author: PER CURIAM.

text:
    Matthew R. HOOVER, Appellant, v. FLORIDA DEPARTMENT OF REVENUE on behalf of Ashley D. MITCHELL, Appellee.
    No. 1D12-2686.
    District Court of Appeal of Florida, First District.
    June 10, 2013.

      Matthew R. Hoover, pro se.
    Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Matthew Hoover appeals a Final Administrative Support Modification Order obligating him to pay $190 per month in child support to Ashley Mitchell. As discussed below, because the Administrative Law Judge (ALJ) hearing the petition failed to comply with statutory requirements, we reverse and remand for the order to be corrected.

The parties separated when their daughter was less than three months old, and the father, Appellant, has since remarried. His wife, a member of the armed forces, is required to relocate frequently, and the father’s employment thus changes frequently. After the father’s most recent relocation, his hourly wage decreased, and the father filed a petition for modification of his child support. During the pendency of the petition, to which the mother, Appel-lee, objected, two intervening events occurred: the father’s wage rose to near its original level, and the father was able to obtain a court-ordered time-sharing plan through which his daughter would reside with him for thirty-eight percent of the year. The Department of Revenue determined not to modify the child support order because of the increased wage, and the father properly sought an administrative remedy.

Both parties attended a hearing at the Division of Administrative Hearings. There, it was determined that a modification was appropriate because of the intervening time-sharing order, and a final support modification order issued. Appellant here challenges several determinations in that order.

Appellant first argues that the ALJ erred in failing to include dental insurance costs in the support calculation. Upon Appellee’s concession of error, we agree. At the hearing, the ALJ accepted the testimony as to the cost of the insurance and indicated the amount would be included in the calculation; it appears the cost was inadvertently omitted from the order. On remand, the calculation of child support should include the expense for dental insurance and credit to Appellant for prepaying the premium. See § 61.30(8), Fla. Stat. (2012).

Appellant next contends that the ALJ improperly calculated child care costs. Appellant suggests the mother’s cost— $100 per month — was falsified; this is a question of credibility on which we defer to the finder of fact. Katherine’s Bay, LLC v. Fagan, 52 So.3d 19, 28 (Fla. 1st DCA 2010). As the record contains competent, substantial evidence to support the mother’s claim, we will not disturb the factual finding.

Appellant also contests the continued expense of $100 per month despite a time-sharing arrangement by which the father has responsibility for the child thirty-eight percent of the time. This issue was presented below, and the ALJ indicated the calculation of basic support included a reduction for the reduced time spent with the mother’s child care provider. However, the statutory calculation procedure requires that the full cost of child care be taken into account only after the basic support obligation has been calculated. § 61.30(ll)(b)l. Thus, the reduction in basic support did not capture any change in child care costs. Appellee suggests we remand for a determination of what the new cost per month is — leaving it to the ALJ to determine whether the monthly cost has been reduced for the time the child spends away from the mother, or whether the cost is fixed regardless of days actually spent in day care. We agree.

Appellant challenges the ALJ’s failure to consider evidence of his child care expenses. Again, the ALJ appears to have been laboring under the assumption that this expense was accounted for as part of the basic obligation. It was not. Appellee concedes error; on remand, the ALJ should determine the father’s monthly cost of child care using the same principles discussed above, and include the expense and a credit for prepayment in the calculation of support.

Finally, Appellant argues that the ALJ erred in failing to award support retroactively. Appellee concedes that retroactive support should have been awarded as of the date of the Proposed Administrative Order to Modify Administrative Support Order, which functioned as the “petition” under section 409.2564(ll)(b), Florida Statutes. § 61.14(ll)(b). The statute appears to make an award of retroactive modification discretionary with the lower tribunal. Id. (“The modification of the temporary support order may be retroactive to the date ... of filing ... [the] supplemental petition for modification.”). However, there is authority from this Court indicating that in some situations, failure to award retroactive support is an abuse of discretion. See Robinson v. Robinson, 657 So.2d 958, 960 (Fla. 1st DCA 1995). Given Appellee’s concession of error, we will not consider whether these cases might be factually distinguishable from the case at hand; instead, we direct the ALJ on remand to calculate retroactive child support using the father’s income for the periods between the date of the Proposed Administrative Order to Modify Administrative Support Order and the date of the order on appeal, and to apply the difference between this amount and the amount actually paid to the father’s retroactive support balance.

For the foregoing reasons, the order on appeal is AFFIRMED IN PART, REVERSED IN PART, and REMANDED to the Division of Administrative Hearings for further proceedings consistent with this opinion.

BENTON, C.J., RAY, and MAKAR, JJ, concur.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    D.H., a child, v. STATE of Florida, Appellee.
    No. 1D12-4806.
    District Court of Appeal of Florida, First District.
    June 10, 2013.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for D.H.
    Pamela Jo Bondi, Attorney General, Meredith Hinshelwood, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   VAN NORTWICK, J.

In this appeal, D.H., a juvenile, argues that (1) the trial court erred by denying his motion to disqualify the trial judge; and (2) in the disposition order, the trial court impermissibly committed him to a high-risk juvenile facility for a misdemean- or offense. We affirm the trial court’s denial of the motion to disqualify without further comment. We find merit, however, in D.H.’s second issue. Accordingly, we reverse and remand for further proceedings.

In Case Number CJ-538, D.H. was charged with grand'theft of a motor vehicle, a third degree felony (Count I), and misdemeanor battery (Count II). Following a bench trial, D.H. was found not guilty of Count I and guilty of Count II. The trial court scheduled the case for a disposition hearing and requested the Department of Juvenile Justice (the Department) to complete a Pre-Disposition Report (PDR). The PDR considered a number of factors, including that D.H. was being held pursuant to a juvenile detention order pending his commitment to a high-risk residential program in accordance with an earlier delinquency disposition. Ultimately, the PDR recommended committing D.H. to a high-risk facility followed by conditional release, to run concurrent with the terms of his previous adjudications. The trial court agreed with the Department’s recommendation that it was in D.H.’s best interest, considered in light of the public safety, to commit him to a high-risk residential facility, concurrent with the dispositions already administered. The trial court denied defense counsel’s objection to the disposition and this appeal ensued.

An illegal sentence is one which does not comply with Florida Statutes. Moore v. State, 768 So.2d 1140, 1143 (Fla. 1st DCA 2000); see also Hinson v. State, 709 So.2d 629, 630 (Fla. 1st DCA 1998) (“[A] sentence that exceeds the maximum allowed by statute is an illegal sentence.”). Section 985.441(l)(b), Florida Statutes (2012), empowers a trial court to commit to the supervision of the Department a juvenile that is adjudicated delinquent. In this statute, however, the Legislature has limited the scope of a trial court’s commitment authority, as follows:

Notwithstanding subsection (1), the court having jurisdiction over an adjudicated delinquent child whose underlying offense was a misdemeanor may not commit the child for any misdemeanor offense or any probation violation at a restrictiveness level other than minimum-risk nonresidential unless the probation violation is a new violation of law constituting a felony. However, the court may commit such child to a low-risk or moderate-risk residential placement if:
(a) The child has previously been adjudicated for a felony offense;
(b) The child has been adjudicated or had adjudication, withheld for three or more misdemeanor offenses;
(c) The child is before the court for disposition for a violation of s. 800.03, s. 806.081, or s. 828.12; or
(d) The court finds by a preponderance of the evidence that the protection of the public requires such placement or that the particular needs of the child would be best served by such placement. Such finding must be in writing.

§ 985.441(2), Fla. Stat. (2012).

Here, in Case Number CJ-538, D.H. was found guilty only of misdemean- or battery. Pursuant to section 985.441(2), he could be committed, at the most, to a moderate or low-risk facility. Thus, the trial court’s order committing D.H. to a high-risk restrictiveness level was contrary to law.

Accordingly, we REVERSE and REMAND to allow the trial court to enter a disposition order in compliance with Florida Statutes.

ROBERTS, J., concurs.

THOMAS, J., dissents.


text:
    D.F., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2317.
    District Court of Appeal of Florida, First District.
    June 10, 2013.
    Stacy A. Scott, Public Defender, and Whitney Untiedt, Assistant Public Defender, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as moot.

WOLF, PADOVANO, and LEWIS, JJ., concur.


text:
    Kevin HASSETT and Angela Hassett, Appellants, v. WELLS FARGO BANK, N.A., and Wachovia Bank, N.A., Appellees.
    No. 3D12-1964.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Michael Farrar, Miami, for appellants.
    Carlton Fields, P.A., and Dean A. Mo-rande, Michael K. Winston, and Donna L. Eng, West Palm Beach, for appellees.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on the proper confession of error filed by the appellees, Wells Fargo Bank, N.A., and Wachovia Bank, N.A., we reverse the orders on appeal. The appellees agree that the $6,382.53 disbursed to Wells Fargo Bank, N.A., will be disgorged by Wells Fargo directly to the appellants, Kevin Hassett and Angela Hassett, and that the additional surplus funds held by the Clerk of the Circuit Court will be disbursed to the Hassetts. See § 45.031, Fla. Stat. (2011).

Reversed and remanded.


text:
    STATE of Louisiana v. Bernard NOBLE.
    No. 2012-K-1923.
    Supreme Court of Louisiana.
    April 19, 2013.
   PER CURIAM.

1, Granted. Defendant was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine. The trial court granted defendant’s motion to impose a sentence less than the minimum sentence mandated by the Habitual Offender law and sentenced defendant to serve five years imprisonment at hard labor. The court of appeal granted the state’s application for supervisory writs because it found that “the trial judge failed to articulate sufficient reasons to justify why the [five-year] sentence it imposed ... was the maximum sentence that is not constitutionally excessive.” State v. Noble, 12-0186 (La.App. 4 Cir. 3/9/12) (unpub’d). The court of appeal remanded for the trial court to provide additional reasons.

