrary and capricious particularly in light of its failure to produce any evidence in support of its position. We thus cannot conclude that the OWC’s award of penalties and attorneys’ fees was manifestly erroneous.

(rii) Attorneys’ fees for work performed on appeal

In its brief, Avenue Surgical Suites requests additional attorney fees for work performed on appeal. Although Avenue Surgical Suites failed to file an answer to the appeal, we have the authority to make such an award pursuant to La. C.C.P. art. 2164. See Smith v. Pilgrim's Pride Corp., 44,080 at pp. 11-12 (La.App. 2 Cir. 2/25/09), 4 So.3d 983, 991, writ denied, 09-961 (La.6/19/09), 10 So.3d 739 (citing Gandy v. United Services Auto. Association, 97-1095 (La.App. 5 Cir. 10/14/98), 721 So.2d 34); see also Poissenot v. St. Bernard Parish Sheriff’s Office, 09-0636, pp. 8-9 (La.App. 4 Cir. 11/24/09), 26 So.3d 829, 834-35, rev’d on other grounds, 09-2793 (La.1/9/11), 56 So.3d 170 (citing Smith, supra).

|14To determine the amount of attorneys’ fees, factors that are considered include “the skill exercised by the attorney and the time and work required on appeal.” Smith, 44,080 at pp. 11-12, 4 So.3d at 991 (citing Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2 Cir. 4/7/04), 870 So.2d 515). Avenue Surgical Suites’ counsel prepared and filed an appellate brief. As Avenue Surgical Suites acknowledged in its brief, this case does not present a close factual or legal issue. The parties did not request oral argument. Given these circumstances, we find it appropriate to award Avenue Surgical Suites $1,000 in attorneys’ fees for additional work performed on appeal.

DECREE

For the forgoing reasons, the judgment of the Office of Workers’ Compensation is amended to award an additional $1,000 in attorneys’ fees; and the judgment, as amended, is affirmed.

JUDGMENT AMENDED; AFFIRMED AS AMENDED

      . Each bill included the following itemization of the $10,300 total charge: TF ESI LUMBAR/SACRAL 1st $5,000; LUMBAR ESI OTHER SIDE $2,500; TF ESI LUMBAR/SACRAL ADD $2,000; Fluoroscopy for placing $400; and Fluoroscopy for placing $400.

      . Each explanation of benefits included the following itemization of the $3,500 recommended allowance: AMBUL SURG $2,800.97; AMBUL SURG $1400.49; AM-BUL SURG $1,120.39; DX X-RAY $135.92; AND DX X-RAY $135.93.

      . This provision is set forth in La. Admin. Code, Title 40, Part, 1, Chapter 25, § 2507 (“ § 2507”).

      . Although Avenue Surgical Suites filed its disputed claim against both Jo Ellen Smith and its third party administrator, Risk Management, the Office of Workers' Compensation ("OWC”) granted Risk Management’s motion to dismiss the claims against it.

      . In attachment 2, Avenue Surgical Suites explained that its claim was for the billed amount of $10,300 reduced by two amounts: (i) $1,030 (10% reduction pursuant to the Formula or § 2507), and (ii) $3,500 (amount tendered by Jo Ellen Smith). The amount claimed for each treatment date thus was $5,770 (or $17,310 for all three service dates). This amount coincides with the reduction amount on the EOBs labeled "Other/Red.”

      . As noted in the judgment, this amount "represents the total amount owed per service date $10,300.00, minus the statutory ten percent (10%) reduction and the amount already tendered by the defendant.”

      . On the unrelated issue of whether an employer's payment of workers’ compensation indemnity benefits interrupts prescription on the employee's claim for medical benefits the holding in Manuel, supra, was not followed in Boquet v. Tetra Technologies, Inc., 02-1634 (La.2/25/03), 839 So.2d 13. In Boquet, supra, the Louisiana Supreme Court resolved a conflict among the circuits on that unrelated issue.

      . Based on those guidelines, the second bilateral injection was priced at 50% of the first injection ($2,500); the third injection was priced at 60% of the first injection ($3,000); and the fourth level was priced at 40% of the first level ($2,000). An additional charge was imposed for the fluoroscope of $400 per area at which it is used or repositioned. Although the bills for the services in question followed these guidelines, Dr. Ming noted that the third level for some reason was priced at $2,000 instead of at $3,000.

      . Dr. Ming acknowledged that he filed an insurance claim for his physician fee for the treatment in question and that he was paid. However, he had no idea how much he was paid. He explained that his fee was for his services — "doing the procedure itself, and me doing the interpretation of the fluoroscopy, and doing the procedure and knowing when to inject and when not to, and putting the needle where it's — hopefully, it’s supposed to be.”

      . Louisiana Administrative Code, Title 40, pt. I, § 5101 sets forth the following general statement of policy:
      A. It is the intent of this reimbursement schedule to limit to the mean of the usual and customary charge all fees for medical services, supplies, and other non-medical services delivered to Workers' Compensation claimants, as authorized by law.
      B. The law provides that an employer or compensation insurer owes to an injured worker one hundred percent (100%) of the medical fees incurred in the treatment of work-related injuries or occupational diseases (hereinafter referred to as “illness(es)”).
      1. It is therefore the policy of the Office of Workers' Compensation that medical bills for services should be sent to the Carrier/Self-Insured Employer for payment. Fees for covered services in excess of the amounts allowable under the terms of this schedule are not recoverable from the employer, insurer, or employee.
      2. It is also deemed to be in the best interest of all of the parties in the system that fees for services reasonably performed and billed in accordance with the reimbursement schedule should be promptly paid. Not paying or formally contesting such bills by filing LDOL-WC-1008 (Disputed Claim for Compensation), with the Office of Workers’ Compensation within 30 days of the date of receipt of the bill may subject the Carrier/Seif-Insured Employer to penalties and attorneys fees.

      . The calculation is as follows: 90% of the covered charges (90% of $10,300 or $9,270) less the amount already tendered by Jo Ellen Smith ($9,270 less $3,500, which equals $5,770 per treatment or a total of $17,310 for all three treatments).

        . See also La. Admin. Code, Title 40, Part I., § 5101 (providing that “[n]ot paying or formally contesting such bills by filing LDOL-WC-1008 (Disputed Claim for Compensation), with the Office of Workers' Compensation within 30 days of the date of receipt of the bill may subject the Carrier/Seif-Insured Employer to penalties and attorneys fees.”)

      . La. C.C.P. art. 2164 provides:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    Paulette STALL v. The BAKERY CONDOMINIUM ASSOCIATION.
    No. 2011-CA-0103.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.
    David Binegar, Binegar Christian LLC, New Orleans, LA, for Plaintiff/Appellant.
    Joseph F. Lavigne, Thomas P. Hubert, Robert L. Walsh, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| ;Paulette Stall appeals the grant of an exception of res judicata in favor of The Bakery Condominium Association, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Paulette Stall owns a unit in the Bakery Condominiums (“The Bakery”), and by virtue of her ownership, is a member of the Bakery Condominiums Association (hereinafter “Association”). The Bakery was developed by Historic Restorations, Inc. (HRI), and was managed by HRI until 2006.

