author: GAIDRY, J.

text:
    Don Michael LEONARD v. John R. REEVES and First Mercury Insurance Company.
    No. 2011 CA 1009.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 2012.

      Corbett L. Ourso, Jr., Hammond, LA, for Plaintiff-Appellant Don Miehael Leonard.
    Jack E. Truitt, Nancy N. Butcher, Cov-ington, LA, for Defendants-Appellees John R. Reeves and First Mercury Insurance Company.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|2A former client of an attorney appeals a summary judgment dismissing his legal malpractice action against the attorney. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff-appellant, Don Michael Leonard, and his ex-wife, Cynthia Leonard Probst, were divorced on July 24, 1990. On August 8, 1995, they agreed to entry of a consent judgment in the 24th Judicial District Court for the Parish of Jefferson, relating to the support of their two minor sons. Mr. Leonard was ordered to pay $543.00 per month in support and to provide health insurance coverage for the minors. He was further ordered to pay 75% of extraordinary medical expenses not covered by insurance. Mr. Leonard subsequently became a domiciliary of the State of Mississippi, and Ms. Probst established her domicile in Ponchatoula in Tangipahoa Parish.

On September 16, 2002, venue of the child support proceeding was transferred to the 21st Judicial District Court for the Parish of Tangipahoa. On May 15, 2003, Ms. Probst filed a petition to make the 1995 consent judgment executory and a combined motion for contempt, to increase child support, and for sole custody. The hearing on the motion was fixed for June 23, 2003. Ms. Probst’s attorney attempted to serve Mr. Leonard by certified mail, pursuant to the Louisiana Long Arm Statute, La. R.S. 13:3201, et seq., at his last-known address in Mississippi. In the meantime, the hearing was continued to August 18, 2003. Notices of the certified mail were left at the Mississippi address on June 9, 16, and 24, 2003, but the certified mail was returned to Ms. Probst’s attorney on July 3, 2003, marked “unclaimed.” Ms. Probst’s attorney did not file an affidavit verifying the service by certified |smail, and there was no evidence that Ms. Probst’s attorney served Mr. Leonard with notice of the new hearing date of August 18, 2003.

The hearing on Ms. Probst’s motions proceeded as scheduled on August 18, 2003. Based upon Ms. Probst’s testimony and documentary evidence submitted, the trial court awarded Ms. Probst $36,612.83 in past due medical expenses for the minors. Mr. Leonard’s child support obligation was further increased to $843.00 per month, retroactively to the date the motion was filed, the increase being predicated upon the cost of health insurance to be procured by Ms. Probst directly. The trial court’s judgment, signed on December 2, 2004, also held Mr. Leonard in constructive contempt of court, awarded Ms. Probst sole custody, and terminated Mr. Leonard’s visitation privileges.

In March 2007, Mr. Leonard retained John R. Reeves, a Mississippi attorney, to represent him in proceedings in that state initiated by Ms. Probst to attempt to enforce the 2004 judgment (the “default judgment”). The Mississippi court refused to enforce the default judgment on the grounds that service of process did not meet Mississippi’s procedural due process standards.

On January 31, 2008, Ms. Probst filed a petition in the Louisiana trial court to “reaffirm” the default judgment and a motion for contempt, alleging that Mr. Leonard had failed to pay $20,066.64 in court-ordered child support and $36,612.83 in medical expenses for the minors. Brenda Braud, a Louisiana attorney, filed a motion on Mr. Reeves’s behalf to admit him to practice pro hac vice in the Louisiana child support proceeding. The order granting the motion was signed on March 24, 2008.

14A hearing on Ms. Probst’s petition to reaffirm the default judgment and motion for contempt was apparently scheduled in June 2008. Mr. Reeves appeared on behalf of Mr. Leonard. The trial court evidently ruled that there was no legal basis for the petition, but the hearing on the contempt motion was continued to August 18, 2008. In a letter to Mr. Leonard dated June 22, 2008, advising him of the results of the hearing, Mr. Reeves stated:

The judge advised that the only way to set aside that earlier [default] judgment is by a petition to annul the judgment. I am working on that now and will get it filed in due course....
The hearing date on your ex-wife’s petition [sic] to find you in contempt of court and on your petition to annul the judgment is August 18, 2008 at 9:30 a.m. ... You and I discussed that you might not want to come inside the courthouse because if the judge rejects our petition to annul and grants their petition [sic] to find you in contempt, he might put you in jail right then. If you’re not there he can’t do it.

Mr. Reeves filed a “Motion to Annul Judgment” on August 15, 2008, seeking the annulment of the default judgment based on lack of proper service and notice of hearing. It was also alleged that the amount of the award for unpaid medical bills was obtained through “inaccurate representations” regarding the amounts actually billed and the amounts actually paid or otherwise credited.

On August 18, 2008, rather than taking evidence and ruling on the pending contempt motion and motion for nullity, the trial court suggested that the parties first attempt to resolve the dispute by negotiation and compromise. The parties and their attorneys then went to the office of Ms. Probst’s attorney, where an agreement was eventually reached that, in lieu of seeking to annul the default judgment, Mr. Leonard would settle Ms. Probst’s claims by paying the sum of $36,000.00 for unpaid monthly child support and medical expenses in monthly installments of $300.00. During the course of the subsequent hearing, the terms of the parties’ agreement | fiwere recited and both parties, upon examination by the trial court, expressed their understanding of and agreement with those terms. The trial court executed a “Stipulated Judgment,” or consent judgment, that day, providing that Mr. Leonard “owes the net sum of [$36,-000.00] to [Ms. Probst] for all claims of back [sic] due child support and medical expenses,” to “be paid at the rate of no less than $300 per month,” and incorporating an income assignment. The consent judgment was prepared by Ms. Probst’s attorney and also signed as “approved” by both parties and Mr. Reeves.

On May 11, 2009, Ms. Probst filed a rule for contempt, alleging that Mr. Leonard had willfully failed to comply with the consent judgment of August 18, 2008. Mr. Leonard, whose representation had been assumed by Ms. Braud, responded with a petition for nullity, seeking to annul the 2004 default judgment and the 2008 consent judgment on the grounds that both were absolute nullities. Specifically, with regard to the latter judgment, Mr. Leonard contended that because it was predicated upon the absolutely null default judgment, his consent was based upon error as to the principal cause underlying the parties’ agreement, thereby rendering the agreement and the consent judgment predicated upon it nullities.

Both Ms. Probst’s rule for contempt and Mr. Leonard’s petition for nullity were assigned for hearing on July 30, 2009. In the course of a pre-hearing conference in chambers, the trial court expressed its opinion that while the default judgment was an absolute nullity, the 2008 consent judgment (the “first consent judgment”) was probably not. The parties and their attorneys then conferred and agreed to compromise the first consent judgment, in the amount of $36,000.00, upon Mr. Leonard’s payment of the sum of $20,000.00 in full within 90 days, or by October 30, 2009. It was further agreed that in default of such payment, the first consent judgment | firemained valid and enforceable. The terms of the compromise were recited on the record, and both parties, under examination by the trial court, expressed their understanding of those terms. On August 24, 2009, the trial court signed its judgment (the “second consent judgment”), prepared by Ms. Braud, incorporating the terms of the compromise, as well as the court’s ruling that the default judgment was an absolute nullity and the first consent judgment was “fully enforceable.” Ms. Probst’s rule for contempt was continued without date pending the satisfaction of the judgment.

Mr. Leonard instituted the present action against Mr. Reeves and his professional liability insurer on August 17, 2009. He alleged that Mr. Reeves was negligent in filing a motion to annul the 2004 default judgment, rather than a petition; in agreeing to negotiate Ms. Probst’s claims instead of proceeding to the hearing on the motion to annul; and in advising Mr. Leonard to enter into the first consent judgment on that date, despite having been provided with documentation that all monthly child support due under the 1995 judgment had been paid and that Mr. Leonard had maintained health insurance on the minors. Mr. Reeves and his insurer answered the petition, denying liability.

On December 15, 2010, Mr. Reeves and his insurer filed a motion for summary judgment, contending that Mr. Leonard could not demonstrate that Mr. Reeves’s actions constituted legal malpractice and that he suffered any damages caused by such actions.

The motion for summary judgment was heard on January 31, 2011. Following argument of counsel, the trial court granted the motion. The trial court’s judgment was signed on February 10, 2011, dismissing Mr. Leonard’s claims with prejudice. Mr, Leonard appeals, contending that the [7trial court erred in finding no genuine issue of material fact and in granting summary judgment on that basis.

ISSUES PRESENTED FOR REVIEW

Mr. Leonard urges that we consider the following issues in the determination of this appeal:

Whether [Mr. Reeves] had the duty to file a [petition for [n]ullity to seek the nullification of a prior judgment against [Mr. Leonard], rather than filing a [m]otion for [n]ullity.
Whether [Mr. Reeves] had a duty to review alleged medical bills with his client before advising him that they were due, and using this determination as the basis for advising [Mr. Leonard] to enter into a compromise agreement.
Whether, in an action for malpractice, where [the client] alleges that he did not owe any medical bills, and [the attorney] alleges that [the client] did owe bills, [the client] bears the burden of proving that he did not owe money, or [the attorney] bears the burden of proving that [the client] did owe the money.
Whether a fact question exists as to the existence of any debt by [Mr. Leonard] to his ex-wife that would have formed a legitimate basis for compromise.
Whether [Mr. Reeves] performed his duty as legal counsel for [Mr. Leonard.]