On remand, the trial court offered the following justifications for the sentence imposed. First, the trial court adopted the reasons previously | ¡.enunciated at the time of sentencing, which included that defendant supports seven children, two of whom have significant medical problems, and that all of the defendant’s offenses have been non-violent. Next, the trial judge expressed concern about the sentencing ranges authorized by Louisiana law generally for possession of marijuana. The trial judge opined that possession of marijuana is a less serious crime than possession of other controlled dangerous substances such as cocaine. The trial judge noted that possession of small quantities of marijuana is punished more harshly under state than federal law and the trial judge expressed disbelief that possession of marijuana, which is enhanced for repeated violations, should be further subject to enhancement under the Habitual Offender law. Finally, the trial court noted that defendant’s offenses were committed over several years and all involved the possession of small quantities of narcotics. The trial court thus maintained the sentence previously imposed. The court of appeal then denied the state’s application for supervisory writs because it found that the trial court on remand articulated sufficient reasons. State v. Noble, 12-0850 (La.App. 4 Cir. 7/26/12) (unpub’d).

The courts below erred. Defendant was properly adjudicated and sentenced as a third felony offender because the prior felony convictions alleged in the habitual offender bill filed by the state formed no part of defendant’s conviction for fourth offense possession of marijuana. See State v. Lewis, 12-1835 (La.11/30/12), 104 So.3d 407. The mandatory minimum sentence provided by the Habitual Offender law in this instance is 13 1/3 years imprisonment at hard labor without benefit of probation or suspension of sentence. The legislature has the sole authority under the Louisiana Constitution to define conduct as criminal and provide penalties for such 13conduct. La. Const, art. Ill, § 1. Given the legislature’s plenary authority, departures from mandatory minimum sentences by their nature must be exceedingly rare, and the class of exceptional offenders for whom presumptively-constitutional mandatory minimum terms of imprisonment are nevertheless excessive as applied to them, exceedingly narrow. State v. Johnson, 97-1906, p. 9 (La.3/4/98), 709 So.2d 672, 676-77.

In the present case, the district court noted that defendant supports several children, who would also be punished by incarcerating him, and that defendant’s criminal history consists of non-violent but repeated possession of small quantities of cocaine and marijuana. Neither factor individually or in combination defines a class of offender sufficiently narrow to qualify as exceptional. Furthermore, the district court expressed criticism for the sentences authorized for possession of marijuana in this jurisdiction generally, a criticism not limited to this particular defendant and these particular circumstances, and therefore also not a sufficiently narrowing and defining circumstance. Johnson, 97-1906 at 11, 709 So.2d at 678 (“The trial court stated that crimes of personal destruction did not warrant mandatory sentences [but] this policy decision is for the Legislature to make, not the judiciary.”). Defendant faces the enhanced sentencing ranges provided by Louisiana’s Habitual Offender Law to punish him not only for his most recent violation of this state’s controlled substances law, but also for his repeated felonious behavior over time, placing him in an unfortunately large class of offenders.

We therefore agree with the state that the district court erred in granting defendant’s motion to impose a sentence less than the minimum mandated by the Habitual Offender law. The sentence is vacated and the |4matter remanded for resentenc-ing to a term of imprisonment not less than the mandatory minimum term required by law, consistent with the principles enunciated in Johnson.

COURT OF APPEAL DECISION REVERSED; CASE REMANDED

JOHNSON, C.J., and KNOLL and HUGHES, JJ., dissent.


text:
    In re Christopher Dale LANE.
    No. 2013-OB-0575.
    Supreme Court of Louisiana.
    April 19, 2013.
   PER CURIAM.

|!Petitioner, Christopher D. Lane, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions declined to certify him for admission to the bar based upon character and fitness concerns relating to his diagnosis of substance dependence and his record of drug- and alcohol-related criminal charges. Petitioner then applied to this court for admission.

Our jurisprudence holds that an applicant suffering from substance dependence will not be considered for admission until he or she has entered into a recovery contract with the Lawyers Assistance Program (“LAP”) and can demonstrate at least a one-year period of sobriety pursuant to the terms and conditions of that contract. Furthermore, the applicant must comply with any treatment recommendations made by the LAP evaluator. If either of these conditions is not met, the applicant cannot be admitted. |2In the instant case, petitioner has been diagnosed as substance dependent, necessitating his execution of a contract with LAP and a one-year period of monitored sobriety under the agreement. In addition, the LAP evaluator recommended that petitioner obtain inpatient substance abuse treatment, but there is no indication that he has complied with this recommendation. Therefore, petitioner is not eligible for admission at this time.

Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until he has demonstrated compliance with the requirements imposed upon him by the Committee on Bar Admissions and the Lawyers Assistance Program, including, but not limited to, enrollment in a long-term inpatient treatment program, execution of the recommended LAP agreement, and compliance with the terms and conditions of that agreement for at least one year.

ADMISSION DENIED.

      . See, e.g., In re: Basinger, 10-2355 (La.12/17/10), 50 So.3d 157 ("[o]ur jurisprudence holds that an applicant suffering from alcohol dependence will not be considered for admission until he or she has entered into a recovery contract with LAP and can demonstrate at least a one-year period of sobriety pursuant to the terms and conditions of that contract”); In re: Gulick, 09-0869 (La.5/15/09), 8 So.3d 555 ("[p]ursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program, and in no event less than one year from the date of this judgment”).

      . See, e.g., In re: Poche, 10-1311 (La.6/30/10), 39 So.3d 583 ("Granted. Petitioner is allowed to take the Louisiana State Bar Examination. However, petitioner shall not be considered for admission to the bar until he can demonstrate compliance with the requirements imposed upon him by the Committee on Bar Admissions and the Director of the Lawyers Assistance Program, including, but not limited to, execution of the recommended Recovery Agreement.”).


author: CONERY, Judge.

text:
    Tina Lynette WATKINS, et al. v. LAKE CHARLES MEMORIAL HOSPITAL, et al.
    No. 12-1320.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2013.

      Leslie A. Cordell, R. Ray Orrill, Jr., W. Christopher Beary, Orrill, Cordell & Beary, L.L.C., New Orleans, LA, for Plaintiffs/Appellees, Tina Lynette Watkins, Individually and on Behalf of Her Child, Dustin Watkins.
    Nadia Marie de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., Lafayette, LA, for Inter-venor/Appellant, Louisiana Patient’s Compensation Fund.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   CONERY, Judge.

|TWas the Louisiana Patient’s Compensation Fund (PCF) in this particular case required to obtain a judicial ruling modifying the district court judgment prior to discontinuing payments for future medical care and related benefits that the PCF has determined are no longer necessary or actually rendered? The trial court held that it was so required, and, under the limited circumstances of this particular case, we agree.

The PCF also appeals the award of attorney fees and costs, arguing that it had good reason to discontinue payment for twenty-four hour custodial care. We affirm the award of attorney fees and costs.

Tina Lynette Watkins answers the appeal and contests the trial court’s ruling which reduced her payments for custodial care from twenty-four hours to six hours a day. She contends that she is “on call” twenty-four hours a day, and, therefore, she should continue to receive the full compensation previously awarded by the trial court. We agree with the trial court’s reduction of custodial/attendant care from twenty-four hours per day to six hours per day.

PROCEDURAL HISTORY AND FACTS

This is the latest in a line of cases dating back to the original case of Watkins v. Lake Charles Memorial Hospital, 04-355 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, writ denied, 05-145 (La.4/8/05), 898 So.2d 1279 (Watkins I). The judgment in Watkins I, based on the malpractice of Dr. Richard Barry, required, among other things, that the PCF begin payments to Tina Lynette Watkins (Mrs. Watkins) for future medical and custodial/attendant care expenses for her son, Dustin P. Watkins. Dustin suffered a stroke in útero and has suffered significant medical problems since his birth in December 1990.

[2In Watkins I, the trial court rendered a 2003 judgment defining “future medical care” costs to include custodial/attendant care for Dustin “for twelve hours a day until Dustin’s eighteenth birthday and twenty-four hours a day for the remainder of his life.” The 2003 judgment also anticipated various future needs such as occupational therapy, speech therapy, ongoing tutoring, respite care, and live-in support for Dustin. On appeal, a panel of this court stated: “Although contained in the judgment, these expenses are not made execu-tory until review and approval by the LPCF or, if denied, upon subsequent order of the court under its continuing jurisdiction. See La.R.S. 40:1299.43(E)(1).” Watkins I, 896 So.2d at 135 (footnote omitted).

In 2006, this court affirmed a judgment by the trial court that required advance payments to Mrs. Watkins for custodial/attendant care of Dustin to be deposited into a Special Needs Trust in the name of Dustin Watkins. Watkins v. Barry, 06-858 (La.App. 3 Cir. 12/6/06), 946 So.2d 262, writ denied, 07-373 (La.4/27/07), 955 So.2d 686 (Watkins II). This court found the advance payment plan was a reasonable way for the PCF to meet its statutory obligations ordered by the trial court under the 2003 judgment affirmed in Watkins I.

In Watkins II, this court specifically affirmed the trial court’s plan ordering the PCF “to make quarterly advanced payments of custodial care expenses to the trust, at the hourly rate specified in the original 2003 judgment, upon receipt of certification that there has been no change in Dustin’s condition in the previous thirty days.” Watkins II, 946 So.2d at 263.