At the time of Hurricane Katrina, August 2005, the Bakery was one of the properties covered under a policy of insurance obtained by HRI from RSUI. The Bakery building was damaged by Hurricane Katrina, and HRI subsequently made a claim for damages with RSUI.

HRI claimed that the roof, windows, siding and other items were damaged in the storm due to water intrusion. RSUI disputed the cause, scope and extent of the damage. Because the HRI anticipated delays in obtaining recovery from the insurance policy, HRI proposed that a special assessment be levied against the unit 1 ¡.owners so that immediate repairs could be made to the building to prevent further water intrusion. A written proposal was sent to each owner on or about December 1, 2005. Ms. Stall signed the proposal, thus voting for the special assessment.

In June of 2006, the Association voted to use $30,000 of the assessment money to replace a water pump. As a member of the Association, Ms. Stall was entitled to and did vote for the new water pump. The Association members were made aware at that time they would be reimbursed for their contributions to the special assessment fund out of the insurance proceeds once received.

After HRI settled with RSUI, the settlement proceeds were allocated to the properties covered by the policy. In early October 2009, the Association received its portion of the settlement monies. The Association in turn informed the unit owners that they would each be reimbursed for approximately 45% of the special assessment they had contributed. The Association also paid out insurance proceeds to the unit owners who had sustained Katrina damages.

It was at this point that Ms. Stall voiced her displeasure with the amount of proceeds she received. On August 28, 2007, Ms. Stall filed her first lawsuit against State Farm, HRI, the Association and its president. In her suit, she alleged that HRI lacked the authority to negotiate a settlement on behalf of the Association, and that HRI was negligent in entering into a settlement agreement on her behalf without her prior approval. She further alleged that the Association and its president improperly delegated the authority to HRI to negotiate a settlement, |sand that RSUI breached the policy of insurance by settling with HRI. She claimed that because of the improper and negligent actions of the various parties her damages were vastly underestimated.

HRI and RSUI filed exceptions of no right of action, no cause of action and improper cumulation of actions. The Association and its president filed exceptions of no right of action and no cause of action. The trial court granted all exceptions raised, and dismissed Ms. Stall’s claims with prejudice. This Court affirmed the trial court and denied rehearing. Ms. Stall did not seek a writ from the Louisiana Supreme Court. The judgment on the first lawsuit thus became final on October 29, 2008.

On November 20, 2009, Ms. Stall filed the instant lawsuit solely against The Bakery Condominium Association. Ms. Stall alleged that the Association misappropriated insurance proceeds, and that she was denied her share of the proceeds to repair damages to her unit. She alleged that the Association violated its own rules and the “Louisiana Condominium Law.” These violations resulted in a breach of contract between Ms. Stall and the Association, and a breach of the fiduciary duty owed by the Association to Ms. Stall.

The Association again filed exceptions of no right of action, no cause of action, and an exception of res judicata. The trial court granted the exception of res judicata and dismissed Ms. Stall’s suit, with prejudice. This appeal followed.

1 ¿DISCUSSION:

Louisiana Revised Statute 13:4231, entitled Res judicata, provides:

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.
(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.

In Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049, the Supreme Court set forth five elements to satisfy to determine if res judicata applies to a second lawsuit: (1) is the judgment from the first action valid; (2) is that |,.judgment final; (3) are the parties the same; (4) did the cause or causes of action asserted in the second suit exist at the time of the final judgment in the first action; and, (5) did the cause or causes of action asserted in the second suit arise out of the same transaction or occurrence that was the subject matter of the first suit. Burguieres, 02-1385, p. 7, 843 So.2d at 1053.

Ms. Stall does not dispute that the first two elements are met. She, however, argues that the last three elements are not. First, Ms. Stall argues that she is not the same party that sued in the first suit. In the first suit, she was a shareholder and in this suit she is an individual. This argument is illogical. In the first suit, as in this one, Ms. Stall was an individual suing The Bakery; she did not sue as a representative of a legal entity in the first suit. The main reason expressed by this Court as to why Ms. Stall had no right of action in the first lawsuit was because she would have had to sue as a shareholder (a derivative suit), but she sued as an individual. Clearly, the third element of the Burgui-eres test is met.

Ms. Stall attempts to distinguish the present causes of action from those asserted in the first lawsuit, arguing that the causes of action in this litigation did not exist at the time of the first lawsuit. She argues that the claim in the present suit for breach of contract and negligent misrepresentation by The Bakery “had not fully ripened.” Ms. Stall contends that the complete facts about the current claim were not in the record of the first appeal.

The Bwrguieres test does not require that facts be present in the record; rather, the test is to determine if the cause or causes of action existed. The record indicates that not only had the negotiations been completed between The Bakery and RSUI at the time of the first lawsuit, but the insurance proceeds had been distributed to the unit owners. Thus, her claims of breach of contract and negligent | ^misrepresentation existed at the time the first lawsuit was filed, satisfying the fourth element of the test.

Lastly, the fifth element to be satisfied to determine if res judicata applies is whether the cause or causes of action asserted in the second suit arise out of the same transaction or occurrence that was the subject matter of the first suit. The basis of Ms. Stall’s first lawsuit was that The Bakery mishandled the insurance proceeds by not reimbursing her the amount of money she needed to repair her unit. Although worded differently, Ms. Stall’s claims in the instant case arise out of the same transaction or occurrence, i.e., The Bakery’s misapplication of insurance proceeds caused her to be underpaid for her damages.

Ms. Stall attempts to distinguish her claims in the instant suit from those in the first by arguing that The Bakery breached its contractual relationship with her by violating the by-laws of the condominium association. This is a distinction without a difference. The dealings between The Bakery and RSUI, the insurance company, all took place prior to the filing of the first lawsuit. The distribution of the insurance proceeds likewise took place prior to the filing of the first lawsuit. Hence, any contractual breach took place prior to the filing of the first lawsuit. We find no merit to Ms. Stall’s argument on this point.

Accordingly, finding that all of the elements for a finding of res judicata were satisfied, we find no error in the trial court’s granting of The Bakery’s exception. The trial court judgment is affirmed.

AFFIRMED

      . Her personal homeowner’s carrier.

