author: WHIPPLE, J. McCLENDON, J.,

text:
    Jason COURTNEY v. FLETCHER TRUCKING.
    No. 2012 CA 0434.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Michael L. Cave, Baton Rouge, LA, for Plaintiff/Appellee, Jason Courtney.
    Craig J. Robichaux, Mandeville, LA, for Defendant/Appellant, Maximum Leisure, LLC.
    Christopher M. Moody, Hammond, LA, for Defendant/Appellee, Richard Fletcher d/b/a Fletcher Trucking.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   WHIPPLE, J.

12Pefendant, Maximum Leisure, LLC (“Maximum Leisure”) appeals the judgment of the Office of Workers’ Compensation (“OWC”), finding that claimant, Jason Courtney, was an employee of Maximum Leisure at the time of his accident and awarding Courtney indemnity benefits, medical expenses, and penalties and attorney’s fees due to Maximum Leisure’s failure to timely pay indemnity and medical benefits. For the following reasons, we affirm in part and amend in part.

FACTS AND PROCEDURAL HISTORY

In 2005, Maximum Leisure, a four-member LLC, purchased property on Chinqua-pin Canal in Maurepas, Louisiana with the intention of developing the land as a subdivision and then selling the lots. Thereafter, Maximum Leisure hired Fletcher Trucking to perform the work necessary to develop the property. On January 2, 2008, Courtney, a laborer for Fletcher Trucking, was shot in the leg while in the process of excavating and moving dirt from one location to another in the subdivision development.

Following his injury, Courtney filed original and amended disputed claims for compensation, averring that at the time of his injury, he was an employee of both Fletcher Trucking and Maximum Leisure and that he had not been paid indemnity or medical benefits for his work-related injury. In response, Maximum Leisure filed exceptions of no cause of action and no right of action, contending that it had no liability to Courtney for workers’ compensation benefits because Maximum Leisure had never employed or compensated Courtney.

IsA hearing on the exceptions was conducted on February 11, 2011, at which Ronald Breeland, the member of Maximum Leisure who was responsible for overseeing the development of the property on Chinquapin Canal, testified before the OWC judge on behalf of Maximum Leisure. Following the hearing, the OWC judge issued written reasons for judgment, finding as fact that Fletcher Trucking, although an independent contractor, was performing excavation work for Maximum Leisure, which was manual labor that constituted an integral part of Maximum Leisure’s principal trade or occupation. The OWC judge further found that Breeland supervised the work at the work site on a daily basis. Thus, the OWC judge ruled that Richard Fletcher d/b/a Fletcher’s Trucking was an employee of Maximum Leisure at the time of Courtney’s accident and, accordingly, that Maximum Leisure had failed to prove that Courtney had no right of action against Maximum Leisure for workers’ compensation benefits. Thereafter, the OWC judge signed an order denying Maximum Leisure’s exceptions.

The matter then proceeded to trial on the merits on May 4, 2011. Following trial, the OWC judge reaffirmed its earlier findings that work performed by Fletcher Trucking employees was manual labor performed for Maximum Leisure to develop the land and further that Breeland supervised that work on behalf of Maximum Leisure. Thus, the OWC judge concluded that Maximum Leisure was Courtney’s borrowing employer pursuant to LSA-R.S. 23:1031(C) and rendered judgment in favor of Courtney ordering Maximum Leisure to pay Courtney indemnity benefits, medical benefits, and penalties and attorney’s fees. From this judgment, Maximum Leisure appeals, listing four assignments of error.

LDISCUSSION

Alleged Erroneous Evidentiary Rulings (Assignment of Error No. 3)

In its third assignment of error, Maximum Leisure avers that the OWC judge made various erroneous evidentiary rulings. We address this assignment of error first given that an erroneous evidentiary ruling may affect the standard of review on appeal. Penton v. City of Hammond Police Department, 2007-2852 (La.App. 1st Cir.5/2/08), 991 So.2d 91, 95.

With regard to the first alleged erroneous evidentiary ruling, Maximum Leisure contends that the OWC judge, when ruling on the merits following trial, erred in considering testimony offered in support of Maximum Leisure’s exceptions. As stated above, at the hearing on the exceptions filed by Maximum Leisure, Breeland, the member of Maximum Leisure responsible for overseeing the development of the property, testified. According to the OWC judge’s written reasons in ruling on the exceptions, Breeland admitted at the hearing that the work done by Richard Fletcher and his crew was excavation work and that he supervised the work on a daily basis at the work site.

However, at the trial on the merits, Maximum Leisure designated Monte Holland, another member of Maximum Leisure, as the corporate representative. Holland testified that he had been voted managing member on the morning of trial. Contrary to Breeland’s earlier testimony, Holland denied that Fletcher Trucking was performing manual labor on behalf of Maximum Leisure at the time of Courtney’s accident, asserting that Maximum Leisure had completed the development of the property by | sthe end of 2006 and, from that point forward, was only selling lots. On appeal, Maximum Leisure asserts that the OWC judge erred in considering the earlier testimony of Breeland, apparently seeking to have only the testimony of Holland considered on the issue of its liability to Courtney for workers’ compensation benefits.

Citing Twenty-First Judicial District Public Defender Board v. Clark, 2008-0222 (La.App. 1st Cir.12/23/08), 2008 WL 5377689(unpublished), Maximum Leisure first contends that evidence may not be considered in ruling on an exception of no cause of action and, thus, that “any such testimony is irrelevant.” However, as stated above, in addition to its exception of no cause of action, Maximum Leisure filed an exception of no right of action. Evidence supporting or controverting an objection of no right of action is admissible for the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist. OXY USA Inc. v. Quintana Production Company, 2011-0047 (La.App. 1st Cir.10/19/11), 79 So.3d 366, 376, writ denied, 2012-0024 (La.3/2/12), 84 So.3d 536. In support of its exception of no right of action, Maximum Leisure asserted that Courtney had no right to proceed against Maximum Leisure for workers’ compensation benefits because Maximum Leisure had never employed or compensated Courtney. As evidenced by the OWC judge’s written reasons, the OWC judge considered the testimony of Bree-land in ruling on Maximum Leisure’s exception of no right of action. Moreover, we note that the record before us indicates that Maximum Leisure was the party that offered the testimony of | rcBreeland in support of its exceptions, testimony which it now seeks to have ignored. Thus, we find no merit to the assertion that “any such testimony is irrelevant.”

Additionally, we note that through its exceptions, Maximum Leisure placed the issue of its potential liability to Courtney before the OWC judge, asserting that it was not Courtney’s employer. In denying those exceptions, the OWC judge specifically ruled that Fletcher Trucking was performing manual labor that was an integral part of Maximum Leisure’s principal trade or occupation, a ruling that would render Maximum Leisure liable for workers’ compensation benefits under the “manual labor” exception found in LSA-R.S. 23:1021(7), and, further, that Breeland supervised the work on a daily basis, a ruling supporting the conclusion that Maximum Leisure was Courtney’s borrowing employer pursuant to LSA-R.S. 23:1031(C). While a trial court may change its ruling on an interlocutory matter, such as the denial of an exception, when it timely but later determines error of judgment based upon the matter as submitted or upon subsequent disclosures in the record, VaSalle v. Wal-Mart Stores, Inc., 2001-0462 (La.11/28/01), 801 So.2d 331, 334-335, we find no merit to Maximum Leisure’s apparent assertion that in reconsidering the issue, the OWC judge was required to ignore the testimony presented at the hearing on the exceptions.

Furthermore, with regard to Maximum Leisure’s contention that Breeland’s testimony should not be considered because his testimony is not contained in the record, we note that as the appellant, Maximum Leisure is charged with the responsibility of completeness of the record for review, and any inadequacy of the record is imputable to it as appellant. Moreover, the appellate court presumes that the lower court’s ruling is correct if an inadequate record is transmitted. Luper v. Wal-Mart Stores, 2002-0806 (La.App.7 1st Cir.3/28/03), 844 So.2d 329, 333 n. 3. Accordingly, we find no merit to Maximum Leisure’s assertions that the OWC judge erred in considering the testimony of Breeland in ruling on the issue of Maximum Leisure’s potential liability to Courtney as his “employer” for purposes of workers’ compensation benefits.

Maximum Leisure further alleges that the OWC judge erred as a matter of law and made evidentiary errors in utilizing Courtney’s testimony regarding the jobs he performed without requiring testimony as to the nature of those jobs and in making a credibility determination in favor of Courtney when his testimony was inconsistent and there was evidence that discredited his testimony. At the outset, we note that neither of these alleged errors constitutes an evidentiary or legal error. Rather, these are essentially challenges to the weight assigned by the OWC judge to certain testimony and the credibility determinations made. The OWC judge’s determinations as to the weight to assign testimony and evidence and as to whether certain testimony is credible are factual determinations that will not be disturbed on review in the absence of manifest error. Connor v. Family Dollar Store, 2009-1537 (La.App. 1st Cir.3/26/10), 36 So.3d 339, 348, writ denied, 2010-0959 (La.6/25/10), 38 So.3d 344. Moreover, in considering Maximum Leisure’s first and fourth assignments of error below, through which it challenges the findings that it was Courtney’s borrowing employer and that Courtney was engaged in manual labor at the time of the accident, we find no error in the OWC’s judge’s consideration of the testimony presented or credibility determinations.

Is “Manual Labor” Exception (Assignment of Error No. 4)

In this assignment of error, Maximum Leisure contends that the OWC judge erred in finding Courtney was entitled to benefits on the basis that he was performing “manual labor” which was an integral part of Maximum Leisure’s trade, where the work being performed by Courtney was truck driving, which is not considered “manual labor.”

