source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Byron K. TEDETON, Sr, Plaintiff-Appellant v. Patsy Jean Calhoun TEDETON, et al., Defendants-Appellees.
    No. 46,901-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 8, 2012.

      Cook, Yancey, King & Galloway, Shreveport, LA, by Bernard S. Johnson, Hudson, Potts & Bernstein, LLP, Monroe, LA, by Stephen A. North, for Appellant.
    Robert S. Tew, Gary G. Graham, Monroe, LA, for Appellees.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

bin this case, the son of the decedent sued his mother and siblings concerning the ownership of an alleged family business. The business arose as the result of a formula for soap products which the father believed was divinely inspired in 1981. For years before his death, the father worked with the son in the sale of the products. The son filed this declaratory judgment action after the death of his father and before the formal opening of a succession, claiming ownership of a corporation which owned the formula and sold the products. The trial court denied plaintiff relief and dismissed this action. The son appeals. For the following reasons, we reverse the trial court’s dismissal of the action and remand. Upon remand, the succession of the deceased father, which has now been opened, should be joined in this action, and the trial for determination of the existence of a separate business entity and its ownership shall proceed.

Facts

This declaratory judgment action was filed following a family dispute over stock ownership in a closely-held corporation. The products sold by the business were special soap products. In July 1981, Clayton Tedeton, who is now deceased, claimed that he “received” a formula from God. After receiving the formula, Clayton gathered all of the ingredients listed in the formula. He then spent several weeks creating and experimenting with the formula in order to determine its attributes. Eventually, Clayton determined that the formula created soap products. Because this was the second miracle |2and revelation which he believed to have been bestowed upon him, he named the product Miracle II.

Initially, the formula was produced in the kitchen sink and later in an old bathtub outside of Clayton’s house and the product was given away. Clayton’s family consists of his wife, Patsy, and two daughters, Deborah and Pamela, who are the appellees in this case and his son, Byron K. Tedeton, Sr. (“Kirk”), who is the appellant in this controversy. In the early 1980s, all of Clayton’s family participated in some way in the production of the soap, if only by stirring the product. Once Clayton became aware of the great attributes of Miracle II, he began to have other ideas for selling the product.

On March 11, 1982, Clayton and Kirk incorporated the business and formed Ted-co, Inc. At the time of Tedco’s incorporation, Kirk was 24 years old. All of the parties acknowledged that this corporation was created to manufacture and sell Miracle II products. In the articles of incorporation and initial report, Kirk and Clayton were both identified as incorporators, registered agents, and the initial directors. No stock was issued at this time and no by-laws were adopted. While there was no undisputed evidence presented as to how the corporation was capitalized in the early 1980s, several people testified that they lent Clayton and Kirk some money for the corporation. However, they were all repaid within a few years.

For several years, the corporation was somewhat dormant, at least financially. Yet, Miracle II was supposedly still produced by efforts of Clayton, Kirk, and family members. Conflicting testimony regarding when |3the business was first operational was presented by the parties. Patsy argues that Clayton mortgaged everything that he owned in order to start Tedco. Kirk, on the other hand, argues that Clayton mortgaged everything in order to salvage his prior businesses and that it was not until Clayton lost everything that he devoted himself tirelessly to growing Tedco as a business.

The record shows that Clayton and Patsy lost everything in 1988. As a result of their financial difficulties, Clayton and Patsy settled their foreclosure proceedings with the bank by selling all of Clayton’s prior businesses, their house, and possessions. In 1988, Patsy moved away from Monroe to live with her mother. She lived separate and apart from Clayton until 2002 when Clayton had a stroke. Their two daughters, Deborah and Pamela, also moved to live near their mother. When his wife and daughters left, Clayton moved onto property that Kirk inherited from Clayton’s mother and that served as Ted-co’s office until 2008. After moving out, Patsy applied for and received supplemental disability income (SSI). To be eligible, Patsy valued her resources at less than $2,000.

After Clayton’s financial troubles, Clayton, Kirk, and Sue (Kirk’s wife) fully committed themselves to making Tedco a success. Sue and Kirk even made a pact with Clayton that they would tirelessly devote themselves to growing the corporation for ten years. During this incubation period, Kirk and Sue ran the day-to-day operations and Clayton entrusted them with the secret Miracle II formula. In 2003, Tedco was financially successful enough to move to another location, on Well Road in West Monroe, and ^expand its headquarters. Clayton built his house on the same tract of land. He lived there until his death in 2007. While Clayton lived on the Well Road property, the deed was signed by Kirk in his capacity as president of Tedco, and the property’s ownership stood in the name of Tedco.

From the beginning, according to Kirk, Clayton did not express any interest in managing the corporation, although he listed himself as the founder and CEO of Miracle II and Tedco, Inc., on his business card, brochure, and billboards. Instead of being actively involved in Tedco’s business affairs, Clayton received a salary and traveled all over the country preaching and testifying about how he received the for-muía and the miraculous attributes of the Miracle II products.

After Clayton’s stroke, Patsy would sometimes travel with Clayton and attend these seminars. She testified that she would spend two or three nights each week with Clayton in West Monroe. Patsy testified that Tedco’s distributors would set up the seminars for Clayton. At these Miracle II outreach programs, Clayton would have Tedco’s products available for purchase. While Kirk acknowledged the “CEO” corporate title which his father claimed, Kirk asserted himself as president of Tedco and claimed Clayton did not have an ownership interest in Tedco or ever claim to have one.

The first Tedco tax returns were for 1993, 1994, and 1995. These initial tax returns were prepared, filed, and signed by Kirk, in his capacity as president. In each one Kirk stated that no one owned 50% or more of an ownership interest in the corporation. Even though he claims that he owned Rail of Tedco at that time, Kirk explained that he checked “no” under this question because under community property laws he and his wife owned the corporation. Tedco did not file another tax return for the next few years. Tedco’s next tax returns filed in 2000, 2001, and 2002 were prepared by Dale Soignier, a CPA. These were the first tax returns that stated that Kirk owned 100% of Ted-co’s stock. In addition, these tax returns listed Kirk, Sue, and Clayton as corporate officers of Tedco, Inc.

From 2003-2007, Gary Booth took over as Tedco’s CPA. The only significant change in the tax returns occurred with regard to Clayton’s salary. Clayton stopped receiving a salary and instead was paid rental payments even though he was not leasing any specific property to Tedco. Booth and Kirk testified that this was done to reduce Clayton and Tedco’s taxes. In 2006 and 2007, Clayton was no longer listed as an officer of Tedco. Instead, Byron K. Tedeton, Jr., Kirk’s son, is listed in his place. Furthermore, Booth prepared a schedule of “shareholders loans” from 2002-2007 to supplement the tax returns; this schedule identifies loans made to shareholders Kirk, Kirk Jr., Clayton, and Sue.

In 2005, the FDA opened an investigation into Tedco, Inc. due to allegations of contaminated Miracle II products. During the course of the investigation, the FDA wanted to know which parties had ownership interests in Tedco. The parties testified that the FDA tried to stop Clayton from preaching about the Miracle II products until ownership of Tedco was determined. As a result of this investigation, the corporation hired an attorney, Stephen Dean, to complete the necessary documents in order toj^bring Tedco up to date and in full compliance with corporate formalities. In an attempt to prove Tedco’s ownership, Dean created minutes of annual board meetings for the past 23 years and issued one stock certificate for 1,000 shares, the maximum amount of registered stock, to Kirk Tedeton. While the stock certificate was allegedly issued in 2005, it was dated March 15, 1982, the date of Tedco’s incorporation. This stock certificate was signed by Kirk, as President, and Sue as Secretary-Treasurer. Kirk, Sue, and Dean testified that Clayton was present when the stock certificate was issued and did not object or dispute that Kirk owned 100% of Tedco. In addition to flaws in the stock certificate’s date, all of the annual board minutes merely reiterate the same details — the election of Kirk and Sue as President and Secretary-Treasurer, respectively, and their duties as officers. After these documents were created, Dean testified that they were sent to an attorney in Washington, D.C., who was helping them resolve these matters with the FDA. Nevertheless, the law firm in D.C. did not have any record of having received any of these corporate documents.