      . Acts 1990 — No. 521, § 1, amended the law on res judicata. The official comments provide:
      "(a) R.S. 13:4231 makes a substantive change in the law.... The central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. This serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless litigation of the underlying facts and will free the defendant from vexatious litigation; and, by focusing on the transaction or occurrence which would be comparatively easy to determine, this proposal avoids the much more difficult problem of defining what constitutes "cause of action” is avoided [sic]. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action, (b) R.S. 13:4231 also changes the law by adopting the principle of issue preclusion. This principle serves the interests of judicial economy by preventing litigation of the same issue between the same parties.... ”


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

text:
    Ruby FARLEY v. The CITY OF NEW ORLEANS.
    No. 2011-C-0301.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 20, 2011.

      William R. Mustian, III, Stanga & Mus-tian, A.P.L.C., Metairie, LA, for Relator, Ruby Farley.
    Craig B. Mitchell, Kiana M. Mitchell, Michael S. Rodriguez, Mitchell & Associates, APLC, New Orleans, LA, for Respondent, City of New Orleans.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

|rThe relator, Ruby Farley, asks this court to reverse an interlocutory judgment by the Office of Workers’ Compensation that dismissed her claim for penalties and attorney’s fees after the respondent, the City of New Orleans (“City”), terminated her temporary total disability benefits (“TTD benefits”). For the following reasons, we grant the writ application, reverse the judgment, and remand.

The facts are undisputed. Ms. Farley was injured while working for the City in August 2005. She was laid off by the City following Hurricane Katrina and received unemployment benefits. Once those benefits terminated, TTD benefits were initiated in September 2006, which continued until their termination on 15 July 2007, when the relator’s physician released her to return to work full duty.

On 10 June 2010, Ms. Farley filed a disputed claim for compensation against the City, (a) alleging that her wage benefits were unlawfully terminated, (b) regarding her disability status, and (c) claiming penalties and attorney’s fees for arbitrary and capricious behavior by the City. The City filed an exception of prescription, arguing that the claim for penalties and attorney’s fees had prescribed within one year from the date the benefits were terminated in July 2007. The | ^administrative law judge with the Office of Workers’ Compensation agreed, granted the exception, and dismissed this claim.

In her writ application, Ms. Farley argues that the three-year prescriptive period found in La. R.S. 23:1209, which applies to supplemental earnings benefits, including TTD, governs. That statute provides in pertinent part:

A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). [Emphasis supplied.]

La. R.S. 23:1221(1) specifically applies to TTD benefits, which the relator was receiving. Thus, Ms. Farley had three years from the termination of her TTD benefits to seek reinstatement of those benefits. The disputed claim was timely filed. The question is whether her claim for penalties and attorney’s fees is also timely. Put another way, we must determine what prescriptive period applies: one year as asserted by the City or three years as claimed by Ms. Farley.

The respondent relies on Craig v. Bantek West, Inc., 03-2757, p. 5 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, 1237, wherein the court held that claims for penalties and attorney’s fees are subject to the one-year prescriptive period for delictual actions found in La. C.C. art. 3492. The Craig analysis was followed by our brethren of the Fifth Circuit in Seidl v. Zatarain’s, Inc., 05-0780, pp. 5-7 (La.App. 5 Cir. 3/28/06), 927 So.2d 557, 560-61.

| a We find no Fourth Circuit cases directly on point. However, a series of recent cases from this court, see e.g. Touro Infirmary v. Silocaf of New Orleans, 10-0072 (La.App. 4 Cir. 7/28/10), 44 So.3d 862, addressed the prescriptive time for a medical provider to sue for unpaid medical bills owed by an employer and its worker’s compensation insurer. There, we held that a medical provider has three years from the date of the last payment to bring suit for underpayment pursuant to La. R.S. 23:1201(F)(4). We distinguished Craig because:

[T]he First Circuit only dealt only dealt with prescription of workers’ claims for attorneys’ fees and penalties under subsection (F), not providers’ claims under subsection (F)(4). Subsection (F), which confers a claim for attorneys’ fees to a worker, differs substantially from subsection (F)(4), which deals solely with claims by healthcare providers. Unlike subsection (F)(4), which deals solely with claims by subsection (F) does not state when the worker’s claim for attorneys’ fees accrues. Subsection (F)(4) expressly provides that the claim for penalties and attorneys’ fees does not arise until after the provider prevails on the underlying claim. In the instant case, the provider’s claim was brought within the three year prescriptive period. Clearly, the claim was not prescribed.

Id. at p. 2, 44 So.3d at 864. We then stated:

Even if Craig was applicable to the facts of the instant case, we must note that the Third Circuit has specifically rejected Craig. See Trahan v. City of Crowley, 2007-266 (La.App. 3 Cir. 10/3/07), 967 So.2d 557. The Third Circuit has also stated: “[i]t is clear from a reading of the jurisprudence that when claims for penalties and attorney fees accompany the claims for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties.” Rave v. Wampold Companies, 2006-978 (La.App. 3 Cir. 12/6/06), 944 So.2d 847. We agree with this rationale.

14 Id.

Turning to Rave v. Wampold Companies, 06-978 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, the court distinguished Craig:

Defendants argue that the one-year prescriptive period for delictual actions set forth in La.Civ.Code art. 3492 applies to a workers’ compensation claim for penalties and attorney fees, pursuant to Craig v. Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004. However, Craig did not address the underlying claims for benefits. Rather, it involved the prescriptive period on only the claim for penalties and attorney fees which did not accompany the original claim for benefits. Accordingly, we need not address Craig where there was no contemporaneous filing of a claim for penalties and attorney fees along with the underlying claim for benefits, as we have in the present case with Mr. Rave.

Id. at p. 12, n. 3, 944 So.2d at 855.

In the instant matter, we agree with the dicta of the Touro cases and the reasoning of Rave when they distinguished Craig. Accordingly, we hold that when claims for penalties and attorney fees accompany the claims for workers’ compensation benefits, if the underlying claims have not prescribed, neither have the claims for attorney’s fees and penalties. Thus, Ms. Farley’s claim for penalties and attorney’s fees have not prescribed. Therefore, we grant the relator’s writ application, reverse the judgment of the Office of Workers’ Compensation below, and remand for further proceedings.

SUPERVISORY WRIT GRANTED; JUDGMENT REVERSED; REMANDED

      . The other cases include: Touro Infirmary v. Wm. B. Reily & Co., Inc. 10-0074 (La.App. 4 Cir. 7/28/10), 44 So.3d 867; Touro Infirmary v. Lowes New Orleans Hotel Corporation, 10-0103 (La.App. 4 Cir. 7/28/10), 44 So.3d 869; Touro Infirmary v. Emeril’s Homebase, L.L.C., 10-0104 (La.App. 4 Cir. 7/28/10), 44 So.3d 871; Touro Infirmary v. Fisk Corp., 10-0105 (La.App. 4 Cir. 7/28/10), 44 So.3d 874.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Edwardo FLORES.
    No. 10-KA-651.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Ivan A. Orihuela, Attorney at Law, Ken-ner, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

12Defendant, Edwardo Flores, was charged by bill of information with armed robbery with a firearm, in violation of LSA-R.S. 14:64 and 14:64.3. He pled not guilty at arraignment. Trial was held and, on April 8, 2009, a 12-person jury found defendant guilty as charged. On May 8, 2009, the trial court sentenced defendant to imprisonment at hard labor for a term of 10 years, pursuant to LSA-R.S. 14:64, and an additional 5 years pursuant to the enhancement statute, LSA-R.S. 14:64.3, to be served consecutively and without benefit of parole, probation or suspension of sentence. Defendant appeals.