Independent contractors are excluded from workers’ compensation coverage “unless a substantial part of the work time ... is spent in manual labor.” LSA-R.S. 23:1021(7). Fleniken v. Entergy Corporation, 2000-1824, 2000-1825 (La. App. 1st Cir.2/16/01), 780 So.2d 1175, 1190, writs denied, 2001-1268, 2001-1305, 2001-1317 (La.6/15/01), 793 So.2d 1250, 1253, 1254. Labor is deemed “manual” if the physical elements predominate over the mental elements in performing that labor. Moreover, “substantial part” is liberally construed and is not determined by the use of mathematics. McGrew v. Quality Camers, Inc., 2011-440 (La.App. 3rd Cir.10/5/11), 74 So.3d 1253, 1256. It is the substance of the relationship and not the label used which determines whether an independent contractor recovers workers’ compensation benefits. Steinfelds v. Villarubia, 2010-0975 (La.App. 4th Cir.12/15/10), 53 So.3d 1275, 1281, writ not considered, 2011-0137 (La.3/4/11), 58 So.3d 466.

By Acts 2004, No. 188, § 1, the legislature amended the definition of “independent contractor” and the related “manual labor” exception to specifically provide that the operation of a truck tractor or truck tractor trailer is not “manual labor” for purposes of entitlement to workers’ compensation benefits. Nonetheless, while there are cases where truck drivers will not fit into the “manual labor” exception of LSA-R.S. 23:1021(7), whether a substantial part of one’s job involves manual labor is addressed on a case-by-case, not a job-by-job basis. McGrew, 74 So.3d at 1257.

In the instant case, Courtney testified that the activities he performed on behalf of Maximum Leisure involved hauling dirt, clearing land, laying asphalt roads, building forms, wrecking forms, bulkheading, using chainsaws to remove wood, and welding, among other things. On the day of his accident, he was digging dirt from one location, loading it into a dump truck, hauling the dirt to the end of the road on which he was working, and dumping it. When he was driving the dump truck during this excavation project, he had to stop to remove a limb from the passenger-side mirror. As Courtney attempted to remove the limb, he was shot in the leg. Thus, while Courtney had been in the process of driving the dump truck shortly before he was shot, we find no error in the OWC’s judge’s conclusion that a substantial part of the job he was performing clearly involved manual labor. See McGrew, 74 So.3d at 1256-1257. This argument also lacks merit.

Borrowing Employer (Assignment of Error No. 1)

As stated above, in addition to finding that Courtney was entitled to workers’ compensation benefits from Maximum Leisure under the “manual labor” exception, the OWC judge found that Maximum Leisure was Courtney’s borrowing employer. In this assignment of error, Maximum Leisure asserts that the OWC judge erred in finding that it was Courtney’s “borrowing employer,” contending that on the date of Courtney’s accident, Maximum Leisure was not engaged in any on-site activity other than the sale of the remaining lots and suggesting that Courtney was actually performing services that day for another company owned by Breeland.

Pursuant to LSA-R.S. 23:1031(0, a borrowing or special employer can be held liable for compensation benefits when the employee is under the control and direction of the borrowing employer in the performance of the work. While there is no fixed test, the factors to be considered in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer’s work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions and place for the performance of the work; the length of employment; and the employee’s acquiescence in a new work situation. Mejia v. Boykin Brothers, Inc., 2010-0118 (La.App. 1st Cir.9/10/10), 52 So.3d 82, 84.

In support of its contention that Maximum Leisure was not engaged in any on-site activity other than the sale of the remaining lots at the time of | n Courtney’s injury, Maximum Leisure relies on the testimony of Holland, who testified at trial that Maximum Leisure had completed the development of the property by the end of 2006. However, this testimony was contradicted by invoices from Fletcher Trucking from early 2008, wherein Maximum Leisure was billed for work performed on its behalf by Fletcher Trucking, as well as by the testimony of Courtney that the work he was performing was on behalf of Maximum Leisure. Moreover, Holland’s testimony was inconsistent with the OWC judge’s earlier finding, based on Bree-land’s testimony at the hearing on the exceptions, that Maximum Leisure through Breeland exercised control of the work at the jobsite on a daily basis, a finding that the OWC judge reaffirmed following trial on the merits. Accordingly, we find no merit to this argument.

Additionally, with regard to its assertion that Courtney was actually performing services that day for another company owned by Breeland, the OWC judge was presented with conflicting testimony on this issue, and we cannot conclude that the OWC judge’s choice to credit the testimony of certain witnesses and disregard the testimony of others was erroneous. See Connor, 36 So.3d at 348. This argument likewise is without merit.

Liability of Fletcher as Courtney’s Direct Employer (Assignment of Error No. 2)

In this assignment of error, Maximum Leisure contends that the OWC judge erred in failing to recognize Richard Fletcher d/b/a Fletcher Trucking as Courtney’s direct employer and, thus, in failing to find Fletcher solidarity liable with Maximum Leisure for Courtney’s workers’ compensation 112beneflts. We agree.

Pursuant to LSA-R.S. 23:1031(0, where an employee was employed by a borrowing, or special, employer at the time of his injury and was under the direction and control of the special employer in the performance of the work, both the special employer and the immediate employer shall be liable jointly and in solido to pay the employee workers’ compensation benefits. Sanchez v. Harbor Construction Co. Inc., 2007-0234 (La.App. 4th Cir.10/3/07), 968 So.2d 783, 787.

In the instant case, Courtney testified that he began working for Fletcher Trucking when he graduated from high school in 2005 and that he was a laborer for the company. Moreover, while Fletcher asserted at trial that Courtney was an independent contractor and not his employee, in his pre-trial statement, he acknowledged that Courtney was an employee of Fletcher Trucking on the day of his injury. Moreover, at trial, he admitted that he paid Courtney’s wages for the four weeks preceding Courtney’s injury from a checking account in the names of Richard Fletcher and Richard Fletcher Trucking. Accordingly, we will amend the judgment herein to award benefits in favor of Courtney against Maximum Leisure and Richard Fletcher d/b/a Fletcher Trucking jointly and in solido.

ANSWER TO APPEAL

Courtney has answered Maximum Leisure’s appeal herein, seeking attorney’s fees for having to defend the appeal, which he asserts is frivolous. Damages for frivolous appeal may be awarded pursuant to LSA-C.C.P. art. 2164; however, because the statute is penal in nature, it must be strictly construed. Dukes v. Sherwood Acres Apartments, 2004-0405 (La.App. 1st Cir.12/30/04), 898 So.2d 416, 418. Appeals are favored, and penalties for frivolous appeal will not be imposed unless they are clearly due. The slightest justification for an appeal precludes damages for frivolous appeal. Dukes, 898 So.2d at 418. Considering the arguments asserted by Maximum Leisure, and specifically noting that this court has granted some of the relief requested, we decline to assess damages for frivolous appeal.

CONCLUSION

For the above and foregoing reasons, the October 11, 2011 judgment of the OWC is amended to cast Maximum Leisure, LLC, and Richard Fletcher d/b/a Fletcher Trucking jointly and in solido for the temporary total benefits, supplemental earnings benefits and medical benefits awarded to Jason Courtney. In all other respects, the judgment is affirmed. Courtney’s answer to the appeal is denied. Costs of this appeal are assessed equally against Maximum Leisure, LLC, and Richard Fletcher, d/b/a Fletcher Trucking.

AMENDED AND, AS AMENDED, AFFIRMED; ANSWER TO APPEAL DENIED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

|! Based on credibility issues presented in this matter, I am constrained to concur with the result reached by the majority.

      . Maximum Leisure also filed an exception of prescription, which was denied by the OWC judge.

      . We likewise address the remaining assignments of error out of order for ease of discussion.

      . Additionally, even if the argument asserted by Maximum Leisure regarding its liability for workers’ compensation benefits would more properly be considered an argument that Courtney had no cause of action against it, rather than no right of action, we further note that while evidence is generally not admissible on the trial of an exception of no cause of action, a court may consider evidence admitted without objection as enlarging the pleadings. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, 756.

      . Courtney’s testimony as to the nature of the jobs he performed and whether those tasks in fact constituted manual labor, was available and subject to cross-examination as deemed fit in these proceedings.

      . Subsection (7) of LSA-R.S. 23:1021 provides as follows:
      "Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting, and disconnecting electrical and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter. [Emphasis added.]

      . The record demonstrates that independent contractor Fletcher Trucking is a sole proprietorship of Mr. Fletcher. However, a finding that Courtney was an employee of Fletcher Trucking rather than an independent contractor himself would not change the result in that Fletcher Trucking performed "manual labor" duties through its employees. See Lu-mar v. Zappe Endeavors, L.L.C., 06-317 (La.App. 5th Cir. 10/31/06), 946 So.2d 188, 191.

      . As noted above, the appellant is charged with the responsibility of completeness of the record for review, and any inadequacy of the record is imputable to the appellant. Because the record does not contain a transcript of the hearing on the exceptions, the appellate court must presume that the lower court’s ruling is correct. Luper, 844 So.2d at 333 n. 3.

      . We decline to amend the judgment to cast Fletcher in judgment in solido for the penalties and attorney's fees awarded because the finding of the OWC was specifically that Maximum Leisure did not reasonably controvert the claim. Moreover, there was no specific finding that Fletcher failed to reasonably controvert the claim.

