author: SAUNDERS, Judge.

text:
    Jan L. Domingues GUILBEAU v. A. Ray DOMINGUES, Sr.
    No. 14-328.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      James Paul Lambert, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant Jan L. Domingues Guilbeau.
    Henry Camille Perret, Jr., Perret Doise L.L.C., Lafayette, LA, for Defendant/Ap-pellee A. Ray Domingues, Sr.
    Adam G. Young, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant Jan L. Domingues Guilbeau.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

| jThis suit arises out of a transfer of stock from a daughter to her father. A. Ray Domingues, Sr. (hereafter “Appellee”) originally transferred the stock to Jan Do-mingues Guilbeau (hereafter “Appellant”), his daughter. Appellant then transferred the stock to her father in a written dation en paiement. Appellant filed a Petition for Declaratory Judgment, seeking declaration that she was the lawful owner of the stock. In her Petition, she asserted the transfer was intended to have no effect between the parties and was confected to protect the stock from her potential creditors. Appel-lee filed a motion for summary judgment, asserting the “clean hands doctrine” prevented the return of the shares to Appellant and that the dation was not a simulation because consideration was given for the transfer and the stock was delivered. The trial court granted Appellee’s motion for summary judgment, finding that the transfer was not a simulation. On appeal, Appellant asserts the trial court erred in finding the dation was valid. Although not addressed by the trial court, Appellant further asserts that the doctrine of “unclean hands” does not preclude Appellant from recovering the shares. For the reasons that follow, we affirm the trial court’s grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

Appellee is the founder of Ray Chevrolet-Olds, Inc. He has given a large portion of the corporation’s stock to his children, including Appellant, who is his daughter. Over the course of several years, Appellee loaned Appellant a total of $450,000, of which $100,000 was repaid. Appellant also accumulated approximately $800,000 in additional debt to multiple other creditors. In late 2009 or 2010, Appellant and Appel-lee executed a written document entitled “Datien en Paiement” purporting to transfer the stock to Appellee to cancel the remaining debt of $350,000.

12SeveraI years after the execution of the dation, Appellant asked Appellee to return the stock to her. When Appellee refused to return the stock, Appellant filed a Petition for Declaratory Judgment against him on October 31, 2012, asserting the transfer was a simulation and its true purpose was to place her stock beyond the reach of potential judgment creditors.

On November 19, 2012, Appellee filed an exception of no cause of action, asserting the “clean hands doctrine” prevented Appellant from rescinding the dation, on the grounds that Appellant judicially confessed to the illicit purpose of the transfer in her petition for declaratory judgment. Instead of ruling on the exception, the trial court gave the Appellant opportunity to amend her petition. Following her amendment, Appellee filed a motion for judgment on exception of no cause of action, alleging Appellant failed to curatively amend her original petition. The trial court denied the exception. On September 5, 2013, Appellee filed a motion for summary judgment, asserting basically the same thing as Appellant in her petitions— that she had transferred the stock to Ap-pellee for the purpose of placing it out of the reach of her creditors — and, consequently, because the purpose was illicit, that Appellant was precluded from recovery. Additionally, Appellee asserted that the dation was valid. The trial court granted summary judgment in Appellee’s favor, finding that the dation was a valid transfer because the transfer had actually taken place, consideration for the transfer had been given, and the debt was extinguished. It is from this judgment that this appeal arises.

ASSIGNMENT OF ERROR

In her appeal, Appellant asserts the trial court erred in finding that the parties’ transaction was a valid transfer and not a simulation.

I»SUMMARY JUDGMENT STANDARD

Summary judgments are subject to a de novo review. Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La.3/6/09), 3 So.3d 491. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, 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). The movant bears the burden of proof on the motion.

However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant need not negate all essential elements of the adverse party’s claim, action, or defense, but rather must 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ.P. art. 966(C)(2). Thibodeaux v. Lafayette Gen. Surgical Hosp., LLC, 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544.

SIMULATION

Generally, the party alleging a simulation must prove it with reasonable certainty. Pine Prairie Energy Ctr., LLC v. Soileau, 14-5 (La.App. 3 Cir. 6/11/14), 141 So.3d 367 (citing Thompson v. Woods, 525 So.2d 174 (La.App. 3 Cir.1988)); 4See also Entergy Louisiana, Inc. v. Kennedy, 03-0166 (La.App. 1 Cir. 7/2/03), 859 So.2d 74, writ denied, 03-2201 (La.11/14/03), 858 So.2d 430.

Both the parties’ signatures appear on a document entitled “datien en paiement.” The document recited that “appearers are justly and truly indebted unto A. Ray Do-mingues, Sr. in the full and true sum of THREE HUNDRED FIFTY THOUSAND AND NO/IOOTHS ($350,000) DOLLARS, plus accrued interest, by virtue of the money loaned” and listed the dates of the loans. The dation also indicated that two of the loans were represented by two promissory notes made by Appellant and her husband. The document further stated that appearers “wish[ed] to be released from the indebtedness and to reimburse [Appellee] for the indebtedness ... do hereby make unto [Appellee a] datien en payment, hereby transferring, conveying, delivering and setting over ... THE FOLLOWING STOCK CERTIFICATES OF RAY CHEVROLET-OLDS, INC.” and listed several stock certificates. Finally, the document stated “[t]his transfer and conveyance ... is made and accepted for and in consideration of the indebtedness ... and is received by [Appellee] in full acquitance [sic] and discharge ... of the indebtedness.” Appellant filed a petition for declaratory judgment against Appellee seeking to have the purported dation declared a simulation.

“Giving in payment is a contract whereby an obligor gives a thing to the obligee, who accepts it in payment of a debt.” La.Civ.Code art. 2655. In a dation, “the consideration (cause) is the remission of the preexisting indebtedness.” Univ. Props. Corp. v. Fid. Nat. Bank of Baton Rouge, 500 So.2d 888, 893 (La.App. 1 Cir.1986), writ denied, 501 So.2d 762 (La.1987). Delivery is required to perfect a simulation. La.Civ.Code art. 2656.

“A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties.” La.Civ. Code art. 2025. A counterletter is a separate ¡^writing which expresses the true intent of the parties. Id. “A simulation is absolute when the parties intend that their contract shall produce no effects between them. That simulation, therefore, can have no effects between the parties.” La. Civ.Code art. 2026. However, if any consideration is given for the transfer, it is not a simulation. Pine Prairie, 141 So.3d 367.

WAS THERE CONSIDERATION?

Appellant argues that the sums of money given to her by Appellee, two of which are represented by promissory notes, are gifts, not loans. In support of her argument, she produced an affidavit which states “[t]he debt that the Dation purported to forgive was not a real debt, but a gift from my father to me” and deposition testimony in which she arguably asserts that she thought the transfers of money were gifts. However, she also testified that she intended on paying Appellee back. In his affidavit and testimony, Ap-pellee asserts the sums of money given to Appellant were loans. Furthermore, Ap-pellee presented two promissory notes in support of his argument that the sums of money given to Appellee were loans. Additionally, the dation was reduced to writing and the discharge of the purported loans was recited as the requisite consideration.

Generally, parol evidence is inadmissible “to negate or vary the contents of an authentic act or act under private signature.” La.Civ.Code art. 1848. However, there are exceptions to this general rule. Parol evidence “may” be admitted “in the interest of justice ... to prove such circumstances as a vice of consent.” Id. Further, La.Civ.Code art. 1849 provides “testimonial or other evidence may be admitted to prove the existence ... of a simulation.” The word ‘may’ is permissive. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/1/11), 65 So.3d 1218. Thus, this article does not require the admission of parol evidence. Instead, it gives the court discretion to reject testimonial proof and to require | f,written evidence. Bennett v. Porter, 10-1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663 (citing Sonnier v. Conner, 43,811, p. 14 (La.App. 2 Cir. 12/3/08), 998 So.2d 344, 354, writ denied, 09-309 (La.4/3/09), 6 So.3d 773(“The new codal exceptions to the parol evidence rule in the second sentence of Article 1848 are not, however, absolute. The offered evidence ‘may’ only be admitted ‘in the . interest of justice,’ giving the court discretion to reject testimonial proof, and to require written evidence, which in the case of a simulation would be a separate writing or counterletter.”)) Under these circumstances, we consider any parol evidence which might be offered to negate the contents of the dation and the debt which supports it to be inadmissible.

Appellant executed two promissory notes and a dation, each reciting that she owed Appellee substantial debt. She now seeks to negate the contents of each of these documents, relying heavily on her affidavit and testimony. She has not produced a counterletter to the dation. We do not feel that she should now be permitted to negate the contents of three acts under private signature through her own self-serving affidavit and testimony. Under these facts, her self-serving affidavit and testimony are insufficient to raise a genuine issue of material fact and, thus, Appellee was entitled to judgment as a matter of law.

DELIVERY OF THE SHARES

Appellant asserts that the dation was not perfected on the, grounds that delivery did not occur because Appellee was not put into possession of the actual stock certificates. Having concluded that Appellant’s parol evidence is inadmissible to negate the contents of the two promissory notes and the dation and, thus, that consideration was given for the transfer of the stock, Appellant’s claim that the dation was a simulation has been negated. • Thus, there is no need to address whether delivery of the shares occurred.

UNCLE AN HANDS

Appellee also asserts that there was no dispute of material fact that the stock was transferred for an illicit or immoral purpose, precluding Appellant from recovering it and, as a result, summary judgment in favor of Appellee was proper. We agree. For the reasons that follow, even if one chooses to believe Appellant’s affidavit and testimony that the dation was a fiction and that the underlying debt was not real, Appellant is, nonetheless, precluded from recovering the stock from Appellee.