FACTS

At trial, Rose Madison testified that on the evening of September 23, 2007, she was making a pizza delivery for Domino’s Pizza in Gretna, Louisiana. When Ms. Madison observed three men standing near the delivery location on Grovewood Drive, she stopped the vehicle and opened the window to ask if they had ordered a pizza. When they responded affirmatively, Ms. Madison pulled over | sand parked the car. One of the men started digging in his pockets, as if he were retrieving money or a wallet. Ms. Madison stated that she opened the door on the passenger side of her vehicle and retrieved the pizza. When she turned around, one of the men was holding a gun to her face, and he demanded her money and the pizza.

Ms. Madison recognized the man with the gun, later identified as defendant, as a classmate from Helen Cox School. She said to defendant, “Bra, why you robbing me? We went to school together. I know you.” While defendant held the gun to her face, another man, later identified as Devon Allen, searched her car while a man with a baseball bat, later identified as Troy Dent, stood off to the side. Mr. Allen took Ms. Madison’s cigarettes and wallet, including her driver’s license and $400 cash, from the vehicle. Defendant told Ms. Madison to empty the pizza bag on the ground, so she opened the bag and poured the contents on the ground. Defendant then picked up the items from the bag and ran away. After the perpetrators fled, Ms. Madison locked herself in her vehicle and called the police.

Deputy Johnnie Petit, Jr. of the Jefferson Parish Sheriffs Office responded to the call. Deputy Petit testified that Ms. Madison told him that three African-American men had robbed her. After arriving at the scene, Deputy Petit requested that Ms. Madison follow him back to the Domino’s location. Deputy Petit turned onto Bannerwood Street and noticed a group of individuals playing basketball in the street. Immediately thereafter, Deputy Petit noticed that Ms. Madison was blowing her horn and flicking her headlights, so he pulled over on the next street and proceeded to Ms. Madison’s car. Ms. Madison told Deputy Petit that she recognized two of the men who robbed her playing basketball. Ms. Madison told Deputy Petit that she would never forget the men’s faces.

14Deputy Petit stopped all four men playing basketball and handcuffed the two who matched the description given by Ms. Madison. Ms. Madison positively identified Troy Dent and defendant as two of the men who had robbed her. Deputy Petit arrested defendant and Mr. Dent and advised them of their rights. On cross-examination, Deputy Petit admitted that he did not recover a gun, baseball bat, or Ms. Madison’s wallet from Mr. Dent or defendant.

Devon Allen was arrested a couple of weeks later on October 10, 2007. Ms. Madison positively identified him as the third individual involved in the robbery.

Troy Dent, one of the perpetrators identified by Ms. Madison, testified for the State. Mr. Dent testified that on the evening of September 23, 2007, he, Mr. Allen, defendant, Joe Flores (defendant’s brother), and a guy named “Slim” were sitting outside in front of defendant’s home when somebody suggested that they order a pizza. When Joe Flores said “I don’t have no money,” or “nobody don’t have no money out here,” Mr. Allen asked defendant “[d]o you still have the gun?” Defendant responded affirmatively and pulled a small, black gun out of his pocket. Mr. Allen said, “[tjhat’s how we’re going to get it,” and Joe used Slim’s phone to call and order the pizza.

According to Mr. Dent, the group crossed through a fence in the Flores’ backyard to the street behind their house. Mr. Dent said he did not want to go, but defendant said “[i]f you don’t go, I’m going to kill your momma or your sister.” They were standing on the corner when a woman in a truck stopped and asked the group if they had ordered a pizza. Mr. Allen responded affirmatively, reached into his pocket, and pulled out his wallet. Mr. Dent testified that the woman opened the back door of her vehicle and leaned down to get the pizza. When the woman turned around, defendant put the gun in her face and told her to empty her pockets. The woman said, “[w]hat are you doing? I went to school with you, Bra.” While | aMr. Dent stood in back with a baseball bat, Mr. Allen searched the woman’s vehicle and took her cigarettes. According to Mr. Dent, the three did not take anything else from the vehicle.

The three men left the scene. When Mr. Dent tried to return to his house, Mr. Allen and defendant told him “[n]o, you’re not going inside.” Mr. Dent suspected that they did not want him to go inside because they thought he might call the police or tell his mother what they had done. Mr. Dent originally gave a statement to the police denying any involvement in the robbery. He later gave a second statement to police that was similar to his trial testimony.

Eric Cado testified for the defense at trial. He stated that he and defendant were Mends, and they were playing basketball with Mr. Dent and Joe Flores on the evening of September 23, 2007, when the police arrived and arrested defendant and Mr. Dent. Mr. Cado testified that he did not see Mr. Allen at all that day, that he did not see defendant with a gun, and that he did not see Mr. Dent with a baseball bat. Mr. Cado testified that he did not observe defendant or Joe Flores using a cell phone or ordering a pizza, and did not see anyone deliver a pizza. Finally, Mr. Cado testified that he had no knowledge of an armed robbery that occurred that night.

Similarly, Joseph Flores testified that on the night of September 23, 2007, he, Flores, Dent and Eric Cado, who he knows as “Slim,” were hanging out on the porch and playing basketball. While they were playing basketball, a police officer arrived, searched them, and handcuffed defendant and Mr. Dent. Joe Flores testified that he did not see anyone order a pizza or make a phone call, did not see a pizza delivery person, did not see anyone with a gun or a baseball bat, and did not see anyone with cigarettes. Joe Flores further testified that he did not see Mr. Allen on the night of September 23, 2007. Joe Flores additionally indicated that |fihe, defendant, Mr. Dent and Mr. Cado were searched by the police officer, but the officer did not find a gun, a bat, a wallet, a pizza or cigarettes on any of them.

