author: KLINE, J.

text:
    Wilfred FONTENOT v. STATE of Louisiana, through the DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2012 CA 1265.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2013.

      Sheri M. Morris, Carlton Jones, III, Special Assistant Attorneys General, Baton Rouge, LA, for Defendant/Appellant, State of Louisiana, through the Department of Health and Hospitals.
    Thomas C. “Ted” Williams, Baton Rouge, LA, for Plaintiff/Appellee, Wilfred Fontenot.
    Before PARRO, WELCH, and KLINE, JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   KLINE, J.

| aDefendant/Appellant, State of Louisiana through the Department of Health and Hospitals (“DHH”), appeals a final judgment of the Office of Workers’ Compensation (“OWC”) that awarded workers’ compensation benefits to its former employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Wilfred Fontenot, alleges he was involved in a work-related accident on October 15, 2009, while in the course and scope of his employment as an administrative assistant with DHH. Following the accident, Mr. Fontenot filed a disputed claim for compensation with the OWC. Mr. Fontenot raised several claims, including the incorrect calculation of his workers’ compensation rate, the improper termination of his wage benefits, lack of authorization for medical treatment, and an alleged erroneous disability status designation, Mr. Fontenot also sought to recover all workers’ compensation benefits, including medical and indemnity benefits, as well as penalties and attorney fees.

Immediately prior to filing his disputed claim for compensation, Mr. Fontenot was charged in a separate criminal proceeding with felony theft, insurance fraud, and misrepresentation concerning workers’ compensation benefits in the amount of $12,054.54. These charges pertained directly to the benefits at issue in this workers’ compensation matter. No workers’ compensation benefits were paid to Mr. Fontenot following his arrest. At his arraignment, Mr. Fontenot pled not guilty.

DHH filed an answer to Mr. Fontenot’s claim, denying any knowledge of an accident occurring on October 15, 2009, which resulted in Mr. Fontenot incurring an injury or occupational disease. DHH further argued that Mr. Fontenot was not entitled to any medical, indemnity, or disability benefits, alleging the claimant had made false statements and material misrepresentations to obtain and maintain Rworker s’ compensation benefits. DHH asserted the affirmative defense of forfeiture, as Mr. Fontenot’s workers’ compensation benefits were terminated when it was discovered that he was simultaneously receiving both workers’ compensation and unemployment compensation benefits.

DHH filed a motion to continue the pretrial mediation and trial in the workers’ compensation case, pending the resolution of Mr. Fontenot’s criminal charges. The Workers’ Compensation Judge (“WCJ”) denied the continuance requested by DHH. Following the denial of the continuance, DHH filed a supervisory writ application with this court. This court declined to exercise supervisory jurisdiction on the writ application. Fontenot v. State, Department of Health and Hospitals, 2012-0002 (La.App. 1st Cir.1/4/12) (unpublished).

Following the trial on this matter, the WCJ ruled that DHH failed to meet its burden of proving that Mr. Fontenot forfeited his workers’ compensation benefits. DHH now appeals.

DISCUSSION

Forfeiture of Workers’ Compensation Benefits

DHH argues that Mr. Fontenot violated Louisiana Revised Statutes Annotated § 28:1208 by making false statements in order to obtain and maintain workers’ compensation benefits; therefore, his workers’ compensation benefits should be forfeited. Section 1208 provides in pertinent part:

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

1/The requirements for forfeiture of any right to workers’ compensation benefits under Section 1208 are that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Champagne v. Roclan Systems, Inc., 06-1928, p. 20 (La.App. 1 Cir. 2/20/08), 984 So.2d 808, 824, writ denied, 08-1356 (La.9/26/08), 992 So.2d 989. Once it has been determined that a false statement or representation has been made, the WCJ must make a factual determination as to whether, based on the record, the statement or representation was willfully made “specifically to obtain benefits, and thus to defraud the workers’ compensation system,” such that benefits should be forfeited. Issa v. LL & G Const., Inc., 02-1215, p. 8 (La.App. 1 Cir. 3/28/03), 844 So.2d 912, 917, writ denied, 03-1875 (La.10/31/03), 857 So.2d 480.

Forfeiture of workers’ compensation benefits is a harsh remedy, and statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any one of the elements is fatal to an employer’s avoidance of liability. Leonard v. James Indus. Constructors, 03-0040, p. 5 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 728, writ denied, 04-1447 (La.9/24/04), 882 So.2d 1139. Any employee who violates Louisiana Revised Statutes Annotated § 23:1208 shall, upon determination by a WCJ, forfeit any right to workers’ compensation benefits. La.Rev.Stat. Ann. § 23:1208(E). An employee is also subject to criminal and civil penalties, including restitution. La.Rev.Stat. Ann. § 23:1208(0 and (D).

Subsections 1208(F) and (G) also require the employer and employee to submit a form to the employer’s insurer that includes a summary of the fines and penalties for workers’ compensation fraud and further require the employee, upon reasonable request, to report his other earnings on a form to the employer’s insurer. These forms have been promulgated by the Louisiana Workforce Commission.

|fiThe issue of whether an allegedly false statement made by a claimant requires forfeiture of his workers’ compensation benefits is one of fact, which is not to be reversed on appeal absent manifest error. The party who requests that benefits be forfeited must show that the claimant’s statements were not only false, but must also show that the statements were willful and deliberately made with the intent to obtain benefits. Leonard, 03-0040 at p. 6, 879 So.2d at 729.

Mr. Fontenot claims to have been injured in a work-related accident on October 15, 2009. The fact of the accident is not in dispute. When his workers’ compensation benefits commenced, he signed a certification indicating that he understood and would comply with the obligation of notifying his employer’s insurer of any and all employment, including unemployment compensation. However, DHH did not provide Mr. Fontenot with the statutorily required forms, the 1020 and 1025(EE), to complete. Mr. Fontenot continued to receive workers’ compensation indemnity payments after his employment ended on May 12, 2010. On June 15, 2010, Mr. Fontenot applied for unemployment compensation benefits while still receiving workers’ compensation benefits. In order for an individual to receive unemployment compensation benefits, it must be determined that he “is able to work, available for work, and is conducting an active search for work.” La.Rev.Stat. Ann. § 23:1600(3)(a). Thus, not only was Mr. Fontenot required to certify that he was not receiving workers’ compensation for a job injury, he was also required to certify that he was willing and able to work. Despite this, Mr. Fontenot received workers’ compensation, and by deception, unemployment compensation benefits from June 26, 2010, through January 14, 2011.

The WCJ ruled that Mr. Fontenot did not willfully make a false statement or representation for the purpose of obtaining workers’ compensation benefits pursuant to Louisiana Revised Statutes Annotated § 23:1208. We agree. While Mr. Fonte-not did make false statements when he told the Office of Unemployment | f,Security he was not receiving workers’ compensation benefits, his false statements were made for the purpose of obtaining unemployment compensation benefits, not workers’ compensation benefits. Mr. Fontenot never made a false statement to DHH regarding his receipt of unemployment compensation benefits, and DHH never asked Mr. Fontenot whether he was receiving unemployment compensation benefits. Mr. Fontenot’s failure to report his receipt of unemployment benefits to DHH does not amount to a “false statement” or “representation” in order to obtain workers’ compensation benefits.

Additionally, DHH was statutorily required to supply Mr. Fontenot with the 1020 employee’s monthly report of earnings form and the 1025(EE) employee certificate of compliance form that sets forth with particularity the fines and penalties for workers’ compensation fraud. However, DHH did not provide Mr. Fontenot with these forms prior to the termination of his benefits. The ‘certification’ that was signed by Mr. Fontenot was a form stating that he was not to receive wages, unemployment compensation, or other compensation at the same time. This form did not include a summary of the fines and penalties for workers’ compensation fraud, the names, addresses, and phone numbers of the employee and employer, nor was it signed by the employer, or dated.

Furthermore, DHH was notified on June 13, 2010, by the Office of Unemployment Security that Mr. Fontenot had been awarded unemployment compensation benefits. Uncontroverted testimony before the trial court also revealed that DHH actually advised Mr. Fontenot to apply for unemployment compensation benefits the day after his position was terminated. At that time, DHH should have notified Mr. Fontenot that he could not receive both 17unemployment compensation benefits and workers’ compensation benefits at the same time and then notified the adjuster to apply week-for-week credits during any period unemployment compensation benefits were received, instead of continuing to pay workers’ compensation benefits.

Attorney Fees in Workers’ Compensation Forfeiture Action

After rejecting DHH’s fraud defense regarding the termination of Mr. Fontenot’s workers’ compensation benefits, the WCJ awarded Mr. Fontenot $10,000 in attorney fees. DHH argues that its conduct was not arbitrary and capricious, because there was a valid reason for terminating Mr. Fontenot’s benefits. DHH also asserts that, even if the award of attorney fees was proper, the award in this case was excessive.

Penalties and attorney fees are not benefits awarded to an employee; they are sanctions imposed on an employer, subject to the same standard of appellate review as any other factual determination made by the WCJ. Leonard, 03-0040 at p. 10, 879 So.2d at 731. The attorney fees awarded by the WCJ were based on the time, energy, and efforts expended by Mr. Fontenot’s attorney and are supported in the reasons for judgment. We find no manifest error in the amount of attorney fees awarded by the WCJ.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal, in the amount of $868.85, are assessed to the Defendant/Appellant, State of Louisiana through the Department of Health and Hospitals.

AFFIRMED.

PARRO, J., concurs without reasons.