“[A] performance rendered under a contract that is absolutely null because its object or its cause is illicit or immoral may not be recovered by a party who knew or should have known of the defect that makes the contract null.” La. Civ.Code art. 2033. Under this article, a debtor is not permitted to transfer property to someone else for the illicit purpose of secreting it from potential creditors. Dugas v. Dugas, 01-669 (La.App. 3 Cir.12/26/01), 804 So.2d 878, writ denied, 02-0652 (La.5/24/02), 816 So.2d 307. As we explained in Redar, LLC v. Rush, 09-1417, p. 11 (La.App. 3 Cir. 11/17/10), 51 So.3d 859, 868, writs denied, 10-2784, 10-2832, 10-2833,10-2869 (La.3/25/11), 61 So.3d 662 (citing Griffith v. Latiolais, 09-824, pp. 24-25 (La.App. 3 Cir. 3/3/10), 32 So.2d 380, 396, reversed in part on other grounds, 10-754 (La.10/19/10), 48 So.3d 1058), the clean hands doctrine is “ ‘alive and well in Louisiana’ ” and prevents a litigant from maintaining an action if he must rely, even partially, on his own illicit or immoral act to establish a cause of action. This article applies even if the transfer is made after cause of action has accrued, but before a creditor files a suit or obtains a judgment. Dugas, 816 So.2d 807. However, under La.Civ.Code art.2033, “[t]he performance may be recovered ... when that party invokes the nullity to withdraw from the contract before its purpose is achieved.”

| ¿This record is replete with facts which clearly demonstrate that Appellant transferred the stock to Appellee in order to avoid potential seizure by her creditors and that the dation was intended to have no effect. Appellant asserts this argument in multiple pleadings, interrogatories, an affidavit, and deposition testimony. Appellant seemingly attempts to soften this blow by adding that an additional purpose of the transfer, if any, was to secure repayment of the loans to Appellee, her father. Regardless of whether one believes that she did not owe her father any debt or that an additional purpose of the transfer was to secure the repayment of the debt to her father, what is clear is that the primary purpose of the transfer was to avoid seizure of the stock by her creditors. Not only does she now ask this court to reward her attempt to secrete her assets from them, but she also seeks to have the underlying debt to Appellee, her father, declared null. Such a result cannot be tolerated. The “clean hands doctrine” is tailor-made to these facts, and we affirm the trial court’s grant of summary judgment on this ground.

Appellant contends that she should be allowed to recover the stock because the illicit or immoral purpose of the transfer has not yet been achieved because she still has not paid her creditors. We disagree. Appellant testified, “[bjecause the next time that I went back to him and I said, T want my shares back now, Dad, now. I’m not filing bankruptcy, I’m not in jeopardy, I’m going to handle my creditors.’ ” By her own admission, she was no longer in jeopardy of losing her shares. Her illicit purpose was achieved; the danger her creditors posed had passed. Only after she felt the danger of seizure had subsided did she attempt to rescind the transfer.

Given Appellant’s own testimony, it is clear that the transfer of her stock was for an illicit and immoral purpose — to shield her assets from her anticipated creditors— and that the purpose had been achieved. Accordingly, application 0fJ_9La.Civ.C0de art. 2033, the doctrine of “unclean hands,” is appropriate in this case. Appellant cannot now reclaim her stock. Thus, we find that there is no dispute on this issue, and summary judgment in favor of Appellee was proper.

CONCLUSION

Appellant transferred her stock in Ray Chevrolet-Olds, Inc. for the admitted purpose of making it unavailable to her creditors for seizure. After the danger of seizure admittedly passed, she sought to undo the transfer and have the stock returned to her. When Appellee refused, she filed suit against him. He countered with a motion for summary judgment asserting that because the transfer was made for an illicit or immoral purpose, Appellant could not seek return of the stock. The trial court granted the motion for summary judgment, finding that there had been consideration for the stock transfer. We agree. We also find that La.Civ. Code art.2033 supports the trial court’s grant of summary judgment in favor of Appellee. Therefore, the judgment of the trial court granting Appellee’s motion for summary judgment is affirmed. All costs of this appeal are assessed to Appellant.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Jessie COLE, et ux. v. STATE FARM MUTUAL AUTOMOBILE INS. CO., et al.
    No. CA 14-329.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Steven D. Crews, Corkern and Guillet, Natchitoches, LA, for Defendants/Appel-lees, State Farm Mutual Automobile Ins. Co., Edith P. Breedlove.
    Musa Rahman, Johnson, Rahman & Thomas, Baton Rouge, LA, for Interve-nor/Appellee, Louisiana Workers’ Compensation Corporation.
    Billy Lynn West, Jr., Natchitoches, LA, for Plaintiffs/Appellees, Jessie Cole Gwen Cole.
    Michael D. Lonegrass, Stephanie Dovali-na, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, ■ LA, for Defendant/Appellant, Arch Insurance Company.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

|]The Louisiana Workers’ Compensation Corporation (LWCC) sought a credit against its obligation for future compensation payments because an employer’s uninsured motorist (UM) carrier made payments on behalf of an employee involved in an automobile accident. The trial court granted summary judgment in favor of LWCC finding that it was entitled to a future credit. Arch Insurance Company, as the UM carrier, filed the present appeal arguing that LWCC is not entitled to a credit for future payments because the terms of its policy explicitly prohibit a workers’ compensation insurer from receiving any benefit from its policy proceeds.

FACTS

Jessie Cole was in the course and scope of his employment with Bellwood Water Systems when he was involved in an automobile accident with Edith Breedlove. Mr. Cole and his wife filed suit against Ms. Breedlove and her liability insurer, State Farm Mutual Automobile Insurance Company. State Farm was also the provider of liability and UM coverage for the Coles. The Coles also sued Arch as the insurer of Bellwood providing UM coverage. LWCC intervened in the proceedings seeking reimbursement for all workers’ compensation payments made to or on behalf of Mr. Cole and to the extent of any additional payments which it may be presently obligated or might in the future become obligated to pay to or on behalf of Mr. Cole.

Arch filed a motion for summary judgment against LWCC arguing that LWCC had no right to reimbursement from Arch’s UM policy for benefits paid to Mr. Cole. Arch further argued that it is entitled to a dollar-for-dollar credit for any li>past and future benefits paid under workers’ compensation to Mr. Cole. State Farm also filed a motion for summary judgment raising similar arguments.

LWCC filed a cross motion for summary judgment arguing that it was entitled to a credit against future workers’ compensation payments. LWCC did not oppose the UM insurers’ summary judgment motion on the issue of reimbursement. Arch and State Farm opposed LWCC’s motion for summary judgment.

A hearing on the motions for summary judgment was held on August 8, 2013. The trial court granted all three motions for summary judgment. Judgment was signed on September 3, 2013. Arch appealed the judgment of the trial court arguing that that the trial court erred in granting LWCC’s motion for summary judgment.

In its brief, the LWCC has raised issues that may affect the right of Arch to oppose the LWCC’s motion for summary judgment. We will address those issues first.

STANDING

The LWCC argues that Arch has no standing to oppose its motion for summary judgment because the LWCC’s claim for future credit based on the LWCC’s future obligation to Mr. Cole has nothing to do •with Arch. The LWCC argues that Arch’s policy is not the source of the rights and duties arising out of the LWCC’s workers’ compensation relationship with Mr. Cole.

Pursuant to La.Code Civ.P. art. 681, an action can only be brought by a person having a real and actual interest in the matter. In opposing the LWCC’s motion for summary judgment, Arch is seeking enforcement of its own policy provisions, specifically that its policy exclusions prohibit the LWCC from | ¡¡receiving any benefit whatsoever from payments made to Mr. Cole out of Arch’s policy. Clearly, Arch has a real and actual interest in enforcing its own policy provisions. We find no merit to this argument.

AFFIRMATIVE DEFENSE

The LWCC also claims that Arch never affirmatively pleaded the defense that its policy excluded the right of the LWCC to seek any credit toward future obligations owed under the Workers’ Compensation Act. The LWCC claims that Arch has no recourse by appeal for failing to' plead an affirmative defense pursuant to La.Code Civ.P. art. 1005.

The LWCC is correct that exclusions to insurance contracts must be specifically pleaded as affirmative defenses. Sher v. Lafayette Ins. Co., 07-2441, 07-2443 (La.4/8/08), 988 So.2d 186. “[A]n affirmative defense raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action. The new matter must be one, however, that is not raised in the plaintiffs petition.” Id. at 204.

In its petition of intervention in paragraph 4, the LWCC claimed both a right of reimbursement and also a credit for any future payments it might become obligated to pay. Therefore, the issue of whether the LWCC was entitled to a credit was raised by the LWCC in its own petition. In response, Arch’s answer to the LWCC’s petition set forth all affirmative defenses as originally set forth in its answer to the original petition. In the original petition, Arch specifically pleaded all provisions of its policy including the terms, conditions, limitations, and exclusions. As in Sher, we find that the exclusions in Arch’s policy were properly before the trial court.

| .SUMMARY JUDGMENT

Arch argues that the trial court erred in granting summary judgment and allowing the LWCC a credit for any payments made by Arch to Mr. Cole, because the terms of its policy explicitly prohibit a workers’’ compensation insurer from receiving any benefit, directly or indirectly, from Arch’s policy. On the other hand, the LWCC argues that a claim for reimbursement is statutorily distinct from a claim for credit or offset, and it is legally entitled under the principles of solidarity to take a credit against any excess UM recovery by Mr. Cole that the LWCC will become obligated to pay in the future.

