author: DECUIR, Judge. COOKS, J.,

text:
    Fidel UDOMEH, Individually and on Behalf of the Estate of the Minor Child, S.U. v. Sandra JOSEPH, et al.
    No. 11-342.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Rehearing Denied Nov. 23, 2011.

      Joseph R. Joy, III, Gordon J. Schoeffler, Attorneys at Law, Lafayette, LA, for Plaintiffs/Appellants, Fidel Udomeh, et al.
    Frank X. Neuner, Jr., Jennie P. Pelleg-rin, Laborde & Neuner, Lafayette, LA, for Defendant/Appellee, State of Louisiana, Department of Social Services.
    Laura Lee Putnam, Assistant Attorney General, Louisiana Department of Justice, Lafayette, LA, for Defendants/Appellees, University Medical Center-Lafayette, State of Louisiana, through LSU Health System.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

liAn alleged biological father appeals a judgment dismissing his suit for the wrongful death of his son on the basis of no right of action. For the following reasons, we affirm.

FACTS

Fidel Udomeh (Udomeh) alleges that he and Sandra Joseph (Joseph) are the biological parents of S.U. S.U. was born on June 16, 1997. Udomeh and Joseph were never married and separated from each other early in S.U.’s life. However, Udo-meh alleges that he has maintained an active role as father in his son’s life.

In February 2006, Udomeh found out that Joseph had taken S.U. to a tall building in Baton Rouge, Louisiana and attempted to commit suicide with S.U. by seeking to jump from the building. S.U. was able to persuade Joseph not to jump.

Subsequently, Joseph voluntarily committed herself for psychiatric treatment at Vermillion Hospital in Lafayette, Louisiana. A few days later she was released.

Udomeh made a formal complaint to the State of Louisiana, through Department of Social Services, via its Office of Community Services/Children, Youth, and Family Services (LDSS) seeking an investigation and protection for S.U. Udomeh alleges that LDSS responded with a form letter stating “unable to investigate the situation because it does not meet the legal and policy definition of child abuse or neglect.”

In January 2009, Joseph, who was employed by LDSS, experienced a psychotic episode at a local restaurant while S.U. was with her. The Lafayette City Police escorted Joseph to University Medical Center (UMC) for treatment. Joseph was released with S.U. in her custody.

li>Later that month, Joseph exhibited strange and erratic behavior at work. This behavior prompted her LDSS coworkers to file complaints, incident reports and to voice concern in view of Joseph’s status as caretaker for S.U.

On February 21, 2009, Joseph took S.U. to Grand Coteau, Louisiana, where she ordered him out of the vehicle. Joseph then intentionally ran over S.U. repeatedly until he was dead.

Udomeh filed a wrongful death action naming Joseph, UMC, and LDSS as defendants. Defendants LDSS and UMC filed exceptions of no right of action and/or lack of procedural capacity. The trial court sustained the exceptions of and dismissed Udomeh’ action against UMC and LDSS with prejudice.

Udomeh lodged this appeal.

DISCUSSION

At the outset, we grant the Defendants’ motion to strike references to and copies of documents and records attached to Udomeh’s brief to this court which were not introduced in the court below. These items are not a part of the record and will not be considered by this court.

Udomeh alleges that the trial court erred in granting the exception of no right of action because:

1) La.C.C. Art. 198 does not require that a father file suit to establish paternity before having a right of action for wrongful death,
2) Such a finding leads to inequitable, unjust, and otherwise absurd consequence, and
3) The court should have considered the dilatory exceptions of lack of procedural capacity instead.

We disagree. This court discussed the exception of no right of action in Way v. Andries, 02-57, p. 2 (La.App. 3 Cir. 6/5/02), 819 So.2d 465, 467-68 as follows:

The purpose of an exception of no right of action is to test whether a plaintiff has a real and actual interest in the action. In Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La.11/30/94), 646 So.2d 885, 888, the supreme court explained the exception as follows:
The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Baily [Bailey] Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. [Footnote omitted.]
The exception of no right of action addresses itself to whether the particular plaintiff falls, as a matter of law, within the general class of those to whom the law grants the cause of action being asserted in the suit. Wonycott v. Wonycott, 579 So.2d 506 (La.App. 4 Cir. 1991), citing Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir.1967). This objection is a threshold device to terminate a suit brought by one who has no interest in judicially enforcing the right asserted. Roger Boc, L.L.C. v. Weigel, 99-570 (La.App. 3 Cir. 11/3/99), 744 So.2d 731; Meche v. Arceneaux, 460 So.2d 89 (La.App. 3 Cir.1984).

Thus the issue before us is whether Udo-meh is one of the class of persons permitted to bring a wrongful death action arising from the death of S.U. The first circuit addressed this specific issue in Thomas v. Ardenwood Properties, 10-26 (La.App. 1 Cir. 6/11/10), 43 So.3d 213, 218, writ denied, 10-1629 (La.10/8/10), 46 So.3d 1271, as follows:

Evidence supporting or controverting an objection of no right of action is admissible. The party raising a peremptory exception bears the burden of proof. To prevail on a peremptory exception pleading the objection of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit.
Falcon v. Town of Berwick, 03-1861, p. 3 (La.App. 1st Cir. 6/25/04), 885 So.2d 1222, 1224 (case citations omitted).
In the instant matter, the law clearly recognizes the right of a biological father to institute a wrongful death action on behalf of his child born out of wedlock, provided he has complied with the procedural formalities that would allow him to bring such an action. See Wiggins v. State through Department of Transportation and Development, 97-0432, p. 4 (La.App. 1st Cir. 5/15/98), 712 So.2d 1006, 1009, writ not considered, 98-1652 (La.9/25/98), 726 So.2d 6.

With regard to the procedural requirements, the court said:

Filiation is the legal relationship between a child and his parent. La. C.C. art. 178. Filiation is established by proof of maternity, paternity, or adoption. La. C.C. art. 179. In the case of proof of paternity, especially in the event that the child sought to be filiated is deceased, La. C.C. art. 198 provides, in pertinent part, that “[i]n all cases, the action [to establish paternity] shall be instituted no later than one year from the day of the death of the child.” Moreover, the article expressly states that the time periods contained therein are peremptive.
Id. at 216 (alterations in the original).

In the matter before us, S.U. died on February 21, 2009. Udomeh did not file a petition to establish paternity within the peremptive period. Udomeh filed an original petition asserting his wrongful death claim on September 8, 2009, though he alleged that he was the biological parent of S.U., he made no request to be legally recognized as S.U.’s natural father. On September 10, 2010, when the defendants filed their exceptions, Udomeh had still not established filiation. Moreover, he could no longer do so, because the peremptive period had expired.

The effect of statutes of peremption is to destroy the cause of action itself, so that after the limit of time expires, the cause of action no longer exists; it is lost. Naghi v. Brener, 08-2527, p. 6 (La.6/26/09), 17 So.3d 919.

Accordingly, Udomeh can no longer establish filiation because the cause of action no longer exists. The trial court did not err in granting the exception of no right of action. Udomeh is not currently in the class of persons who are entitled to bring a wrongful death action, and he is barred by peremption from curing that defect.

| ¿DECREE

For the foregoing reasons, the Defendants’ motion to strike is granted, and the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Fidel Udomeh.

MOTION TO STRIKE GRANTED AND JUDGMENT AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully disagree with the majority opinion’s affirmation of the trial court’s judgment dismissing Mr. Udomeh’s suits surrounding the death of his son. I do not find that La.Civ.Code art. 198 mandates that a father file suit to establish paternity prior to having the right of action to pursue the wrongful death and survival actions provided by La.Civ.Code arts. 2315.1 and 2315.2.

Without question La.Civ.Code arts. 2315.1 and 2315.2 provide that the biological father is a proper party to bring a wrongful death or survival action for the loss of his child. Defendants in brief state Mr. Udomeh “put on no evidence whatsoever at the hearing regarding the familial relationship between father and child.” I disagree with that contention. The trial court specifically noted during arguments, “there’s no doubt that [Mr. Udomeh] acknowledged the child.” Thus, Mr. Udo-meh, as the biological father of S.U., which he alleged in his petition, is a proper party under La.Civ.Code arts. 2315.1 and 2315.2 to bring his tort claims. Thus, Mr. Udo-meh had a right of action under the above articles, and there is no question Mr. Udo-meh filed his wrongful death and survival claims within the one-year prescriptive period applicable to those claims. Despite this, the trial court and the majority would deny Mr. Udomeh his right to bring suit based on the language fifound in La.Civ. Code art. 198, which provides:

A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.

I note initially, that there is no mandate in Louisiana law that a father has to formally file an action to filiate a child to assert an article 2315 claim. He can acknowledge the child through support, care, and love. The trial court specifically found Mr. Udo-meh did so in this case. Louisiana Civil Code article 198, by its own language, states that “[a] man may institute an action to establish his paternity of a child at any time except as provided in this Article.” Thus, it does not mandate that a putative father file a paternity action, it just sets the time delays should he choose to do so. This reinforces my belief that it is incorrect to allow the permissive language of La.Civ.Code art. 198 to thwart the right of action provided to biological fathers to bring actions under our tort laws.