LAW AND ANALYSIS

Standard of Review and General Principles of Summary Judgment

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202, p. 5 (La.App. 1st Cir.2/12/10), 35 So.3d 334, 339-40, writ denied, 10-0715 (La.6/4/10), 38 So.3d 302. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in [sorder to see whether there is a genuine need for trial. Hines v. Garrett, 04-0806, p. 7 (La.6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

The Standard of Care

A claim for legal malpractice is stated when the plaintiff alleges that there was an attorney-client relationship, the attorney was guilty of negligence or professional impropriety in his relationship with the client, and the attorney’s misconduct caused the client some loss. Prestage v. Clark, 97-0524, p. 9 (La.App. 1st Cir.12/28/98), 723 So.2d 1086, 1091, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800. But a client can have no greater rights against his attorney for the negligent handling of the client’s |flclaim (or, as here, the client’s defense) than were available in the underlying action or dispute. See Costello v. Hardy, 03-1146, pp. 9-10 (La.1/21/04), 864 So.2d 129, 138.

The standard of care that an attorney must exercise in the representation of a client is that degree of care, skill, and diligence that is exercised by prudent practicing attorneys in his locality. Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 786, 269 So.2d 239, 244 (La.1972); Frisard v. State Farm Fire & Cas. Co., 06-2353, pp. 5-6 (La.App. 1st Cir.11/2/07), 979 So.2d 494, 497. He is not required to exercise perfect judgment in every instance. However, the attorney’s license to practice in Louisiana (including a limited pro hoc vice admission) and his contract for employment hold out to the client that he possesses certain minimal skills, knowledge, and abilities. Ramp, 263 La. at 786, 269 So.2d at 244.

The legal standard of care may vary depending upon the particular circumstances of the relationship. Teague v. St. Paul Fire & Marine Ins. Co., 06-1266, p. 25 (La.App. 1st Cir.4/7/09), 10 So.3d 806, 825, writ denied, 09-1030 (La.6/17/09), 10 So.3d 722. For example, our courts have recognized that the extent of an attorney’s duty to a client may depend, in part, on the client’s particular circumstances and situation. Prestage, 97-0524 at p. 9, 723 So.2d at 1091.

Proof of the violation of an ethical rule by an attorney, standing alone, does not constitute actionable legal malpractice per se or proof of factual causation. See Teague, 06-1266 at p. 26, 10 So.3d at 825. However, the Rules of Professional Conduct will usually be relevant in defining the legal standard of care, which may vary depending upon the particular circumstances of the relationship. Id. We will therefore examine those rules applicable to the negligent acts alleged by Mr. Leonard.

|10The Rules of Professional Conduct are set forth in Article 16 of the articles of incorporation of the Louisiana State Bar Association. Rule 1.1(a) provides that:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Under this rule, an attorney owes his client the duty of diligent investigation and research. Prestage, 97-0524 at p. 9, 723 So.2d at 1091.

Rule 1.4 provides, in pertinent part, that:

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; ...
(b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.

Rule 1.0(e), referenced above, defines “informed consent” as follows:

(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer had communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

| nRule 1.2 further provides, in pertinent part, that:

(a) Subject to the provisions of Rule 1.16 and to paragraphs (c) and (d) of this Rule, a lawyer shall abide by a client’s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by the client’s decision whether to settle a matter....

(Emphasis added.)

The verification of Mr. Reeves’s pro hac vice application, signed by both Mr. Reeves and Ms. Braud, affirmed that they were “familiar with the Louisiana Rules of Professional Conduct, the rules of discipline of the Louisiana Attorney Disciplinary Board, and the local rules and court procedures of the court or agency before which the applicant is seeking to practice.”

Was the Burden of Proof of Causation Shifted to the Attorney?

Mr. Leonard contends that in this legal malpractice matter, Mr. Reeves bore the burden of proving that there were unpaid extraordinary medical expenses owed by Mr. Leonard, justifying the legal advice given. Thus, he contends that Mr. Reeves, as the mover bearing the burden of proof at trial on the issue of causation, was required to demonstrate the absence of any genuine issue of fact on that issue in order to be entitled to summary judgment. See La. C.C.P. art. 966(C)(2).

In the case of Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La.1982), our supreme court modified the former “case within a case” evidentiary burden of proof in legal malpractice cases. The “case within a case” approach, as its name implied, required a plaintiff in a legal malpractice case to not only prove his former attorney’s negligence in handling the underlying legal matter, but also that the underlying claim or 112litigation would have been successful but for the attorney’s negligence. Id. at 1109-10. The defendant attorneys in Jenkins failed to file suit on their client’s personal injury claim until two days after prescription had run.

The supreme court summarized its holding in Jenkins as follows:

[W]hen the plaintiff (as in this case) proves that negligence on the part of his former attorney has caused the loss of the opportunity to assert a claim and thus establishes the inference of causation of damages resulting from the lost opportunity for recovery, an appellate court (viewing the evidence on the merits of the original claim in the light most favorable to the prevailing party in the trial court) must determine whether the negligent attorney met his burden of producing sufficient proof to overcome plaintiffs prima facie case.

Id. at 1110. Application of the foregoing rule in effect provides a presumption of cause-in-fact in favor of the client. See 21 Frank L. Maraist, et al., Louisiana Civil Law Treatise: Louisiana Lawyering § 18.5 at p. 375 (2007; 2011 Supp.).

By its own terms, the Jenkins rationale is applicable only to “such a situation” as was involved in that case, i.e., the final or complete loss of an opportunity to assert a legal claim (or, conversely, to present a defense) caused by an attorney’s negligent failure to comply with the applicable procedural standards or constraints. Jenkins, 422 So.2d at 1110. The Jenkins rule does not necessarily apply to all situations of alleged legal malpractice, as confirmed by subsequent jurisprudence. See, e.g., Rawboe Properties, L.L.C v. Dorsey, 06-0070, pp. 9-10 (La.App. 4th Cir.3/21/07), 955 So.2d 177, 182-83, writ denied, 07-0763 (La.6/1/07), 957 So.2d 178. In League, we held that the Jenkins rule did not apply in the specific context of that case, ie., “where the [client], an insured, is claiming the loss of an opportunity to defend a monetary claim, the immediate cause of such lost opportunity being the independent decision of the [client’s] insurer to settle 11Rthe adverse claim within its policy’s monetary liability limits[.]” Teague, 06-1266 at p. 28, 10 So.3d at 826.

In the context of the present action, the plaintiff client is claiming the loss of an opportunity to successfully defend a monetary claim against him, the immediate cause of such lost opportunity and the resulting adverse result being the client’s decision (allegedly based solely upon the attorney’s bad advice and malpractice) to compromise the adverse claim. We conclude that although the Jenkins rule could conceivably apply under these facts, Mr. Leonard is ultimately not entitled to the benefit of its presumption of causation and damages, as he failed to establish the predicate prima facie case, for the reasons explained below.

Did the Use of the Motion for Nullity Constitute Malpractice?

Mr. Leonard’s allegations of Mr. Reeves’s negligence are initially premised on the proposition that the filing of a procedurally improper pleading, a motion for nullity, essentially deprived Mr. Leonard of the opportunity to successfully defend all of Ms. Probst’s claims and forced him into a disadvantageous compromise under the threat of a possible contempt order. This initial premise, however, is erroneous, for the following reasons.

The nullity of a final judgment may be demanded for vices of either form or substance. La. C.C.P. art. 2001. A vice of form renders the judgment an absolute nullity. See La. C.C.P. art. 2002, Official Revision Comments-1960, (f). In contrast to a vice of form, a vice of substance gives rise only to relative nullity. Bernard v. Fireside Commercial Life Ins. Co., 633 So.2d 177, 184, writ denied, 93-3170 (La.3/11/94), 634 So.2d 839.

A judgment rendered “[ajgainst a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been 114taken,” is subject to an action for nullity for a vice of form. La. C.C.P. art. 2002(A)(2). This was the vice of form raised by the motion to annul judgment filed on Mr. Leonard’s behalf by Mr. Reeves.

It is quite true, as asserted by Mr. Leonard, that an action to annul a judgment is not expressly included in the exclusive list of matters that may be disposed of through summary proceedings. See La. C.C.P. art. 2592. Our courts have repeatedly held than an action for nullity based upon a vice of substance (fraud or ill practices) should be instituted by petition, with citation and proper service of process, utilizing an ordinary proceeding, rather than a summary proceeding or a contradictory motion or rule to show cause. See Nethken v. Nethken, 307 So.2d 563, 565 (La.1975), and Knight v. Sears, Roebuck & Co., 566 So.2d 135, 137 (La.App. 1st Cir.), writ denied, 571 So.2d 628 (La.1990).

An action to annul a judgment for a vice of form, however, may be brought by an interested person at any time, before any court, and through a collateral proceeding. See La. C.C.P. art. 2002(B) and Smith v. LeBlanc, 06-0041, p. 6 (La.App. 1st Cir.8/15/07), 966 So.2d 66, 71. A “collateral attack” is an attempt to impeach the decree or judgment from one proceeding in another proceeding not instituted for the express purpose of annulling the judgment. Smith, 06-0041 at p. 5 n. 2, 966 So.2d at 71 n. 2. Such a collateral proceeding includes the assertion of the absolute nullity of a judgment as an affirmative defense, such as in an answer or by exception. Id., 06-0041 at pp. 6-7, 966 So.2d at 72; see also Gilbert v. Pearson, 478 So.2d 937, 939 (La.App. 3rd Cir.1985), writ denied, 482 So.2d 629 (La.1986).