Louisiana Code of Civil Procedure Article 966, which governs summary judgment proceedings, was significantly amended in both the 2012 and 2013 legislative sessions. These amendments affect the burden of proof elements of the Article. At the time of this hearing, August 8, 2013, the 2013 version of Article 966 was in effect. After the amendment by 2013 La. Acts No. 391, § 1, Article 966(F)(l)(emphasis supplied) now provides that “[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” Furthermore, Article 966(B)(2) now provides that evidence considered by the trial court must be “admitted for purposes of the motion for summary judgment.” Article 966(F)(2) now provides that “[ejvidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection.” Furthermore, “[ojnly evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.” La.Code Civ.P. art. 966(F)(2).

|fiThe amendments did not change the burden of proof applicable to a motion for summary judgment as set forth in Article 966(C)(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

“Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment.” Cutsinger v. Redfern, 08-2607, p. 4 (La.5/22/09), 12 So.3d 945, 949.

The LWCC argues that, as a solidary obligor, its right to statutory credit under La.R.S. 23:1102(B) and/or La.R.S. 23:1103(A)(1) exists regardless of any workers’ compensation exclusion in the Arch UM policy.

In Bellard v. American Cent. Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654, the supreme court addressed the issue of a UM insurer’s entitlement to a credit for workers’ compensation benefits paid. The supreme court held that by the effect of the law and the terms of their insuring agreements, both the UM insurer and the workers’ compensation insurer are solidary obligors because they have coextensive obligations to reimburse the plaintiff for lost wages and medical expenses incurred as a result of the injury caused by the tort feasor. The supreme court went on to recognize there was no right of reimbursement or subrogation in favor of the employer or workers’ compensation insurer because the terms of the UM insurer’s policy excluded coverage for the “ ‘direct or indirect benefit of any insurer or self-_jinsurer6 under any workers’ compensation, disability benefits or similar law.’ ” Id. at 670.

Arch argues that not only is the LWCC not entitled to reimbursement for the workers’ compensation benefits it has already paid, but it is also not entitled to a credit for payment of any future benefits because the terms of its policy excludes such coverage by providing: “This insurance does not apply to.... [tjhe direct or indirect benefit of any insurer or self-insurer under any workers’ compensation, disability benefits or similar law.” Furthermore, coverage for workers’ compensation is specifically excluded as follows: “This insurance does not apply to any of the following.... 3. WORKERS’ COMPENSATION Any obligation for which the ‘insured’ or the ‘insured’s’ insurer may be held liable under any workers’ compensation, disability benefits or unemployment compensation law or any similar law.”

The LWCC relies upon the second circuit case of Tolbird v. Wyble, 38,969 (La.App. 2 Cir. 12/15/04), 892 So.2d 103, writs denied, 05-444, 05-449 (La.4/29/05), 901 So.2d 1066, 1067, cert. denied, 546 U.S. 876, 126 S.Ct. 387, 163 L.Ed.2d 172 (2005). In Tolbird, the second circuit recognized that a workers’ compensation insurer could not recoup benefits paid to a claimant under a UM policy that specifically excluded reimbursement to the insurer.

In rendering its decision, the second circuit reviewed the law as it had developed by that time regarding the relationship between a UM insurer and a workers’ compensation insurer when a third person has injured an employee. Citing Johnson v. Fireman’s Fund Ins. Co., 425 So.2d 224 (La.1982), and Travelers Ins. Co. v. Joseph, 95-200 (La.6/30/95), 656 So.2d 1000, the second circuit recognized that the supreme court ruled that a UM insurer is a “third ^person” who is legally liable to pay an employee damages resulting from a work-related accident so that a compensation insurer may seek reimbursement from the UM insurer. However, no public policy prevents a UM insurer from expressly contracting to exclude a compensation insurer’s right to reimbursement in its UM policy.

The second circuit in Tolbird then went on to hold that the workers’ compensation insurer was entitled to a future credit for payments made by the UM insurer. We observe that the specific language in the UM policy is not included in the opinion, and there is no discussion as to whether the policy specifically excluded a compensation insurer’s right to a credit in the UM policy.

In Watson v. Funderburk, 98-618 (La.App. 3 Cir. 10/28/98), 720 So.2d 808, writ denied, 98-2961 (La.1/29/99), 736 So.2d 834, this court cited with approval the reasoning in Cleaning Specialists, Inc. v. Johnson, 96-2677, 97-1 (La.App. 4 Cir.5/21/97), 695 So.2d 562, writ denied, 97-1687 (La.10/3/97), 701 So.2d 210, and held that the exclusionary clause in a UM policy that prohibits any “direct or indirect benefit” precluded a workers’ compensation insurer from seeking a credit against future compensation benefits. The fourth circuit in Cleaning Specialists held that “[a] credit against future obligations would certainly be an indirect benefit, if not a direct one.” Id. at 565. This court also recognized that “solidarity could be affected by contract.” Watson, 720 So.2d at 810 (citing Fertitta v. Allstate Ins. Co., 462 So.2d 159 (La.1985)).

Once again this court in Landry v. Martin Mills, Inc., 98-1395 (La.App. 3 Cir. 3/3/99), 737 So.2d 58, writ denied, 99-957 (La.6/4/99), 744 So.2d 625, held that this same language in a UM policy prevented a self-insured employer from claiming a credit against a claimant’s future workers’ compensation benefits when [ 8the claimant received payment from the UM insurer. The fourth circuit also once again held this language prevented a compensation insurer from seeking a credit against future workers’ compensation benefits. Viada v. A&A Mach. Works, Inc., 05-210 (La.App. 4 Cir. 6/15/05), 914 So.2d 1113, writs denied, 05-1838, 05-1902 (La.3/10/06), 925 So.2d 506. '

It is important to note that a different panel of the second circuit in Tommie’s Novelty v. Velasco, 37,924, 37,925 p. 7 (La.App. 2 Cir. 2/26/04), 868 So.2d 962, 966, did specifically address exclusionary language stating that UM coverage did not apply to “[t]he direct or indirect benefit” of any workers’ compensation insurer. That panel, including one judge who authored Tol-bird, 892 So.2d 103, held that this exclusion applied to compensation already paid as well as to any future compensation payable by the compensation insurer.

The first circuit has also held that this specific exclusionary language precluded a workers’ compensation insurer’s right to claim a future credit as well as a reimbursement. Bergeron v. Williams, 99-886, 99-887 (La.App. 1 Cir. 5/12/00), 764 So.2d 1084, writ denied, 00-1697 (La.9/15/00), 768 So.2d 1281. The first circuit concluded that the right to a future credit is a benefit to a compensation insurer. Citing Travelers Insurance Company, 656 So.2d 1000, the first circuit noted that “the supreme court emphasized the strong public policy supporting full recovery for innocent automobile accident victims by making UM coverage available when they are injured by impecunious tortfeasors, as well as the importance of Louisiana Civil Code principles establishing freedom to contract on all matters not forbidden by law.” Bergeron, 764 So.2d at 1089.

Finally, the supreme court once again in Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945, reinforced its previous holdings that there are no statutory |flprovisions or policy considerations that preclude a UM insurer from contracting to exclude liability for compensation reimbursement or subrogation even though it means that the plaintiff would receive a double recovery. Relying on the language in the UM policy, the supreme court held that the UM insurer could reduce the UM benefits by the amount of workers’ compensation benefits paid to the insured.

We find in the present case that the policy language contained in the UM policy specifying that the UM coverage does not extend to the “direct or indirect” benefit of the workers’ compensation insurer precludes the LWCC from claiming a credit for future workers’ compensation benefits payable.

For the above reasons, the September 3, 2013 judgment of the trial court granting summary judgment in favor of the Louisiana Workers’ Compensation Corporation is reversed, and we remand this matter for further proceedings. Costs of this appeal are assessed against the Louisiana Workers’ Compensation Corporation.

REVERSED AND REMANDED.

      . State Farm did not appeal the ruling.


author: PAINTER, Judge.

text:
    Juan Carlos ALLEN v. AFFORDABLE HOME FURNISHINGS and Louisiana Safety Association of Timbermen.
    No. 14-338.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Michael B. Miller, Crowley, LA, for Plaintiff-Appellant, Juan Carlos Allen.

      Sean Rastanis, Travis Garrison, New Orleans, LA, for Defendant-Appellee, Affordable Home Furnishings.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Plaintiff, Juan Carlos Allen, appeals the judgment of the Workers’ Compensation Judge (WCJ) reducing his benefits retroactively to September 24, 2103, for refusing to participate in vocational rehabilitation.

FACTS

Allen was injured in the course and scope of his employment with Affordable Home Furnishings (Affordable) in July 2013. Vocational rehabilitation was originally scheduled with Jody Villion-Devillier. Allen declined to participate in counseling after Devillier refused to agree to certain conditions set by his counsel. Affordable filed a motion to compel vocational rehabilitation and to reduce benefits. The WCJ ordered the employer to find another rehabilitation specialist employed by a different agency and to submit the name to counsel for Allen. The WCJ gave Allen ten days to object to the rehabilitation specialist named. Affordable submitted the name of Mona Davie to counsel for Allen, and no objection was interposed. A conference between Davie and Allen was set for September 24, 2013. On September 11, 2013, counsel for Allen sent a letter to Davie requesting that she agree to certain conditions and asking that if she did not agree to the- conditions, she list the conditions with which she did not agree to follow. Davie did not reply to the letter. On September 24, 2013, when Davie went to meet with Allen, she was again presented with a written list of conditions. At the end of the document, she was given a choice of signing after a line which stated: “I have reviewed the foregoing conditions and have struck all conditions which I do not agree to follow. The remainder of the conditions I will comply with” or one which stated: “It is my decision not to sign this document.” Davie testified that she told counsel that if she was required to sign, she would need more time. She did not see Allen that day, and it was her understanding, that she would not be allowed 12to see him unless she signed. She signed a sheet stating that: “I, Mona Davie, am taking the attach (sic) document to review prior to signing.” At the hearing, she clarified her refusal to sign saying that her failure to sign was not an indication that she would not follow the law or the ethical guidelines of her profession.