      . We are also unable to confirm that a 1025EE form was provided to Mr. Fontenot after his benefits were terminated. The claims adjuster, John Chamberlain, acknowledged that Mr. Fontenot was not sent a form 1025EE, and there is no form 1025EE in the record. The record also indicates that 1020 forms were sent to Mr. Fontenot’s attorney on February 9, 2011, after the benefits were terminated, but a 1025EE form is not included in the documents sent on that date.


source: Caselaw Access Project

author: PITMAN, J. PER CURIAM

license: Public Domain

text:
    Lydia Pipes ROANE, et al., Plaintiffs-Appellants v. Scott Baughman JONES, et al., Defendants-Appellees.
    No. 47,860-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Opinion on Rehearing May 15, 2013.

      Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA, by J. Todd Benson, for Appellants.
    Law Offices of Joseph A. Cusimano, Jr., Farmerville, LA, by Joseph A. Cusimano, Jr., Hayes, Harkey, Smith & Cascio, L.L.P., Monroe, LA, by Thomas M. Hayes, III, Brandon W. Creekbaum, for Appel-lees.
    Before DREW, LOLLEY & PITMAN, JJ.
   PITMAN, J.

| ¶ Plaintiffs Lydia Pipes Roane, Windsor Everette Pipes, Katherine Keebler Huddle, Sarah Faye Keebler Kroger, Joseph Henry Enos, Charles Earl Enos, Mike Larson, Daryl Larson, Corry Larson, Mary Tetrev and Gladys Corry Beaver Price (collectively, “Plaintiffs”), have appealed a judgment sustaining certain exceptions of prescription and peremption in favor of Scott Baughman Jones, individually and as administrator of the Succession of Edward Allen Jones, Jr., and Leslie Jones (collectively, “Defendants”), rendered by the Third Judicial District Court, Union Parish, Louisiana, in this case which involves the theft of land through a series of fraudulent transactions. The trial court certified the partial final judgment as immediately appealable under La. C.C.P. art. 1915(B). For the following reasons, we affirm that portion of the judgment certifying the partial final judgment as an ap-pealable judgment under La. C.C.P. art. 1915(B), and reverse and vacate the judgment of the trial court sustaining the exceptions of prescription.

FACTS

Plaintiffs are the heirs of Mr. J.D. Baughman, from whom they received an interest in various and substantial properties. Edward Allen Jones, Jr. (“Jones”) also owned an interest in these properties. In the 1980s, Plaintiffs gave Jones powers of attorney to administer their interests in the family estate (“the Baughman acreage”), which includes the property at issue in this lawsuit (“the Property’)- From the late 1980s until the early 1990s, Jones administered Plaintiffs’ interests responsibly. In the mid-to late 1990s, however, unbeknownst to Plaintiffs, Jones began to breach his 12fíduciary duties to Plaintiffs by repeatedly conveying property of the Baughman acreage first to himself, and then to his son and daughter-in-law, Scott and Leslie Jones. Jones did not inform Plaintiffs of any of these conveyances and did not remit any of the funds obtained from the alleged sales to them. Jones died in January 2007, and Scott Jones was named the administrator of his estate.

Plaintiffs filed suit on November 24, 2009, and alleged that, on May 4, 1999, Jones conveyed approximately 888 acres of the Baughman acreage to himself for $55,000. On or about the same day, Jones donated all 888 acres to Scott Jones. This donation included a 76-acre tract which is still in Scott Jones’ possession and which Plaintiffs seek to recover in this action. Scott Jones has conveyed most of the 888 acres to third parties.

Plaintiffs’ suit alleged that, on February 3, 2000, Jones conveyed a 876-acre tract, which included a 340-acre tract that is the subject of this litigation, to Leslie Jones for a stated price of $76,800. Plaintiffs seek the return of the 340-acre tract, which is still in Defendant Leslie Jones’ possession, claiming the sale was a disguised donation and an absolute nullity since Jones was not granted the authority by the powers of attorney to make such a donation.

Plaintiffs’ suit alleged causes of action in fraud, conspiracy, self-dealing, unfair business practices and breach of fiduciary duties. They sought rescission of the sales, damages, costs, attorney fees and interest. The petition was amended, adding allegations that Jones breached his fiduciary and contractual duties to Plaintiffs by engaging in other acts of ¡.-¡wrongful conduct, including selling numerous tracts of land belonging to Plaintiffs to third parties and keeping the funds for himself.

Defendants filed various exceptions of prescription and peremption, including the following: 1) prescription of one year for delictual causes of action, i.e., fraud, arising from the May 4 and 5,1999 transaction and the February 3, 2000 transaction; 2) prescription of five years for claims against the succession alleging that the transactions are relative nullities; 3) prescription of ten years for Plaintiffs’ cause of action against the succession for damages based on the May 4, 1999 deed; and 4) Plaintiffs’ claims against Leslie Jones based on lesion beyond moiety.

Before the hearing on the exceptions of prescription, Plaintiffs filed a second supplemental and amended petition. Paragraph 45 alleged that the February 3, 2000 conveyance of the 376-acre tract to Leslie Jones for $76,800 was not a sale, but a donation in disguise. Plaintiffs alleged that, as a simulation and fraudulent transaction, it was an absolute nullity and was imprescriptible. Paragraph 51 of the petition cited other conveyances from Jones to Scott Jones, which they claimed were not sales, but were donations in disguise, including the following:

A. .56 acres on August 5, 1993, for $3,000.
B. 1.9 acres on August 5, 1993, for $3000.
C. 20 acres on August 5, 1993, for $5000.
D. 9 acres on February 28, 1994, for $10,000.
E. 23 acres on February 28, 1994, for $7,000.
F. 15.23 acres on February 22, 1999, for $7,500.
G. 120 acres on February 16, 1995, for $45,000.

Plaintiffs claimed Scott Jones never paid anyone for the properties cited above. Plaintiffs claimed that, since those property conveyances were | ^simulations and fraudulent transactions, they were absolute nullities and imprescriptible. Plaintiffs alleged that Jones lacked the authority to donate these properties; and, therefore, the transactions are null. Plaintiffs asked that, to the extent the property had not been conveyed to parties in good faith, the conveyances be rescinded and the property returned to them.

Hearings were held on the exceptions of prescription and peremption in October and December 2011. At the first hearing, Defendants claimed that several causes of action asserted in the petition had prescribed on the face of the petition and, therefore, that the burden shifted to Plaintiffs to prove the claims had not prescribed. Defendants claimed that Plaintiffs never alleged in their petition when they became aware of their causes of action and that the exceptions should be sustained for that reason. Plaintiffs argued that the causes of action had not prescribed on the face of the petition because they had alleged that Defendants had hidden information necessary for them to be aware of their claims and that they could not allege a negative.

Defendants introduced copies of the May 1999 and February 2000 recorded documents at issue. Defendants also pro-Added the trial court -with evidence in the form of testimony of the attorney for the estate of Edward Allen Jones. The attorney, Joseph Cusimano, represents Scott Jones as Administrator of the Succession of Edward Allen Jones, Jr., in this litigation. Mr. Cusimano testified that, in June 2001, he received a letter from the law firm of Dawkins, Carter & Shadoin, which currently represents Plaintiffs in this suit, requesting information regarding transactions entered Rinto by Jones from sometime in 1995 until his death. Mr. Cusimano testified that he sent a list of transactions entered into by Jones, and the list included those of May 4 and 5, 1999, and of February 3, 2000. Plaintiffs’ attorney objected to the introduction of the testimony and the list of transactions on the basis that the letter being referred to in no way indicates for whom Mr. Carter was requesting the information and that the letter was not authenticated and was hearsay.

Defendants also introduced into evidence a lawsuit record for a possessory action entitled Rugg v. Vaughn, et al, Docket No. 40,482, Union Parish, filed in August 2005, which they claimed should have put some Plaintiffs in the case at bar on notice that Jones was committing a fraud upon them. In Rugg, Scott and Leslie Jones had sold the Ruggs some property in 2004, which was part of the acreage donated to Scott by Jones. A year later, the Ruggs learned that the May 4, 1999 sale from Plaintiffs in the suit at bar to Jones and subsequent donation to Scott Jones created a continuing disturbance in the law of the Ruggs’ right to possession of the property since the powers of attorney by which Jones transferred the property to himself did not grant the specific power to convey the property. The judgment rendered in the Rugg case maintained the Ruggs’ right to possession of the property they had acquired, and the defendants (some, but not all of the Plaintiffs herein) were ordered to assert their respective adverse claims of ownership to the immovable property by the filing of a | Rpetitory action within 60 days of the finality of the judgment. Apparently, no such action was ever filed.

In the case at bar, an oral judgment was rendered on October 6, 2011, which sustained exceptions of prescription as to certain exceptions listed below. The trial court noted that the exceptions had not been filed in response to the second amended petition until after the October hearing; therefore, another hearing was held, after which the trial court rendered another oral judgment in December 2011. The trial court signed one judgment adopting its oral reasons for judgment from both hearings and ruled as follows:

1. The exception of prescription of one year filed with respect to causes of actions for damages in tort against Scott and Leslie Jones, individually, and Scott Jones as administrator of the Succession of Edward A. Jones, Jr., based on fraud and conspiracy, was sustained as to (a) the May 4,1999, deed from Edward Jones individually and as agent to himself; (b) the donation dated May 5, 1999, from Edward A. Jones to Scott Jones; (c) the deed dated February 3, 2000, from Edward A. Jones to Leslie Jones; and (d) all transactions identified in the second supplemental and amended petition in paragraphs 45 and 51. Plaintiffs had failed to establish that they did not learn of the transactions less than one year before the suit was filed. These actions were dismissed with prejudice.

