author: PITMAN, J. BROWN, Chief Judge,

text:
    Claude B. KENNEDY, et al., Plaintiffs-Appellees v. Mickey Joe DURDEN, et al., Defendants-Appellants.
    No. 47,904-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Rehearing Denied May 9, 2013.
    Michael S. Coyle, Ruston, LA, for Inter-venor/Appellant, C. Bean Transport, Inc. & C. Bean Transport, Inc. Creditor’s Trust.
    The Law Office of Allen, Cooper, L.L.C., Shreveport, LA, by J. Allen Cooper, Jr., for Appellees, Claude B. Kennedy & Robbie J. Kennedy.
    Perkins & Associates, L.L.C., Shreveport, LA, by Mark A. Perkins, for Appel-lee, Cherokee Insurance Co.
    Mickey Joe Durden, In Proper Person.
    Pettiette, Armand & Dunkelman, Shreveport, LA, by Stephan Michael Cooper, for Appellee, Phoenix Insurance Co.
    Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whitley, Metairie, LA, by Robert J. May, for Johnson Controls, Inc.
    Before BROWN, WILLIAMS & PITMAN, JJ.
   PITMAN, J.

_JjC. Bean Transport, Inc. Creditors Trust appeals a judgment from the First Judicial District Court, of Louisiana, Caddo Parish, dismissing its petition to intervene seeking reimbursement and subrogation for workers’ compensation payments previously made to Plaintiffs, Claude B. Kennedy and his wife, Robbie J. Kennedy. For the following reasons, we affirm the trial court’s dismissal.

FACTS

On January 31, 2005, Plaintiff, Claude B. Kennedy (“Claude”), was driving an 18-wheeler owned by his employer, C. Bean Transport, Inc. (“Bean Transport”), on Bert Kouns Industrial Loop in Shreveport, Louisiana, when he was rear-ended by Defendant, Mickey Joe Durden (“Durden”). Durden was uninsured. Claude was performing work duties for Bean Transport, an Arkansas company authorized to do business in Louisiana, at the time of the collision. Bean Transport owned the truck and the automobile liability insurance policy covering the truck Claude was driving. Bean Transport paid a portion of Claude’s workers’ compensation benefits as a result of the accident, but currently has a workers’ compensation judgment against it for failure to fulfill the rest of its obligation.

Plaintiffs filed suit to recover from Dur-den; Phoenix Insurance Co. (“Phoenix”), Plaintiffs’ personal automobile insurance carrier; and Bean Transport’s automobile liability insurance carrier, Cherokee Insurance |2Company (“Cherokee”). On February 15, 2008, Bean Transport filed a petition to intervene in the proceeding seeking to recover from Cherokee, as its uninsured/underinsured (UM) motorist coverage carrier, which is statutorily required in Louisiana, any and all workers’ compensation benefits it paid to Claude. Judge Scott J. Crichton granted Plaintiffs’ motion for summary judgment against Intervenor and granted Cherokee’s motion for partial summary judgment, dismissing Bean Transport’s petition to intervene. The district court reasoned that, because of the exclusions agreed upon in the Cherokee automobile liability insurance policy, the policy does not apply to any obligation for which Bean Transport might be liable under workers’ compensation law and Bean Transport does not have a legal basis to maintain claims in the lawsuit. Judge Crichton signed a judgment to that effect on July 10, 2009.

The Cherokee insurance policy at issue contains the following exclusion:

⅝ ⅜ ⅜ ⅜
C. Exclusions:
This insurance does NOT apply to any of the following:
⅜ * ⅝ * ⅝ i'fi
3. Workers’ Compensation:
Any obligation for which the “insured” or the “insured’s insurer” may be held liable under any workers’ compensation, disability benefits or unemployment compensation or any similar law.

Bean Transport appealed the judgment to this court, but that appeal was dismissed. The third defendant named in the petition to intervene, |3Purden, did not file a motion for summary judgment; and, without express language making the judgment final against all defendants, Bean Transport’s claim against Durden was not dismissed. The judgment was not final and, thus, could not be reviewed on appeal.

