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

text:
    SHIELDS MOTT LUND, L.L.P. v. P.R. CONTRACTORS, INC., and Cedric Patin.
    No. 2012-CA-1327.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.
    Opinion on Rehearing May 1, 2013.
    Lloyd N. Shields, Jeffrey K. Prattini, Shields Mott Lund, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Jonathan B. Andry, Kailey L. Leboeuf, The Andry Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| jThe JC Patin Group, LLC (“Patin Group”) appeals a judgment granting the motion of the plaintiff, Shield Mott Lund L.L.P. (“SML”), to enforce an agreement that required Cedric Patin (“Cedric”) and Patin Group to pay SML the money due them from an open account collection lawsuit judgment that had been rendered against Cedric and P R Contractors Inc. (“PRC”). For the reasons that follow, we dismiss the appeal and remand this case for further proceedings.

A judgment was rendered on 27 February 2002 in SML’s favor and against Cedric and PRC for $29,641.36, plus judicial interest, and costs. In 2008, in an effort to collect the judgment, SML sought to garnish Cedric’s interests in and compensation from Patin Group. When Patin Group failed to answer SML’s interrogatories, SML sought a judgment pro confesso against Patin Group. Patin Group avoided the judgment pro confesso by filing its answers to the interrogatories. The answers, captioned “Garnishee’s Answers to Interrogatories,” were filed on 20 April 2009 by Patin Group’s attorney, Jonathan B. Andry (“Andry”); therein Andry stated that he was counsel of record for Patin Group. (Thereafter, Andry never filed a motion to withdraw as counsel of record for Patin Group; ergo, his legal representation of Patin Group continued throughout these proceedings and remains in effect today.)

l2In anticipation of a court hearing to be held on 15 December 2011, SML’s counsel prepared a written agreement, styled “Guaranty,” to be signed by Patin Group and Andry. At that 15 December 2011 hearing, .Cedric, Mr. Andry, and SML’s counsel, Jeffrey K. Prattini, appeared. Andry represented Patin Group thereat by virtue of his previous enrollment as counsel for that entity. Cedric represented himself. A La. C.C. art. 3071 compromise was read into the record by Andry, also who introduced a copy of the unsigned agreement into evidence. That agreement was received into evidence without objection. At that time, Andry represented that he was holding Cedric’s first installment payment of $5,000 pursuant to the agreement in his attorney’s trust/escrow account. Cedric and SML’s counsel confirmed on the record that they consented and assented to the agreement. The agreement obligated Patin Group to pay the full amount of the judgment of 27 February 2002, judicial interest from date of judicial demand (7 September 2001), and costs if Cedric did not make the installment payments on the dates and for the amounts indicated.

Although the first installment was paid, Cedric did not deliver the second payment timely; that is, he delivered a second check for $5,000 on 4 January 2012 to Andry. Andry advised SML’s counsel that day that he was depositing the check |sin his firm’s trust/escrow account and that SML would receive payment “[a]s soon as the funds are available.” In response, SML sent a letter to Patín Group and Joseph C. Patín, Cedric’s father and a member of Patín Group, declaring that Cedric was in default for failure to make the timely installment payment and that Patín Group was now liable for the full amount of the judgment (“$29,641”), attorney’s fees and costs of $14,412.50, judicial interest of $17,748.81, subject to a credit of $5,000 for the first installment payment under the agreement. Although Andry sent a $5,000 check to SML on 9 January 2012, SML rejected the payment, returned the check, and reiterated that it was owed the full amount per their previous letter. SML further indicated that it would only accept the check for $5,000 as a payment towards the full judgment, attorney’s fees costs, and judicial interest, and not as an installment pursuant to the agreement.

On 30 January 2012, Andry, on behalf of Cedric and PRC, filed a motion to enforce the agreement of 15 December 2011, asserting that SML had been arbitrary and capricious in declaring the agreement breached. On 9 February 2012, SML filed a countermotion to enforce the agreement; their motion sought (1) a declaration that the agreement was valid and (2) a money judgment against Patín Group for the full amount due under the 2002 judgment. On 29 February 2012, Andry filed a motion to withdraw Cedric’s and PRC’s motion of 30 January 2012 to enforce, and an ex parte motion to declare the judgment of 27 February 2002 null and void because it was prescribed and had not been revived within ten years of its rendition. See La. C.C. art. 3501; La. C.C.P. art. 2031. Cedric and Patín Group also contended that the agreement was a contract of suretyship and was extinguished by virtue of SML’s failure to revive the 27 February 2002 judgment, citing La. C.C. art. 3061. The ex parte motion was denied by the trial court. On 1 | ¿March 2012, Cedric and PRC, filed a contradictory motion to declare the judgment a nullity; a rule to show cause was entered setting a hearing. Ultimately, the motions were contradictorily heard to determine whether the 2002 judgment was null and void and whether the agreement was enforceable.

The trial court ruled that the agreement of 15 December 2011 was a second obligation that bound Patín Group to timely make the scheduled payments under the agreement in the event Cedric did not do so. Because the payments were not timely, the court concluded and rendered judgment (and notice of judgment) on 3 May 2012 that SML was entitled to enforce the new agreement and that the judgment of 27 February 2002 was null and void. On 24 May 2012, Patín Group filed a motion to clarify the 3 May 2012 judgment. The record before us reflects no ruling on the motion and no ruling was required; however, if the motion was intended to be a motion for new trial, it is untimely and the trial court could not rule upon it because the court had been divested of jurisdiction. La. C.C.P. art. 1974; see also La. C.C.P. art. 2088.

From that 3 May 2012 judgment declaring that the 2002 judgment was null and void and granting enforcement of the agreement, Patin Group filed a motion to appeal on 10 July 2012. However, we find that Patin Group’s motion for devolutive appeal is untimely, having been filed more than sixty-seven days from the date of the notice of judgment. La. C.C.P. art. 2087. To have been timely, Patin Group would have had to file its appeal on 9 July 2012.

|BThe failure of a party to timely file a motion of appeal, regardless of when an order of appeal is granted, deprives this court of jurisdiction to review the issues raised on appeal. However, we note that the trial court never rendered a judgment on that part of SML’s motion to enforce the agreement wherein SML sought a money judgment against Patin Group. A remand for further proceedings in order to do so.

Accordingly, the appeal of JC Patin Group, L.L.C. is dismissed. This case is remanded to the trial court for further proceedings.

APPEAL DISMISSED; REMANDED.

BAGNERIS, J., concurs.

BAGNERIS, J.,

concurs.

hi concur in the result reached to dismiss the appeal as untimely.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).

MAX N. TOBIAS, JR., Judge.

ON APPLICATION FOR REHEARING

hln our original opinion, we found that the defendants/appellants had untimely appealed the trial court’s decision. In their application for rehearing, which is incorrectly described by counsel as an application for “reconsideration,” Patin Group, asserts that they did appeal timely because the notice of judgment sent to them by the minute clerk of Judge Paulette R. Irons is dated 3 May 2012, a Thursday, yet the envelope in which the notice was mailed bears a postmarked date of 7 May 2012, a Monday. Upon receipt of Patin Group’s application, we directed an order to the parties to document and explain with affidavits and/or depositions their assertions.

Affidavits of Rosalind E. Lobrano, a paralegal to Jonathan Andry, Esq. (“An-dry”) and Kailey L. LeBeouf, Esq., an attorney for Patin Group, were submitted. Ms. Lobrano asserts in her affidavit that she opened the letter with the notice of judgment on 8 May 2012, the date the letter was received, and date stamped the envelope in which the notice was enclosed to reflect the date it was received. However, no copy of the envelope with the date stamp of the receipt has been furnished to this court. Ms. LeBeouf asserts in her affidavit that on 10 April 2013 she met with Kelly Brossette, the minute clerk of Judge Irons, requesting her |gto sign an affidavit attesting to the policy by which judgments rendered by Judge Irons are mailed. Ms. Brossette refused to sign an affidavit. Ms. LeBeouf further asserts she met with the deputy clerk of court for Judge Irons in the clerk of court’s office requesting that the clerk sign an affidavit attesting to the policy by which judgments rendered by Judge Irons are mailed; that unidentified deputy clerk also refused to sign an affidavit.

By law, a minute clerk of a judge of the Civil District Court is appointed by the judge for whom he or she will work and is a deputy clerk of the Civil District Court for all purposes. La. R.S. 13:1211; 12:1136 F.,La. C.C.P. art. 256 states:

The minute clerk of. a court shall keep the minutes of the court daily when in session and transcribe them into the minute book, as required by Article 254; shall file all pleadings and documents tendered for filing in open court; and shall perform such other duties as are assigned to him by law, the court, and the clerk with the approval of the court.
The minute clerk of a trial court shall administer the oath to jurors and witnesses and shall file all exhibits offered in evidence, when directed to do so by the court. If there are two or more judges on a trial court, its rules may require a minute clerk for each division thereof.
When a court has no minute clerk, and there is no deputy clerk available for such duty, the clerk shall perform all of the duties of the minute clerk.

And La. R.S. 13:1 states:

The minute clerks of the court of appeals and of the civil and criminal district courts of the parish of Orleans shall attend the sessions of the court for which they are appointed, and shall, under the supervision of the judge or judges of the courts, keep the minutes of the court, issue all notices, copies of rules and orders entered on the minutes, which are required to be issued, and make due entries on the dockets of the causes and of the proceedings therein, and shall perform such other duties as the judges may direct. [Emphasis supplied.]

|sThe failure of a minute clerk to accurately and precisely perform his or her duties is misfeasance per se and may, under certain circumstances, be malfeasance and/or subject the clerk and court to claims of damages.