Upon Clayton’s death, ownership of the business has become a source of conflict for this family. Thereafter, all of the remaining Tedeton family members sat down with Dean, Kirk and Sue to discuss various financial matters. Kirk took the position that he owned the corporation.

In August 2007, Patsy hired an attorney to handle her husband’s succession. As a result, information about the corporation and its shareholders was sought from Kirk. Based on threats of litigation, Kirk filed this action in October 2007 seeking a declaratory judgment that he 17owns 100% of Tedco, Inc.’s stock. He named as defendants his mother and two sisters since at that time, no formal succession proceeding for Clayton’s estate had been opened.

After a three-day trial, the trial court rendered written reasons for judgment on July 30, 2010. Of significant concern to the court was the unopened succession of Clayton and the necessity for the succession’s participation in the action. The Reasons for Judgment state:

The Court is of the opinion that the intervention in this proceeding by the succession of Clayton L. Tedeton would be the most judicially economical manner in which to address these concerns and reach a complete, proper, and just adjudication.

Nevertheless, the trial court did not attempt to exercise any power under La. C.C.P. art. 927(B) for the joinder of the succession in the action.

Regarding the substance of the dispute, the Reasons for Judgment recognized that the defendants, along with Kirk, did not dispute the need for declaratory relief, so that the respective interests or ownership of all the family members in the business could be decided. However, in one telling statement, the court’s ruling referred to the asset or object at the center of the controversy in varying terms as either, the “business enterprise,” the “business operation,” the “Miracle II operation,” or “Ted-co, Inc.” With this unclarity over the business entity at issue, the trial court then made the primary focus of its ruling the ownership not of the business itself, but the ownership of the Miracle II formula. The ruling states:

|sEven if the Court were to grant petitioner’s request and issue a declaratory judgment that he owns 100% of the stock of Tedco, Inc., as purportedly transferred to him by Clayton L. Tede-ton, such a ruling would not end the uncertainty nor would it conclude this controversy concerning Clayton L. Te-deton’s estate and the ownership of or entitlement to the Miracle II formula.
The Court noted earlier that, to a large extent, rendition of a declaratory judgment is not appropriate and that the Court exercises its discretion pursuant to Code of Civil Procedure Article 1876 and refuses, to a large extent, to render any judgment or decree because it would not completely terminate or conclude this controversy or the uncertainty surrounding it. However, with respect to one aspect of this proceeding, the Court can lay to rest any uncertainty or controversy and render a complete and just adjudication. Specifically, as noted earlier in these reasons, the Court has been presented with no evidence nor any law in support of the proposition that Clayton L. Tedeton validly transferred the ownership interest of his surviving spouse, Patsy Tedeton, in the community asset in the form of the formula which ultimately became the Miracle II product and which is the entire basis for the business operation subsequently called Tedco, Inc.

After these initial Reasons for Judgment, all parties requested that the trial court withhold formal judgment until efforts for mediation could be made. Additionally, in this interim period, Clayton’s succession was opened in the Fourth Judicial District Court as a separate proceeding. Following the unsuccessful settlement of the dispute, the parties returned to court on March 10, 2011, and received from the trial court additional supplemental reasons for judgment. In that oral ruling, the trial court first adopted its earlier written ruling. Referring specifically to the ownership of the Miracle II formula, the trial court again reiterated that (1) “[b]y no means ... could the interest of the surviving spouse have been transferred to Kirk ... ”, and (2) the Tedco corporate documents “fail to establish any valid transfer whatsoever” of the formula. The court concluded, “Clayton |<,Tedeton’s ownership interest in the Miracle II product remains an asset of his succession.”

In its final summation, the trial court stated:

In sum, the plaintiffs request for a declaratory judgment that he owns one hundred percent of the stock in Tedco is denied due to insufficient evidence presented by the plaintiff to carry his required burden of proof on that issue. Likewise, the defendant’s request that the court issue a declaratory judgment that Kirk Tedeton has zero interest in the Tedco operation is denied for the reasons expressed both in the initial reasons for judgment and in these reasons. In fact, the issue of ownership of stock in Tedco is largely irrelevant to the consideration of the remaining issue in this proceeding. Namely the ownership interest in the formula for Miracle II and the right to use same for production of any product which is in accordance with these reasons found to be a matter to be resolved by means of the rules applicable to intestate successions and community assets of the decedent in intestate successions all as governed by our jurisprudence and statutory authorities.

The later written judgment of the trial court expressing these rulings first decreed that Kirk’s action for declaratory judgment was denied. The judgment then made the following decree:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court finds that the community of ac-quets and gains existing between Clayton and Patsy Tedeton owned one hundred (100%) percent of the interest in the formula for the production of Miracle II product and one hundred (100%) percent of Clayton Tedeton’s ownership interest in Tedco, Inc. at the time of Clayton Tedeton’s death.

Kirk now appeals the judgment making two assignments of error. First, he asserts that the trial court erred in rendering a judgment which was beyond the scope of his declaratory judgment which involved only the declaration of the ownership of Tedco. Next, he argues that the trial court erred in rendering judgment despite its recognition that it could not put an end to the controversy. Finally, the relief sought by Kirk as appellant is | inmost unusual in that he does not seek a judgment declaring rights in his favor as plaintifPappellant, but merely a remand of “the case to the Fourth Judicial District Court to await the outcome of the pending Succession of Clayton Tedeton.”

Discussion

In Kirk’s original petition for declaratory judgment, he prayed to be recognized as “the sole owner of the entirety of the authorized stock in Tedco, Inc.” The trial court’s judgment simply denied Kirk’s action for this declaratory relief while at the same time recognizing that the former community property regime of Clayton and Patsy owned “one hundred (100%) percent of Clayton’s ownership interest in Tedco, Inc.” at the time of Clayton’s death. Those rulings do not clearly address who are the owners of Tedco, while, nevertheless, acknowledging the existence of a separate corporation. The “ownership interest” in Tedco of Clayton and Patsy recognized by the judgment is not stated to be all or only a portion of the stock or equity in the business. Likewise, the denial of Kirk’s request for sole ownership appears to have left open the possibility of his partial ownership. This ambiguity is further revealed in the trial court’s refusal to accept the defendants’ argument that Kirk had a “zero interest in the Tedco operation.” The trial court made it clear that ownership of Tedco was largely irrelevant. With that view by the trial court, the only clear ruling of the judgment was that the community of Clayton and Patsy solely owned the Miracle II formula so that the formula had never become an asset of the Tedco business.

| nFrom the assignments of error by Kirk, we agree that the focus or scope of the declaratory judgment which he pled concerned the ownership of a business entity or enterprise operating under the Ted-co name. If there is no separate business entity in existence which Kirk owns at least in part, the ownership of the Miracle II formula is irrelevant to the action as Kirk does not claim his personal ownership of the formula prior to the death of Clayton. Additionally, a critical implication of the trial court’s puzzling judgment is that if the Miracle II formula is not an asset of the business entity but solely the personal asset of Patsy and Clayton’s succession, the Tedco business entity is not just “largely irrelevant” but indeed worthless. The Miracle II formula is the asset which might have made Tedco a separate business entity instead of merely the personal proprietorship of Clayton.

With this situation, we will first review the only definitive portion of the judgment, that portion which recognized the personal ownership of the Miracle II formula by Mr. and Mrs. Tedeton. Our analysis will examine these questions:

(1) What type of property is the Miracle II formula;
(2) Whether the Miracle II formula was the community property of Mr. and Mrs. Tedeton; and
(3) Could Clayton transfer the Miracle II formula to a business entity?

Rights, obligations, and actions that apply to a movable thing are incorporeal movables. La. C.C. art. 473. The idea or creation of a formula is a right related to a movable thing as it comprises the list of ingredients |12that when combined in the right proportion result in a movable product. Accordingly, we find that the formula was an incorporeal movable.