2. The exception of prescription with regard to lesion beyond moiety was sustained.

Iv3. The exception of prescription of five years relating to Plaintiffs’ action to set aside the transactions (a) dated May 4, 1999, (b) May 5,1999, (c) February 3, 2000, and (d) all transactions identified in paragraphs 45 and 51 of Plaintiffs’ second supplemental and amended petition, on the basis that Jones exceeded his authority and engaged in self-dealing, was sustained. Plaintiffs’ claims against all Defendants to set aside those transactions for want of the agent’s authority were dismissed with prejudice.

4. The exception of prescription of ten years based on claims of Jones’ breach of fiduciary duty with regard to the May 4, 1999 deed by which Jones, individually and as agent, sold to himself property owned by his principals, and with respect to all transactions identified in paragraph 51 of Plaintiffs’ second supplemental and amended petition, was sustained. Plaintiffs’ claims against the Succession of Edward Jones, Jr., for damages with respect to any transactions which occurred more than ten years prior to the institution of the suit were dismissed with prejudice.

5. The exception of prescription filed by the Succession of Edward Allen Jones, Jr., with regard to claims of breach of fiduciary duty by the deceased relating to the February 3, 2000 sale of 376 acres to Leslie Jones was overruled.

6. The exception of prescription with regard to all claims for rescission of all the alleged transactions on the basis that they were simulations was also overruled.

|RAt the Defendants’ request, the trial court certified the partial judgment sustaining the exceptions of prescription as a final and immediately appealable judgment under La. C.C.P. art. 1915(B). This appeal ensued.

DISCUSSION

Certification of the partial final judgment under La. C.C.P. 1915(B)

Plaintiffs’ first assignment of error argues that the trial court erred in certifying this partial final judgment, which sustained in part and overruled in part, exceptions of prescription, as an immediately appealable judgment under La. C.C.P. art. 1915(B). Specifically, Plaintiffs argue that the judgment should not be deemed immediately appealable because it did not dismiss any party or remove any transaction at issue from their claims. Plaintiffs also argue that the judgment does not narrow the scope of evidence to be presented at trial and the certification of this judgment as final and immediately appealable will result in a piecemeal appeal. Plaintiffs further argue that the adjudicated and unad-judicated claims are closely related and there is a possibility that the need for review of the dismissed causes of action might be mooted by future developments.

La. C.C.P. art. 1915(B) states as follows:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
|a(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Banks v. State Farm Ins. Co., 30,868 (La.App.2d Cir.3/5/98), 708 So.2d 523, this Court stated:

[Although the presence of a particular type of partial judgment on the list of Article 1915(A), as well as the agreement of the parties for there to be a “final judgment” under Article 1915(B)(1), are matters for the trial court to consider for purposes of certification, neither factor mandates certification. Instead, partial judgments should be certified only after a case-by-case consideration of the judicial administrative interests and equities involved. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). The trial court may consider the guiding factors listed in Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3d Cir.1975):
(1) The relationship between the adjudicated and unadjudicated claims;
(2) The possibility that the need for review might or might not be mooted by future developments in the district court;
(3) The possibility that the reviewing court might be obliged to consider the same issue a second time;
(4) The presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and
(5) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

The trial court considered several factors listed above when it certified the judgment as immediately appealable, and the judgment specifically states that certification was justified because it would eliminate Imthe possibility of a second trial, it would eliminate the possibility that this court would have to revisit the ruling and there were no serious mitigating factors.

In the interest of judicial economy, and in an effort to avoid piecemeal appeals and the necessity of further review of the prescription issues at a later date, we agree that the trial court did not err when it certified this partial final judgment as immediately appealable. For this reason, we will address the merits of the issues raised on appeal pertaining to the sustaining of the exceptions of prescription.

One-year prescriptive period

Plaintiffs’ first assignment of error concerns that portion of the judgment sustaining the exception of prescription of one year with regard to causes of action relating to their tort claims against Scott and Leslie Jones for fraud. Plaintiffs assert that their tort claims against those Defendants have not prescribed because Plaintiffs had no knowledge of the alleged fraud a year before the suit was filed. Plaintiffs assert that, although a delictual fraud claim is subject to a one-year prescriptive period, prescription does not begin to run until they knew or should have known of their cause of action. Prescription does not run against a person who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable. Further, Plaintiffs argue that, if a defendant has concealed information or misled and lulled the plaintiff into inaction, prescription does not begin to run if the cause of action has not established itself with sufficient certainty.

1 n Generally, the party raising an exception of prescription or peremption ordinarily bears the burden of proof at the trial of a peremptory exception. McKinley v. Scott, 44,414 (La.App.2d Cir.7/15/09), 17 So.3d 81. However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id. When evidence is introduced at the hearing on the peremptory exception, the factual conclusions of the district court are reviewed under the manifest error-clearly wrong standard of review. McGuire v. Mosley Rogers Title Co. L.L.C., 43,554 (La.App.2d Cir.9/17/08), 997 So.2d 23, writ denied, 08-2728 (La.1/30/09), 999 So.2d 757; Scranton v. Ashley Ann Energy, L.L.C., 46,984 (La.App.2d Cir.4/11/12), 91 So.3d 1174, writ denied, 12-1345 (La.9/28/12), 98 So.3d 846.

The applicable prescriptive period is determined by the character of the action disclosed in the pleadings. Johnson v. Ledoux, 42,090 (La.App.2d Cir.5/16/07), 957 So.2d 911, writ denied, 07-1482 (La.10/05/07), 964 So.2d 946. Delictual actions are subject to a liberative prescription of one year from the day injury or damage is sustained. La. C.C. art. 3492; Aakal Lodging, L.L.C. v. American Exp., 47,219 (La.App.2d Cir.6/20/12), 94 So.3d 197, writ denied, 12-1710 (La.11/2/12), 99 So.3d 672. The standard controlling review of a peremptory exception of prescription requires the court of appeal to strictly construe the statute against prescription and in favor of the claim that is said to be extinguished. Reggio v. E.T.I., 07-1433 (La.12/12/08), 15 So.3d 951.

|12Generally, the doctrine of contra non valentem suspends prescription where the circumstances of the case fall into one of the following categories:

1. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
2. Where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
3. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and
4. Where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

The doctrine of contra non va-lentem is based on the theory that, when the claimant is not aware of facts giving rise to his cause of action against a particular defendant, the running of prescription is suspended until the plaintiff discovers or should have discovered the facts upon which the action is based. Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2d Cir.1993), writ denied, 631 So.2d 445 (La.1994); Schoen v. Walling, 31,598 (La.App.2d Cir.2/24/99), 728 So.2d 982. Constructive knowledge sufficient to start the running of prescription requires more than mere apprehension that something might be wrong. Whatever is notice enough to excite attention and to put the claimant on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead, and such information or knowledge as ought to put the plaintiff on inquiry is sufficient to start the running of prescription. Kilpatrick v. Kilpatrick, supra; Tilley v. Kennedy, 605 So.2d 226 (La.App. 2d Cir.1992). Prescription begins to run when a cause of action is known or reasonably knowable to the plaintiff. The plaintiff will be deemed to know what, by reasonable diligence, he could have learned. Kilpatrick v. Kilpatrick, supra.

Prescription does not run against a person who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable. Prescription does not run if the cause of action has not established itself with sufficient certainty to be susceptible of proof in a court of justice, or if the defendant has concealed information or misled and lulled the plaintiff into inaction. Gulf States Land & Dev., Inc. v. Ouachita Nat’l. Bank in Monroe, 612 So.2d 1031 (La.App. 2d Cir.1993), writ denied, 618 So.2d 406 (La.1993). However, prescription is not interrupted until the plaintiff can obtain sufficient evidence to prove the claim or to corroborate the plaintiffs account of the tort. Gulf States Land & Dev., Inc. v. Ouachita Nat’l Bank in Monroe, supra.

Any theory of constructive knowledge which imputes knowledge of the contents of the public records to third persons forms no part of the public records doctrine. Where an obligee is seeking to annul an act of an obligor, the act of recordation in the public records does not, standing alone, provide constructive knowledge to the obligee of the act, as would commence the running of prescription. Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. The date upon which an 114obligee who is seeking to annul an act of an obligor learned or should have learned of the act, as would commence the running of prescription, is a factual determination to be made by the trial court considering all the facts and circumstances of the case. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227.

Defendants’ original exception of prescription of one year argued that the transactions which were cited in Plaintiffs’ petition were publicly registered in 1999 and 2000. Defendants claimed that any damages sustained by Plaintiffs as a result of the alleged fraud related to those transactions would have first occurred on the dates of the public recordation of the instruments and that Plaintiffs had one year to file a lawsuit. Since they did not file the lawsuit until November 24, 2009, the petition was prescribed on its face as to all claims asserted against them.

In sustaining this exception, the trial court found that, because the cause of action for tort had prescribed on the face of the petition, the burden had shifted to Plaintiffs to establish that they did not learn of the transactions less than one year before the suit was filed. At the hearing on the exception, Plaintiffs had offered no evidence indicating when they discovered the fraud had occurred; therefore, the trial court sustained the exception of prescription of one year.

We disagree with the ruling of the trial court in finding that prescription had tolled on the face of the petition and that the burden shifted to Plaintiffs to establish when they learned of Defendants’ acts of fraud against them. Scott and Leslie Jones were the parties to whom the sub,ject 115property was transferred, either by donation or by alleged simulated sales on May 4,1999, May 5,1999, and February 3, 2000. Plaintiffs have alleged that these transfers of property were made without their knowledge or consent and that Jones did not have the authority to make these transfers of the property.