The failure of a minute clerk to correctly state the date of the actual mailing of a notice of judgment as required by La. C.C.P. art. 1914 D is misfeasance, because section D states “The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of judgment was mailed.”

We take judicial notice of the fact the second weekend of the New Orleans Jazz and Heritage Festival, an extremely popular and well-attended New Orleans cultural event, occurred on 3-6 May 2012. Although lacking any evidence in the record before us precisely, it is certainly possible that employees of the Civil District Court may have departed the courthouse in haste on 3 May 2012 and delayed the actual mailing of the notice of judgment in this case until Monday, 7 May 2012, not realizing the harm that such inaccuracy of the date stated in the notice of judgment could create.

Appeals are favored in the law. We find that it is more likely than not that the notice of judgment in this case bears the incorrect date of 3 May 2012 and should have borne the date of 7 May 2012. We find that it is more likely than not that the notice of judgment was actually mailed on 7 May 2012. Accordingly, Patín Group’s appeal of the judgment in this case is timely and we have jurisdiction in this matter. Accordingly, we vacate our earlier holding dismissing the appeal of Patín Group as .untimely and proceed to address the merits of Patín Group’s appeal.

|4We reaffirm our statement of facts as contained in our original opinion of 27 March 2013.

On appeal, Patin Group asserts that the trial court erred by enforcing the agreement they entered into with SML because the agreement was merely an accessory obligation, a guaranty, and therefore a contract of suretyship, to the 27 February 2002 judgment which was extinguished when the judgment prescribed on 27 February 2012 having not been timely revived. See La. C.C. arts. 1973, 3035, 3059, and 3060. We disagree.

We find that a meeting of the minds occurred between the parties and a new agreement independent of the laws of suretyship was formed whereby Patin Group became bound to pay the full indebtedness of Cedric to SML if Cedric did not pay as agreed.

As SML (the judgment creditor) closed in on successful collection efforts respecting their 27 February 2002 judgment by virtue of garnishment of Cedric’s compensation as an employee of Patin Group, Andry filed as counsel of record for Patin Group on 20 April 2009 the “Garnishee’s Answers to Interrogatories.” This was done in an apparent effort to protect Patin Group from being cast in judgment for Cedric’s and P R Contractor Inc.’s (“PRC”) debt to SML commemorated by the 2002 judgment. Thereafter, Andry never filed a motion to withdraw as counsel of record for Patin Group; ergo, his legal representation of Patin Group continued throughout these proceedings and remains in effect today. An agreement was reached shortly before the proceedings in open court on 15 December 2011 as to how Cedric would pay a portion of the judgment in lieu of the principal amount, |saccrued judicial interest, and costs. An-dry apparently negotiated with SML’s counsel on behalf of Patin Group.

At the 15 December 2011 hearing in open court, Cedric, Andry, and counsel SML were present. Andry clearly represented Patin Group thereat by virtue of his previous enrollment as counsel for that entity. Cedric represented himself. Jeffrey Prattini, Esq., represented SML. A compromise in strict conformity with La. C.C. art. 3071 was read into the record. Andry was holding Cedric’s first installment payment pursuant to the agreement in his attorney’s trust/escrow account that day. Andry makes a statement at that hearing that “I hope to be appearing as a friend of the Court and the parties trying to resolve the case.... ” That statement, however, does not permit Andry to argue that he appeared in court that day not formally representing anyone; he appeared before the trial court as counsel and mandatory for Patin Group by virtue his formal appearance as counsel of record never withdrawn. See Rule 1. 16, Louisiana Rules of Professional Conduct.

On 30 January 2012, Andry filed a “Motion to Enforce Settlement” wherein he represented that he was now counsel of record for PRC and Cedric Patin,” appearing in the proceedings to enforce the agreement (compromise) dictated into the record on 15 December 2011. Andry continued to represent Cedric and PRC and continues to represent them in these proceedings today. Andry thereafter filed | fipleadings on behalf of Cedric and PRC (“Defendants”) and appeared in open court on their behalf.

When Cedric failed to pay strictly in accordance with the agreement as dictated on 15 December 2012, SML had the right to enforce the dictated agreement. The trial court did not err as a matter of law or fact in rendering its judgment; the trial court judgment is not manifestly erroneous or clearly wrong. Patín Group is now liable for the full amounts owed by Cedric. We affirm the trial court’s judgment of 3 May 2012 as it confirmed the settlement dictated in open court on 15 December 2011.

As we noted in our original opinion, the trial court never rendered a judgment on that part of SML’s motion to enforce the agreement wherein SML sought a money judgment against Patín Group. A remand for further proceedings is in order to do so.

REHEARING GRANTED; JUDGMENT AFFIRMED; REMANDED.

BAGNERIS, J., dissents.

LOB RANO, J., concurs in the result.

BAGNERIS, J.,

dissents.

|,1 respectfully dissent. Based upon my review of the record, there was no meeting of the minds between Joseph C. Patín, in his capacity as managing partner of the Patín Group, and SML to form a contract.

Under Louisiana law, four elements are necessary to form a valid contract. They include: 1) the parties must have the capacity to contract; 2) the parties must freely give their mutual consent to the contract; 3) the parties must have a cause or reason for obligating themselves; and 4) the contract must have a lawful purpose. See La. C.C. arts. 1918, 1927, 1966, 1971, 2029.

The second element — mutual consent— is outlined in La. C.C. art. 1927 which provides in part that:

A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.

Clearly, the Patín Group, Cedric Patín, and SML now dispute the purpose, intent, and obligations created by the guaranty agreement. This dispute alone raises questions as to whether or not the parties had a meeting of the minds. However, of greater import is that I find the evidence fails to establish that the |2Patin Group, the party compelled to make the payments under the Motion to Enforce Guaranty, consented to the contract, either orally, in ■writing, or by its actions.

Neither Joseph C. Patín nor any other representative of the Patín Group signed the Guaranty Agreement. Joseph C. Pa-tín was not present in court when the terms of the agreement were read and offered into the record. Although the majority notes that Attorney Andry was still, as a matter of law, enrolled as counsel of record for the Patín Group at the time the agreement was read into the record, Attorney Andry represented in open court that he was not acting in his capacity as attorney for the Patín Group or Cedric, but rather as a “friend” of the parties and the Court. Based on this representation and the potential conflict of interest between Cedric Patín and the Patín Group, in that the terms of the agreement created substantial obligations on the Patín Group in the event of Cedric’s default, I do not think this Court can say, as a matter of fact, that the Patín Group had the benefit of counsel. The record is simply devoid of any direct evidence that the Patín Group actually consulted with counsel or that any representative of the Patín Group read, understood, or agreed to the contract terms. Instead, the record suggests that Cedric Patín was the only party with whom SML conferred with concerning the terms of the guaranty agreement; and Cedric Patín was the only party who represented in open court that he understood the agreement.

Consent of the parties is necessary to form a valid contract. Where there is no meeting of the minds between the parties, a contract is void for lack of consent. Philips v. Berner, 2000-0103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45. Based on the record before me, I do not find that a meeting of the minds existed between the Patín Group and SML to form an enforceable contract.

|sFor the foregoing reasons, I conclude the trial court erred in granting SML’s Motion to Enforce Guaranty, and therefore, I would reverse the judgment.

      . The Garnishee’s Answers begins with the language, “NOW COMES Garnishee, J.C. Pa-tin Group, L.L.C., through undersigned counsel ...," and is "Respectfully Submitted” by Andry. [Emphasis in original.]

      . Andry makes a statement at that hearing that "I hope to be appearing as a friend of the Court and the parties trying to resolve the case....” That statement, however, does not permit Andry to argue that he appeared in court that day not formally representing anyone; he appeared before the trial court as counsel and mandatory for Patin Group by virtue of his formal appearance as counsel of record. See Rule 1.16, Louisiana Rules of Professional Conduct.

      . Although the formal document that had been prepared had a caption reading "Guaranty,” it is well-séttled law that a caption does not govern what a document actually is. A reading of the document clearly indicates that it was not intended to be a suretyship agreement; rather it was intended to be a separate and distinct agreement between Patin Group, Cedric, and SML, each having respective duties and obligations thereunder.

      . The agreement required Cedric to pay to SML $5,000 on the 10th day after the agreement was agreed to; $5,000 on or before 3 January 2012; $10,000 on or before 2 February 2012; and $9,641.36 on or before 4 March 2012.

      . Although the trial court found the 27 February 2002 judgment null and void, it actually meant that the judgment was prescribed and unenforceable. A prescribed judgment is not a nullity; rather it creates a natural obligation. La. C.C. arts. 1760-1762.

      . We express no opinion whether the matter can be heard as summary matter or must proceed by ordinary proceedings.

      . The Garnishee’s Answers begins with the language, "NOW COMES Garnishee, J.C. Pa-tin Group, L.L.C., through undersigned counsel ... ” and is "Respectfully Submitted" by Andry.

      . Although the formal document that had been prepared had a caption reading "Guaranty,” it is well-settled law that a caption does not govern what a document actually is. A reading of the document (which is different than what was formally read into the record in open court) clearly indicates that it was not intended to be a suretyship agreement; rather it was intended to be a separate and distinct contract.