Things in possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340. In this case, the Miracle II formula came to Clayton during his marriage to Patsy. As a result, the legal presumption arises that the Miracle II formula became a part of their community of acquets and gains. Additionally, one of the classifications of community property involves “property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse.” La. C.C. art. 2338.

From these principles, the Miracle II formula may be classified as an incorporeal movable property that was part of the community property regime of Mr. and Mrs. Clayton Tedeton.

Next, regarding the transfer of incorporeal movable things, the Civil Code articles on the consent to a contract and the law of sale provide guidance as follows:

Art. 1927. Consent
A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Art. 2448. Things that may be sold
All things corporeal or incorporeal, susceptible of ownership, may be the object of a contract of sale, unless the sale of a particular thing is prohibited by law.
1 iaArt. 2456. Transfer of ownership
Ownership is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.
Art. 2481. Incorporeals, method of making delivery
Delivery of incorporeal movable things incorporated into an instrument, such as stocks and bonds, takes place by negotiating such instrument to the buyer. Delivery of other incorporeal movables, such as credit rights, takes place upon the transfer of those movables.

From these provisions we do not find that an onerous transfer of ownership of the Miracle II formula required a written contract or the need for an instrument setting forth a written formula.

Regarding Clayton’s ability to transfer incorporeal movable property of the community during the marriage, our law of matrimonial regimes provides in Civil Code Article 2346 that “[e]ach spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.” A reading of the articles governing the management of community property which follow Article 2346 does not reveal to us that this incorporeal movable required the joint management action of both spouses for its disposal or transfer. One of the spouses acting alone could transfer ownership of the Miracle II formula.

An illustration of an actual transfer of community property into a family corporation occurred in the case, Succession of Geagan, 212 La. 574, 33 So.2d 118 (1947). After the husband’s death, the surviving spouse and stepson were the parties in this dispute over the community property. The wife claimed that her husband had improperly transferred community assets, 114including movable and immovable properties, with the intent to deprive her of her share of the community by the incorporation and capitalization of a family business. She sought recognition of her ownership of one-half of the properties placed into the corporation. The evidence showed that at the time of the incorporation, the assets transferred by the husband to the business were valued at $69,400 for which the husband received 694 shares of stock issued for $100 per share. Finding the corporation to have been validly and legally formed, the court ruled:

Under the facts in this case, when the deceased transferred to the corporation the property belonging to the community and received in exchange therefor shares of stock in the corporation, the value of the community of acquets and gains which existed between him and his wife was in no way diminished, because the shares of stock represented the property transferred and belonged to the community of acquets and gains existing between the parties, and the surviving spouse in community is not thereby prejudiced in any way.

Id., 33 So.2d at 123. The capitalization transaction for the corporation in Geagan was therefore recognized by the court as an onerous exchange involving community property.

Though the community asset in the present case involved an incorporeal movable property right, the Miracle II formula, the trial court’s reasons for judgment and the judgment itself failed to examine the above law and acknowledge the possibility that Clayton acting alone could transfer the formula in his capitalization of a separate business entity. This was error based upon the court’s unfounded concerns regarding the community property law and the general law pertaining to the transfer of incorporeal movables. However, since we will remand this case for further evi-dentiary proceedings, as discussed further below, we now reverse the trial court’s |1sruling that the Miracle II formula remained owned solely as the community property of Mr. and Mrs. Tedeton at the time of his death. As a procedural matter alone, we agree with Kirk’s argument on appeal that such ruling was beyond the scope of this declaratory judgment action as presented to the court. Upon remand, the central question regarding the alleged creation of a separate business entity must be answered. Any finding of a separate business entity would coincidentally determine the ownership of the Miracle II formula as the essential asset of that business.

The question of whether Clayton and Kirk and any other family member created a separate business entity and the ownership of such entity was the focus of much evidence presented to the trial court. The weakness in the incorporation documents for Tedco, Inc., particularly the lack of issuance of stock at is inception, makes the question of a business entity difficult, involving fact issues for decision. Upon remand, the following are the principles of law for corporations, joint venture partnerships, and sole proprietorships implicated by the record.

A corporation must have full and complete organization and existence as an entity, and in accordance with the law to which it owed its origin, before it could assume its franchise or enter into any kind of contract or transact any business. Ahrens & Ott Mfg. Co. v. Caire, 5 Teiss. 154, 1908 WL 1299, 5 Orleans App. 154 (La.App.Orleans 1908). If the parties comply with the corporate formalities, then, “once established, the separate nature of the corporate existence must be respected.” Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 05-2364 (La.10/15/06), 939 So.2d 01206. A presumption of corporate existence arises once a certificate of incorporation is issued by the Secretary of State, and “other irregularities shown in matters of internal administration of its affairs cannot vitiate the legal existence of the corporation.” American Snuff Co. v. Stanton, 13 La.App. 321, 127 So. 633 (La.App. 1st Cir.1930). But, “stockholders of stock corporation or members of nonstock corporation never become owners in common of corporate property.” Screwmen’s Benev. Ass’n of Louisiana v. Monteleone, 168 La. 664, 123 So. 116 (1929). Thus, “assets owned by a corporate entity are the property of that entity, and are not owned by the shareholders or partners.” McClanahan v. McClanahan, 03-1178 (La.App. 5th Cir.2/23/04), 868 So.2d 844, writ denied, 04-1175 (La.9/3/04), 882 So.2d 609.

Regarding the issuance of stock, La. R.S. 12:52 provides in pertinent part:

C. The consideration for shares issued otherwise than as stated in subsection B of this section, shall be paid in cash or in corporeal or incorporeal property, or services actually rendered to the corporation, the fair value of which is not less than the dollar amount of the consideration fixed for the shares, before the shares are issued.

La. R.S. 12:52(C); cf. Succession of Quaglino, 232 La. 870, 95 So.2d 481 (1957).

The jurisprudence has considered ownership disputes for a corporation where either stock was not issued or was not validly issued. In Fireplace Shop Inc. v. Fireplace Shop of Lafayette, Inc., 400 So.2d 702 (La.App. 1st Cir.1981), the court conducted a review of the facts after it determined a stock certificate was improperly issued. Based upon the parties’ initial verbal agreement and the way that the parties dealt with and |,, controlled the corporation, the court determined that the parties each owned one-half of the corporation. The court expressed the longstanding rule of the jurisprudence, as follows:

Although a stock certificate is prima facie evidence of corporate ownership, it is to be distinguished from actual ownership which may be determined from all the facts and circumstances of a case.

Id. at 703.

Additionally, a somewhat parallel analysis would be applicable for the consideration of whether a partnership or joint venture was created in the absence of the proper incorporation of Tedco. Unlike corporate law, parties do not have to ñle any documents with the Secretary of State in order to create as between themselves a partnership or a joint venture. “Since the essential elements of a joint venture and a partnership are the same, joint ventures are generally governed by partnership law.” Riddle v. Simmons, 40,000 (La.App.2d Cir.2/16/06), 922 So.2d 1267, writ denied, 06-0793 (La.6/2/06), 929 So.2d 1259. No formal or specific agreement is required. Generally, the relationship may be formed by an oral agreement and the existence of a joint venture may be inferred from the conduct of the parties and other circumstances. Id.

The partnership is created by a contract between two or more persons to combine their efforts or resources in determined proportions. La. C.C. art. 2801. There are no hard and fast rules in making the determination of whether a partnership exists and each ease must be considered on its own facts. Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989). Importantly, Louisiana law provides that each partner participates equally in |18profits, commercial benefits, and losses of the partnership, unless the partners have agreed otherwise. La. C.C. art. 2803.

Finally, in the absence of the creation of a corporation, partnership, or joint venture in this case, a sole proprietorship arising from Clayton’s initial revelation and ownership of the formula might be determined. A sole proprietorship is not a legal entity, but merely a designation assigned to a manner of doing business by an individual; while the individual involved in the sole proprietorship may consider the business to be separate and distinct from his/her person, there exists no legal distinction between the individual and the business. Robinson v. Heard, 01-1697 (La.2/26/02), 809 So.2d 943.

