author: THIBODEAUX, Chief Judge.

text:
    Adele GRADNIGO, et ux. v. LOUISIANA FARM BUREAU CASUALTY INS. CO., et al.
    No. 2008-1198.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Edward O. Taulbee, IV, Taulbee & Associates, L.L.C., Lafayette, LA, for Defendants/Appellees-Louisiana Farm Bureau Casualty Ins. Co. and Hannah Venable.
    Archie P. Joseph, Breaux Bridge, LA, Christ Beaner, Lafayette, LA, for Plaintiffs/Appellants-Adele Gradnigo and Gerald Gradnigo.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

[ plaintiffs-appellants, Adele Gradnigo (Gradnigo) and her spouse, Gerald Gradni-go (Gerald), appeal the quantum of the damage awards rendered by a jury after the trial of her personal injury action for damages sustained in a motor vehicle accident. Defendants, Hannah Venable (Venable), and her automobile insurer, Louisiana Farm Bureau Insurance Company (Louisiana Farm Bureau), have answered the appeal, asserting the trial court abused its discretion by taxing them with the payment of Gradnigo’s expert witness costs, when Gradnigo was unsuccessful on the particular claims related to the testimony offered by those witnesses.

We find the jury abused its discretion in quantifying damages for past medical expenses and past and future loss of enjoyment of life. Therefore, the jury’s award of $10,000.00 in past medical expenses is reversed, and an award of $14,526.55 for past medical expenses incurred is rendered in accordance with the evidence established at trial. The plaintiff is awarded $10,000.00 for past and future loss of enjoyment of life. All other aspects of the jury’s damage awards are affirmed.

Further, we affirm the trial court’s assessment to the defendants of the expert witness costs for orthopedic surgeon, Dr. John Cobb, vocational rehabilitation counselor, Scott Smith, and economist, Dr. Douglas Womack.

I.

ISSUES

1. Did the jury abuse its discretion by awarding Gradnigo $30,000.00 in general damages for past and future pain and suffering for the injuries she alleged were caused by the motor vehicle accident: headaches, right shoulder and neck strain, three herniated thoracic spine discs, and one bulging lumbar spine disc?
2. Did Gradnigo establish that she incurred compensable past medical expenses in the amount of 12$14,526.55, thus requiring the reversal of the jury’s award of $10,000.00 for past medical expenses?
3. Did the jury err in awarding only $15,000.00 for future medical expenses when evidence was presented by Gradnigo’s treating orthopedist of his recommendation for spinal surgery and future medical treatment at an estimated cost of $107,000.00?
4. Did the evidence establish that Gradnigo’s injuries from the accident caused her to incur past lost wages in the amount of $23,823.16, as calculated by her expert economist, rather than the $1,200.00 awarded to her by the jury?
5. Did Gradnigo establish at trial that the accident caused her a loss of future earning capacity ranging between $560,828.00 and $781,075.00, requiring a reversal of the jury’s award of $0 in damages for this category of loss?
6. Did the jury abuse its discretion by awarding $0 in damages to Gradnigo for her past and future loss of enjoyment of life?
7. Did the jury abuse its discretion in awarding $0 in damages to Gradni-go’s husband, Gerald Gradnigo, for the loss of consortium he allegedly experienced as a consequence of his wife’s accident-related injuries?
8. Did the trial court abuse its discretion by assessing Venable and Farm Bureau with the payment of the plaintiffs expert witness fees for orthopedic surgeon, Dr. John Cobb, vocational rehabilitation counselor, Scott Smith, and economist, Dr. Douglas Womack, when the jury rejected the plaintiffs’ claims for future medical expenses and certain past and future lost wages?

II.

FACTUAL BACKGROUND

On January 21, 2004, Gradnigo was driving to work when her vehicle was struck on the right rear passenger side as she drove through an intersection in | ¡.¡Lafayette, Louisiana. Venable had been traveling on a road perpendicular to the one being traveled by Gradnigo. Upon approaching the intersection of those roads, Venable failed to yield to a red traffic light and struck Gradnigo’s vehicle.

Gradnigo’s vehicle was spun around approximately 180 degrees as a result of the impact. Both vehicles were able to be driven away from the scene, and the damage to Gradnigo’s vehicle was minor to moderate. Gradnigo’s air bags did not deploy during the accident, and she declined medical assistance at the scene. Gradnigo left the accident scene and drove herself to work at Lafayette General Medical Center (LGMC), where she was employed as a licensed practical nurse (LPN).

Gradnigo alleges she left work early that day and did not report to work the following day, due to a headache that began shortly after the accident occurred. Grad-nigo began medical treatment with internal medicine physician, Dr. Bryan LeBean, about two weeks after the accident occurred. She sought relief from pain which Dr. LeBean diagnosed initially as cervical strain, thoracic strain, right shoulder strain, and tension headaches. Ultimately, it was determined that Gradnigo suffered from three bulging thoracic spine discs and one bulging lumbar disc.

She endured a course of conservative medical treatment under the supervision of Dr. LeBean and orthopedic surgeon, Dr. John Cobb, which included months of physical therapy, and, ultimately, treatment by pain management specialist, Dr. Stephen Staires. Reporting that she was able to manage her pain and that her symptoms of neck and shoulder pain had essentially abated, she ended her treatment with these doctors in February 2006, approximately two years after the date of the accident. While she was being treated by her doctors, she continued to work as a 14float nurse at LGMC and only missed seven days of work there. Her employment records indicated exemplary performance of her job during this time period.

Gradnigo went unobserved by doctors until approximately eighteen months later in June 2007, at which time she resumed treatment with Dr. Cobb, complaining of an increase in mid-back and low-back pain. He reinstituted some of his prior methods of treatment — physical therapy, pain medication, and muscle relaxants — and he began having Gradnigo use a TENS unit (a device that is worn to help stimulate pain relief). Dr. Cobb reiterated to Gradnigo that ultimately a laminectomy, discectomy, and fusion may be required if conservative treatment failed to fully resolve her symptoms. He had provided this advice to her in 2005, in response to Gradnigo’s complaints that the conservative treatments were only temporarily alleviating her symptoms.

During the trial, Gradnigo’s Motion for a Directed Verdict on liability was granted after evidence was produced that Venable caused the accident. The jury’s findings and .awards as to damages, which were subsequently rendered by the trial court in its Judgment, were as follows:

1. Did ADELE GRADNIGO suffer any damages as a result of the accident on January 21, 2004?
x Yes No
(If YES, proceed to Question 2. If NO, please sign the bottom of the form and return it to the bailiff.)
2. What amount, in dollars and cents, if any, will fairly compensate ADELE GRADNIGO for the following:
Pain and Suffering (past and future) $30,000
Loss of enjoyment of life (past and future) $ 0.00 Past medical expenses $10,000
Future medical expenses $15,000
_[sLos[t) Wages $ 1,200
Loss of future earning capacity $ 0.00
3. Did Gerald Gradnigo suffer any damages as a result of the accident?
Yes x No

Gradnigo’s appeal asserts that the jury abused its discretion in quantifying the amount of many of the awards rendered. Regarding general damages, she seeks an increase in the $30,000.00 awarded to her for past and future pain and suffering to an amount of $175,000.00 or greater. She contends that the jury abused its discretion as well by failing to award any damages for her loss of enjoyment of life, as well as for her husband’s loss of consortium. The appeal seeks $40,000.00 for past and future loss of enjoyment of life and $20,000.00 to Gradnigo’s spouse for his alleged loss of her services, sex, society, and support following the accident.

Gradnigo contends that the jury erred in awarding only $10,000.00 in past medical expenses because the medical records introduced into evidence, without objection, revealed that she incurred medical expenses in the amount of $14,526.55. Moreover, she contends that the jury’s award of only $15,000.00 for future medical expenses is abusively low, when she presented evidence substantiating a minimum award of $165,000.00, due to the recommendation that she undergo spinal surgery and the estimates of post-operative care and treatment that will be needed. Grad-nigo claims an increase in the damage award for past lost wages from the $1,200.00 awarded by the jury to $23,823.16 is due, based on the calculations presented by economist, Dr. Douglas Womack. Finally, she seeks a reversal of the jury’s award of $0 to her for loss of future income. Gradnigo claims she is entitled to between $560,828.00 and $781,075.00 because the accident extinguished her ability to return to work as an LPN or to become trained and subsequently seek employment as an RN Rand has forced-her to obtain a lower-paying job that requires a lower level of physical mobility than that required of an RN or LPN in the performance of their duties.