      .Any argument that Andry exceeded his mandate from Patin Group and Joseph C. Patin (Cedric’s father) is not an issue before this court.

      . These pleadings and other documents and their dates of filing include as follows:
      "Motion to Withdraw Motion to Enforce Settlement” 29 February 2012
      "Ex Parte Motion to declare Judgment Null and Void” 29 February 2012
      "Motion for Expedited Hearing” 1 March 2012
      "Memorandum in Support of Motion to declare Judgment Null and Void and Reply to Plaintiff's Opposition to Motion to Declare Judgment Null and Void” 19 April 2012
      "Opposition to Plaintiff's Motion to Enforce Guaranty And Opposition to Plaintiff’s Supplemental Memorandum in Support of Motion to Enforce Guaranty” 19 April 2012

      . We express no opinion whether the matter can be heard as summary matter or must proceed by ordinary proceedings,


source: Caselaw Access Project

author: DRAKE, J.

license: Public Domain

text:
    Anthony ROBERSON v. Deborah ROBERSON.
    No. 2012 CW 2052.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 5, 2013.

      Vanessa R. Williams, Amite, Louisiana, for Plaintiff/Appellee, Anthony Roberson.
    Cynthia A. DeLuca, Martha J. Maher, Rebecca deMahy, New Orleans, Louisiana, for Defendant/Appellant, Deborah Roberson.
    Before PARRO, WELCH, and DRAKE, JJ.
   DRAKE, J.

1 ?This is an appeal by defendant, Deborah Roberson, from a judgment overruling her declinatory exception pleading the objections of improper venue and lis pendens and her peremptory exception pleading the objections of res judicata and no right of action. For the reasons that follow, we convert the appeal to an application for supervisory writ of review, we grant the writ, reverse the judgment in part, and render judgment in part, and remand the matter to the district court, with instructions.

FACTS AND PROCEDURAL HISTORY

Deborah Roberson and Anthony Roberson were divorced in the 24th Judicial District Court (24th JDC) for the Parish of Jefferson and signed a consent judgment addressing spousal support and other incidental matters on January 22, 2003. One of the provisions of the consent judgment required Anthony Roberson to pay Deborah Roberson permanent spousal support in the amount of eight hundred dollars ($800.00) per month from April 1, 2004, until March 30, 2007. The consent judgment further required that beginning April 1, 2007, Anthony Roberson was to pay Deborah Roberson five hundred dollars ($500.00) per month, until her death or remarriage, which occurred first. Anthony Roberson filed a rule to show cause why alimony should not be modified on June 16, 2010, in the 24th JDC. Deborah Roberson filed a rule to increase final spousal support with incorporated memorandum, on September 3, 2010, also in the 24th JDC. Both parties entered into an agreement to dismiss both of the rules with prejudice in October 2010.

On April 11, 2012, Anthony Roberson filed a petition to make judgment executo-ry and motion to terminate spousal support in the 21st Judicial District | ¡¡Court (21st JDC) for Livingston Parish. Anthony Roberson alleged that he was a domiciliary of St. Tammany Parish and that Deborah Roberson was a domiciliary of Livingston Parish. Deborah Roberson responded to the petition with exceptions of improper venue, lis pendens, res judicata, no right of action, and vagueness.

All of the exceptions filed by Deborah Roberson were heard by the 21st JDC. The trial court rendered a judgment overruling all of the exceptions, other than the exception of vagueness, which was sustained. Anthony Roberson was given fifteen (15) days to amend his petition, in connection with the exception of vagueness, which he did on September 18, 2012. Deborah Roberson appeals from the judgment overruling the remainder of her exceptions.

ASSIGNMENTS OF ERROR

Deborah Roberson assigns as error that the trial court erred in denying her exceptions of improper venue, lis pendens, res judicata, and no right of action. This court addresses only the denial of the exception of venue.

APPELLATE JURISDICTION

We must first determine whether the trial court’s judgment is a final appeal-able judgment. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Shapiro v. L & L Fetter, Inc., 2002-0933 (La.App. 1 Cir. 2/14/03), 845 So.2d 406, 408. This court’s appellate jurisdiction extends to “final judgments.” See La. C.C.P. art. 2083(A). “An interlocutory judgment is appealable only when expressly provided by law.” La. C.C.P. art. 2083(C). A final judgment is one that determines the merits of a controversy, in whole or in part. In contrast, an interlocutory judgment does not determine the merits, but only preliminary matters in the course of an action. La. C.C.P. art. 1841. There is no statute or codal authority that expressly permits an appeal from a denial of exceptions of venue, lis pendens, res judicata, or no right of action. Therefore, because the instant case seeks appellate review of an | ¿interlocutory judgment that is not expressly provided for by law, the appeal is not properly before this court.

This court issued a rule to show cause why the instant appeal should or should not be dismissed pursuant to Article 2083. In response, Deborah Roberson requested that this court exercise its supervisory jurisdiction and convert this appeal to a writ application. An appellate court has broad discretion to convert an appeal to an application for supervisory review, and because we find error in the trial court judgment, which in the interest of judicial economy should be corrected, we will convert this appeal to an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34, 39.

LAW AND ANALYSIS

Deborah Roberson and Anthony Roberson entered into a consent judgment governing spousal support and other incidental matters in the 24th JDC. Anthony Roberson attempted to modify the spousal support owed to Deborah Roberson in the 24th JDC, and Deborah Roberson attempted to increase the spousal support owed her in the 24th JDC. After meeting with the judge, both parties voluntarily dismissed their actions. Anthony Roberson subsequently filed the instant petition to make the consent judgment executory and motion to terminate spousal support in the 21st JDC. Anthony Roberson asserts that venue is proper in Livingston Parish, since Deborah Roberson is currently a domiciliary of that parish. Furthermore, Anthony Roberson no longer resides in Jefferson Parish and is a domiciliary of St. Tammany Parish. Anthony Roberson relies on La. C.C.P. art. 74.2(D), which provides:

A proceeding to register a child support, medical support, and income assignment order, or any such order issued by a court of this state for modification, may be brought in the parish where the person awarded support is domiciled.

[fiThe comments to Article 74.2 define “support” as “including] both child and spousal support.” La. C.C.P. art. 74.2, comment (d); See also, La. C.C.P. art. 2785(4). Therefore, Anthony Roberson argues that an action for modification of spousal support can be brought in the parish where the person awarded the support is domiciled. Anthony Roberson’s argument is premature and misplaced. Article 74.2(D) applies to “a proceeding to register” a support award, not one to modify a support award.

Deborah Roberson asserts that La. C.C.P. art. 74.2(C) only allows the proceeding for a modification of a support order to be filed in the parish of her domicile if the award has been registered pursuant to La. C.C.P. art. 2785. Article 74.2(C) provides, in pertinent part:

A proceeding for modification of support may be brought in any of the following:
(1) The parish where the person awarded support is domiciled if the award has been registered in that parish pursuant to the provisions of Article 2785 et seq., regardless of the provisions of Article 2786(A) relative to the domicile of the parties.
(2) The parish where the support award was rendered if it has not been registered and confirmed in another court of this state, pursuant to the provisions of Article 2785 et seq.

(Emphasis added.)

The above bolded language was added by 2010 La. Acts, No. 689, § 1, eff. June 29, 2010. A history of Article 74.2 is relevant to this proceeding. By 1987 La. Acts, No. 417, § 1, the legislature added a new Paragraph (C), which allowed a “party seeking modification of support against a resident to bring the action in the parish of the awardee or in the original court.” 1987 La. Acts, No. 417, comment (b). The stated purpose of adding Paragraph (C) was “to give separate treatment for a proceeding for modification of support.” 1987 La. Acts, No. 417, comment (b). Article 74.2(C) was again modified in 1997 and provided, in pertinent part:

IrA proceeding for modification of support may be brought in any of the following:
(1) The parish where the person awarded support is domiciled.
(2) The parish where the support award was rendered if it has not been registered and confirmed in another court of this state, pursuant to the provisions of Article 2785 et seq.
See 1997 La. Acts, No. 603, § 1.

As previously noted, the 2010 amendment clearly altered Article 74.2(C)(1) and limited the filing of a proceeding for a modification of a support award to the parish where the person awarded support is domiciled if the award was registered in that parish pursuant to Article 2785 et seq. However, the only manner to comply with Article 2785 et seq. is to have the obligee initiate the registration of the support order pursuant to the provisions of Article 2786. Furthermore, Article 74.2(C)(2) provides that if a support award has not been registered and confirmed in another court of this state pursuant to Article 2785 et seq., then the proceeding for modification of support is to be brought in the parish where the support award was rendered, in this case Jefferson Parish. It is true, that prior to the 2010 amendment, venue was proper “where the person awarded support [was] domiciled.” La. C.C.P. art. 74.2(C), as amended by 1997 La. Acts,, No. 603 § 1.