Since the ruling in Watkins II in 2006, Mrs. Watkins has submitted quarterly affidavits for Dustin’s future custodial/attendant care. She states, in pertinent part, in her affidavits: “1) She is the mother of Dustin P. Watkins; 2) He is still alive and |shis disabilities and care requirements have not diminished since the trial in this matter.”

The PCF paid Mrs. Watkins the prospective quarterly payments of approximately $8,000.00 a month for Dustin’s care through May 2011 without question. However, after the submission of the May 2011 affidavit seeking advance payment for Dustin’s care for the months of June, July, and August 2011, the PCF learned via Dustin’s open-access Facebook account that he was happily married and no longer living with his mother. After verifying the information, the PCF discontinued payments for the future custodial/attendant care to Mrs. Watkins. On June 23, 2011, The PCF requested that Dustin undergo an Independent Medical Examination (IME) in order to assess Dustin’s current medical condition and his future custodial/attendant care needs.

In response to the PCF’s June 23, 2011 request for an IME, Dustin immediately-agreed to the IME and designated Dr. John Willis, a pediatric neurologist associated with Tulane University and Ochsner Hospital and Clinic, to conduct the exam. In the meantime, on August 25, 2011, Mrs. Watkins submitted another affidavit seeking payment for services to be rendered for Dustin’s future care from September 2011 through November of 2011. The August 25, 2011 affidavit was the last affidavit submitted to the PCF by Mrs. Watkins.

For reasons not clear in the record, Dr. Willis did not conduct the IME until September 10, 2011. He conducted a complete neurological examination of Dustin and determined that Dustin was neurologically intact and not in need of twenty-four hour custodial/attendant care. Dr. Willis reported that Dustin had no outbursts in the three months preceding the IME. In addition, as shown in his report dated September 27, 2011, Mrs. Watkins admitted to Dr. Willis that she was no longer living with Dustin due to interpersonal conflicts and had not been 1 Jiving with him during that same three month period, June through August 2011. Further, in Dr. Willis’s deposition he noted that Mrs. Watkins was “trying to stay away” from Dustin because her presence “seemed to escalate the conflict.” Dustin was living with his wife during this time period, and not his mother, and continued to live with his wife without incident through the date of trial.

After receiving the report and conclusions of Dr. Willis and the admission in the medical records by Mrs. Watkins that she was neither living with Dustin nor providing him with twenty-four hour care, the PCF continued to refuse to make the payments requested in the May 2011 affidavit for June through August 2011, and also refused the payments requested in the August 25, 2011 affidavit for services from September through November 2011.

On September 15, 2011, Plaintiffs filed a rule to show cause why the PCF should not be compelled to pay Mrs. Watkins for the twenty-four hour eustodial/attendant care of Dustin. In response to the rule, the PCF argued that a change in Dustin’s medical condition was evidenced by the neurological examination of Dr. Willis and requested that the trial court reconsider the need and/or amount of time required to provide custodial care to Dustin.

On March 12, 2012, Plaintiffs filed a supplemental rule to show cause to require the PCF to pay the cost of a neurological evaluation and an independent living skills assessment of Dustin that had been conducted by Dr. Michael Chafetz on November 11, 2011, at the request of Plaintiffs.

[¡¡On March 13, 2012, Plaintiffs filed a third rule to show cause seeking to increase the rate of compensation to Mrs. Watkins from $10.00 to $18.00 per hour for her custodial/attendant care provided to Dustin. The increase in hourly compensation was deferred to a later date by stipulation of both parties at trial.

On March 26, 2012, the trial court held an evidentiary hearing on the plaintiffs’ rules to show cause. By stipulation and oral motion by the PCF, the parties requested that the trial court determine the amount of prospective payments that might be owed to Mrs. Watkins for all past and future custodial/attendant care of Dustin.

After hearing the evidence and reviewing the exhibits, the trial court determined that, based on Dr. Willis’s neurological examination and assessment of Dustin, as well as Dr. Michael Chafetz’s independent living skills assessment:

Dustin can now independently take care of most of his basic needs.
It is also undisputed that Mrs. Watkins Guidry has not resided with Mr. Watkins since May of 2011. Therefore, it is the opinion of this Court that Mr. Watkins is no longer in need of constant twenty-four hour custodial care.

The trial court then reduced the obligation of the PCF to pay for Dustin’s custodial/attendant care from twenty-four to six hours per day, commencing on March 26, 2012, and continuing in accordance with the 2006 ruling.

ASSIGNMENTS OF ERROR

The PCF appeals the trial court’s award of pre-hearing custodial/attendant care from June 1, 2011 through the date of trial, March 26, 2012, plus interest, on the basis that the statutory scheme for payment of future medical expenses does not require trial court approval before the PCF can terminate future benefits the PCF | (¡has determined are not medically necessary, and it should not have to pay for services that have not actually been rendered.

The PCF also appeals the award of attorney fees and costs. The PCF argues that the trial court erred in awarding attorney fees and costs after its specific finding that in May of 2011, Dustin’s medical condition had changed, and he no longer required twenty-four hour care, since he no longer resided with his mother, who had not actually rendered any care to Dustin during this time period. The PCF argues it was not unreasonable in failing to pay for services that had not actually been rendered by Mrs. Watkins and were found by the trial court to be no longer medically necessary.

Mrs. Watkins answers the appeal, contending the trial court erred in reducing her payments for custodial care from twenty-four hours to six hours a day. She contends that she is “on call” twenty-four hours a day, and, therefore, she should continue to receive the full compensation previously awarded by the trial court.

LAW AND DISCUSSION

Standard of Review

“Appellate review of a question of law is simply a decision as to whether the [trial] court’s decision is legally correct or incorrect.” Jim Walter Homes, Inc. v. Jessen, 98-1685, p. 5 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 702 (citing Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118). “If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court.” Id. (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983)). If an appellate court finds that a reversible error of law was made by 17the trial court, it must review the facts de novo and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Thus, we review the trial court’s ruling on the legal issue of the lawfulness of the PCF’s termination of benefits to determine whether the trial court’s decision was legally correct. If we find an error of law, then we conduct a de novo review of the facts.

June 1, 2011-March 26, 2012 Payments Plus Interest, Attorney Fees and Costs

The PCF urges that the case of Bartee v. Children’s Clinic of Southwest La., 05-583 (La.App. 3 Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La.3/24/06), 925 So.2d 1230, controls' this issue. The panel in Bartee sought to clarify the procedure for both the recipients of future medical payments and for the PCF to follow in resolving a dispute over the amount or necessity of payment of future medical expenses. In its determination of the procedure, the Bartee court stated that the statutory language of the Medical Malpractice Act, (MMA), or more specifically La.R.S. 40:1299.43, clearly controlled the procedural requirements for the determination of the payment of future medical benefits.

In Bartee, this court discussed the supreme court case of Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, and found no conflict between the decision in Kelty and the provisions of the MMA. The Bartee court stated:

In other words, a plaintiff must, first, bring the claim for payment to the PCF, which is authorized, in accordance with provisions contained in Section 44 of the MMA, to “evaluate claims, and to pay, settle or reject them, [and] is also vested with full powers to assure the cost-effectiveness of claims adjustment and the fiscal soundness of the PCF.” Kelty, 633 So.2d at 1218. However, Kelty additionally recognized the district court has “continuing jurisdiction” to settle any dispute between the PCF and a plaintiff and to “award attorney fees when the PCF fails to pay timely, id. 43E(2).” Id. We find no conflict between Kelty and the procedure for filing a claim mandated by the MMA. Under provisions contained in Section 44, as recognized by | nKelty, the PCF has the authority to implement any internal procedure it deems necessary to effectively and efficiently process a claim. However, the PCF must respond to a plaintiffs request for payment within the thirty day time limit mandated by the MMA, and its actions are subject to full review thereafter in the district court under its continuing jurisdiction which attached at the time and place where the malpractice suit was initially filed. La.R.S. 40:1299.43(E)(1).... The procedure for obtaining future medical care and related benefits is clearly mandated by La. R.S. 40:1299.43 et seq. and supercedes all judicial declarations to the contrary or that are in conflict with the legislative directives found in the noted provisions.

Id. at 472-73 (footnote omitted).

The court in Bartee further interpreted the provisions of La.R.S. 40:1299.43 and set forth the following procedure for litigants to follow in seeking a determination of how much payment, if any, was due and whether the PCF owed attorney fees for failure to pay future medical and custodial expenses within thirty days:

Louisiana Revised Statutes 40:1299.43(E)(1) and (2) give the district court continuing jurisdiction over disputes regarding future medical expenses filed before the PCF, including the authority to award attorney’s fees if the court finds the PCF fails to pay the claim within thirty days.
Under these provisions, while the trier of fact determines both the need and amount of future medicals due, future medical expenses “are not made execu-tory until review and approval by the LPCF or, if denied, upon subsequent order of the court under its continuing jurisdiction.” Watkins, 896 So.2d at 135. The PCF is required to act upon the claim within thirty days. La.R.S. 40:1299.43(E)(2). If denied, the plaintiffs remedy is to file a Rule to Enforce the Judgment in district court. See Alexander v. Austin, 00-00298 (La.App. 3 Cir. 10/4/00), 771 So.2d 719, writ denied, 00-3068 (La.1/5/01), 778 So.2d 1141, (the plaintiff filed a motion with the trial court for reimbursement of expenses denied by the PCF), and Bridgers v. Southwest Louisiana Hospital Association, 01-0534 (La.App. 3 Cir. 11/7/01), 799 So.2d 1253 writ denied, 01-3220 (La.2/8/02), 809 So.2d 138, (the plaintiff filed a rule to enforce judgment in district court). The PCF is required to come forward with the reasons for the denial or modification. The burden of proof is on the Oversight Board. If the trial court finds the PCF unreasonably 19failed to pay the claim timely, La.R.S. 40:1299.43(E)(2) authorizes the award of attorney’s fees.