Further, in the comments following this article it states that the purpose for the provision establishing a one-year preemptive period for instituting the action following the death of a child, is so “a father who failed during a child’s life to assume his parental responsibilities should not be permitted unlimited time to institute an action to benefit from the child’s death.” In this case, Mr. Udomeh cannot be said to be a father who did not “assume his parental responsibilities.” Again, the trial court specifically stated “there’s no doubt that [Mr. Udomeh] [ .^acknowledged the child.” Thus, the purpose for the article is not furthered by the trial court’s and majority’s decision in this case. Allowing a technical provision of our state’s family law, the purpose of which is not furthered in this case, to thwart the right of action granted to the biological father by the tort laws of our State is an affront to justice and most certainly leads to absurd consequences.

The majority cites the case of Thomas v. Ardenwood Properties, 10-26 (La.App. 1 Cir. 6/11/10), 43 So.3d 213, for its position that Mr. Udomeh is required to successfully file suit under La.Civ.Code art. 198 to gain the right of action to file his tort suits. In Thomas, a putative father timely brought an action for the wrongful death of his illegitimate child who was killed in a fire. In that case, the defendants filed an exception of no right of action resulting from the putative father’s failure to establish paternity within the delays set forth in La.Civ.Code art. 198. The court in Thomas, while acknowledging the right granted by our tort laws for a biological father to bring a wrongful death action on behalf of his illegitimate son, held the father can only do so after establishing paternity through La.Civ.Code art. 198.

I respectfully disagree with the first circuit’s decision in Thomas, and instead find the case of Gibbs v. Delatte, 05-821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, which was another first circuit case, is a sounder interpretation of the interplay between the tort and family law articles at issue in this case. In Gibbs, the alleged half-siblings of their decedent half-brother, born out of wedlock, brought wrongful death and survival actions following a fatal automobile accident. As here, the defendants in Gibbs filed an exception of no right of action contending the half-siblings were not entitled to bring the wrongful death or survival actions because they did not institute a timely filiation action pursuant to former La.Civ.Code art. 209 (which dealt with a child’s action to determine paternity). The court in Gibbs held La. Civ.Code art. 209 could not override the rights given |4by La.Civ.Code arts. 2315.1 and 2315.2 to file their tort claims, provided they do so within the time delays allowed by law governing delictual actions.

Defendants attempt to distinguish Gibbs because it involved relationships between siblings rather than the parent/child relationship as here. While this distinction is true, it does not diminish the court’s finding that the inherent right provided to file suit to the class of litigants in La.Civ.Code arts. 2315.1 and 2315.2 cannot be overridden by a statute found in the family law section of the civil code.

I also am troubled by the timeline of events in this case. The death of S.U. occurred on February 21, 2009. The lawsuit was filed on September 9, 2009. On November 24, 2009, University Medical Center answered the lawsuit without raising any exceptions. On December 15, 2009, the State of Louisiana, through the Department of Social Services filed only a declinatory exception of insufficiency of process. No exception of lack of procedural capacity was filed until after one year passed from the death of S.U. Clearly, the Defendants waited for that date to pass before filing that exception. Had an exception of lack of procedural capacity been filed earlier, Mr. Udomeh could have cured the procedural defect.

I also find the interests of justice are not furthered by the majority’s decision to grant the Motion to Strike in this case. Defendants clearly were attempting to keep out evidence which Mr. Udomeh desired to present to establish he was the biological father of S.U. At the hearing on the exception, counsel for Mr. Udomeh argued that Mr. Udomeh is listed as the father of S.U. on the birth certificate, and has at all times maintained himself out to the community as S.U.’s father. It was also asserted that Mr. Udomeh provided support voluntarily to the child for years, until the mother filed for state mandated child support in 2001. Court proceedings were then held wherein it was determined Mr. Udomeh was indeed the biological father of S.U., and he was ordered to pay monthly child support. Lastly, it was noted that Mr. Udomeh was listed as the father on the death certificate. There was Lno argument from defendants at the hearing disputing any of the assertions made by Mr. Udomeh’s counsel. Instead, Defendants filed the Motion to Strike in an attempt to keep any such evidence of Mr. Udomeh’s acknowledgment of S.U. from being brought out. Given the trial judge’s statement that he had “no doubt that [Mr. Udomeh] acknowledged the child,” I believe the granting of the Motion to Strike would promote a grave injustice Defendants knowingly seek to benefit from, despite the fact that an action was instituted in which filiation was asserted within one year. The caption of Mr. Udomeh’s suit or the improper joinder of his claims or issues in his petition should not defeat his La.Civ.Code arts. 2315.1 and 2315.2 wrongful death and survival actions when the law provides an alternative to Defendants, i.e., severance of the claims by filing a dilatory exception under La.Code Civ.P. art. 926(A)(7) (improper cumulation of actions, including improper joinder of parties). None of the Defendants filed such an exception in this case. Louisiana Code of Civil Procedure article 926(A)(6) also provides that the “Lack of procedural capacity” must be raised by dilatory exception. Defendants also failed to raise this ground; and, paragraph B of this article clearly provides “[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein.” (Emphasis added). Further, Mr. Udo-meh’s attorney, like many yet to face the harsh application of La.Civ.Code art. 198 if the majority opinion stands, will potentially face a malpractice claim. This would, in my view, be a double injustice!


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    BELL FOUNDRY COMPANY, Plaintiff-Appellee v. LONNIE McCURRY’S FOUR WHEEL DRIVE CENTER, INC., T/A Skyjacker Suspensions, Defendants-Appellants.
    No. 46,553-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 5, 2011.

      Hallack Law Firm, West Monroe, LA, by William H. Hallack, Jr., Dennis W. Hallack, for Appellants.
    Shotwell, Brown & Sperry, Monroe, LA, by Clarence A. Martin, III, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   STEWART, J.

11The plaintiff, Bell Foundry Company (hereafter “Bell”), filed a petition seeking payment from the defendant, Lonny McCurry’s Four Wheel Drive, Inc., t/a Skyjacker Suspensions (hereafter “Skyjacker”), of two outstanding invoices on an open account in the amount of $23,076.72 for orders of steering knuckles, plus payment of reasonable attorney fees recoverable under La. R.S. 9:2781. Skyjacker filed a reconventional demand for damages alleging that Bell wrongfully converted its property, namely, the patterns and tooling used to make the steering knuckles. The trial court rendered a judgment in favor of Bell ordering Skyjacker to pay the amount due on the invoices. A separate judgment awarded Bell attorney fees in the amount of $9,104. After its motion for a new trial was denied, Skyjacker appealed. Bell answered to seek additional attorney fees for appellate work. Finding no error in the trial court’s judgment, we affirm and award Bell an additional $1,000 in attorney fees.

FACTS

Skyjacker is a Louisiana business that sells suspension kits, which are used to enhance four-wheel drive vehicles. Bell, a California foundry business, began working with Skyjacker in 2002 to make the steering knuckles included in the suspension kits. Steering knuckles are described in the record as being located behind the tire and used to tie the upper and lower arm of a vehicle together. During their relationship, Bell manufactured seven models of steering knuckles for Skyjacker. The steering knuckles were made to specification using patterns, also referred to as match plates, and related tooling, which Skyjacker refers to as drill jigs. 12The match plates and tooling will be referred to together as the “patterns” in this opinion. Skyjacker paid Bell to make the patterns, which remained in Bell’s possession for the purpose of making the steering knuckles.

By email on March 6, 2007, Skyjacker informed Bell that it was changing vendors for the steering knuckles and requested return of its patterns. Bell initially indicated that it would take a few days to ready the patterns for shipment. Then, in an email on April 4, 2007, Bell informed Skyjacker that its company policy prohibited release of the patterns until payment of final invoices. Skyjacker replied that its policy was not to pay final invoices until it received its patterns. In another email on April 5, 2007, Bell explained that the patterns were ready to ship on March 14, 2007, but Skyjacker had two past due invoices for steering knuckles that were delivered in February 2007. Bell informed Skyjacker that it had lien rights in accordance with Cal. Civ.Code § 3051, which allowed it to hold the patterns until the invoices are paid. The two outstanding invoices are No. 20506 dated 02/09/07 in the amount of $14,290.35 and No. 20536 dated 02/13/07 in the amount of $8,786.37. Skyjacker had received both invoices before terminating its relationship with Bell and requesting return of the patterns.

Seeking payment of $23,076.72 due on the open account plus reasonable attorney fees as permitted by La. R.S. 9:2781, Bell sued Skyjacker on August 20, 2007. Skyjacker asserted “payment and offset” as affirmative defenses in its answer. Claiming that Bell wrongfully converted its “tooling, including but not limited to Match Plates and Drill Jigs,” | sSkyjacker also filed a reconventional demand for damages. Skyjacker prayed for a judgment ordering Bell either to return its patterns or pay the value thereof.

Both parties filed motions for summary judgment, which were denied. A bench trial resulted in a judgment on August 11, 2010, in favor of Bell. The judgment stated, “This Court does not find that Bell Foundry improperly held the subject property pending payment of the invoices in question. Bell Foundry was / is within its rights to hold the patterns pending payment. The sale of same is not required.” Following the submission of an affidavit of attorney fees by counsel for Bell, the trial court rendered a separate judgment awarding $9,104 in attorney fees.

Asserting that the judgment was silent as to its reconventional demand for Bell to return its property or pay its value, Skyjacker filed a motion for a new trial. The trial court denied Skyjacker’s motion. Skyjacker then filed a suspensive appeal. Bell answered the appeal to seek additional attorney fees.

DISCUSSION

Skyjacker’s appeal includes eight assignments of error regarding the trial court’s interpretation and application of California lien law, its rejection of the affirmative defenses of compensation and setoff, its denial of the motion for a new trial, and its award of attorney fees. None have merit.