The defendants allege that the jury made reasonable factual findings based on the evidence presented at trial and did not abuse its discretion in determining the awards that were rendered. They argue that Gradnigo’s credibility was damaged throughout the trial by the presentation of evidence that showed she was inconsistent, and less than truthful in accurately reporting her physical limitations and levels of pain relief to her healthcare providers while under their care. Moreover, they contend that the jury’s awards also reflect reasonable conclusions about the following: Gradnigo was fully recovered from any accident-related injuries as of February 2006, and she was not severely injured by the accident, as evidenced by her ability to continue to excel at the performance of her duties as an LPN for two years after the accident, without any accommodations.

Because of these possible reasonable findings, the defendants argue that the jury’s awards reflect a rejection of any sought-after damages for medical expenses incurred after the initial two-year period of treatment and for those sought for future treatments. Additionally, they argue the jury was reasonably justified in rejecting in entirety the claims for loss of earning capacity, loss of enjoyment of life, and loss of consortium.

III.

LAW AND ANALYSIS

General Damages

Standard of Review

General damages are “inherently speculative” and unable to be fixed with mathematical certainty. Wainwright v. Fontenot, 00-492, p. 6 (La.10/17/00), 774 So.2d 70, 74 (citation omitted). This, consequently, means that the assessment of the appropriate amount of such damages is a question of fact to be determined on a case-by-case basis, and because each case is different, the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The fact finder’s determination is given “great deference” on appeal; therefore, the appellate court’s role is to review that exercise of discretion. Id. Moreover, “[t]he facts submitted as evidence must be reviewed by the appellate court in the light most favorable to the judgment rendered.” Venissat v. St. Paul Fire & Marine Ins. Co., 06-987, p. 17 (La.App. 3 Cir. 8/15/07), 968 So.2d 1063, 1074 (citing Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993)).

The application of this standard has been explained by the supreme court as follows:

In Reck [v. Stevens, 373 So.2d 498 (La.1979) ], this court disapproved the appellate court’s simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. This court further disapproved of the use of a scale of prior awards in cases with genetically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn, 623 So.2d at 1260-61.

Past and Future Pain and Suffering

Gradnigo asserts that the amount awarded for past and future pain and suffering is abusively low and should be raised to $175,000.00. She states that the amount is justified due to her suffering over the past four years with, initially, the tension headaches, right shoulder strain, and neck strain, and later with the ongoing pain caused by three herniated thoracic discs and one annular bulging lumbar disc. Gradnigo relies almost exclusively on her history of medical treatment post-accident and Dr. Cobb’s recommendation for surgery as a measure of proof of her pain and suffering.

A review of her medical history reveals that on February 9, 2004, approximately two weeks after the accident occurred, Gradnigo first sought medical treatment for symptoms she believed were the result of injuries suffered in the accident. She saw Dr. LeBean, an internal medicine physician. Her chief complaints |flto him were of right shoulder pain, headaches, and mid-back pain. She reported a history of no prior major illnesses or injuries. Dr. Le-Bean performed a physical examination of Gradnigo and found “positive, severe tenderness to palpation on the right side [of the neck] with decreased range of motion.” Her back examination revealed “positive severe tenderness to palpation in the thoracic area.” The right shoulder examination revealed “positive severe tenderness to palpation with a decreased range of motion.” Dr. LeBean consequently diagnosed a cervical strain, thoracic strain, right shoulder strain, and tension headaches. He prescribed pain medication, muscle relaxants, and a physical therapy protocol to be conducted at his office. Dr. LeBean advised Gradnigo that she could return to work with “moderate limitations,” which he defined at trial as “[usually lifting no greater than fifteen pounds [and] no standing or walking in excess of thirty minutes or so.” Consequently, Gradnigo continued to work with no limitations as a float nurse at LGMC. Lifting and turning of patients was not an issue, as testimony was offered by Gradnigo and several of her nursing co-workers that they worked as a team on such matters.

Over the next several months, through Dr. LeBean’s office, Gradnigo participated in the physical therapy sessions, which consisted of mostly hydrotherapy. She continued her medications as well (pain medication and muscle relaxants) which ultimately resulted in the resolution of her shoulder pain and, temporarily, her neck pain. Her headaches resolved as well. However, in July 2004, because of her continuing complaints of mid-back pain, Dr. LeBean ordered the first MRI of Gradnigo’s thoracic spine taken. That MRI revealed small or mild disc hernia-tions at T5-T6, T6-T7, and T9-T10 and changes that were considered to be degenerative in nature-“mild exaggeration of the normal thoracic kyphosis [bending of the spine hnforward]” and “multi-level osteo-phytes [bone spurs],” collectively referred to as spondylosis.

Dr. LeBean referred Gradnigo to an orthopedic surgeon, Dr. John Cobb, who evaluated her for the first time in August 2004. Dr. Cobb reviewed the MRI results and diagnosed herniated discs at T5-10 and a lumbosacral sprain; however, he found no evidence of nerves or nerve roots being pinched. He prescribed active physical therapy to address the continuing pain complaints and observed the results of that over the next few months. By November 2004, Gradnigo reported essentially no neck pain and that her lower back pain was “doing reasonably well.” She also reported that her mid-back or thoracic area of pain had become “manageable.” Physical therapy under Dr. Cobb’s monthly observation continued.

In July 2005, because Gradnigo complained of a return of a “moderate” degree of pain in the thoracic and lumbar areas and a “moderate” degree of positional intolerance, requiring her to keep altering her positions, i.e.,' moving, standing, or sitting, in order to gain relief, Dr. Cobb referred her to Dr. Stephen Staires. Dr. Starnes is an anesthesiologist who specializes in in-terventional pain management, particularly with the use of injections. As of September 2005, Gradnigo reported to Dr. Cobb that the few injections she had been given provided only limited, short-term relief. Nevertheless, Dr. Staires did not recommend additional injections to her. Rather, he recommended other conservative treatment such as massage therapy.

Dr. Cobb discussed re-instituting physical therapy as well around that time and advised Gradnigo that if her pain was unacceptable, a surgical approach-a laminec-tomy and disc excision and a fusion of the affected areas-would likely be necessary to alleviate her symptoms. Surgery was not scheduled, and Gradnigo continued treatment with Dr. Staires. By December 2005, Dr. Cobb’s impression wasj^that the source of Gradnigo’s pain was likely the thoracic disc herniations and axial instability caused by the degenerative changes in the lumbar disc, and he again discussed surgical options with Gradnigo. She opted to not undergo surgery. In January 2006, Gradnigo met with Dr. Cobb and reported that she was no longer under Dr. Staires’ care, was taking a muscle relaxant, and had reached a position in which was capable of managing her pain. No follow-up visit with Dr. Cobb was scheduled at that time.

Dr. Cobb resumed care and observation of Gradnigo approximately one and one-half years later, on June 4, 2007. Gradni-go complained of worsening mid-back pain. Dr. Cobb discussed conservative and surgical options, and her care resumed with the use of prescribed muscle relaxants, pain medication, physical therapy, and home use of a neuromuscular stimulator, or TENS unit. Gradnigo remained under Dr. Cobb’s care at trial time.

The defendants assert that although Gradnigo relies on her history of medical care and pain complaints as evidence of her level of pain and suffering post-accident, the jury’s award was not an abuse of its discretion and was based on contrary facts presented at trial showing Gradnigo as less than credible. They assert that Gradnigo’s injuries, or any aggravation of her pre-existing degenerative spinal changes caused by the accident, were resolved by February 2006. Moreover, they argue that any injuries suffered after the accident were not severe enough to alter her lifestyle.

Her credibility was placed at issue, they argue, when she was confronted during the trial about multiple conflicting statements she made to her various medical providers regarding her levels of pain and mobility throughout her treatment. Defendants also assert that it was established through the testimony of co-workers at |TaLGMC who worked with Gradnigo during the two years following the accident that she did not exhibit any physical limitations at work during that time. Her employment file showed that she was given excellent performance ratings and received regular merit pay increases as a result. Finally, Gradnigo missed minimal days of work, barely more than two weeks during the two years following the accident. She also took multiple vacations with her spouse during this time.