With these principles, the trial court shall determine on remand whether Clayton created a separate business entity for the sale of Miracle II products, and if so, the ownership of that business entity at the time of his death.

Finally, as an additional peremptory ground for our remand of this matter, we find that the Succession of Clayton Tede-ton should be joined as a party in this action. La. C.C.P. art. 927. As plaintiff, Kirk shall amend his petition pursuant to La. C.C.P. art. 934 within 30 days of the finality of this judgment to join the succession in the proceeding. The lengthy trial which has already occurred in this matter may then proceed with the allowance for additional evidence by all parties.

11 ^Conclusion

The trial court’s judgment is reversed. The peremptory exception of nonjoinder of the Succession of Clayton Tedeton is recognized by this court. The case is remanded with the order for plaintiff to amend his petition to include the Succession of Clayton Tedeton within 30 days and for the trial of the declaratory action to proceed consistent with this opinion. Costs of appeal are assessed equally to the parties.

REVERSED; PEREMPTORY EXCEPTION GRANTED; ORDER RENDERED; AND CASE REMANDED WITH INSTRUCTIONS.

      . La. C.C.P. art. 927(B) provides in pertinent part: The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.

      . Regardless of this lack of the necessity for a writing, La. C.C. art. 1846 does address proof of an oral contracts over $500.


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

text:
    Laura EAST C/W Susan Brown v. OFFICE OF INSPECTOR GENERAL.
    No. 2011-CA-0572.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.
    Scott R. Bickford, Lawrence J. Centola, III, Martzell & Bickford, A.P.C., New Orleans, LA, for Laura East and Susan Brown.
    Michael L. Fantaci, LeBlanc Butler, LLC, Metairie, LA, for Office of Inspector General.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

hThe plaintiffs appeal the ruling of the Civil Service Commission, which held that their terminations were due to misconduct as opposed to the participation in alleged protected activity. We find that the Civil Service Commission adjudged the credibility of the witness’ testimony, did not commit manifest error in finding that the plaintiffs were fired for misconduct, and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Laura East and Susan Brown (“Plaintiffs”) were in the probationary period of their employment as forensic auditors in the Office of Inspector General (“OIG”) and prepared the Assessment of the Transition of the New Orleans Office of Inspector General from Inspector General Robert Cerasoli to Interim Inspector General Leonard Odom on January 30, 2009 (“Assessment”). The Plaintiffs allege that they were scheduled to meet with someone from the Louisiana Legislative Auditor’s office (“LLA”) on September 9, 2009, regarding the Assessment, but were prevented from attending the meeting by Inspector General Ed Quatrevaux (“IG”). On September 10, 2009, the Plaintiffs submitted a memorandum to Hugh Fox, the chief of criminal investigations at the OIG, which stated that they were denied access to the meeting and the LLA by the IG. The 12Plaintiffs’ termination was authorized by the IG on September 23, 2009, after he read the memorandum containing these allegations.

The Plaintiffs appealed their terminations. The OIG filed a motion for summary disposition of appeal because, as probationary employees, the Plaintiffs had no right to appeal unless they were engaged in protected activity. The motion failed and the appeals proceeded before a hearing examiner.

The hearing examiner found that the Plaintiffs “were terminated because of their misconduct” because “the clear implication derived” from the memorandum to Mr. Fox was that the IG “was impeding an independent investigation by the Louisiana Legislative Auditor, which could be interpreted by the reader of the memorandum as obstruction of justice.” The hearing examiner further expounded that “[tjhese are very serious and reckless charges that carry no protection against disciplinary action regardless of any previous protected activity.”

The Plaintiffs appealed their termination to the Civil Service Commission (“CSC”) alleging that their terminations were predicated upon the preparation of the Assessment and not their alleged misconduct. The CSC stated that the Plaintiffs bore the burden of proving that “they engaged in protected activities as defined by Rule II, Section 10.1, and that because of their protected activities the Appointing Authority retaliated by taking disciplinary action.” After analysis, the CSC concluded that “the record supports a conclusion that the Appellants were terminated because of unprotected concerted activities; specifically, their reckless unsupported accusations against their newly appointed superior in the September 9, 2010 memorandum.” In conclusion, the CSC held that:

The Appellants creation and submission of the ^assessment was protected. However, they were not terminated because of their protected activity. The Appellants were terminated because of misconduct. The clear implication derived from the September 10, 2009 memorandum to the Chief of Criminal Investigations was that Mr. Quatrevaux was impeding an independent investigation by the Louisiana Legislative Auditor, which could be interpreted by the reader of the memorandum as obstruction of justice. These are very serious and reckless charges that carry no protection against disciplinary action regardless of any previous protected activity.

The CSC dismissed the Plaintiffs appeals. The Plaintiffs appeals to this Court followed.

STANDARD OF REVIEW

Appellate courts review CSC factual findings using the “manifest error or clearly erroneous standard.” Stern v. New Orleans City Planning Comm’n, 03-0817, p. 6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699. Legal issues are reviewed giving no special weight to the trial courts findings. Stern, 03-0817, p. 6, 859 So.2d at 700. Mixed questions of law and fact are reviewed with great deference and appellate courts utilize the manifest error standard of review. Id. We must ascertain whether the factfinder’s conclusions were reasonable with deference to the factfinder’s evaluation of the credibility of the witnesses and resolutions of conflicting testimony. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

“The burden of proof on appeal, as to the facts, shall be on the appointing authority, except in cases of alleged discrimination, where the burden shall be on the appellant.” Goins v. Dep’t of Police, 570 So.2d 93, 94 (La.App. 4th Cir.1990).

I ALLEGED PROTECTED ACTIVITY

The Plaintiffs assert that the memorandum, which alleged that the IG denied them access to the meeting with the LLA, constituted protected activity in furtherance of the Assessment and that the CSC erred by finding that they were fired for misconduct. The memorandum stated, in part, that:

The state of the investigation/audit conducted by the Legislative Auditor was scheduled for September 9, 2009 at 9:30 am at the ÑOLA OIG office. The meeting was to include representatives of the Legislative Auditor, Interim Inspector General Odom and Forensic Auditors Laura East and Suzi Brown.
On September 4, 2009 newly appointed Inspector General Edouard Quatrevaux was notified by First Assistant in charge of Investigations Len Odom of the meeting, the contents of the unpublished report, the investigation/audit by the Legislative Auditor and of the confidential nature of the situation. On September 9, 2009 representatives of the Legislative Auditor showed up for the meeting and were denied access to Forensic Auditors East and Brown by IG Quatre-vaux.

Rule II, § 10.1 of the Rules of the Civil Service Commission of the City of New Orleans (“Rules”) provides that:

No employee shall be subjected to discipline or discriminatory treatment by an appointing authority because he or she gives information, testimony or evidence in a prudent manner to appropriate authorities concerning conduct prohibited by law or regulation which he or she reasonably believes to have been engaged in by any person(s). If an employee incurs such treatment despite this admonition, he or she shall have a right of appeal to this Commission.

The CSC found that the creation and submission of the Assessment constituted protected activity, but that the memorandum included comments, which could be construed as accusing the IG of obstructing justice. We agree with the CSC.

At the hearing, Ms. Brown testified that the Assessment was initiated by Len 1 sOdom, an interim inspector general, originally supposed to be conducted under the generally accepted government auditing standards (“GAGAS”), but the lack of records and audits prevented the usage of GAGAS. Ms. Brown stated that Mr. Odom allegedly instructed the Plaintiffs to present the Assessment, which alleged waste, abuse, and mismanagement, to the state inspector and the state ethics review board. Ms. Brown testified that she and Ms. East met with the state inspector on August 28, 2009, to give him a copy of Assessment and discuss its contents. All three of the above parties then met with Daniel Daigle, the director of compliance audit for the LLA’s office later that day. Ms. Brown expressed that Mr. Daigle believed that the IG’s office should be placed under investigation. Ms. Brown further testified that she did not meet with the LLA on September 9, 2009. Finally, Ms. Brown stated that the purpose of the LLA’s meeting on September 9, 2009, “was to come and meet with us related to the investigation, and they were also going to meet with the Inspector General or interim whoever was in charge of the office at that point in time.” Therefore, she concluded that they were denied access to the LLA.