DISCUSSION

In his second assignment of error, defendant contends that the State presented insufficient evidence to support his conviction for armed robbery with a firearm. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, a reviewing court must first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, we address defendant’s second assignment of error first.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Scott, 06-134, p. 12 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, 470, writ denied, 06-2133 (La.3/30/07), 953 So.2d 61. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. at 7, 985 So.2d at 240.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Jones, 1708-20 at 7, 985 So.2d at 240. Where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” LSA-R.S. 15:438; State v. Frith, 08-52, p. 9 (La.App. 5 Cir. 4/29/08), 985 So.2d 792, 797; State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is not a separate test from that stated in Jackson, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. Ultimately, both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

In the present case, defendant was charged with armed robbery with a firearm in violation of LSA-R.S. 14:64 and LSA-R.S. 14:64.3. In order to prove the charged offense, the State must prove beyond a reasonable doubt the defendant took “anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon,” and that “the dangerous weapon used in the commission of the crime of armed robbery is a firearm.” LSA-R.S. 14:64; LSA-R.S. 14:64.3. Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Fuller, 07-319, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 49, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282. Positive identification by only one witness is sufficient to support a conviction. Id. at 6, 980 So.2d at 49.

In the instant case, Rose Madison testified that, while delivering pizza on the evening of September 23, 2007, she asked defendant and the two men he was with 18if they had ordered a pizza, and they responded affirmatively. Ms. Madison reached in her vehicle to grab the pizza and, when she turned around, defendant was holding a gun to her face and demanded that Ms. Madison hand over the money and the pizza. She testified that the perpetrators took the contents of the pizza bag, and Mr. Allen took her cigarettes and wallet, including $400 cash, from the vehicle. Ms. Madison stated that defendant held a gun to her head while Mr. Allen searched her vehicle and Mr. Dent stood nearby with a baseball bat.

Ms. Madison identified defendant in court and testified that she was sure that the man who stuck a gun in her face was defendant because “they didn’t have any masks over their face, and I seen his face. And I recognize him, because he went to Helen Cox school.” Defendant and Mr. Dent were also positively identified by Ms. Madison shortly after the robbery, and Deputy Petit testified that she told him that she would never forget the men’s faces.

Although the defense presented testimony from Eric Cado and Joseph Flores that defendant could not have been involved in a robbery at that time, the jurors clearly found the testimony of the State’s witnesses to be more credible. Defendant argues that Troy Dent’s testimony was not credible or rehable, because he was given a plea bargain in exchange for his testimony. However, Mr. Dent’s trial testimony corroborated Ms. Madison’s testimony regarding the robbery. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 650. The jury was presented with and clearly accepted Ms. Madison’s testimony that defendant, while armed with a gun, robbed her by use of force or intimidation.

|9Based on the record before us, we find that the evidence, viewed in a light most favorable to the State, was sufficient to establish that defendant was guilty of armed robbery with a firearm beyond a reasonable doubt. Accordingly, this assignment of error is without merit.

In his first assignment of error, defendant contends that the district court lacked jurisdiction over defendant, who was a juvenile at the time of the offense. He contends that the trial court erred in denying his motion to quash the bill of information, because the state failed to follow certain procedures in transferring his case to adult jurisdiction. At the time of the offense, defendant was 16 years old.

Article V, Section 19 of the Louisiana Constitution provides that a juvenile who is alleged to have committed a crime prior to his seventeenth birthday is entitled to the protections of special juvenile procedures. State v. Hamilton, 96-0107 (La.7/2/96), 676 So.2d 1081, 1082. However, the Louisiana Constitution authorizes the legislature to exclude juveniles accused of certain enumerated offenses from the jurisdiction of the juvenile courts. Id. For Louisiana’s most serious felony offenses, LSA-Ch.C. art. 305 gives the criminal courts jurisdiction over juveniles. LSA-Ch.C. art. 305(B) provides that children age fifteen or older who are accused of certain enumerated offenses, including armed robbery, are subject to the exclusive jurisdiction of the juvenile courts until either: 1) an indictment charging one of the enumerated offenses is returned; or 2) the juvenile court holds a continued custody hearing and finds probable cause that the child has committed one of the enumerated offenses, and a bill of information charging one of those offenses is filed.

In the present case, defendant’s primary contention is that the State failed to comply with the provisions of LSA-Ch.C. art. 305, because no indictment was returned against him and no continued custody hearing was held in juvenile court. 1 inDefendant contends that his mother’s testimony at the motion to quash hearing established that the State failed to conduct a continued custody hearing, and thus, the district court lacked jurisdiction over his case.

At the December 15, 2008 hearing on defendant’s motion to quash the bill of information, defendant’s mother, Sandra Flores, testified that she was present at a hearing in juvenile court on September 24, 2007. According to Ms. Flores, the charges were read and a bond was set for defendant during the September 24, 2007 hearing, and the hearing lasted ten minutes or less. She further indicated that defendant’s lawyer did not speak to her or defendant’s father, that no officer testified against defendant, and that no continued custody or probable cause was determined during the September 24, 2007 hearing.

In response to defendant’s claims, the State argued that a continued custody hearing was in fact held on September 24, 2007 in juvenile court and that the judge found probable cause that defendant committed the crime of armed robbery with a firearm. The State introduced a minute entry from juvenile court dated September 24, 2007. The minute entry indicates that a “continued custody hearing” was held that day with defendant, his attorney, his mother, and his father present. The minute entry further indicates that Detective Shawn Champagne of the Jefferson Parish Sheriffs Office testified at the hearing and that at the conclusion of the continued custody hearing, the “court finds probable cause proven for continued custody.” The minute entry also indicates that the State had 30 days to determine if defendant would be tried as an adult. Based on this evidence, the trial judge denied defendant’s motion to quash.

In this case, there were two versions of events presented at the hearing on the motion to quash. Ms. Flores testified that no continued custody or probable cause took place during the September 24, 2007 hearing. The minute entry for that |nday indicates otherwise. Evidently, the trial court chose to discredit the testimony of defendant’s mother and found the State’s evidence sufficient to show that a continued custody hearing was in fact held pursuant to LSA-Ch.C. art. 305. We find no error in the trial court’s determination.

In addition, defendant argues that the State did not comply with the juvenile court’s order to determine if defendant would be tried as an adult within 30 days, as set forth in the September 24, 2007 minute entry. Defendant acknowledges that the State filed a bill of information within the required 30 days, but this bill of information was later dismissed and a second bill of information was filed on December 4, 2007. We find defendant’s argument unpersuasive. The record shows that the State complied with the 30-day requirement ordered by the juvenile court when the initial bill of information was filed on October 15, 2007, and defendant was clearly aware that he was being charged as an adult in district court.

The evidence does not show that the district court lacked jurisdiction over defendant in this matter. Accordingly, we find no error in the denial of defendant’s motion to quash, and this assignment of error is without merit.