Considering the facts presented, we cannot find that the award of $30,000.00 for past and future pain and suffering is abusively low.

Loss of Enjoyment of Life

“[Ljoss of enjoyment of life is a compensable component of general damages” that also involves the inherently speculative valuation of a person’s quality of life, which cannot be definitively measured. McGee v. A C & S, Inc., 05-1036, p. 4 (La.7/10/06), 933 So.2d 770, 774. These damages serve to compensate for the “detrimental alterations of a person’s life or lifestyles or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed.” Id. at 773.

Gradnigo argues that the jury’s failure to award damages for her loss of enjoyment of life after the accident was an abuse of discretion because she presented testimony at trial of how her back pain has restricted her from sitting, standing, or walking for any extended period of time. This, she asserts, had caused limitations in her ability to do housework, perform gardening and other yard work, play with her children, attend church, visit with family and friends, attend social functions, and go on vacation.

Only the testimony of Gradnigo and her husband was offered in support of this claim. The defendants argue that this claim was, nevertheless, called into 1 ^question because of the credibility issues caused by Gradnigo’s inconsistencies in reporting her conditions to her healthcare providers, as referred to earlier in this opinion. In addition, they argue that her ability to continue working as an LPN after the accident and to cease treatment for more than a year, two years after the accident, is proof of the minimal impact the accident likely had on her lifestyle. Gradnigo’s husband’s testimony about her suffering a diminished lifestyle after the accident was likely not given great weight either, they contend, because he was shown to have offered untrue testimony that conflicted with testimony his wife had given. Specifically, he testified that he and his wife had only taken one local vacation since the accident’s occurrence, while she testified that they had taken several vacations since the accident.

In summary, although evidence was presented at trial that Gradnigo received treatment for injuries either caused by or aggravated by the accident, there was also contrasting evidence presented of inconsistencies and perhaps, untruthfulness, regarding the severity and longevity of any such conditions. The question is whether the award for the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Youn, 623 So.2d at 1260. In other words, is this lack of an award beyond that which a reasonable trier of fact could assess for the effects of the particular injury to this plaintiff under these facts? We think the discretion has been abused and, as such, raise the award to the lowest reasonable award of $10,000.00.

Loss of Consortium

“The compensable elements of damage in a claim for loss of consortium include loss of society, sex, service, and support.” LeBlanc v. Acadian Ambulance Serv., Inc., 99-271, p. 33 (La.App. 3 Cir. 10/13/99), 746 So.2d 665, 684 (quoting Mathews v. Dousay, 96-858, p. 18 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 515). A cause of action for this claim arises when the injured party’s condition so deteriorates, the spouse is actually deprived of consortium and society. Delphen v. DOTD, 94-1261 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, writs denied, 95-2116, 95-2124 (La.11/17/95), 663 So.2d 717. It is asserted that the jury’s award to Gerald, Gradnigo’s spouse, of $0 for his loss of consortium, was abusively low and should be increased to $20,000.00 for his loss of his wife’s ability to perform household duties, and the diminishing of their sex and social life.

Gerald claims entitlement to this award because his wife could no longer perform certain household duties after the accident. Consequently, he and his sons had to perform those tasks or assist her. He also stated that the couple’s sex life had diminished, his wife was not the same after the accident, and they “basically stayed home all the time.”

Defendants argue that the jury’s findings and determinations in this regard were reasonable based on the fact that Gerald’s testimony regarding one aspect of the couple’s social life was contradicted; he was shown as being untruthful about the extent of the couple’s vacation travels after the accident. Also, they assert that it is not unreasonable for the jury to have concluded that Gradnigo’s physical capabilities and emotional state did not significantly change at home or in relation to her spouse after the accident. This is based on the fact that Gradnigo’s ability to continue nursing at such a high performance level after the accident continued. Moreover, no other persons with personal knowledge of Gradnigo pre-or post-accident were presented to offer testimony at trial regarding these assertions of a negative change in her physical, emotional, or social state during this time.

| lsWe agree with the court in Finley v. Baas, 478 So.2d 608, 614 (La.App. 2 Cir.1985), that while “every personal injury tends to decrease the parties’ overall happiness,” it is the plaintiff who carries the burden of proving a definite loss on each element of damages. The plaintiff was not successful in showing such losses here. We cannot say that the jury was clearly wrong in failing to find a loss of consortium.

Special Damages

Past and Future Medical Expenses

In this case, Gradnigo sought $14,526.56 in medical expenses; however, the jury awarded only $10,000.00 medical expenses. Gradnigo contends that this award is abusively low and seeks the full amount of her past medical expenses and also seeks future medical expenses in excess of $100,000.00. The jury awarded $15,000.00 for future medical expenses. The defendants speculate that this amount is reasonable because it is consistent with the cost of future spinal injections from pain management specialist, Dr. Staires. Dr. Staires’ injections were successful in providing almost complete relief to Gradni-go during her treatment with him, according to her testimony.

In Simon v. Lacoste, 05-550, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102, 1104-05, this court recognized the following regarding awards of medical expenses:

[W]hen a plaintiff alleges that medical expenses were incurred “and that allegation is supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of that item in the judgment.” [Esté v. State Farm Ins. Co., 96-99, p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857.] A fact finder errs if it fails to award the full amount of medical expenses incurred as a result of the accident and proven by a preponderance of the evidence. Revel v. Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.2/2/96), 666 So.2d 1084.

Gradnigo introduced evidence of past medical expenses totaling the amount requested that were incurred during her periods of treatment for alleged accident-related injuries. No evidence was offered to contradict these bills or to provide reasonable suspicion that they were incurred for an unrelated accident or occurrence. Rather, the treatments, services, and prescriptions were corroborated and causally connected to the accident at issue by the testimony offered by Dr. Cobb and Dr. LeBean. Therefore, based on the uncon-troverted medical evidence in the record, we award Gradnigo her accident-related and incurred medical expenses of $14,526.55.

This court, in Veazey v. State Farm Mutual Auto Insurance, 587 So.2d 5, 8 (La.App. 3 Cir.1991) (citations omitted), discussed future medical expenses:

Future medical expenses, like any other damages, must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. An award for future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be required for such an award.

It is when the record establishes that future medical expenses “will be necessary and inevitable,” that such should not be rejected. See Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992). Future medical expenses are reviewed by an appeals court pursuant to the manifest error standard of review. See Armentor v. Safeway Ins. Co., 07-805 (La.App. 3 Cir. 12/19/07), 972 So.2d 444.

Dr. Cobb testified that surgical intervention via laminectomy, discectomy, and fusion was a possibility for this patient, as a last resort only, and j 17would be dependent upon her subjective complaints of pain. Dr. Cobb testified that this was because his neurological examinations of her, which were subjective, all produced normal findings during his course of treating and observing her. Dr. Cobb provided an estimate of the cost of such a procedure in the amount of $107,596.82, and discussed postoperative treatments and equipment that would be a part of the recovery period for which he did not provide a cost estimate.

Based on these facts, we cannot say the jury manifestly erred or was clearly wrong in denying the requested future medical expenses. It was not established with certainty that such surgery would more probable than not be inevitable and necessary for this plaintiff.

Lost Wages and Loss of Future Earning Capacity

To recover for actual wages lost, the plaintiff must be able to positively prove that he or she would have been earning wages but for the accident at issue. Boyette v. United Servs. Auto. Ass’n, 00-1918 (La.4/3/01), 783 So.2d 1276. “In other words, it is the plaintiffs burden to prove past lost earnings and the length of time missed from work due to the accident.” Id. at 1279 (citing ANMAC Found., Inc. v. St. Patrick Hosp. of Lake Charles, 594 So.2d 951 (La.App. 3 Cir. 1992)).

Gradnigo alleges that she missed sixteen days of work' due to illness associated with this accident. Seven days were missed at a rate of pay of $19.80 per hour ($1,108.80) while working for LGMC. In 2006 after leaving LGMC, she claims to have missed nine days of work at a rate of pay of $20.38 per hour ($1,467.36), for a total wage loss of $2,576.16. Gradnigo asserts on appeal that she was entitled to the $2,576.16 in lost wages and an additional $21,247.00 in lost wages incurred. The $21,247.00 is the calculation of the difference between her rate of pay as an LPN at LGMC and her lower rate of pay at her subsequent employment, which she claims she liRwas ultimately forced to take because of the light-duty work restrictions imposed by her physicians.