      . We note that neither Maximum Leisure nor Fletcher appealed the OWC judge's findings as to the type or duration of benefits to which Courtney was entitled.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    In re Dawn G. CHADWICK v. LOUISIANA LICENSED PROFESSIONAL COUNSELORS BOARD OF EXAMINERS.
    No. 2012 CA 0562.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Steven E. Adams, Baton Rouge, LA, for Defendant/Appellant Louisiana Licensed Professional Counselors Board of Examiners.
    Pamela J. Lormand, Todd J. Bialous, New Orleans, LA, for Plaintiff/Appellee Dawn G. Chadwick.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

Un this suit for judicial review of a licensing board decision, the board appeals a judgment modifying its order revoking a license. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Dawn Chadwick, a licensed professional counselor, was appointed by the district court in September of 2006 to perform a custody evaluation in a suit for custody of a minor child where there were allegations of sexual abuse of the minor child by the child’s mother and her boyfriend (now husband). Ms. Chadwick met with the parties on many occasions in 2006 and 2007. Because the mother and her husband were displeased with their sessions with Ms. Chadwick, they purchased a digital recording device and began recording the sessions. A custody evaluation was also performed by another counselor at their request.

On July 23, 2007, the mother and her husband filed a complaint with the Louisiana Professional Counselors Board of Examiners (“the Board”), alleging professional misconduct and violations of the Louisiana Licensed Professional Counselors Code of Ethics by Ms. Chadwick. Specifically, they alleged that she conducted a custody evaluation despite the fact that she already had a counseling relationship with the child and one of the parents, in violation of LAC JeiLX^lOSCAXl), (F)(1), and (H); disclosed | .^confidential information, in violation of LAC 46:LX.2103(A)(1) and (C)(1) and 2105(A)(1), (5), (6), (7), (B)(2), and (D)(2) and (5); engaged in unprofessional behavior when interviewing the child and his mother and her husband for the custody evaluation, in violation of LAC 46:LX.2103(A)(1), J4_(C)(3), and (E)(1) and (2); and made false statements regarding court documents, in violation of LAC 46:LX.2105(D)(1) and 2107(E)(3) and (F)(3).

The Board conducted a hearing on the complaint on July 16, 2010. In addition to reviewing the audiotapes of the sessions recorded by the mother, the Board heard testimony from the mother and her husband; the father; the investigator who looked into the complaints against Ms. Chadwick; Dr. Rafael Salcedo, a forensic psychologist; Alicia Pellegrin, the counsel- or who evaluated the parties after Ms. Chadwick; and from Ms. Chadwick.

After the hearing, the Board made the following findings: Ms. Chadwick had no significant specific training as a custody evaluator or a family therapist; although Ms. Chadwick was hired to perform a custody evaluation, her sessions “clearly went beyond pure ‘evaluation’ and took on the status of a counseling relationship;” Ms. Chadwick’s actions of having the mother and child in the counseling room at the same time was “clearly improper;” Ms. Chadwick’s serving in the dual roles of custody evaluator and sex abuse evaluator was improper; Ms. Chadwick’s interview methods were improper; and although no disciplinary charges were brought on this infraction, it appeared that Ms. Chadwick improperly billed the parties’ insurance for “counseling” while performing a custody evaluation.

The Board concluded that Ms. Chadwick violated the rules applicable to counselors against dual relationships and conflicts of interest because she clearly had a therapeutic as well as evaluator relationship with the parents and child. The Board observed that Ms. Chadwick “has a total lack of awareness of the ethical issues, and does not appear to recognize the difference between her roles as an investigator, evaluator, and therapist.” The Board also found that Ms. Chadwick violated the rules against unprofessional behavior by interviewing the mother with the child in the room and by suggesting that the mother did not love the child in front of the child. The Board found there to be no mitigating factors to consider, based upon its observation that Ms. Chadwick’s testimony and demeanor at the hearing reflected a total lack of awareness of the complex ethical issues entailed and a complete lack of remorse for her actions and the harm which resulted.

For those reasons, the Board unanimously found that Ms. Chadwick violated the rules applicable to counselors by clear and convincing evidence and ordered her license revoked. The Board further ordered that Ms. Chadwick could reapply for licensure after two years. Ms. Chadwick filed a petition for judicial review of the Board’s decision in the 19th Judicial District Court, in accordance with La. R.S. 37:1105(E).

After a review of the proceeding before the Board, the district court found that while Ms. Chadwick may have violated the rules prohibiting | (¡counselors from providing counseling to a family while also preparing an evaluation, the court found that “it was not done in bad faith or with any intent to break rules.” The court rendered judgment modifying the Board’s decision revoking Ms. Chadwick’s license to instead provide for a three-month suspension of her license, retroactive to the date of the revocation by the Board.

The Board appealed the district court’s judgment, asserting that the court applied an incorrect standard of review and thus erred in setting aside the Board’s sanction and substituting its own judgment for that of the Board.

DISCUSSION

The Board is a statutorily-created entity within the Louisiana Department of Health and Hospitals. La. R.S. 37:1104. The Board was created for the purpose of regulating the activities of persons who render mental health counseling services to the public. La. R.S. 37:1102. It has the authority to license mental health counselors and may also take disciplinary action against licensed counselors, including revoking or suspending any license issued by it. La. R.S. 37:1105(E). Pursuant to the mandate of La. R.S. 37:1105(D), the Board adopted the Code of Ethics of the American Counseling Association. It has also adopted rules and regulations which set out the procedures to be followed by the Board when disciplinary hearings are held. The Louisiana Mental Health Counselor Licensing Act provides that the Board shall withhold, deny, revoke, or suspend any license issued or otherwise discipline a licensee upon proof that the licensee has violated the code of ethics adopted by the Board. La. R.S. 37:1110(A)(3).

Any person aggrieved by a ruling of the Board may appeal to the district court for the parish of East Baton Rouge. La. R.S. 37:1105(E). The district court conducts its judicial review pursuant to La. R.S. 49:950, et hseq., the Administrative Procedure Act (“APA”). That review is confined to the record, but upon request, the court shall hear oral argument and receive written briefs: La. R.S. 49:964(F). The agency decision can only be reversed or modified by the reviewing court if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964(G)

An “arbitrary” decision shows disregard of evidence or the proper weight thereof, while a “capricious” decision has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Cedyco Corp. v. Dept. of Natural Resources, 07-2500, p. 6 (La.App. 1 Cir. 7/23/08), 993 So.2d 271, 275. Where the law allows for the agency or tribunal to exercise discretion, the statute’s plain language concludes that such exercise must be neither abusive nor clearly unwarranted. Id.

In modifying the Board’s decision on judicial review, the district court did not make a finding, as required by La. R.S. 49:964, that the Board’s conclusions were arbitrary or capricious or an abuse of discretion. Rather, the court found that while Ms. Chadwick appeared to have violated the rules, |sshe did not seem to have done so intentionally or in bad faith. However, La. R.S. 37:1110(A)(3) provides that the Board shall withhold, deny, revoke, or suspend a license upon proof that the licensee has violated the code; no mention is made of good or bad faith. We find ample evidentiary support in the record for the Board’s findings and conclusions, and the Board’s exercise of discretion in revoking Ms. Chadwick’s license was well within their statutory authority, as provided by La. R.S. 37:1110(A)(3). Thus, the district court erred in modifying the Board’s decision on judicial review.

CONCLUSION

The judgment of the district court modifying the Board’s decision revoking Ms. Chadwick’s license, to instead provide for a three-month suspension, is reversed. Costs of this appeal are assessed to Ms. Chadwick.

REVERSED.

      . LAC 46:LX.2103(A)(1):
      Primary Responsibility. The primary responsibility of counselors shall be to respect the dignity and to promote the welfare of clients.

      . LAC 46:LX.2103(F)(1):
      Avoid When Possible. Counselors shall be aware of their influential positions with respect to clients, and they shall avoid exploiting the trust and dependency of clients. Counselors shall make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or close personal relationships with clients.) When a dual relationship cannot be avoided, counselors shall take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs.

      .LAC 46:LX.2103(H):
      Multiple Clients. When counselors agree to provide counseling services to two or more persons who have a relationship (such as husband and wife, or parents and children), counselors shall clarify at the outset which person or persons are clients and the nature of the relationships they will have with each involved person. If it becomes apparent that counselors may be called upon to perform potentially conflicting roles, they shall clarify, adjust, or withdraw from roles appropriately.

      . LAC 46:LX.2103(C)(1):
      Disclosure to ' Clients. When counseling is initiated, and throughout the counseling process as necessary, counselors shall inform clients of the purposes, goals, techniques, procedures, limitations, potential risks and benefits of services to be performed, and other pertinent information. Counselors shall take steps to ensure that clients understand and implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements. Clients have the right to expect confidentiality and to be provided with an explanation of its limitations, including supervision and/or treatment team professionals; to obtain clear information about their case records; to participate in the ongoing counseling plans; and to refuse any recommended services and be advised of the consequences of such refusal.

      . LAC 46:1X2105(A)(1):
      Respect for Privacy. Counselors shall respect their clients’ right to privacy and avoid illegal and unwarranted disclosures of confidential information.

      . LAC 46:1X2105(A)(5):
      Court Ordered Disclosure. When court ordered to release confidential information without a client’s permission, counselors shall request to the court that the disclosure not be required due to potential harm to the client or counseling relationship.

      . LAC 46:LX.2105(A)(6):
      Minimal Disclosure. When circumstances require the disclosure of confidential information, only essential information shall be revealed. To the extent possible, clients are informed before confidential information is disclosed.

      . LAC 46:LX.2105(A)(7):
      Explanation of Limitations. When counseling is initiated and throughout the counseling process as necessary, counselors shall inform clients of the limitations of confidentiality and identify foreseeable situations in which confidentiality must be breached.