In his third assignment of error, defendant contends that the prosecution failed to disclose exculpatory evidence, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He asserts that the record shows that the State sent subpoenas to the Jefferson Parish School Board requesting enrollment records of defendant and Ms. Madison, but the subpoenas were not served on defendant and the returns were never disclosed to defendant. He further argues that the State did not offer into evidence the school records to confirm if defendant and Ms. Madison were ever enrolled in Helen Cox High School, so “this raises a question as to whether the State failed to disclose to Flores exculpatory evidence.” Defendant further claims that he requested from the State all criminal | ^convictions of its witnesses, but it was not discovered until trial that the victim, Rose Madison, had prior convictions for attempted theft and unauthorized use of a movable, and a probation violation for drug use.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to the accused, after receiving a request for the evidence, violates a defendant’s due process rights where the evidence is material either to guilt or punishment. Evidence is material if there is a reasonable probability, sufficient to undermine confidence in the outcome, that the evidence, if disclosed to the defense, would have changed the outcome of the proceeding or created a reasonable doubt that did not otherwise exist. State v. Knapper, 579 So.2d 956, 959 (La.1991). The failure to reveal such evidence adversely affects the defendant’s right to a fair trial. State v. Calloway, 97-796 (La.App. 5 Cir. 8/25/98), 718 So.2d 559, 562, writs denied, 98-2435 (La.1/8/99), 734 So.2d 1229 and 98-2438 (La.1/8/99), 734 So.2d 1229.

Favorable evidence has been held to include both exculpatory and impeachment evidence. Id. The prosecution must make timely disclosure of the favorable evidence to provide the defense with adequate opportunity to present the material effectively in its case. State v. Kemp, 00-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545.

Brady and its progeny do not establish a general rule of discoverability, and not every case in which it is discovered post-trial that favorable evidence was withheld by the State will result in a reversal of the conviction. State v. Bright, 02-2793, p. 6 (La.5/25/04), 875 So.2d 37, 42. A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the “omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” 11SM A Brady violation occurs when the evidentiary suppression “undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

In the instant case, the State provided defendant with open file discovery on January 24, 2008. Nonetheless, defendant contends that the State failed to disclose any potential information received through the issuance of subpoenas to the Jefferson Parish School Board for defendant’s school records. Defendant does not show and the record does not reveal that this information was exculpatory evidence material to his guilt, that the information was improperly withheld, or that the alleged suppression of the school records undermined confidence in the outcome of defendant’s trial. Ms. Madison identified defendant shortly after the robbery and never wavered in her identification. Mr. Dent corroborated her testimony. The record suggests that defendant’s conviction was largely based on the testimony of Ms. Madison, and the record does not show that production of defendant’s school records would have been favorable to the defense.

Defendant also contends that he requested, through discovery, all criminal convictions of the State’s witnesses, but the State did not provide him with Ms. Madison’s criminal convictions prior to trial, including convictions for attempted theft and unauthorized use of a movable, as well as a probation violation for drug use.

The record suggests that the State did provide the defense with Ms. Madison’s criminal convictions in this case. The prosecutor asked Ms. Madison during her testimony if she had ever been arrested. She responded that she was arrested for, and subsequently pleaded guilty to, unauthorized use of a movable. Ms. Madison indicated that she had not been in trouble since then. On cross-examination, one of the defense attorneys asked Ms. Madison if she recalled being | uconvicted in First Parish Court for attempted theft. The State objected, but the trial court allowed the defense attorney to ask the question. Ms. Madison responded that she was convicted in First Parish Court for attempted theft in November 2006. The defense attorney then asked Ms. Madison about whether she violated the conditions of her probation on the unauthorized use of a movable conviction. Ms. Madison responded that she “might have failed a drug screen” and that she tested positive for drugs on one occasion. The evidence suggests that the defense had been made aware of Ms. Madison’s arrests and criminal convictions prior to trial. Even if this was not the case, defendant fails to show how the alleged suppression of this information undermined confidence in the outcome of defendant’s trial, particularly since the jury was made aware of Ms. Madison’s prior convictions.

Based on the foregoing, we find that no Brady violation was established, and thus, we find no merit in defendant’s third assignment of error.

In defendant’s fourth assignment of error, he states that the “relevant conviction and sentence” did not “conform to the language in the bill of information.” In his fifth assignment of error, defendant states that the trial court erred in denying his motion for mistrial. Although defendant listed these issues as his fourth and fifth assigned errors, he did not brief either issue in his memorandum to this court. Assignments of error that are not briefed are deemed abandoned, pursuant to Rule 2-12.4 of the Uniform Rules of Courts of Appeal. See also State v. Lauff, 06-717, p. 9 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819. Accordingly, we find that defendant has abandoned these two arguments, and they will not be addressed on appeal.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were noted.

l1fiDECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED


author: MARION F. EDWARDS, Chief Judge.

text:
    Eddie Earl JOHNSON v. RYDER TRUCK RENTAL, INC., et al.
    No. 10-CA-834.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.
    Howard C. Dejean, Attorney at Law, Opelousas, LA, for Plaintiff/Appellant.
    John P. Guillory, James M. Dill, The Dill Firm, A.P.L.C., Lafayette, LA, for Defendants/Appellees.

      Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Chief Judge.

|2The judgment on review in this appeal is the grant of a summary judgment in favor of defendants/appellees, Cardinal Freight Carrier, Inc. (“Cardinal”) and Kendrick Johnson, that dismissed plaintiff/appellant’s, Eddie Earl Johnson’s, action against them with prejudice. We vacate the judgment and remand.

FACTS

The undisputed facts are that Eddie Earl Johnson (“Eddie Johnson”) is a self-employed commercial truck driver who leased a tractor trailer unit from Ryder Truck Rental, Inc. (“Ryder”). Eddie Johnson was bound by written contract to operate the leased truck for only one client, Cardinal. Under the terms of the contract, Eddie Johnson was required to cooperate with other independent contractors working for Cardinal and, on some occasions, to drive trucks of other contractors. On May 20, 2003, Eddie Johnson was instructed by the dispatcher for Cardinal to travel to Kenner to make deliveries for Kendrick Johnson, who was absent that day. Eddie Johnson wanted to drive his own truck to make the deliveries. However, when he arrived at Cardinal, Kendrick Johnson’s truck was already loaded with the goods to be delivered. Eddie Johnson decided to make the | ¿first deliveries in Kendrick Johnson’s truck and then load the subsequent goods in his own truck for delivery.

During the delivery, Eddie Johnson was injured when the driver’s seat in Kendrick Johnson’s truck malfunctioned. The seat was designed to provide the driver with cushioning by traveling forward and backward, up and down, with the motion of the truck within pre-set limits. At one point on his journey, Eddie Johnson traveled on an exit ramp off 1-610. The truck bounced and the seat malfunctioned, causing him to be thrown up and out of control and to be jammed against the ceiling of the truck’s cab. His head propelled into the ceiling of the cab at least two more times until he was able to get the seat belt released. Eddie Johnson was forced to restore control of the truck by standing up and pulling the truck off of the highway.