Id. at 474-75 (footnote omitted). Thus, the structure of the requirements for litigating future medical payments between the PCF and a party requiring or receiving future medical payments has been defined by this circuit.

In Bartee, this court made it quite clear that the statutory scheme of the MMA controls over the applicable provisions of the Louisiana Administrative Code and the Louisiana Administrative Procedures Act. The statutory scheme in'La. R.S 40:1299.43, as described in great detail in Bartee, does not require the PCF to file a motion to modify judgment with the trial court prior to terminating or modifying future medical or custodial benefits. It does require the PCF to periodically determine if the same medical condition which requires medical payments still exists.

In this case, the PCF followed the procedures required in La.R.S. 40:1299.43(G). After receiving verified information that Dustin was no longer residing with his mother and no longer in need of the twenty-four hour custodial/attendant care, the PCF requested an IME for Dustin on June 23, 2011.

However, an IME was not conducted until September 10, 2011. The report of Dr. Willis, dated September 27, 2011, supported the PCF’s position that Dustin’s medical condition had changed such that there was no longer any need for twenty-four a day custodial care. However, no prior thirty-day notice had been provided to Mrs. Watkins that the PCF would discontinue benefits, and, in fact, “future” benefits had not been paid since May 2011.

On September 15, 2011, Plaintiffs filed the first rule to show cause, seeking to have the payments reinstated pursuant to La.R.S. 40:1299.43(E)(1). A hearing [ ]0was held six months later, on March 26, 2012, on the rule for reinstatement of the custodial/attendant payments, along with a determination of the payment, if any, allegedly owed to Mrs. Watkins for the future custodial/attendant care for Dustin.

The trial court in its Reasons for Judgment issued July 11, 2012, stated:

In the 2006 judgment!, Watkins II,] after Plaintiffs’ claim for custodial care expenses was denied by the PCF, this Court ordered the PCF to make quarterly advanced payments of custodial care expenses upon receipt of certification that there has been no change in Dustin’s condition in the previous thirty days.

The trial court then found that Mrs. Watkins had complied with the requirements of the 2006 judgment and submitted certified affidavits “stating that there had been no change in Dustin’s condition in the previous thirty days.” The trial court then determined, “Despite the mandate of the 2006 judgment, the PCF made the unilateral determination to deny payment of these claims for custodial care expenses.”

The trial court then discussed the provisions of La.R.S. 40:1299.43(C), which provides the procedure for a patient obtaining future medical care, and La.R.S. 40:1299.43(E)(2), which allows the award of reasonable attorney fees “if the court finds the PCF unreasonably fails to pay for medical care within thirty days after the submission of a claim for payment of such benefits.”

Ordinarily, pursuant to Bartee, when a claim is initially made to the PCF by a patient and is denied by the PCF, a rule to show cause is filed by the plaintiff in the district court for a ruling. In Watkins II, however, the 2006 judgment of the trial court specifically outlined the payment procedure for future benefits, which [nruling was affirmed by a panel of this court making the final judgment in Wai-kins II the law of the case.

The trial court in this case noted specifically in its reasons for ruling:

The PCF willfully violated the mandate of the 2006 judgment by making the unilateral determination to cease the custodial care payments, despite receiving certification from Mrs. Watkins Gui-dry that there had been no change in Dustin’s condition.
The PCF contends that Mrs. Watkins certification to the PCF misrepresented the actual condition and care provided to Dustin Watkins. However, the fact that a misrepresentation or change in condition has occurred or is suspected does not allow the PCF to make the unilateral determination to cease payment.

Further, the trial court noted: “The PCF is not without recourse in the event that abuse occurs or is suspected.” The PCF could have petitioned the trial court for a determination of the necessity for the payment of future custodial/attendant benefits for Dustin, prior to termination of the requested benefits, and could have sought a court-ordered IME when it first learned of the change in circumstances evidenced by the information obtained on Facebook.

Under the facts of this case, and considering the detailed procedure ordered in Watkins II, which is now the law of the case, the trial court correctly ruled:

The PCF also contends that there is no law that requires the PCF to file any judicial pleading at the district court prior to reviewing an illegitimate request for payment. This Court agrees. The PCF can review at any time any claim it suspects to be illegitimate. However, prior to discontinuing payments for future medical care and related benefits, i.e. custodial care, it must first obtain a judicial ruling modifying the prior judgment.
| isThe PCF has no legal right to substitute its own opinion for the rulings of this Court.

In awarding $72,000.00, plus interest, along with costs and attorney fees to Mrs. Watkins, the trial court correctly found the award was due from June 1, 2011, the date of the unilateral termination by the PCF, until the date of the hearing on March 26, 2012.

.The Court correctly held, “Once Mrs. Watkins Guidry initiated this proceeding and the PCF continued to deny payment, the claims were effectively preserved until court determination.”

Therefore we affirm the trial court’s award for “twenty-four (24) hour custodial/attendant care from June 1, 2011, through March 26, 2012, for an amount totaling $72,000.00 (300 days x 24 hours per day x $10.00 per hour)[,] plus interest from the date of judicial demand.” We also affirm the trial court’s determination that the termination of custodial/attendant care benefits was unreasonable due to the failure of the PFC to first seek the trial court’s approval, and, therefore, the attorney fees and costs were correctly awarded by the trial court based on La.R.S. 40:1299.43(E)(2).

Reduction of Custodial/attendant Care

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.” La. Const art. 5, § 10(B). Our supreme court, in Ryan v. Zurich American Ins. Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219, reiterated the standard of review for fact findings as follows:

The jury’s determination of the amount, if any, of an award of damages ... is a finding of fact. The Civil Code provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. C.C. art. 2324.1.

11sThe standard of review of a trial court’s findings is well-settled.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or.unless it is “clearly wrong.” Our supreme court set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Cole v. Allstate Ins. Co., 07-1046 (La.App. 3 Cir. 6/05/08), 987 So.2d 310, 312 writ denied, 08-1463 (La.10/31/08), 994 So.2d 535 (citing Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242).

In answering the appeal, Mrs. Watkins contests the reduction of her payments for the custodial/attendant care of Dustin from twenty-four hours to six hours per day on the basis that she is “on call” twenty-four hours and, therefore, should be compensated for this time. This is a question of fact. The PCF did not appeal the trial court’s determination on this issue. The standard of review to be used by this court on this issue is the clearly wrong/manifest error standard.

In its Reasons for Judgment rendered on July 11, 2012, the trial court determined factually, based on all the evidence, that Dustin was no longer in need of twenty-four hour custodial/attendant care. The court stated:

It is clear that Dustin can now independently take care of most of his basic needs. Dustin is able to care for his basic grooming, cooking, cleaning, and transportation needs, as supported by the “independent living skills” assessment of Dr. Chafetz and by the neurological assessment of Dr. Willis.
It is also undisputed that Mrs. Watkins Guidry has not resided with Mr. Watkins since May of 2011. Therefore, it is the opinion of this Court that Mr. Watkins is no longer in need of constant twenty-four hour custodial care.

The trial court further found:

|14It is apparent that through Mrs. Watkins Guidry’s past efforts, Dustin has maximized his independence to date. At some point that may be at 100 percent, but that level has not yet been achieved. Currently, the care that Mrs. Watkins Guidry provides is adequate, appropriate . and in the best interest of Dustin.
This Court takes note of the fact that Mrs. Watkins Guidry must remain available to Dustin at all hours of the day. It is noted that Mrs. Watkins Guidry has attempted independent employment, but she had to leave that position to be available to address issues with Dustin. However, Mrs. Watkins Guidry testified that she provides between five and six hours of care per day to Dustin on an average day. Accordingly, it is ordered that Plaintiffs’ previous care award for twenty-four hours per day for 365 days per year is reduced to six hours per day for 365 days per year.

(Footnote omitted).

Although Mrs. Watkins expressed concern over Dustin’s possible anger management issues, the record does not reflect that his anger control is a significant problem. The testimony of Dustin’s wife, Sarah, who dated him for four years prior to their marriage, was that she never saw any violent outbursts. She also testified that Dustin is her own mother’s favorite; she “loves him to death.” In addition, Dustin’s school records do not reflect any anger management problems. A former teacher noted, “He is the nicest student I have ever taught. He is respectful and usually a very hard worker.”

This court will not overturn the trial court’s considered determination in its well-reasoned decision that the award to Mrs. Watkins for custodial/attendant care of Dustin be reduced to six hours a day. The trial court’s factual findings were based on all the evidence presented, as well as the trial judge’s intimate familiarity with the long history of this case and the parties involved. We find no manifest error in the trial court’s ruling on this issue.

| ^DISPOSITION

The trial court correctly ruled that based on the law of the case as determined in the 2006 judgment issued in Watkins II, the PCF was required to petition the court for a modification of its previous ruling before terminating the future custodial/attendant payments to Tina Lynette Watkins for Dustin Watkins. We affirm the trial court’s award for “twenty-four (24) hour custodial/attendant care from June 1, 2011, through March 26, 2012, for an amount totaling $72,000.00 (300 days x 24 hours per day x $10.00 per hour)[,] plus interest from the date of judicial demand,” as well as the award of attorney fees and costs associated with the hearing on March 26, 2012.

We also affirm the trial court’s reduction of custodial/attendant care from twenty-four hours per day to six hours per day to be paid in accordance with law and prior rulings of court. All costs of this appeal are assessed against the PCF.

AFFIRMED.

      . The PCF does not appeal the expert fees and costs associated with the testimony of Dr. Michael Chafetz, as these costs are required by La.R.S. 40:1299.43(J).