At the conclusion of the hearing, the WCJ ordered that Allen’s benefits were to be reduced by fifty percent retroactive to September 24, 2013, until the vocational conference took place and that counsel for both parties copy each other on any correspondence and/or emails sent to the vocational counselor. Allen appeals.

DISCUSSION

Allen first asserts that the WCJ erred in reducing indemnity benefits by fifty percent. La.R.S. 23:1226 provides as follows:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
|s(g) Self-employment.
(2) Whenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.
(3)(a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8). The workers’ compensation judge shall set a hearing date within three days of receiving the motion. The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee’s motion. The workers’ compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney. For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.
(b) An employee shall have no right of action against a vocational counselor for tort damages related to the performance' of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph. The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.
(c) Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal. Reduction of benefits by the employer or pay- or shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).
C. (1) Rehabilitation services required for disabled workers may be initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.
|4(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.
(2)Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.

As in Hargrave v. State, 12-341 (La.10/16/12), 100 So.3d 786, Allen seems to be arguing that the conditions are a reasonable response to the history of sham rehabilitation cases in the past. However, the court in Hargrave addressed the effect of the 2008 and 2005 amendments to 23:1226 on the imposition of conditions on a rehabilitation counselor.

The 2003 amendment therefore allowed the employee to file a claim with the OWC to review the “quality of services being provided” if “a dispute arises concerning the work of the vocational counselor....” Acts 2003, No. 980. The 2003 amendment also added paragraphs 3(b) and 3(c) to grant the counselor limited immunity from tort and to allow the employer to compel the employee’s cooperation in the rehabilitation process. If the employee refuses to accept rehabilitation as deemed necessary by the OWC, he shall be subject to a fifty percent reduction in weekly compensation for each week of the period of refusal. La.Rev.Stat. 23:1226(B)(3)(c). The 2005 amendment mandated the counselor be a licensed professional vocational rehabilitation counselor. Acts 2004, No. 257. Thus, the legislature clearly recognized a right of the employee to challenge the quality of the vocational rehabilitation
services and, consequently, set forth a procedure for resolving any disputes concerning the work of the vocational rehabilitation counselor.
.... As the Interiano [v. Fernando Pastrana Const., 04-430 (La.App. 5 Cir. 10/26/04), 887 So.2d 547] court reasoned, there is no requirement in La.Rev.Stat. 23:1226 that a vocational rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Certainly absent any showing by the claimant that there is an actual dispute as to the provision of services or the quality thereof, requiring the counselor to abide by such conditions, even if intended as a prophylactic measure, necessarily resorts to speculation and conjecture as to the future actions of the counselor.

In other words, since the amendments, a claimant has a means of redress when a rehabilitation counselor does not fulfill the statutory mandate. However, a record of abuse must first be made before a remedy can be fashioned by the WCJ. | ¡/Therefore, conditions may not be imposed on rehabilitation in advance of the provision of services.

Allen further argues that he did not refuse rehabilitation arguing that the WCJ found only an obstruction of rehabilitation services. Davie testified, however, that it was her understanding that she would not be allowed to meet with Allen unless she signed the document containing the conditions. There was no testimony to suggest that the idea was mistaken or that she was told that she did not need to sign the document. Therefore, we find no error in the decision to reduce benefits from the scheduled date of the vocational rehabilitation conference.

Excluded Testimony

Allen next argues that it was error on the part of the WCJ to sustain Affordable’s objection to questions posed to Da-vie by counsel for Allen regarding when she might sign a document and what a client might demand of her as a counselor. Affordable objected to the questions as irrelevant, and the WCJ sustained the objections. We find no error in this determination since the questions were not such as to elicit information regarding whether Allen’s refused vocational rehabilitation services, which was the sole purpose of the hearing.

Correspondence

Finally, Allen argues that the trial court erred in ordering Allen and his counsel to copy counsel for Affordable on all correspondence sent to Davie since this was not prayed for in the motion. The motion to reduce benefits requested additional relief as detailed in the attached motion. The motion asked that the WCJ issue an order prohibiting Allen’s counsel from sending ex-parte communication to Davie. The judge’s decision to require Allen and his counsel to copy opposing counsel on all correspondence with Davie is a reasonable response to this request |fisince granting the relief sought would prohibit correspondence of any kind with Davie. Therefore, we find no error in the order granted by the trial court.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff-Appellant, Juan Carlos Allen.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Kevin MELBERT v. COMPSOURCE OKLAHOMA, et al.
    No. 14-356.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Eric Edward Pope, Blue Williams, L.L.P., Metairie, LA, for Defendants/Ap-pellees-CompSource Oklahoma and TNT Construction.
    Kevin Melbert, Oakdale, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|,The claimant, Kevin Melbert, appeals the judgment of the Office of Workers’ Compensation (OWC) which dismissed his claims against the employer’s insurer, CompSource Oklahoma, on the basis that the insurance policy did not provide coverage to employees injured in Louisiana under the facts of this case. Finding no error on the part of the OWC, we affirm.

I.

ISSUES

We must determine whether the trial court erred in finding that no workers’ compensation coverage existed in favor of the claimant under the Oklahoma policy.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Melbert, a resident of Oakdale, Louisiana, damaged the muscles in his left arm and shoulder on May 30, 2012, while working for TNT Construction in Carlyss, Louisiana. Mr. Melbert was seen at Sulphur Urgent Care on June 11, 2012, and at Oakdale Community Hospital’s emergency room on June 18, 2012. He was given specialist referrals, one prescription for pain medication, and was taken off work on June 18. A couple of weeks later, Mr. Melbert was convicted of a misdemeanor and incarcerated in Oakdale City Jail for six months.

TNT Construction, an Oklahoma company, was insured by the defendant, Comp-Source Oklahoma (CompSource). Comp-Source paid for the | ginitial visits above, but thereafter denied coverage under the Oklahoma policy for the referrals.

Mr. Melbert’s attorney filed a 1008 and then withdrew from the suit, indicating that he had been unable to effect service against TNT at the Florida Street, Oklahoma, address that Mr. Melbert had supplied. CompSource answered the suit and filed a motion for summary judgment, which was denied due to outstanding discovery issues.

Subsequently, at the trial on the merits in January 2014, the OWC found that Mr. Melbert had proved a compensable work injury and was entitled to wage and medical benefits from TNT, who had not answered the claim nor made an appearance in the matter. The OWC also found that Mr. Melbert was entitled to $4,000.00 in penalties against TNT. The OWC issued judgment accordingly against TNT and advised Mr. Melbert that he needed to locate TNT and execute his judgment against this employer.

As to the insurer, CompSource, the OWC dismissed the claims based upon its non-coverage of the Oklahoma employer, TNT, for the Louisiana injuries of Mr. Melbert. For the reasons below, we affirm the dismissal of CompSource.

III.

STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Id. Whether or not a policy 13is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759. Appellate review of questions of law is to determine whether the trial court’s interpretation of the policy is legally correct. Brafa v. Christ, 05-270 (La.App. 3 Cir. 11/2/05), 915 So.2d 957.

IV.

LAW AND DISCUSSION

Mr. Melbert contends that the trial court erred in dismissing CompSource from the proceedings. His argument is factual, and he cites no law in support of his position.

An insurance policy is a contract that constitutes the law between the parties. La.Civ.Code art. 1983; Marcus v. Hanover Ins. Co., 98-2040 (La.6/4/99), 740 So.2d 603. If the wording of the policy is clear and expresses the intent of the parties, the policy must be enforced as written. Marcus, 740 So.2d 603; La.Civ.Code art. 2046. “Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions on the obligations they contractually assume.” Marcus, 740 So.2d at 606. Ambiguities are construed against the insurer. Ledet v. Campo, 12-1193 (La.App. 3 Cir. 3/6/13), 128 So.3d 1034. See also La.Civ.Code art. 2056. Exclusions must be clearly stated. La. Maint. Servs. Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.l993). See also La.Civ.Code art. 2057. The insured bears the burden of proving the coverage exists, but the insurer has the burden of proving that the exclusion applies to the loss claimed. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119, reh’g granted on limited factual matter, 00-947 (La.3/16/01), 782 So.2d 573.

| ¿CompSource asserts that it is a regional carrier writing workers’ compensation coverage primarily for Oklahoma employers doing business principally in Oklahoma; that temporary out of state projects are covered if certain conditions are met; and that those conditions are not met in this case. It argues that its policy did not provide coverage to TNT for Mr. Melbert’s injury because he was not hired in Oklahoma, principally working in Oklahoma with an expectation of returning to Oklahoma, or working in Oklahoma at the time of his injury.

The original CompSource form policy provides in pertinent part:

PART THREE-OTHER STATES INSURANCE

A. How This Insurance Applies

' 1. This other states insurance applies only if one or more states are shown in Item 3.C. of the Information Page.
2. If you begin work in any one of those states after the effective date of this policy and are not insured or are not self-insured for such work, all provisions of the policy will apply as though that state were listed in Item , 3.A. of the Information Page.
4. If you have work on the effective date of this policy in any state not listed in Item 3.A. of the Information Page, coverage will not be afforded for that state unless we are notified within thirty days.

B. Notice

Tell us at once if you begin work in any state other than the state of Oklahoma.

Our review of the record reveals that neither Louisiana nor any other state was listed under 3A or under 3C of the Information Page, and the record contains no notice of work in Louisiana or any other state.

| ¿More specifically, the Information Page provides at 3A and 3C:

3A. WORKERS COMPENSATION INSURANCE: PART ONE OF THE POLICY APPLIES TO THE WORKERS COMPENSATION LAW OF THE STATE OF OKLAHOMA
C. OTHER STATES INSURANCE: PART THREE OF THE POLICY APPLIES TO THE STATES IF ANY, LISTED HERE: NONE, EXCEPT AS SHOWN IN PART 3A.