      . LAC 46:LX.2105(B)(2):
      Family Counseling. In family counseling, information about one family member shall not be disclosed to another member without permission. Counselors shall protect the privacy rights of each family member.

      . LAC 46:LX.2105(D)(2):
      2. Confidentiality of Records. Counselors shall be responsible for securing the safety and confidentiality of any counseling records they create, maintain, transfer, or destroy whether the records are written, taped, computerized, or stored in any other medium.

      . LAC 46:LX.2105(D)(5):
      Disclosure or Transfer. Counselors shall obtain written permission from clients to disclose or transfer records to legitimate third parties unless exceptions to confidentiality exist as listed in § 2105.A. Steps shall be taken to ensure that receivers of counseling records are sensitive to their confidential nature.

      . LAC 46:LX.2103(C)(3):
      Inability to Give Consent. When counseling minors or persons unable to give voluntary informed consent, counselors shall act in these clients’ best interests.

      . LAC 46:LX.2103(E)(1):
      Personal Needs. In the counseling relationship, counselors shall be aware of the intimacy and responsibilities inherent in the counseling relationship, maintain respect for clients, and shall avoid actions that seek to meet their personal needs at the expense of clients.

      . LAC 46:LX.2103(E)(2):
      Personal Values. Counselors shall be aware of their own values, attitudes, beliefs, and behaviors and how these apply in a diverse society, and shall avoid imposing their values on clients.

      . LAC 46:LX.2105(D)(1):
      Requirement of Records. Counselors shall maintain records necessary for rendering professional services to their clients and as required by laws, regulations, or agency or institution procedures.

      . LAC 46:1X2107(E)(3):
      Reports to Third Parties. Counselors shall be accurate, honest, and unbiased in reporting their professional activities and judgments to appropriate third parties including courts, health insurance companies, those who are the recipients of evaluation reports, and others.

      . LAC 46:1X2107(F)(3):
      Clients Served by Others. When counselors learn that their clients are in a professional relationship with another mental health professional, they shall request release from clients to inform the other professionals and strive to establish positive and collaborative professional relationships.


author: GAIDRY, J. CARTER, C.J.,

text:
    USA DISASTER DISCOVERY, INC. v. ST. TAMMANY PARISH GOVERNMENT and St. Tammany Parish Sheriff.
    No. 2012 CA 0679.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.
    Rehearing Denied Feb. 22, 2013.

      Kelly M. Rabalais, Ronald S. Hagan, Robert A. Barnett, Lindsey D. Manda, Covington, LA, for Defendant/Appellant St. Tammany Parish Government.
    Charles M. Hughes, Jr., Ryan G. Davis, Mandeville, LA, for Defendant/Appellee Rodney “Jack” Strain, in his official capacity as Sheriff of St. Tammany Parish.
    William J. Faustermann, Jr., Jake A. Airey, S. Michele Blanchard, Slidell, LA, for PlaintiffAppellee USA Disaster Recovery, Inc.
    Bernard M. Plaia, Jr., Thomas L. En-right, Jr., LaShaunte Henry-Martin, Baton Rouge, LA, for Amicus Curiae Louisiana Governor’s Office of Homeland Security and Emergency Preparedness.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|3This is an appeal of a bench trial verdict rendered by the 22nd Judicial District Court in favor of the Appellee, USA Disaster Recovery, Inc. (“USA”) and against the Appellant, St. Tammany Parish Government (“the Parish”) in the amount of $37,500.00 with interest. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This litigation originates with Hurricane Katrina making landfall over St. Tammany Parish on August 29, 2005. At the time, the Parish had certain protocols in place for states of emergency outlined in the St. Tammany Parish Multi-Hazard Emergency Operation Plan. The plan called for the St. Tammany Parish Sheriffs Office (“the Sheriff’) to assume specific duties, one of which being search and rescue. To accomplish this task, it was necessary for the Sheriff to clear large amounts of debris from the roads so that homes and other buildings where people might have been trapped were accessible. However, the plan made it the duty of the Parish to clear the roads.

The Sheriff appointed Major Donald Sharp as incident commander for eastern St. Tammany, and a command post was established near Oak Harbor in southeastern St. Tammany, where most of the devastation to St. Tammany occurred. While the Parish was tasked with clearing debris from the roads, it lacked the resources to perform its duties adequately. The Parish therefore contracted with private entities to assist in the clearing of debris from the roads in accordance with guidelines set by the Federal Emergency Management Agency (“FEMA”).

[¿Meanwhile, in order to accomplish search and rescue, Maj. Sharp undertook the clearing of roads independently from the Parish, as it was necessary to reach any and all hurricane victims who needed to be extracted from the affected areas as quickly as possible. As this was being done, Maj. Sharp was approached by Carl Hodge, Jr. and Sean Bentson, who volunteered their equipment and manpower in assisting the Sheriff to clear debris from the roadways. Mr. Hodge and Mr. Bent-son had formed a joint venture which they later formed into USA, a Louisiana corporation. The record indicates that the Sheriff advised Mr. Hodge that they would be unable to pay for the services he and Mr. Bentson were providing, but Mr. Hodge allegedly replied that he knew the parish president and was confident the Parish would pay him for the services.

Hodge and Bentson eventually submitted invoices to the Sheriff and the Parish for the work they performed. Neither the Sheriff nor the Parish paid these invoices. After USA was formed on or about September 13, 2005, Hodge and Bentson assigned their claims against the Sheriff and the Parish to USA. USA then brought this suit for open account against the Parish and the Sheriff, seeking $77,397.00, which USA claimed was the value of the services they rendered to the Sheriff and the Parish. USA claimed breach of contract, and in the alternative, USA claimed unjust enrichment for the Sheriff and the Parish. The Parish filed a cross-claim against the Sheriff in the event the Parish was held liable for USA’s demand.

The matter went to trial on two separate days, the first being August 25, 2011, and the second being September 22, 2011. At trial, it was established by the Parish that FEMA requires contractors to contract with the Parish to qualify for payment for debris removal. The Parish established that neither Mr. Hodge, Mr. Bentson, nor USA ever contracted with the Parish Indirectly or followed any of the application guidelines put forth by the Parish or FEMA to qualify for payment. The Parish averred that at no time was it even aware that USA or its representatives were present in St. Tammany clearing debris after the hurricane passed. The Sheriff established at trial that it never promised USA or its representatives any payment, and the record establishes that the Sheriff did not give Hodge or Bentson the assurance that the Parish would pay for the work they had done. The court found there was insufficient evidence to prove that an open account or a contract existed between USA and the Parish or USA and the Sheriff.

However, the court did find that under the theory of unjust enrichment, USA was impoverished to the benefit of the Parish, since the St. Tammany Multi-Hazard Emergency Operation Plan made it the Parish’s obligation to clear the debris from the roads. While the Sheriff did clear debris on its own, it was not required to do so by the plan. The Parish claimed that since USA impoverished itself at its own risk and had not contracted with the Parish directly, the theory of unjust enrichment was inapplicable. The court cited for support of its ruling City of New Orleans v. BellSouth Telecommunications, Inc., 2011 WL 2293134 (E.D.La.2011), which states that impoverishment due to the plaintiffs own actions taken at his own risk is not an exception to unjust enrichment.

In determining the damages, the court looked to La. Civil Code Art. 2298, which states the amount of compensation due for unjust enrichment is the lesser of either the amount of enrichment or the amount of impoverishment. The court admitted that the evidence of damages provided by USA was vague and did not sufficiently prove the assignment of rights to the claim to USA, and the relationship between Mr. Hodge and USA was Rnever fully explained. Mr. Hodge’s testimony of the work he performed was not specific, and most of his records of the work were lost. The work could not be verified outside of Mr. Hodge’s own testimony, yet the court acknowledged that Mr. Hodge and his work team did perform some valuable services for the Parish. Thus the court awarded USA damages in the amount of $37,500 against the Parish. The Parish appealed the court’s judgment on January 11, 2012.

ASSIGNMENTS OF ERROR

The assignments of error as given by the Parish are as follows:

The trial court erred in the application of the law of unjust enrichment when it declined to follow Louisiana law, including compelling precedent of the First Circuit case Charrier v. Bell, 496 So.2d 601 (La.App. 1 Cir.1986). Instead, the court was persuaded to follow the City of New Orleans case, an unpublished slip opinion from the Eastern District of Louisiana, and concluded that USA was entitled to recover on a theory of unjust enrichment despite finding that the actions of USA were undertaken at its own risk.

The trial court erred in the application of the law of unjust enrichment because the trial court identified no measure of damages and set an award with no explanation, analysis, or evidence supporting its award. The trial court failed to establish a rate of measurement for either USA’s impoverishment or the Parish’s enrichment or to compare the two and choose the lesser. Such failure does not comply with the requirements of La. C.C. art. 2298.

The trial court erred in the application of the law of unjust enrichment because it awarded damages despite USA’s claim on open account and the agreement between USA and the Sheriff. Art. 2298 expressly provides that unjust enrichment is not available when the law provides another remedy for |7the impoverishment, even if unsuccessful. USA sued the Sheriff and the Parish under open account law, yet the trial court allowed USA to recover based on unjust enrichment. There was an offer and acceptance, the requisite elements of a contract, between the Sheriff and USA.

The trial court erred in the application of the law of unjust enrichment because it concluded that the Parish was enriched by the actions of USA despite finding that the Parish was unaware of USA or any work it may have performed. Although Mr. Hodge testified that he had extensive experience working with FEMA, he failed to follow any of the Parish’s procedural requirements, including verification of work imposed for the purpose of complying with FEMA requirements. Even if USA’s proof as to what work it did was reliable, the Parish could not successfully request reimbursement because USA did not comply with the Parish’s requirements.