Plaintiffs alleged that Scott and Leslie Jones conspired with Jones to wrongfully deprive Plaintiffs of their ownership interests in the Property, as well as payment for their ownership interests. They also alleged that, at the time of the conveyances of the Baughman acreage to Defendants, Scott Jones told various Plaintiffs that “nothing was going on” with the property, suggesting that Defendants concealed the fraudulent acts from the Plaintiffs. In the second supplemental and amended petition, these transfers are alleged to be absolute nullities, which are imprescrip-tible under La. C.C. art. 2032, which states that “An action for annulment of an absolutely null contract does not prescribe.” The trial court rendered a judgment finding that Plaintiffs’ claims for fraud based on the simulated transactions were not subject to prescription; therefore, the consideration of whether these transfers were fraudulent acts is still at issue in the trial of this matter. The evidence surrounding the May 1999 donation to Scott Jones and the February 2000 alleged simulated sale to Leslie Jones will still be introduced at the trial. There is a connexity between the claim for fraud based on tort and the fraud based on the transfer of the property by an absolutely null contract and they are inextricably interrelated.

| ifiFor these reasons, we find that this assignment of error has merit. Since an appellate court must strictly construe a statute against prescription and in favor of the claim that is said to be extinguished, we find that, on this record, Plaintiffs’ claims for fraud against Scott and Leslie Jones have not prescribed. Further, Defendants have an adequate remedy by review on appeal of the final judgment on the merits in the event a judgment is rendered against them that results in damages which would not have been assessed against them on the larger fraud issue.

Five-year prescriptive period

Plaintiffs’ second assignment of error contests that part of the judgment that sustained the exception of prescription of five years relating to Plaintiffs’ action to set aside the transactions (a) dated May 4, 1999, (b) May 5, 1999, (c) February 3, 2000, and (d) all transactions identified in paragraphs 45 and 51 of Plaintiffs’ second supplemental and amended petition, on the basis that Jones exceeded his authority and engaged in self-dealing. Specifically, Plaintiffs argue that, although a prescriptive period of five years is applicable to actions of an agent who self-deals, they alleged in their second supplemental and amending petition that the transactions listed above are absolute nullities instead of relative nullities and, as such, are imprescriptible.

Plaintiffs also argue that, even if the five-year prescriptive period for actions of relative nullity is applied, that period of prescription did not run since Plaintiffs asserted their action to rescind the putative transactions within five years of acquiring knowledge of their representative’s ultra vires | 17acts. Alternatively, Plaintiffs argue that it was error for the trial court to have sustained the exception since they have alleged they did not receive knowledge of the facts which gave rise to the causes of action set forth in their original and supplemental petitions until less than five years before the date of filing suit and the burden of proving prescription remained with Defendants in this action.

The Defendants provided the testimony of Mr. Cusimano and a document dated in 2001, through which Mr. Carter, an attorney for Plaintiffs, had received a list of transactions entered into by Jones and referencing the May 1999 and February 2000 transactions. However, that information in no way indicated on whose behalf Mr. Carter was making the inquiries or requesting the information; therefore, we cannot conclude that Plaintiffs should have been put on notice that any problems had occurred as of that date as a result of the information being passed on to Mr. Carter.

Although Defendants presented the trial court with information relative to the Rugg, supra, case, which would indicate Plaintiffs should have been put on notice that there were third persons who were claiming to possess their property through the acts of Jones, the Rugg suit was not filed until August 2005. Plaintiffs’ instant suit was filed in November 2009, within five years of the filing of the Rugg suit. The standard controlling review of a peremptory exception of prescription requires the court of appeal to strictly construe the statute against prescription and in favor of the claim that is said to be extinguished. We, therefore, find that this | ^assignment of error has merit, and this action for damages based on Jones’ ultra vires acts and self-dealing has not prescribed.

Ten-year prescriptive period

Plaintiffs’ third assignment of error concerns the sustaining of the exception of prescription of ten years based on claims of Jones’ breach of fiduciary duty with regard to the May 4, 1999 deed by which Jones, individually and as agent, sold to himself property owned by his principals, and with respect to all transactions identified in paragraph 51 of Plaintiffs’ second supplemental and amended petition. Plaintiffs’ claims against the Succession of Edward Allen Jones, Jr., for damages with respect to any transactions which occurred more than ten years prior to the institution of the suit were dismissed with prejudice.

Based on the reasoning as to the foregoing exceptions of prescription of one and five years, we find that the ruling on this exception of prescription of ten years should be reversed and vacated. Plaintiffs filed their petition within a ten-year period after discovering Jones’ breach of fiduciary duty by which he sold Plaintiffs’ property to himself and then donated the property to his son and transferred property to his daughter-in-law. Therefore, this assignment of error has merit, and the judgment of the trial court is hereby reversed and vacated.

CONCLUSION

For the reasons stated above, we affirm the certification of the partial judgment as a final and immediately appealable judgment and find in favor of Plaintiffs, Lydia Pipes Roane, Windsor Everette Pipes, Katherine Keebler 119HuddIe, Sarah Faye Keebler Kroger, Joseph Henry Enos, Charles Earl Enos, Mike Larson, Daryl Larson, Corry Larson, Mary Tetrev and Gladys Corry Beaver Price, reversing and vacating the judgment which sustained the exceptions of prescription in favor of Defendants, Scott Baughman Jones, individually and as administrator of the Succession of Edward Allen Jones, Jr., and Leslie Jones. Costs of this appeal are assessed to Defendants.

AFFIRMED IN PART, REVERSED IN PART AND VACATED.

ON REHEARING

Before STEWART, DREW, LOLLEY, PITMAN & GARRETT, JJ.

PER CURIAM

ON REHEARING.

hWe note that the opinion rendered by this court in this matter contained a typographical error. The opinion states that Edward Alen Jones died in January 2007; when, in fact, he died in January 2001. This typographical error had no impact on any decision of this Court.

      . Defendants claim all of the Plaintiffs were named as defendants in the Rugg suit, but Plaintiffs claim not all of them were defendants in the action.

      . Plaintiffs have not appealed this decision.

      . Based on the language contained in the notice of appeal, the overrulings of the exceptions cited as 5) and 6) in this list do not constitute part of the final judgment.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    DAZET MORTGAGE SOLUTIONS LLC, Chou Chou, LLC, RC Holding LLC, Lillylyd LLC, Wabash Properties, LLC, Belfast Properties, LLC, Denada Investments, LLC, Riverblend LLC, LMMB, LLC, NG Investments, LLC, Riverbend Capital, LLC, Allstar RV Rentals, LLC, and Michael Dazet v. Gregory G. FAIA, Faia & Associates, LLC, and Security Title of Louisiana.
    No. 12-CA-486.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Jacques F. Bezou, Jacques F. Bezou, Jr., Attorneys at Law, Covington, LA, for Plaintiff/App ellee.
    David S. Daly, Scott F. Davis, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

RThis appeal arises out of the trial court’s judgment finding defendant to be in contempt of court, taxing court costs associated with the contempt rule, and awarding $2,500.00 in attorney fees. We find the evidence sufficient to support the trial court’s finding of contempt; however, we find the trial court improperly awarded $2,500.00 in attorney fees in favor of plaintiffs because La. R.S. 13:4611 permits only a maximum fine of $500.00 payable to the court. We affirm the trial court’s judgment finding defendant in contempt of court and taxing costs associated with the contempt rule. However, because we find the trial judge did not impose a “fine” as contemplated under La. R.S. 31:4611, we vacate that portion of the judgment imposing $2,500.00 in attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

On November 24, 2009, plaintiffs, Dazet Mortgage Solutions, LLC, Chou Chou LLC, RC Holding LLC, Lillylyd LLC, Wabash Properties LLC, Belfast Properties LLC, Denada Investments LLC, Riv-erblend LLC, LMMB LLC, NG Investments LLC, Riverbend Capital LLC, Alistar RV Rentals LLC, and Michael Dazet, filed a “Petition for Damages, Accounting, Disgorgement of Legal Fees, and Return of Clients’ Files” against defendants Gregory Gerard Faia, Faia & | ..Associates, LLC and Security Title of Louisiana. The petition alleges that plaintiffs retained defendants to represent them in multiple real estate transactions and to provide other various legal services. The petition also alleges legal malpractice in that defendants fraudulently handled real estate closings; failed to provide title insurance after receiving fees to obtain said insurance; and improperly released promissory notes prior to plaintiffs receiving full payment. Plaintiffs sought an accounting for each matter defendants handled on their behalf. Plaintiffs attached to their petition a proposed order that defendants return to plaintiffs “the entire files regarding plaintiffs, and an accounting regarding the same immediately.” On December 2, 2009, the trial judge issued the ex parte order, ordering defendants to return plaintiffs’ files and to produce an accounting.

On February 2, 2010, plaintiffs filed a motion for appointment of a private process server. On February 17, 2010, defendants received service of the petition and the trial court’s order. Plaintiffs subsequently filed a “Rule for Contempt and Sanctions,” asserting that defendants had not returned the requested files and had not produced any accounting in violation of the court’s December 2, 2009 order. The trial court issued a rule to show cause and, on October 22, 2010, the trial court held a hearing but did not determine the merits of the contempt rule on that date.

On November 4, 2010, plaintiffs filed a second “Rule for Contempt and Sanctions.” The trial court conducted a two-day hearing beginning on January 28, |42012. On March 2, 2012, the trial court issued a written judgment finding defendant Faia in contempt for failure to provide an accounting to plaintiffs as ordered by the court. The judgment further taxed court costs related to the contempt rule and awarded $2,500.00 in attorney fees in favor of plaintiffs. Defendants appeal, asserting that: the December 2, 2009 order should be declared an absolute nullity because it was issued prior to service of the petition upon defendant Faia; the trial judge abused his discretion in finding Faia’s failure to comply with the December 2, 2009 order contemptuous beyond a reasonable doubt; and the contempt judgment at issue is absolutely null because the trial court issued the judgment after the death of plaintiff, Michael Dazet.