14Application and Interpretation of the California Lien Law

Skyjacker asserts that the trial court erred in its interpretation and application of the California lien law in various respects. The relevant provision is Cal. Civ.Code § 3051, which states in pertinent part:

Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safekeeping, or carriage thereof, has a special hen thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service; a person who makes, alters, or repairs any article of personal property, at the request of the owner, or legal possessor of the property, has a hen on the same for his reasonable charges for the balance due for such work done and materials furnished, and may retain possession of the same until the charges are paid; and foundry proprietors and persons conducting a foundry business, have a lien, dependent on possession, upon all patterns in their hands belonging to a customer, for the balance due them from such customers for foundry work.... [Emphasis added.]

Skyjacker contends that under this provision a workman’s labor in servicing a thing gives rise to a hen on the thing for the value of his labor. Skyjacker explains that Bell was paid for its work in making in the patterns; therefore, it has no hen on the patterns under § 3051 for the balance due on the invoices for the steering knuckles. Skyjacker cites a number of cases, including Golden State Portland Cement Co. v. Ward Motor Car Co., 185 Cal. 402, 197 P. 56 (Cal.1921), for the proposition that a hen under § 3051 “extends only to the article upon which the work is done or for which the materials are furnished, and does not extend to anything else.” However, the Golden State language is referring to that part of § 3051 providing a hen in favor of the person who “makes, alters, or repairs any article of personal property” for the balance due for such work. None of the cases cited by | .¡Skyjacker involve that part of § 3051 providing a possessory hen for foundries.

Skyjacker’s contention ignores the clear and specific language of § 3051 providing a foundry business with a hen on the customer’s patterns in its possession for the balance due for foundry work. Bell, a foundry business, used Skyjacker’s patterns to make the steering knuckles ordered by Skyjacker. While the steering knuckles were shipped to Skyjacker in Louisiana, the patterns remained with Bell in California to be used to fulfill future orders. Under § 3051, Bell’s possession of the patterns secures Skyjacker’s payment for its foundry work in making the steering knuckles. The fact the Skyjacker had paid Bell years before for making the patterns is of no relevance to its hen rights on the patterns for payment for its foundry work in making the steering knuckles.

Next, Skyjacker contends that Bell has no hen under § 3051 because it did not follow California law in enforcing the hen. Skyjacker also asserts that a suit on an open account is not a prescribed means of enforcing the lien. Bell cites California jurisprudence for the principle that a statutory hen may be enforced only as prescribed by law. White v. White, 11 Cal.App.2d 570, 54 P.2d 482 (Cal.App.3d Dist. 1936), hearing denied, 11 Cal.App.2d 570, 56 P.2d 202 (Cal.1936). Skyjacker complains that Bell has failed to comply with Cal. Civ.Code § 3052 to enforce its hen. Section 3052 provides that if the § 3051 lienholder “is not paid the amount due, and for which such hen is given, within 10 days after the same shall have become |fidue, then such henholder may proceed to sell such property....” [Emphasis added.]

Bell filed suit under La. R.S. 9:2781, which states in relevant part:

A. 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 fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.

Bell sued to collect the balance due on an open account. It did not file suit in Louisiana to enforce its lien. In fact, its petition makes no reference to any lien rights. Because this is not a suit to enforce a lien, we find no merit to Skyjacker’s argument.

Citing Cal. Civ.Code § 2882, which provides that “[n]o lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed,” Skyjacker argues that no lien exists because Bell converted its property before any lien could have arisen. To support its argument, Skyjacker asserts that it terminated its relationship with Bell on March 6, 2007, before payment was due on either invoice.

Contrary to Skyjacker’s argument, payment was due on the invoices when it ended its relationship with Skyjacker on March 6, 2007. At that time, Skyjacker had already received delivery of the steering knuckles and the two invoices. Both invoices had terms of “Net 30.” Mickey Smith, who was Skyjacker’s purchasing coordinator in 2007, testified that “Net 30” meant Skyjacker had 30 days to pay before Bell “would be wondering where there [sic] payment was.” Invoice No. 20506, which was received by Skyjacker on February 14, 2007, had a handwritten note stating, “Do not |7pay per M.S. Doesn’t want to pay until last minute b/c they have something of ours & he won’t pay until he gets it back!” Lonnie McCurry, Skyjacker’s president, testified that he made the decision not to pay Bell. Even though he had the money set aside and knew he had 30-day billing, he refused to pay until he got his patterns back. The testimony and evidence show that Skyjacker knew payment was due upon receipt of the invoices and would be overdue after 30 days. However, Skyjacker’s maneuver to get its patterns before paying the invoices was thwarted by Bell’s hen rights under California law. Because Bell had possession of the patterns, it had a lien for payment of the balance due by Skyjacker notwithstanding Skyjacker’s request for return of the patterns on March 6, 2007, before the 30-day payment period had run. Bell’s failure to return the patterns upon request did not result in a wrongful conversion of Skyjacker’s property.

Skyjacker also argues that Bell has no lien because it did not assert its lien when Skyjacker first requested return of its patterns on March 6, 2007, and because Bell referred to company policy, rather than the lien, in the email on April 4, 2007, in explaining why it had not returned the patterns. In support of this argument, Skyjacker cites Enfield v. Huffman Motor Co., 117 Cal.App.2d 800, 257 P.2d 458 (Cal.App. 1st Dist.1953), for the proposition that a lienholder, who refuses to deliver property upon proper demand without setting up his lien or who bases his refusal to deliver the property on a claim other than a lien, waives his right to claim a lien after the action is commenced.

| RSkyjacker’s argument overlooks the explanation that the refusal to deliver the property must be based on a “ground inconsistent with the lien” to amount to a waiver of the lien. Id. Skyjacker also ignores the rule that the demand for the property must be accompanied by a tender. Id. As explained in Enfield, “a tender may be excused by the conduct of the one claiming a possessory lien, such as where the claimant makes an absolute refusal to deliver the property.” Id. Here, Skyjacker’s demand for return of the patterns was not accompanied by a tender of the amount owed on the invoices. Additionally, Bell has not made an absolute refusal to deliver Skyjacker’s patterns. Rather, Bell indicated from the start that it was prepared to return the patterns and only failed to do so due to Skyjacker’s refusal to pay the outstanding invoices. Bell’s company policy of not releasing the patterns until payment of final invoices is in line with its lien rights under California law. The record does not show that Bell has acted in any way to waive its lien rights.

We find no error by the trial court in its interpretation and application of the clear language of Cal. Civ.Code § 3051 to permit Bell to retain possession of the patterns pending Skyjacker’s payment of the two outstanding invoices.

Louisiana Lien Law

Skyjacker next argues that Bell has no lien under Louisiana law. We note that Bell has not asserted lien rights under Louisiana law. And as previously stated, Bell’s suit is not one to enforce its lien. This assignment of error merits no further discussion.

| aAffirmative Defense of Compensation

Skyjacker asserts that the trial court erred in rejecting its affirmative defense of setoff and compensation and contends that it proved by a preponderance of the evidence the value of the patterns wrongfully held by Bell.

Skyjacker’s claim of setoff and compensation is premised on the wrongful conversion of its patterns by Bell. We have determined that Bell possesses the patterns pursuant to a lien under Cal. Civ. Code § 3051 and has not wrongfully converted Skyjacker’s property. Moreover, even if there were merit to Skyjacker’s conversion claim, compensation would not be available. Compensation does not take place if one of the obligations is to return a thing of which the owner has been unjustly dispossessed. La. C.C. art. 1894; Aldredge v. Moses, 595 So.2d 379 (La.App. 3d Cir.1992). Additionally, for compensation or setoff to apply, the parties must owe to each other sums of money that are liquidated and presently due. La. C.C. art. 1893; Aldredge, supra, citing American Bank v. Saxena, 553 So.2d 836 (La.1989). The record does not show that Bell’s obligation to return the patterns is presently due. Under Cal. Civ.Code § 3051, Bell is entitled to retain possession of the patterns to secure Skyjacker’s payment of the two outstanding invoices. For these reasons, we find no merit to this assignment of error.

Motion for a New Trial

Raising various arguments, Skyjacker asserts that the trial court erred in denying its motion for a new trial because its judgment was clearly | incontrary to the law and evidence. The trial court has great discretion in ruling on a motion for a new trial, and its decision will not be disturbed on appeal absent an abuse of that discretion. Morehead v. Ford Motor Co., 29,399 (La.App.2d Cir.5/21/97), 694 So.2d 650, writ denied, 97-1865 (La.11/7/97), 703 So.2d 1265.

Skyjacker again argues that Bell had no lien when it first requested return of the patterns in the March 6, 2007, email and that Bell’s failure to return the patterns upon request and its continued possession of the patterns amounts to conversion of Skyjacker’s property. For reasons already addressed, we find no merit to this argument. The record is clear that Skyjacker does not dispute the debt owed to Bell. Moreover, the trial court did not err in its application and interpretation of Cal. Civ.Code § 3051. As such, the trial court’s judgment was clearly supported by the law and the evidence presented.