The trial court erred in the application of the law of unjust enrichment when it ignored the benefit the Sheriff received and concluded that the Sheriff was not enriched. The trial court’s findings of fact and conclusions of law are inconsistent in that it found there was no underlying agreement between the Sheriff and USA despite finding that the Sheriff undertook the clearing of roads to conduct search and rescue; USA volunteered to assist the Sheriff; the Sheriff said it could not pay USA; and USA accepted the Sheriffs offer. The Sheriff testified that in the past, it had cleared roads for a specific cause, such as search and rescue. Such testimony contravenes the trial court’s conclusion that the Sheriff received no benefit.

The trial court’s findings of fact and conclusions of law are internally inconsistent in that it concluded that Mr. Bentson, who did not testify at trial, assigned his rights to USA notwithstanding the failure to produce such an assignment and of Mr. Bentson to testify.

IsThe trial court erred in dismissing the Sheriff from this action and from any liability to USA.

DISCUSSION

We must first decide if the trial court correctly applied the theory of unjust enrichment, as it is defined by La. C.C. art. 2298 and the prevailing jurisprudence.

The Parish is correct that the City of New Orleans case upon which the trial court based its decision is an unpublished slip opinion by the Federal Eastern District of Louisiana. What the Parish did not know and could not have known at the time it wrote its brief is that the Eastern District had its ruling overturned by the Federal Fifth Circuit Court of Appeal, where it was stated that the theory of unjust enrichment in a case originating in Louisiana must be applied according to Louisiana law. See City of New Orleans v. BellSouth Telecommunications, Inc., 11-30607, 11-31058 (C.A.5 La.7/31/12), 690 F.3d 312, 329.

The Parish cites Charrier as the guiding case for this court on the issue of whether the Parish’s enrichment at the expense of USA was unjust. There are five criteria to this claim:

(1) There must be an enrichment;
(2) There must be an impoverishment;
(3) There must be a connection between the enrichment and the impoverishment;
(4) There must be an absence of justification or cause for the enrichment and impoverishment;
(5) There must be no other remedy at law available to the plaintiff. Char-rier, at 606.

| flWhile there is dispute as to who exactly was enriched, there is no doubt that enrichment occurred. While USA benefit-ted the Sheriff by assisting in the clearing of roads to facilitate search and rescue operations, USA also benefitted the Parish by assisting it in its obligation to have the roads cleared. More importantly is the issue of the second criterion of impoverishment and whether USA impoverished itself at its own risk. Although USA may have done work at its own expense, the impoverishment element is met only when the factual circumstances show that it was not a result of the plaintiffs own fault or negligence or was not undertaken at his own risk. Id.

The record shows that USA did engage in some risky behavior. Hodges and Bentson were unsolicited when they approached the Sheriff and offered to assist in the clearing of the roads. While it seems the Sheriff accepted their offer, the acceptance was conditioned with the inability or unwillingness to compensate them for their services. That condition alone should cause a reasonable business person to wonder whether it is prudent to perform services. Instead, USA persisted by stating to the Sheriff that the Parish would pay for the work, even though USA or its representatives had no previous communication or authorization from the Parish in this regard. In other words, USA truly did not have any reason to believe that the Parish would pay for the work it performed, and USA should have known that its work may in fact go without compensation. Nevertheless, USA decided to perform work without guarantee of payment. USA was acting possibly out of its own negligence, but more probably knowingly and at its own risk, especially since USA claims to be familiar with the contract guidelines created by FEMA. Id. at 607. Obviously, the intent of unjust enrichment is | ipto avoid awarding one who has helped another through his own negligence or fault or through action taken at his own risk. Id.

There is no question that there is a connection between the enrichment and the resulting impoverishment, although again the extent of the impoverishment is in question. Whether USA did only a little or a large amount of work to clear the roads of St. Tammany, the work directly beneñtted both the Sheriff and the Parish.

As to whether USA had cause or justification to impoverish itself, USA contends it had an oral agreement with Maj. Sharp that it would clear the roads; however, Maj. Sharp told Mr. Hodge he could not pay for the work. While Mr. Hodge stated he was confident that the Parish would pay him, he had no such verification from the Parish. Cause is the reason why a party obligates himself. La.C.C. art. 1967. Comment (c) of art. 1967- states that “cause” is not synonymous with “consideration,” but the reason why a party binds itself. From the record, it is apparent that USA’s cause or reason to obligate itself was payment. Mr. Hodge had a discussion with Maj. Sharp about payment, and USA subsequently invoiced both the Sheriff and the Parish for an amount that was never agreed upon by anyone. Since USA’s cause was never agreed upon, there was no “meeting of the minds” and no obligation ever existed. Even if USA had a gratuitous contract with the Sheriff or the Parish, circumstances which would otherwise give rise to a quasi-contractual obligation like unjust enrichment to pay for the services rendered, give rise merely to an imperfect obligation incapable of enforcement in a court of law. Webb v. Webb, 2001-1577, p. 7 (La.App. 1 Cir. 11/8/02), 835 So.2d 713, 719.

Finally, the Parish argued that since USA sued primarily for open account, breach of contract, and alternatively for unjust enrichment, relief launder unjust enrichment is unavailable since another legal remedy exists. The law must provide the plaintiff with another remedy in order to defeat a cause of action in unjust enrichment. See Walters v. Med-South Record Management, LLC, 2010-0351 (La.6/4/10), 38 So.3d 245, 247. A remedy at law or an applicable rule of law vitiates the utilization of an action based on unjust enrichment. Webb at 718. It is not the success or failure of other causes of action, but rather the existence of other causes of action, that determines whether unjust enrichment can be applied. Garber v. Badon & Ranier, 2007-1497, p. 10-11 (La.App. 3 Cir. 4/2/08), 981 So.2d 92, 100, writ denied 2008-1154 (La.9/19/08), 992 So.2d 943. USA sued on open account and presented as prima facie proof an affidavit of correctness to the court, pursuant to La.C.C.P. art. 1702 B(3). Although USA subsequently failed to prove the indebtedness, by making a prima facie case it availed itself of the legal remedy of open account. Therefore, unjust enrichment could not have been pled in the alternative.

CONCLUSION

Unjust enrichment is not available to USA for the second, fourth, and fifth criteria listed in Charrier. Specifically, USA impoverished itself at its own risk, had no cause to obligate itself, and had another remedy at law available to it before unjust enrichment. The trial court was incorrect to award damages to USA under unjust enrichment, but was correct to deny damages under open account. The result is that USA cannot recover damages under these legal theories, and the Parish’s assignments of error regarding damages need not be discussed. USA’s suit is dismissed with prejudice.

| ^DECREE

The judgment of the trial court is reversed and vacated. The award of damages to the Appellee, USA Disaster Recovery, Inc., in the amount of $37,500.00, is also vacated. The instant lawsuit is dismissed with prejudice, and all costs of this appeal are assessed to the Appellee, USA Disaster Recovery, Inc.

REVERSED.

CARTER, C.J., concurs with reason.

GUIDRY, J., concurs.

CARTER, C.J.,

Concurs in the result.

|,I agree that the judgment of the trial court must be reversed, but I am not in agreement with certain language in the majority opinion. USA sued primarily on open account and clearly failed to prove its case. As concerns the alternative claim for unjust enrichment, it is also clear that this remedy was not available to USA because of the claimed existence by USA of another remedy — viz., open account. As the majority set forth, it is not the success or failure of the other cause of action, but rather the claimed existence of the other cause of action that precludes the application of the action for unjust enrichment. Therefore, for the above reasons, I concur in the result reached by the majority.

      . Reversed and vacated by City of New Orleans v. BellSouth Telecommunications, Inc., 11-30607 (C.A.5 La.7/31/12), 690 F.3d 312.


author: McCLENDON, J.

text:
    The COTTONPORT BANK v. Raymond GARRETT.
    No. 2012 CA 0688.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      David W. Marcase, Marksville, LA, James C. Dewey, New Roads, LA, for Plaintiff/Appellant, The Cottonport Bank.
    C. Jerome D’Aquila, New Roads, LA, for Defendant/Appellee, Raymond Garrett.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

LA landowner seeks review of a trial court judgment that allowed its neighboring landowner’s pier “to remain as constructed,” contending that the neighboring landowner’s pier has limited its waterway access and has caused it damage. In answer to the appeal, the neighboring landowner seeks review of the trial court judgment to the extent it denied his re-conventional demand seeking recovery for damages to his property. For the reasons that follow, we affirm that portion of the judgment that dismissed the recon-ventional demand, but remand the matter for further consideration of issues regarding the pier, as discussed in more detail below.

FACTS AND PROCEDURAL HISTORY

This action was filed by The Cottonport Bank (“Cottonport”) on June 12, 2006, seeking damages against Raymond Garrett for trespass and mandatory injunction, loss of use and enjoyment, and for the removal of encroachments. Cottonport and Mr. Garrett own adjacent parcels of land on False River in New Roads, Louisiana.

In its petition, Cottonport alleged that it hired a contracting firm to build a bulkhead on its property in November 2005, at which time it received permission from Mr. Garrett to remove a fence separating the two properties. Cottonport alleged that when construction of the bulkhead was completed, Mr. Garrett moved the location of the fence beyond the property line, thereby encroaching on Cottonport’s property.