Ms. East testified that she discovered possible violations of laws and regulations when preparing the Assessment. Like, Ms. Brown, Ms. East stated that the meeting on September 9, 2009, was supposed to include the Plaintiffs and the IG.

Jerry Carlyle, the deputy inspector general for audit and review who supervised both Plaintiffs for a time during their employment, testified that he found that the Plaintiffs’ were competent and professional with strong work ethics. Further, he stated that he informed the IG that the Plaintiffs’ terminations were |fiinappropriate.

Conversely, the IG testified that it “didn’t occur” to him to invite the Plaintiffs to his meeting with the LLA on September 9, 2009. Further, he stated that the person from the LLA’s office, Mr. Daigle, never requested the presence of the Plaintiffs during the September 9, 2009 meeting. The IG testified that the Plaintiffs’ firing was not related to the Assessment. Dave Westerling, the acting inspector general while the IG was on temporary leave, allegedly read the accusatory memorandum to the IG on September 22, 2009. Above all, the IG stated that the Plaintiffs’ claim, in the September 10, 2009 memorandum, that the LLA was “denied access to Forensic Auditors” by the IG was a false statement that the assertions were “detrimental to” his “reputation.” Lastly, the IG testified that the memorandum “was supreme” in deciding to terminate the Plaintiffs because “voracity [sic] is everything in an auditor.” He then instructed Mr. Westerling to terminate the Plaintiffs on September 23, 2009.

The telephone deposition of Mr. Daigle was entered into the record in lieu of live testimony. Mr. Daigle was the director of compliance audit for the LLA and testified that the purpose of the September 9, 2009 meeting was to introduce himself to the new inspector general as a courtesy. Further, Mr. Daigle stated that he never requested the Plaintiffs’ presence at the meeting and that he was never denied access to the Plaintiffs. Lastly, he did not seek to gain access to the Plaintiffs after their termination.

Mr. Odom’s deposition was also entered into the record in lieu of live testimony. Mr. Odom testified that he never had an issue with the Plaintiffs’ work product, work ethics, or commitment to their jobs. Mr. Odom initiated the Assessment and stated that it was intended to “get the inventory and assess where |7we were.” Further, Mr. Odom commented that the Assessment was like record keeping and was not designed as an audit. He never supervised the Plaintiffs and has no knowledge of the IG’s office after resigning.

Neely Moody, who held the positions of director of criminal investigations, assistant inspector general in charge of audit and review, and independent police monitor, also testified via deposition in lieu of live testimony. Mr. Moody testified that he gave the Plaintiffs guidance to perform an assessment, which was not a “full blown audit.”

Considering the juxtaposed testimony in the record before the CSC, the factfinder in the case sub judice, we do not find that the CSC committed manifest error and a reasonable factual basis exists for its conclusion. The Plaintiffs testified that they were supposed to attend the meeting on September 9, 2009, whilst the IG testified that he never thought of including them and that Mr. Daigle never requested their presence. In fact, Mr. Daigle testified that he never requested the Plaintiffs’ attendance and believed that the meeting was intended for his own introductory purposes with the new IG. Given the conflicting testimony, we cannot find that the CSC was manifestly erroneous in concluding that the Plaintiffs were fired for misconduct. Alleging that they were denied access to a meeting that testimony reflects the Plaintiffs were not invited to casts serious aspersions against their employer, the IG. Thus, given that the Plaintiffs were fired for this misconduct and that they were not invited to the meeting, the memorandum cannot be considered as protected activity or as written in furtherance of the Assessment. Therefore, we find that the CSC did not err and affirm.

DECREE

For the above mentioned reasons, we find that the CSC aptly determined the |scredibility of the witness’ testimony in finding that the Plaintiffs were terminated for misconduct. Therefore, the CSC did not commit manifest error and we affirm.

AFFIRMED

BONIN, J., dissents with reasons.

BONIN, J.,

dissenting.

hi respectfully dissent. I would vacate the Commission’s decision and remand to the Commission for further proceedings.

The majority decides this appeal by upholding the Commission’s finding of fact, but the Commission’s error is one of law. Ms. East and Ms. Brown were found to have been properly terminated for misconduct based on the factual finding that their assertions were objectively incorrect or factually inaccurate; however, the proper analysis questions whether the employees’ allegations were reasonable, not whether the allegations ultimately prove to be true.

The Commission’s decision is subject to appellate review on any question of law or fact. La. Const, art. X, § 12(B). To accommodate the varying levels of deference granted to the Commission’s decisions regarding law and fact, the review function of an appellate court must be multifaceted. “In reviewing the commission’s procedural decisions and interpretations of law the court performs its traditional plenary functions of insuring procedural rectitude and reviewing questions of law. Walters v. Dep’t of Police of City of New Orleans, 454 So.2d 106, 113 (La.1984) (emphasis added). “Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its |2review function with more circumspection.” Id. at 113-114. “In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous.” Id. at 114.

I agree that we should defer to the Commission’s findings of fact. There is no factual question that the two probationary-employees were terminated because of the content of their intra-office memorandum in which they declared that the recently appointed Inspector General, Mr. Quatre-vaux, denied them access to a meeting with a representative of the Legislative Auditor’s office. And the employees’ memorandum clearly suggests that Mr. Quatrevaux was engaging in a cover-up of their earlier reported, but unpublished, findings concerning the transition from the first inspector general to his interim replacement, who was one of Mr. Quatre-vaux’s predecessors. But the Commission also found as a fact that “The Appellants were under the impression that the purpose of the meeting was for the Legislative Auditor, Dan Daigle, to meet with them and Mr. Odom to gather additional information.” Clearly the reasonableness of their belief in the accusation is in play.

But the Inspector General, as the appointing authority, the Commission’s hearing officer, the Commission itself, and now the majority focus on whether the employees’ accusation was objectively true and, concluding that it was not, determined that the employees were fired for cause. The test in this case, however, is not whether Mr. Quatrevaux actually engaged in “conduct prohibited by law or regulation” but whether the employee “reasonably believes” that Mr. Quatrevaux engaged in such prohibited conduct. See Rule II, § 10.1 of the Rules of the Civil Service Commission of the City of New Orleans. Nowhere in its decision does the Commission address or make a finding regarding the reasonableness of these employees’ belief that Mr. Quatrevaux was engaged in prohibited conduct. Thus, the Commission used the incorrect legal standard by | ^basing its decision on the factual accuracy of Ms. East and Ms. Brown’s allegation instead of the reasonableness of their allegation. Accordingly, the Commission’s decision, which does not answer the correct legal question, is not entitled to our deference. See Walters, at 113. The Commission acts arbitrarily, capriciously and without probable cause when its decision is not based on legal cause. Walters, at 114.

Unless and until the Commission determines the “reasonableness” of the employees’ belief, these employees cannot be subjected to discipline for reporting Mr. Quatrevaux’s actions. Section 10.1 wisely does not require absolute truth or factual accuracy of an allegation to protect an employee in the civil service of the City of New Orleans from retaliation through discipline or discriminatory treatment, and I will not dwell on the irony of the Inspector General’s not insisting on protecting employees who have acted on reasonable belief in reporting perceived misconduct.

I, therefore, would vacate the decision which did not apply the controlling law and remand for a factual determination of whether the employees’ belief in their accusation was a “reasonable” one. Accordingly, I dissent.

      . Mr. Fox is no longer the chief of criminal investigations at the OIG.