The jury awarded only $1,200.00 in lost wages, clearly rejecting the plaintiffs’ request for all asserted lost wages incurred after voluntarily terminating her employment at LGMC in 2006. We cannot say that the jury was manifestly erroneous in rendering this award when it was shown at trial that Gradnigo ceased all medical treatment for the alleged injuries in 2006, for a period lasting approximately eighteen months. Moreover, although Gradnigo changed employment in 2006, she offered no proof that she was required to leave LGMC for less physically demanding employment as a result of her alleged accident-related injuries. The record reflects that she was never placed on a work restriction by any of her physicians after the accident, and she was able to perform her job at LGMC after the accident at her pre-accident work level, without accommodation.

The jury also rejected Gradnigo’s claim for loss of earning capacity. We find the jury acted within its discretion in doing so. The law on loss of earning capacity was stated in Folse v. Fakouri, 371 So.2d 1120, 1123-24 (La.1979) as follows:

What plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.
Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned |iadespite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

The record reflects that the jury was reasonable in concluding that Gradnigo failed to establish any deprivation or diminution of her earning power as a result of the accident. We find no manifest error in the jury’s decision to not award damages for loss of earning capacity.

Defendants’ Assignment of Error

Taxing of Expert Witness Fees

Pursuant to the Louisiana Code of Civil Procedure, the allocation of court costs is within the discretion of the court:

Art.1920. Costs; parties liable; procedure for taxing
Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

Witnesses called to testify as expert witnesses are to be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La.R.S. 13:3666. We cannot say that the trial court abused its discretion in allocating costs in the manner chosen. This assertion is without merit.

j2fiIV.

CONCLUSION

The jury’s award of $10,000.00 in past medical expenses is amended, and plaintiff-appellant, Adele Gradnigo, is awarded $14,526.55 for past medical expenses incurred, in accordance with the evidence established at trial. Further, we amend the jury’s award of $0 to Adele Gradnigo for past and future loss of enjoyment of life and raise the award to $10,000.00. All other aspects of the jury’s damage awards are affirmed.

We affirm the trial court’s assessment to the defendants of the expert witness costs for orthopedic surgeon, Dr. John Cobb, vocational rehabilitation counselor, Scott Smith, and economist, Dr. Douglas Wom-ack.

Costs of this appeal are to be borne equally by all parties to this appeal.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Clara EVANS v. HAMPTON INN.
    No. 08-1195.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Mark Ackal, Lafayette, LA, for Defendant-Appellant, Hampton Inn.
    George A. Flournoy, Alexandria, LA, for Plaintiff-Appellee, Clara Evans.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| j Defendant, Hampton Inn, appeals the workers’ compensation judge’s ruling in favor of Clara Evans. The WCJ found that Evans established that her carpal tunnel syndrome was related to her work activities, that she was entitled to medical benefits including a carpal tunnel release surgery, and that she was entitled to temporary total disability benefits. The WCJ further awarded penalties for failure to authorize medical treatment and failure to pay indemnity benefits as well as attorney’s fees. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Evans had been employed by Hampton Inn since September of 2004. In 2006, she held the position of executive housekeeper. One of her duties included “deep cleaning” bathrooms. This involved Evans getting down on her hands and knees and scrubbing the tile floors in the bathrooms with a small brush. Evans usually “deep cleaned” two rooms per day. Evans testified that she was light-handed. On May 8, 2006, Evans was seen at Huey P. Long Medical Center by Dr. Ernest Kelly for complaints of right-hand pain which she reported had been bothering her for about two months. According to Evans, her right hand would swell, go numb, and tingle. She was diagnosed with cervical arthritis and given a volar splint for her right hand. She was also given a work excuse from Dr. Kelly which indicated that she should be placed on light duty for two weeks. She returned to work on May 9, and this was her last day at work. Evans was sent home after a verbal argument with a co-worker and told that there was no light duty work for her to do.

Evans testified that she reported an injury to her right hand from deep cleaning the bathrooms to the assistant manager, Elaine Sparks, and that she told the manager, |2Tarak Patel, that she was having problems with her right hand which she associated with her housekeeping duties at the hotel. Sparks and Patel denied that they had been told these things. Evans saw several physicians over the next few months. On October 11, 2006, an EMG showed severe right carpal tunnel syndrome with mild C6 root irritation on the right side. On November 2, 2006, Evans’ physician, Dr. Clark Gunderson, recommended a right carpal tunnel release. Dr. Gunderson opined that Evans’ carpal tunnel syndrome was causally connected to or brought about by her work activities.

Evans filed the instant disputed claim for compensation against Hampton Inn seeking weekly indemnity benefits, medical treatment, and penalties and attorney’s fees. Hampton Inn denied all of Evans’ claims and further alleged that she forfeited her right to receive any benefits due to her fraudulent statements. Following a trial on the merits, the WCJ held that Evans had proven that her carpal tunnel syndrome was work-related and was, therefore, entitled to temporary total disability benefits retroactive to May 10, 2006 (subject to credit for vacation paid by Hampton Inn) , medical travel expenses, prescription expenses, and medical expenses without discount per the fee schedule, and for all future work-related medical expenses incurred after judgment pursuant to the fee schedule. The WCJ denied Evans’ claims for sanctions but awarded $2,000.00 in penalties for failure to authorize medical treatment and $2,000.00 in penalties for failure to pay indemnity benefits. Attorney’s fees in the amount of $5,000.00 were also awarded. Evans filed a motion for partial new trial and a motion to recuse the WCJ. Both motions were denied. This appeal |nwas then perfected by Hampton Inn. We note that Evans has neither answered the appeal nor filed her own appeal.

DISCUSSION

This court has recently noted:

The standard of review applied to factual findings in workers’ compensation matters is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993).

Lollis v. Shaw Global Energy Services, 07-395 p. 3 (La.App. 3 Cir. 10/03/07), 966 So.2d 1118, 1120. If the conclusions of the fact finder are reasonable in light of the record reviewed in its entirety, we cannot reverse, even if we would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Furthermore:

Generally, an injured employee is entitled to receive benefits for an injury that arises out of, and in the course of, his employment. La.R.S. 23:1031. Specifically, La.R.S. 23:1031.1 governs workers’ compensation claims for occupational disease. “An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular’ trade, occupation, process, or employment in which the employee is exposed to such disease.” La.R.S. 23:1031.1(B). A claimant asserting an occupational disease must prove by a preponderance of evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment, and that the disease is a result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir.10/30/96), 682 So.2d 871. The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. Id.

Rose v. Maison Deville Care Center, 05-1307, pp. 2-3 (La.App.3 Cir. 4/5/06), 927 So.2d 625, 627, writ denied, 06-1054 (La.9/1/06), 936 So.2d 205.

| ¿This court has also recognized:

As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):
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 casts 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. West v. Bayou, Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.

Lollis, 966 So.2d at 1120-21.

Louisiana Revised Statutes 23:1031.1 governs workers’ compensation claims for occupational disease and provides, in pertinent part, as follows:

B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence.

| Jn this case, Hampton Inn argues that “the finding by the WCJ that Evans sustained a work related accident that resulted in her injuries, specifically that her carpal tunnel syndrome is work-related, is not supported by the record, is manifestly erroneous, is clearly wrong and must be reversed.” We do not agree.