It seems only reasonable, then, that an absolutely null judgment may also be collaterally attacked by procedural means short of a petition for 116nullity, such as a contradictory motion or rule. In fact, this is what the courts have consistently held. See Standard Mach. Co., Inc. v. Melancon-Bourgeois Lumber Co., 60 So.2d 238, 239-40 (La.App. 1st Cir.1952) (exception); Schniebolk v. Goldstein, 409 So.2d 1250, 1251 (La.App. 4th Cir.1982) (summary motion); Fritz v. Whitfield, 499 So.2d 962 (La.App. 3rd Cir.1986) (per curiam) (contradictory motion); Bryant v. Pierson, 583 So.2d 97, 99-100 (La.App. 3rd Cir.1991) (motion to vacate); Estate of Bradford v. Thomas, 29.807, p. 4 (La.App. 2nd Cir.9/24/97), 700 So.2d 1030, 1033 (exception); Anderson v. Anderson, 98-1012, p. 2 (La.App. 4th Cir.8/26/98), 718 So.2d 582, 583 (rule); Pollock v. Talco Midstream Assets, Ltd., 44,269, pp. 4-9 (La. App. 2nd Cir.9/23/09), 22 So.3d 1033, 1036-39 (motion for new trial).

Thus, Mr. Leonard is incorrect in contending that Mr. Reeves could not have properly raised the issue of the absolute nullity of the default judgment by a procedural vehicle other than a petition. Mr. Reeves’s use of a motion to challenge the default judgment was procedurally proper and did not constitute malpractice. Mr. Leonard therefore retained the initial burden of establishing a prima facie case of loss due to the other alleged malpractice: Mr. Reeves’s alleged negligent failure to investigate the merits of Ms. Probst’s claims for unpaid and past due child support and medical expenses and his consequent bad advice to compromise.

| wWere the Compromise and First Consent Judgment Vitiated by Duress?

Before we examine the issues relating to the alleged bad advice, we must examine the context in which that advice was given, as Mr. Leonard claims that due to Mr. Reeves’s alleged negligence, he was confronted with “the false choice of going to jail” or entering into “an ill-advised [stipulated judgment.” That is, Mr. Leonard argues that he was exposed to duress in the form of an impending threat of being wrongfully held in contempt of court and incarcerated, despite clear evidence of his compliance with the terms of the 1995 judgment, and that Mr. Reeves’s negligence “plac[ed] him in a position to have to negotiate.”

A consent judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Hebert v. Drewitz, 09-0798, p. 3 (La.App. 1st Cir.10/27/09), 29 So.3d 607, 608. Its binding force arises from the voluntary acquiescence of the parties, rather than the adjudication by the court. Id. A consent judgment may be annulled or rescinded for an error of fact or error of the principal cause of the agreement. Id.

Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation. La. C.C. art. 1959. (Emphasis added.) Consent is vitiated even when duress has been exerted by a third person. La. C.C. art. 1961. Generally, in the present context, “duress” means “a threat of harm made to compel a person to do something against his or her will or judgment” or, more specifically, “a wrongful threat made by one person to compel a manifestation of seeking assent by another person to a transaction without real volition.” Black’s Law Dictionary 542 (8th ed.2004). (Emphasis added.) “Duress of imprisonment” is defined as “[t]he 117wrongful confining of a person to force the person to do something.” Id. (Emphasis added.) See La. C.C. art. 1959, Revision Comments — 1984, (b).

Inherent in the foregoing definitions is the element of lack of legal justification, or wrong, behind the threat or action. If Mr. Leonard had any real apprehension of incarceration for contempt of court, such could only have been based upon: (1) the court’s inherent authority to enforce its lawful judgments; and (2) Ms. Probst’s legal right to seek such redress for any proven willful violation of such judgments on Mr. Leonard’s part. This simply does not, by definition, constitute duress for purposes of vitiating his consent to entry of judgment. A threat of doing a lawful act or a threat of exercising a right does not constitute duress. La. C.C. art. 1962.

As emphasized by Mr. Reeves, the transcript of the hearing relating to entry of the first consent judgment shows that Mr. Leonard expressed his understanding of and consent to its terms. Based upon our de novo review of the record, we conclude that Mr. Leonard has not demonstrated any genuine factual issue as to any alleged duress exerted by either Ms. Probst, the trial court, or Mr. Reeves, or lack of voluntary consent on his part. See City of Baton Rouge v. Douglas, 07-1153, pp. 6-7 (La.App. 1st Cir.2/8/08), 984 So.2d 746, 749-50, writ denied, 08-0939 (La.6/20/08), 983 So.2d 1284, and Shultz v. Shultz, 02-2534, pp. 4-5 (La.App. 1st Cir.11/7/03), 867 So.2d 745, 747-48.

Bad Advice and Causation

Attorneys are obligated to scrutinize any contract that they advise their clients to execute, and are required to disclose the full import of the agreement and the possible consequences that may arise upon execution of it. Ramp, 263 La. at 786, 269 So.2d at 244. Conversely, while a client certainly has the right to rely upon the informed advice of his attorney, an 11Rattorney has the reciprocal right to expect accurate and complete information from his client in formulating such advice and presenting his client’s case. See, e.g., Brown v. Sanders, 06-1171, p. 5 (La.App. 1st Cir.3/23/07), 960 So.2d 931, 935.

As observed by our supreme court, “[t]he very fact of litigation is a result of the disparity of professional judgment of those in the legal profession.” Ramp, 263 La. at 786, 269 So.2d at 244. In determining whether incorrect advice rises to actionable legal malpractice, the question is not whether or not the advice given was, by hindsight, correct, but rather whether or not the advice given was the result of the proper exercise of skill and professional judgment under the conditions existing at the time the advice was given. Quarles Drilling Corp. v. Gen. Accident Ins. Co., 538 So.2d 1029, 1032 (La. App. 4th Cir.), writ denied, 541 So.2d 856 (La.1989), citing Smith v. St. Paul Fire & Marine Ins. Co., 366 F.Supp. 1283, 1286 (M.D.La.1973), aff'd, 500 F.2d 1131 (5th Cir.1974). Again, we emphasize that in order to have the benefit of the Jenkins rule, and to in turn shift to Mr. Reeves the burden of proving that there was no genuine issue of material fact as to causation of “some loss,” Mr. Leonard was required to meet the threshold burden of showing that Mr. Reeves’s advice to settle the claim was in fact bad advice, founded upon his alleged malpractice in failing to properly investigate and competently evaluate the claim, and that, but for such bad advice, he would not have lost the opportunity to successfully defend Ms. Probst’s claims against him.

The proper method of determining whether an attorney’s malpractice is a cause-in-fact of damage to his client is whether the performance of that act would have prevented the damage. Prestage, 97-0524 at p. 9, 723 So.2d at 1091. Thus, simply establishing that an attorney was negligent, whether | abased upon the failure to conform to an ethical rule or some other standard, would not be sufficient to state a cause of action for legal malpractice. See Exec. Recruitment, Inc. v. Guste, Barnett & Shushan, 533 So.2d 129, 131 (La.App. 4th Cir.1988), writ denied, 535 So.2d 742 (La.1989). In Teague, 06-1266 at p. 47, 10 So.3d at 836, we cited the following language from Purdy v. Pacific Auto. Ins. Co., 157 Cal.App.3d 59, 203 Cal. Rptr. 524 (Cal.App.1984), which is relevant to the issue of causation in a legal malpractice case predicated upon alleged bad advice:

A lawyer cannot properly compel a client to take his or her advice; a lawyer can strongly advise action by a client, action highly beneficial to the client or others, action clearly indicated by known facts, but there is no duty on the part of the client to follow the lawyer’s lead— that is not the nature of the relationship, assuming that the client is legally capable of acting on his own behalf.

Purdy, 157 Cal.App.3d at 77-8, 203 Cal. Rptr. at 534-35.

The element of legal causation, in addition to causation in fact, must also be proven under the duty-risk analysis. Its importance in a legal malpractice action has been emphasized as follows:

As in any tort claim, the plaintiff in a malpractice claim must establish that the attorney’s breach was not only the factual cause but also the legal cause of any injury. Legal or proximate cause, or scope of duty, normally does not present a significant or serious problem in a legal malpractice case. However, the issue does arise.... In sum, the legal cause issue, like so many duty/risk or legal cause issues under Louisiana tort law, is an important one that should not be ignored. However it may provide practical and intellectual challenges to the client, lawyer, judge, and jury.