Next, Skyjacker asserts that the motion for a new trial should have been granted because the trial court’s judgment was silent as to its reconventional demand. When a judgment is silent as to a claim or demand, it is presumed that the claim or demand has been denied. Action Revenue Recovery, L.L.C. v. eBusiness Group, L.L.C., 44,607 (La.App.2d Cir.8/19/09), 17 So.3d 999. Skyjacker’s reconventional demand alleged wrongful conversion of its property by Bell and requested either the return of the patterns or an award in the amount of their value. The trial court’s judgment in favor of Bell for the amount of the invoices constitutes a denial of Skyjacker’s reconventional demand. In finding that Bell was within its | T1rights to hold the patterns pending payment of the invoices, the trial court rejected the claim of conversion asserted in the reconventional demand. In the absence of wrongful conversion, no basis exists for granting Skyjacker the relief of ordering the return of the patterns or payment of their value.

Lastly, Bell complains that the motion for a new trial should be granted to avoid a miscarriage of justice, namely, that Bell is under no obligation to return its patterns upon payment of the invoices. Skyjacker asserts that it has good reason to believe Bell will not return all of its property. However, the record does not support this belief, and Skyjacker has failed to establish grounds warranting a new trial under La. C.C.P. arts. 1972 or 1973. The trial court’s judgment has not been shown to be clearly contrary to the law and the evidence, nor has it been shown that good ground exists for a new trial of this matter.

We note that Bell has repeatedly asserted that it is ready and willing to return Skyjacker’s patterns upon payment of the two invoices. In an email on April 5, 2007, Bell informed Skyjacker that the patterns were boxed and ready to ship on March 14, 2007, but that it was awaiting payment of the two invoices. Bell followed up with a letter on April 5, 2007, conveying the same information, and another letter on May 21, 2007, with attached pictures of the items ready for shipment upon payment of the invoices. Bell’s president, Cesar Cappelli-ni, stated in his deposition which was offered into evidence that Skyjacker’s match plates and tooling are packed and waiting in a warehouse to be shipped. Bell is clearly entitled to retain possession of the patterns pending Skyjacker’s payment of the | ^invoices. Bell has repeatedly expressed its readiness to return Skyjacker’s property upon payment. It appears that the only impediment to Skyjacker obtaining its property has been its refusal to recognize Bell’s lien rights and to pay the amount it owes.

Attorney Fees

In these last assignments of error, Skyjacker challenges the award of attorney fees to Bell. First, Skyjacker argues that if its claim of compensation and setoff is granted, then the amount demanded by Bell was not correct and no award is due under La. R.S. 9:2781. We have found no merit to Skyjacker’s claim of setoff and compensation, and we find no merit to this argument.

Next, Skyjacker argues that attorney fees should be awarded only for legal work done in connection with Bell’s main demand and that there should be no award of attorney fees for work done on the recon-ventional demand.

La. R.S. 9:2781(A) provides for the recovery of “reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.” Recoverable fees are limited to services incurred to collect the debt, not unrelated matters in litigation. Ballard’s Inc. v. North American Land Development Corp., 28,437 (La.App.2d Cir.6/26/96), 677 So.2d 648. The fee must be reasonable and in accordance with the Rules of Professional Responsibility, Rule 1.5. Id.

Counsel for Bell submitted an affidavit requesting attorney fees in the amount of $9,957.50. After reviewing the submission, the trial court made |13some reductions and rendered a judgment awarding $9,104 in attorney fees. We observe that Skyjacker did not dispute that it owed payment on the two invoices. Its refusal to tender payment and to recognize Bell’s lien rights led to Bell’s suit on an open account to collect the debt. In response to Bell’s suit, Skyjacker asserted affirmative defenses of setoff and compensation and a baseless reconventional demand for damages for wrongful conversion. To recover on its main demand, Bell had to defend against Skyjacker’s various claims. What started as a simple suit to collect an undisputed debt resulted in litigation involving issues of California law, the taking of at least five depositions, motions for summary judgment by both parties, a trial, and a motion for a new trial by Skyjacker. The reconventional demand was not an unrelated matter; rather, it was directly related to Bell’s efforts to collect payment on the invoices and its assertion of lien rights entitling it to hold the patterns pending payment. Having reviewed this record, we find no abuse of discretion by the trial court in awarding attorney fees in the amount of $9,104, and we find no merit to these assignments of error.

Bell has filed an answer to the appeal requesting additional attorney fees for appellate work. Additional fees may be awarded when the debtor appeals unsuccessfully. Ballard’s, supra. We find that an additional award of $1,000 is warranted.

| ^CONCLUSION

For the reasons stated, we affirm the trial court’s judgment and award Bell an additional $1,000 in attorney fees. Costs of this appeal are assessed against Skyjacker.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Madeleine BERGERON v. Brian BERGERON.
    No. CA 11-130.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      James Louis Daniels, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Brian Bergeron.
    Thomas Robert Shelton, Shelton Law Firm, Lafayette, LA, for Plaintiff/Appellant, Madeleine Bergeron.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|, The plaintiff/appellant, Madeleine C. Bergeron, appeals the trial court’s findings regarding various child support determinations in favor of the defendant/appellee, Brian A. Bergeron. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brian and Madeleine were married in January 1988 and divorced in May 2004. Of that union, six children were born. The parties have litigated various issues over the years. On April 21, 2005, the parties confected a consent judgment regarding child support for the three remaining minor children, which stated in part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that effective June 1, 2005, the child support obligation for BRIAN A. BERGERON will be refixed to One Thousand Eighty Three Dollars and 68/100 ($1083.68), in accordance with the worksheet-child support obligation attached to this Judgment and marked as Exhibit B. This amount shall remain in effect until the minor child, Matthew Bergeron, reaches the age of eighteen (18) and graduates from high school at which time the parties will agree to the modification of the child support obligation by BRIAN A. BERGERON[.]

Matthew turned eighteen in September 2006 and graduated high school in 2007. Prior to his graduation, Madeleine prepared a child support worksheet providing the child support calculation with a modified amount based on two minor children rather than three, due to Matthew’s graduation. Brian began paying the new amount of $869.99 beginning June 2007. In September 2007, one of the remaining minors, Daniel, began living with his father. Another child support worksheet was prepared reducing Brian’s payment to $482.00 per month. Daniel resumed living with his mother in June 2008, and Brian resumed paying her $869.99 per month in child support.

|2In December 2008, Madeleine filed a “Rule to Show Cause for Back Child Support Arrearages, Modification and Increase of Child Support (9:311) and Income Assignment (9:303),” essentially arguing that Brian owed $1,083.63 as agreed upon in the April 2005 Consent Judgment. She further requested an increase in child support, citing a substantial change in circumstances in that she was still supporting twenty-year-old Matthew while he attended college and resided in her home, and further alleging that Brian’s income had substantially increased. She also filed a “Request for Production of Documents” in December 2008.

In March 2009, Brian and Madeleine appeared before a hearing officer, who made various findings and recommendations. Madeleine filed an objection to the hearing officer’s recommendations, and a hearing was scheduled before the trial court. In the interim, Madeleine filed several motions to compel Brian to produce detailed financial documents, including copies of every cancelled check, deposit slip, and check registers for several accounts over a span of multiple years. In September 2009, Madeleine filed a first amending rule to show cause for child support arrearages, modification and increase of child support, and income assignment. Thereafter, Brian filed peremptory exceptions of no right and no cause of action, arguing that Madeleine had no right or cause of action to bring a claim for a child over eighteen years of age.

Following a late September 2009 hearing on the contempt motions, the trial court found Brian in contempt and ordered him to pay attorney’s fees and court costs for failing to comply with the court’s March 16, 2009 and September 18, 2009 orders, in that he failed to produce copies of every deposit slip for three different accounts.

| sOver the course of several days in March and May 2010, a hearing was held on Madeleine’s original December 2008 Rule, the objections to the hearing officer’s recommendations, contempt, and attorney’s fees and costs for the two contempt hearings in September 2009. Brian also filed a motion to strike, which was denied.

The trial court rendered extensive written reasons for judgment and made the following findings: that an extrajudicial agreement modifying the April 21, 2005 Consent Judgment existed between the parties effective June 1, 2007 modifying the award from $1,083.68 to $869.99; that no extrajudicial agreement was confected from September 1, 2007 until May 31, 2008 reducing the award when Daniel moved to his father’s house; that Brian owed $3,491.91 in arrearages; that Brian’s income was $57,186.00 per year; that Brian was owed credits for overpayment resulting in a net amount owed to Madeleine of $2,772.28; and, that Madeleine was awarded $1,875.00 in attorney’s fees and Brian will pay $350.00 in filing fees for the motion for contempt and motion to compel. The trial court declined to award any other attorney’s fees and cast each party with his or her costs for the Rule. Madeleine now appeals and assigns as error:

1.The trial court failed to consider the in globo status of the April 21, 2005 “Consent Judgment” and failed to properly apply the law as to how and when such judgments may be amended or modified.
2. The trial court manifestly erred in its determination of Brian’s current income/expenses.
3. The trial court erred in determining that there was an extrajudicial agreement between the parties modifying the April 21, 2005 Consent Judgment.
4. The trial court erred in determining the amount of arrearages Brian owed between April 21, 2005 and the trial court’s judgment of August 11, 2010.
5. The trial court erred in determining the appropriate attorney’s fees and court costs specifically in connection with the motions to compel andptwo contempt hearings, resulting in contempt judgments, made necessary by Brian’s actions because he failed and/or refused to provide complete disclosure of his financial status as required by law.
6. The trial court manifestly erred in determining that an award for attorney’s fees for all proceedings below should not be taxed to Brian pursuant to the provisions of La.R.S. 9:374.
7. The trial court erred in failing to address the facts and circumstances in the instant case as to how to properly apply the income tax dependency issue pursuant to La.R.S. 9:315.19.