LAW AND ANALYSIS

Validity of December 2, 2009 Order

Faia challenges the validity of the trial court’s December 2, 2009 order, asserting it should be declared an absolute nullity because, at the time the trial court issued the order, he had not yet been personally served with the petition. A judgment rendered against a defendant who has not been validly served with the petition is absolutely null. La. C.C.P. art. 1201. Without such citation and service of process, the court does not have personal jurisdiction over the defendant. Abbasi v. State Farm Ins. Co., 04-44 (La.App. 5 Cir. 5/26/04), 875 So.2d 988, 991, writ denied, 04-2076 (La.9/24/04), 882 So.2d 1135. However, a party may waive his right to object to the insufficiency or lack of citation and service if he 1 ..¡submits to the jurisdiction of the court by making a general appearance in the proceeding pending against him. Id.; see also Dupont v. Poole, 335 So.2d 764, 766 (La.App. 3 Cir.1976). Although the waiver through a general appearance has been eliminated from our law by the repeal of La. C.C.P. art. 7, a party can nevertheless waive an objection to the jurisdiction by an appearance of record. Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 866; Sam v. Feast, 00-1163 (La.App. 1 Cir. 3/28/01), 802 So.2d 680, 683-84. An appearance of record includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. Perkins, 30 So.3d at 866; see also La. C.C.P. art. 1671.

In this case, defendants’ Answer and subsequent pleadings filed constitute appearances of record whereby Faia submitted himself to the jurisdiction of the court. Thus, although the trial court did not have personal jurisdiction over Faia at the time it issued the December 2, 2009 order, Faia waived the jurisdictional defect by making an appearance of record after receiving service and actively participating in the suit.

Faia further claims that the trial court erred in issuing the December 2, 2009 order ex parte without a contradictory hearing. First, defendants failed to file a motion to set aside or challenge the validity of the December 2, 2009 order. Furthermore, we find that the trial court did not err in issuing the order ex parte.

La. C.C.P. art. 963 provides that “[i]f the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.” Rules 1.15 and 1 B1.16 of the Rules of Professional Conduct entitle a former client to the return of the entirety of his files and any property belonging to a client as well as an accounting of such property. The Rules of Professional Conduct have the force and effect of substantive law. In re Tutorship of Prop. of Huddleston, 95-97 (La.App. 5 Cir. 4/25/95), 655 So.2d 416, 422.

In their petition, plaintiffs sought the “return of all of their complete files” and “return of escrow funds not properly accounted for.” Based upon the facts alleged in the petition, we find that Rules 1.15 and 1.16 of the Louisiana Rules of Professional Conduct clearly entitle plaintiffs to the relief awarded in the December 2, 2009 order. Therefore, we find the trial court did not err in issuing the December 2, 2009 order ex parte.

Contempt Proceedings

Louisiana Code of Civil Procedure article 191 states: “[a] court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” The court’s inherent power includes the power to punish for contempt. In re Jones, 10-66 (La.App. 5 Cir. 11/9/10), 54 So.3d 54, 58, writ not considered, 10-2738 (La.2/4/11), 56 So.3d 979. Contempt of court is “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La. C.C.P. art. 221. Willful disobedience of any lawful judgment, order, mandate, |7writ, or process of the court constitutes constructive contempt of court. La. C.C.P. art. 224. To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly and purposefully, without justifiable excuse. Billiot v. Billiot, 01-1298 (La.1/25/02), 805 So.2d 1170, 1174.

A contempt of court proceeding is either criminal or civil. Id. In a criminal contempt proceeding, the court seeks to punish a person for disobeying a court order, whereas in a civil contempt proceeding, the court seeks to force a person into compliance with a court order. Billiot, 805 So.2d at 1174. In this case, the trial court considered the issue of whether Faia should be punished for willfully disobeying the court’s December 2, 2009 order and it is therefore a criminal contempt proceeding. Id.

To constitute willful disobedience necessary for criminal contempt, the act or refusal to act must be performed with intent to defy the authority of the court. Id. A trial court is vested with great discretion in determining whether circumstances warrant holding a party in constructive contempt of court pursuant to La. C.C.P. article 224 for willful disobedience of a court order. Short v. Short, 12-312 (La.App. 5 Cir. 11/13/12), 105 So.3d 892, 896. On appellate review of criminal contempt proceedings, the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the contempt charge was proved beyond a reasonable doubt. Billiot, 805 So.2d at 1174.

The testimony at the contempt hearing revealed a close relationship between plaintiff Michael Dazet and defendant Faia. Dazet and Faia shared office space for a period of time and defendants performed legal work for multiple property ^transactions, with Faia acting as the closing attorney, and collected money for title insurance policies and other fees. Defendants Faia and Faia & Associates also performed various other legal services for plaintiffs-companies, including drafting leases and promissory notes as well as representing at least one plaintiff-company in a civil lawsuit.

The December 2, 2009 order at issue required Faia to return any client files still in his possession and to provide plaintiffs with an accounting in connection with those files. At the contempt hearing, defendants put forth evidence showing they had provided plaintiffs with a portion of the requested documents (e.g., HUD statements, promissory notes, and title insurance policies) in connection with a disciplinary complaint Dazet filed against Faia in September of 2009. Further, on October 20, 2010, defendants again provided plaintiffs the same documents and also provided some additional documents, including emails exchanged between the parties and their office staff. However, defendants did not provide an “accounting” of each plaintiff-company as ordered by the trial court until April 11, 2011.

At the contempt hearing, defendants provided an affidavit, dated April 18, 2011, of a representative of Hunt Brothers of Louisiana, L.L.C., a computer programming and consulting firm. The affidavit stated Hunt Brothers performed work on Faia’s computer software to attempt to recover some escrow data lost and that not all data could be recovered without further damage to the system’s new data. The affidavit does not state when Hunt Brothers performed the work. At the contempt hearing, Faia testified that he used the data recovered by Hunt Brothers to create the accounting document provided to plaintiffs on April 11, 2011. Further, Faia testified to his position that Dazet and the other plaintiffs-companies already possessed nearly all requested documents. Faia introduced into evidence ^discovery responses provided by plaintiffs, demonstrating that plaintiffs already had possession of at least eighteen HUD statements or escrow documents requested. He further testified that, when Dazet moved out of the office space that he shared with Faia, Dazet removed some of Faia’s files; thus, Faia asserted that he could not return all of the files requested. The emails exchanged between the parties show that Faia told Dazet that he would not spend hours researching and looking for files or documentation that he believed Dazet and the other plaintiffs-companies had access to through the public record or in their own files.

At the conclusion of the hearing, the trial court found defendant Faia in contempt and ordered that he pay $2,500.00 in attorney fees in addition to the court costs incurred as a result of the contempt rule. The trial judge gave extensive oral reasons for his judgment. First, the trial judge found that the “accounting” provided did not satisfy the court’s order. However, the trial judge also stated that production of that same accounting within a reasonable period of time after the December 2, 2009 order would not constitute or support a finding of contempt. Rather, the trial judge found that the fourteen-month delay to produce such an accounting after ordered to do so is “a willful, an intentional, and contumacious disregard of a court order.” The trial judge found “intentional noncompliance” and stated “I do make this finding beyond a reasonable doubt. I have no doubt.”

The December 2, 2009 order specifically ordered Faia to produce an accounting. Although Faia did produce documentation from clients’ files, he produced no document purporting to be an “accounting” related to plaintiffs’ files until more than a year after he received service of the petition and order. Clearly, Faia understood the requirement of the order, as he arguably complied with same by producing the “accounting” documents introduced at the contempt hearing. However, Faia provides no just reason for his delay in providing the accounting to | inplaintiffs. The affidavit by Hunt Brothers, indicating that it performed restoration of computer data on Faia’s computer system, was not executed until April 18, 2011, and the affidavit indicates the work only took two days. Further, Faia’s argument that he did not produce all requested information because plaintiffs already had possession of the documentation is irrelevant to the question of contempt.

The trial court ordered Faia to produce an accounting and he failed to do so until more than one year after he received service of the order. The trial court found this failure to be intentional, willful, and without justifiable excuse. Under the specific facts of this case, we find the evidence sufficient to support the trial court’s judgment and that the trial judge did not abuse his discretion in finding Faia in contempt for failure to provide an accounting as ordered.

Validity of Contempt Judgment

Faia claims that because plaintiff, Michael Dazet, passed away prior to the signing of judgment, the judgment is an absolute nullity. A judgment rendered in favor of or against a deceased party is an absolute nullity as to that party. Alonzo v. Chifici, 526 So.2d 237, 240 (La.App. 5 Cir.1988), writ denied, 527 So.2d 307 (La.1988). Accordingly, the March 2, 2012 contempt judgment is null insofar as it concerns plaintiff, Michael Dazet. However, as to the other named plaintiffs, the judgment remains valid. See Tauzier v. St. Patrick Parade Comm. of Jefferson, Inc., 01-1138 (La.App. 5 Cir. 1/29/02), 807 So.2d 1106, 1111.