At the same time Article 74.2 was amended by 1997 La. Acts, No. 603 § 1, La. C.C.P. art. 2785 et seq., Intrastate Registration of Support Orders for Modification and Enforcement (“Intrastate Registration statute”) was also enacted. Louisiana Code of Civil Procedure article 2785 provides:

For purposes of this Section:
(1) “Confirmed registered support order” means a support order registered pursuant to the provisions of Article 2786 and subsequently confirmed by a registering court or operation of law pursuant to the provisions of Article 2788(A)(2) or (B) or Article 2793(A)(2), (A)(3), or (B).
|7(2) “Rendering court” means the district or, if applicable, family or juvenile court which rendered the support order.
(3) “Registering court” means the district or, if applicable, family or juvenile court in which a support obligation rendered by another court of this state has been filed.
(4) “Support order” means a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney fees, and other relief.
(5) “Party to a support order” means the obligee of a support order, or the state of Louisiana, Department of Children and Family Services, or similar agency of another jurisdiction or state when supplying support services as defined in or substantially similar to R.S. 46:236.1(A)(7), or under the Uniform Interstate Family Support Act (UIFSA), or in performance of its official duties under Title IV, Subchapter D of the Social Security Act as stated in 45 C.F.R. 301.1.

(Emphasis added; footnote deleted.)

In the original version of the Intrastate Registration statute, there was no definition of “party to a support order.” Therefore, the legislature added the definition and defined it as the “obligee of a support order” or the “state of Louisiana, Department of Children and Family Services, or similar agency of another jurisdiction or state.” La. C.C.P. art. 2785(5).

Louisiana Code of Civil Procedure article 2786 provides the method by which a “party to a support order” may proceed to register such a support order as follows:

A. A support order rendered by a court of this state may be registered for modification in another court of this state if all parties to the order are no longer domiciled in the parish of the rendering court.
|SB. A party to a support order [obli-gee] seeking to register the support order pursuant to the provisions of this Subsection shall transmit to the clerk of the registering court all of the following:
(1) A certified copy of the support order.
(2) A verified statement of support or a federally approved URESA or UIF-SA form, signed by a party to the support order, indicating all of the following:
(a) The name and street address of the obligee.
(b) The name, last known place of residence, and post office or street address of the obligor.
(c) A list of all the jurisdictions in which the order is registered.
C. Upon receipt of these documents, the clerk of court shall:
(1) Treat the documents as if they were a petition seeking relief relative to a family law matter by assigning a docket number and, if applicable, designate a division to which the matter is allotted.
(2) Register the support order by stamping or making a notation thereof on the certified copy of the support order in substantially the following form: “REGISTERED FOR MODIFICATION by the Clerk of the [District, Family, or Juvenile] Court in and for the Parish of [name of parish] on [date].”
(3) (a) Send a copy of the registered support order, by certified or registered mail, to the obligor at the address provided in the verified statement of support, or
(b) Issue service of process as permitted by law and notice of registration in lieu of citation, which shall be served by ordinary process.
(4) Issue notice of the registration to the rendering court or, if the support order has been previously registered and confirmed for modification in another court of this state, to the last registering court.
D. The filing of a support order in compliance with the provisions hereof constitutes registration of the support order for modification, and if subsequently confirmed, shall divest the rendering court, or if registered in another court for modification, the court of last registration, of jurisdiction to modify the support order.

(Emphasis added.)

If an obligor objects to such registration, he has twenty days from the date of mailing of notice or from the date of service of process, as required by Article 1 n2786(C)(3), service to register an objection with the registering court. La. C.C.P. art. 2787.

As Deborah Roberson points out to this court, there is no method in the Intrastate Registration statute authorizing the obligor to register a support order in another court and no method by which the clerk of court is to notify the obligee. Clearly, the legislature intended for the obligee, not the obligor, to be able to register a support order in another court for enforcement and modification.

It is presumed that every word, sentence, or provision in law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Citywide Testing & Inspections, Inc. v. Bd. of Ethics for Elected Officials, 96-1656 (La.App. 1 Cir. 5/9/97), 693 So.2d 1812, 1815, wnt denied, 97-1509 (La.10/3/97), 701 So.2d 198. The Legislature has included both Paragraphs (C) and (D) in Article 74.2. Anthony Roberson argues that (D) applies and (C) is meaningless. Such an interpretation violates the well-accepted rules of interpretation that every provision in the law was intended to serve some useful purpose.

It is a well-recognized principle of statutory construction that legislation addressing a more particularized subject matter prevails over more generalized legislation. See Corbello v. Sutton, 446 So.2d 301 (La.1984); Louisiana Land Acquisition, LLC v. Louisiana Dept. of Environmental Quality, 2011-2037 (La.App. 1 Cir. 7/18/12), 97 So.3d 1144, 1148, unit granted in part, 2012-1872 (La.11/16/12), 103 So.3d 358.

Therefore, this court must apply Article 74.2(C), which provides that a “proceeding for modification of support may be brought” in any of several parishes. However, to be brought in the parish where the person awarded support is domiciled, the award must have been registered in that parish pursuant to the Intrastate Registration statute. See La. C.C.P. art. 74.2(C)(1). When the support | inaward has not been registered and confirmed in another court pursuant to the Intrastate Registration statute, the modification proceeding is to be brought in the parish where the support award was rendered. La. C.C.P. art. 74.2(C)(2).

Deborah Roberson argues that the Intrastate Registration statute does not permit Anthony Roberson to modify a spousal support order in another parish even though she has moved to that parish. The Intrastate Registration statute requires “[a] party to a support order seeking to register the support order” to transmit certain documents. La. C.C.P. art. 2786(B). As noted previously, the statute defines a “party to a support order” as “the obligee of a support order, or the state of Louisiana, Department of Children and Family Services or similar agency of another jurisdiction ...” La. C.C.P. art. 2785(5). Furthermore, Article 2786 requires, upon receipt of certain documents, that the clerk of court is to perform several functions, including sending a copy of the documents to the obligor. La. C.C.P. art. 2786(C)(3). There is no provision in the Intrastate Registration statute for the obligor to register a support order in another parish nor for the clerk of court to notify the obligee of the registration of a support order.

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Campbell, 2003-3035 (La.7/6/04), 877 So.2d 112, 117. It is presumed that the Legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Id. Thus, legislative language will be interpreted on the assumption that the Legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. It is further presumed that the Legislature intends to achieve a consistent body of law. Id.

The starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not h dead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. In re Clegg, 2010-0323 (La.7/6/10), 41 So.3d 1141, 1154. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the Legislature in enacting the law. Id.

There is simply no intent in the Intrastate Registration statute for it to allow the obligor to register a support order in any court other than the court that rendered the support order. La. C.C.P. art. 2785(2). Appellant cites no cases that allow an obligor to a support order to register a support order in another court because the obligee has moved to another parish. Taking the Intrastate Registration statute as a whole, it is only the obligee who may register a support award and only the obligor who receives notice.

The statutory scheme for the registration of intrastate support orders for modification is found in La. C.C.P. art. 2785 through 2790. Those articles contemplate two distinct actions: first, the registering of the support order in the registering court (here Livingston Parish), and second, the confirmation of that order by the registering court. The statute contains various procedural requirements that must be met in order for a registered support order to be confirmed. It is only upon confirmation of the registered support order by the registering court that the rendering court, or court of last registration, is divested of | ^jurisdiction to modify the support order. La. C.C.P. art. 2786(D); Pittman v. Velez, 09-305 (La.App. 5 Cir. 12/29/09), 30 So.3d 953, 957. The mere registration of the support order does not empower the registering court to modify the support order until such order is confirmed. Id.

The 21st JDC never obtained jurisdiction over this matter and cannot do so without the obligee, Deborah Roberson, filing for registration and confirmation of the consent judgment entered by the 24th JDC. See La. C.C.P. arts. 2785 and 2786. The pertinent venue statute, Article 74.2, also contemplates that a modification of a support award be treated separately than other venue cases. The specific requirements are contained in Article 74.2(C). Due to the changes to Article 74.2(C) by the legislature, it is clear that the legislature intended to treat modification of support awards in a certain manner, which allows the obligee, not the obligor, to be able to register a support award in a court other than the rendering court should both parties no longer be domiciled in the parish of the rendering court. See La. C.C.P. art. 74.2(C), La. C.C.P. art. 2785(5), and La. C.C.P. art. 2786(A) and (B). Absent the registration and confirmation in another parish, the obligor must file any action to modify an award of support in the parish of the rendering court.

CONCLUSION

Accordingly, this court converts the appeal to a supervisory writ. Exercising our supervisory jurisdiction, we find the trial court erred in overruling the exception of improper venue, and the trial court’s ruling on this issue is reversed. The trial court’s remaining rulings are hereby vacated. Because we find that Livingston Parish is an improper venue, we remand this matter to the 21st JDC and order the district court to transfer Anthony Roberson’s motion to terminate spousal support to the 24th JDC. Having so ordered, we pretermit discussion of the | isremainder of Deborah Roberson’s exceptions. All costs of this appeal are assessed to Anthony Roberson.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT, WRIT GRANTED, AND MADE PEREMPTORY. JUDGMENT REVERSED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . Deborah Roberson also filed a dilatory exception pleading the objection of vagueness, which was sustained by the trial court and was not appealed.

      . See La. C.C.P. art. 2785(5).

      . The legislature clearly contemplated allowing both the "obligee” and "obligor” to have the right to register a support order to modify it in a parish different than that rendered. During the 1999 legislative session, there was a proposed law to change "the persons to whom the registration provisions apply from ‘obligees’ to ‘parties to a support order' and define[ ] such persons as either the obligee or the obligor of the support order.” Louisiana Bill Digest, Original Digest, 1999 Reg. Sess. S.B. 586. However, the legislature never changed the definition of "parties to a support order” to include the obligor. See La. C.C.P. art. 2785(5).