MODIFICATION OF THE CONSENT JUDGMENT/ARREARAGES

We review child support determinations using the manifest error standard of review, and we will not disturb the trial court’s support order unless it committed manifest error or an abuse of discretion in its determination. State, Dep’t of Soc. Servs. v. L.T., Jr., 05-1965 (La.7/6/06), 934 So.2d 687.

In assignments of error one and three, Madeleine argues that pursuant to Chambers v. Saucier, 06-1290 (La.App. 3 Cir. 2/7/07), 949 So.2d 662, Brian could only have the child support award reduced by filing a motion with the court and being granted a judgment reducing the in globo award set forth in the April 2005 consent judgment. We disagree. We review a trial court’s factual determinations regarding whether an extrajudicial modification of a consent judgment has occurred under the manifest error standard. Cosey v. Cosey, 00-0567 (La.App. 4 Cir. 5/2/01), 785 So.2d 1051. Madeleine and Brian testified at trial.

Brian testified that Madeleine filled out the child support worksheet and told him how much he needed to pay and that he began paying her that amount. The child support worksheet was admitted into evidence. He said he paid the modified amount for two-and-a-half years based on their agreement. Regarding the second modification, Brian testified that this worksheet had been filled out by him, but that Madeleine agreed to the reduction. He admitted he never asked the court to “modify” the original consent judgment.

| .^Madeleine testified that she never agreed to a modification of the April 2005 consent decree. She admitted filling out the child support worksheet but testified she only did it because Brian had asked what the amount would be once Matthew graduated. She testified that she thought the court would have to approve the reduction before it could go into effect. She stated that she never agreed to the second reduction when Daniel left her home to live with his father. Madeleine testified that her rent had increased from $850.00 to $1,100.00 per month and that she had more expenses. She testified that she needed an increase of $350.00 from the original judgment of $1,083.68 in order to meet her current expenses.

Madeleine said that Brian paid her $869.00 per month from June 1, 2007 through December 2007; $3,048.00 for the period from January 2008 through May 2008 which amounts to $609.00 per month, and $869.99 from June 2008 through November 2008.

The trial court found in pertinent part:

This Court finds that there was an extrajudicial agreement between the parties regarding BRIAN’S support obligation for two minor children, effective June 1, 2007. MADELEINE, in her “Objection to the Hearing Officer’s Recommendation” states that she “obtained a child support worksheet and basically tracked the numbers and information from the statutory guidelines.” Under oath, BRIAN testified that “MADELEINE gave [him] the form and told him this is [my] new payment since Matthew graduated.” ...
... No evidence was presented, nor was testimony given to suggest that capacity, object or cause were missing from the parties’ agreement to modify BRIAN’S obligation. The only allegation made was that MADELEINE did not consent to the extra judicial modification of the agreement.
The parties testified that MADELEINE obtained the worksheet, filled in all the numbers and presented it to BRIAN who then began paying that amount to MADELEINE. The court finds that this was an obvious expression of consent on her part. BRIAN’S acceptance was evidenced by his immediately paying the amount assigned to him on the worksheet.
IfiFor these reasons, the Court finds that an extrajudicial agreement existed between BRIAN and MADELEINE beginning in June 2007 and no arrearages are owed for the months of June, July, and August 2007 or for the months of June-December, 2008.

The trial court further found that no extrajudicial agreement existed from September 1, 2007 through May 31, 2008.

An in globo award can be modified by agreement of the parties. Gomez v. Gomez, 609 So.2d 263 (La.App. 3 Cir.1992), Timm v. Timm, 511 So.2d 838 (La.App. 5 Cir.1987), Cosey, 785 So.2d 1051. The party who claims that an extrajudicial modification has occurred bears the burden of proving the agreement by clear and convincing evidence. Cosey, 785 So.2d 1051; Timm, 511 So.2d 838.

The trial court found that Brian proved by clear and convincing evidence that Madeleine agreed to a modification, and we find no error in that ruling. Madeleine agreed to the future modification in the August 2005 consent judgment, and she prepared the worksheet evidencing the modification. The trial court was in a superior position to assess the credibility of the witnesses, and we will not second-guess its determinations on appeal. See Gomez, 609 So.2d 263. Assignments of error one and three are without merit.

ARREARAGES

Although Madeleine’s assignment of error number four pertains to the arrearages awarded by the trial court, she fails to argue this assignment in brief. Nevertheless, we surmise she believes that arrear-ages are due based on the original $1,089.63 judgment from April 2005. The trial court found arrearages were owed for the time period of September 1, 2007 through May 31, 2008. The trial court determined the arrearages by multiplying $869.99 times nine months, which equals $7,829.91 and subtracting the amounts credited to Brian by Madeleine in her 17pleadings for that period of time ($4,438.00) leaving him with arrearages of $3,491.91.

We find no error in the trial court’s calculations based on its determination that an extrajudicial agreement was con-fected beginning June 2007 that reduced the award to $869.99. This assignment of error is without merit.

INCOME

In assignment of error two, Madeleine argues that the trial court erred in its determination of Brian’s current income/expenses. The trial court calculated Brian’s income at $162,026.39 for the twenty-four month period from December 22, 2006 to December 22, 2008 in its February 2010 judgment. However, that judgment specifically stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant in rule, Brian A. Bergeron may introduce evidence contrary/contradictory to the Court’s ruling that the earned income for the aforesaid twenty four (24) month period be set for $162,026.39[.]

Brian produced substantial evidence to rebut the presumption including that various deposits were gifts from his mother during that time period ($25,000.00 to buy a new vehicle and a cash gift of $12,135.00) and that several accounts were actually the kids’ accounts. In its reasons for judgment, the trial court listed over fifty individual transactions that it determined were not earned income. In all, it found $47,654.54 of the $162,026.39 was not earned income after considering Brian’s tax records, bank statements, and the testimony. It determined that Brian’s actual earned income was $57,186.00.

Madeleine argues at length that the trial court erred in failing to include as current income the value of Brian’s offshore lodging when he is at work and the room and board he receives because he lives with his mother. Madeleine makes the argument that the room and board at his mother’s house should be assigned a Lvalue as income because he helps his mother around the house. This argument lacks merit. In fact, the testimony revealed that Brian’s living arrangement has only benefited Madeleine by allowing Brian to have a larger disposable income in order to meet various needs of the children and his child support obligation.

Having reviewed the record, we find no error or abuse of discretion in the trial court’s determination of Brian’s income. This assignment of error is without merit.

ATTORNEY’S FEES

The vast majority of Madeleine’s brief discusses the attorney’s fees that Brian should pay. The trial court’s discretion regarding sanctions it imposes for failure to comply with its discovery orders is vast, and we will not reverse its award absent an abuse of discretion. Hutchinson v. Westport Ins. Corp., 04-1592 (La.11/8/04), 886 So.2d 438. In assignment of error five, Madeleine argues the trial court erred in the amount of attorney’s fees it awarded in connection with the motion to compel and contempt hearings. The trial court did find Brian in contempt for failing to timely produce copies of the handwritten deposits slips, even though the deposits were evidenced on the bank statements that were produced. Madeleine argues she should be awarded $14,622.70 in attorney fees. The trial court specifically found that $14,622.70 “is an unreasonable amount for one motion to compel and one motion for contempt.” The trial court cast Brian with $1,875.00 in attorney’s fees plus $350.00 in court costs for the delay in providing the copies of the handwritten deposit slips. We find no abuse of discretion in that amount, and, in fact, tend to agree with Brian that this award of |9fees is quite high in light of the relevant facts. The trial court did not abuse its discretion in failing to award Madeleine additional attorney fees.

In assignment of error six, Madeleine also argues that pursuant to La.R.S. 9:375 she should be awarded $5,000.00 in attorney’s fees. The trial court found that La.R.S, 9:375 was inapplicable to the case at hand since it only allows for an award of attorney’s fees in situations making child support or spousal support awards execu-tory. We find no error in the trial court’s ruling that the statute is inapplicable to the case at hand. Even if it does apply, we find good cause was shown that Brian should not be cast with any attorney’s fees under this statute. See Gomez, 609 So.2d 263. This assignment of error is without merit.

TAX DEPENDENCY EXEMPTION

Although Madeleine does not list this error in her assignments, this assignment numbered “V” addresses the fact that the hearing officer granted Brian the tax dependency exemption each year beginning with the 2009 tax year. The trial court did not specifically discuss the tax dependency exemption except to note that the hearing officer “granted the tax dependency exemptions to BRIAN beginning with the 2009 tax year, provided he is not in arrears. She [the hearing officer] granted Madeleine all head of household IRS tax credits.” Madeleine objected to every finding by the hearing officer, but she did not raise the tax dependency exemption issue at the hearing. Although it is difficult to discern, it | inappears Madeleine argues that she is entitled to the credit based on the April 2005 consent judgment. We disagree. Brian is entitled to the exemption pursuant to La.R.S. 9:315.18(B). This assignment of error is without merit.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff/appellant, Madeleine C. Bergeron.

AFFIRMED.

      . This case (CA 11-130) is consolidated with CA 11-131, 132, and 133.

      . We note that Madeleine worked for her attorney and paid him $25 out of every paycheck for his services.

      . We note that the trial court's judgment refers to La.R.S. 9:374 in its discussion of attorney’s fees. We presume this to be a typographical error as La.R.S. 9:374 refers to the use of the family residence. The trial court clearly intended to discuss La.R.S. 9:375 stating "Louisiana Revised Statute 9:374 governs attorney’s fees in cases concerning child support.” Madeleine concedes that the trial court's error was typographical.