      . Schultz v. Doyle, 98-1113 p. 5 (La.App. 3 Cir. 2/3/99), 727 So.2d 691, 693, writ denied, 99-994 (La.5/28/99), 743 So.2d 670 (quoting Petition of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973)) defined the applicable law of the case as follows: “The law of the case principle relates to ... (c) the rule that an appellate court will not ordinarily reconsider its own rulings of law on a subsequent appeal in the same case.”


author: SEXTON, J. (Ad Hoc).

text:
    Tammy TODD & Teer Michael Todd, Plaintiffs-Appellants. v. Robert ANGEL, Robert Angel Builder, Inc., Home Builders Association of Northwest Louisiana, formerly Northwest Louisiana Home Builders Association, Ohio Casualty Insurance Company, and General Fidelity Insurance Company, Defendants-Appellees.
    No. 47,911-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 24, 2013.

      Gilley & Gilley, Shreveport, LA, by Patricia Gilley, for Plaintiffs-Appellants.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Erik S. Vigen, Brian A. Hom-za, for Defendants-Appellees Home Builders Association of Northwest Louisiana and Ohio Casualty Insurance Company.
    Pettiette, Armand, Dunkellman, Wood-ley, Byrd & Cromwell, L.L.P. Shreveport, LA, by Donald Armand, Jr., for Defendants-Appellees Robert Angel, Robert Angel Builder, Inc. and General Fidelity Insurance Company.
    Before WILLIAMS, STEWART and SEXTON (Ad Hoc), JJ.
   SEXTON, J. (Ad Hoc).

| iThis suit arises out of an injury allegedly suffered by an attendee of the “Parade of Homes” tour when she tripped and fell while touring a newly constructed house. The trial court granted a motion for summary judgment in favor of the Home Builders Association of Northwest Louisiana (“HBA”), a sponsor of the Parade of Homes, and its insurer. In conjunction with this ruling, the trial court also granted a motion to strike exhibits filed by the plaintiffs in opposition to the motion for summary judgement. The plaintiffs appeal. We reverse the motion to strike in part, reverse the granting of summary judgment, and remand the case to the trial court for further proceedings.

FACTS

In June 2008, a house located at 205 Oak Alley Boulevard in Bossier City was featured in the annual Parade of Homes tour, a collection of “open houses” showcasing newly constructed houses sponsored and promoted by the HBA. Tammy Todd and her husband, Teer Michael Todd, toured the house on June 7, 2008. After viewing a room over the garage, Mrs. Todd allegedly fell at the bottom of a flight of stairs leading back to the garage and sustained injuries to both feet.

On June 4, 2009, the Todds filed suit against several parties, including Robert Angel, the builder who constructed the house, and his company (hereinafter referred to collectively as “the builder”), as well as their insurer. They also sued the HBA and its insurer, Ohio Casualty Insurance Company. The plaintiffs alleged that the threshold where Mrs. Todd fell was unfinished and that this condition caused her either to catch Lher foot or lose her balance. They further alleged that the builder and the HBA were negligent in allowing her access to an unfinished and unsafe area of the house, failing to warn of the unsafe area, and failing to properly supervise the open house.

The HBA and its insurer filed an answer, affirmative defenses and third-party demand. They asserted that, pursuant to the 2008 Parade of Homes participation agreement, the HBA was entitled to be protected, indemnified and held harmless against any loss, claim or damage sustained as the result of personal injury caused by any defect or dangerous condition in the Parade house or site. They further contended that the accident was the sole or partial fault of third parties for whom the HBA was not responsible and that the plaintiffs’ recovery should be reduced in proportion to the degree of fault attributable to those third parties. Alternatively, they pled the plaintiffs’ comparative fault. In its third-party demand, the HBA and its insurer sued their codefen-dants, the builder and its insurer, under the Parade of Homes participation agreement whereby the HBA was to be protected, indemnified and held harmless for personal injuries caused by any defect or dangerous condition in the Parade house or site.

In their answer to the third-party demand, the builder and its insurer generally denied the allegations and stated that the agreement and policy involved were the best evidence of their contents. They also alleged that the accident was caused solely or partially by the negligence of the plaintiffs or other parties with whom they had no relationship.

| sIn July 2011, the HBA and its insurer filed a peremptory exception of no cause of action. They contended that the plaintiffs failed to state a claim against the HBA under La. C.C. art. 2317.1. The plaintiffs countered by maintaining that they had alleged sufficient facts in a “straight forward Article 2315 action with a duty-risk analysis.” In October 2011, the trial court sustained the exception and dismissed the claims against the HBA without prejudice and gave the plaintiffs 15 days to replead their claims against the HBA.

On November 7, 2011, the plaintiffs filed an amended and supplemental petition. They alleged that the HBA entered into a participation agreement with the builder of each house included in the Parade of Homes tour. The following allegations were included in this petition:

5.
Certain “Terms and Conditions” are made part of the Participation Agreement signed by each builder and the Home Builders Association. These include but are not limited to the following:
a. The builders agree to have the home completed and ready for inspection by the Home Builders Association Committee one week before the tour is scheduled to begin.
b. The Home Builder’s [sic] Association has the right to exclude any home deemed incomplete and builder will insure that the house will not be open to the public for any reason during the Parade hours.
c. The builder will receive “Official Parade House” signs after inspection and acceptance of the house by the Home Builders Association. Builder will also place those signs and additional directional signs leading to the site as required by the HBA.
_Ll- • • •
f. The builder agrees to support the admission charge of $5.00 and will either provide a greeter of his own choosing, or pay an additional $125.00 each weekend to have the HBA provide a greeter.
7.
The builder agrees to furnish the HBA with a copy of the final inspection certificate issued by the appropriate inspection agency at least a week prior to the Parade.

The petition further alleged that the HBA had control over each of the houses included in the tour during the two weekends of the Parade of Homes and that in its advertising, the HBA advised invitees that it had inspected each house and found that it met HBA standards. They alleged that the HBA, as a sponsor of the Parade of Homes, had a duty to protect invitees from any unreasonable risk of harm that could arise from a defective condition which was or should have been known by the HBA. They further asserted that the HBA had a duty to inspect the premises where Mrs. Todd was injured, and that it should have found the unfinished room above the garage unsuitable for showing and locked the door to protect invitees from potential harm from the unfinished stairway.

In its answer to the amended and supplemental petition, the HBA and its insurer reiterated all defenses and affirmative defenses previously pled. They admitted that the builders complete a participation agreement in connection with their participation in the Parade of Homes. As to paragraphs five and seven, they denied the allegations except to admit that |fithe “Terms and Conditions” of the participation agreement were the best evidence of their contents.

On March 8, 2012, the HBA and its insurer filed a motion for summary judgment. They argued that since the HBA neither (1) created the alleged dangerous condition nor (2) owned, leased, possessed or otherwise maintained custody or control of the premises where Mrs. Todd was injured, the premises liability claims against it must be dismissed with prejudice. Also, they asserted that the general negligence claim against them must likewise be dismissed. They cited Clark-Taylor v. City of New Orleans, 2004-0511 (La.App. 4th Cir.12/1/04), 891 So.2d 22, wherein summary judgment was granted in favor of an organization that conducted a walking tour in New Orleans in a suit brought by a person who fell on the tour after stepping in an uncovered meter box.

In support of the motion, the HBA and its insurer submitted excerpts from Mrs. Todd’s deposition; she said that she and her husband stopped to tour the house after seeing an open house sign. She did not recall talking to anyone who appeared to be hosting or sponsoring the event. She also said that she and her husband did not purchase tickets to tour the house. After ascending to view what turned out to be an unfinished room over the garage, Mrs. Todd said she descended the stairs leading down to the garage and fell at the bottom step.

Also submitted in support of the motion for summary judgment was an affidavit from Dixey Robertson, the HBA’s executive officer. According to Ms. Robertson, the individual contractors who participate in the Parade | fiof Homes are responsible for constructing high-quality homes and supervising their individual open houses. She stated that the contractor maintains sole custody of his house during the Parade of Homes and that no employee of the HBA is on site at the houses during the Parade of Homes. Among the HBA’s responsibilities, she asserted, were inviting the participation of local builders, advertising, creating guidebooks, and sending door greeters (employed by Jean Simpson) to sell the admission tickets. One of the requirements for a house to be included on the tour is that it must be ready for occupancy and showing prior to the date of the Parade of Homes. As to inspection, Ms. Robertson stated:

10. If the proposed house has already passed a city inspection, the HBA deems the house ready for occupancy and showing. In doing so, the HBA relies upon the conclusion of the appropriate city inspection official that the proposed house is complete and safe for occupancy, as well as the expertise of the individual contractor who built the home.
14. Because the Robert Angel home had passed all of the required inspections (electrical, plumbing, mechanical, and final home) prior to the 2008 Parade of Homes, the HBA deemed the home to be ready for occupancy and showing.

Finally, to prove that it did not construct, own, lease, possess, or otherwise maintain custody or control the house in question, the movants attached the requests for admission to the builder. Because the builder failed to respond to these requests for admission, they argued that all 17matters are admitted under La. C.C.P. art. 1467. The motion was set for argument on April 16, 2012.

On April 13, 2012, the Todds filed an opposition to the motion for summary judgment. They stated that this was not a premises liability case. Instead they argued that it is a “straight forward tort action” based on La. C.C. art. 2315 and a duty/risk analysis. They cited Pamplin v. Bossier Parish Cmty. Coll., 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 2004-2310 (La.1/14/05), 889 So.2d 266, and Birdsong v. Hirsch Mem’l Coliseum, 42,316 (La.App.2d Cir.8/22/07), 963 So.2d 1095, for the apparent proposition that a duty is owed under La. C.C. art. 2315 to protect invitees/patrons from an unreasonable harm arising from a defective condition. Accordingly, the Todds asserted that the HBA should have inspected the house, discovered the unfinished landing in the garage area, and locked the door leading to the unfinished stairwell.