The malfunction of the seat caused physical injury to Eddie Johnson, and he filed suit against Ryder, Cardinal, Kendrick Johnson, International Truck and Engine Corporation (the maker of the truck) and the State of Louisiana, through the Department of Transportation and Development (for the bump in the highway that set off the course of events). All defendants filed motions for summary judgment. Both Ryder and the State of Louisiana were granted summary judgments and are no longer parties to this action.

The motions for summary judgment were denied as to International Truck and Engine Corporation, Cardinal, and Kendrick Johnson. After further discovery was conducted, Cardinal and Kendrick Johnson filed a motion to re-urge summary judgment that was granted by the trial court. Eddie Johnson has filed an appeal from that judgment, seeking its reversal. Defendants/appellees, Cardinal and Kendrick Johnson, have filed an answer to the appeal seeking dismissal of the | ¿appeal and requesting appeal costs and attorneys’ fees. No reason was given for the request to dismiss the appeal, and this Court finds the appeal is properly before us. Thus, the judgment at issue herein will be reviewed.

LAW AND ANALYSIS

Summary judgments are appropriate 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. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends. The burden of proof on a motion for summary judgment remains with the movant; however, when the mov-ant will not bear the burden of proof at trial on the matter before the court on the summary judgment motion, the burden does not require the movant to negate all essential elements of the adverse party’s claim, but rather to point out that there is an absence of factual support for one or more elements essential to that claim.

Plaintiffiappellant’s expert, Stephen Kill-ingsworth, determined that the accident occurred as a result of the movement of the multiple-part seat frame assembly traveling past the upper travel stop pins and the secondary upper travel limiters. Mr. Killingsworth stated that the tethers failed to sufficiently restrict the movement of the multiple-part seat frame assembly to the position normally held by the upper travel pins.

Cardinal and Kendrick Johnson do not dispute that expert finding that the seat malfunction was the cause of the accident. Nor do they dispute that Eddie Johnson was injured as a result of that accident. Rather, Cardinal and Kendrick |5Johnson successfully argued in the re-urged motion for summary judgment that, after Mr. Kill-ingsworth’ s deposition was taken, it was clear that Eddie Johnson could not present proof of the essential element of knowledge. Therefore, they asserted, Eddie Johnson could not satisfy his burden at trial and summary judgment should be granted.

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. To impose liability for an unreasonably dangerous defect a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect. The addition of the element of knowledge to La. C.C. art. 2317.1 has effectively turned it from strict liability to a negligence claim. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant’s garde.

Eddie Johnson stated that, when he returned to Cardinal and reported the incident, the dispatcher, Dwayne Cola, indicated that he knew about the defective seat and responded angrily that Kendrick Johnson should have had the seat fixed.

Dwayne Cola, operations manager for Cardinal, testified that he did not recall telling Eddie Johnson after the accident that Kendrick Johnson should have | f;had the seat fixed. Although he did testify that he remembered Kendrick Johnson stating that he sometimes had to lock the seat down, or it would come up. This occurred when “Kendrick first got the truck.” Mr. Cola also testified that he thought that maybe Kendrick Johnson took the truck in to be repaired, but the mechanics could find nothing wrong with the seat. Mr. Cola admitted he could not be sure the truck seat was examined and has never looked at the service records on the vehicle. After the accident, Mr. Cola spoke to Kendrick Johnson and to the mechanic who serviced the truck. Both men told him the seat had to be locked down or it would go up. Mr. Cola admitted he never told Eddie Johnson about the necessity of locking down the seat. Mr. Cola opined that Eddie Johnson adjusted the seat when he got in and then did not lock it down.

Mr. Larry Blankenship testified as an expert for Cardinal and Kendrick Johnson. His findings after examination of the seat were that, with the exception of a damaged upper stop pin, the seat system was in good condition.

Both Cardinal and Kendrick Johnson argue that the deposition of plaintiff/appellant’s expert, Stephen Killingsworth, established that the essential element of knowledge cannot be proven at trial. We have reviewed Mr. Killingsworth’s deposition and find it is insufficient to support defendants/appellees’ conclusion. Mr. Kill-ingsworth made no determination on the issue of prior knowledge of the defective seat. While Mr. Killingsworth is an expert in accident reconstruction and established that the accident was caused by a manufacturer’s defect, he did not establish when the defect first caused the seat to go beyond its high limit. Mr. Killingsworth stated that it was his opinion that the tethers were too long to prevent Eddie Johnson from striking the tractor cab roof, after the multiple-part seat frame assembly traveled past the upper travel pin. Mr. Killingsworth merely admitted that he had no evidence to show that Cardinal knew |7or should have known about the problem before Eddie Johnson’s accident. Mr. Killingsworth also testified that he saw no evidence that the seat had been repaired either before or since the accident. In conclusion, Mr. Killingsworth gave no opinion on the issue of what, if any, prior knowledge either Kendrick Johnson or Cardinal may have had. That testimony does not show that Eddie Johnson cannot prove that either Kendrick Johnson or Cardinal knew or should have known about the defective seat.

Thus, the only testimony that remains directly affecting the issue of prior knowledge are the competing statements of Eddie Johnson and Dwayne Cola.

It is well settled that our review of summary judgments is to be done de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. We must consider whether the summary judgment is appropriate under the circumstances of the case and whether there is a genuine or triable issue on which reasonable minds could disagree. A material fact is one that would matter in the trial on the merits.

Upon review, we are reminded that a summary judgment is not a substitute for a trial on the merits. Thus, it is an underlying principle in consideration of motions for summary judgment that no credibility determinations can be made when conflicting evidence exists. We find the trial court erred in making a credibility determination on the issue of prior knowledge, an essential element of the action. Therefore, we find the trial court erred in granting summary judgment in favor of Cardinal and Kendrick Johnson, and we vacate that judgment. We | ¿further remand this matter to the trial court for further proceedings consistent with our opinion.

The prayer for attorney’s fees and costs of appeal made in the answer to this appeal filed by Cardinal and Kendrick Johnson is hereby denied. All costs of this appeal are assessed to Cardinal and Kendrick Johnson.

JUDGMENT VACATED; MATTER REMANDED

      . Although the judgment only references Cardinal Freight Carriers Inc., the trial court granted the motion as re-urged, thus including Kendrick Johnson.

      . La. C.C.P. art. 966(B).

      . La. C.C.P. art. 966(A)(2).

      . La. C.C.P. art. 966(B)(2).

      . La. C.C. art. 2317.1.

      . Monson v. Travelers Prop. & Cas. Ins. Co., 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758.

      . Leonard v. Parish of Jefferson, 05-32 (La.App. 5 Cir. 4/26/05), 902 So.2d 502.

      . Dufrene v. Gautreau Family, LLC, 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, writs denied, 08-0629-0628 (La.5/9/08), 980 So.2d 694.

      . Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05), 912 So.2d 715, writ denied, 05-2356 (La.3/17/06), 925 So.2d 544.