Moreover, as specifically argued by CompSource, the following “Other States Insurance Endorsement” that replaces Part Three above precludes coverage to Mr. Melbert because all three mandatory conditions are not met:

PART THREE OTHER STATES INSURANCE
A.HOW THIS INSURANCE APPLIES
I. WE WILL PAY PROMPTLY WHEN DUE THE BENEFITS REQUIRED OF YOU BY THE WORKERS COMPENSATION LAW OF ANY STATE NOT LISTED IN ITEM 3.A. OF THE INFORMATION PAGE IF ALL OF THE FOLLOWING CONDITIONS ARE MET:
A. THE EMPLOYEE CLAIMING BENEFITS WAS EITHER HIRED UNDER A CONTRACT OF EMPLOYMENT MADE IN A STATE LISTED IN ITEM 3.A. OF THE INFORMATION PAGE OR WAS, AT THE TIME OF INJURY, PRINCIPALLY EMPLOYED IN A STATE LISTED IN ITEM 3.A. OF THE INFORMATION PAGE AND;
B. THE EMPLOYEE CLAIMING BENEFITS IS NOT CLAIMING BENEFITS IN A STATE WHERE, AT THE TIME OF INJURY, (I) YOU HAVE OTHER WORKERS COMPENSATION INSURANCE- COVERAGE, OR (II) YOU WERE, BY VIRTUE OF THE NATURE OF YOUR OPERATIONS IN THAT STATE, REQUIRED BY THAT STATE’S LAW TO HAVE OBTAINED SEPARATE WORKERS COMPENSATION INSURANCE COVERAGE, OR (III) YOU ARE AN AUTHORIZED SELF-INSURER | fiOR PARTICIPANT IN A SELF-INSURED GROUP PLAN; AND
C. THE DURATION OF THE WORK BEING PERFORMED BY THE EMPLOYEE CLAIMING BENEFITS IN THE STATE FOR WHICH THAT EMPLOYEE IS CLAIMING BENEFITS IS TEMPORARY.
IMPORTANT NOTICE:
IF YOU HIRE ANY EMPLOYEES OUTSIDE THOSE STATES LISTED IN ITEM 3.A. ON THE INFORMATION PAGE OR BEGIN OPERATIONS IN ANY SUCH STATE, YOU SHOULD DO WHATEVER MAY BE REQUIRED UNDER THAT STATE’S LAW, AS THIS ENDORSEMENT DOES NOT SATISFY THE REQUIREMENTS OF THAT STATE’S WORKERS COMPENSATION LAW.

Conversely, here, Mr. Melbert testified that he lived in Oakdale, Louisiana, when he was hired by TNT; that he interviewed, applied, and was hired at the job site in Carlyss, Louisiana; and that he was working at the job site in Carlyss, Louisiana, when he was injured. Accordingly, as Louisiana was not listed under any section of the policy or its Information Pages, , Mr. Melbert cannot satisfy the first condition in the endorsement and is unambiguously precluded from coverage.

Mr. Melbert does not assert ambiguity but claims coverage based upon the fact that his supervisor filled out the Sulphur Urgent Care medical form, inserting an Oklahoma address for Mr. Melbert — 606 North Elm Street, Waurika, Oklahoma— which was apparently near TNT’s reported address of 612 North Elm 17Street in Wau-rika, Oklahoma. However, Mr. Melbert testified that he had never been to either Oklahoma address, and his few weeks of work for TNT were in Louisiana.

Our review of the record indicates that the OWC judge did everything possible to help Mr. Melbert understand his own position and that she specifically advised him to find an attorney to execute the judgment that she had issued in his favor against TNT. While we are sympathetic to Mr. Melbert’s unfortunate predicament, we must agree with the OWC’s finding that the Oklahoma employer’s policy with CompSource Oklahoma does not provide coverage for Mr. Melbert, who was hired in Louisiana, working in Louisiana, and injured in Louisiana.

V.

CONCLUSION

Based upon the foregoing, we affirm the OWC’s dismissal of the defendant insurance company, CompSource Oklahoma. Costs of this appeal are assessed to the claimant, Mr. Kevin Melbert.

AFFIRMED.

      . Mr. Melbert stated that he was told upon his hiring that he would need an Oklahoma address. Both Elm Street addresses were apparently foreclosed upon buildings, and the record contains speculations that the employer may have been bankrupt.

      . We will not consider Mr. Melbert’s argument on appeal that he was sitting in TNT’s vehicle at the time he was hired and that the vehicle is an extension of TNT's Oklahoma office, as this argument was not raised before the OWC. Uniform Rules — Courts of Appeal, Rule 1-3.


author: AMY, Judge.

text:
    Scott MAHFOUZ v. Thomas D. DAVENPORT, Jr., et al.
    No. 14-358.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      John E. McAuliffe, Jr., Frederick A. Miller & Associates, Metairie, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.

      Marshall R. Pearce, Casten & Pearce, APLC, Shreveport, LA, for Defendants/Appellees, Thomas D. Davenport, Jr., The Davenport Firm, A Professional Law Corporation.
    Chris J. Roy, Jr., Chris J. Roy, Jr. (A Law Corporation), Alexandria, LA, for Plaintiff/App ellant, Scott Mahfouz.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

LThe plaintiff, Scott Mahfouz, was involved in a domestic suit concerning child custody and support. The plaintiff later filed this litigation, naming the child’s mother, her attorney, and her attorney’s law firm and insurance company as defendants. The plaintiff seeks damages for malicious prosecution, abuse of process, wrongful collection/seizure, defamation, false light/invasion of privacy, intentional infliction of emotional distress, and violations of the Rules of Professional Conduct. The defendant attorney, his law firm, and his insurer filed exceptions of no cause of action, which were granted by the trial court. The plaintiff appeals. For the following reasons, we affirm in part, reverse in part, and remand.

Factual and Procedural Background

According to the record, the plaintiff has a child with one of the defendants, Angela Andries. Mr. Mahfouz filed a child custody suit against Ms. Andries, which ultimately resulted in Ms. Andries being named the domiciliary parent and Mr. Mahfouz being ordered to pay child support. See Mahfouz v. Andries, 09-961 (La.App. 3 Cir. 12/9/09), 2009 WL 4653603 (unpublished opinion). Thomas D. Davenport, Jr. was Ms. Andries’ attorney during that proceeding.

The record indicates that subsequent domestic proceedings between Mr. Mahfouz and Ms. Andries concerned, among other things, requests for a reduction in child support payments, motions concerning re-allotment of the matter, motions for recu-sal of various judges, discovery motions, and multiple requests for contempt. Of particular relevance to the instant litigation, Mr. Mahfouz alleges |2that Mr. Davenport misrepresented to the trial court that Mr. Mahfouz had been served with a discovery motion, which resulted in a judgment ordering Mr. Mahfouz to pay attorney fees. Mr. Mahfouz also alleges that Mr. Davenport improperly attempted to collect on that judgment.

Mr. Mahfouz later sued Mr. Davenport, his firm (the Davenport Firm, APLC), and his firm’s insurer (State Farm Fire & Casualty Co.). The allegations made in Mr. Mahfouz’s lawsuit concern actions allegedly taken by Mr. Davenport during his representation of Ms. Andries, as well as comments, primarily made through pseudonyms on the internet, that Mr. Mahfouz alleges are defamatory, extreme and outrageous, and attributable to Mr. Davenport.

With regard to Mr. Mahfouz’s original petition, first supplemental and amending petition, and second supplemental and amending petition, Mr. Davenport, the Davenport Firm, and State Farm filed exceptions of no cause of action and prematurity and a motion to strike a “Global Statement of Facts” filed by Mr. Mahfouz. The trial court overruled the exception of prematurity, but granted the exception of no cause of action and the motion to strike. However, the trial court permitted Mr. Mahfouz to amend his petition.

Mr. Mahfouz thereafter filed his third supplemental and amending petition seeking damages for malicious prosecution, abuse of process, wrongful collection/seizure, defamation, false light/invasion of privacy, intentional infliction of emotional distress, and violations of the Rules of Professional Conduct. The record indicates that Mr. Mahfouz also refiled the “Global Statement of Facts.” | ¡¡Mr. Davenport, the Davenport Firm, and State Farm filed a second exception of no cause of action and motion to strike. After a hearing, the trial court granted the motion to strike, sustained the exception of no cause of action, and dismissed Mr. Mahfouz’s claims with prejudice.

Mr. Mahfouz appeals, asserting that:

I. The trial court committed reversible error by sustaining the Defendants’ Exceptions of No Cause of Action.
II. The trial court erred by casting Plaintiff with all costs.
III. The trial court erred by striking the Plaintiffs Global Statement of Facts from the record.

Discussion

I. Motion to Strike

Mr. Mahfouz contends that the trial court erred in striking his “Global Statement of Facts.” The record indicates that Mr. Mahfouz first filed the “Global Statement of Facts” before the hearing on the defendants’ exceptions of prematurity and no cause of action regarding the original, first, and second amended petitions. The defendants thereafter filed a motion to strike the original “Global Statement of Facts,” which was granted by the trial court. After Mr. Mahfouz filed his third supplemental and amending petition, he refiled the “Global Statement of Facts.” The defendants filed a second motion to strike, contending that the document contained extraneous information that had not been proven. Further, the defendants noted that the only pending motion before the court was the exception of no cause of action and, when determining whether a petition states a cause of action, the trial court is required to accept the well-pleaded facts of the petition as true and cannot consider any extraneous evidence.