      . This allegation was not brought before the CSC.


author: GREMILLION, Judge.

text:
    Sherry DeBARGE v. LFI LAKE CHARLES.
    No. 11-1208.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Ap-pellee, Sherry DeBarge.
    Kirk L. Landry, Keogh, Cox & Wilson, Baton Rouge, LA, for Defendant/Appellant, LFI Lake Charles.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

| ]In this workers’ compensation matter, judgment was rendered in favor of the employee on the issues of weekly indemnity benefits and medical expenses. However, the judgment did not specify against whom it was rendered, the amount of weekly indemnity awarded, the amount of medical benefits awarded, or what amounts were taxed as costs of court. “Labor Finders,” “LFI of Lake Charles,” and ACE Insurance Company (“LFI”) lodged this appeal, arguing that the judgment is defective in the above particulars and other aspects of the judgment, assuming it is a valid judgment. For the reasons that follow, we dismiss the appeal and remand the matter to the workers’ compensation judge (WCJ) with instructions to enter a definite judgment.

FACTS

On October 30, 2006, Sherry DeBarge, in proper person, filed a Disputed Claim for Compensation (Office of Workers’ Compensation Form 1008, hereafter “1008”) in which she alleged that she was injured on November 1, 2005, when she became entangled in some plastic and fell, hitting her head. On December 1, 2006, counsel formally enrolled for “Employer, LFI OF LAKE CHARLES.” That day, the WCJ signed an order enrolling counsel for “Employer, LFI OF LAKE CHARLES.” On February 15, 2007, an answer was filed on behalf of “the Employer, Labor Finders, named as LFI of Lake Charles.” Later pleadings were filed in the name of “Employer, LFI of Lake Charles.” The identity of DeBarge’s employer was never otherwise raised as an issue.

DeBarge was treated for problems with her neck for which her orthopedic surgeon, Dr. Clark Gunderson, recommended a surgery to remove disc fragments and fuse her vertebral end plates at the C5-6 level. LFI initially sent DeBarge to an orthopedic surgeon, Dr. James Perry, who recommended conservative treatment. |2The WCJ appointed a neurosurgeon, Dr. Thomas Bertuccini, to conduct an independent evaluation. He initially recommended conservative treatment and that a myelogram and post-myelogram CT scan be performed. These studies were performed on August 20, 2008.

Dr. Gunderson later opined that De-Barge needed surgery at the C5- and C4-5 levels and communicated his surgical recommendations to Ms. Karen Young of ACE Insurance on September 4, 2008. On January 15, 2009, DeBarge was operated on by Dr. Gunderson at both the C5-6 and the C4-5 levels despite LFI’s failure to authorize the surgery. On February 28, 2009, his review of the myelogram and CT scan of DeBarge’s neck convinced Dr. Ber-tuecini to concur with Dr. Gunderson’s surgical recommendation as to an anterior discectomy, but only at the C5-6 level. Dr. Bertuccini thought that the chance that DeBarge would need plating and fusion was small, “but that is a possibility depending on intraoperative findings.” On May 15, 2009, Ms. Young wrote Dr. Gun-derson to advise that she was unable to authorize the surgery he recommended because Dr. Bertuccini had only recommended surgery at the C5-6 level. It appears that Ms. Young was unaware that DeBarge’s surgery had been performed four months before.

On August 17, 2009, Ms. Young informed Dr. Gunderson that all further treatment of DeBarge was denied.

The salient issues for trial were De-Barge’s entitlement to weekly indemnity and medical benefits, penalties and attorney fees sought against LFI, and LFI’s contention that DeBarge was entitled to no benefits because she falsified answers to its pre-employment questionnaire by denying previous spinal impairments. The j^matter came for trial before the WCJ. The WCJ found that DeBarge had been injured in 2005. Dr. Gunderson recommended that she have surgery in September 2007, and that DeBarge arrived at the point where she could simply not tolerate her pain. So she shouldered the cost of the surgery herself.

The WCJ also found virtually no support for LFI’s claim that DeBarge had forfeited her benefits under La.R.S. 23:1208.1 by denying the existence of previous neck problems dating back to 1996 on her pre-employment medical questionnaire. That DeBarge had denied those problems was not questioned; that LFI had failed to demonstrate all elements necessary to warrant forfeiture of her benefits was. An untrue or inaccurate statement does not equate to fraud, the WCJ reasoned, and in the nine years between DeBarge’s neck complaints in 1996 and the subject accident in 2005, she had been employed performing strenuous labor.

The ruling of the trial court was:

For reasons why I have detailed in some detail, the court finds as follows: Sherry DeBarge is entitled to workers’ compensation indemnity benefits as a result of her November 1, 2005, work accident retroactive to the date of the accident. As a consequence of the accident, she is entitled to all reasonable medical treatment including all medical bills and out of pocket expenses related to the accident. [Bjecause the defendant unreasonably terminated benefits on August 17th, 2009, a penalty of $8,000.00 is assessed.
Given the overall conduct of the defendant in the handling, or mishandling of this matter, the request by claimant’s counsel for $14,000.00 in attorney’s fees is awarded.

DeBarge’s counsel was to prepare the judgment, which was signed on June 6, 2011. The judgment identified counsel present at the time of the ruling and the parties they represented, and provided in pertinent part:

IT IS ADJUDGED, ORDERED, AND DECREED as follows:
1.Claimant Sherry Debarge is entitled to and employer is responsible for, paying Temporary Total Disability benefits from the date of the work-accident November 1, 2005.
[42. Claimant Sherry Debarge is entitled to and employer is responsible for, all reasonable medical benefits and treatment as a result of the November 1, 2005 work accident, including payment of all surgical expenses related to the surgery performed by Dr. Clark Gunderson, out-of-pocket expenses and all related medical expenses.
3. The termination of medical benefits was arbitrary and capricious and done without probable cause, thus entitling claimant to an award of $8,000.00 in penalties and an award of $14,000.00 in attorney fees.

LFI then perfected this appeal.

ASSIGNMENTS OF ERROR

LFI asserts the following assignments of error:

1. The workers’ compensation judge committed legal error in rendering judgment in these proceedings, where the judgment is utterly lacking in decretal language and is not factually supportable.
2. The judgment of the Workers’ Compensation Court constitutes legal error to the extent that it awards more than $750.00 for the surgery performed by Dr. Gunderson.
3. The workers’ compensation judge committed legal error in failing to deny claimant’s entitlement to benefits as a result of her violation of La.R.S. 23:1208.1.
4. The workers’ compensation judge committed manifest error in awarding penalties and attorney’s fees where the claim was reasonably controverted.

DeBarge answered the appeal and seeks additional attorney fees for work done by her counsel on appeal.

ANALYSIS

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La.Code Civ.P. art. 1841. A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 02-0045, 02-0046 (La.App. 1 Cir. 12/20/02), 836 So.2d 364. In Laird, the judgment of a WCJ failed to identify the names of the parties. The court of appeal stated, “These determinations should be evident from the language of a judgment 1 Bwithout reference to other documents in the record.” Id. at 366. The appeal was dismissed for lack of jurisdiction in the court of appeal. See La.Code Civ.P. art. 2083.

In Page v. Benson, 11-936 (La.App. 3 Cir. 10/5/11), 74 So.3d 313, this court dismissed an appeal of a partial judgment that had not been designated as immediately appealable and remanded to the trial court for reformation of the judgment. The judgment at issue provided, “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants’ Motion for Partial Summary Judgment is hereby GRANTED.” The motion for summary judgment at issue was not for partial summary judgment, but summary judgment. The prayer for relief in the motion prayed that several causes of action be dismissed, but the judgment seemingly resulted in the complete dismissal of several parties. The fact that the court of appeal had to refer with particular difficulty to the motion for summary judgment to decipher the nature of the ruling rendered the judgment fatally defective.

DeBarge argues that the identity of the parties was never an issue in the instant case, and we agree. The judgment specifically states that the trial was held on March 2, 2011, and that present at trial was counsel for “employer, LFI of Lake Charles.” Thus, the party cast in judgment is clearly identified.