      . The cases which this court has found, McIntyre v. Becker, 2005-0257 (La.App. 4 Cir. 8/3/05), 918 So.2d 40, and Goutreawc v. Goutreaux, 41,769 (La.App. 2 Cir. 1/16/13), 109 So.3d 935, allowed an obligee to register a support order in another court. In Nezat v. Guzman, 2010-1833 (La.App. 1 Cir. 5/6/11), 2011 WL 2616830 (unpublished opinion), the obligor did file to have a custody order registered in the parish of his ex-wife’s domicile. However, at the time of that filing, Article 74.2 permitted the filing to be in the parish of the domicile of the person awarded support without reference to Article 2785, et seq. Article 74.2 has since been modified to limit the filing of modifications of support to a different court than the rendering court to be by an obligee. This court finds all of the above cases distinguishable.


author: PETTIGREW, J.

text:
    Betty Jean STARKEY v. LIVINGSTON PARISH COUNCIL.
    No. 2012 CA 1787.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 6, 2013.

      Russell C. Monroe, Greensburg, LA, for Plaintiff-Appellant Betty Jean Starkey.
    Amanda H. Carmon, Baton Rouge, LA, for Defendant-Appellee Livingston Parish Council and Louisiana Workers’ Compensation Corporation.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

| ¡¡Claimant, Betty Jean Starkey, appeals from a judgment of the Office of Workers’ Compensation (“OWC”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Ms, Starkey was employed by Livingston Parish Council, and had been so employed for four years. Ms. Starkey was initially hired as a custodian in a maintenance shop, but was later moved into the office to handle inventory paperwork for parts and tractors. On August 10, 2010, Ms. Starkey suffered a work-related injury. According to Ms. Starkey, she was seated at her desk and attempted to open the bottom drawer, when the “desk drawer [got] hung up” and “yanked” and “twisted” her around, causing her to injure her back. Following this accident, Ms. Starkey was treated by Dr. Thad Broussard, an orthopedic surgeon, for her back injury. She never returned to work for Livingston Parish Council after this accident and was subsequently terminated from her position effective September 30, 2011.

At the time of this incident, Livingston Parish Council was covered through a policy of workers’ compensation insurance issued by Louisiana Workers’ Compensation Corporation (“LWCC”). LWCC began paying Ms. Starkey weekly benefits in the amount of $214.67, but terminated same effective September 16, 2010, after learning that Ms. Starkey was involved in an automobile accident on that date that increased her back and neck complaints. LWCC further learned that Ms. Starkey had undergone unauthorized treatment with an orthopedic surgeon, Dr. Jason Smith, following the automobile accident and eventually underwent back surgery on February 28, 2011. Concluding that Dr. Smith was not authorized and not Ms. Starkey’s choice of physician in the specialty of orthopedic surgery, LWCC decided that Dr. Smith would not be paid for his treatment of Ms. Starkey.

On October 12, 2011, Ms. Starkey filed a disputed claim for compensation against Livingston Parish Council and LWCC (sometimes collectively referred to as “defendants”), alleging that the termination of her benefits was arbitrary and capricious and based on an | ?,erroneous allegation that her back Injury was aggravated by a later accident. In addition, Ms. Starkey asserted that she had been denied her choice of an orthopedic surgeon, arguing that her previous consultation with Dr. Thad Broussard, an orthopedic surgeon who does not perform spine surgery, should not have been a basis to deny her the right to see Dr. Jason Smith, the orthopedic surgeon who operated on her back.

On January 24, 2012, Ms. Starkey filed a motion for summary judgment, asserting that there were no genuine issues of material fact “as to Dr. Jason Smith being Ms. Starkey’s first choice of physician for orthopedic spine surgeon” or as to whether “Ms. Starkey suffered a back injury on the job during the course and scope of her employment with Livingston Parish Council, and that her back injury was in no way caused or aggravated by her subsequent September 16, 2010 car accident.” Ms. Starkey argued that she was entitled to summary judgment as a matter of law. The motion for summary judgment proceeded to hearing on March 2, 2012, at which time the OWC heard argument from respective counsel and considered the documentary evidence submitted by the parties. Subsequently, on March 6, 2012, the OWC rendered judgment and written reasons for judgment denying Ms. Starkey’s motion.

Thereafter, the matter proceeded to trial before the OWC on March 19, 2012, and was taken under advisement. On April 26, 2012, the OWC issued judgment finding as follows: 1) that Ms. Starkey had carried her burden of proving that she suffered a work-related accident on August 10, 2010, that caused injury and disability to her back that continued until at least September 16, 2010, when the automobile accident occurred; 2) that Ms. Starkey failed to prove that any disability due to her back injury that existed after September 16, 2010, was a result of the August 10, 2010 work accident; and 3) that no additional workers’ compensation benefits not already paid were to be awarded. The OWC dismissed Ms. Starkey’s claim against defendants with prejudice.

|4It is from this judgment that Ms. Starkey has appealed, assigning the following specifications of error for our review:

1) The [OWC] erred in denying [Ms. Stanley’s] well pled and supported motion for summary judgments[]
2) The [OWC] erred in ruling [Ms. Starkey] is not entitled to [workers’] compensation benefits after September 16, 2010.
3) The [OWC] erred in failing to declare after trial [Ms. Starkey’s] treatment with Dr. Jason E. Smith and Our Lady of the Lake Hospital was reasonable and necessary, necessitated by the work injury, and that defendants were obligated to pay for those services.
4) The [OWC] erred in failing after trial to rule defendants were arbitrary and capricious in terminating [Ms. Starkey’s] benefits on August 11, 2011 and for failing to pay for reasonable and necessary treatment by Dr. Jason E. Smith and Our Lady of the Lake Hospital.

APPLICABLE LAW

Standard of Review

The manifest error standard of review applies in workers’ compensation cases, and great deference is accorded to the OWC’s factual findings and reasonable evaluations of credibility. Veal v. American Maintenance and Repair, Inc., 2004-1785, p. 5 (La.App. 1 Cir. 9/23/05), 923 So.2d 668, 672. The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s | ¡finding was clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, “[i]f the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 2001-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

Burden of Proof/Causation

The Louisiana Workers’ Compensation Act provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme, as adopted by the legislature, and must establish that the accident was employment related, that the accident caused the injury, and that the injury caused the disability. Hirstius v. Tropicare Service, LLC, 2011-1080, p. 2 (La.App. 1 Cir. 12/21/11), 80 So.3d 1215, 1216.

Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Id. A worker’s testimony is sufficient to discharge the burden of proving an accident, provided that two elements are first satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances surrounding the alleged incident. Carter v. Lakeview Regional Medical Center, 2004-1794, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 686, 688.

| (¡“Accident” is defined in La. R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact and subject to the manifest error standard of review. Allman v. Washington Parish Police Jury, 2004-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88.

An employee in a workers’ compensation action has the burden of establishing a causal link between the accident and the subsequent disabling condition. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985). Where, as here, the employee suffered from a preexisting medical condition, he may still prevail if he proves that the accident “aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Id. In Walton, the Louisiana Supreme Court recognized the existence of a presumption to aid plaintiffs in cases involving a preexisting condition:

In order for the employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. A claimant’s disability is presumed to have resulted from an accident, however, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition, ... or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.
Preexisting disease or infirmity of the employee does not disqualify a claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Correl-atively, when an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, the employee’s l7work injury is presumed to have aggravated, accelerated or combined with his preexisting disease or infirmity to produce his disability.

Walton, 475 So.2d at 324-325 (citations omitted).

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately, the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Batiste v. Tenet Healthcare Carp., 2009-1192, p. 4 (La.App. 1 Cir. 2/12/10), 35 So.3d 352, 355, writ denied, 2010-0559 (La.5/7/10), 34 So.3d 864.

Medical Benefits

On the issue of payments for particular medical services, an injured employee is not entitled to recover for medical expenses where he or she fails to substantiate a claim. La. R.S. 23:1203; Starks v. Universal Life Insurance Company, 95-1003, p. 5 (La.App. 1 Cir. 12/15/95), 666 So.2d 387, 391, writ denied, 96-0113 (La.3/8/96), 669 So.2d 400. Pursuant to La. R.S. 23:1203, the employee must prove that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Patterson v. Long, 96-0191, p. 11 (La.App. 1 Cir. 11/8/96), 682 So.2d 1327, 1334, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. The question of whether a claimant is entitled to medical benefits is ultimately a question of fact, and the OWC’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Starks, 95-1003 at 5, 666 So.2d at 391.

Statutory Penalties

Under the applicable statutory provisions of La. R.S. 23:1201(F), penalties and attorney fees are recoverable for failure to pay benefits unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201 F(2). A claim is reasonably controverted when the employer has sufficient factual and/or medical information to reasonably 1 ^counter evidence presented by the claimant. Pitre v. Buddy’s Seafood, 2011-0175, p. 10 (LaApp. 1 Cir. 8/16/12), 102 So.3d 815, 823, writ denied, 2012-2058 (La.11/16/12), 102 So.3d 41. A determination of whether an employer has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review. Atwell v. First General Services, 2006-0392, p. 13 (La.App. 1 Cir. 12/28/06), 951 So.2d 348, 357, writ denied, 2007-0126 (La.3/16/07), 952 So.2d 699. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Frith v. Riverwood, Inc., 2004-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15.