[4The trial court has broad discretion in making evidentiary rulings, and its decision will not be overturned absent an abuse of discretion. Gutierrez v. Baldridge, 10-1528 (La.App. 3 Cir. 5/11/11), 65 So.3d 251, writ denied, 11-1589 (La.10/7/11), 71 So.3d 319. Our review of the “Global Statement of Facts” reveals that it contains allegations that, especially at this stage of the proceedings, are not relevant to the allegations made in Mr. Mahfouz’s third supplemental and amending petition. For example, the “Global Statement of Facts” includes allegations that Mr. Davenport violated the Rules of Professional Conduct in a matter unconnected to this litigation or to the underlying domestic suit and allegations concerning actions allegedly taken by Mr. Davenport’s sister, who is not a defendant in this matter.

Mr. Mahfouz contends that the “Global Statement of Facts” was not intended to supplement the allegations of the petition with regard to the exception of no cause of action and that it was intended to avoid reiteration of the lengthy factual allegations in every pleading. Our review of the record, and particularly the transcript of the hearing on the exception of no cause of action, indicates that no other motions were pending at that time. “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. Code Civ.P. art. 931.

Given the prohibition on consideration of additional evidence at the hearing on the exception of no cause of action and the inclusion of extraneous matters in the “Global Statement of Facts,” we find that the trial court did not abuse its discretion in granting the motion to strike.

This assignment of error is without merit.

Is//. Exception of No Cause of Action

Mr. Mahfouz has asserted claims for malicious prosecution, abuse of process, wrongful collection/seizure, defamation, false light/invasion of privacy, intentional infliction of emotional distress, and violations of the Rules of Professional Conduct. Mr. Mahfouz complains that the trial court erred in sustaining the defendants’ exception of no cause of action with regard to those claims.

“The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). Because the exception of no cause of action raises a question of law, it is reviewed on appeal de novo. Peters v. Allen Parish Sch. Bd., 08-323 (La.App. 3 Cir. 11/5/08), 996 So.2d 1230. The burden of proof lies with the moving party, and the “pertinent question is whether, in the light most favorable to [the] plaintiff and with every doubt re- , solved in [the] plaintiffs behalf, the petition states any valid cause of action for relief.” Ramey v. DeCaire, 03-1299, p. 8 (La.3/19/04), 869 So.2d 114,119. Dismissal is appropriate when the allegations in the petition clearly show that the plaintiff does not have a cause of action, or when the allegations in the petition clearly reveal the existence of an affirmative defense. Rogers v. Ash Grove Cement Co., 34,934 (La.App. 2 Cir. 11/2/01), 799 So.2d 841, writ denied, 01-3187 (La.2/8/02), 808 So.2d 351.

Pursuant to La. Code Civ.P. art. 931, no evidence may be admitted to support or oppose an exception of no cause of action. Thus, the court must accept the well-pleaded allegations of fact in the petition as true and determine whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything | fpn Wheels, 616 So.2d 1234. Conclusory allegations unsupported by facts are insufficient to support a cause of action. Ra-mey, 869 So.2d 114. However, “[M]aliee, intent, knowledge, and other condition of mind of a person may be alleged generally.” La.Code Civ.P. art 856. See also Arledge v. Hendricks, 30,588 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, writ denied, 98-2015 (La.11/20/98), 728 So.2d 1287.

A. Claims Related to Mr. Davenport’s Representation of Ms. Andries

Mr. Mahfouz’s claims for malicious prosecution, abuse of process, wrongful collection/wrongful seizure, violations of the Rules of Professional Conduct, and a portion of his claims for invasion of privacy and defamation claims arise from actions allegedly taken while Mr. Davenport was acting on behalf of Ms. Andries. In Penalber v. Blount, 550 So.2d 577, 578 (La. 1989), the supreme court held that “an attorney can be held accountable to a non-client for intentional tortious conduct such as the knowing violation of a prohibitory statute, but no cause of action lies in favor of a non-client under theories of malpractice and negligence because the attorney owes no duty to the adversary of his client.” Further, because it is harder to recognize an intentional tort in the context of an attorney’s actions on behalf of his or her client, the petition must allege facts that show “specific malice or an intent to harm on the part of the attorney in persuading his client to initiate and continue the suit.” Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127,130.

In Montalvo, 637 So.2d 127, the plaintiff sued a former client and her attorneys. The plaintiff alleged that the defendant-attorneys had filed a legal malpractice suit against him in bad faith and with knowledge that the suit was frivolous. The defendant-attorneys filed an exception of no cause of action. On 17appellate review, the supreme court noted that “[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Id. at 131. After reviewing the petition, the supreme court found that,

it fails to allege facts sufficient to state a cause of action in intentional tort. Sondes’ allegations that the malpractice suit filed by Bickford and Matthews is “frivolous” and was instigated and continued in “bad faith” are mere conclusions unsupported by facts. Reduced to its essentials, Sondes’ petition simply alleges that Bickford and Matthews failed to apprise themselves of the status of the appeal or the Virginia consent judg- ■ ment prior to filing or continuing the malpractice suit, and making certain allegations in their petition that were no longer true in light of these proceedings. At best, these actions might be considered negligent, but they fall far short of manifesting an intent on the part of Bickford and Matthews to cause direct harm to Sondes.

Id. (Footnotes omitted.)

In Arledge, 715 So.2d 135, the plaintiff therein sued his ex-wife’s lawyer on the grounds that the lawyer had defamed him by falsely claiming in the custody suit that the plaintiff had committed aggravated rape, i.e., criminal conduct. The second circuit reversed the trial court’s grant of an exception of no cause of action, finding that the plaintiffs “vague” assertions that the lawyer “knew” that the allegations were untrue was sufficient to constitute malice. Id. at 140.

However, the second circuit’s more recent jurisprudence has required more definite allegations to satisfy the “specific malice” requirement of Montalvo, 637 So.2d 127. For example, in In re Succession of Carroll, 46,327 (La.App. 2 Cir. 7/20/11), 72 So.3d 384, the plaintiffs, who had been disinherited, contended that the attorney who prepared their mother’s will conspired with their sister and nephew to defraud them and deprive them of their inheritance. The second circuit affirmed the trial court’s grant of an exception of no cause of action, observing that the plaintiffs made “no specific allegations that [the attorney] acted with malice or | fin bad faith with the intent to cause direct harm to the plaintiffs.” Id. at 389. Further, the second circuit found that the attorney’s failure to notify the trial court of the existence of potential forced heirs might constitute a violation of the rules of professional conduct, but that it was not sufficient to give rise to an intentional tort. See also Newcomer v. Bennett, 09-27 (La.App. 5 Cir. 10/13/09), 27 So.3d 858; Rogers, 799 So.2d 841.

This court, in Jeansonne v. Roy, 13-741 (La.App. 3 Cir. 3/5/14), — So.3d —, 2014 WL 852552, addressed a similar issue where the plaintiff accused his ex-wife’s lawyer of deliberately misleading the trial court in order to obtain an exhumation order without obtaining the appropriate authorization and without holding an adversarial hearing. Specifically, the plaintiff alleged that the attorney told the trial court that the parish coroner was “in the loop” regarding the exhumation request, thus giving the impression that the coroner had approved the exhumation. Further, the plaintiff alleged that the attorney “knew or should have known” that the law required that he obtain permission from both of the decedent’s parents, and that the exhumation order was sought ex parte in a deliberate attempt to deprive the plaintiff of an opportunity to object to the order. Id. at-. The trial court granted the attorney’s exception of no cause of action. On appeal, this court affirmed the trial court’s ruling, finding that the “alleged facts do not establish that [the attorney] intended to cause [the plaintiff] direct harm.” Id. at-.

In his third supplemental and amending petition, Mr. Mahfouz contends that Mr. Davenport’s actions in prosecuting Ms. Andries’ domestic suit constitute an intentional tort. Mr. Mahfouz’s allegations primarily focus on alleged “intentional misrepresentations” and “false statements” made by Mr. Davenport in connection with a motion to compel discovery, which resulted in an award of. attorney fees |flagainst Mr. Mahfouz, and Mr. Davenport’s attempts to collect that award of attorney fees. Mr. Mahfouz also contends that Mr. Davenport filed several motions, including additional requests for sanctions, which were without probable cause or were procedurally improper.

Having reviewed these allegations, we conclude that Mr. Mahfouz’s allegations are insufficient to constitute facts showing specific malice or an intent to harm Mr. Mahfouz. As in Montalvo, -637 So.2d 127, Mr. Mahfouz’s petition simply alleges that Mr. Davenport made assertions to the trial court which, had Mr. Davenport apprised himself of the record and/or the applicable law, he would have realized were incorrect. In addition, many of Mr. Mahfouz’s allegations are conclusory allegations and are therefore insufficient to support a cause of action.

Accordingly, we find no error in the trial court’s grant of the exception of no cause of action with regard to Mr. Mahfouz’s claims which concern Mr. Davenport’s alleged actions as Ms. Andries’ attorney.

B. Claims Separate from Mr. Davenport’s Representation of Ms. An-dries

However, Mr. Mahfouz’s claims for defamation, false light/invasion of privacy, and intentional infliction of emotional distress arise from alleged conduct unrelated to Mr. Davenport’s representation of Ms. An-dries. Thus, in order to state a cause of action for these claims, Mr. Mahfouz is not required to establish specific malice.

i. Defamation

Having already noted that a portion of Mr. Mahfouz’s defamation claims concern statements allegedly made by Mr. Davenport during his representation of Ms. An-dries, we now address the remaining portion. This constitutes Mr. Mahfouz’s claims that Mr. Davenport defamed him to third parties and by making |inanonymous comments on the Internet, including comments that Mr. Mahfouz is a “criminal” and that Mr. Mahfouz “lied to a judge.” Mr. Mahfouz claims that the statements alleging criminal behavior on his part are defamatory per se.