Also, in December 2005, Mr. Garrett constructed a pier near the property line. Mr. Garrett, in determining the boundaries for his pier, used posts from a prior pier erected by a previous owner in 1959. The pier forms a “T” configuration, with the stem extending out solely from Mr. Garrett’s property. One arm of the T-shaped pier, however, extends beyond an extension of the property line, anywhere from four and half feet to nearly six feet (depending on which survey is used) beyond the extension of the property line into the lake and in front of Cottonport’s lot. Cot-tonport contends that the pier’s westerly Isextension in front of its lot has the effect of limiting Cottonport’s access to False River and has caused it damage. Cotton-port requested an injunction, asking the court to order removal of that portion of the pier which extends beyond the extension of the property line, to have the court fix the property line, and for damages.

Mr. Garrett filed a reconventional demand against Cottonport, alleging that Cottonport allowed its property to deteriorate to such a state of disrepair that it caused damages to Mr. Garrett’s property. Mr. Garrett sought monetary damages “in an amount to be determined by [the] court.”

Following trial, the court fixed the boundary line between the parties in accordance with a survey performed by Cle-tus Langlois. The court also ordered Mr. Garrett to , remove the fence between the two properties and construct a new fence in accord with the boundary established by the Langlois survey. The trial court, however, allowed Mr. Garrett’s pier “to remain as constructed.” In so ruling, the trial court concluded that the portion of the pier at issue was constructed on state property, as opposed to property belonging to Cot-tonport. The trial court rejected Mr. Garrett’s reconventional demand.

Subsequently, Cottonport filed a motion for new trial “to fully resolve the issue of the pier.” Therein, Cottonport urged that the State was a party needed for just adjudication on the pier issue and that the State could be named a party defendant if a new trial were granted. The trial court denied the Cottonport’s motion for new trial.

Cottonport has appealed, assigning the following errors:

1) Whether the Trial Court should have ordered the removal of a portion of the Garrett pier under Article 670 or an abuse of right theory.
2) Whether the Trial Court should have ordered a new trial to include the State of Louisiana as a party defendant.

|4Mr. Garrett has answered the appeal, asserting that the trial court erred in failing to award damages as prayed for in his reconventional demand.

DISCUSSION

Cottonport avers that while Mr. Garrett’s pier is built almost entirely on State property, the State does not regulate pier construction intended for private use along False River. Rather, Cottonport notes that in 2002, the Pointe Coupee Parish Police Jury enacted an ordinance for the regulation of pier and other construction along False River. Cottonport asserts that the ordinance would have required Mr. Garrett to remove that portion of the pier in dispute. Although Cottonport concedes that the ordinance did not take effect until October 2007, it asserts that the ordinance presents a clear statement of public policy that is intended to prohibit the actions undertaken by Mr. Garrett.

Nevertheless, Cottonport contends that it is entitled to injunctive relief based on LSA-C.C. arts. 667 and 668. Louisiana Civil Code article 667 provides that although an owner may do with his estate whatever he pleases, he cannot make any work thereon which may deprive his neighbor of the liberty of enjoying his own estate, or which may cause him damage. Louisiana Civil Code article 668 provides that although one is not at liberty to perform work by which his neighbor’s buildings may be damaged, every owner is free to do on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.

These obligations of vicinage are legal servitudes imposed on the owner of property. Rodrigue v. Copeland, 475 So.2d 1071, 1077 (La.1985). The portion of the pier at issue, however, is on state-owned property as opposed to property owned by Mr. Garrett or Cottonport. Accordingly, LSA-CC. arts. 667 and 668 do not apply under the facts presented herein.

| ¿Cottonport also contends that Mr. Garrett violated Louisiana’s abuse of rights doctrine. In Truschinger v. Pale, 513 So.2d 1151 (La.1987), the court explained:

The Abuse of Rights doctrine is a civilian concept which is applied only in limited circumstances because its application renders unenforceable one’s otherwise judicially protected rights. In Morse v. J. Ray McDermott & Co., 344 So.2d 1353 (La.1977), this court recognized the Abuse of Rights doctrine. There, we held that an employer could not defeat his obligation to pay an employee the remaining portions of the employee’s compensation by terminating his employment without cause. Since that case, neither this court nor the courts of appeal have applied- the doctrine.

The Abuse of Rights doctrine has been applied only when one of the following conditions is met:

(1) if the predominant motive for it was to cause harm;
(2) if there was no serious or legitimate motive for refusing;
(3) if the exercise of the right to refuse is against moral rules, good faith, or elementary fairness;
(4) if the right to refuse is exercised for a purpose other than that for which it is granted.
Illinois Central Gulf Railroad Co. v. International Harvester Co., [368 So.2d 1009, 1013 (La.1979) ]; Cueto-Rua, Abuse of Rights, 35 La.L.Rev. 965 (1975).

Trusehinger, 513 So.2d at 1154.

Louisiana courts, however, have not extended the doctrine beyond cases involving certain contractual and/or fiduciary relationships. See Morse, 344 So.2d at 1367-68, Illinois Central Gulf Railroad Co., 368 So.2d at 1013-15, Truschinger, 513 So.2d at 1154-55, and McInnis v. McInnis, 618 So.2d 672, 676 (La.App. 2 Cir.1993)(“More importantly, cases dealing with this civilian concept typically concern the limited situation involving the holder of a contractual right and a litigant against whom that right has been directly but nonetheless, it is alleged, harmfully exercised.” (Emphasis omitted.)) Under these circumstances, we find no error in the trial court declining to extend the doctrine beyond its current application by the courts.

| f,The trial court, in denying Cotton-port’s request, did so because the portion of the pier at issue was constructed on state property. Neither the parties nor the trial court addressed LSA-C.C. art. 458, which provides, in pertinent part:

Works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or own them at the instance of the public authorities, or of any person residing in the state.[]

Citizens of this state have a right of action coincidental with that of the governing authority to sue for the removal of a structure which physically obstructs the citizens’ right of use of public land. Worthen v. DeLong, 99-1149, p. 5 (La.App. 1 Cir. 6/23/00), 763 So.2d 820, 824.

Louisiana Code of Civil Procedure article 2164 provides that “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” “The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” LSA-C.C.P. art. 2164 comment (a).

Cottonport has not asserted that the entirety of the pier obstructed public use. Rather, Cottonport urged that the portion of Mr. Garrett’s pier’s westerly extension in front of its lot has limited Cottonport’s access to False River and has caused it damage. An owner of land adjacent to public property has been recognized as possessing a right, separate from the ordinary citizen, to sue to remove encroachments on public property which cause harm peculiar to him. Giardina v. Marrero Furniture Co., Inc., 310 So.2d 607, 610-11 (La.1975). Thus, under the reasoning in Giardina, it is clear that Cot-tonport had a right to |7bring an action. Moreover, the remedy sought herein is limited to that portion of the pier that extends over the imaginary boundary line between the two properties. Cf. Bell v. Edwards, 37 La.Ann. 475 (1885) (“As the plaintiff has shown no legal interest in asking relief against the laying and use of the track or switch which is not in front of his property, we do not think he can be heard to champion the rights of those who do not complain.”)

Pursuant to LSA-C.C.P. art. 2164, courts of appeal have the power to remand a case for the introduction of additional evidence if grave injustice might result from failure to do so. Such a remand is warranted only when the new evidence is likely to affect the outcome of the case. However, the power to remand on this basis should be exercised sparingly. Whether a particular case is remanded is a matter over which the court has much discretion and is governed by the particular facts and circumstances in each case. Bell v. Kristi 05-1500 (La.App. 1 Cir. 6/9/06), 938 So.2d 745, 748.

We note that a private citizen can only avail himself of LSA-C.C. art. 458 when he can show there is a physical obstruction of the citizen’s right of use of public land. See Giardina, 310 So.2d at 612. Moreover, a building that merely encroaches on a public way without preventing its use, and which cannot be removed without causing substantial damage to its owner, shall be permitted to remain. LSA-C.C. art. 459.

In the instant case, although Cot-tonport introduced evidence regarding how Mr. Garrett’s pier impacted the plans for its waterfront property, there is scant evidence in the record regarding how Mr. Garrett’s pier obstructed Cottonport’s and/or public’s right of use of False River. Additionally, should it be proven that the pier is merely an encroachment that does not prevent use, ^nothing in the record reflects whether the portion of the pier at issue could be removed without causing substantial damage to Mr. Garrett. Therefore, under the particular facts of this case, we conclude that a remand is appropriate to afford the parties an opportunity to address these issues.

In answer to the appeal, Mr. Garrett urges that the trial court erred in dismissing his reconventional demand. He asserts that Cottonport is liable for damages because Cottonport’s building caused damage to his building. See LSA-C.C. arts. 660 and 2322. Specifically, Mr. Garrett notes that the gutter on Cottonport’s building crosses the property boundary line and rests on his building. Eric New-son, who had experience in installation of flat roofs, testified that the water from Cottonport’s roof was draining directly onto Mr. Garrett’s flat roof and caused the damage to Mr. Garrett’s roof.

While it may have been apparent that Cottonport’s roof crossed the property line and drained onto Mr. Garrett’s roof, we cannot find that the trial court erred in concluding that Mr. Garrett failed to meet his burden of showing that Cottonport knew or, in the exercise of reasonable care, should have known that the condition was causing damage to Mr. Garrett’s building. Accordingly, Mr. Garrett’s assignment of error is without merit.

| aCONCLUSION

For the foregoing reasons, we vacate the portion of the judgment that allowed Mr. Garrett’s pier to remain as constructed (and inferentially denied Cottonport’s request for injunctive relief and damages). We remand this matter to the trial court for further proceedings consistent with this opinion regarding Cottonport’s claims related to that portion of Mr. Garrett’s pier which protrudes beyond the imaginary boundary between the properties. The judgment is affirmed to the extent it dismissed Mr. Garrett’s reconventional demand. The parties are to pay their own respective costs of appeal.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

      . Louisiana Revised Statutes 9:1110 provides:
      The title of the owners of land adjacent to that body of water in Pointe Coupee Parish known as False River shall extend to fifteen feet above mean sea level. The boundary line formed at fifteen feet above mean sea level marks the division between land owned by the state and land owned by private persons along the banks of False River.