ANALYSIS

Denial of Ms. Starkey’s Motion for Summary Judgment (Assignment of Error No. 1)

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229, p. 5 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241, 1244. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action (except those disallowed in La. Code Civ. P. art. 969). La.Code Civ. P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B)(2).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all’ essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of |nproof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

When appropriate under Articles 966 and 967, summary judgment is available in workers’ compensation cases. See La. Code Civ. P. art. 966(A)(2); La. R.S. 23:1317(A); Craig, 2004-0229, at 5, 885 So.2d at 1244. In determining whether summary judgment is appropriate, appellate courts review evidence de novo, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-S Communications Vertex Aerospace, LLC, 2009-1202, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 339-340, writ denied, 2010-0715 (La.6/4/10), 38 So.3d 302. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 2 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. The review of a summary judgment in a workers’ compensation case is conducted in the same manner. Davis v. AMS Tube Corp., 2000-1311, p. 4 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877.

hnIn written reasons for judgment, the OWC noted as follows in denying Ms. Starkey’s motion for summary judgment:

The credibility of [Ms. Starkey] has been called into question so the OWC Court wants to hear the claimant as a live witness at trial for determinations of credibility.
Most importantly for this MSJ hearing, the extent of injury and disability due to the work-related accident on August 10, 2010 are at issue. To make a determination on these issues at MSJ, the court will not “evaluate the weight of the evidence” of the various physicians whose opinions and records have been admitted into evidence.
The extent of injury and disability herein must be decided at a trial on the merits due to genuinely disputed material facts surrounding claimant’s pre-exist-ing back condition since 2008, the work-related accident of August 2010, and car-incident in September of 2010.

We have thoroughly reviewed the record before us and agree with the OWC that summary judgment was not warranted in this case. In opposition to Ms. Starkey’s motion for summary judgment, defendants submitted medical records that cast dispersions on Ms. Starkey’s credibility as it relates to her complaints to various medical providers regarding this incident. As correctly noted by the OWC in its reasons for judgment, its role was not to “evaluate the weight of the evidence of the various physicians whose opinions and records have been admitted into evidence.” Thus, summary judgment was properly denied in this matter. This assignment of error has no merit.

Denial of Benefits and Failure to Reimburse Medical Expenses (Assignments of Error Nos. 2 and 3)

After hearing from the witnesses and considering the documentary evidence in the record, the OWC concluded that Ms. Starkey was within the course and scope of her employment with Livingston Parish Council when she suffered a work-related accident on August 10, 2010, causing injury and disability to her back that continued until at least September 16, 2010, when the automobile incident occurred. Following our exhaustive review of the record and exhibits in this matter, we are unable to say the OWC erred in determining that Ms. Starkey sustained a.work-related accident as defined in La. R.S. 23:1021(1). The OWC’s ruling is reasonable and supported by the record.

[ nThe next issue we must address is the OWC’s finding that Ms. Starkey was not entitled to any additional workers’ compensation benefits because she failed to carry her burden of proof that any disability due to her back injury that existed after September 16, 2010, was a result of the work accident of August 10, 2010. In written reasons for judgment, the OWC concluded as follows, with regard to causation and credibility:

Claimant Starkey was not [in] good health as to her back prior to the work-related accident of August 10, 2010. Furthermore, Starkey was not truthful about the prior condition of her back when she discussed it with the doctors of this case. Injections of Toradol close in time and prior to the alleged work-accident is [sic]' of great significance. Therefore, claimant was not entitled to
any presumption of causation due to lack of good health pre-accident. Furthermore, it was only claimant’s testimony that she did not take prescription medication while at work to perform her job duties.
Claimant was not truthful when she failed to disclose a non-work auto incident with the power line, which occurred September 16, 2010. That happened one month after the work-accident. A tort suit was filed by claimant and her husband on the auto incident involving a downed power line.
Claimant’s attorney went to great lengths to try to correct alleged errors as to the back and/or neck in various medical reports and in the lawsuit filed on behalf of claimant for the auto incident with the power line.
Due to the close proximity in time of the work-accident (August 10, 2010) and subsequent auto incident (September 16, 2010), claimant’s credibility is crucial in sorting out what areas of the body were injured by the auto incident. Claimant did not contend at trial that the auto incident aggravated her pre-existing back injury of August 10, 2010. Claimant specifically claimed that the undisclosed auto incident did not aggravate her back.
Although the “corrective” work done by claimant’s attorney was extensive, it still did not overcome claimant’s lack of credibility due to the prior back condition not properly disclosed and the undisclosed auto incident. It was just not enough to cover the damage done by claimant’s weak credibility.

As this court has previously noted, the determinations by the OWC as to whether Ms. Starkey discharged her burden of proof was a factual determination that will not be disturbed on review in the absence of manifest error. Allman, 2004-0600 at 3, 907 So.2d at 88. Ms. Starkey was clearly not in “good health” prior to the 2010 work accident such that she would be entitled to the presumption of causation. See Walton, 475 So.2d at 324. The record is replete with evidence that Ms. Starkey made multiple complaints of back pain to Dr. Broussard in the months and years preceding the work accident, including a visit on July 16, 2010, wherein Dr. Broussard noted “back complaints” in the chart along with “I have given her Toradol” and “Recheck in the office for followup.” Moreover, although Ms. Starkey testified at trial that her back pain prior to the work accident was minimal, medical records indicate that Ms. Starkey received multiple Toradol injections for her back before the accident and was taking pain medication on a regular basis during that period as well. In fact, on August 9, 2010, the day before the accident in question, Dr. Broussard’s records reflect that a prescription for hydrocodone was faxed to Thrift Town Pharmacy for Ms. Starkey.

Noting Ms. Starkey’s “lack of credibility” and “weak credibility,” the OWC opined that any disability due to Ms. Starkey’s back injury that existed after September 16, 2010, was not caused by the August 10, 2010 work injury, but rather was related to Ms. Starkey’s preexisting back condition and the subsequent September 16, 2010 automobile incident. Based upon a complete review of the record, we decline to say that the OWC was clearly wrong in this finding. The OWC’s ruling Is reasonable and supported by the record. While Ms. Starkey proved that a work accident occurred, she failed to prove that the work accident caused any disability after September 16, 2010. Accordingly, Ms. Starkey was not entitled to any additional workers’ compensation benefits or reimbursement for medical expenses associated with her treatment by Dr. Smith. Was Termination of Beneñts and Failure to Pay Medicals Arbitrary and Capricious (Assiynment of Error No. 4)

In her final assignment of error, Ms. Starkey argues that defendants terminated her benefits based solely on a single erroneous January 25, 2011 report from Dr. Smith that stated that the September 16, 2010 automobile accident had caused an aggravation of Ms. Starkey’s back pain. Ms. Starkey points to Dr. Smith’s November 15, 2011 office notes where he corrects his mistake and states that the work accident caused the back pain and the subsequent automobile accident caused an aggravation to h.othe preexisting neck pain only. Thus, Ms. Starkey maintains, defendants were arbitrary and capricious in their failure to reasonably controvert her claim for benefits.

Defendants counter that there was sufficient evidence to support the termination of Ms. Starkey’s benefits. Defendants note Ms. Starkey’s inconsistency in reporting her intervening automobile accident to her multiple healthcare providers, the fact that Ms. Starkey misrepresented the existence of her prior treatment for back pain to the employer’s choice of physician, and the petition for damages filed by Ms. Starkey wherein she alleged back injury due to the September 16, 2010 automobile accident, only to provide evidence of a retraction of that allegation shortly before the trial of this matter. Defendants argue that “there were multiple objective reasons upon which to rely in terminating” Ms. Starkey’s benefits and that their actions were neither arbitrary nor capricious.

Based on our thorough review of the record, we agree with defendants and find no merit to Ms. Starkey’s arguments on this issue. Defendants had reasonable grounds to controvert Ms. Starkey’s claim for benefits beyond September 16, 2010, the date of her automobile accident. Thus, Ms. Starkey was not entitled to penalties and attorney fees for defendants’ actions in terminating her benefits or in failing to pay for her treatment by Dr. Smith.

DECREE

For the above and foregoing reasons, the April 26, 2012 judgment of the OWC is affirmed. All costs associated with this appeal are assessed against appellant, Betty Jean Starkey.

AFFIRMED.

      . The denial of Ms. Starkey’s motion for summary judgment would generally be a non-appealable interlocutory judgment. La.Code Civ. P. arts. 968 and 2083. However, it may be reviewed on an appeal of a final judgment in the suit. See Devers v. Southern University, 97-0259, pp. 15-16 (La.App. 1 Cir. 4/8/98), 712 So.2d 199, 209. In this case, since the OWCs judgment disposed of all the relief prayed for by Ms. Starkey, it is a final judgment. See La.Code Civ. P. art. 1841. Therefore, it is appropriate for this court to review the OWC's ruling that denied Ms. Starkey’s motion for summary judgment in reviewing the OWCs judgment on the merits. Parish Nat. Bank v. Wilks, 2004-1439, p. 4 n. 6 (La.App. 1 Cir. 8/3/05), 923 So.2d 8, 11 n. 6.


author: GUIDRY, J. CRAIN, J.,

text:
    Chadrick Galen STARKEY v. Tyra Ann Smith STARKEY. Tyra Smith Starkey v. Chadrick G. Starkey.
    Nos. 2013 CU 0166, 2013 CU 0167.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 6, 2013.

      Charles Genco, Amite, LA, for Appellee, Chadrick Galen Starkey.
    Richard Ducote, Pittsburgh, PA, for Appellant, Tyra Ann Smith Starkey.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   GUIDRY, J.