We first consider Hampton Inn’s argument that it is presumed that Evans’ carpal tunnel syndrome was not caused by her job duties because it manifested itself less than twelve months after Evan became responsible for deep cleaning bathroom floors. This presumption, however, is rebuttable and can be overcome if a claimant can prove “by a preponderance of the evidence that the disease was contracted during her employment, specifically proving that there is a disability which is related to an employment-related disease, the disease was contracted during the course of employment, and the disease is a result of the work performed.” Johnson v. Johnson Controls, Inc., 38,495, p. 12 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 931-32 (citing Ball v. Wendy’s Intern. Inc., 36,922 (La.App.2d Cir.03/05/03), 839 So.2d 1208, writ denied, 03-0978 (La.05/30/03), 845 So.2d 1056). The WCJ can consider medical reports admitted into evidence or expert testimony to determine whether a claimant has overcome the presumption. Id. (citing Fite v. Louisiana Title Co., 02-2607 (La.06/27/03), 852 So.2d 983). We further note that, in brief, Hampton Inn quotes La.R.S. 23:1031.1 as reading “an overwhelming preponderance of the evidence” and goes on to discuss the meaning of this phrase and the legislative intent involved. However, Acts 2001, No. 1189, § 1, effective June 29, 2001, at the end of subsection D, substituted “a preponderance” for “an overwhelming preponderance.” Therefore, we find no merit in Hampton Inn’s argument that a higher burden of proof than “preponderance” applies to this case where the injury occurred in 2006.

|fiIn any event, the WCJ made no mention of the presumption stated in La. R.S. 23:1031.1(D) in this case. However, the record shows that Evans’ symptoms manifested themselves well within the initial twelve month period of her employment as executive housekeeper. With this presumption in place, Evans had to prove by a preponderance of the evidence that her carpal tunnel was contracted during her employment. Evans did testify that she was required to deep clean bathrooms pri- or to her promotion to executive housekeeper. Based on the record as a whole and the deposition testimony of Dr. Gun-derson, the WCJ concluded that Evans had carpal tunnel syndrome caused by her housekeeping duties. Even though the WCJ may not have considered the presumption in favor of Hampton Inn, we cannot say that the final determination on this particular issue was in error, because we find no manifest error in the WCJ’s conclusion that Evans suffered from carpal tunnel syndrome and that she carried her burden of proving that her employment caused that condition.

Hampton Inn acknowledges that Dr. Gunderson opined that scrubbing-floors was the cause of Evans’ carpal .tunnel syndrome. It asserts that this opinion was based upon false and unreliable information provided to him by Evans. The WCJ found Evans to be a credible witness and was in the best position to make this determination. “A worker is not required to relate her history to a doctor with mathematical precision and the imprecise histories given are insufficient to show manifest error when the overall tenor of [plaintiffs] complaints of pain as portrayed in her medical records related the onset of symptoms to her work.” Johnson, 873 So.2d at 933. The medical records in this case show that Evans complained of right hand pain and numbness dating back to April or May of 2006, and that she mainly related it her job duties. Therefore, we find no manifest error in the trial court’s |7conclusion that Evans’ carpal tunnel syndrome was related to her duties with Hampton Inn.

Dr. Gunderson also opined that Evans was disabled and unable to work. Hampton Inn submitted no evidence to the contrary. Therefore, we find no manifest error in the WCJ’s conclusion that Evans is entitled to temporary total disability benefits.

Hampton Inn also contends that Evans failed to prove the necessity of the treatment and the causal connection between the treatment and the employment related accident by a preponderance of the evidence such that the WCJ erred in awarding medical benefits. Again, we do not agree. We have already found that Evans proved that her carpal tunnel syndrome was related to her employment duties at Hampton Inn. The totality of the records supports the WCJ’s finding that Evans proved that she is entitled to recover her medical expenses and medical care. Therefore, we find no manifest error in this ruling. Furthermore, we agree that since Hampton Inn denied the claim from outset, it “is not entitled to rely on the fee schedule benefits after making a total denial of the claim and forcing the claimant to seek medical treatment unilaterally.” Smith v. Roy O. Martin Lumber Co., 03-1441, p. 8 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, 668, writ denied, 04-1311 (La.9/24/04), 882 So.2d 1144.

Finally, Hampton Inn contends that the WCJ erred in awarding penalties and attorney’s fees. The determination of whether an employer should be east with penalties and attorney’s fees is a question of fact, and the trial court’s finding cannot be disturbed absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650. “The employer has a continuing duty to investigate, assemble, and assess factual information before it denies benefits.” Mitchell v. Alliance Compressors, 05-1186, p. 8 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 133. Here the WCJ found that Hampton Inn failed to do a proper investigation and failed to send Evans to any healthcare provider to obtain any medical information as to connexity and causality of her carpal tunnel syndrome. We agree and find no manifest error in the award of penalties or attorney’s fees.

DECREE

For the foregoing reasons, we affirm the judgment of the WCJ. Costs of this appeal are assessed against DefendanL-Appellant, Hampton Inn.

AFFIRMED.

      . We note that the judgment indicates May 11, 2007 as the date. However, this is inconsistent with die WCJ's oral reasons for judgment.


author: SULLIVAN, Judge.

text:
    DENBURY ONSHORE, L.L.C. v. Jean Fontenot PUCHEU, et al.
    No. 2008-1210.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 2009.

      M. Terrance Hoychick, Attorney at Law, Eunice, Louisiana, for Defendants/Appellants, Jean Fontenot Pucheu Germaine Fontenot Rhodes FontenoL-Pueheu, L.L.C.

      Joseph C. Giglio, Jr., Liskow & Lewis, Lafayette, Louisiana, for Plaintiffs/Appel-lees, Denbury Onshore, L.L.C. Suncoast Land Services, Inc.
    A.J. Gray, III, Bart R. Yakupzack, The Gray Law Firm, Lake Charles, Louisiana for Defendants/Appellees, Loris M. Davidson, Max D. Davidson, Inc., Janzen Family Trust, Robert C. Henderson, Stacey R. Henderson, Shirley Ann Henderson Van Dyke, Stephen Fred Gordon, Thomas C. Ross, III, Janet Ross Marberry, Diana Ross Steinmetz, Craig Lee Davidson, Mark D. Davidson, Stacey R. Henderson, Jr., Courtney Lawrence Russell, Shirley Gilbert Henderson, Robin C. Henderson, Kelly Henderson Nelson, Dana Henderson Norton.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

11 This concursus proceeding concerns the disbursement of oil and gas royalties attributable to production from a well situated in Jefferson Davis Parish, which occurred prior to a unit being established by the Office of Conservation. Lessors of the property on which the well is situated appeal the trial court’s grants of summary judgment in favor of their lessee and their adjoining landowners and its denial of their motion for summary judgment. For the following reasons, we reverse.

Facts and Procedural History

In July 2003, Jean F. Pucheu and Ger-maine F. Rhodes (the Pucheus) granted an oil, gas, and mineral lease in favor SunCoast Land Services, Inc. (SunCoast). Their adjoining neighbors to the north, Loris M. Davidson, Max D. Davidson, Inc., Janzen Family Trust, Robert C. Henderson, Stacey R. Henderson, Shirley Ann Henderson Van Dyke, Stephen Fred Gordon, Thomas C. Ross, III, Janet Ross Marberry, Diana Ross Steinmetz, Craig Lee Davidson, Mark D. Davidson, Stacey R. Henderson, Jr., Courtney Lawrence Russell, Shirley Gilbert Henderson, Robin C. Henderson, Kelly Henderson Nelson, and Dana Henderson Norton (the David-sons), also executed an oil, gas, and mineral lease in favor of SunCoast. SunCoast assigned the leases to Denbury Onshore, L.L.C. (Denbury).

On October 12, 2003, Denbury spudded a well, the “Amanda Fontenot et al. No. 1 Well” (the well), on the Pucheus’ property. In November, Denbury requested that the Pucheus execute an escrow agreement, which authorized it to escrow royalties that would accrue prior to unitization of the well and disburse the royalties in accordance with the unit order that would be issued by the Office of Conservation.

12John and Jacque Pucheu are the sons of Jean F. Pucheu and shareholders in Fontenot-Pucheu, L.L.C. They are both attorneys and represented the Pucheus in the matters preceding this litigation. John McDaniel, a landman with Denbury, dealt with John and Jacque to get the escrow agreement executed. After John and Jac-que discussed the escrow agreement with Mr. McDaniel and with SunCoast’s land-man, Jerry Thomas, the Pucheus executed the escrow agreement on December 5, 2003. The well was successfully completed on December 23, 2003. Denbury obtained permission from the Commissioner of Conservation to produce the well on a lease basis, and the well began producing gas and condensate for sale on December 31, 2003.