The identity of the parties is not the only element necessary for a valid judgment. The WCJ awarded temporary total disability benefits. The amount of those benefits is not specified. The judgment also failed to specify the amount of medical benefits awarded, which is a fact the court finds particularly troubling in light of LFI’s second assignment of error regarding whether any party is liable for Dr. Gunderson’s charges. The judgment fails to specify what amounts other than clerk’s charges are being taxed as costs of court. An observer could not determine |fiLFI’s liability to DeBarge by looking to the judgment. This renders the judgment defective and deprives us of jurisdiction, without regard to the other elements of the award.

CONCLUSION

A workers’ compensation judgment, to be definite, must specify the amount of weekly indemnity benefits awarded. This judgment does not. We dismiss the appeal and remand the matter to the Workers’ Compensation Judge with instructions to enter a definite judgment. Costs of this appeal are taxed equally to plaintiff/appel-lee, Sherry DeBarge and defendant/appellant, LFI of Lake Charles.

DISMISSED AND REMANDED.

      . Ms. Young is the adjuster who handled De-Barge's case for ACE Insurance Company, LFI’s workers’ compensation carrier.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. James H. SHELL, Appellant.
    No. 46,983-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2012.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Britney A. Green, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW & MOORE, JJ.
   DREW, J.

11 James H. Shell was prosecuted for felony theft of property valued at $500 or more. La. R.S. 14:67(B)(1). In an apparent compromise verdict, the jury convicted him for committing the crime of theft of property valued at more than $300 but less than $500. La. R.S. 14:67(B)(2).

The defendant was sentenced to the maximum two years at hard labor, all of which was suspended. He was placed on active, supervised probation. There was no fine assessed and all probation fees were waived.

Among the conditions of his five years of probation was a requirement that he pay $20,000 in restitution to the church he victimized. We affirm the conviction, the sentence, and the amount of restitution, but with instructions.

FACTS

On March 18, 2008, members of the Mt. Sinai Baptist Church in DeSoto Parish entered into a contract with Shell for him to build a fellowship hall for a total price of $43,680. Less than two months into the project, just after receiving the fourth installment of $9,850, he took his tools and left the project site, never returning to complete the project. After unsuccessful attempts to locate the defendant, the church members requested that criminal charges be filed against him. An arrest warrant was issued in the summer of 2003. The defendant could not be found and the case lay dormant for years, until Arkansas authorities discovered the |2warrant, and the defendant was returned to this state to face similar charges in Webster Parish.

Sheppard Fields, treasurer of Mt. Sinai Baptist Church, testified that:

• he first came into contact with the defendant in early 2003;

• the church was interested in building a fellowship hall;

• the defendant was interested in constructing the building;

• the only written contract was an invoice from the defendant to Mt. Sinai Baptist Church;

• Shell completed neither the 40' x 60' x 14' metal building, the 60' x 10' covered porch, the restrooms, the 3-ton central air and electric heat, nor the labor, wiring, and conduit, and he did not install a 200-amp breaker;

• the contract required four $9,850 payments, in stages, and a balance of $4,280, upon completion of the project;

• less than two months after the start of the project, and only three days after he gave the defendant the fourth check in May, he went to check on the project, but the defendant could not be found;

• repeated attempts to find the defendant were to no avail;

• the church even hired a private investigator, who couldn’t find him;

• at this point in the chronology, the church sought criminal charges; and

• he identified the defendant in open court.

On cross-examination, Fields testified that up until the frame was erected, everything was fine with the work the defendant was performing. He stated that it only became a problem when the defendant did not return to complete the job.

|sOn redirect, Fields testified that the defendant did not receive the last check in the amount of $4,280 because he never returned to the job site.

Ward Fields testified that:

• he first met Shell in 2008 when the defendant did some work for him;

• he introduced Shell to his brother, Sheppard Fields, and the church’s pastor;

• they discussed the defendant building a fellowship hall for the church;

• every Sunday he would check on the progress of the fellowship hall;

• he became alarmed when his brother told him the defendant had gone;

• he couldn’t find the defendant at his place of business in Bossier City,

• for a month, he checked back weekly at the former place of business;

• his phone calls to Shell were not successful; and

• he identified the defendant in open court.

On cross-examination, Ward Fields testified that prior to the defendant leaving the project site, he did not hear any complaints about the defendant’s work.

M.L. George, another member of Mt. Sinai Church, testified that:

• he met the defendant in February 2008, when the defendant agreed to build the fellowship hall for the church;

• he identified the invoice/contract and the four cashed checks;

• without warning, Shell disappeared, leaving the hall far from complete;

• he unsuccessfully tried to phone and physically contact Shell, to no avail;

• he hired a private investigator, who could not find Shell; and

14* it took about three years for the sheriffs department to locate the defendant.

Toni Morris, a detective with DeSoto Parish Sheriffs Office, testified that:

• around July 2003, he investigated this incident;

• he met with M.L. George, Sheppard Fields and Ward Fields, who explained that the defendant had absconded, to the church’s financial harm;

• after meeting with these men, he drove to the church site to take photos;

• it was obvious that much of the contracted work was not performed;

• he received from the members copies of the cancelled checks that were cashed by the defendant and also a copy of the invoice/contract;

• despite his best efforts, he was unable to locate Shell;

• about 30 days later, he obtained an arrest warrant for the defendant; and

• he could not arrest Shell for several years, because he couldn’t find him.

James Shell, the defendant, testified that:

• in 2003, he owned a metal building business, Shell Buildings Systems;

• Ward Fields contacted him through an ad in a newspaper;

• his business relationship with Ward Fields was great;

• he completed the project and Ward Fields was happy with his work;

• Ward Fields introduced him to the deacons of the church;

• they entered into a contract for the construction of the hall;

• he was contracted only to do the outside work;

he was not to do any work inside except to lay the pipes for plumbing;

• he was only to put in a 200-amp breaker and an AC, not a central air unit;

• he began work soon after they entered into the contract on March 18, 2003;

• he did not complete the job due to medical problems;

• he called Ward Fields to advise as to his medical problems, explaining that he could find someone else to complete the job for approximately $2,200;

• Ward Fields became upset and hung up;

• while on the job site, no one ever had a problem with his work;

• he never intended to defraud the church or not finish the job;

• after his first heart attack, he lived with his mother right outside Shreveport;

• after she passed, he went to live with his sister in Monroe;

• he then went to Arkansas to visit friends, suffering two more heart attacks;

• he now gets a disability check;

• he had another job in Webster Parish, during the same time frame;

• because of his illness, he could not complete that job either, and wound up pleading to a misdemeanor for nine months he had already served;

• he admitted not completing the job;

• he admitted the amounts and dates of the payments he received; and

|ñ* he did not return to DeSoto Parish until the police brought him in 2008.

Though the defendant went to trial for the higher gradation of felony theft, the jury returned this responsive verdict of middle-grade felony theft.

At a restitution hearing, an experienced contractor, Jeff Heard, testified that the work defendant had completed had a value of from $9,000 to $10,000. The trial court sentenced the defendant as outlined, and a motion to reconsider sentence was denied.

DISCUSSION

I. Sufficiency

The defense argues that the state failed to provide sufficient evidence that the defendant was guilty. According to the defense, the state lacked the required proof that the defendant had the intent to commit theft or even that he committed theft. The state argues that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of theft.

In 2003, the Louisiana theft statute was straightforward.

Our law on a sufficiency review is well settled.

17Five people testified at trial: the three church members, Det. Toni Morris, and the defendant.

The evidence presented at trial was clearly sufficient to support defendant’s conviction for theft.

At trial, the three church members testified that the defendant was hired to build a fellowship hall for Mt. Sinai Baptist Church. Under the agreement, evidenced by an invoice, the defendant agreed to construct a 40' x 60' x 14' building, a 60' x 10' covered porch, a 3' x 7' walk-through door, and male and female restrooms; he also agreed to install a central air and heating unit, wiring, and a 200-amp main breaker. For his services, Mt. Sinai Baptist Church agreed to pay the defendant $43,680. The defendant received and cashed four checks of $9,850 each. Days after cashing the | ^fourth payment, defendant gathered his equipment and left town, never to return to the project. Mt. Sinai Baptist Church members hired a private investigator to search for him, to no avail. It was years later before the law found the defendant and brought him back to face these charges.