      . Cottonport notes that the ordinance could not go into effect until approved by the State of Louisiana.

      . We recognize that foreign jurisdictions have applied the abuse of rights doctrine in broader contexts. See Cueto-Rua, Abuse of Rights, 35 La.LRev. 965 (1975).

      . The parties, pursuant to an order from this court, have addressed article 458 on appeal.

      . The parties do not dispute that False River is navigable. See Chevron U.S.A., Inc. v. Lorio, 496 So.2d 611, 615 (La.App. 4 Cir.) writ denied, 498 So.2d 754 (La.1986) (citing Sicard v. Chitz, 13 La. 111 (1839)). The parties also do not dispute that permits were not obtained prior to construction of the pier.

      .We need not decide whether any person residing in the state would have a similar right. However, we recognize that the State need not be a party to the action.

      . As recognized in Giardina, LSA-C.C. art. 861 (the predecessor to LSA-C.C. art. 458), in addition to requiring removal of any works that obstructed public places, also required removal of any works that "embarrass the use” of public places. 310 So.2d at 612. The latter provision was deleted when article 861 was redesignated as article 485, See 1978 La. Acts. No. 728, § 1, effective Jan. 1, 1979. However, the revision comments indicate that it did not change the law. See LSA-C.C. art. 458, comment a.

      . Louisiana Civil Code article 660 provides:
      The owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passerby. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
      Louisiana Civil Code article 2322 provides:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.


author: SEXTON, Judge Pro Tem.

text:
    Alan D. CAMERON, Plaintiff-Appellee v. Jerry ROBERTS, et al., Defendants-Appellants.
    No. 47,789-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Richard R. Storms, Ruston, LA, for Defendant-Appellant, Jerry Roberts.
    Kitchens, Benton, Kitchens, & Black, Minden, LA, by Paul E. Kitchens, for Plaintiff-Appellee, Alan D. Cameron.
    Garrison, Yount, Forte & Mulcahy, LLC, by Randall C. Mulcahy, for Defendant-Appellee, J.K.M. Logging, Inc.
    Before BROWN, MOORE and SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

|,The defendant, Jerry Roberts, appeals from trial court rulings entering a default judgment against him and denying his motion for new trial. For the following reasons, we reverse the trial court rulings, vacate the default judgment, and remand for further proceedings.

FACTS

In November 2008, the plaintiff, Alan D. Cameron, executed a timber sale agreement with the defendant, who is a timber consultant. The timber deed, covering a tract of approximately 50 acres, set forth the amount to be paid for various types of wood. The parties specifically agreed:

All hardwood (oak) will be left unless overcrowded closer than 15' or diseased.
All pine will only be thinned according to standard thinning or pine that is damaged.

Roberts subcontracted the cutting of the timber to J.K.M. Logging, Inc. (“J.K.M.”). This agreement, signed by John Kelley Martin, Jr., specified that J.K.M. would carry various types of insurance. The agreement included an indemnity and hold harmless clause which stated:

Vendee agrees to indemnify and hold Vendor harmless from personal injuries or property damage sustained by any employee, agent, or any third person, and resulting solely from the logging operation conducted by the Vendee, it being expressly agreed and understood that this provision shall not [be] applicable if Vendor, his agents, heirs, employees and/or assigns, are guilty of any negligent act of omission that causes and/or contributes to the aforementioned damage or personal injury.

On the sheet listing the price to be paid for various types of wood was the comment in capital letters “NO OAK TO BE CUT!!!”

A dispute arose over the way the timber was cut. On December 17, 2008, Cameron, Roberts, and Martin signed a memo specifying that a check |2in the amount of $19,258.73, that Cameron received from Roberts, represented 93 loads that J.K.M. cut, harvested, and paid Roberts. The memo stated that the check was not the final accounting on the tract. All parties agreed that there were issues of damage, road work, fence repairs, erosion control, and reforestation that needed to be resolved.

On October 20, 2009, Cameron filed suit against Roberts, J.K.M., and XYZ insurance company for negligence and breach of contract. He claimed that he called upon the defendants for the additional work to be done, but these matters were not resolved. Cameron also alleged that the timber and the property had been damaged by the defendants. He asserted that, contrary to their agreement, the defendants harvested nearly all of the hardwood and oak, and the pine trees were over-thinned. Cameron stated that his damages arising from the negligence and breach of contract exceeded the value of the check for the sale of the timber delivered to him.

On November 5, 2010, J.K.M. filed an answer. Roberts did not. Cameron and J.K.M. reached a settlement in this matter. J.K.M. agreed to pay Cameron $40,000 in damages. On December 14, 2011, the trial court signed an order dismissing Cameron’s claims against J.K.M. and XYZ insurance company, with prejudice, and reserving Cameron’s rights against Roberts.

The minutes reflect that on December 14, 2011, on written motion to the court, a default was entered. After a hearing on December 20, 2011, a default judgment was confirmed against Roberts for $60,000. On December 29, 2011, Roberts filed a motion for new trial, protesting the entry of the |sdefault judgment against him. He argued that, after Cameron filed suit against the defendants, Martin told him that he would secure defense counsel for both J.K.M. and Roberts. Because of this belief by Roberts, no answer was filed on his behalf. Roberts claimed that, because his agreement with J.K.M. specified that the logging company was obligated to insure Roberts, J.K.M.’s insurance company had a duty to defend him against any lawsuits arising from the logging operation. He argued that he should at least be entitled to credit for the $19,258.73 paid to Cameron.

On April 24, 2012, a hearing was held on the motion for new trial. Roberts testified that when he was served with Cameron’s lawsuit, he contacted Martin. Due to the indemnification and hold harmless clause in his agreement with J.K.M. and his discussions with Martin, he thought J.K.M. would take care of the lawsuit. According to Roberts, Martin said that he would take care of Cameron’s petition, that he would handle it, and that Roberts would be covered. Roberts also stated that, under the terms of his timber sale deed with J.K.M., he thought he was covered regarding any lawsuits asserted or judgments rendered against him. Roberts testified that J.K.M. cut the timber on Cameron’s property, but Roberts acknowledged that he supervised the work.

At the hearing, the affidavit of Martin was admitted into evidence. In the affidavit, Martin stated that he is the president of J.K.M. and that he did not tell Roberts that J.K.M. would secure defense counsel for Roberts concerning the allegations in this matter. Martin said that Roberts did not|4make a demand for J.K.M. to indemnify him before Roberts was cast in judgment.

Roberts also argued that the proof offered at .the confirmation of default was not sufficient to support the judgment. He contended that Cameron produced no proof to support his claim that Roberts actually supervised J.K.M. Roberts maintained that Cameron did not provide proof of the amount of damage done to the property. He pointed out that there was no testimony by an appraiser placing a value on the timber and there was no report by a forester or other authentication of the amount of damages claimed.

At the conclusion of the hearing, the trial court found that Roberts had a responsibility to see that an answer was filed on his behalf and that he was properly defended. According to the trial court, any aspects of the indemnity or hold harmless agreement between J.K.M. and Roberts would be properly decided on the third party demand and this was a separate issue from the motion for new trial.

Regarding the sufficiency of Cameron’s proof on the default judgment, the trial court found that, based on the contracts, photographs of the property, and Cameron’s testimony, there was sufficient proof to grant the default judgment. On those grounds, the trial court denied the motion for new trial asserted by Roberts. Roberts appealed the default judgment and the denial of the motion for new trial.

^SUFFICIENCY OF THE EVIDENCE

On appeal, Roberts asserted numerous assignments of error essentially arguing that Cameron failed to present sufficient evidence to establish a prima facie case for the confirmation of default. These arguments have merit.

Legal Principles

La. C.C.P. art. 1701 provides in pertinent part:

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

La. C.C.P. art. 1702 states in relevant part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default....
B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima fa-cie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

IfiLa. C.C.P. art. 1703 states:

A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.

In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. The determination is a factual one governed by the manifest error standard of review. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La.5/5/09), 9 So.3d 815. A court of appeal may not overturn a judgment of a trial court absent any error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993); Arias v. Stolthaven New Orleans, L.L.C., supra.

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. Williams v. Smith, 45,069 (La.App.2d Cir.5/28/10), 37 So.3d 1133, writ denied, 2010-1530 (La.10/1/10), 45 So.3d 1103. In order for a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993); Thibodeaux v. Burton, 538 So.2d 1001 (La. 1989); Youngblood v. Southern Air, Inc., 46,183 (La.App.2d Cir.3/2/11), 58 So.3d 1020; Williams v. Interstate Dodge, Inc., 45,159 (La.App.2d Cir.4/14/10), 34 So.3d 1151. The plaintiff must present competent evidence that convinces the trial court that it is probable that he would prevail on a [7trial on the merits. Thibodeaux v. Burton, supra; Williams v. Interstate Dodge, Inc., supra; Carroll v. Coleman, 27,861 (La.App.2d Cir.1/24/96), 666 So.2d 1264. The presumption that the default judgment was rendered upon sufficient evidence and is correct does not apply where, as in the present case, the testimony is transcribed and is contained in the record. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment was based was sufficient and competent. Williams v. Smith, supra; Carroll v. Coleman, supra.