On January 14, 2004, Denbury filed a pre-application notice with the Commissioner of Conservation, advising of its intent to establish a unit for the Bol Perea Zone, Reservoir P, in the South Thornwell Field. The following day, a geologist hired by the Davidsons to monitor the drilling of the well and to protect their interests confirmed with Denbury that it had obtained an escrow agreement from the Pucheus. On February 6, 2004, Den-bury filed an application with the Office of Conservation to establish the unit identified in its January 14, 2004 notice. On March 8, 2004, the Pucheus notified Den-bury that, effective January 1, 2004, they revoked and canceled the escrow agreement and demanded immediate payment of ah royalties attributable to pre-unitization production, together with penalties, interest, and attorney fees. The Office of Conservation issued Order No. 479-C-36, establishing the unit as requested on April 19, 2004. The Order provided that the unit was effective March 16, 2004.

l.gFaced with possible claims by the Pu-cheus and the Davidsons for penalties, interest, and attorney fees for failing to timely and properly pay royalties, Den-bury filed this concursus proceeding on April 7, 2004. It named the Pucheus and the Davidsons as defendants and deposited all disputed royalties into the registry of the court to allow the trial court to determine ownership of the deposited funds. Denbury asserted that it “had planned to distribute royalty proceeds in accordance with the [escrow] agreement believing both that it was authorized to do so by the Pucheus and that such treatment was fair to both sets of its lessors.” Moreover, Denbury asserted that because of its escrow agreement with the Pucheus, it did not attempt to determine the precise distance between the bottom hole and the Davidsons’ property until after receipt of the Pucheus’ notice of revocation of the escrow agreement.

The Pucheus filed a reconventional demand, naming Denbury as defendant and SunCoast as third-party defendant. They claimed Denbury committed fraud and/or breached their lease because it did not notify them that the escrow agreement was not needed to obtain the production allowable and that Denbury made misrepresentations to them concerning the need for the escrow agreement. They asked for dissolution of the lease and/or 100% of the pre-unitization royalties, or, alternatively, statutory penalties under La.R.S. 31:139 and any other applicable law; attorney fees as provided in La.R.S. 31:139 and/or La.Civ.Code art. 1958; and if the escrow letter was found to be a valid contract, “damages arising from the loss of the disputed funds and for the inconvenience of having to litigate this matter.”

Thereafter, all parties filed motions for summary judgment. Denbury and Sun-Coast filed a motion for summary judgment, seeking dismissal of the Pucheus’ claims; the Pucheus filed a motion for partial summary judgment in which they seek |4a judgment declaring them to be the owners of all royalties attributable to production from the well for the period of December 31, 2003, and March 16, 2004; and the Davidsons filed a cross motion for summary judgment, seeking a judgment denying the Pucheus the right to revoke the escrow agreement on the basis that they detrimentally relied on the Pucheus’ execution of the escrow agreement and did not take action to protect their interests. They also seek 40% of the pre-unitization production.

After a hearing, the trial court granted summary judgment in favor of Denbury and the Davidsons; it denied the Pucheus’ motion for partial summary judgment. After the trial court issued its Reasons for Decision, but before a judgment in conformity with those Reasons was signed, Denbury filed two more motions for summary judgment pertaining to disbursement of the funds deposited in the concursus.

Assignments of Error

The Pucheus assign as error the trial court’s grant of summary judgment in favor of Denbury, dismissing them claims for breach of lease, rescission of the escrow agreement, damages, and penalties and attorney fees for failure to timely pay royalties. They also assign as error the trial court’s reliance on principles of equity to grant summary judgment in favor of the Davidsons and its refusal to strike Mr. McDaniel’s affidavit that was filed in connection with Denbury’s third motion for summary judgment.

Motion for Summary Judgment

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, |sshow that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. Id. Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

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. 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.

Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66 (citation omitted).

If issues regarding subjective facts are present, such as intent, knowledge, motive, malice, or good faith, a summary judgment determination is usually not |^appropriate. Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, 00-979 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195. Credibility determinations are also inappropriate in a summary judgment procedure. Hines, 876 So.2d 764. “[T]he trier of fact who has the opportunity to hear all the evidence and to observe the witnesses” should make such determinations. Belgard v. Am. Freightways, Inc., 99-1067, p. 5 (La.App. 3 Cir. 12/29/99), 755 So.2d 982, 986, writ denied, 00-293 (La.3/31/00), 756 So.2d 1147.,

Discussion

At the heart of this litigation is the “rule of capture,” which provides that a landowner does not own the minerals beneath his property but has the right to reduce those minerals to his possession and ownership, La.R.S. 81:6, “even though his operations may cause their migration from beneath the land of another.” La.R.S. 31:8; see also Pierce v. Goldking Props., Inc., 396 So.2d 528 (La.App. 3 Cir.), writ denied, 400 So.2d 904 (La.1981). The Davidsons’ property adjoins the Pucheus’ property; therefore, migration or drainage of minerals from their property by the well is an issue for them. The rule of capture has been modified by rules adopted by the Commissioner of Conservation, who has broad authority to exercise police power to protect our natural minerals and to protect landowners’ interests. Exxon Corp. v. Thompson, 564 So.2d 387 (La.App. 1 Cir.), writ denied, 568 So.2d 1054 (La.1990).

As lessee, Denbury was obligated to act “in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit to himself and his lessor.” La.R.S. 31:122. Its obligations to the Davidsons included “endeavoring to prevent substantial drainage of the leased premises.” Breaux v. Pan Am. Petroleum Corp., 163 So.2d 406, 415 (La.App. 3 Cir.), writ denied, 246 La. 581, 165 So.2d 481 (1964). Therefore, Denbury was faced with the competing interests of the Pucheus and the David-sons. If it failed to protect the interests of either lessor, that lessor has a remedy against it for damages. Eagle Lake Estates, L.L.C. v. Cabot Oil & Gas Corp., 330 F.Supp.2d 778 (E.D.La.2004).

The escrow agreement Denbury had the Pucheus execute provides in pertinent part:

Once drilled, the well may be at an exceptional location with respect to the adjoining landowners and under Statewide Order No. 29-E and present policy of the Office of Conservation, Denbury would be unable to produce this well on a lease basis. In addition, in the event that this well is successfully completed as a producer, it will be necessary to file unitization proceedings with the Office of Conservation requesting the establishment of an appropriate unit for this well. Once unitization proceedings are filed, the Office of Conservation will not allow Denbury to produce the subject well on a lease basis. The Office of Conservation will, however, grant Den-bury a “conditional” allowable upon assurance by Denbury that revenues from all production from the subject well will be distributed in accordance with the unit order subsequently issued. The only prudent way that Denbury can make such a commitment ... is if you agree that any revenues attributable to pre-unitization production accruing to your interest may be held in escrow pending the effective date of the unit created for the subject well, and thereafter, be paid in accordance with this letter agreement. By making use of this conditional allowable, shut-in time can be minimized and revenues attributable to your ultimate unit interest will be accumulating prior to issuance of the unit order.
Accordingly, Denbury requests that you grant permission and approval to produce said well and escrow the funds attributable to production obtained from said well prior to the effective date of the order establishing a unit for said well, and to thereafter disburse the es-crowed funds in accordance with said unit order.

Office of Conservation Statewide Order No. 29-E provides that a well cannot be drilled closer than 330 feet to a property line without protecting the adjoining landowner from drainage by the well. Such wells are known as “exceptional,” as referenced in the escrow agreement. The Office of Conservation will not issue a permit for production of an exceptional well unless the operator has an escrow | sagreement from the landowner on whose property the well is situated, which protects the interests of any adjoining landowners. Permits issued in these situations are known as “conditional allowables” because they are conditioned on disbursal of funds in accordance with a unit that has not yet been established. Exxon, 564 So.2d at 389.

As stated in the escrow agreement, Den-bury thought the well “may” be an exceptional well when it was completed. This thought was based on a survey prepared for Denbury before it began drilling, which showed the well site was more than 353 feet from the Davidsons’ property line, and on the fact that the well was being directionally drilled, which meant the bottom hole of the well ultimately could be less than 330 feet from the Davidsons’ property line. Another survey was prepared when the well was completed; it indicated the well site and the bottom hole were more than 330 feet from the Davidsons’ property line. Based on these surveys, Denbury submitted a request for and obtained an allowable on a “lease basis.”