The defendant’s testimony confirmed that he did not complete the project, and that he left town after receiving the fourth installment check. Further, although the defendant testified that he suffered medical issues which hindered him from completing the project, he did not offer any proof to support his argument. It was up to the trier of fact to determine the defendant’s credibility.

Besides his lengthy abscondment, the most telling evidence against the defendant can be discerned by simply juxtaposing the defendant’s testimony with the stark photographs of the crime scene and the invoice/contract. His unbelievable version of his partial fulfillment of the contract was patently absurd. Mr. Shell’s testimony that it was not his intent to defraud the church does not square with the evidence. Within seven weeks of the contract, the defendant had received 90% of all proceeds ultimately to be due under the entire contract, after doing about 30% of the work, at best. He gave no prior warning to any member of the church. He fled and hid, for years. This evidence of flight, only days after cashing the fourth check, establishes the defendant’s guilty knowledge and intent. Although this matter initially arose out of a civil contract, the defendant’s outlandish conduct clearly crossed the line and constituted violations of ^criminal law. A reasonable jury could have found him guilty, beyond a reasonable doubt.

II. Excessive Sentence

The defendant argues that:

• the trial court abused its discretion when it ordered that the defendant pay $20,000 restitution to Mt. Sinai Baptist Church;

• the church actually owed him $8,000 for additional work he performed;

• due to his health, together with his only income being disability, the restitution order makes his sentence excessive.

Our law concerning conditions of probation is well settled.

ImShell stole in excess of $20,000 from the church. It is clear, therefore, that the restitution figure is justified if looking through the prism of the pecuniary loss suffered by the church.

It is also clear, however, that the defendant has only a remote chance of paying back the full restitution during the five years of his probationary period.

Further, if a defendant is truly indigent, he should not be imprisoned for the failure to pay sums ordered by the court.

There is a world of difference between a probationer who can’t pay, as opposed to one who just won’t pay. If the defendant is truly unable to pay the restitution, he should not be imprisoned for that failure. We do not have debtors’ prisons in the United States, even for contractors who betray the trust of a church.

Accordingly, should this matter be brought back before the trial court for a revocation hearing, we direct our brother judge below to make careful findings as to the defendant’s ability to pay and to carefully consider the |uprevious paragraph. If the trial court ever rules to revoke the defendant’s probation, predicated on his failure to timely pay the restitution, it is directed to grant a stay, if requested by the defendant, for him to seek supervisory appellate review of the revocation.

III. Error Patent

At sentencing, the trial court did not advise the defendant of the time period within which to apply for post-conviction relief. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of this limitation at sentencing, is supplicatory language which does not bestow an enforceable right on an individual defendant. The defendant is thus advised of these time limitation in the footnote below.

|,¡.DECREE

The defendant’s conviction, sentence, and conditions of probation are affirmed. The trial court is directed, at any future revocation proceeding, relative to the defendant’s failure to pay restitution, to make detailed findings about the defendant’s ability, vel non, to pay the sums due. Further, should the defendant’s probation ever be revoked for nonpayment of the ordered restitution, we direct the learned trial court to grant a stay of sentence, if requested, should the defendant choose to seek supervisory appellate review of any revocation.

      . Sometimes referenced as "middle-grade theft.”

      . Actually, a brief and informal invoice.

      . Four installments of $9,850 and a final installment of $4,280.

      .There is no dispute that the church issued, and the defendant cashed, four separate checks amounting to an aggregate of $39,400, out of the total $43,600 due under the contract.

      . This statement raises a question relative to the sparse invoice/contract: Why is there no limitation to this effect on the document?

      . This is belied by the clear wording of the invoice/contract that requires “3-ton central air, electric heat.”

      . At trial, Ward Fields denied ever speaking with the defendant after the job was abandoned. Apparently, the jury believed Mr. Fields and disbelieved Mr. Shell.

      . At the time of this offense, La. R.S. 14:67 provided, in pertinent part:
      A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
      (2) When the misappropriation or taking amounts to a value of three hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Shivers, 43,731 (La.App.2d Cir.12/3/08), 998 So.2d 877, writ denied, 2009-0161 (La.10/30/09), 21 So.3d 274.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

      . The church members testified that no additional materials were delivered to the site after the defendant's departure.

      . Essential element of crime of theft is specific intent to permanently deprive a victim of his property. State v. Albert, 1996-1991 (La.App. 1st Cir.6/20/97), 697 So.2d 1355.

      . La. C. Cr. P. art. 895.1, in pertinent part, provides:
      “When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from tire establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.”
      Additionally, La. C. Cr. P. art. 895(A)(7) authorizes the court to impose any special conditions of probation reasonably related to the defendant’s rehabilitation, including a requirement that the defendant make “reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court.”
      Generally, trial courts are afforded wide latitude in the imposition of probationary conditions, as long as the conditions are reasonably related to the rehabilitation of the individual and do not constitute excessive, cruel, or unusual punishment. See La. C. Cr. P. art. 895(A); State v. Parker, 423 So.2d 1121 (La.1982). This includes discretion in ordering restitution, and the trial court’s decision in this regard will not be disturbed absent an abuse of discretion. State v. McGloster, 303 So.2d 739 (La.1974); State v. Averette, 1999-2054 (La.App. 1st Cir.6/23/00), 764 So.2d 349; State v. Stephenson, 30,271 (La.App.2d Cir.1/21/98), 706 So.2d 604, writ denied, 98-,0426 (La.1998), 720 So.2d 1211. In excessive sentence assignments, this court recognizes the wide discretion of the trial court and requires a manifest abuse of discretion be demonstrated before setting aside a sentence. State v. Stephenson, supra.

      . Paying off the assessed $20,000 over the five-year probationary term, would require a payment of $333.33 per month, which would be somewhere between harsh and impossible, for a man who is solely supported by disability payments. This record is unclear as to whether the defendant has other sources of income, so we shall leave this inquiry to any future revocation proceedings, for which we have included, in this opinion, instructions for the trial court.

      . See State v. Zabaleta, 96-2449 (La.App. 3d Cir.3/7/97), 689 So.2d 1369. "An indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence.” Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). "However, we note that La. C. Cr. P. art. 886 permits the state to enforce collection of a fine in the same manner as a money judgment in a civil case.” State v. Conley, 570 So.2d 1161 (La.1990). Also see State v. Duke, 2011-688 (La.App. 3d Cir.2/1/12), 84 So.3d 722.

      . Defendant has been represented by counsel in this proceeding from day one. He is now represented on appeal by The Louisiana Appellate Project. We find that these facts amount to presumptive evidence of his indigent status. See State v. Devare, 03-610 (La.App. 5th Cir. 10/28/03), 860 So.2d 191.

      . We are comforted by these sage comments of the trial court at sentencing: "The restitution amount is hereby fixed at a midrange of $20,000. I understand that the defendant is under a previous court order, is also under a fixed income, and he will do what he can within the terms and conditions of probation. We will evaluate it appropriately.”

      . See State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, abrogated on other grounds in State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735; State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6.

      . Art. 930.8. Time limitations; exceptions; prejudicial delay
      A. No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:

        (1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.
      (2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling.
      (3) The application would already be barred by the provisions of this Article, but the application is filed on or before October 1, 2001, and the date on which the application was filed is within three years after the judgment of conviction and sentence has become final.
      (4) The person asserting the claim has been sentenced to death.
      B. An application for post conviction relief which is timely filed, or which is allowed under an exception to the time limitation as set forth in Paragraph A of this Article, shall be dismissed upon a showing by the state of prejudice to its ability to respond to, negate, or rebut the allegations of the petition caused by events not under the control of the state which have transpired since the date of original conviction, if the court finds, after a hearing limited to that issue, that the state's ability to respond to, negate, or rebut such allegations has been materially prejudiced thereby.
      C. At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. If a written waiver of rights form is used during the acceptance of a guilty plea, the notice required by this Paragraph may be included in the written waiver of rights.