The tort of defamation involves the “invasion of a person’s interest in his reputation and good name.’’ Newcomer, 27 So.3d at 860. In order to successfully make a claim for defamation, a plaintiff must prove: “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So.2d 706, 715. Further, the defamatory words must be “of and concerning” the plaintiff, i.e., cast a personal reflection on the plaintiff either directly or indirectly. Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La.App. 3 Cir.8/9/95), 661 So.2d 1027, writ denied, 95-2942 (La.3/29/96), 670 So.2d 1238.

Whether a communication is defamatory is a determination made by the court. Guilbeaux, 661 So.2d 1027. In making that decision, the court should determine whether the “communication is one which tends to harm a person’s reputation so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Id. at 1031. The court should consider whether, when taken in context, the words were intended to be defamatory. Id. “Words that expressly or implicitly accuse another of criminal conduct or that, by their nature, tend to injure one’s personal or professional reputation are considered defamatory per se. If the plaintiff proves publication of defamatory per se words, the elements of falsity, injury and malice are presumed.... ” Zeigler v. Hous. Auth. of New Orleans, 12-1168, p. 17 (La.App. 4 Cir. 4/24/13), 118 So.3d 442, 454 (citation omitted). Once the presumption is ^established, the defendants may rebut it by proving a reasonable belief in the truth of their statements. Id.

However, casual remarks made in informal conversation are not defamatory, even if they are unflattering.

See Guillory v. State Farm Ins. Co., 95-1405 (La.App. 4 Cir. 09/28/95), 662 So.2d 104; McGowen v. Prentice, 341 So.2d 55 (La.App. 3 Cir.1976). Further, statements of pure opinion are protected under the first amendment; even an opinion which states or infers “that certain false facts are true will still be protected if the statements were made without knowing or reckless falsity.” Roy v. Coco, 94-920, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1139, 1140, writ denied, 95-567 (La.4/28/95), 653 So.2d 590. One of the reasons that a statement of opinion is not actionable in defamation is that falsity is one of the elements of defamation, and a purely subjective statement can be neither true nor false. Meissner v. Bradford, 13-844 (La.App. 3 Cir. 2/12/14),— So.3d —, 2014 WL 550925.

Having reviewed Mr. Mahfouz’s allegations, we find that the vast majority of the allegedly defamatory statements are statements of opinion, which are not actionable. See Sassone v. Elder, 626 So.2d 345 (La. 1993). Our review also indicates that some of the allegedly defamatory statements are not “of and concerning” Mr. Mahfouz. Further, although some of the allegedly defamatory statements may be hurtful and unflattering, they are not defamatory per se. See Harris v. Levy, 353 So.2d 1065 (La.App. 2 Cir.1977).

However, we must review the allegations in the petition in the light most favorable to the plaintiff. Ramey, 869 So.2d 114. Having done so, we find that Mr. Mahfouz has stated a cause of action for defamation with regard to those claims which allege that he is a “criminal” or a “crook.” Although, based on the allegations made herein, we decline to find that the mere use of such general words | ,2as “criminal” and “crook” are defamatory per se, they are capable of a defamatory meaning. ■ See Harris, 353 So.2d 1065; Green berg v. De Salvo, 254 La. 1019, 229 So.2d 83 (1969). Further, our review of the petition indicates that Mr. Mahfouz has adequately alleged publication, falsity, malice (in the context of defamation), and injury. We additionally observe that Mr. Mahfouz must still prove the alleged facts at trial in order to prevail on his claim. See Robinson v. N. Am. Royalties, Inc., 470 So.2d 112, 114 (La.1985) (“In deciding an exception of no cause of action, the court accepts the facts alleged in the petition, without reference to any extraneous supporting or controverting evidence, and determines whether the law affords any relief to plaintiff if those facts are proven at trial.”).

Accordingly, we find merit to this portion of Mr. Mahfouz’s assignment of error.

ii. False Light/Invasion of Privacy

Mr. Mahfouz claims that Mr. Davenport’s actions in defaming him and in holding him out for ridicule on the Internet constitute an invasion of privacy. In order to successfully assert a claim for invasion of privacy, the plaintiff must show that the defendant’s conduct is both unreasonable and that it seriously interferes with the plaintiffs privacy interest. Sparks v. Donovan, 04-388 (La.App. 3 Cir. 10/13/04), 884 So.2d 1276. Our review of Mr. Mahfouz’s petition shows no factual allegations which would support such a claim. Thus, we find no error in the trial court’s determination that Mr. Mahfouz has no cause of action for invasion of privacy-

in. Intentional Infliction of Emotional Distress

Mr. Mahfouz has also asserted a claim for intentional infliction of emotional distress. In order to assert such a claim, a plaintiff must establish that 1) the | ^defendant’s conduct was extreme and outrageous; 2) that the plaintiffs emotional distress was severe; and 3) that the defendant desired to inflict severe emotional distress or knew that it would be certain or substantially certain to result from his conduct. Guilbeaux, 661 So.2d 1027. “Extreme and outrageous conduct” is that which is “so atrocious as to pass the boundaries of decency and to be utterly intolerable to civilized society.” Id. at 1033. However, conduct that is intended to cause some lesser degree of humiliation or embarrassment is insufficient to constitute extreme and outrageous conduct. Id. Further, “mere insults, indignities, threats, annoyances, petty oppressions or other trivialities” do not constitute extreme and outrageous conduct. Preis v. Durio, 94-468, p. 3 (La.App. 3 Cir. 11/2/94), 649 So.2d 600, 602, writ denied, 94-2949 (La.1/27/95), 649 So.2d 393.

Based on our review of the petition, we find that the bulk of Mr. Mahfouz’s allegations are the petty oppressions that do not constitute extreme and outrageous conduct. Further, Mr. Mahfouz makes only conclusory allegations with regards to the elements of knowledge and damages. Accordingly, we find no error in the trial court’s grant of the exception of no cause of action with regard to intentional infliction of emotional distress.

III. Costs

Mr. Mahfouz also argues that the trial court erred in assessing him with costs.- The trial court has broad discretion in assessing court costs and, while the party cast in judgment is generally cast with the costs of a proceeding, the trial court may assess the costs in any equitable manner. Hunter v. Christus Health Central La., 13-1057 (La.App. 3 Cir. 4/23/14), 137 So.3d 1276. Having reviewed the record, we find no abuse of the trial court’s broad discretion in assessing Mr. Mahfouz with costs. Mr. Mahfouz’s arguments in this regard are without merit.

luDECREE

For the foregoing reasons, the judgment of the trial court sustaining Thomas D. Davenport, Jr., The Davenport Firm, APLC, and State Farm Fire & Casualty Company’s exception of no cause of action is affirmed in part, reversed in part, and remanded for further proceedings. Costs of this appeal are assessed equally to the appellant, Scott Mahfouz, and to the appel-lees, Mr. Davenport, the Davenport Firm, APLC, and State Farm Fire & Casualty Company.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . According to the record, Ms. Andries is now known as Angela Horaist. Ms. Andries is also referred to as "Ms. Harrison" in the record, as well as several mis-transcriptions of "Ho-raist” in the transcript. To avoid confusion, we continue to refer to her as Ms. Andries.

      . State Farm is also referred to as "State Farm Insurance Companies” in the record.

      .Mr. Davenport filed a reconventional demand, seeking damages for slander and libel, false light/invasion of privacy, intentional infliction of emotional distress/negligent infliction of emotional distress, malicious prosecution, and "abuse of rights.” However, the record indicates that Mr. Davenport later dismissed his reconventional demand, with prejudice.


text:
    Laney Ray BARLOW, Jr. v. Sandra Guillot BARLOW.
    No. 14-361.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Sule Douglas Busari, Tallulah, LA, for Plaintiff/Appellant — Laney Ray - Barlow, Jr.
    John Scott Sartin, Winnsboro, LA, for Defendant/Appellee — Sandra Guillot Barlow.
    Paul A. Lemke, Harrisonburg, LA, for Plaintiff/Appellant — Laney Ray Barlow, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|, Laney Ray Barlow, Jr. appeals the trial court’s award of sole custody of a minor daughter to Sandra Guillot Barlow in response to her request to modify a considered joint-custody decree to supervised physical custody for reduced periods. Mr. Barlow did not appear at the hearing. He later filed a motion for new trial contending that the clerk of court failed to give the notice of trial date prescribed by local court rules. The trial court denied the motion. Because we find that actual notice of the trial date remedied the lack of prescribed notice and that the record supports the trial court’s judgment to modify the considered decree to sole custody, we affirm.

I.

ISSUES

We must determine whether:

(1) the trial court abused its discretion in denying a motion for new trial when notice of the trial date did not comply with local rules;
(2) the trial court committed manifest error in finding the evidentiary burden to modify a considered custody decree had been met; and
(3) the trial court abused its discretion in awarding sole custody.

II.

FACTS AND PROCEDURAL HISTORY

Sandra Guillot Barlow and Laney Ray Barlow, Jr. divorced in 2007, at which time they shared one minor daughter, Ashley Barrow. Following the divorce, a hearing on custody was held. The trial court rendered judgment in June |gof 2010, awarding Mr. and Mrs. Barlow joint custody of Ashley, designating Mrs. Barlow as the domiciliary parent, and determining other matters incidental to custody. The judgment provided that Mr. Barlow would have physical custody on his days off from work and the two would split holiday time.

Subsequently, Mrs. Barlow filed a rule to modify the existing custody order. She premised her rule on several events that had occurred since the June 2010 judgment, including Mr. Barlow’s separation from his second wife and loss of his permanent home. She asked that Mr. Barlow’s periods of physical custody be reduced and supervised by her, that Mr. Barlow be required to give notice before exercising custody, and that incidental relief arising from the June 2010 judgment be granted. Mr. Barlow received service of this rule and its fixed hearing date. Before the hearing date, Mr. Barlow’s attorney filed a motion for continuance. A telephone conference then took place, during which attorneys for both parties and the trial court agreed the matter would be reaffixed for February 1, 2013. The judge then rendered an order reassigning the new agreed upon date on Mrs. Barlow’s motion.