In April 2004, the Davidsons notified Denbuiy that the well was closer than 330 feet to their property. When Mr. Thomas, the landman for SunCoast who negotiated the leases with the Pucheus and the David-sons, learned that the survey used to obtain the allowable from the Office of Conservation indicated the well was more than 330 feet from the Davidsons’ property line, he also questioned the accuracy of the survey. Denbury had a new survey prepared that established the earlier survey was incorrect and the well and the bottom hole were less than 330 feet from the Davidsons’ property.

According to the Pucheus, Denbury explained to them that if the well was less than 330 feet from the property line, a conditional allowable for production would have to be obtained and that an escrow agreement was required to obtain a | ^conditional allowable. They assert that they understood the escrow agreement would not be used if a conditional allowable was not required for production. Because Denbury obtained a lease basis allowable, which did not require the escrow agreement, the Pucheus claim the escrow agreement was no longer valid.

The Pucheus essentially argue: 1) they consented to the escrow agreement because it might be required to obtain an allowable to produce the well without shutting it in; 2) their consent was conditioned on the escrow agreement being required to obtain an allowable; 3) the escrow agreement was not required to obtain an allowable; therefore, their consent to it was no longer valid; 4) Denbury should have notified them that the escrow agreement was not required to obtain an allowable because the well was being produced on a lease basis, and its failure to do so amounted to a misrepresentation or fraud and/or breach of them lease; 5) they are entitled to all pre-unitization royalties because the escrow agreement was not necessary to obtain the allowable (or for the unitization proceeding); 6) the fact that the well was an exceptional well has no bearing on their claims; and 7) they are entitled to penalties and attorney fees because Denbury failed to pay timely some royalties due them.

Denbury argues: 1) the well was more than 330 feet from the Davidsons’ property line; therefore, the basis for obtaining the escrow agreement always existed; 2) the Pucheus knew it intended to use the escrow agreement if needed to obtain a conditional allowable and/or in connection with the unitization proceeding; 3) the Pucheus’ consent to the escrow agreement was not conditioned solely on it being used to obtain a conditional allowable because it always intended to unitize the well and the escrow agreement states so; 4) it did unitize the well; 5) it did not breach the |inPucheus’ lease because it was not obligated to notify them that the well was being produced on a lease basis allowable and that the escrow agreement was not required to obtain an allowance to produce the well; 6) the Pucheus were not damaged because it would have filed the con-cursus proceeding as soon as they revoked their consent to the escrow agreement; and 7) it deposited royalties which exceeded the amounts due; therefore, the Pu-cheus are not entitled to penalties and attorney fees.

The Davidsons contend: 1) the well was less than 330 feet from their property line; therefore, the cause for the escrow agreement existed all along; and 2) it would be inequitable to allow the Pucheus to revoke their consent to the escrow agreement because they relied on the agreement to protect their interests.

Consideration of Evidence on Motions for Summary Judgment

This is a factually-intensive case with competing interests, which is complicated by the fact that the well and bottom hole were less than 330 feet from the David-sons’ property line; however, this was not established until after the well was unitized. The Pucheus’ primary complaint is that the trial court committed error in its consideration of the evidence that was submitted in support of and in opposition to the motions for summary judgment. They contend the trial court weighed and evaluated the evidence as to the merits of the claims presented and made credibility determinations, which are prohibited on summary judgment. Our review of the parties’ claims in light of the applicable law and the evidence filed in support of and in opposition to those claims reveals several genuine issues of material fact which preclude summary judgment. We identify some, but not necessarily all, of those issues.

| nConsent

Under the rule of capture, the Pu-cheus are entitled to all royalties until some point in the unitization proceeding. The Pucheus claim that point is the effective date of the unit, March 16, 2004; Den-bury claims it was earlier. Common sense dictates that the Pucheus would not relinquish royalties without good reason. They argue their consent was conditioned on the escrow agreement being required to obtain a conditional allowance and/or a unitization proceeding where a conditional allowance had been obtained. These claims are supported by John and Jacques Pucheus’ affidavits.

Denbury asserts that it explained to John and Jacques Pucheu the escrow agreement would be used to obtain a conditional allowable and/or the unitization proceeding which it always intended to file. Mr. McDaniel and Mr. Thomas state this in their affidavits, but John and Jacques deny this in their affidavits. Accordingly, questions of fact exist as to what was explained to the Pucheus and what they intended when they consented to the escrow agreement; this cannot be resolved on summary judgment.

Consent to a contract can be vitiated by error. La.Civ.Code art. 1948. Par-ol evidence is admissible to prove whether consent to a contract was vitiated by error or mistake. La.Civ.Code art. 1848; see also Myles v. Consol. Cos., Inc., 05-192 (La.App. 3 Cir. 6/1/05), 906 So.2d 677, writ denied, 05-2245 (La.2/17/06), 924 So.2d 1019 (citing Scafidi v. Johnson, 420 So.2d 1113 (La.1982)).

Denbury also asserts the escrow agreement was required for the unitization proceeding, and Mr. McDaniel and Mr. Thomas state so in their affidavits. However, as the Pucheus point out, this requirement is not stated in Statewide Order 29-E, and 112Penbury does not identify any Office of Conservation rule or regulation which contains this requirement. Moreover, there is no evidence that the escrow agreement was filed in connection with Denbury’s notice of intent to unitize or in its application to unitize. Importantly, the Davidsons did not ask about the escrow agreement until after Denbury filed its notice of intent to unitize, and it is reasonable to assume they would have asked earlier if they believed they were entitled to royalties earlier. These facts establish that issues of fact remain as to whether the escrow agreement was required for the unitization proceeding because Denbury obtained a lease basis allowable to produce the well.

Breach of Lease

The Pucheus claim Denbury breached the terms of their lease because it did not give them notice when it filed for an allowable on a lease basis. The lease provision requires the lessee to give the lessor a copy of documents filed in: “any proceedings before any governmental authority relating to spacing, unitization, or other matters effecting [sic] drilling operations ... or production.” “Proceedings” is not defined, and the term is not self-explanatory.

Denbury asserts in pleadings and memo-randa that the application process was not a “proceeding” under the pertinent lease provision which requires notice of a “proceeding”; however, no evidence was presented to establish these statements are correct. Accordingly, we find Denbury’s assertions are insufficient for summary judgment.

Fraud/Misrepresentations

The Pucheus also claim Denbury made misrepresentations to them and/or committed fraud as to the need for the escrow agreement. They argue that the trial | |Scourt improperly determined Den-bury’s obtaining a lease basis allowable was an honest mistake. Denbury asserts the Pucheus cannot prove fraud because both the Pucheus’ lease and the Davidsons’ lease required payment of 1/5 royalty; therefore, it did not have the intent to obtain an unjust advantage.for itself or to cause loss to the Pucheus.

Consent may also be vitiated by fraud. La.Civ.Code art. 1948. The trial court agreed with Denbury and concluded the Pucheus could not prove fraud and/or misrepresentation as defined in La.Civ.Code art. 1953 because they could not establish that Denbury made any misrepresentations “with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” However, suppression of the truth is an element of fraud, and “[fjraud may ... result from silence or inaction.” La.Civ. Code art. 1953. Denbury not notifying the Pucheus that it obtained a lease basis allowable may not have created an unjust advantage for itself, but it did create an unjust advantage for the Davidsons, who were paid all pre-unitization royalties when they may not have been entitled to them. Whether it intended to cause a loss to the Pucheus is subjective and not appropriate for summary judgment. Accordingly, we find the trial court’s dismissal of this claim was erroneous.

We also observe that Denbury, as lessee, was obligated to act in good faith with regard to the Pucheus’ interests. If this obligation included the duty to notify them that it obtained a lease allowable, rather than a conditional allowable, it does not matter whether the mistake was honest or not; Denbury may be obligated to the Pucheus if they suffered damage as a result of its mistake. This has not been established; therefore, summary judgment cannot be granted on this issue.

_J^¿Damages

The trial court granted summary judgment as to the Pucheus’ claims, finding they could not prove damages. This finding was based on Denbury’s argument that if they had notified the Pucheus the escrow agreement was not needed to obtain an allowable and the Pucheus revoked their consent at that time, it would have filed the concursus proceeding earlier and the Pucheus would not have any damages. However, filing a concursus proceeding does not address the issues identified above.