As to the attorney fee award, however, we find the contempt judgment at issue erroneously awards the $2,500.00 in attorney fees. Attorney fees are not awarded generally in Louisiana unless authorized by statute or provided by contract. Rivet v. State, Dept. of Transp. and Development, 96-0145 (La.9/5/96), 680 So.2d 1154, 1160. An award of attorney fees is a type of penalty imposed not |nto make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. In re Jones, 54 So.3d at 69. A contempt proceeding, however, is designed for the vindication of the dignity of the court rather than for the benefit of a litigant. City of Kenner v. Jumonville, 97-125 (La.App. 5 Cir. 8/27/97), 701 So.2d 223, 231.

La. R.S. 13:4611, in pertinent part, limits the punishment for contempt of court as follows:

Except as otherwise provided by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of contempt of court therein, as follows:
(d) For any other contempt of court, including disobeying an order for the payment of child support or alimony or an order for the right of visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

Therefore, La. R.S. 13:4611 allows a trial court to impose a “fine” of not more than five hundred dollars and such fine must be made payable to the court, not a party. In re Jones, 54 So.3d at 70. Where a trial court awards attorney fees in a contempt proceeding, this Court has found that “[w]e must determine from the record and judgment whether the attorney fee award was actually a fine” as contemplated under La. R.S. 13:4611. Id.

In his oral reasons for judgment, the trial judge stated that he based his award of $2,500.00 in attorney fees on the work performed by plaintiffs’ counsel. The trial judge found that defendants would not have provided the April 2011 accounting but for plaintiffs’ counsel filing the rule for contempt. He further found $2,500.00 to be a minimal award in light of the effort put forth by plaintiffs’ counsel and the legal struggle to obtain the documents requested. The trial judge 112also specifically stated, “I’m not going to find that it [the contempt] is worthy of a fine, but I do believe he should pay the costs.”

Therefore, the trial judge in this case specifically declined to impose a fine under La. R.S. 13:4611. Accordingly, because the punishment for contempt of court does not allow recovery of attorney fees and because the trial judge in this case did not intend the award of attorney fees to be a “fine” as permitted under La. R.S. 13:4611, we vacate that portion of the judgment awarding to plaintiffs $2,500.00 in attorney fees.

CONCLUSION

For the reasons above, we affirm in part and vacate in part the trial court’s March 2, 2012 contempt judgment. We affirm the trial court’s finding of contempt and taxing of court costs and vacate the portion of the judgment awarding to plaintiffs $2,500.00 in attorney fees.

AFFIRMED IN PART; VACATED IN PART

      . Plaintiffs attached to their petition an exhibit listing each property transaction performed by defendants. Further, the attachment lists each plaintiff company and the work performed and, in some instances, the fees defendants received from that company. The exhibit further shows that defendant Faia represented plaintiff, Allstar Rentals LLC, in a civil lawsuit and drafted leases in connection with that company's property.

      . Plaintiffs asserted that service on defendants was unsuccessful after six service attempts at Faia’s office address and five service attempts at Faia’s home address. At the contempt hearing, plaintiffs presented evidence to demonstrate that defendant Faia intentionally evaded service of process. The trial judge specifically stated that he did not consider whether Faia evaded service and that he did not give any weight to that testimony in his finding of contempt.

      .Defendants initially filed an exception of vagueness, which the trial court ultimately denied on November 8, 2010. On that same date, defendants filed an Answer to plaintiffs’ petition.

      . At the October 22, 2010 hearing, the trial judge issued an attachment for defendant Faia’s arrest for failure to appear at the contempt hearing. Defendant Faia filed a writ application to this Court. On November 16, 2010, this Court granted Faia's application, finding that the rule to show cause did not require Faia to physically appear at the hearing and that the trial court improperly issued an attachment for Faia's arrest.

      . The second contempt hearing was initially set for January 28, 2011. However, the trial court continued the hearing because of an outstanding motion to recuse the trial judge. Defendants filed a motion to recuse Judge Windhorst, which was denied by Judge Sullivan on March 18, 2011. This Court denied defendants’ writ application on the recusal issue on May 12, 2011, and the Louisiana Supreme Court subsequently denied defendants’ writ application on June 22, 2011. The hearing on the contempt rule was re-set to October 17, 2011, but the trial court again continued the hearing in light of Mr. Dazet's unexpected death on September 27, 2011.

      . Defendants, Gregory Faia, Faia & Associates, and Security Title of Louisiana, filed a Motion for Suspensive Appeal of "any and all judgments rendered in the above-captioned matter including, but not limited to, the Judgment signed March 2, 2012[.]” The trial court granted the motion for appeal. However, the only judgment before the Court in this appeal is the March 2, 2012, contempt judgment against Faia.

      . The trial court issued the order on December 2, 2009, and the defendants received service of the petition and order on February 17, 2010.

      . Rule 1.15(d) of the Louisiana Rules of Professional Conduct provides:
      Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. For purposes of this rule, the third person’s interest shall be one of which the lawyer has actual knowledge, and shall be limited to a statutory lien or privilege, a final judgment addressing disposition of those funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

      . Rule 1.16(d) of the Louisiana Rules of Professional Conduct provides:
      Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. Upon written request by the client, the lawyer shall promptly release to the client or the client’s new lawyer the entire file relating to the matter. The lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason. The responsibility for the cost of copying shall be determined in an appropriate proceeding.

      . "We review a finding of criminal contempt employing the Jackson standard.” In re Jones, 54 So.3d at 67 (citing State in the Interest of R.J.S., 493 So.2d 1199, 1202 (La.1986)).

      . Lydia Dazet, Michael Dazet’s wife, testified that Faia charged over $10,000.00 to Allstar RV Rentals for his representation in a civil lawsuit and in connection with drafting leases for the company’s property.

      . See La. C.C.P. art. 1920; see also Hartz v. Indovina, 09-967 (La.App. 5 Cir. 4/27/10), 40 So.3d 253, 257, writ denied, 10-1222 (La.9/17/10), 45 So.3d 1050.


author: TERRI F. LOVE, Judge.

text:
    HAROLD A. ASHER, CPA, LLC v. Diana Wilson HAIK, M.D.
    No. 2012-CA-0771.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2013.

      Lanny R. Zatzkis, Karen D. McCarthy, Yvette A. D’Aunoy, Zatzkis McCarthy & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellee, Harold A. Asher, CPA, LLC.
    Stephen M. Smith, Steve Smith & Associates, New Orleans, LA, for Defendant/Appellant, Diana Wilson Haik, M.D.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

11 This appeal arises from a dispute on an open account. After the plaintiff was granted a default judgment for $12,470.00, plus interest, costs, and attorney’s fees, the defendant alleged that she was not properly served with the petition on an open account because her street address was misspelled by one letter. The defendant then filed a petition to annul judgment, which the trial court dismissed. We find that the trial court did not err in dismissing the petition to annul judgment because the evidence did not support the defendant’s contentions. The defendant received a demand letter by certified mail addressed to the misspelled street name as requested in the citation. In addition, service was attempted and no testimony or documentary evidence was given at trial to support that the defendant was travelling on the dates as alleged in her petition. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Diana Wilson Haik, M.D., retained the forensic accounting services of Harold A. Asher, CPA, LLC, (referred to as “Mr. Asher”) for use during her divorce proceedings. On March 24, 2004, Mr. Asher mailed Dr. Haik an agreement on services, which read as follows:

I will require a $5,000 payment in order to commence services. My fee for these services is $265 |2per hour, plus out-of-pocket costs. Availability for court time and depositions is $500 per hour. Fees are adjusted annually each January. You will be billed on a monthly basis and invoices are payable upon presentation. I reserve the right to discontinue services if fees are not paid as due.
This agreement constitutes the entire agreement made between the parties hereto, and it may be amended only by a document in writing, signed by the parties hereto.

Dr. Haik signed the agreement on March 30, 2004. A February 28, 2007 letter from Mr. Asher’s office to Dr. Haik detailing past accounting fees, as well as billing information, provided:

As requested, the amount paid by you in 2006 for accounting fees totals $24,054 (see attached schedule).
I also spoke with Mr. Asher regarding the billing issue we discussed today. He advised me that he agrees to charge you $250 per hour through February 28, 2007. However, effective March 1, 2007 the fee for services rendered by Mr. Asher [sic] your behalf will increase to $275 per hour.
On January 1, 2007 his standard hourly rate increased to $325. He has agreed to continue to discount your hourly rate and extend a $50 per hour reduction.

By 2009, Dr. Haik was allegedly indebted to Mr. Asher. On March 25, 2009, counsel for Mr. Asher mailed Dr. Haik a formal demand letter utilizing certified mail to:

Diana Haik, MD
8 Ravenne Lane
Natchez, MS 39120

The demand letter, which it is undisputed that Dr. Haik received, alleged that Dr. Haik owed Mr. Asher $12,470.00. Invoices were attached to the demand letter that indicated that Mr. Asher’s rate was $350 per hour. The demand letter indicated that if the amount owed was paid within thirty days, “no further action will be Istaken.” However, the letter stated that “[i]f payment is not received within thirty days, suit will be filed for the full amount due along with costs and attorneys [sic] fees as provided by law.” Dr. Haik signed the certified mail receipt confirming her receipt of this letter with the address of “Ravenne Lane.”

Dr. Haik failed to tender payment within thirty days of the demand letter. Mr. Asher then filed a petition on open account against Dr. Haik alleging that she failed to pay for $12,470.00 in forensic accounting services. Mr. Asher mailed Dr. Haik, via certified mail, a copy of the petition on open account on May 27, 2009. However, after three unsuccessful delivery attempts, the certified mail was marked unclaimed and returned. Mr. Asher then e-mailed the petition on open account to Dr. Haik’s sister-in-law, Suzanne Haik Terrell, Esq. Attorney Terrell initially replied to the demand letter, on behalf of Dr. Haik, in an effort to resolve the billing dispute.