      .La.R.S. 9:375(A) states:
      When the court renders judgment in an action to make executory past-due payments under a spousal or child support award, or to make executory past-due installments under an award for contributions made by a spouse to the other spouse’s education or training, it shall, except for good cause shown, award attorney's fees and costs to the prevailing party.


author: KEATY, Judge.

text:
    Dana MATTE, et al. v. IMPERIAL FIRE & CASUALTY INSURANCE CO., et al.
    No. 11-387.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Anthony C. Dupre, Attorney at Law, Ville Platte, LA, for Plaintiffs/Appellees, Dana Matte, Kristy Lafleur.
    Christopher P. Lawler, Donovan & Lawler, Metairie, LA, for Defendant/Appellant, Allstate Ins. Co.

      Karen Day White, Louisiana Municipal Association, Baton Rouge, LA, for Defendant/Appellee, City of Ville Platte.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| defendant, Allstate Insurance Company (Allstate), appeals a summary judgment in favor of its co-defendant, the City of Ville Platte (the City). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This appeal involves a motor vehicle accident that occurred on August 20, 2008, when a vehicle driven by Michael Jenkins (Jenkins) struck a vehicle driven by Dana Matte (Matte) at the intersection of La-Salle Street and MacArthur Drive in Ville Platte, Louisiana. Delinda Lafleur (Delin-da) and Kristy Lafleur (Kristy) were guest passengers in the Matte vehicle at the time of the collision. As a result of the injuries they sustained in the accident, Matte, Kristy, and Delinda (collectively referred to as plaintiffs) filed suit against Jenkins; Imperial Fire & Casualty Insurance Company, Jenkins’ automobile liability insurer; and the City. Plaintiffs later amended their petition to add Allstate as a defendant in its capacity as the alleged underin-sured motorist carrier of the plaintiffs’ employer, Anthony C. Dupre’ d/b/a Dupre’ & Watson, L.L.C.

Plaintiffs’ allegation against the City was that, at the time of the accident, the “traffic control device/stop sign” on MacArthur Drive was obstructed by foliage and caused Jenkins to enter the intersection without stopping and to strike the vehicle that plaintiffs were traveling in on LaSalle Street, the favored street with regard to the intersection. Plaintiffs claimed that the City’s failure to properly maintain its right of way and to ensure the visibility of the stop sign in that right of way amounted to gross and flagrant recklessness, carelessness, and negligence.

The City filed a motion for summary judgment asserting that there were two traffic control devices at the intersection, a stop sign and a flashing red light, that were visible and properly maintained and that plaintiffs’ injuries stemmed solely 1 ¿from Jenkins’ negligence. Plaintiffs did not oppose the motion. Allstate, however, did oppose the City’s motion, asserting that numerous material issues of fact remained precluding the City’s right to have summary judgment granted in its favor.

The motion came for hearing on October 18, 2010, and a judgment was signed on December 22, 2010, granting summary judgment in favor of the City and dismissing all claims against it with prejudice. Allstate now appeals, alleging as its sole assignment of error that the trial court committed an error of law in finding that the City bore no responsibility for the accident.

DISCUSSION

On appeal, summary judgments are reviewed d[e] novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the mov-ant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). Judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Richard v. Brasseaux, 10-409, pp. 2-3 (La.App. 3 Cir. 11/3/10), 50 So.3d 282, 285, writ denied, 10-2673 (La.1/28/11), 56 So.3d 959.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66. “The purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to [Ssee whether there is a genuine need for trial.’ ” Id. at 769 (citation omitted). The summary judgment procedure is favored and is “designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

Louisiana Revised Statutes 9:2800, entitled “Limitation of liability for public bodies,” provides, in pertinent part:

C. [N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

A motorist’s duty when approaching an intersection controlled by a flashing red light is to come to a complete stop, examine oncoming traffic, and determine whether he can safely travel through the intersection. Thomas v. Midland Risk Ins. Co., 98-1950 (La.App. 3 Cir. 5/5/99), 731 So.2d 532, writ denied, 99-1580 (La.9/24/99), 749 So.2d 634. See also La. R.S. 32:234(A)(1).

In order for the City to be held liable for plaintiffs’ damages, Allstate had to establish that it will be able to prove that: (1) the City owned or had custody of the thing that caused plaintiffs’ damages; (2) the thing was defective because of a condition that created an unreasonable risk of harm; (3) the City had actual or constructive knowledge of the defect and/or unreasonable risk of harm and failed to take corrective action within a reasonable amount of time; and (4) the defect in the thing was the cause of plaintiffs’ damages. See Fontenot v. Patterson Ins., 09-669 (La.10/20/09), 23 So.3d 259 (where motorist came to complete stop at flashing red light, but proceeded into intersection before it was safe to do so, supreme court held that motorist’s actions were a substantial cause of accident); Burnett v. Lewis, 02-20 (La.App. 4 Cir. 7/9/03), 852 So.2d 519, writs denied, 03-2264, 03-2740 (La.11/26/03), 860 So.2d 1134, 1141.

For purposes of its motion, the City admitted that the traffic control devices at the intersection where the accident occurred, i.e., the stop sign and flashing light, were in its custody and control. In addition, the City did not contest that it had actual or constructive notice of the alleged defect alleged by plaintiffs, i.e., that the stop sign on MacArthur Drive was obstructed by foliage.

Included in the body of the City’s motion were two photographs taken just after the accident occurred from what, the City claimed, would have been Jenkins’ vantage point as he approached the intersection. The City argued that the photographs showed that both the stop sign and flashing red light controlling MacArthur Drive at its intersection with LaSalle Street were visible from Jenkins’ vantage point at the time of the accident. Attached to the City’s motion were excerpts from the depositions of Matte, Delinda, and Kristy in which each identified the photographs as being accurate representations of the accident scene.

The City also attached to its motion an excerpt from Jenkins’ deposition where he identified his wrecked vehicle and the tow truck in the two photographs relied upon by the City. According to the excerpt, the weather was beautiful on the day of the accident, and Jenkins, who was a carpenter, had been admiring the local architecture as he drove. Jenkins stated that as he was traveling on MacArthur Drive, trees blocked the stop sign and hid the view of the flashing red light as he approached LaSalle Street. Nevertheless, he estimated that he saw the flashing red light approximately five seconds in advance of the intersection. Jenkins explained that it was his understanding that a flashing red light did not indicate that a driver should stop, but rather it meant to use caution and to slow down.

| sIn further support of its motion, the City submitted an affidavit from Cecil Green, the Street Commissioner for the City. There, Green stated that he was very familiar with the intersection in question and that he had never witnessed the foliage along MacArthur Drive obscure the ability of a southbound driver approaching LaSalle Street to see the flashing red light controlling the intersection. Green further stated that he had reviewed the photographs of the accident scene, and he verified that there was no foliage or other obstruction impeding a southbound driver’s view of the flashing red light on the date of the accident.

In sum, the City argued that the evidence showed that even if the stop sign was blocked by overgrowth, its condition did not present an unreasonable risk of harm and was not defective because of the functioning and clearly visible flashing red light that also controlled the intersection. The City further argued that the accident was solely caused by Jenkins’ inattentiveness and his failure to stop upon seeing the flashing red light. As such, the City requested that summary judgment be rendered and that it be dismissed from the lawsuit because Allstate would be unable to prove a defect or causation, both essential elements necessary to find the City liable under La.R.S. 9:2800.

In its opposition to the City’s motion, Allstate attached Jenkins’ entire deposition testimony which, it claimed, created genuine issues of material fact making summary judgment inappropriate. For one, Jenkins stated that he remembered there being “more blockage” of the stop sign and the flashing red light than depicted in the photographs attached to the City’s motion. According to Jenkins, tree limbs from both sides of the street blocked his view of both the stop sign and the flashing red light until “it was too late.” Allstate complained that a portion of Green’s affidavit merely represented his opinion rather than facts upon | ,;which to base a motion for summary judgment. It further argued that while Green’s affidavit showed that he had no actual knowledge of any foliage blocking the flashing red light, the question of whether the City could be found to have had actual or constructive knowledge of foliage blocking either the stop sign or the flashing red light remained unanswered.

In granting the City’s motion, the trial court remarked that it was familiar with the intersection where the accident occurred. It then declared that while the stop sign might have been somewhat shielded, Jenkins should nonetheless have seen the flashing light.

Plaintiffs’ only allegation against the City was that Jenkins’ view of the stop sign on MacArthur Drive was blocked by foliage, causing him to enter the intersection and to strike the vehicle in which they were traveling, and that the City was negligent in failing to properly maintain its right of way. Allstate did not file a cross-claim against the City to allege any further acts of negligence or fault. In its motion for summary judgment, the City admitted that it had custody of the stop sign and flashing red light and that it had notice of the allegedly defective stop sign. It then presented evidence that (1) the intersection was also controlled by a properly working flashing red light that was visible from Jenkins’ vantage point as he approached LaSalle Street and (2) Jenkins admitted that he did actually see the flashing red light five seconds before he reached the intersection, but that he incorrectly believed that he only had to use caution and slow down rather than stop.

The City convincingly pointed out that Allstate would be unable to prove that the flashing red light was defective and/or that the defective stop sign caused the accident that injured plaintiffs. Under La.Code Civ.P. art. 966(C)(2), the 17burden of proof shifted to Allstate to produce factual support that it could be able to show proof that the obscured stop sign caused plaintiffs’ injuries.