12This appeal raises the procedural question of whether a substitute judge can sign a written judgment giving binding effect to an interlocutory ruling rendered by the original judge who subsequently recused from the case. Finding that the substitute judge improvidently signed a judgment on behalf of the recused judge, we vacate the judgment rendered.

FACTS AND PROCEDURAL HISTORY

Tyra Ann Smith and Chadrick Galen Starkey were married in March 1995, and from their union, three children were born. On June 20, 2008, the parties filed separate petitions for divorce. Mr. Starkey filed his petition in Tangipahoa parish under docket number 2008-0001946. Ms. Starkey filed her petition in St. Helena parish under docket number 20,153, but her action was eventually transferred and consolidated with Mr. Starkey’s divorce action in Tangipahoa parish. The divorce action in Tangipahoa parish was allotted to Judge Ernest G. Drake.

In Mr. Starkey’s petition for divorce, he declared the following, in pertinent part: that he and Ms. Starkey had lived separate and apart since June 13, 2008; that he desired a divorce pursuant to La. C.C. art. 102; that it would be in the best interest of the children that the parties be granted joint custody of the children with him designated as domiciliary parent; and that it would be in the best interest of the children that he be granted exclusive use and occupancy of the family residence.

In her petition, Ms. Starkey alleged that she and Mr. Starkey had physically separated on May 25, 2008, and that she desired a divorce under La. C.C. art. 102. | aShe stated that she had physical custody of the couple’s minor children and because of several acts and threats of violence allegedly committed by Mr. Starkey that she described in the petition, Ms. Starkey averred that it would be in the best interest of the children that joint custody be awarded designating her as the domiciliary parent and granting Mr. Starkey restricted, supervised visitation. She further requested that the provisions of the “Post-Separation Family Violence Relief Act,” La. R.S. 9:361-369, be applied to designate Mr. Starkey as a family violence perpetrator and that she be granted exclusive use and occupancy of the family home in Greensburg, Louisiana.

A hearing on the separate petitions for divorce was held on August 4, 2008, before Judge Drake. At the conclusion of that hearing, Judge Drake awarded the parties joint custody of the children with Ms. Starkey designated as domiciliary parent and further granted Ms. Starkey the use of the former matrimonial domicile. Judge Drake allocated Mr. Starkey physical custody of the minor children on the first, third, and fourth weekends of the month commencing at 6:00 p.m. on Friday and ending on Sunday at 6:00 p.m. Judge Drake refused to find Mr. Starkey a family violence perpetrator. The judge then asked that a written judgment be drafted for his signature based on the rulings he had made; however, a written judgment was never submitted for the judge’s signature.

On October 19, 2009, Mr. Starkey filed an amended petition for divorce in which he asserted that the parties “made attempts at working toward a potential reconciliation since the original filing; however, the parties never had a formal reconciliation and petitioner is still entitled to and desires a divorce in this matter.” In the amended petition, Mr. Starkey alleged that Ms. Starkey had “committed |4adultery along with acts including criminal activity and emotional/verbal abuse along with threats to his person.” Therefore, he alleged there had been a “material change of circumstances since the first hearing” and that it would be in the best interest of the children for him to be awarded sole custody. Mr. Starkey also requested an award of child support in the amended petition. A hearing on Mr. Starkey’s amended petition was scheduled for January 19, 2010.

On December 10, 2009, Ms. Starkey filed an answer to Mr. Starkey’s amended petition that included a peremptory exception raising the objection of no cause of action to Mr. Starkey’s request to modify the original custody decree imposed by Judge Drake following the August 4, 2008 hearing. In the exception, Ms. Starkey acknowledged that a judgment had “never been prepared and submitted” to the court, but she nevertheless asserted that Judge Drake’s August 4, 2008 ruling was a considered decree, and as such, Mr. Starkey had to establish that the current custody arrangement was “deleterious” to the children in order to justify a change. Judge Drake set the exception to be heard at the January 19, 2010 hearing.

On January 19, 2010, Judge Drake held a pre-trial conference wherein he raised the issue of why his August 4, 2008 ruling was not memorialized into a formal written judgment and presented to him for signing. Judge Drake then learned that Ms. Starkey’s prior counsel had informed a member of his staff that the parties had reconciled. Later that day, Judge Drake heard arguments on Ms. Starkey’s objection of no cause of action and denied the exception. The rule for custody, raised in Mr. Starkey’s amended petition for divorce, was continued to the following day.

On the following day, prior to hearing the rule for custody, Judge Drake informed the parties that he had been informed that the parties had reconciled for a period following his prior ruling on August 4, 2008. The parties disputed whether | ^reconciliation had occurred. Because Judge Drake was “burdened with the knowledge of the communication from former counsel to [his] transcript coordinator” and the concern expressed by Ms. Starkey’s counsel about the “appearance of prejudice,” Judge Drake self-recused from the case. In the written recusal signed by the judge, he stated that the parties had stipulated to continuing the existing protective orders and further stipulated to the weekends Mr. Starkey would have physical custody of the children. The case was then re-allotted to Judge Zorraine M. Waguespack.

On February 2, 2011, Mr. Starkey filed a motion to reset his rule for child custody and/or for a custody evaluation. Several hearings on the reset rule were held before Judge Waguespack, but before a full hearing could be completed on the reset rule, Judge Waguespack also recused from the case, and the matter was re-allotted to Judge Wayne Ray Chutz. At a hearing held on January 28, 2012, Judge Chutz heard additional testimony from the parties and ordered the transcripts of the prior hearings held before Judges Drake and Waguespack before recessing the case. After reviewing the evidence, Judge Chutz determined that the preliminary issue that he needed to decide was whether the parties had reconciled following the August 4, 2008 judgment. Based on his review of the evidence, Judge Chutz found that the parties had not reconciled, and thus he held that Judge Drake’s August 4, 2008 ruling was a valid considered decree. As such, he concluded that as a “successor judge,” he would sign a written judgment in conformity with Judge Drake’s August 4, 2008 ruling. A judgment to that effect was signed by Judge Chutz on March 27, 2012, and it is the validity of that judgment that is challenged by Ms. Starkey in this appeal.

[ DISCUSSION

On appeal, Ms. Starkey contends that the Judge Chutz erred in signing a written judgment in conformity with Judge Drake’s August 4, 2008 ruling as a “successor judge.” We find merit in Ms. Starkey’s contention.

Louisiana Revised Statutes 13:4209(B)(1) provides that

In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment die s, resigns, or is removed from office, or if his term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered. [Emphasis added.]

Based on the provisions of this statute, it is evident that Judge Chutz was not a successor judge to Judge Drake. While Judge Drake was removed from presiding over the Starkeys’ case, he did not leave office as a judge in the Twenty-First Judicial District Court. Thus, Judge Chutz, who already occupied an office in the Twenty-First Judicial District Court as a sitting judge, did not and could not succeed to Judge Drake’s seat or “office” in the Twenty-First Judicial District Court because Judge Drake still occupied the position. Instead, Judge Chutz simply inherited the Starkeys’ case from Judge Drake. The authority granted under the provisions of La. R.S. 13:4209 clearly applies only when one judge succeeds to the office or seat of another judge and not when a judge simply inherits a case from a judge. See Employers National Insurance Company v. Workers’ Compensation Second Injury Board, 95-1756, p. 5 (La.App. 1st Cir.4/4/96), 672 So.2d 309, 312; see also Louisiana Paving Co., Inc. v. St. Charles Parish Public Schools, 593 So.2d 892, 895 (La.App. 5th Cir.1992).

Moreover, Judge Chutz, despite his finding to the contrary, did not have authority under the doctrine of “law of the case” to sign the March 27, 2012 judgment giving effect to Judge Drake’s August 4, 2008 ruling. The law of the case is a policy by which the court will not reconsider prior rulings in the same |7case, and generally refers to the binding effect of trial court rulings during the later stages of the trial. See Arceneaux v. Amstar Corp., 10-2329, p. 14 (La.7/1/11), 66 So.3d 438, 448. The doctrine does not apply in the context of a trial court ruling on interlocutory issues. Land v. Vidrine, 10-1342, p. 9 (La.3/15/11), 62 So.3d 36, 42; Monlezun v. Lyon Interests, Inc., 11-576, p. 11 (La.App. 3d Cir.11/2/11), 76 So.3d 628, 637. Written reasons for judgment are considered to be interlocutory rulings and do not carry the finality of a judgment. Prior to final judgment, a trial judge may, at his discretion, change the substance or the result of interlocutory rulings. Ryan v. State Farm Mutual Automobile Insurance Company, 10-0961, p. 4 (La.App. 1st Cir.12/22/10), 68 So.3d 563, 566, unit denied, 11-0172 (La.4/1/11), 60 So.3d 1250. As an interlocutory decree, it was improper to give Judge Drake’s August 4, 2008 ruling the binding effect of a final judgment under the law of the case doctrine. See Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269, 1271 (La.App. 1st Cir.1982). Therefore, we find the March 27, 2012 judgment signed by Judge Chutz to be fatally defective and consequently invalid.

CONCLUSION

For the foregoing reasons, we vacate the March 27, 2012 judgment signed by Judge Chutz based on his lack of authority to sign the judgment rendered. Costs of the appeal in these consolidated matters are assessed against the appellee, Chadrick Galen Starkey.

JUDGMENT VACATED.