Mr. Asher filed a motion for default against Dr. Haik for the unpaid services. The trial court granted the preliminary default. Dr. Haik did not file an answer or other responsive pleadings after the entry of the preliminary default. The trial court then confirmed the default judgment and issued a judgment against Dr. Haik in the amount of $12,470.00, plus interest from the date of judicial demand, and all costs of the proceeding. The trial court also ordered that Dr. Haik pay $1,200.00 in attorney’s fees.

Dr. Haik then filed a petition to annul judgment asserting that she was not properly served with the petition on the open account prior to the preliminary default and prior to confirming the default judgment. Dr. Haik also averred that |4she was travelling on the three days that service of the petition on the open account was attempted. Following contentious issues with discovery and the trial on the petition to annul judgment, the trial court dismissed the petition to annul judgment with prejudice and ordered each party to pay their own costs. Mr. Asher filed a petition for garnishment and requested the issuance of a writ of fieri facias. Dr. Haik’s appeal followed.

Dr. Haik asserts that the trial court erred in finding that she was properly served and contends that evidence demonstrates that Mr. Asher’s hourly rate was too high due to fraud or ill practice.

STANDARD OF REVIEW

When reviewing questions of fact as determined by the factfinder, be it a jury or a judge, appellate courts utilize the manifest error or clearly wrong standard of review. Sassone v. Doe, 11-1821, pp. 2-3 (La.App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245. “[A]n appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Sassone, 11-1821, p. 3, 96 So.3d at 1245. In order to reverse findings of the factfinder, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. The Louisiana Supreme Court explained this Court’s role as follows:

[ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable Rone. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Accordingly, where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Id. at 883.

S.J., 09-2195, pp. 12-13, 41 So.3d at 1127.

Conversely, appellate courts review questions of law using the de novo standard. Serou v. Touro Infirmary, 12-0089, p. 18 (La.App. 4 Cir. 1/9/13), 105 So.3d 1068, 1083.

The manifest error standard of review is also used for reviewing “mixed questions of law and fact.” Id., quoting Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-21.

In addition, “[t]he trial court is permitted discretion in deciding when a judgment should be annulled because of fraud or ill practice.” Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071 (La.1983). “However, the ambit of a trial judge’s discretion is determined by the reasons for its existence.” Id. Some “important reasons for deferring to the trial judge’s” discretion are the capability to observe the witnesses, the trial court’s “superior opportunity to get the ‘feel of the case,’ ” and “the impracticability of framing a rule of decision where many disparate factors must be weighed.” Id., quoting Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947). (Citations omitted).

PETITION TO ANNUL JUDGMENT

Dr. Haik asserts that the trial court erred in dismissing her Petition to Annul Judgment based upon improper service and the price per hour that Mr. Asher | ^allegedly owed.

“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.” La. C.C.P. art.2001. The Louisiana Code of Civil Procedure provides, in pertinent part, that:

A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.

La. C.C.P. art. 2002(A). The above provisions are mandatory. However, there are instances when the trial court has the discretion to annul a judgment. La. C.C.P. art. 2004 provides that:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

This Court opined that:

[t]he rule settled by our jurisprudence is that, in the absence of a showing of a valid and sufficient reason for a defendant’s failure to defend a suit on which a default judgment has been taken, such a defendant cannot maintain an action for nullity of the default judgment based on alleged defenses of fraud or ill practices which could and should have been pleaded in the original suit.

Steele v. Ruiz, 202 So.2d 376, 378 (La.App. 4th Cir.1967).

Dr. Haik did not specifically allege fraud or ill practices in her Petition to Annul Judgment. However, the Louisiana Supreme Court stated that:

|7[o]ur jurisprudence sets forth two criteria to determine whether a judgment has been obtained by actionable fraud or ill practices: (1) when the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief, and (2) when the enforcement of the judgment would be unconscionable and inequitable.
Thus, the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.

Kem Search, 434 So.2d at 1070. “Conduct which prevents an opposing party from having an opportunity to appear or to assert a defense constitutes a deprivation of his legal rights.” Id.

Proper Service

Dr. Haik avers that Mr. Asher did not comply with La. R.S. 13:3205. Specifically, Dr. Haik contends that Mr. Asher violated § (1), which provides that:

[n]o default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either:
(1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant; or

La. R.S. 13:3205(1).

Dr. Haik, in her Petition to Annul Judgment, asserted that she did not receive a copy of the petition on open account by certified mail because she was allegedly travelling on the three days that delivery was attempted. Dr. Haik never claimed |sthe certified mail from the post office. At the hearing on the Petition to Annul Judgment, Dr. Haik contended that she did not receive the petition on open account because her address is 8 Ravenna Lane and not 8 Ravenne Lane, as addressed on the certified mail label. Dr. Haik testified that she did not refuse service of the petition because she never received notice of the certified mail. However, it is undisputed that Dr. Haik received the demand letter via certified mail, and that the letter was addressed to 8 Ravenne Lane.

Erin McMahon, a paralegal in Mr. Ash-er’s attorney’s office, testified that Mr. Asher submitted 8 Ravenne Lane as Dr. Haik’s address. Ms. McMahon also stated that she researched the streets of Natchez, Mississippi, where Dr. Haik lives and found no other streets similar to Ravenne or Ravenna. Further, Ms. McMahon testified that she mailed the petition on the open account via certified mail to the same address as the demand letter.

Dr. Haik relies upon Clay v. Clay, 389 So.2d 31, 37 (La.1979), for the proposition that addressing the certified mail to Rav-enne Lane instead of Ravenna Lane violated the mandatory “strict compliance” with La. RS. 13:3205. This reliance is misplaced. In Clay, the long-arm service did not include a citation, as opposed to the simple misspelling of Dr. Haik’s address by one letter. Clay, 389 So.2d at 38. Likewise, White v. White, 398 So.2d 1257, 1259 (La.App. 4th Cir.1981), also relied upon by Dr. Haik, annulled a judgment due to a finding of lack of service. We find White distinguishable from the case sub judice because White lacked an affidavit of service. Id.

Dr. Haik was aware that she would be sued by Mr. Asher. The demand [3letter stated that if the amount requested was unpaid, then Mr. Asher would file a lawsuit for the full amount. Further, Dr. Haik’s sister-in-law, Attorney Terrell, attempted to work out a deal with Mr. Asher on Dr. Haik’s behalf.

“It is well established that a party may not defeat service by merely refusing to accept the letter containing the citation.” Dean v. Waters, 95-2352; 95-2365, p. 7 (La.App. 4 Cir. 12/14/95), 667 So.2d 1137, 1141. In Decca Leasing Corp. v. Torres, 465 So.2d 910, 914 (La.App. 2nd Cir.1985), the court acknowledged that avoiding the retrieval of certified mail could be tantamount to refusing service. However, the court stated that the record was insufficient to make that determination. Id. This Court held that in order for the refusal to claim certified mail that the United States Postal Service attempted to deliver three times to equate with service, an affidavit by counsel for plaintiff should be entered into the record in compliance with La. R.S. 13:3205(a). Dean, 95-2352; 95-2365, p. 7, 667 So.2d at 1141.

In the case sub judice, the person who effectuated the mailing of the petition on open account to Dr. Haik was Ms. McMahon. The record contains Ms. McMahon’s affidavit of service of process — long arm service, which includes the date the mail was sent out, the certified mail number, and the dates of the three unsuccessful delivery attempts. A photocopy of the certified mailing address is attached showing that it was mailed to Dr. Haik at 8 Ravenne Lane.

The trial court stated in its reasons for judgment that:

[t]he evidence presented at trial simply does not support Dr. Haik’s contentions. She received a demand letter by certified mail addressed to the misspelled street name as requested in the citation. In addition, service was attempted, no testimony or documentary evidence [ inwas given at trial to support that she was travelling on the dates as alleged in her petition.

Based on the facts and circumstances of this case, we find that the trial court did not err in its factual findings or abuse its discretion in dismissing Dr. Haik’s Petition to Annul Judgment. Therefore, we affirm.

Hourly Fee

Dr. Haik also contends that the record does not establish that Mr. Asher’s fee was $350 per hour.

Dr. Haik testified at the hearing that she did not sign any other document other than the original contract with a fee of $265 per hour. Dr. Haik further stated that the fee was never $350 per hour, as Mr. Asher claimed in the petition on open account. Dr. Haik thought she already paid Mr. Asher over $70,000.00 and she did not think she owed Mr. Asher any more money.

However, the contract signed by Dr. Haik in 2004 with a $265 per hour fee included the statement that “[flees are adjusted each January.” The February 28, 2007 letter demonstrates that Mr. Asher’s per hour fee increased to $325 on January 1, 2007. Given that Dr. Haik received the demand letter in 2009, Mr. Asher would have made two additional fee adjustments.

“When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof.” La. C.C.P. art. 1702(B)(3). Mr. Asher’s affidavit states that Dr. Haik owed him $12,470.00. This serves as prima fa-cie proof of the alleged debt. Accordingly, given Mr. Asher’s yearly fee adjustment, evidence supporting that Mr. Asher did increase his fees, and Mr. Asher’s affidavit, we find that the trial |ncourt did not err in dismissing the petition to annul judgment, as there is no evidence of fraud or improper practice.

DECREE

For the above-mentioned reasons, we find that the trial court did not err in dismissing Dr. Haik’s Petition to Annul Judgment because the record fails to support her assertions. Therefore, we affirm.

AFFIRMED

      . While the petition on open account provides that Dr. Haik's address is 8 Roseanne Lane, the certified mail address was addressed to 8 Ravenne Lane.