      . Western v. Stoot, 05-186 (La.App. 5 Cir. 10/6/05), 916 So.2d 1195.

      . Id.

      . Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.


text:
    1001 HARIMAW COURT EAST, L.L.C. v. BLO, INC. and William O. Knowles, Jr.
    No. 10-CA-860.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      T. Gregory Schafer, Shannon R. Bourgeois, New Orleans, LA, for PlaintiffiAp-pellant.
    Robert T. Garrity, Jr., Richard E. Anderson, Attorneys at Law, Harahan, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

12Plaintiff/appellant, 1001 Harimaw Court East, L.L.C. (“Harimaw”), appeals a judgment of the Twenty-Fourth Judicial District Court that awarded it $9,928.97 in damages. We affirm.

Harimaw filed suit against defendants/appellees, BLO, Inc. (“BLO”) and William O. Knowles Jr. (“Knowles”), alleging that it entered into a commercial lease agreement with BLO, an agreement that Knowles had signed as a personal guarantor. Harimaw urged that BLO defaulted in its obligation to pay rent under the lease and, as a result, BLO was evicted from the property on February 3, 2009. Harimaw asked for a sum equal to all rentals due for the unexpired remaining term of the lease, reasonable attorney’s fees, costs, and expenses incurred to enforce collection of rents, interest, and all late charges permitted.

At trial, it was shown that the term of the lease was from November 1, 2007 through October 31, 2009. The rent payments were often late, and Harimaw agreed to accept reduced amounts with the understanding that it would be reimbursed prior to termination of the lease, when business had improved. In January 2009, BLO failed to pay the rent, and Harimaw sent a certified letter advising BLO of its default. In its second certified letter, Har-imaw advised BLO that, due to continued | -¡default, the lease was terminated, and BLO was required to vacate the premises within five days. A Notice to Vacate was posted. After receiving no response from BLO, Harimaw began eviction proceedings and obtained a judgment ordering eviction on February 8, 2009.

Following trial, the court granted the following damages:

Rent owed for January 2008-June 2008 $ 762.90

Rent owed for July 2008-December 2008 $2,988.06

Rent owed for January 2009 $3,698.01

Cost of clean-up $2,280.00

Cost of removing oil drums $ 200.00

TOTAL $9,928.97

On appeal, Harimaw asserts that, pursuant to the lease agreement, the trial court erred in not granting it liquidated damages in the form of unpaid rent from January 2009 through October 2009, or a sum equal to one year’s rent. Harimaw urges paragraph 31 of its lease that, in relevant part, reads:

Should LESSEE fail to pay any of the rentals provided for herein promptly on the day when the same shall become due and payable hereunder, and shall continue in default for a period of five (5) days after written notice thereof by LESSOR, or should LESSEE fail to comply with any of the other obligations of this Lease ... then LESSOR shall have the right, at LESSOR’S option, (a) to cancel this Lease, in which event there shall be due to LESSOR as liquidated damages, a sum equal to the amount of the guaranteed rent for one year, or alternatively at LESSOR’S option to be reimbursed all actual cost incurred in reentering, renovation and re-letting said Leased Premises; (b) to accelerate all rentals due for the unexpired remaining term of this Lease and declare same immediately due and payable; and/or to sue for the rent in intervals or as the same accrues....
The foregoing provisions are without prejudice to any remedy which might otherwise be used under the laws of Louisiana for arrears of rent or breaches of contract, or to any lien to which LESSOR may be entitled.

Louisiana law affords two remedies to a lessor if a lessee fails to pay rent as it comes due. The lessor may hold the lessee liable for the rent due for the expired term of the lease and sue to dissolve the lease and evict the lessee. In the alternative, the lessor may sue to enforce the lease and to recover both accrued 14rentals and future accelerated rentals if the lease contains an acceleration clause. These remedies are mutually exclusive. If the lessor elects to cancel the lease, the lease is terminated and the lessor is entitled to return into possession, but he forfeits the right to all future rentals. On the other hand, if the lessor elects to enforce the lease, he may obtain a money judgment against the lessee based on the terms of the lease agreement, but the lease remains in effect and the lessee retains the right of occupancy for the remainder of the term of the lease.

Once Harimaw terminated the lease and evicted BLO, it forfeited the right to any future rentals. To the extent that paragraph 31 of the lease attempted to circumvent established law, it is unenforceable. The trial court properly did not award further damages in the form of future rentals due.

Harimaw also complains the trial court erred in its award of attorney’s fees. The lease contract provides for reasonable attorney’s fees, costs, and expenses in the event that either party must employ an attorney to enforce the terms of the lease. At trial, Harimaw’s attorney submitted an itemized statement showing attorney’s fees and expenses due in the amount of $8,470, $820 of which were expenses. The trial court awarded attorney’s fees in the amount of 25 percent of the total award, $2,482.24, plus costs.

A reasonable attorney’s fee is determined by the facts of an individual case. Factors to be taken into consideration in determining the reasonableness of attorney’s fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) Uextent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.

.However, as it presides over the matter, the trial court’s inherent familiarity with the work of the attorneys, the complexity of the issues, the effort put forth, and the time invested additionally justify the significant deference afforded to the amount of attorney’s fees awarded. Here, the lease contract called for “reasonable” attorney’s fees. Although the trial court determined fees by alluding to a percentage of the award, nevertheless it is the amount granted with which we are concerned. Based on the record, and considering the appropriate factors, we find no abuse of discretion in the award of attorney’s fees in the present matter.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

      . Ken Lawler Builders, Inc. v. Delaney, 36,263 (La.App. 2 Cir. 8/14/02), 837 So.2d 1 (citing Richard v. Broussard, 495 So.2d 1291 (La.1986)). See also, Huckabay v. Red River Waterway Com'n, 27,113 (La.App. 2 Cir. 10/12/95), 663 So.2d 414.

      . Sunbelt Sec. Servs., Inc. v. Delahoussaye (La.App. 4 Cir. 1990), 572 So.2d 598.

      . Southern Marine Sales, Inc. v. Matherne, 05-181 (La.App. 5 Cir. 11/29/05), 915 So.2d 1042, writ denied, 06-0177 (La.4/24/06), 926 So.2d 545 (citing Gottsegen v. Diagnostic Imaging Serv., 95-971 (La.App. 5 Cir. 3/13/96), 672 So.2d 940).

      . State, Dep't of Trans. & Dev. v. Williamson, 597 So.2d 439, 442 (La.1992).

        . See, Singletary v. State Farm Fire & Cas. Co., 07-1347 (La.App. 3 Cir. 4/23/08), 982 So.2d 216. See also, Filson v. Windsor Court Hotel, 07-0755 (La.App. 4 Cir. 7/23/08), 990 So.2d 63 and Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App. 2 Cir. 12/8/99), 748 So.2d 594.