21 Frank L. Maraist, et al, Louisiana Civil Law Treatise: Louisiana Lauxyering § 18.5 at pp. 375-76 (2007).

In his supporting affidavit, Mr. Reeves described the negotiations that formed the basis of the first consent judgment. He emphasized that he informed Ms. Probst’s counsel that he was confident that the default |2njudgment was an absolute nullity. Ms. Probst’s counsel countered by stating that even if the default judgment was absolutely null, Ms. Probst was nevertheless prepared to pursue her prior claims for $20,066.64 in past due child support and $36,612.83 in unpaid medical expenses, exclusive of attorney fees and costs. Mr. Reeves additionally attested to the following facts:

At no time during the negotiations [of August 18, 2008] did Leonard claim that he had paid his child support obligations in full; and Leonard even conceded that he was in arrearage because at times he was not earning enough to meet his child support obligations, and was never able to make up the difference.
The parties and their attorneys reviewed, closely examined and compared all the child support payments Probst claimed were in arrearage to what Leonard claimed he had paid, and arrived at a balance due of $15,627.83.
Probst provided medical invoices to support her claims regarding the $36,612.83 in medical expenses she paid, none of which had been paid by private insurance and/or Medicaid, as a large portion of the medical bills were for psychiatric care, which Medicaid and/or insurance refused to pay for, of one of the minor children, who had a mental disability due to allegedly being abused by Mr. Leonard.
Although Leonard claimed that he maintained health insurance on his minor children, he either never advised Probst of this, never furnished her with proof of insurance so that she could use the coverage, and/or provided her with the insurance information, only to have her find out a few weeks later, that the coverage had been cancelled.
At no time during [Mr. Reeves’s] representation of Leonard, did Leonard ever advise, state[,] or claim that he had paid all of his child support payments in full and that he was not in arrears for any child support payments.
Leonard fully participated in the negotiation/mediation, and willingly and voluntarily agreed to the Consent/Stipulation [sic ] Judgment.

|21The substance of Mr. Reeves’s affidavit was corroborated in the foregoing respects by the affidavit of Brett K. Duncan, the attorney representing Ms. Probst at the time of the first consent judgment.

In his affidavit, submitted in opposition to the motion for summary judgment, Mr. Leonard simply verified the allegations of his petition as true and correct, and added the following:

The Louisiana court instructed Reeves to file a Petition to Annul the judgment. This was confirmed in a letter sent to Affiant by Reeves on June 22,2008....;
Reeves did not file the proper pleading, and so failed to nullify the judgment prior to, or at the time of the August 18, 2008 hearing;
Affiant provided documentation to Reeves that he was current in all child support obligations arising out of the August 8,1995 Consent Judgment;
Affiant agreed to the terms of the August 18, 2008 judgment on advice of Reeves.

We note that Mr. Leonard’s statement that Mr. Reeves “did not file the proper pleading” is not only legally incorrect, but also amounts to a mere legal conclusion or opinion on the part of a layman rather than a statement of fact. In her affidavit, Ms. Braud simply stated that the default judgment was an absolute nullity (a fact undisputed by the parties), that Mr. Reeves filed a motion for nullity rather than a petition for nullity (also an undisputed fact), and that on August 18, 2008, Mr. Leonard entered into the first consent judgment “in satisfaction of the absolutely null judgment” on the advice of Mr. Reeves.

| g?The affidavits of Mr. Leonard and Ms. Braud fail to adequately rebut the affidavits of Mr. Reeves and Mr. Duncan and to “set forth specific facts showing that there is a genuine issue for trial” on the material facts relating to his claim against Mr. Reeves. See La. C.C.P. art. 967(B). At best, Mr. Leonard’s affidavit and the factual allegations of his petition simply establish that there was a genuine factual dispute between him and Ms. Probst as to whether his child support obligations, including payment of extraordinary medical expenses, were current as of August 18, 2008. That dispute was the basis for the compromise and consent judgments to which those parties agreed. It does not serve to establish a genuine factual dispute as to the issue of whether Mr. Reeves’s advice constituted malpractice. Significantly, even if Mr. Leonard had in fact paid all of his monthly support obligations due under the 1995 consent judgment, the extraordinary medical expenses claim of $36,612.83, supported as attested to by Mr. Reeves and Mr. Duncan, provided a basis for a valid compromise. Additionally, Mr. Leonard’s affidavit must be read together with and in light of his sworn testimony at the consent judgment hearing on August 18, 2008, in which he affirmed his consent and agreement to the content of the first consent judgment, the factual stipulations forming the basis of that judgment, and his acknowledgment of the debt represented by that judgment.

In short, Mr. Leonard has failed to demonstrate any valid factual basis to “second-guess” Mr. Reeves’s professional advice regarding the compromise; he has not shown that he can prove that the advice was bad advice. See Quarles Drilling Corp., 538 So.2d at 1032. Mr. Leonard has failed to show that the final result in the trial court on the support claim after an evidentiary hearing on August 18, 2008, would more likely than not have jabeen more favorable to him, but for the alleged acts of legal malpractice.

Additionally, the ultimate decision to compromise the child support claim and to satisfy the first consent judgment by consenting to the second rested with Mr. Leonard, and he failed to put forth any affirmative evidence at the summary judgment hearing that his ultimate decision to do so and his alleged loss of $20,000.00 to satisfy the first consent judgment would have otherwise been avoided. It is well settled that the law favors compromise and voluntary settlement of disputes out of court with the attendant saving of time and expenses to both the litigants and the court. Honeycutt v. Town of Boyce, 341 So.2d 327, 331 (La.1976). In other words, it has long been the public policy of this state that the compromise of disputes is highly favored and promotes judicial efficiency. Teague, 06-1266 at p. 16, 10 So.3d at 819.

As we observed in Teague:
The parties to a contract of compromise of a ... claim are the parties involved in the claim and any related litigation. While those parties may act through attorneys, their attorneys are not parties to their agreement. The ultimate decision to enter into a compromise belongs to the parties, not their legal counsel.

Teague, 06-1266 at p. 47, 10 So.3d at 836-37.

Here, the supposed loss of Mr. Leonard’s ultimate opportunity to defend himself, and the resulting debt of $20,000.00, was causally removed two times from the alleged malpractice through the two agreements of compromise that he made. His net loss of $20,000.00 was the product of the second compromise and consent judgment, negotiated by Ms. Braud, another attorney. Mr. Leonard failed to put forth any evidence tending to ^establish that he was somehow prevented from introducing available evidence or testimony to controvert the claimed debt of $36,000.00 in the first consent judgment. Accordingly, the immediate cause of Mr. Leonard’s lost opportunity to controvert the child support claim was his own voluntary action.

Mr. Leonard has failed to meet his burden of persuasion on the required element of factual causation, or cause-in-fact. See, e.g., Exec. Recruitment, 533 So.2d at 131. Consequently, the required element of legal causation is clearly lacking. See, e.g., Teague, 06-1266 at pp. 51-2, 10 So.3d at 839, citing Bauer v. Dyer, 00-1778, pp. 14-15 (La.App. 5th Cir.2/28/01), 782 So.2d 1133, 1141, writ denied, 01-0822 (La.5/25/01), 793 So.2d 162.

CONCLUSION

In summary, Mr. Leonard failed to produce factual support sufficient to establish that he would probably be able to satisfy his evidentiary burden of proof as to the essential elements of actionable professional negligence (malpractice) and causation of his claimed damages. Based upon our de novo review of the record, summary judgment was therefore appropriate. The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Don Michael Leonard.

AFFIRMED.

      . The judgment defined such "extraordinary” medical expenses as those uncovered expenses exceeding $100.00 per child per month.

      . See La. R.S. 13:3205.

      . Absolute nullity of a judgment is thus ”[a]n issue which may be raised properly by an exception, contradictory motion, or rule to show cause” and therefore appropriate for summary proceeding. See La. C.C.P. art. 2592(3).

      . Further, a judgment or order denying the motion for nullity on procedural grounds would not only have been legally incorrect, but would not have precluded the filing of a subsequent petition (or even another motion), as such a judgment or order would not have addressed the issue of nullity on the merits and therefore would not have constituted a final judgment for purposes of appeal. This circumstance is self-evident by virtue of the very fact that Mr. Leonard filed a subsequent petition for nullity and the trial court ultimately ruled, as part of the second consent judgment, that the default judgment was an absolute nullity.

      . Ms. Braud’s statement concerning the negotiated basis of the first consent judgment was not, on its face, "made on personal knowledge,” as she also stated in her affidavit that Mr. Reeves failed to notify her, as sponsoring attorney for his pro hac vice admission, of any hearing date in the child support matter. See La. C.C.P. art. 967(A). In contrast, both Mr. Reeves and Mr. Duncan were indisputably present during the negotiations and subsequent hearing in which the compromise terms were acknowledged and made the judgment of the court.

      . Mr. Reeves emphasizes that Mr. Leonard’s opposition affidavit fails to address the issue of unpaid extraordinary medical expenses.

      . The assistance of legal counsel in the evaluation of a settlement and the determination of available options is a circumstance to be considered when deciding if consent was freely given. City of Baton Rouge v. Douglas, 07-1153, p. 7 n. 2 (La.App. 1st Cir.2/8/08), 984 So.2d 746, 750 n. 2, writ denied, 08-0939 (La.6/20/08), 983 So.2d 1284. Even if Mr. Reeves’s advice relating to the first consent judgment was somehow negligent, Mr. Leonard would still be limited to recovery of only the ultimate debt of $20,000.00 represented by the second consent judgment. See Prince v. Buck, 06-1603, pp. 5-7 (La.App. 4th Cir.5/16/07), 969 So.2d 641, 644-45.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. McKAY, J.,

license: Public Domain

text:
    Wendy LAKER, Janice Isaac, Andree K. Sullivan, Theresa B. Wilson, Kathleen B. Falcone, Daryl Duplessie, Joycelyn Labostrie, Arthur C. Short and Joe M. Riddle v. Robert KAZIK, in his official capacity as Judicial Administrator of Criminal District Court for the Parish of Orleans and Honorable Raymond C. Bigelow, Chief Judge, in his official capacity as Chief Judge of Criminal District Court in and for the Parish of Orleans.
    No. 2011-CA-0853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2012.