Furthermore, even if the escrow agreement was required for the unitization proceeding, genuine issues of material fact exist as to whether the Pucheus are entitled to royalties attributable to the David-sons’ property which accrued prior to the unitization proceeding being filed or prior to a particular stage of the proceeding. Under Denbury’s arguments, at worst, the Pucheus are entitled to royalties that accrued before January 14, 2004, the date on which its notice of intent to unitize was filed, and at best, February 6, 2004, when it filed the unitization proceeding. In the absence of the escrow agreement, the Pu-cheus claim they are entitled to all pre-unitization royalties; this claim has not been negated by Denbury’s arguments. Accordingly, genuine issues of material fact exist as to whether there would have been a period of time during which the Pucheus were entitled to all royalties if the escrow agreement was not applicable.

Penalties and Attorney Fees

In addition to the issues discussed above, the survey prepared in connection with the well also raised an issue of ownership regarding a strip of property between the Pucheus’ and the Davidsons’ properties. The Pucheus and Davidsons settled the issue by stipulating to the ownership of this strip, which is known as Tract 3. The | ^Pucheus claim Denbury failed to timely pay royalties attributable to Tract 3 and seek penalties and attorney fees as provided in La.R.S. 31:139. Denbury argues that it overpaid royalties due the David-sons by paying them directly and depositing equal amounts in the registry of the court; therefore, the royalties were, in fact, in the registry of the court, and the Pucheus’ claim is without merit.

The Pucheus urge that the dates of the actual deposits determine the validity of their claim. A spreadsheet prepared by Mr. McDaniel summarizes royalties attributable to the well and lists amounts due by month; it does not itemize specific dates on which those amounts were due and/or deposited into the registry of the court. John Pucheu addressed Denbury’s claims in an affidavit and a spreadsheet, which integrated information contained in Mr. McDaniel’s spreadsheet, to support the Pucheus’ claims that issues of fact remain as to whether royalties attributable to Tract 3 were paid timely. We have reviewed both affidavits and agree that Den-bury has not established as fact that all royalties attributable to Tract 3 were timely paid to the Pucheus after demand, and summary judgment cannot be granted on this issue.

The Davidsons’ Cross Motion for Summary Judgment

In their cross motion for summary judgment, the Davidsons urge that the escrow agreement is a stipulation pour autrui in them favor and/or that the doctrines of detrimental reliance and equity are applicable, which prevent the Pu-cheus from | ^revoking their consent to the escrow agreement. We note that if the Pucheus’ consent to the escrow agreement was vitiated by error or fraud, a contract was never formed, and these claims have no basis. DePaul Hosp. v. Mut. Life Ins. Co. of New York, 487 So.2d 143 (La.App. 4 Cir.), writ denied, 492 So.2d 1218 (La.1986).

However, even if the escrow agreement is ultimately determined to be valid, the Davidsons are not entitled to summary judgment against the Pucheus. Louisiana Civil Code Article 1978 provides, “[a] contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.” A stipulation pour autrui is never presumed, and the intent to benefit a third party must be clearly manifested in the contract. Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364 (La.10/15/06), 939 So.2d 1206. While Denbury claims the escrow agreement was obtained to protect the Davidsons’ interests, the intent to benefit the Davidsons is not manifested in the escrow agreement itself. Furthermore, John and Jacques Pucheu specifically deny that they were informed by Mr. McDaniel or Mr. Thomas that Denbury intended to protect the Davidsons’ interests with the escrow agreement. These opposing claims cannot be resolved on summary judgment.

Louisiana Civil Code Article 1967 provides in pertinent part, “[a] party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.” Article 1967 uses the term “party” and has been held to not apply to third parties. Magic Moments Pizza, Inc. v. La. Rest. Ass’n, 02-160 (La.App. 5 Cir. 5/29/02), 819 So.2d 1146; Barrie v. V.P. Exterminators, Inc., 614 So.2d 295 (La.App. 4 Cir.), rev’d on other grounds, 625 So.2d 1007 (La.1993). The Davidsons are third parties to the escrow agreement. Accordingly, detrimental reliance is not applicable to their claims against the Pucheus.

The trial court also found merit in the Davidsons’ claim that equity requires the Pucheus not be allowed to revoke their consent to the escrow agreement. The Davidsons rely on La.Civ. Code arts. 2054 and 2055 as support for this claim. Article 2054 provides in part, “[w]hen the parties made no provision for a particular situation....” Pursuant to Article 2055, equity in Article 2054 “is based on the principles that no one is allowed to enrich himself unjustly at the expense of another.” It is the basis for a claim of unjust enrichment. For a party to recover under the theory of unjust enrichment, he must prove an enrichment, an impoverishment, “a causal relationship between the enrichment and the impoverishment,” “an absence of justification or cause for the enrichment or impoverishment,” and the lack of any other remedy at law. Fogleman v. Cajun Bag & Supply Co., 93-1177, pp. 4-5 (La.App. 3 Cir. 6/15/94), 638 So.2d 706, 709, writ denied, 94-1900 (La.10/28/94), 644 So.2d 375 (quoting Kirkpatrick v. Young, 456 So.2d 622, 624 (La.1984). If a party has another legal remedy to prevent the loss he seeks to recover, unjust enrichment is not a proper ground for recovery. Id.

The Pucheus’ claims are directed at Denbury’s actions. If their claims are found to be valid, Denbury will likely be found to have breached its obligation to protect the Davidsons, as required by the terms of their lease, and the Davidsons will have a remedy against it. Eagle Lake Estates, L.L.C., 330 F.Supp.2d 778. Accordingly, the Davidsons’ claims of unjust enrichment are not appropriate for summary judgment.

| vLThe Well’s Actual Location

Denbury and the Davidsons argue that the Pucheus’ claims are unfounded and/or unfair because the well was actually less than 330 feet from the Davidsons’ property line. This fact does not resolve the issues of fact which exist as to the Pucheus’ claims but rather compounds them, resulting in additional issues of fact, which prohibit summary judgment.

Admissibility of Affidavit

The Pucheus’ last assignment of error is that the trial court erred in admitting Mr. McDaniel’s affidavit which was filed as support for Denbury’s third motion for summary judgment. They urge that the affidavit, which contains information compiled from various records prepared and maintained by other Denbury personnel, is inadmissible because it is not based on personal knowledge.

The requirement of personal knowledge in the context of affidavits was recently addressed in Hibernia National Bank v. Rivera, 07-962, pp. 8-9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 539-40 (citations omitted). The court explained:

Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. The purpose of the requirement of “personal knowledge” is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment.
Where business records are concerned, as in the present case, the courts have deemed La.C.C.P. art. 967 satisfied when the affiant is qualified to identify the business records as such. The affi-ant has not been required to show that he personally prepared the business records, or that he had direct, independent, first hand knowledge of the contents thereof.

Mr. McDaniel’s affidavits do not establish that they are based on personal knowledge as required by La.Code Civ.P. art. 967. He does not identify the records | mfrom which he prepared the spreadsheets attached to his affidavits or explain that he is personally familiar with the records and why. Accordingly, the affidavit is insufficient for summary judgment.

Denbury’s reliance on La.Code Evid. art. 1006 as support for its claim that the affidavits satisfy the requirements of La. Code Civ.P. art. 967 is misplaced. Article 1006 provides that voluminous records can be summarized “in the form of a ... calculation.” It does not dispense with the requirement of personal knowledge.

Conclusion

For the reasons discussed herein, the judgments of the trial court are reversed. Costs of this appeal are assessed to Den-bury and the Davidsons.

REVERSED.

      . Thereafter, the Fontenot-Pucheu, L.L.C. was formed by Jean F. Pucheu and her children. Hereinafter, reference to the Pucheus includes the Fontenot-Pucheu, L.L.C.

      . Louisiana Revised Statutes 31:139 provides:
      If the lessee pays the royalties due in response to the required notice, the remedy of dissolution shall be unavailable unless it be found that the original failure to pay was fraudulent. The court may award as damages double the amount of royalties due, interest on that sum from the date due, and a reasonable attorney’s fee, provided the original feil-ure to pay royalties was either fraudulent or willful and without reasonable grounds. In all other cases, such as mere oversight or neglect, damages shall be limited to interest on the royalties computed from the date due, and a reasonable attorney's fee if such interest is not paid within thirty days of written demand therefor.