We have completed a de novo review of the evidence offered in support of and in opposition to the City’s motion for summary judgment. Although the two photographs offered by the City were taken from an angle to the right of where a driver traveling down MacArthur Drive toward LaSalle Street would have been seated in his vehicle on the roadway, the photographs clearly support the City’s argument that the flashing red light was observable from Jenkins’ vantage point. Moreover, Jenkins readily admitted to seeing the flashing red light approximately five seconds before he reached the intersection, and he acknowledged his belief that he did not have to stop at the intersection upon seeing that flashing light. Given that the law requires that a motorist confronted by an intersection controlled by a flashing red light to come to a complete stop, examine oncoming traffic, and determine whether it is safe to proceed through the intersection, which Jenkins clearly did not do, we are convinced that Jenkins’ negligence was the cause of the accident that injured plaintiffs. See Fontenot, 23 So.3d 259; Thomas, 731 So.2d 532. Because we have determined that Allstate could not be able to prove that the flashing red light was defective and that it caused the plaintiffs’ damages, we do not reach the issue of whether the City had actual or constructive knowledge of any such defect. See Fontenot, 23 So.3d 259. Under the facts presented in this matter, the trial court did not err in granting summary judgment in favor of the City and dismissing all claims against it with prejudice.

| ¿DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of the City of Ville Platte. All costs of this appeal are assessed against Allstate Insurance Company.

AFFIRMED.

      . But cf., Fontenot v. Soileau, 567 So.2d 815 (La.App. 3 Cir.), writ denied, 571 So.2d 656 (La.1990) (where motorist who ran a stop sign and struck the plaintiffs car testified that he never saw the stop sign because it was obscured by an oak trees limbs, this court affirmed the trial courts finding that the City of Ville Platte was solely at fault in causing the accident).


author: GENOVESE, Judge.

text:
    Judy DAVIS v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and the Office of Risk Management.
    No. 11-404.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plaintiff/Appellant, Judy Davis.
    James D. “Buddy” Caldwell, Attorney General, Leanne M. Broussard, Assistant Attorney General, Alexandria, LA, for Defendants/Appellees, State of Louisiana, Department of Transportation and Development and the Office of Risk Management.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ,In this workers compensation case, claimant, Judy Davis, appeals the judgment of the Office of Workers’ Compensation (OWC) granting the Exception of Res Judicata filed by her employer, State of Louisiana, Department of Transportation and Development, and the Office of Risk Management (the State). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Davis sustained three work-related accidents during the course of her employment with the State for which she received indemnity benefits. A dispute later arose prompting Ms. Davis to file a Disputed Claim for Compensation (1008) on December 16, 2004, bearing OWC docket number 04-9196, wherein she set forth that a bona-fide dispute existed with regard to the: (1) “[ejxtent and duration of disability[;(2) “[failure to pay indemnity benefits[;]” (8) “[failure to pay for medical treatment[;]” (4) “[failure to provide vocational rehabilitation^]” (5) “[f]ailure to provide treatment for fibromyalgia[;]” and (6) “[penalties and attorney fees[.]” The matter was tried on December 7, 2007. On February 11, 2008, the workers’ compensation judge (WCJ), in his oral reasons for judgment, ruled in favor of the State, finding that Ms. Davis had failed to prove her entitlement to workers’ compensation benefits, and the WCJ signed a judgment consistent therewith on April 17, 2008. Ms. Davis filed a Motion for New Trial. Following a hearing, the WCJ denied the Motion for New Trial and signed a judgment consistent therewith on July 11, 2008.

On the day of the December 7, 2007 trial, Ms. Davis filed a new 1008 bearing OWC docket number 07-09286. In this 1008, Ms. Davis asserted that a bona-fide dispute existed with regard to the: (1) payment of incorrect compensation rate; (2) failure to authorize medical treatment recommended by |2Pr. Garcia; (8) “[ejx-tent and duration of disability[(4) “[failure to pay indemnity benefits[;]” (5) “failure to pay for medical treatment^]” (6) “[f]ailure to provide vocational rehabilitation^]” (7) “[fjailure to provide treatment for fibromyalgia[;]” (8) “[penalties and attorney fees[;]” (9) “[l]egal interest^]” (10) average weekly wage; and (11) “[fjringe [b]enefits[.]” The State responded with an Exception of Res Judicata, alleging that the claims asserted in the new 1008 arose out of the same transaction or occurrence which was the subject of the April 17, 2008 judgment. The WCJ granted the State’s Exception of Res Judicata, dismissed Ms. Davis’ additional claims, and signed a judgment in accordance therewith on March 4, 2009.

Ms. Davis appealed both the April 17, 2008 judgment from the trial on the merits and the March 4, 2009 judgment granting the State’s Exception of Res Judicata. On appeal, this court affirmed the April 17, 2008 judgment from the trial on the merits, but reversed the WCJ’s grant of the State’s Exception of Res Judicata, finding that Ms. Davis’ appellate relief had not yet been exhausted as to the April 17, 2008 judgment at the time the Exception of Res Judicata was granted. Writs were denied by our supreme court. Id.; Davis v. State ex rel. Dep’t of Transp. & Dev., Office of Risk Mgmt., 09-672 (La.App. 3 Cir. 11/10/09), 27 So.3d 986, writ denied, 10-346 (La.6/4/10), 38 So.3d 302.

When Ms. Davis requested that OWC docket number 07-09286 be set for trial, the State filed another Exception of Res Judicata. Following a December 13, 1r2010 hearing, the WCJ again granted the State’s Exception of Res Judicata and dismissed OWC docket number 07-09286 with prejudice. A judgment reflecting same was signed by the WCJ from which Ms. Davis now appeals.

ISSUE

The sole issue presented by Ms. Davis for our review is: “Did the WCJ error [sic], as a matter of law, in granting [the State’s] [E]xception of [R]es [J]udicata for the second time?”

LAW AND DISCUSSION

Standard of Review

“The res judicata effect of a prior judgment is a question of law that is reviewed de novo.” Fogleman v. Meaux Surface Prot., Inc., 10-1210, p. 2 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, 1059, writ denied, 11-712 (La.5/27/11), 63 So.3d 995 (quoting Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672). Therefore, we will conduct a de novo review of the record to determine whether the WCJ was legally correct in granting the State’s Exception of Res Judicata.

Exception of Res Judicata

As noted above, this court reversed the WCJ’s initial grant of the State’s Exception of Res Judicata and did so based on the following reasons:

While [La.R.S.] 13:4231 generally addresses res judicata, workers’ compensation cases have an even more specific reference in [La.R.S.] 23:1310.8(E) which provides that “[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal[.]” Accordingly, as the initial judgment denied benefits and appellate rights had not yet been exhausted, the exception of res judicata was improperly granted. We reverse the granting of the exception of res judicata.

Davis, 27 So.3d 969, 977. However, the appellate rights of Ms. Davis as to the April 17, 2008 judgment on the merits have now been exhausted.

14The elements of res judicata set forth in La.R.S. 13:4231 are as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(8) 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.

These statutory requirements have been succinctly summarized as follows:

The peremptory exception of res judi-cata bars a subsequent judgment when “1) both cases involve the same parties; 2) the prior judgment was rendered by a court of competent jurisdiction; 3) the prior decision was a final judgment on the merits; and 4) the same cause of action is at issue in both cases.”

Zeno v. Flowers Baking Co., 10-1413, p. 6 (La.App. 3 Cir. 4/6/11), 62 So.3d 303, 307 (quoting Jones ex rel. Jones v. GEO Group, Inc., 08-1276, p. 5 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1025).

In the instant case, Ms. Davis, in brief, “concedes, obviously, that the first three pre-requisites for the application of res judicata have been met.” She argues that the fourth pre-requisite, i.e., “the same cause of action is at issue in both cases,” is absent, thereby precluding a grant of the Exception of Res Judicata. Id.

Ms. Davis argues on appeal that the issue of her entitlement to continuing indemnity benefits and medical treatment by her treating physicians, Drs. Gunderson, Dole, and Quillin was stipulated to by the State in OWC docket number 04-09196. Consequently, unlike the issues that remained in dispute and |Bthat were presented to the WCJ at the time of trial, this particular issue was not before the court and was not “actually litigated.” La.R.S. 13:4231(3). We disagree.

The record of OWC docket number 04-09196 was introduced into evidence in this matter. A review of that record reveals no stipulation by the parties as Ms. Davis contends. To the contrary, the only stipulation of record was that Ms. Davis was employed by the State. This was confirmed at the trial on December 7, 2007, when the WCJ stated for the record that “the parties stipulated to employment.” When counsel were asked if there were additional stipulations, they indicated that there were none.

The record further reveals that contrary to Ms. Davis’ assertion, the issue of her entitlement to indemnity benefits and medical treatment with Drs. Gunderson, Dole, and Quillin was actually adjudicated. The WCJ made the following statement for the record at the opening of trial:

Issues to be litigated by this Court will include: the nature and extent of the claimant’s disability; the claimant’s entitlement to weekly workers’ compensation benefits; her entitlement to medical benefits; her entitlement to vocational rehabilitation; relatedness of fibromyal-gia to her work injury; and[,] her entitlement to an award of penalties and attorney fees.