      Daniel L. Avant, Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, LA, for PlaintiffiAppellant.
    Harry Rosenberg, Stephanie Villagomez Lemoine, Phelps Dunbar LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| ,This is an appeal from a judgment granting an exception of prescription. After review of the record in light of the applicable law and arguments of the parties, the judgment of the trial court is affirmed.

Relevant Facts and Procedural History

The plaintiffs, Wendy Laker, Janice Isaac, Andree K. Sullivan, Theresa B. Wilson, Kathleen Falcone, Daryl Duplessie, Joyeelyn Labostrie, Arthur C. Short, and Joe M. Riddle, were employed as court reporters, deputy court reporters, or minute clerks for the Criminal District Court for the Parish of Orleans. The plaintiffs qualify for membership in either the Louisiana State Employees’ Retirement System (“LASERS”) or the Louisiana Clerk of Court Retirement and Relief Fund by virtue of their employment in these positions at the Criminal District Court, but were not enrolled in a retirement system at the time they were hired. Instead, each plaintiff enrolled in a retirement system at various times in the years after they were hired, with the last of the plaintiffs entering a retirement system in 2002.

|2On March 28, 2007, the plaintiffs filed a joint petition in the Civil District Court for the Parish of Orleans praying for a money judgment for the actuarial costs of the employer and employee contributions that should have been made on their behalf, naming as defendants, Honorable Raymond C. Bigelow, in his official capacity as the Chief Judge for the Criminal District Court for the Parish of Orleans and Robert Kazik, in his official capacity as the Judicial Administrator of the Criminal District Court for the Parish of Orleans. The plaintiffs contend that they should have been — but were not — enrolled upon hire in the appropriate retirement system. In their petition, the plaintiffs allege that:

(a) Any minute clerk or court reporter hired by the Criminal District Court for the Parish of Orleans prior to July 1, 1988 is entitled to membership in the Clerks’ of Court Retirement and Relief Fund effective their date of hire; and
(b) Any minute clerk or court reporter hired by the Criminal District Court for the Parish of Orleans after July 1, 1983 is entitled to membership in LASERS.

In response, the defendants filed their answer and defenses, as well as an exception of prescription. In their exception, the defendants asserted that the plaintiffs’ claims are untimely because the plaintiffs failed to file their lawsuit within the one-year liberative prescription period set forth in the Louisiana Civil Code article 3492. In the alternative, the defendants argue that the plaintiffs’ claims are untimely inasmuch as the plaintiffs did not bring this suit for deferred compensation for services rendered within the three-year liberative prescription period set forth in Louisiana Civil Code article 3494. Thus, the defendants argued that the plaintiffs’ claims are prescribed on their face and must be dismissed.

At the evidentiary hearing on the exception, on December 1, 2010, each of the plaintiffs testified similarly stating that upon being first hired, they received no |ainformation regarding their rights to enroll in a retirement system. The plaintiffs further testified that it was not until March of 2005 when they learned that they should have been enrolled in a retirement system that was effective on the date of their hire. After listening to the plaintiffs’ testimony and reviewing the documentary evidence, the trial court found that the last plaintiff was enrolled in 2002 and the suit was not filed until 2007, beyond the three-year period and accordingly, the case has prescribed. On December 16, 2010, the trial court issued a judgment sustaining the exception and dismissing all claims against the defendants with prejudice. This appeal followed.

Discussion

The plaintiffs assign as error: (1) the trial court’s determination that the appellants knew or should have known that they were entitled to be enrolled in a retirement system contemporaneous with their dates of hire where there was no evidence to support that conclusion; (2) the trial court’s failure to conclude that the plaintiffs have three years from March 23, 2005 in which to file the suit; and (3) the trial court’s granting of the exception of prescription.

“An exception of prescription is a type of peremptory exception.” Farber v. Bobear, 10-0985, p. 10 (La.App. 4 Cir. 1/19/11), 56 So.3d 1061, 1069, See La.Code Civ. Proc. Art. 927. “When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” London Townie Condominium Homeowner’s Ass’n v. London Townie Co., 06-401, p. 4 (La.2006 10/17/06), 939 So.2d 1227, 1231 (citations omitted). In the absence of manifest error, the appellate court cannot disturb the factual findings of the district court, since the issue to be decided by the[4appellate court is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Mire v. Gamble, 08-0433, p. 2-3 (La.App. 4 Cir. 11/19/08), 999 So.2d 792, 793-94 (citations omitted).

In the instant case, the plaintiffs argue that the trial court based its decision on an erroneous application of the law in reasoning that the plaintiffs knew or should have known that they could have been enrolled earlier than they were actually enrolled in a retirement system. The plaintiffs assert that the record does not support such a factual finding of presumed knowledge, as no plaintiff testified that they had actual knowledge before March 2005. In turn, the issue before this court is whether the trial court’s decision was a reasonable one or one supported by the record.

The trial court acknowledged that the plaintiffs did not have actual knowledge that they should have enrolled in a retirement system as of their date of hire until the LASERS meeting in March 2005. However, the trial court pointed out that each plaintiff “testified or at least not contradicted the fact that their employment did not change” between the times before they were enrolled into a retirement system to their date of enrollment. Thus, the trial court found that, minimally, the trigger for the plaintiffs to know or should of known that they may be have been deprived of some compensation in the prior years was on the date of their enrollment, from the date of their first contribution to the retirement system. Accordingly, the trial court found that since the last plaintiffs date of enrollment occurred in 2002 and this suit was not filed until 2007, beyond the three-year prescriptive period, the claim has prescribed.

This court is cognizant that the plaintiffs have suffered a significant loss, but we are restricted by the law, the facts, and the standard of review. Therefore, after |5a review of the record in light of the applicable law, we do not find that the trial court was clearly wrong in her determination that the plaintiffs knew or should have known by the date of their enrollment in the retirement system and accordingly, the case is prescribed.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court maintaining the exception of prescription

AFFIRMED

McKAY, J., dissents.

McKAY, J.,

dissents.

|J respectfully dissent and would reverse the trial court’s granting of the defendants’ exception of prescription for the very simple reason that none of the plaintiffs had actual knowledge that they should have been enrolled in a retirement system as of their initial date of hire.

The trial court’s reliance on Fishbein v. State ex rel. Louisiana State Univ. Health Sciences Center, 2004-2482 (La.4/12/05), 898 So.2d 1260 was misplaced. In that case, the plaintiff knew that LSU had not been properly calculating her total earna-ble compensation and is clearly distinguishable from the instant case.

In a similar case, the Third Circuit ruled that the three year prescription applicable to a plaintiffs claim for past due retirement contributions commenced when plaintiff first obtained actual knowledge that he should have been enrolled in a retirement system as of his date of hire. Deshotel v. Village of Pine Prairie, 2009-670 (La.App. 3 Cir. 12/9/09), 26 So.3d 975. In the instant case, the record establishes that none of the plaintiffs had actual knowledge that they should have been enrolled in a retirement system more than three years prior to the filling of their suit. Accordingly, their suit was timely filed and their actions have not prescribed.

      . Three of the original plaintiffs — Janice Isaac, Daryl Duplessie, and Joe M. Riddle— did not join in the instant appeal.


author: DANIEL L. DYSART, Judge.

text:
    720 HARRISON, LLC v. TEC REALTORS, INC.
    No. 2011-CA-1123.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2012.

      Gabriel O. Mondino, Robert B. Evans, III, Cesar R. Burgos, Maria J. Leon, Bur-gos & Evans, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Richard A. Richardson, Madisonville, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| )TEC Realtors, Inc., appeals a summary judgment in which it was found to be in breach of a lease it entered into with 720 Harrison, LLC. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

720 Harrison, LLC (hereinafter “720 Harrison”), is a limited liability company that develops and leases buildings. Its members are Cynthia Pacaccio and her husband, William Edgett. Prior to Hurricane Katrina, 720 Harrison developed plans to build an office building at 720 Harrison Avenue in the Lakeview neighborhood of New Orleans. Following Hurricane Katrina but prior to the start of construction, Ms. Pacaccio was contacted by Mark Inman of TEC Realtors, Inc. (hereinafter “TEC”), about leasing the building. TEC planned to occupy part of the building and sublet the remainder.

720 Harrison also owned an already completed building adjacent to the one to be built, and according to Ms. Pacaccio’s deposition testimony, Mark Inman and his parents toured the constructed building. The only distinction between the two | gbuildings was that 720 Harrison Avenue would have an elevator. TEC was provided with the plans of the adjacent building.

After numerous verbal communications, a “letter of intent” was signed by both parties, setting forth the terms and conditions relative to construction of the building at 720 Harrison Avenue.

On September 10, 2007, a Net Lease Agreement provided by TEC was executed by the parties. On November 19, 2008, TEC sent to 720 Harrison a letter terminating the lease agreement. On February 12, 2009, 720 Harrison filed suit against TEC for breach of the lease.

720 Harrison filed a Motion for Summary Judgment on Breach, to which TEC filed an opposition, and 720 Harrison replied. A hearing was had on March 4, 2011, at which time the trial court ruled from the bench. It granted 720 Harrison’s motion and gave oral reasons from the bench. The trial court deemed the judgment final for purposes of appeal. This appeal followed.

STANDARD OF REVIEW:

“Favored in Louisiana, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La.Code Civ. Proc. Art. 966 A(2)). Motions for summary judgment are reviewed on appeal de novo. The same criteria that govern the trial court’s determination of whether summary judgment is appropriate are used by the reviewing court. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-883. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions |son file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966 B.