In support of their opposition, the Todds submitted an affidavit from Mr. Todd in which he recounted his version of the accident. Among other things, he stated that a woman standing by the front door identified herself as a hostess for the Parade of Homes. The Todds also attached eight exhibits which they contended created a duty on the HBA’s part. These included the Parade of Homes guidebooks for 2007, 2008, 2009 and 2011, |Rand excerpts from the guidebooks. Additionally, they provided the 2008 Parade of Homes participation agreement. The terms and conditions page for this agreement contained 14 numbered paragraphs, each of which was initialed by the builder. Of particular relevance are the following paragraphs:

2) I agree to protect, indemnify and hold harmless the HBA, the Committee, the officers, directors, agents and employees from and against any loss, claim or damages sustained by said parties as a result of personal injury cause [sic] to any person by any defect or dangerous condition in the Parade house or site.
4) My parade home must be completed and ready for inspection by 5 p.m., May 22, 2008. The Committee reserves the right to exclude my home from the Parade and I understand that no refunds will be issued. No Exceptions.
5) If my house is inspected and deemed incomplete I will ensure that this house will not be open to the public for any reason during Parade hours. FAILURE TO COMPLY COULD RESULT IN THE SUSPENSION OF MY HBA MEMBERSHIP AND/OR JEOPARDIZE THE ELIGIBILITY OF ANY FUTURE PARADE OF HOMES ENTRIES.
6) I agree to furnish the HBA with a copy of final inspection certificates issued by the appropriate inspection agency no later than 5 p.m., May 22, 2008.
13) I agree to support the admission charge of $5.00. I will provide my own door greeter or contract with the HBA to provide a greeter for an additional fee of $125 each weekend.

The plaintiffs stated that these exhibits were provided by the HBA in discovery.

The HBA and its insurer filed a motion to strike all of the Todds’ exhibits except Mr. Todd’s affidavit. They argued that these items were not 19competent evidence for summary judgment because they were not sworn, verified or attached to an affidavit.

The motions were argued on April 16, 2012. The trial court granted the motion to strike the eight exhibits attached to the opposition to the motion for summary judgment. Due to the tardiness of filing the opposition, the trial court denied the plaintiffs’ counsel the opportunity to present oral arguments. After hearing argument by the movants, the trial court granted the motion for summary judgment. In so ruling, the court stated that it was questionable whether the HBA owed a duty but, assuming that it did, there was no showing of a breach of that duty.

On May 7, 2012, the trial court signed a judgment granting the motion for summary judgment and dismissing the plaintiffs’ claims against the HBA and its insurer with prejudice.

The plaintiffs appealed.

MOTION TO STRIKE

Law

Summary judgment evidence includes the pleadings, depositions, answers to interrogatories, and affidavits. La. C.C.P. art. 966(B). Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached to the affidavit or served with it. La. C.C.P. art. 967(A).

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact. La. C.C. art. 1853.

|inThe well-settled jurisprudence establishes that an admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. A judicial confession has the effect of waiving evidence as to the subject of the admission. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003 (La.12/3/03), 861 So.2d 156. A declaration made by a party’s attorney or mandatary has the same effect as one made by the party himself. La. C.C. art. 1853, comment (b).

Discussion

In its answer to the Todds’ original petition and in its third-party demand, the HBA admitted that it entered into a participation agreement with the builder. Paragraphs five and seven of the Todds’ amended and supplemental petition paraphrased the relevant terms and conditions contained in that participation agreement. In its answer to the amended and supplemental petition, the HBA denied the allegations except to admit that the “Terms and Conditions” of the participation agreement were the best evidence of their contents. This “Terms and Conditions” page of the participation agreement was attached to the Todds’ opposition to the HBA’s motion for summary judgment. Counsel for the Todds stated in the opposition that the document was obtained from the HBA in discovery.

We believe that the HBA’s statements in its pleadings that it was a party to the participation agreement and that the “Terms and Conditions” page of the agreement itself was the best evidence of its contents amounts to a judicial admission of this document, which it provided to the Todds in discovery. Therefore, insofar as it struck the “Terms and Conditions” page | uas an exhibit, the trial court abused its discretion. This document may be considered in addressing the HBA’s motion for summary judgment.

SUMMARY JUDGMENT

Law

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, supra; Loftus v. Kuyper, 46,961 (La.App.2d Cir.3/14/12), 87 So.3d 963.

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 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.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07), 951 So.2d 1058. At that point, the party who bears the burden of persuasion at trial, usually the plaintiff, must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, supra; Loftus v. Kuyper, supra.

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially ensure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Duckett v. Grumbling State Univ., 47,082 (La.App.2d Cir.4/18/12), 92 So.3d 478, writ denied, 2012-1130 (La.9/14/12), 99 So.3d 32.

Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party [ ^opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Ricks v. City of Monroe, 44,811 (La.App.2d Cir.12/9/09), 26 So.3d 858, writ denied, 2010-0391 (La.5/28/10), 36 So.3d 247.

A tort remedy is broadly available under La. C.C. art. 2315(A) (“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”). Christy v. McCalla, 2011-0366 (La.12/6/11), 79 So.3d 293.

Louisiana courts have adopted a duty-risk analysis in determining whether liability exists under the facts of a particular case. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Christy v. McCalla, supra.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Ponceti v. First Lake Properties, Inc., 2011-2711 (La.7/2/12), 93 So.3d 1251. Whether a duty is owed is a question of law. Ponceti v. First Lake Properties, Inc., supra. We ask whether there is any law-whether statutory, jurisprudential, or arising from general principles of fault-to support the plaintiffs claim. Cavet v. Louisiana Extended Care Hosp., 47,141 (La.App.2d Cir.5/16/12), 92 So.3d 1122. Deciding 114whether to impose a duty requires the court to make a policy decision in light of the unique facts and circumstances of each case. Cavet v. Louisiana Extended Care Hosp., supra.

Whether the defendant breached that duty is a question of fact. Mixon v. Daris, 31,725 (La.App.2d Cir.3/31/99), 732 So.2d 628.

Discussion

In ruling on the HBA’s motion for summary judgment, the trial court stated that it was questionable whether the HBA even owed a duty to an invitee like Mrs. Todd. However, assuming arguendo that it did have such a duty, the trial court concluded that there was no showing made that the HBA breached that duty. To the contrary, the trial court indicated that the HBA took steps to avoid any unreasonable risk of harm by relying upon the inspections of the houses conducted by city officials.

In Pamplin v. Bossier Parish Cmty. Coll., supra, a student at Bossier Parish Community College (“BPCC”) was injured when she slipped on a metal plate covering a drain area between the concrete portions of a campus sidewalk. Suit was filed against BPCC; the Board of Supervisors of Community and Technical Colleges (hereinafter “the State”) answered on behalf of BPCC. The State’s answer stated that the BPCC campus was leased from the Bossier Parish School Board. In determining whether the State owed a duty to the plaintiff student, this court conducted a duty-risk analysis under La. C.C. art. 2315. It considered two important relationships. First, regardless of whether the State had actual garde of the sidewalk (a prerequisite for liability under La. C.C. art. 2317.1), it clearly had [ -^possession and use of the sidewalks for more than two years before the plaintiffs accident. Second, the State had a relationship with its students who were invited to use its campus and the sidewalk access to its facilities. This court found that under these circumstances, the State owed a duty to its students under La. C.C. art. 2315 which was comparable to the duty of a custodian under La. C.C. art. 2317.1. That duty required it to act to protect its students from any unreasonable risk of harm that could arise from a defective condition on the campus that was known to the State.

In Birdsong v. Hirsch Mem’l Coliseum, supra, an ice show attendee was injured when she slipped on a wet floor at the coliseum where the show was held. Suit was filed against the coliseum and the promoter of the show. The promoter filed a cross-claim against the coliseum based upon the contents of the lease between them which obliged the coliseum to clean the premises during and prior to each performance. The trial court sustained the promoter’s peremptory exception of no cause of action. This court reversed, finding that the attendee’s allegations stated a cause of action against the promoter. Citing the Pamplin case, we found that the inquiry into the promoter’s responsibility for the attendee’s accident did not end upon a finding of retained garde in the lessor/coliseum because of the promoter’s “duty of care owed to its patrons which must be further considered under the La. C.C. art. 2315 and our general law of negligence.” We further stated:

[The promoter’s] duty was to act to protect its patrons from any unreasonable risk of harm, such as the alleged condensation problem, that was caused by a defective condition in the building known to [the promoter]. The party with garde may be liable for its connection to the defect because of its ownership and possession. Regardless of that garde, [the promoter] may be liable for its knowledge of the defective 11ficondition of the premises with its solicitation of patrons to the allegedly defective setting.

In the instant case, there is no lease to which the HBA was a party. Nor did the HBA have possession or garde of the house-. However, it was a sponsor who organized and advertised an event whereby it enticed invitees to view newly constructed houses for a fee. In her affidavit, Ms. Robertson, the executive officer of the HBA, stated that it was responsible for “(1) inviting local builders to participate; (2) selling [ads] in and creating the Guidebook; (3) advertising the Parade of Homes in the local media; (4) printing and distributing directional signs; and (5) sending door greeters (employed by Jean Simpson) to sell the $5 admission tickets.” Thus, it may be said that the HBA was a sponsor soliciting patrons to a potentially defective setting. As such, it had a duty to exercise reasonable care for the safety of its patrons.