Thereafter, Mr. Barlow and his attorney met to prepare for the February hearing. Mr. Barlow’s attorney filed a Motion to Resign upon learning that Mr. Barlow could not pay him. The motion included a request that the February hearing be continued. On January 22, 2013, the attorney advised Mr. Barlow of the February hearing date, and Mr. Barlow signed an affidavit consenting to the withdrawal. The trial court denied the motion to withdraw.

At the February hearing neither the attorney nor Mr. Barlow appeared. The trial court proceeded in their absence. At the close of the hearing, the court awarded Mrs. Barlow sole custody of Ashley and other incidental relief. Mr. |sBarlow then filed a motion for new trial through new counsel. Mr. Barlow based his motion on his purported lack of notice of the February hearing date. The trial court denied the motion and defendant filed this appeal.

III.

STANDARD OF REVIEW

A trial court’s decision to grant or deny a motion for new trial will not be disturbed absent a clear abuse of discretion. Garrett v. Universal Underwriters, 586 So.2d 727 (La.App. 3 Cir.1991). A trial court’s finding that a plaintiff has satisfied the requisite burden of proof to modify a considered custody decree is a question of fact which will not be disturbed absent manifest error. Oliver v. Oliver, 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081. As such, the trial court’s finding will not be reversed unless a review of the record in its entirety reveals both that a reasonable factual basis does not exist for the trial court’s finding and that the finding is clearly wrong. Id. Additionally, a trial court’s ultimate determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d 526.

IV.

LAW AND DISCUSSION

Whether Lack of Prescribed Notice Warranted a New Trial

Mr. Barlow contends the trial court should have granted him a new trial because the clerk of court failed to give him written notice of the trial date at least ten days before trial, as required by court rules. We disagree and find Mr. Barlow’s actual notice of the set trial date remedied the lack of formal notice.

|4Under the Seventh Judicial District Court Rule 9.14, the clerk of court is required to give written notice of the date fixed for trial at least ten days before trial in two situations: (1) when either party submits a written request for notice pursuant to Article 1572 of the Code of Civil Procedure and (2) in all cases where the date is not fixed in open court in the presence of all parties or agreed to in writing by all parties and the court. The purpose of this rule is to provide adequate notice of trial to all parties for reasons of due process. La. Code Civ.P. art. 1571.

A clerk’s failure to give mandatory notice under Rule 9.14 is not necessarily fatal to a judgment. This court has found that actual notice of trial date can remedy the failure of a clerk to give formal notice or serve as an implied waiver of such notice. In Posey v. Smith, 427 So.2d 928 (La.App. 3 Cir.1983), this court found that defendant’s actual notice of trial date cured the clerk’s failure to give mandatory notice under Article 1572. The court noted that the purpose of the article is to ensure that a party receives at least ten days’ notice of the trial date. Id. In Richards v. Richards, 525 So.2d 163 (La.App. 3 Cir.1988), this court found that a party waived his right to assert error in the clerk’s failure to give mandatory notice when he had actual notice of trial date by virtue of his agreement with opposing counsel and the court of the set date. The court noted the purpose of required notice is to ensure that a party receives at least ten days to prepare for trial. Id. In Rosette v. Opelousas Gen. Hosp. Adm’r, 00-378 (La.App. 3 Cir. 9/27/00), 771 So.2d 203, this court found that a party impliedly waived mandatory notice of trial date under Article 1572 when it had actual notice by virtue of its own request to continue and acceptance of the new date. These cases indicate that notice requirements under Rule 9.14 are meant to give parties at least ten days’ notice of the trial date to prepare, and when a party receives actual notice of trial | -date at least ten days in advance it cannot then assert error on the sole ground that such notice did not conform to the manner specified by local rules.

Mr. Barlow asserts the clerk’s failure to comply with local court rules warranted a new trial. While the clerk did not comply with formal notice require-merits, Mr. Barlow knew of the set trial date at least ten days prior to trial. He testified that when he gave written consent for his lawyer’s withdrawal on January 22, 2013, his lawyer discussed the February hearing date. Mr. Barlow does not deny that he had actual notice of the trial date at least ten days prior to trial and alleges error solely on the ground that the formal requirements of the rule were not met. Consistent with our prior rulings on this issue in Posey, Richards, and Rosette, we find Mr. Barlow’s actual notice of the trial date at least ten days prior to trial remedied the failure of the clerk to provide written notice required under Rule 9.14. He had at least ten days to prepare for trial, the same as he would if the clerk of court had given written notice within the same time frame. Accordingly, we find Mr. Barlow’s argument without merit and there is no abuse of discretion in the trial court’s denial of his motion for new trial on this ground.

Whether the Trial Court Erred in Modifying Decree to Sole Custody

Mr. Barlow contends the trial court erred in modifying the existing custody decree and awarding Mrs. Barlow sole custody. We disagree. The record demonstrates a reasonable basis for the trial court’s finding that Mrs. Barlow met the evidentiary burden to modify custody. Additionally, the record supports the trial court’s determination that sole custody to Mrs. Barlow served the child’s best interest.

| Jn an action to modify a considered custody decree, the plaintiff must first show that a change of circumstances materially affecting the welfare of the child has occurred since the prior custody order. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Next, the plaintiff must show that continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or, by clear and convincing evidence, that the harm likely to be caused by a change of environment is substantially outweighed by its advantage to the child. Id. If a court finds the plaintiff has met this burden, it must then modify custody pursuant to the child’s best interest. Id. In modifying custody pursuant to the child’s best interest, the court shall consider all relevant factors. See also La.Civ.Code art. 134. Additionally, the court is not limited to the requested relief and may grant any relief to which a party is entitled. La. Code Civ.P. art. 862.

Here, the record supports the trial court’s threshold determination that Mrs. Barlow met the Bergeron standard to modify custody. In her Rule to Modify, Mrs. Barlow asserted that since the issuing of the prior custody decree, Mr. Barlow’s second marriage had deteriorated. She asserted that Mr. Barlow had moved out of the marital residence, had no permanent home, and had moved in with his son, Derrick Barlow. Additionally, she stated that Mr. Barlow left Ashley in the care of Derrick Barlow, who had criminal charges against him as well as a drug-related conviction. Also, she contended that Mr. Barlow and Derrick engaged in physical altercations in front of Ashley and that Mr. Barlow did not properly supervise Ashley, resulting in a recent injury. Additionally, she asserted that Mr. Barlow had failed to exercise his designated periods of physical custody with Ashley and did not contact her for at least eight weeks on two separate occasions that year.

17At the February hearing on custody, Mrs. Barlow presented additional evidence in support of custody modification. The evidence presented and accepted by the judge showed that Ashley knew of Mr. Barlow’s designated time for visitation under the prior custody decree and would become disappointed and saddened when he didn’t exercise this visitation. Mrs. Barlow testified that Mr, Barlow now lived close enough to her home that Ashley could see him enter and leave the residence he shared with Derrick. She testified that Ashley seeing Mr. Barlow come and go while simultaneously not contacting her or exercising visitation negatively affected her. Mrs. Barlow further testified that Mr. Barlow did not attend any of Ashley’s extracurricular events, and he did not take her to any practices while having physical custody. Ashley’s grandmother also testified that Mr. Barlow’s close proximity and infrequent visitation had a negative impact on Ashley, stating that it made her sick and anti-social.

The trial court’s oral reasons for judgment reflect its consideration of these facts in light of the Bergeron standard. The court discussed both changes in circumstances since the initial custody order and the harmful effect of the present custody arrangement on the minor child. In particular, the judge noted that since Mr. Barlow and his second wife separated, he’d “lost control of his life,” which made caring for Ashley difficult. The trial court then expressed several concerns about the effect of the current custodial arrangement on Ashley, such as her missing school while in the care of Mr. Barlow and possible exposure to drug use in Mr. Barlow’s current residence. The court noted that the child did not feel welcome in her father’s current residence. Additionally, the court noted Mr. Barlow’s lack of notice and inconsistency in visitation “stymied” the child. Ultimately, the trial court found Mrs. Barlow demonstrated sufficient evidence to |smodify custody. This finding has a reasonable basis in fact and is not clearly wrong in light of the foregoing evidence. As such, we find no manifest error in the judgment of the trial court.

The foregoing evidence amply supports the trial court’s determination that an award of sole custody to Mrs. Barlow reflected the child’s best interest. The trial court’s oral reasons for judgment reveal its primary concern was the effect of Mr. Barlow’s instability on Ashley. For this reason, the court stated that “it would be in the best interest of the child to go to a more standard visitation,” which prompted it to award sole custody to Mrs. Barlow.

Mr. Barlow contends that the trial court erred in granting sole custody because Mrs. Barlow didn’t specifically request it. However, Mrs. Barlow requested “any and all just and equitable relief.” Moreover, the trial court had authority to award any relief warranted by the facts, pursuant to La.Code Civ.P. art. 862. The trial court found, as indicated by its written and oral reasons for judgment, that Mr. Barlow’s lack of permanent home, infrequency in visitation, and other “personal problems” warranted that sole custody be awarded to Mrs. Barlow. This determination is wholly supported by the evidence, and thus, cannot be said to be an abuse of discretion. As such, Mr. Barlow’s argument is without merit.

V.

CONCLUSION

Based upon the foregoing reasons, we affirm the judgment of the trial court awarding sole custody to Mrs. Barlow and denying Mr. Barlow’s motion for new trial. Costs of this appeal áre assessed against Mr. Barlow.

AFFIRMED.