DISCUSSION:

In its first assignment of error, TEC argues that the trial court erred in finding that none of the terms allegedly agreed upon and listed in its November 19, 2008, letter to 720 Harrison, was a valid basis for termination of the September 10, 2007, lease agreement.

TEC argues first that one of the terms of the lease, to-wit, use of the sign pylon which was in front of the building during the negotiations, was breached by 720 Harrison, thereby allowing TEC to terminate the lease.

In the November 19, 2008, letter terminating the lease, Christopher Inman stated that TEC had concerns about the removal of a pylon upon which TEC was to place its own business sign. Inman stated that the anticipated use of the pylon was a major factor in TEC’s decision to lease the building.

The property on which the building was to be erected was formerly a gas station. At the corner of the property there existed a pylon that previously held a sign for that business. After Hurricane Katrina, new building codes were adopted in the City of New Orleans. According to the deposition testimony of Ms. Pacaccio, attached as an exhibit to TEC’s memorandum in opposition, new building codes required that the yet unconstructed building be repositioned on the lot, necessitating the removal of the pylon. Ms. Pacaccio testified that she told Mark Inman about the situation with the sign, and he replied that it would not be a problem.

The lease agreement contains a clause entitled “Lessee’s Signs.” It reads:

1 ¿Lessee shall be responsible for any new signage in front of the leased building. Lessee shall be responsible for the removal of any existing signs. Further, this lease agreement between Lessee and Lessor is contingent upon Lessee obtaining approval for signage per their specifications from the Lessor and the City of New Orleans. Lessee shall have the right to use pylon sign in front of the building that formerly contained the previous tenant’s sign upon lease execution and shall have the right to place its sign on the front of the building upon commencement date. Lessee shall be responsible for all installation and maintenance costs associated with its sign(s).

TEC argues that it must be allowed to utilize parol evidence to show that the contingency referenced in the lease clause was not satisfied and thus formed a basis for terminating the lease. The trial court found that the lease agreement was unambiguous and thus refused to allow the introduction of parol evidence. We agree.

Louisiana Civil Code article 1848 provides: “Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature.” Parol evidence may be admitted to prove a vice of consent, or if it is alleged that a subsequent and valid oral agreement modified the written act. La. Civ.Code art. 1848.

In the instant case, TEC argues that a letter of intent written months before the signing of the lease should be allowed into evidence to prove that it would not have entered into the lease if it knew the pylon was to be removed. The trial court cited Louisiana Civil Code arts. 2046 and 2047 in support of its ruling. Specifically, the court found that giving the words of the lease their generally prevailing meaning, the lease was clear and explicit and its enforcement led to no absurd consequences.

|,¿We agree with the trial court’s reasoning and result. The lease, provided by TEC, does not allow for the termination of the lease because of the removal of the pylon. The only contingency provided for in the signage clause was for the Lessee to obtain approval for their signage from the Lessor and the City. If the pylon was still in existence, the lease provides that TEC could use it; however, the lease does not provide that the lease can be terminated because the pylon no longer exists.

Further, the Code provides that parol evidence can be introduced to prove that modifications were made subsequent to the signing of the lease. La. Civ.Code art. 1848. In this case, TEC sought to introduce evidence of negotiations and agreements made prior to the signing of the lease.

In its second assignment of error, TEC again argues that the trial court erred in not allowing parol evidence to prove the true intent of the parties. It claims that the building was not constructed timely. TEC contends that it needs to use parol evidence to prove that to apply the lease as written would lead to an absurd result.

TEC provided the lease, which was a standard form used in the course of its own business, with some modifications, all of which were drafted by TEC. According to the testimony of Ms. Pacaccio and Mark Inman, 720 Harrison originally drafted a lease. Mark Inman testified that the lease prepared by Ms. Pacaccio had “so many contentions and so many points that we just couldn’t live with.... And we just finally looked at it and said, we’re never going to be able to work a[sic] on this form; let’s try and go to the standard form.”

Louisiana Civil Code art. 2056, entitled “Standard form contracts,” provides:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished the text.
IrA contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.

However, the trial court found, and we agree, that no further interpretation is needed because interpreting the lease as written does not lead to absurd results. TEC argues that the lease was not to commence until two weeks after Lessee’s receipt of copies of the certificate of occupancy issued by the City and the keys to the premises. Thus, TEC contends that the lease never commenced. We disagree. The lease became binding on the date it was signed regardless of the date of occupancy. Under the clause entitled “Term,” the following language can be found: “Regardless of Lease Commencement, this lease is effective between Lessor and Lessee upon full execution of the lease documents, otherwise known as the “Effective Date.”

TEC also complains that enforcement of Paragraph 7 of the lease entitled “Building Occupancy,” would lead to absurd results. Specifically, the paragraph as written provides that TEC has the right to occupy the premises upon receipt of both the certificate of occupancy and the keys. 720 Harrison must substantially complete the leased premises “within 1 year of work commencement, or as soon as possible thereafter, and in any case not later than 10 months” after the certificate of occupancy is issued.

We agree with TEC that the clause is fraught with indefinite terms, e.g., “substantially complete,” “as soon as possible thereafter,” but we must reiterate that TEC prepared the lease and, therefore, the lease must be interpreted in favor of 720 Harrison. Also, TEC’s argument that it had the right to terminate the lease j^because 720 Harrison breached the occupancy clause is premature at best. The building had not yet been completed when TEC sought to terminate the lease.

Finally, TEC argues once again that the trial court erred in not allowing it to introduce parol evidence. The lease drafted by TEC provides:

ENTIRETY OF UNDERSTANDING IN WRITTEN LEASE: It is agreed that the entire understanding between the parties is set out in the lease and any riders which are hereto annexed, and that this lease supersedes and voids all prior proposals, letters and agreements, oral or written. The law of Louisiana where the leased premises are situated shall apply.

Accordingly, we find no error in the ruling of the trial court and affirm the judgment.

AFFIRMED

      . Although sued solely as TEC Realtors, Inc., defendants' corporate name is actually Cold-well Banker/TEC Realtors, Inc. Christopher Inman is president, Margie Inman is the secretary, and their son, Mark, is an employee.


author: KEATY, Judge. COOKS, J.,

text:
    Roberta BROUSSARD v. STINE LUMBER COMPANY.
    No. 11-168.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 25, 2012.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellant, Roberta Broussard.
    Christopher P. Ieyoub, Plauche, Smith & Nieset, LLC, Lake Charles, LA, for Defendant/Appellant, Stine Lumber Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|TIn this workers’ compensation case, the plaintiff-employee allegedly injured herself while lifting paint cans at work, which resulted in back, neck, and shoulder pain, and facial numbness. After considering the law and the evidence, the workers’ compensation judge (WCJ) ultimately found that there was an accident and the employee had been injured; that the employee was unable to prove that she was incapable of returning to work; and that her benefits would be terminated. Additionally, the WCJ assessed penalties and attorney fees against the employer in the amounts of $8,000.00 and $12,000.00 respectively. Both the employer and the employee appeal that judgment. Finding that the WCJ was manifestly erroneous in determining that there was an accident as defined by La.R.S. 23:1021(1), we reverse.

FACTS

Roberta Broussard was a fifty-seven-year-old employee who had been employed in the hardware department at Stine Lumber Company for a number of years before allegedly suffering an accident on February 21, 2004. On that day, Broussard was working in the paint department and was asked by a customer to mix several gallons of paint. Although she knew that lifting the cans of paint would hurt her back and that assistance was available so that she did not have to lift anything, Broussard helped the customer with the request. The customer wanted approximately four gallons of paint mixed. She lifted each one-gallon paint can separately.

Later that day, her back began to hurt. She reported the alleged incident and correlating pain to her manager and then continued working her shift. Several days later, she complained to the same manager of numbness in her face, in addition to the initial back pain. She was sent to the company doctor, Dr. Kerry Kilgore. Ultimately, |2Pr. Kilgore referred her to Dr. Stan Foster, an orthopedic physician, for a second opinion.

Dr. Foster treated Broussard conservatively for her shoulder pain. Eventually, Dr. Foster referred Broussard to Dr. Ricardo Leoni, a neurosurgeon, for treatment of her neck pain, while he continued to treat her shoulder pain.

Dr. Leoni performed two surgeries on Broussard’s neck. In June of 2006, after determining that there was nothing more he could do for Broussard, Dr. Leoni referred her to Dr. John Schutte, an orthopedist. She presented to Dr. Schutte complaining of shoulder pain and facial numbness.

Dr. Schutte determined that her shoulder symptoms were mild and that she did not have enough pain to warrant surgery or to quit work. He testified that Brous-sard wanted to do something more, even though he did not think pain management or rehabilitation would improve her condition. He then ordered a Functional Capacity Evaluation (FCE), which was not conducted until nearly nine months later.

Broussard only completed three of the eight hours of FCE testing. The therapist ended the evaluation because Broussard complained of pain and her blood pressure increased when she made the complaints. After reviewing the FCE, Dr. Schutte determined that the FCE did not reflect her physical capabilities, released her to return to light-duty work, and determined that she no longer needed chiropractic care with Dr. Donald Marx.

Broussard then saw Dr. John Cobb for her shoulder pain and to determine whether her low back pain was caused by the alleged accident on February 21, 2004. Intermittently, between the date of the accident and the date of trial, Broussard attended physical therapy sessions that were ordered by Drs. Foster and Leoni, and |ssaw her chiropractor, Dr. Marx, for palliative relief of her pain. Broussard continued to work in her capacity as manager of the hardware department on a full-time basis for nearly nine months after the alleged accident occurred.