We distinguish Clark-Taylor v. City of New Orleans, supra, wherein summary judgment was granted in favor of a tour organizer, from the instant case. There, a person on a walking tour in New Orleans was injured when she stepped in an uncovered meter box on a public sidewalk. The persons participating in the outing set up by the tour organizer were in no greater peril from this obvious condition than the rest of the walking public traversing that particular public sidewalk. Here, Mrs. Todd, an invitee to the Parade of Homes tour, was allegedly injured as the result of a defect in the very thing the HBA solicited her to view.

We find that the HBA had a legal duty under La. C.C. art. 2815 to take reasonable precautions to safeguard invitees who attended its Parade of 117Homes event. Whether the HBA breached that duty is a question of fact. We conclude that there is a disputed issue of material fact on this subject which is sufficient to defeat summary judgment. Paragraph four of the “Terms and Conditions” page of the participation agreement provides a right of inspection and exclusion to the Parade of Homes Committee. This appears to be separate from the city inspections mentioned in paragraph six. The affidavit of the HBA representative states that the house at issue passed its city inspections. There is no indication that the house passed the Committee’s inspection to determine whether the house was “completed.”

Since the condition of the house and its suitability to be included in the Parade of Homes is a material fact in the instant suit, we find that summary judgment is not appropriate upon the showing made.

CONCLUSION

We reverse the motion to strike as to the “Terms and Conditions” page of the participation agreement. The ruling of the trial court granting summary judgment in favor of the HBA and its insurer is reversed. The matter is remanded to the trial court for further proceedings.

Costs of this appeal are assessed to the Home Builders Association of Northwest Louisiana and Ohio Casualty Insurance Company.

REVERSED AND REMANDED.

      . The requests for admission include admitting that the house had passed all of its final city (electrical, plumbing, mechanical, building) inspections; that the house was completed more than seven months before the 2008 Parade of Homes; that an employee of the builder prepared the house for inclusion in the Parade of Homes and was present at the open house; that the builder himself was present at the house on the date of injury; and that the builder considered that he and his company had sole care, custody, control and possession of the house.

      . In their answer to the amended and supplemental petition, the builder and its insurer specifically denied that the house had any unfinished room or stairway or any room that was "unsuitable for showing.”

      . See and compare dicta pertaining to consideration on a motion for summary judgment of a recorded statement provided in discovery in Harris v. Dunn, 45,619 (La.App.2d Cir.9/22/10), 48 So.3d 367.


author: GENOVESE, Judge. COOKS, J.,

text:
    Ernest ROMERO v. FLOWERS BAKING COMPANY OF LAFAYETTE, LLC.
    No. 12-1466.
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2013.
    Rehearing Denied June 19, 2013.

      Michael B. Miller, Jacqueline B. Ma-necke, Crowley, LA, for Plaintiff/Appellant, Ernest Romero.
    Robert J. May, The Whiteley Law Firm, New Orleans, LA, for Defendant/Appellee, Flowers Baking Company of Lafayette, LLC.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

|TIn this workers’ compensation case, Claimant, Ernest Romero, appeals the judgment of the Office of Workers’ Compensation in favor of his employer, Flowers Baking Company of Lafayette, LLC (Flowers), denying his claims for certain penalties. He also appeals the amount awarded for attorney fees and seeks an additional award of attorney fees for work done on appeal. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Romero was injured on May 30, 2010, while in the course and scope of his employment with Flowers. On April 13, 2011, Mr. Romero filed a Disputed Claim for Compensation alleging that Flowers: (1) failed to timely pay indemnity benefits for five different pay periods; (2) denied a doctor-recommended electromyo-gram/nerve conduction study (EMG/NCS); (3) failed to properly pay mileage expenses incurred in connection with medical treatment and the filling of prescriptions; and (4) failed to timely pay a medical bill for treatment rendered by Dr. John E. Cobb. Flowers denied improperly handling Mr. Romero’s claims and maintained that it had, in fact, timely approved the EMG/ NCS.

Following trial on April 3, 2012, the Workers’ Compensation Judge (WCJ) awarded Mr. Romero: (1) penalties in the amount of $950.00 for Flowers’ failure to timely pay indemnity benefits for three different pay periods; (2) penalties in the amount of $4,000.00 for failure to timely pay mileage reimbursements; and (3) attorney fees in the amount of $5,000.00. The WCJ denied Mr. Romero’s request for penalties for his claims that Flowers denied the doctor-recommended EMG/NCS and failed to timely pay a medical bill for treatment rendered by Dr. Cobb. A judgment was signed on June 18, 2012. Mr. Romero appeals.

| .ASSIGNMENTS OF ERROR

In his appeal, Mr. Romero asserts four assignments of error:

1.) The [WCJ] legally erred in relying upon incompetent hearsay evidence contained in Defendant's] Exhibits 11, 20, and 22.
2.) The [WCJ] erred in denying a penalty under La.R.S. 23:1201(F) for [Flowers’] denial of the EMG testing of Mr. Romero’s upper and lower extremities on October 12, 2011.
3.) The [WCJ] erred in denying a penalty under La.R.S. 23:1201(F) for [Flowers’] late payment of Dr. Cobb’s bill.
4.) The [WCJ] erred in only awarding $5,000.00 in attorney[ ] fees.

Mr. Romero also seeks an additional award of attorney fees for work done on appeal.

LAW AND DISCUSSION

[F]aetual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Poissenot v. St. Bernard Parish Sheriff's Office, 09-2793, p. 6 (La.1/9/11), 56 So.3d 170, 174.

First Assignment of Error

The first assignment of error concerns the admission of evidence. The evidence under consideration relates to the matter raised in Mr. Romero’s second assignment of error — whether the denial of a penalty against Flowers for its alleged failure to timely approve Mr. Romero’s EMG/NCS was error.

| sMr. Romero argues that the WCJ committed legal error by relying upon what he alleges was incompetent evidence in ruling that Flowers had not denied a doctor-recommended EMG/NCS. At trial, Mr. Romero offered Plaintiffs Exhibit 5, a Utilization Review Notice of Denial from Bluegrass Health Network, Inc. (BHN), the utilization review company for Flowers’ workers’ compensation claims. BHN concluded that the EMG/NCS was not medically necessary and, on October 12, 2011, sent notice of its recommendation to Flowers that Mr. Romero’s request for said test be denied. The Utilization Review Notice of Denial from BHN to Flowers is what Mr. Romero alleges equates to a denial of the EMG/NCS by Flowers; and, therefore, Flowers owed penalties due to a violation of La.R.S. 23:1201(F). Flowers refutes that it ever denied the test recommended by Dr. Hodges on September 15, 2011. Flowers contends that it approved the administration of Mr. Romero’s EMG/NCS through Alice Turner, an adjuster with Underwriters Safety and Claims (Underwriters).

At trial, Flowers offered Defendant’s Exhibit 11, its adjuster’s note detailing that on October 25, 2011, forty days after Dr. Hodges requested the EMG/NCS, Ms. Turner called Lafayette Bone and Joint Clinic and advised a member of Dr. Hodges’ staff that the requested EMG/NCS was approved. Flowers also offered into evidence Defendant’s Exhibit 20, correspondence from its counsel to Mr. Romero’s counsel dated February 3, 2012, and Defendant’s Exhibit 22, correspondence from its counsel to Dr. Hodges dated February 27, 2012. According to Flowers, the letters its counsel sent to Mr. Romero’s counsel and to Dr. Hodges were sent in an effort to explain that an approval had been 1.1communicated through Ms. Turner since October 2011, and that Mr. Romero could, and should, submit to an EMG/NCS.

In ruling on the issue of whether of Mr. Romero was entitled to a penalty for Flowers’ denial of the EMG/NCS, the WCJ stated:

The controversy stems from Dr. Hodges’ September 15, 2011 request for the EMG/NCS. The Utilization review recommended that the test be denied, however, [Flowers] did not rely on the utilization review. According to Defendant’s Exhibit 11, titled “Detail Notes;” with a date entered on October 25, 2011, and I’m quoting, “PC to Lafayette Bone & Joint. Spoke with Allie. Approved the EMG/NCS. Requested that they send it through One Call Medical.” This was. done within 60 days of the recommended tests by Dr. Hodges. Being that .penal statutes are strictly eonstrued[,] the [c]ourt denies penalties in regard to, the EMG/NCS.

On appeal, Mr. Romero asserts that the WCJ committed legal error when it relied upon incompetent evidence and “denied a penalty for [Flowers’] denial of EMG testing recommended by Dr. [Ricardo] Leoni and Dr. [Daniel] Hodges by relying upon [Flowers’] adjuster’s claim notes (Defendant[’s] Exhibit 11) and correspondence from counsel for [Flowers] ([Defendant’s] Exhibits 20 and 22)[,] which are hearsay, unreliable!,] and ‘self-serving’ documents.” Thus, Mr. Romero asserts that due to the trial court’s error in relying upon the incompetent evidence, we “must conduct a de novo review • of the competent record evidence, with no deference being given to the judge’s findings of fact.”

Evidentiary standards in workers’ compensation cases are relaxed by comparison to those in ordinary civil actions. Louisiana Revised Statutes 23:1317(A) provides, in pertinent part that “[t]he workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence...

|fiThe relaxed evidentiary rules in workers’ compensation cases were explained by our supreme court in Chaisson v. Cajun Bag & Supply Co., 97-1225, pp. 9-10 (La.3/4/98), 708 So.2d 375, 381 (footnote omitted), as follows:

[Louisiana Revised Statutes] 23:1317 mandates that the hearing officer’s factual findings be based on “competent evidence.” LA.REV.STAT. ANN. 23:1317(A) (West Supp.1997). This legislative mandate is necessary because under the express language of LSA-RS 23:1317, worker’s compensation hearing officers are “not bound by the technical rules of evidence.” Id. In other words, the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. McCORMICK ON EVIDENCE § 352 (4th ed.1992). The legislative requirement that a hearing officer’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the record. Although the Legislature has not defined “competent evidence,” in order to give the relaxed evidentiary standard in LSA-RS 23:1317 effect, it must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. If the hearing officer’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them.