At the hearing to confirm a default, the rules of evidence generally apply. La. C.E. art. 1101(A); Arias v. Stolthaven New Orleans, L.L.C., supra. The plaintiff must follow the rules of evidence even though there is no opponent. Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both the plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence that establishes a prima facie case. Thus, inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was not objected to because the defendant was not present. Arias v. Stolthaven New Orleans, L.L.C., supra. Hearsay evidence does not sustain the burden of proving the prima facie case necessary for confirmation of default. Carroll v. Coleman, supra; McRay v. Booker T. Washington Nursing Home, 30,399 (La App.2d Cir.4/8/98), 711 So.2d 772; Martin v. Sanders, 35,575 (La.App.2d Cir.1/23/02), 805 So.2d 1209.

|8A new trial shall be granted, upon contradictory motion of any party, when the judgment appears clearly contrary to the law and the evidence. See La. C.C.P. art.1972. A new trial may be granted in any case if there is good ground therefor. La. C.C.P. art.1973. New trials are granted in the interest of justice and are left largely to the discretion of the trial court, but this discretion is not immune from appellate review. In a case of manifest abuse, the appellate court will not hesitate to set the trial court’s ruling aside or grant a new trial. Meshell v. Russell, 589 So.2d 86 (La.App. 2d Cir.1991). We are especially careful to review denials of new trials in cases of default judgments due to the general policy consideration weighing in the defendant’s favor that every litigant should be allowed his day in court. Meshell v. Russell, supra.

A contract is an- agreement by two or more parties whereby obligations are ere-ated, modified, or extinguished. La. C.C. art.1906. An obligor is liable for the damages caused by his failure to perform a conventional obligation. A failure to perform results from nonperformance, defective performance, or delay in performance. La. C.C. art.1994. Damages are measured by the loss sustained by the obligee and the profit of which he was deprived. La. C.C. art.1995.

To prevail in a negligence action, the plaintiff must prove that the defendant owed a duty, that the duty was breached and that the defendant’s substandard conduct was a cause of the plaintiffs injuries and damages. Williams v. Smith, supra.

laDiscussion

Roberts argues that the evidence and testimony presented by Cameron at the confirmation of default were not sufficient to support the default judgment. In several assignments of error, Roberts maintains that Cameron failed to establish that his damages totaled $100,000, as he claimed. Roberts contends that Cameron is not qualified to testify as to the calculation and extent of damages and was not a disinterested witness or an expert in forestry. Roberts asserts that the default judgment is improper because Cameron did not prove that the $60,000 he seeks from Roberts is properly due as actual damages. According to Roberts, “For numbers that are supposed to represent actual damages, the amounts sought by the plaintiff in his petition are curiously round.”

Roberts claims that Cameron’s testimony regarding his damages was speculative. Cameron never established why the property was so valuable for hunting or that it is now valueless. Cameron testified that his damages would be “no lower than $100,000,” but they could be higher. Roberts claims that this shows that Cameron is unsure of the proper value of his damages. Roberts urges that it is unclear whether this amount is to compensate for the reduction in the value of the land, loss of enjoyment, cost of replacing trees, or some combination of these factors.

In other assignments of error, Roberts asserts that Cameron failed to establish that Roberts was liable for any damages or that he was liable for $60,000. Roberts asserts that there was no evidence of the extent of his involvement in the cutting or his authority to direct J.K.M., which he | inmaintains was an independent contractor. He contends that Cameron was required to show that Roberts was exercising control over J.K.M. Roberts also urges that the “handshake agreement” claimed by Cameron is not sufficient to prove an obligation on the part of Roberts. Roberts maintains that Cameron’s testimony at the hearing to confirm the default was based on leading questions and hearsay, inadmissible evidence that cannot be used to support the default judgment.

Our review of the record supports Roberts’ claim. At the hearing to confirm the default, the proof submitted to the court consisted of the contract between Cameron and Roberts; the memo signed by Cameron, Roberts, and Martin; photos of the property; and the testimony of Cameron. At the hearing, Cameron testified that, even though the parties agreed that no oaks were to be cut on the property, all the oaks were cut down. He said that the pine trees were over-thinned, the property was damaged, and the defendants did not clean up as they agreed to do. He stated that some of the trees that were left standing blew down due to over-thinning. Cameron testified that he had to take other measures to dispose of the debris and deal with erosion problems. Cameron asserted that he hunted on the property and that his “dream property” was basically destroyed for the purposes for which he intended to use it.

Cameron stated that, after consulting with a forester, he had discussions with Martin and Roberts about the amount of damages. Cameron said that he had a handshake agreement with the defendants for $100,000 to repair the damage. J.K.M. agreed to accept responsibility for a |n portion of that amount. Cameron contemplated that J.K.M. and Roberts would each pay $50,000. J.K.M. felt that, due to the involvement of Roberts, its share should be less. J.K.M. ultimately agreed to pay Cameron $40,000.

This scanty evidence is not sufficient to establish the amount of damage done to the property or that Roberts was liable for $60,000 in damages. In his petition, Cameron alleged that it would be necessary to call certain expert witnesses to testify at trial. At the hearing on the confirmation of default, Cameron introduced into evidence a memo signed by all the parties acknowledging that there was some damage to the property. There was no specification of the amount of damage. When testifying at the confirmation of default, Cameron merely stated that, after consulting with a forester, he had discussions with Martin and Roberts about the amount of damage done to the property. Cameron claimed that he had a handshake agreement with Martin and Roberts about the amount of damages, but offered no proof to corroborate his testimony.

Cameron did not offer any evidence to show how many trees were allegedly cut in violation of his agreement with Roberts, the value of those trees, or the amount necessary for reforestation. While Cameron testified that he had to take other measures to dispose of debris on the property and deal with erosion problems, he did not establish with competent proof what was actually done or the cost of those measures.

Although he claimed that the property was ruined for hunting, he offered no expert testimony to prove this allegation or to establish how long it would take to establish a suitable habitat for hunting on the property. Further, he did not establish that he was an expert in forestry or that he was qualified in any way to quantify the damages claimed.

Cameron also failed to establish that Roberts was liable to him for $60,000 in damages. While there seems to be some agreement between the parties that Roberts supervised the timber cutting, the degree of his involvement was not established. Cameron offered no insight into how he and J.K.M. concluded that Roberts should be liable for $60,000.

Cameron’s testimony was largely given in response to leading questions and included hearsay testimony as to alleged conversations with a forester and with Martin and Roberts.

Based upon this record, Cameron simply did not present proof of his demand sufficient to establish a prima facie case against Roberts. The trial court erred in confirming the default judgment without sufficient evidence. The trial court also erred in failing to grant a motion for new trial in favor of Roberts because the default judgment was contrary to the law and evidence.

GOOD FAITH

Roberts argues that the trial court erred in failing to vacate the default judgment against him where the default was the result of Roberts’ good faith reliance on a third party, J.K.M., to provide representation for Roberts and a defense against Cameron’s lawsuit. Roberts maintains that, due to the indemnity and hold harmless clause in his agreement with J.K.M., and |1sJ.K.M.’s obligation to provide insurance, he was justified in his good faith belief that J.K.M. would handle the litigation on his behalf. Roberts asserts that he also had an oral agreement with J.K.M. to provide an attorney to defend him in this matter. Therefore, he argues that his failure to answer Cameron’s lawsuit should not be held against him.

He who seeks to have a default judgment against him set aside must allege and prove that he had good reasons for his nonappearance and failure to timely plead. Meshell v. Russell, supra. The jurisprudence pronouncing and applying this legal principle largely deals with cases in which the defendant seeks a new trial after the entry of a default judgment, claiming there was a good reason for nonappearance. See Pollock v. Talco Midstream Assets, Ltd., 46,302 (La.App.2d Cir.5/18/11), 70 So.3d 835, writ denied, 2011-1295 (La.9/23/11), 69 So.3d 1166; Meshell v. Russell, supra; West Consolidated Co., Inc. v. Creole Fisheries, 616 So.2d 268 (La.App. 2d Cir.1993); Kugle v. Hennessy, 480 So.2d 849 (La.App. 2d Cir.1985).

However, in the present case, the defendant has shown that there was insufficient evidence to support the default judgment. In such a case, the failure to account for nonappearance is not fatal to the claim to overturn a default judgment. See and compare Davis v. Coregis Ins. Co., 2000-00475 (La.App.3d Cir.12/27/00), 789 So.2d 7, writ denied, 2001-0292 (La.3/30/01), 788 So.2d 1192; Ereunao Oil & Gas, Inc. v. Northern, 98-1239 (La. App.3d Cir.2/3/99), 736 So.2d 893.

uUnder the facts presented in this case, we find that, as stated by the trial court, the issues regarding Roberts’ belief that J.K.M. and its insurers owed him a duty to defend against Cameron’s lawsuit, and whether there was a valid agreement to do so, are matters more properly considered in the third party demand pending between Roberts and J.K.M. Therefore, we do not reach consideration of this issue.

CONCLUSION

For the reasons stated above, the trial court’s rulings confirming a default judgment against Roberts and denying Roberts’ motion for new trial are reversed and the default judgment is vacated. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the plaintiff, Alan D. Cameron.

REVERSED; DEFAULT JUDGMENT VACATED; REMANDED.

      . During the course of the proceedings, Roberts filed a third party demand against J.K.M. The logging company filed various exceptions. At the conclusion of the hearing on the motion for new trial, the trial court ruled on J.K.M.'s exceptions. However, those issues are not before the court on this appeal.

      . A party who demands performance of an obligation must prove the existence of the obligation. La. C.C. art. 1831. When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of 500 dollars may be proved by competent evidence. If the price or value is in excess of 500 dollars, the contract must be proved by at least one witness or other corroborating circumstances. La. C.C. art. 1846.