Prior to the alleged injury on February 21, 2004, Broussard was injured in a 1991 car accident with an eighteen-wheeler, a 1992 tree-cutting accident, a 2000 work-related accident, which resulted in low back and right arm pain, and a 2001 work-related accident in which a peg board and merchandise fell on top of her, injuring her neck. She failed to provide a complete medical history to any of her treating physicians after the 2004 accident. Additionally, if she told her doctors about past pain stemming from the other accidents, she claimed the pain had dissipated, though her testimony in court was that the pain was intermittent since those previous accidents.

Broussard’s medical records show that she had complaints of low back pain, left and right shoulder pain, and numbness in her face dating back to at least 2000. In 2000, she suffered a work-related accident and injured her back. Although she stated that her back pain from the 2000 injury resolved, evidenced by the fact that she kept working, she also testified that every time she worked in the paint department it would flare up.

She confirmed that Stine provided help for people who needed help lifting or moving items, testifying that “I was just told that I needed to call for — you know, I could call for help, and they would come help me.” Despite knowing that working in the paint department caused her back pain to flare up and that she could call for help and someone would assist her, Brous-sard mixed and lifted paint cans for a customer on February 21, 2004.

|4In January 2007, Broussard was released by Dr. Sehutte for light-duty work, and Stine offered her a position answering the telephone. She was provided a chair located within reach of the telephone. She was allowed to get up and move around whenever she needed. Broussard testified that the pain was so severe that she was unable to sit down and answer the phone; that she had to leave work because of the pain; and that, as a result of the pain, she had to seek chiropractic treatment from Dr. Marx.

In a second attempt to provide Brous-sard with employment that she was physically able to do, Stine offered Broussard a choice of three light-duty positions in 2008. Broussard’s attorney informed her of the available positions, and Broussard responded that she would check into it. She never did.

From February 2004 until April 29, 2009, the date of trial, Broussard saw at least seven doctors and a physical therapist. Numerous diagnostic tests were performed, including a CT scan of the cervical area, MRIs of the cervical, brain, and lumbar areas, cervical and lumbar x-rays, a bone scan, and a cervical myelogram. Broussard testified that she did not pay for any of the physician visits or diagnostic testing and that the only unpaid bills are some for Dr. Marx. When asked, her physicians testified that at least some of the physiological injuries they found were because of degenerative diseases like arthritis or because of her age.

| ¡¿PROCEDURAL HISTORY

Broussard filed a disputed claim for compensation on January 8, 2007. In that claim, she alleged that she was injured during the afternoon of February 21, 2004 while lifting paint cans. She disputes the workers’ compensation rate, claiming it should be “more,” sought choice of physician, complained that Stine had stopped treatment by Dr. Marx, and sought penalties and attorney fees. Broussard also filed a motion and order to compel medical treatment on January 19, 2007.

On May 4, 2007, the parties convened for a hearing on Broussard’s choice of physician, particularly her desire to see an orthopedist other than Dr. Sehutte. Although she had signed choice of physician forms for Drs. Foster, Leoni, and Sehutte, Broussard claimed she was never allowed to choose her physicians. However, at the hearing, Broussard testified that Dr. Foster had given her the names of several doctors, and her companion who was with her at the time, had heard of Dr. Sehutte, and that was why she chose this particular doctor. She never made a request to change orthopedic doctors with either Stine or its insurance company before filing the motion and order to compel medical treatment.

The WCJ found that Broussard had chosen her physicians but ordered that she could choose a different orthopedic physician of her choice to treat her shoulder and to examine her lower back to determine whether that pain was caused by the February 24, 2004 incident. The WCJ also ordered that Broussard identify a pain management doctor, and that, once she did so, authorization would be approved.

On April 29, 2009, the remaining issues were tried. The WCJ found that Brous-sard’s testimony “went beyond acceptable ‘self-serving’ to the point where her testimony at trial completely contradicted other statements she had made, either in her [^deposition or her histories to the doctors.” Despite that finding, the WCJ found that an accident occurred on February 21, 2004. The WCJ further found that Broussard presented a prima facie showing of an inability to earn ninety percent or more of her pre-injury wage before February 5, 2007, that the employer gave Broussard a sedentary job that allowed her to move about and paid ninety percent of her pre-injury wage, and that Broussard could perform the job but for her complaints of pain. The WCJ found that she did not prove by clear and convincing evidence that she was unable to perform the job due to substantial pain.

The WCJ terminated Broussard’s indemnity benefits as of February 5, 2007, and found that she was entitled to indemnity benefits in the sum of $238.46 per week from November 15, 2004 until February 5, 2007. The WCJ found that no further medical treatment was needed for her shoulder or neck and that there was a mere preponderance of the evidence that she required palliative treatment for her low back. The WCJ granted Broussard permission to treat with Dr. Cobb for her low back complaints and ordered payment of Dr. Marx’s bills in accordance with the fee schedule.

The WCJ ordered Stine to pay $8,000.00 in penalties for its failure to pay the correct compensation rate; its denial of physical therapy as recommended by Drs. Foster and Leoni; its failure to approve treatment of Dr. Marx; and multiple instances of it failing to pay mileage requests or paying the wrong amount. Stine was further ordered to pay attorney fees in the amount of $12,000.00; costs in the amount of $1,285.74; and interest as may be provided by law. In the judgment, Stine was ordered to be given credit against the payment of future indemnity benefits and for sums paid beyond February 5, 2007.

17Broussard and Stine each appeal, assigning between them nine errors: 1) that the WCJ erred in finding that Broussard met her burden of proving that an accident occurred; 2) that the WCJ erred in finding that Broussard chose any of her physicians; 3) that the WCJ erred in limiting treatment by Dr. Cobb; 4) that the WCJ erred in terminating her benefits; 5) that the WCJ erred in finding that her testimony was unreliable and self serving; 6) that the WCJ erred in awarding past medical benefits for Dr. Marx; 7) that the WCJ erred in finding that Broussard is entitled to palliative treatment with Dr. Cobb; 8) that the WCJ erred in assessing penalties and attorney fees against Stine; and 9) that the WCJ erred in not awarding additional attorney fees and penalties for termination of Broussard’s weekly compensation benefits.

For the following reasons, we find that Broussard did not meet her burden of proving that there was an accident on February 21, 2004, as defined by La.R.S. 23:1021(1). As a result, we need not address any other assignments of error.

DISCUSSION

Although appellate courts “[theoretically ... have the power and authority to redetermine, based on review of the record on appeal, every fact expressly or implicitly found by the trier of fact,” “the [Louisiana] Supreme Court jurisprudentially established standards for appellate review of facts that preserve the traditional functions of the respective levels of the courts.” Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 14:14, (2010).

In Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), the supreme court defined the standard to be used in appellate review of facts as follows:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis 18for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

In the instant case, Broussard claims that a workplace accident occurred on February 21, 2004, entitling her to workers’ compensation benefits. This court has previously noted that “[findings by the WCJ that an accident arose out of and was in the course and scope of employment are factual determinations subject to review under the manifest error standard.” Mayes v. Deep So. Chem., Inc., 11-91, p. 3 (La.App. 3 Cir. 6/1/11), 66 So.3d 65, 68. The manifest error standard also applies to other factual determinations made by the WCJ, including the assessment of penalties and attorney fees. Rutledge v. Res. Tramp., 08-1149 (La.App. 3 Cir. 3/4/09), 7 So.3d 794.

The WCJ found that Broussard had been involved in an accident on February 21, 2004, despite also finding that “[t]he ‘accident’ she complains of does not necessarily meet the plain language of 23:1021(1).” An accident, for workers’ compensation purposes, is: “[a]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

The event or accident triggering workers’ compensation coverage can be one of two things: either a sudden, unexpected, or violent occurrence that causes injury; |flor it can be “an unexpected change in the employee’s Physical Condition which renders him incapable of working, a change caused at least in part by an employment incident.” Quillin v. Calcasieu Marine Nat’l Bank, 96-685, p. 5 (La. App. 3 Cir. 12/11/96), 690 So.2d 802, 804 (quoting Sparks v. Tulane Med. Ctr. Hosp. & Clinic, 546 So.2d 138, 143 (La.1989)).

“To establish that a claimant is entitled to workers’ compensation benefits, claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability.” Ceasar v. Crispy Cajun Rest., 94-30, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, 473, writ denied, 94-2736 (La.1/6/95), 648 So.2d 931 (citing Kennedy v. Sec. Indus. Ins. Co., 623 So.2d 174 (La.App. 1 Cir.), writ denied, 629 So.2d 389 (La.1993)). Once a claimant has established those elements, he must then show, by clear and convincing evidence, that he is temporarily totally disabled. Id.

Broussard experienced back pain, numbness in her face, and other symptoms for years prior to the alleged accident on February 21, 2004. Although “[a] preexisting disease ... does not disqualify [a person] from receiving benefits if the workplace accident aggravated [or] accelerated ... the disease to produce the disability for which compensation is claimed,” it stands to reason that a claimant must prove that there was an accident and that the accident aggravated or accelerated the pre-existing condition causing disability. Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058.

|10“The work-related accident has consistently been interpreted liberally by our courts.” Iberia Med. Ctr. v. Ward, 09-2705, p. 13 (La.11/30/10), 53 So.3d 421, 430-31. That being said, the liberal construction of the workers’ compensation statute does not apply to proof that the accident occurred or that it caused the disability. See Cooper v. Harris, 315 So.2d 331 (La.App. 3 Cir.1975).