Considering the relaxed rules relative to the WCJ’s admission of evidence, we find that the contents of Defendant’s Exhibits 11, 20, and 22, when scrutinized against the record herein, have a degree of reliability and trustworthiness which makes the WCJ’s consideration thereof reasonable and supported by competent evidence in the record. The adjuster’s notes were entries in a record of regularly conducted business activity. Counsel for Mr. Romero was well aware of the existence of the adjuster’s notes and could have easily subpoenaed her for trial and cross examination or taken her deposition. That was not done.

IsWe do not find that the WCJ abused its discretion by admitting the alleged hearsay evidence. Therefore, contrary to the arguments of Mr. Romero, we do not find any legal error warranting a de novo review of the record. Accordingly, we will apply the legally required manifest error standard of review in assessing the second assignment of error relative to whether the denial of a penalty against Flowers for its alleged failure to timely approve Mr. Romero’s EMG/NCS was error.

Second Assignment of Error

We find it noteworthy that, at trial, Mr. Romero argued he was entitled .to a penalty based on Flowers’ failure to timely approve the EMG/NCS recommended by Dr. Hodges; however, on appeal, Mr. Romero argues he is entitled to a penalty based on Flowers’ failure to timely approve the EMG/NCS recommended by Dr. Leoni, purportedly made prior to Dr. Hodges’ recommendation. However, we find no evidence in the record that Flowers was ever told of a request for an EMG/NCS from Dr. Leoni; thus, we find this argument unfounded.

The record does not support Mr. Romero’s claim that the WCJ’s denial of a penalty against Flowers for its alleged failure to timely approve Mr. Romero’s EMG/NCS was erroneous. Mr. Romero improperly relied upon the Utilization Review Notice of Denial from BHN as being a denial by Flowers. However, Flowers sufficiently refuted ever denying the EMG/NCS through its evidence presented to the WCJ. Despite having been advised by BHN to deny the EMG/NCS, the record establishes that an approval of the EMG/ NCS was communicated to Dr. Hodges less than sixty days after receiving a request for said test. Therefore, there was no violation of La.R.S. 23:1201(F). We find the WCJ |7was not manifestly erroneous or clearly wrong in denying a penalty relative to the EMG/NCS. This assignment of error is without merit.

Third Assignment of Error

Mr. Romero alleges that Flowers violated La.R.S. 23:1201(E) by failing to timely pay a medical bill for treatment rendered by Dr. Cobb. Mr. Romero asserts that the WCJ erred in not awarding a penalty as permitted by La.R.S. 23:1201(F).

Louisiana Revised Statutes Article 23:1201(E) states: “Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” Louisiana Revised Statutes Article 23:1201(F) concerns Flowers’ failure to pay a medical bill timely, stating, in relevant part:

[F]ailure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.

According to Mr. Romero, Dr. Cobb rendered medical treatment to him on August 16, 2010; however, Flowers did not pay the claim until February 21, 2012. For this, Mr. Romero argues that the WCJ’s denial of a penalty against Flowers for its alleged failure to timely pay Dr. Cobb’s medical bill was error. We disagree.

The sole piece of evidence offered by Mr. Romero relative to this issue is a claim form indicating the bill was submitted for payment by Dr. Cobb’s office on January 27, 2011. The record supports the WCJ’s finding that there was no proof that Flowers failed to pay this bill timely. Without any evidence that this bill was | ^presented any earlier, we cannot conclude that Flowers failed to timely pay Dr. Cobb’s bill within sixty days of its receipt. We find no error in the WCJ’s determination that Flowers was not liable for a penalty and attorney fees relative to Dr. Cobb’s bill pursuant to La.R.S. 23:1201(E).

Fourth Assignment of Error

Mr. Romero appeals the sufficiency of the attorney fees awarded. The WCJ found that Mr. Romero was entitled to $5,000.00; whereas, Mr. Romero argues that he should have been awarded $8,400.00.

With regard to attorney fee awards, this court has stated:

The reasonableness of an attorney fee award is based on “the degree of skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff, and the amount of time devoted to the case.” Naquin v. Uniroyal Inc., 405 So.2d 525, 528 (La.1981); see also Cormier v. State, Dep’t of Wildlife and Fisheries, 07-642, pp. 26-27 (La.App. 3 Cir. 11/21/07), 970 So.2d 1216, 1232, writ denied, 07-2466 (La.2/15/08), 976 So.2d 186 (quoting Lambert v. Brookshire Grocery Co., 06-1001, pp. 21-22 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 933).

Williams v. Tioga Manor Nursing Home, 09-417, pp. 26-27 (La.App. 3 Cir. 11/18/09), 24 So.3d 970, 986, writ denied, 10-298 (La.4/9/10), 31 So.3d 389.

In its reasons for judgment, the WCJ stated: “Considering the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the plaintiff and the amount of time devoted to the case, the Court sets a reasonable attorney fee in the amount of [f]ive [tjhousand [djollars.”

“ ‘[Tjhe WCJ’s award of attorney fees, that is the actual amount awarded, is entitled to great discretion and will not be disturbed absent an abuse of that discretion.’” Bihm v. Unit Drilling Co., 12-569, p. 7 (La.App. 3 Cir. 11/7/12), 102 So.3d 1058, 1062 (quoting Minor v. J & J Carpet, Inc., 10-45, p. 11 (La.App. 3 Cir. 6/2/10), 40 So.3d 434, 441-42). Though arguably on the low side, we find no abuse of discretion in the WCJ’s award of $5,000.00 in attorney fees.

Additional Attorney Fees for Appeal

Mr. Romero also asserts that he is entitled to an additional award of attorney fees for work done on appeal. Considering the fact that we have determined that Mr. Romero’s assignments of error are without merit, we decline to award additional attorney fees for this unsuccessful appeal. Duplechain v. Town of Church Point, 12-475, 12-476 (La.App. 3 Cir. 12/19/12), 107 So.3d 800.

DECREE

Accordingly, for the foregoing reasons, the June 18, 2011 judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Appellant, Ernest Romero.

AFFIRMED.

COOKS, J., dissents in part and assigns written reasons.

COOKS, J.,

dissenting in part.

|]I dissent from the portion of the majority opinion denying penalties and attorney fees related to the EMG testing. I find the WCJ improperly admitted incompetent evidence to hold that the defendant had not denied the doctor recommended EMG. The WCJ clearly relied upon the document allegedly prepared by defendant’s adjuster and the later correspondence from defendant’s counsel in denying the claim for penalties and attorney fees related to the EMG testing. The majority justifies the admission of these notes into evidence on two grounds: (1) that in workers’ compensation cases there are relaxed rules of evidence, and (2) the claimant could have subpoenaed and deposed the adjuster if it desired, but did not.

First, I note while there are “relaxed” rules of evidence, the law still requires that all findings of fact be based upon competent evidence. La.R.S. 23:1317(A) states in pertinent part:

... the workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence

In the present case the Defendant’s adjuster was not present to testify concerning the document, the content of which was hotly contested. The statements were not made under oath, nor did claimant’s counsel have the opportunity to cross-examine Defendant’s adjuster concerning these statements. Further, as claimant notes, ^Defendant handpicked and introduced only the portion of the notes that were beneficial to it. Further, counsel for defendant produced a statement written by himself that alleges his client did not deny the EMG. Clearly, these admissions are clear examples of self-serving hearsay.

The majority writes that when “scrutinized against the record herein, [the statements in question here] have a degree of reliability and trustworthiness which makes the WCJ’s consideration thereof reasonable and supported by competent evidence in the record.” I disagree. There was clear evidence in the record that the EMG had not been approved by defendant. Dr. Hodges indicated in his report that “[claimant] has yet to be approved for his EMG/NCVs of the upper and lower extremities.” Moreover, the testing was denied via a Utilization Review, and claimant testified at trial, he still had not been approved to have the testing done. Thus, I do not agree with the majority’s conclusion that the statements in question were supported by the record.

I also find it categorically wrong that the majority would put the onus upon the claimant to bring the adjuster to trial or incur the expense to take his deposition. As noted at oral argument, the adjuster was located in Tennessee, and it would be unjust to require claimant to endure any expense in deposing the adjuster or making him available for trial. Furthermore, the burden was on Defendant, who relied on these notes, to make the adjuster available for the claimant. Defendant argues claimant was not prejudiced and could have subpoenaed the adjuster to trial or taken the adjuster’s deposition. It was not Mr. Romero’s burden to present “competent” evidence of compliance with the worker’s compensation act. Once Mr. Romero proved the testing was owed, Defendant bore the burden of proving by competent evidence the testing was approved within sixty days of receipt or that they had a reasonable basis for not approving the test. Defendant did not bother to call any representative or custodian [¡¡from the company to establish the authenticity of the alleged business records. The documents are presented by its attorney — that is simply not enough, especially when claimant was contesting the truthfulness of the statements made in the document.

Therefore, I find the WCJ legally erred in relying on this incompetent hearsay evidence as a basis for its denial of penalties and attorney fees related to the EMG testing.

      . Mr. Romero’s workers’ compensation claim was administered on behalf of Flowers by Underwriters.

      . At the April 3, 2012 trial, Mr. Romero testified that he had yet to have the EMG/NCS because Flowers denied said test.