Judge CRAIN concurs and assign reasons.

CRAIN, J.,

concurring.

|J agree with the majority decision and write separately to emphasize that Louisiana Revised Statute 13:4209 sets forth the exclusive circumstances in which a judge will be considered a “successor judge” authorized to sign a judgment rendered by his predecessor. Because the parties never submitted a written judgment, Judge Chutz, to whom the case was allotted after two recusals, was faced with a procedural shortcoming and no efficient solution. Given this circumstance, Judge Chutz candidly set forth in both his written reasons and judgment that he was issuing the judgment on appeal as “successor judge” in the proceeding and that the rulings were those of Judge Drake. Nevertheless, for the reasons set forth by the majority, Judge Chutz is not the “successor judge” to Judge Drake and the definition of a “successor judge” can only be expanded by the legislature. I also agree that the law of the case doctrine is inapplicable.

      . According to an August 4, 2008 minute entry, on the motion of both parties, Judge Drake ordered that the divorce action filed by Ms. Starkey be transferred to Tangipahoa parish and consolidated with Mr. Starkey’s divorce action, along with a petition for protective orders filed by Ms. Starkey in Tangipahoa parish on June 17, 2008. The "Notice of Transfer” in the record, however, shows that St. Helena parish did not transfer Ms. Starkey’s action to Tangipahoa parish until October 25, 2012, at which time the divorce action was assigned docket number 2012-0003581 and consolidated with Mr. Starkey’s divorce action. Then on November 9, 2009, the court again consolidated a subsequent petition for protective orders filed by Ms. Starkey in Tan-gipahoa parish on October 21, 2009, with Mr. Starkey's pending divorce action.

      . Although Judge Drake referred to the physical custody allocated to Mr. Starkey as "visitation,” the time that parents with joint legal custody share with their children is more properly described as a physical custody allocation of a joint custody plan, as physical custody is actual custody. Cedotal v. Cedotal, 05-1524, p. 5 (La.App. 1st Cir.11/4/05), 927 So.2d 433, 436.

      . The transcripts of those other hearings are not contained in the record before us.


author: LOLLEY, J.

text:
    William D. DESADIER, Plaintiff-Appellant v. WEST FRASIER, INC., Defendant-Appellee.
    No. 48,303-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Flournoy & Doggett, Alexanria, LA, by George Arthur Flournoy, for Appellant.
    Rabalais, Unland & Lorio, Covington, LA, by John Joseph Rabalais, Heather W. Blackburn, for Appellee.

      Before STEWART, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

|, William D. Desadier appeals the judgment of the Office of Workers’ Compensation, District 2, Parish of Winn, State of Louisiana (the “OWC”), wherein the OWC rendered judgment in favor of defendant West Frasier, Inc. For the following reasons, we affirm the judgment of the OWC.

FACTS

Desadier was employed by West Frasier, Inc. (“West Frasier”) on October 20, 2010, as a lumber grader when he allegedly injured his left shoulder while attempting to dislodge a piece of lumber with a pickax. Desadier informed his supervisor on the date of the accident that while using a pickax in his left hand to pull on a piece of lumber, he heard a loud pop in his left shoulder and felt immediate pain extending from his shoulder to his elbow.

The day after the alleged injury involving the pickax (the “pickax incident”), Desadier consulted Dr. Leonard Collier who prescribed him a large quantity of hydrocodone tablets. Two weeks later, Desadier consulted Dr. Randolph Williams who also prescribed pain medication, determined that he suffered from bursitis, and restricted him to light duty. Nearly a year later, Desadier claimed that he continued to suffer from shoulder pain and visited orthopedist Dr. John Ferrell who performed an MRI on October 12, 2011. Based on the results of the MRI, Dr. Ferrell determined that Desa-dier had suffered a full tear of his left rotator cuff, recommended a surgical repair, and restricted him to light duty. Desadier alleged that West Frasier fired him on October 13, 2011, after he informed his supervisor that he could no longer perform his job functions due to the injury.

| ^Desadier filed a disputed claim for workers’ compensation benefits concerning a workplace injury to his knee which had occurred after the pickax incident. He later amended his petition by adding a claim for the injury to his shoulder sustained from the pickax incident. In response, West Frasier denied liability and filed a reconventional demand of fraud with respect to both of Desadier’s claims. Desadier was examined by Dr. Frasier Gaar after West Frasier requested that Desadier be seen by an independent medical examiner. Prior to trial, Desadier voluntarily dismissed his claim relating to his alleged knee injury.

After a bench trial, the OWC ruled in favor of West Frasier, finding that Desadier had failed to show that aggravation of the shoulder injury was caused by the pickax incident. The OWC also found that Desadier had committed workers’ compensation fraud and was therefore barred from receiving benefits through the workers’ compensation system. Desadier now appeals.

DISCUSSION

As his first assignment of error, Desadier argues that the OWC erred by finding that he had intentionally misled his treating physicians in order to obtain workers’ compensation benefits. We disagree.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Johnson v. T & J Hauling Co., Inc., 46,853 (La.App.2d Cir.01/25/12), 86 So.3d 1. Reasonable evaluations of credibility made by the trier of fact should be accorded great weight by the reviewing court. Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981); Baker v. Phillips Van Heusen Corp., 47,017 (La.App.2d Cir.04/11/12), 91 So.3d 1197, writ denied, 2012-1317 (La.09/28/12), 98 So.3d 844.

Louisiana R.S. 23:1208, defining a claim for workers’ compensation fraud, states in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
⅜ ⅜* ⅝ ⅝ ⅜ ⅜
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for a forfeiture of benefits under this statute are: (1) a false statement or representation; (2) willfully made; and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2078 (La.09/05/95), 660 So.2d 7. All three requirements must be present before a penalty will be imposed. Gilcrease v. Wal-Mart Stores, Inc., 36,523 (La.App.2d Cir.12/11/02), 843 So.2d 415. There is no requirement of prejudice to the employer; when the statute is satisfied, benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed. Freeman v. Chase, 42,716 (La.App.2d Cir.12/05/07), 974 So.2d 25.

^Forfeiture is a harsh remedy and must be strictly construed. An inadvertent and inconsequential false statement will not result in forfeiture of benefits. Louisiana R.S. 23:1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Slater v. Mid-South Extrusion, 43,343 (La.App.2d Cir.08/13/08), 989 So.2d 252.

Here, the record reflects numerous bases supporting the OWC’s finding that Desadier committed workers’ compensation fraud and that finding is not manifestly erroneous or clearly wrong. First, Desadier never informed any of the physicians who treated him for his shoulder pain resulting from the pickax incident that he had a long history of accidents which had caused injury to his left shoulder. In fact, when asked on a patient questionnaire at Dr. Ferrell’s office whether he had any previous problems with his left shoulder and received treatment for those problems, Desadier erroneously stated that he had not. Even during his deposition, Desadier testified that he had never suffered injury to his left shoulder prior to the pickax incident at West Frasier. On the contrary, the record shows that Desadier sustained the following injuries to his left shoulder: in 2006 from a hunting-camp fight; another injury in 2006 from a car accident; an injury in 2008 while changing a flat tire; another injury in 2008 while tubing behind a boat; and, finally an injury in 2008 from falling into a boat while hunting. As treatment for these injuries, Desadier received multiple 1 sinjections to his shoulder, copious amounts of pain medication, and an MRI. It is inconceivable that Desadier, when questioned by the physicians treating him for the pickax incident and by counsel for West Frasier during deposition, could have forgotten this veritable laundry list of injuries to his left shoulder and the resulting treatments. His omissions can only be explained as a desire to attribute his condition solely to the alleged pickax incident at West Frasier in order to receive workers’ compensation benefits. As the OWC pointed out, all the physicians who treated Desadier’s shoulder after the pickax incident and who determined that Desadier’s torn rotator cuff resulted from that workplace accident, reversed their determination once they were afforded a complete history of Desadier’s many past shoulder injuries.

Second, Desadier was thoroughly impeached at trial concerning false statements he had made about his ability to work after leaving West Frasier. Most significantly, Barbara Desadier, Desadier’s wife, testified that Desadier had earned money mowing lawns for his brother’s lawn care service on many occasions since the pickax incident. In response to his wife’s testimony, Desadier explained that he had in fact earned income mowing lawns but did not report this in response to any requests for discovery made by West Frasier, because he felt that the determination of the value of his indemnity award would be conducted at a later stage of the trial. Had counsel for West Frasier not inadvertently discovered this information while questioning Desadier’s wife, it is doubtful that this information would have ever come to light.

| r,The purpose of supplemental earnings benefits (“SEB”) is to compensate the injured employee for the wage earning capacity he has lost as result of his accident. Roach v. Libbey Glass, Inc., 47,-573 (La.App.2d Cir.11/14/12), 107 So.3d 759. Supplemental earnings benefits are calculated as two-thirds of the difference between the worker’s pre-injury monthly wages and those wages the worker is able to earn after the injury. La. R.S. 23:1221. Therefore, information regarding Desadier’s ability to earn wages mowing lawns after the pickax incident was relevant because it directly affected the value of any SEB that he could have received. The withholding of this information further strengthened the OWC’s finding of fraud. Because Desadier is ineligible to receive workers’ compensation benefits due to the determination of fraud, our finding on this issue pretermits any discussion of Desadier’s remaining assignments of error.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the OWC. All expenses of this appeal are to be paid by William D. Desa-dier.

AFFIRMED.