The WCJ found that Broussard was unable to prove an accident under the statutory definition, yet still awarded Broussard benefits because “the evidence does preponderate in her favor under the applicable jurisprudence.” We disagree for two reasons. First, Broussard’s alleged accident was not unexpected or unforeseen, and second, there was no “event” that caused Broussard’s alleged injuries.

Broussard testified that she knew that lifting paint cans would hurt her back; that she knew that she could call for help and someone would come to lift the cans for her; and that she lifted the paint cans anyway. Her back then began to hurt. It was neither unexpected nor unforseen that lifting paint cans would cause her back to hurt, and unexpected or unforseen events are statutorily required to find that an accident occurred for workers’ compensation purposes.

Even if we disregard the argument that because the February 21, 2004 incident does not meet the statutory definition of an accident because it was neither unforeseen nor unexpected, Broussard still failed to prove by a preponderance of the evidence that she suffered a workplace accident. The WCJ found that Broussard “consistently testified that her pain on that day was not caused by [one] specific thing, rather by the repetitive lifting of the paint.”

Although this court has sometimes held that repetitive workplace actions that ultimately cause an injury and subsequent disability qualify as “accidents” for | n purposes of workers’ compensation coverage, we decline to extend that line of reasoning in this case. See Cox v. Port Aggregates, Inc., 10-707 (La.App. 3 Cir. 2/2/11), 54 So.3d 1257, writ denied, 11-462 (La.5/6/11), 62 So.3d 128, and Ricaud v. Holloway Sportswear, Inc., 98-1422 (La. App. 3 Cir. 5/26/99), 741 So.2d 124, writs denied, 99-1822, 99-1882 (La.10/1/99), 748 So.2d 454, 455. In those cases, the claimant repeatedly performed certain activities as part of his or her job duties and suffered from those repetitive performances; in the instant case, the only repetitive action performed by Broussard was the lifting of one-gallon paint cans four or five times. We do not find, absent a sudden or unexpected event that meets the statutory definition of an accident, that lifting four or five paint cans in one day is the sort of “repetitive action” discussed by this court in other cases.

Additionally, in the cases where the repetitive behavior was declared an “accident,” the claimant did not have a hidden prior history of medical complaints, and a correlation between his or her workplace duties and the sustained injury was obvious. Conversely, Broussard suffered from back and neck pain, facial numbness, and other complaints identical to those she alleged arose from the February 21, 2004 “accident” for over ten years. Broussard failed to provide complete medical histories to her doctors, which prohibited them from accurately determining the cause of her injuries. Additionally, there was not a consensus among her treating physicians, even without her past medical history, that lifting the paint cans caused the plethora of injuries she allegedly sustained. Several of the physicians involved testified that Broussard could do light lifting, and one stated that she could lift up to thirty pounds. A one-gallon can of paint does not weigh more than thirty pounds.

11?The evidence Broussard presented in support of the alleged accident, that is, her own inconsistent and unreliable testimony and the testimonies of physicians who were not privy to an accurate or complete medical history, failed to prove that her injuries were caused or exacerbated by the lifting of paint cans. We find that the WCJ was manifestly erroneous in determining that Broussard met her burden of proving an accident by a preponderance of the evidence. Accordingly, we reverse.

DECREE

For the foregoing reasons, we conclude that the WCJ was manifestly erroneous in finding that Broussard met her burden of proof in establishing that an accident, as defined by La.R.S. 23:1021(1) occurred. Accordingly, we reverse the judgment in its entirety. Costs of this appeal are cast to Roberta Broussard.

REVERSED.

COOKS, J., dissents and assigns written reasons.

PICKETT, J., dissents for the reasons assigned by Judge COOKS.

COOKS, J.,

dissenting.

hi must respectfully and vigorously dissent from the majority’s holding. The majority finds that no accident occurred as defined under the workers’ compensation statutes because “Broussard’s alleged accident was not unexpected or unforeseen” and because there was “no ‘event’ that caused Broussard’s alleged injuries.” This reflects a fundamental misunderstanding of the Louisiana Workers’ Compensation statutory scheme and is completely at odds with settled law and jurisprudence on the subject. The majority reasons that Brous-sard should have known that lifting the one gallon paint cans “would cause her back to hurt” and therefore the incident was not “unexpected or unforeseen.” As far back as 1942, and in countless cases since then to the present, our courts have held as did the first circuit in Murray v. Mengel Co., 9 So.2d 818 (LaApp. 1 Cir. 1942):

It is now well established in our jurisprudence that, if excessive heat, heavy lifting or straining, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition, the legal requirements are present to constitute an accident, and the injury is compensable. Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450 [ (1931) ]; Ozbolt v. Weber-King Mfg. Co. et al., La.App., 193 So. 383 [ (1940) ]; Nickelberry v. Ritchie Gro. Co. et al, 196 La. 1011, 200 So. 330 [(1941)].

In essence the majority denies plaintiff coverage under the workers’ compensation act employing negligence standards, implying she was at fault and/or assumed the risk of injury when she lifted five one-gallon cans of paint, one at a time, serving a customer in the normal course and scope of her employment. | ^Negligence, fault and assumption of risk have no place in this employee’s claims for on-the-job injuries. The Louisiana Supreme Court, in Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208 stated (emphasis added):

Since 1914, workers’ compensation has traditionally been a quid quo pro remedy in that the employee is entitled to fixed benefits if his injury occurs during the course and scope of his employment, regardless of the employer’s lack of fault or the employee’s own fault, and in exchange, the employer is relieved of the prospect of large damage judgments.

Even negligence of a co-employee is excluded from consideration for application of workers’ compensation for an employee’s on-the-job injury. See Craft v. Wal-Mart Stores, Inc., 01-564 (La.App. 3 Cir. 10/31/01), 799 So.2d 1211.

The majority further reasons that Broussard’s accident was neither unforeseen nor unexpected because she “testified that she knew that lifting paint cans would hurt her back; that she knew that she could call for help and someone would come to lift the cans for her; and that she lifted the cans anyway.” The majority acknowledges that immediately after lifting the cans Broussard’s back began to hurt, i.e. she suffered an on-the-job injury while in the course and scope of her employment. But, says the majority, even if the incident meets the statutory definition of an accident, which it unquestionably does, Broussard is denied coverage because “We do not find, absent a sudden or unexpected event that meets the statutory definition of an accident, that lifting four or five paint cans in one day is the sort of ‘repetitive action’ discussed by this court in other cases.” Indeed Broussard’s lifting four or five one-gallon cans of paint successively to fill the customer’s order is not the sort of “repetitive activity” discussed in the line of cases cited by the majority which award coverage to injured employees. This was clearly “[a]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly 1 .^producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1) (emphasis added). The WCJ found that a com-pensable injury occurred. As the majority acknowledges, his finding is entitled to great weight and cannot be disturbed absent manifest error. There is no manifest error in the WCJ’s finding that Broussard suffered an on-the-job injury while lifting four or five one-gallon cans of paint in the course and scope of her employment. The majority engages in re-weighing the evidence presented and assessing the credibility of witnesses, acknowledging that one of the physicians who testified stated “she could lift up to thirty pounds” and then pointing out that “a one-gallon can of paint does not weigh more than thirty pounds.” And yet, earlier in the opinion, the majority faults Broussard for picking up these one-gallon cans asserting “she knew that lifting paint cans would hurt her back.”

This court held in Verret v. State Farm Mut. Auto. Ins. Comp., 99-1250 (La.App. 3 Cir. 2/2/00), 759 So.2d 115, writ denied 2000-673 (La.4/20/00), 760 So.2d 1159, and unit denied 2000-690 (La.4/20/00), 761 So.2d 535 (emphasis added):

As explained by the supreme court in Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99); 731 So.2d 208, workers’ compensation is the exclusive remedy for an employee unless the injury complained of resulted from an intentional tort. See La.R.S. 23:1032(B). The supreme court stated:
[T]he meaning of “intent” in this context “is that the person who acts eh ther (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.”
Id. at p. 6; 211 (quoting Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981)).
In addressing the “substantially certain” concept, the supreme court explained that: “Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise |4to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.” Id. at p. 9; 212.

Under the jurisprudence of this state, Broussard’s injury was clearly unforeseen and unexpected and even if her actions could be said to somehow be negligent, as the majority finds, any such negligence or assumption of risk does not preclude coverage under Louisiana’s workers’ compensation law. Broussard proved by a preponderance of evidence that her back began to hurt right after she lifted these cans of paint — a fact acknowledged by the majority. Suffice it to say, the law and jurisprudence support the WCJ’s conclusion that an accident occurred. Whether her pain was a manifestation of a compensable injury — i.e. one producing disability, is also a factual issue in this case which the WCJ resolved in Brous-sard’s favor. On appeal, our review is limited by the manifest error rule which the majority acknowledges but apparently ignores in the final paragraphs of this decision. It appears in the end the majority re-weighed the evidence, and substituted the decision of three members of the panel for that of the WCJ and two members of the panel, who thought otherwise. This result is exactly why the manifest error rule requires that we affirm the WCJ’s factual findings. I believe the majority’s holding begs for remand from the Louisiana State Supreme Court and my only choice at this stage is to dissent.

      . Broussard saw: Dr. Kilgore, Dr. Foster, Dr. Leoni, Dr. Sehutte, Dr. Marx, Dr. Anthony Ioppolo, Dr. Cobb and Dr. John Budden, although Dr. Ioppolo was for a second opinion, and Dr. Budden was for an IME.