Consistent therewith, the judgment of April 17, 2008, specifically identifies “issues for consideration” at the time of trial to have included Ms. Davis’ entitlement to indemnity benefits and medical treatment and expressly provides:

The Court further finds that medical evidence demonstrating a causally related disability due to claimant’s work accident was not presented to this Court.
For the foregoing reasons:
LIT IS ORDERED ADJUDGED AND DECREED that claimant’s request for workers’ compensation benefits, as related to fibromyalgia[,] is denied;
IT FURTHER ORDERED, ADJUDGED AND DECREED that claimant’s remaining requests are denied; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this matter be and is hereby dismissed with prejudice and at plaintiffs costs.

Again, in his Written Reasons for Judgment, the WCJ stated that “[mjedical evidence demonstrating a causally related disability due to claimant’s work accident was not presented to this Court, and her requests are denied.” Moreover, the wording of the judgment was addressed at the hearing on Ms. Davis’ Motion for New Trial during which counsel sought clarification and questioned the WCJ precisely as to whether the ruling of the court included the medical treatment of Drs. Gunderson, Dole, and Quillin. The WCJ provided an explanation and made it abundantly clear that, based on the evidence, Ms. Davis was not entitled to indemnity benefits nor medical treatment, which included all medical treatment; thus, the Motion for New Trial was denied.

Based upon our review of the record, we find that there was no stipulation between the parties relative to Ms. Davis’ entitlement to continuing indemnity benefits and medical treatment with Drs. Gunderson, Dole, and Quillin. Additionally, we find that this issue was before the WCJ at the time of trial, that it was actually and properly adjudicated, and that all appellate rights have now been exhausted. Therefore, we find that the WCJ was legally correct in granting the State’s Exception of Res Judicata.

DECREE

The judgment of the Office of Workers’ Compensation granting the Exception of Res Judicata in favor of the employer, State of Louisiana, Department |7of Transportation and Development, and the Office of Risk Management is affirmed. We assess all costs of this appeal to Judy Davis.

AFFIRMED.

      . The appeals of the separate, final judgment were consolidated for dispositional purposes only by order of this court. Both appeals are discussed under Docket Number 09-228, which is an appeal of the merits of the claim and contains the decretal language for the merits of the claimant’s suit. The decree relating to the claimant's appeal of the granting of the exception of res judicata is set forth in the companion case, Judy Davis v. Louisiana Dep’t of

        Transp. & Dev., et al., 09-672 (La.App. 3 Cir. 11/10/09), 27 So.3d 986. Davis v. State ex rel. Dep’t of Transp. & Dev., Office of Risk Mgmt., 09-288, p. 2 n. 1 (La.App. 3 Cir. 11/10/09), 27 So.3d 969, 972.


text:
    Raymond HYMES, Jr. v. CONGREGATION OF the IMMACULATE CONCEPTION d/b/a St. Mary’s Catholic School.
    No. 11-449.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      John E. Morton, Morton Law LLC, Alexandria, LA, for Plaintiff/Appellant, Raymond Hymes, Jr.
    Peggy D. St. John, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellee, Congregation of the Immaculate Conception d/b/a St. Mary’s Catholic School.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_|jln this workers’ compensation case, Claimant, Raymond Hymes, Jr., appeals the workers’ compensation judgment denying his claim for workers’ compensation benefits based on his failure to prove the occurrence of an accident arising out of and in the course and scope of his employment with Defendant, Congregation of the Immaculate Conception d/b/a St. Mary’s Catholic School (St. Mary’s). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Hymes, an insulin-dependent diabetic, was employed at St. Mary’s as a custodian. After allegedly being bitten by ants while working at the school on or about June 23, 2009, Mr. Hymes sought workers’ compensation benefits from St. Mary’s. St. Mary’s denied his claim, and Mr. Hymes filed a Disputed Claim for Compensation (1008) on January 20, 2010.

With respect to the alleged June 23, 2009 incident, the 1008 set forth that “[w]hile working on the grounds of St. Mary’s Catholic School[, Mr. Hymes] stepped into a bed of fire ants. The ant bites became infected[,] causing [Mr. Hymes] to have his leg amputated.”

In its answer, St. Mary’s denied that Mr. Hymes had sustained his injury while in the course and scope of his employment. St. Mary’s alleged that “[Mr. Hymes] originally told Lisa Methvin and Debbie Norman his foot hurt because he had gotten into some ants over the preceding weekend[,] and it did not happen on school grounds.” According to St. Mary’s, Mr. Hymes’ “story remained the same until he was told he could not claim workers’ compensation because he was not hurt on the job. At that point, his story changed.”

Following a trial on September 30, 2010, the workers’ compensation judge (WCJ) took the matter under advisement. The WCJ rendered judgment on |¡>December 22, 2010, at which time oral reasons for judgment were provided. Therein, the WCJ stated that:

[B]ecause there are two varying stories given by Mr. Hymes, himself, bitten by ants over the weekend at the church, later bitten by ants at school, that at — at best, Mr. Hymes has only shown that he’s left the probability equally balanced. That’s the best the [c]ourt can say in favor of Mr. Hymes. This is not carrying a burden of proof by [a] preponderance of the evidence. This is based solely upon a determination that the [c]ourt finds ... Mr. Hymes not to be a credible witness with regard to his claim, and Mr. Hymes’ claims are denied.

The WCJ signed a judgment in accordance therewith in favor of St. Mary’s, dismissing the claims of Mr. Hymes. Mr. Hymes has appealed alleging that the WCJ erred in determining the credibility of certain witnesses. Mr. Hymes also assigns as error the WCJ’s failure to assess penalties and attorney fees against St. Mary’s for its denial of his claim for workers’ compensation benefits.

LAW AND DISCUSSION

In Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

| .«¡Louisiana Revised Statutes 23:1031(A) requires an employee seeking workers’ compensation benefits to establish that he sustained “personal injury by accident arising out of and in the course of his employment.” Louisiana Revised Statutes 23:1021(1) defines an “accident” as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” In order to secure workers’ compensation benefits, the employee must prove the existence of a work-related accident and that the accident is causally related to the complained of disability. Dousay v. Dousay Floor Covering, 07-195, 07-196 (La.App. 3 Cir. 9/12/07), 966 So.2d 677, 966 So.2d 684, writ denied, 07-2023 (La.12/7/07), 969 So.2d 639.

In Portalis v. Our Lady of Lourdes Regional Medical Center, 07-1509, pp. 4-5 (La.App. 3 Cir. 5/14/08), 984 So.2d 197, 200, writ denied, 08-1283 (La.9/19/08), 992 So.2d 926, this court explained an employee’s burden of proving the occurrence of an alleged unwitnessed, work-related accident as follows:

The claimant’s burden of proof is by a preponderance of the evidence, even if the accident is unwitnessed. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). In Bruno, 593 So.2d at 361 (citations omitted), the supreme court set forth the following criteria for cases in which proof of the accident is supported by the claimant’s testimony alone:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or easts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Mr. Hymes asserts that the WCJ erred in not finding him credible. He also argues that the trial court erred in failing to find that his testimony was corroborated by the testimony of his witness, Allen Pon-thieux. We find that the record does not support these assertions.

The dispute is whether Mr. Hymes was bitten by ants while working at St. Mary’s. During his testimony, Mr. Hymes could not definitively recall whether he was bitten by ants on either Tuesday, June 23, 2009, or Wednesday, June 24, 2009. According to Mr. Ponthieux, he saw Mr. Hymes nursing his leg on the afternoon of Wednesday, June 24, 2009. When Mr. Ponthieux inquired what was wrong, Mr. Hymes told him that he was bitten by ants while working at St. Mary’s the day before. Mr. Ponthieux claims that he advised Mr. Hymes that St. Mary’s, as his employer, was responsible for his injury since he was hurt while working at St. Mary’s. Mr. Hymes was also uncertain as to when he actually notified St. Mary’s Principal, Allen Powers. To the best of his recollection, Mr. Hymes thinks he told Mr. Powers he was bitten by ants while working at St. Mary’s some time during the day of Friday, June 26, 2009.

Lisa Methvin, the Bursar at St. Mary’s, Debbie Normand, the Director of Admissions at St. Mary’s, and Mr. Powers all disputed Mr. Hymes’ testimony. According to Ms. Normand, when Mr. Hymes showed her his ant bites, she asked him whether he was bitten by ants on the school’s property. He replied, “No.” Ms. Methvin corroborated Ms. Normand’s testimony because she overheard the conversation between Ms. Normand and Mr. Hymes. Finally, Mr. Powers testified that on either June 22, 2009, or June 23, 2009, he had a discussion with Mr. Hymes about him being bitten by ants; however, Mr. Hymes told him “[i]t happened over the weekend at church.” According to Mr. Powers, in his next conversation with 16Mr. Hymes, which was on Friday, June 26, 2009, Mr. Hymes said he was bitten by ants while working at St. Mary’s.

In the instant matter, there are clear conflicts in the testimony. We find the WCJ’s evaluations of the testimony reasonable. Likewise, we find the WCJ’s inferences of fact reasonable. Thus, we are not at liberty to disturb the WCJ’s findings.

We, therefore, find no manifest error in the conclusion of the WCJ that Mr. Hymes failed in his burden of proving the occurrence of a work-related accident. Having found that Mr. Hymes failed to prove the occurrence of a work-related accident, the remaining issue relative to penalties and attorney fees is moot and need not be addressed.

DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed in all respects. All costs of this appeal are assessed against Plaintiff/App ellant, Raymond Hymes, Jr.

AFFIRMED.