      . Dr. Haik did not re-assert her original contention that she was travelling on the attempted delivery dates, which was in her petition.

      . No such evidence was present in the White record.

      . At that time, Mr. Asher was giving Dr. Haik an hourly discount.


author: JAMES F. McKAY III, Chief Judge.

text:
    Linus and Terralene IGBOKWE v. Joshua MOSER, Southbrook Christian Church, Erie Insurance Company, Jose Peralestre, AIG and ABC Insurance Company.
    No. 2012-CA-1366.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      John W. Redmann, Patrick B. Sanders, Edward Moreno, Law Office of John W. Redmann, LLC, Metairie, LA, Rita C. Ek-enta, The Law Office of Rita C. Ekenta, LLC, Gretna, LA, for Plaintiffs/Appellants.
    Jeffery A. dayman, James Ryan III, Timothy T. Roniger, Craig R. Webb, James Ryan III & Associates, LLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge ROSEMARY LEDET,. Judge SANDRA CABRINA JENKINS).
   JAMES F. McKAY III, Chief Judge.

| plaintiffs, Linus and Terralene Ig-bokwe, appeal the trial court’s judgment, which granted a motion for summary judgment and/or exception of res judicata and dismissed plaintiffs’ claims against defendants, Southbrook Christian Church (“Southbrook”) and Erie Insurance Company (“Erie”), with prejudice. For the reasons set forth below, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On April 5, 2007, Linus Igokwe was involved in an automobile accident with Joshua Moser (“Moser”). Plaintiffs filed a petition for damages in the Civil District Court for the Parish of Orleans alleging that Moser caused the accident while acting in the course and scope of his employment with Southbrook. The petition also named Southbrook and its insurer, Erie, as defendants.

Service of the petition for damages was properly made on Southbrook and Erie. However, upon finding that Moser, an Ohio resident, was not properly served pursuant to the Louisiana Long Arm Statute, the trial court rendered judgment on July 21, 2010, dismissing Moser, without prejudice. That judgment was not appealed.

[gOn July 29, 2010, plaintiffs filed a second petition for damages in the Civil District Court (“second action”) naming only Moser as a defendant. Somehow, the second action bears the same district court case number as the original petition and was date stamped on March 28, 2008, the date the original petition was filed. Moser was served with the second action. In response, Moser filed various exceptions, including prescription and insufficiency of service of process. On December 10, 2010, the trial court granted the exceptions and dismissed all claims asserted against Mos-er, with prejudice. The judgment was affirmed on appeal.

With Moser dismissed from the case, Southbrook and Erie, the remaining defendants in the original action, filed a motion for summary judgment and/or exception of res judicata asserting that because Moser had been dismissed with prejudice, there is no factual or legal basis to hold South-brook liable under the doctrine of respon-deat superior, nor is there any basis for an action against Erie, as the insurer for Southbrook and Moser. Basing the motion for summary judgment on the doctrine of res judicata, defendants argued that because of Moser’s dismissal, all of plaintiffs’ causes of action arising out of the April 5, 2007 accident were extinguished as a matter of law pursuant to La. R.S. 18:4231.

The matter came for hearing on April 27, 2012, wherein the trial court ruled from the bench in favor of defendants. Judgment was rendered on May 11, 2012, granting the motion for summary judgment and/or exception of res judicata and | ^dismissing plaintiffs’ claims against Southbrook and Erie, with prejudice. This timely appeal followed.

The issue raised in this appeal is whether the trial court erred in granting summary judgment on the basis of res judica-ta. Plaintiffs assert that the trial court: 1) erred in granting the motion for summary judgment because an adjudication of the non-liability of Moser in the second action did not preclude a finding of Moser’s negligence in the original action; and 2) erroneously applied the doctrine of res judicata because Moser’s negligence was never actually litigated in the second action. As explained below, we find merit in plaintiffs’ argument.

DISCUSSION

Summary Judgment

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City, 2010-2828, 2011-0039, p. 6 (La.7/1/11), 65 So.3d 1263, 1267 (citing Schroeder v. Bd. of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991)). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Martinez v. American Steelway Industries, L.L.C., 2009-0339, p. 3 (La.App. 4 Cir. 9/2/09), 20 So.3d 526, 528 (citing Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490). The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the opposing party “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Martinez, 2009-0339, p. 4, 20 So.3d at 528 (citing Lomax v. Ernest Morial Convention Center, 2007-0092, pp. 2-3 (La.App. 4 Cir. 7/11/07), 963 So.2d 463, 465).

Res Judicata

The standard of review of an exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct or incorrect. R-Plex Enterprises, L.L.C. v. Desvignes, 2010-1337, p. 2 (La.App. 4 Cir. 2/9/11), 61 So.3d 37, 39 (citing Myers v. National Union Fire Ins., 2009-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210). Moreover, it is well established that on an exception of res judicata, the burden is on the exceptor to prove the essential elements by a preponderance of the evidence. Guidry v. One Source Facility Serv., 2004-2007, p. 3 (La.App. 4 Cir. 4/27/05), 901 So.2d 626, 628.

The doctrine of res judicata precludes re-litigation of claims and issues arising out of the same factual circumstances when there is a valid final judgment. Insurance Co. of North America v. Louisiana Power & Light, 2008-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267 (citing Avenue Plaza, L.L.C. v. Falgoust, 96-0173, pp. 4-5 (La.7/2/96), 676 So.2d 1077, 1079). It is designed to promote judicial efficiency and final resolution of disputes. Id.

| fiLa: R.S. 13:4231 sets forth the doctrine of res judicata in Louisiana as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are the extinguished and the judgment bars a subsequent action on those causes of action.
3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Louisiana Supreme Court examined this doctrine and determined that based upon the language of the statute, five elements must be satisfied for a finding that a second action is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chevron U.S.A., Inc. v. State, 2007-2469, p. 10 (La.9/8/08), 993 So.2d 187, 194.

In the present case, defendants argue that because plaintiffs’ cause of action against Moser was dismissed with prejudice by final judgment and extinguished as a matter of law, La. R.S. 13:4231(2) acts to bar any subsequent action for all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation. Based on the |/actual circumstances presented, we disagree with this application of the doctrine of res judi-cata.

It is well established that the doctrine of res judicata is stricti juris, thus, any doubt concerning the application of the principle must be resolved against its application. Kelty v. Brumfield, 93-1142, p. 7 (La.2/25/94), 633 So.2d 1210, 1215. See also Louisiana Workers’ Compensation Corp. v. Betz, 2000-0603 (La.App. 4 Cir. 4/18/01), 792 So.2d 763. A review of the jurisprudence also reflects that several courts have denounced the application of res judicata principles when the issues in the subject cases were never settled, litigated, or adjudicated. See Fine v. Regional Transit Auth., 95-2603 (La.App. 4 Cir. 6/26/96), 676 So.2d 1134, 1137; Schneidau v. Vanderwall, 2008-1274, pp. 5-6 (La.App. 5 Cir. 5/26/09), 17 So.3d 61, 64 (citing Billiot v. LeBeouf Brothers Towing Co., 93-1697 (La.App. 1 Cir. 6/24/94), 640 So.2d 826); Ortiz v. Ortiz, 01-1252, pp. 5-6 (La.App. 5 Cir. 05/15/02), 821 So.2d 35, 38; and Brouillard v. Aetna Cas. and Surety Co., 94-1559, p. 3 (La.App. 3 Cir. 5/10/95), 657 So.2d 231, 233.

In Schneidau, plaintiff sued Vanderwall and his insurer, Markel, for injuries allegedly sustained in a motor vehicle accident. At that time, Schneidau instructed the clerk of court to withhold service on Vanderwall. Pursuant to a motion for summary judgment on the basis of prescription, Markel was dismissed from the action, with prejudice. Following the dismissal of Markel, Schneidau moved for the appointment of a special process server to effect service on Vanderwall. Thereafter, Vanderwall filed exceptions of res judicata, insufficiency of service, and prescription. The trial court rendered judgment in favor of Vanderwall on the exception of res judicata. The appellate court reversed, finding that the trial court erred in granting the exception of res ju-dicata where Markel was dismissed on the |7basis of prescription, and the merits of Schneidau’s damage claim against Van-derwall had never been litigated, determined, or adjudicated.

In Fine, this Court also recognized that the doctrine of res judicata should not apply where a plaintiffs alleged damages for personal injuries were not litigated or settled. Therein, we stated that “[t]he overruling of an exception of res judicata will lessen judicial efficiency and increase the need for litigation. Those harms are sometimes preferable to the loss of plaintiffs substantive rights without the merits being decided.” Fine, 95-2603, p. 5, 676 So.2d at 1137 (citing Mavromatis v. LouMar, Inc., 93-0379, 93-1212 (La.App. 4 Cir. 2/11/94), 632 So.2d 828, 832).

Applying these precepts to the case before us, we find that res judicata does not apply. The dismissal of Moser on procedural grounds, where no determination was made as to Moser’s negligence, should not bar plaintiffs from continuing to pursue Southbrook and Erie, both of which were properly and timely served in this action.

CONCLUSION

For the above and foregoing reasons, we conclude that a rigid application of res judicata to the facts of this case is not warranted. Accordingly, we reverse the trial court’s decision to grant summary judgment in favor of Southbrook and Erie on the basis of res judicata. The case is remanded for further proceedings consistent with this ruling.

REVERSED AND REMANDED

      . Igbokwe v. Moser, 2011-0418 (La.App. 4 Cir. 9/1/11), unpub.

      . We note that La. C.C.P. art. 966(B) was amended in 2012 to delete "on file.” However as this case was filed prior to the amendment, the former version is applicable.