On joint motion of Cherokee and Plaintiffs, Judge Crichton entered an amended judgment dismissing Bean Transport’s intervention against all Defendants based on the Cherokee insurance policy exclusion and expressly stating that it was a final, appealable judgment. Bean Transport now appeals, alleging that the judgment was amended ex parte and that the court erred in determining that the Cherokee insurance policy exclusion applied to its statutorily imposed UM obligation.

Assignment of Error # 1 (verbatim): The trial court erred in amending its July 10, 2009 judgment ex parte and without a hearing or notice to all parties.

Bean Transport contends that the trial court committed error in failing to give notice or allow a hearing before amending its July 10, 2009 judgment. La. C.C.P. art. 1915 allows a court to revise or amend an order or decision at any time prior to rendition of the judgment adjudicating all of the claims and the rights and liabilities of all the parties. In McDonald v. Cason, 01-0932 (La.App. 3d Cir.12/12/01), 801 So.2d 1255, writ denied, 02-0135 (La.3/22/02), 811 So.2d 938, the court interpreted La. C.C.P. art. 1915 as not requiring an evidentiary hearing before amending a judgment. Bean Transport asserts that, since the first ruling did not apply to Durden, as determined by this court, Durden and other parties should have [4been given an opportunity to be heard before a final judgment was submitted.

This case was remanded because the appealed judgment granted summary judgment against only two of the three defendants. On remand, the trial court, in its discretion, amended the judgment to include the third defendant, making the judgment final and appealable. La. C.C.P. art. 1915(A)(1) specifically states that a final judgment may be rendered and signed by the court to dismiss the suit as to intervenors. There are no statutory notice requirements and the court acted in its discretion to dismiss the intervention of Bean Transport against all parties. Accordingly, this assignment is without merit.

Assignment of Error # 2 (verbatim): The trial court committed error when it found that Cherokee Insurance Company’s automobile liability policy issued to C. Bean Transport, Inc. included a contractual exclusion that applied to its statutorily imposed uninsured motorist obligation.

The Cherokee policy contains a workers’ compensation exclusion, previously quoted herein. Bean Transport’s intervention seeks to recover from Cherokee as its UM carrier the sum of the workers’ compensation payments it made to Claude. Bean Transport argues that the district court erred in finding that the exclusions contained in the automobile liability policy issued by Cherokee also apply to UM coverage. Bean Transport further argues that, since La. R.S. 23:1101 allows an employer who pays workers’ compensation benefits to an employee to bring suit to recover from a third party who is obligated to pay the injured employee for damages, it has the right to recover from Cherokee as a third-party UM carrier. Travelers Ins. Co. v. Joseph, 95-0200 (La.6/30/95), 656 So.2d 1000. [ ¡¡Further, Bean Transport asserts that Cherokee’s third-party status as its UM provider is separate from the contractual relationship that exists between it and Cherokee under the automobile liability policy and that the exclusion in the liability policy should not apply to the UM coverage.

Louisiana law requires all automobile liability insurance policies to provide UM coverage for any accident which occurs in Louisiana. La. R.S. 22:1295(1)(a)(iii). The insured under an automobile liability policy can specifically reject or alter the UM coverage within the limits of the statute. The rejection or alteration to the statutory limits must be on a standard form and must be signed by the insured. La. R.S. 22:1295(1)(a)(ii). The Cherokee policy does not contain any language addressing UM coverage and there is no rejection or alteration signed by Bean Transport.

Bean Transport’s analysis of the right of an employer to recover from a third-party UM insurer is correct. Travelers Ins. Co. v. Joseph, supra. In that case, the supreme court held that the employer’s UM carrier was a “third person” legally liable to pay employee damages resulting from a work-related automobile accident and that the employer could recover from its UM carrier for reimbursement of benefits paid to the injured employee. At first blush, Bean Transport’s argument appears to have merit, but the distinguishing fact in the instant case is that the employer, Bean Transport, has a contract in the form of the automobile liability policy with its UM carrier, Cherokee, which specifically excludes recovery for workers’ compensation obligations. The court in Travelers, supra, went on to Invalidate workers’ compensation exclusions in UM policies; a UM insurer may exclude reimbursement of workers’ compensation obligations. Travelers Ins. Co. v. Joseph, supra.

The trial court concluded that UM coverage is required in Louisiana and that the statute mandates that it should be included in all current automobile liability policies and, if not included, added by statute. The trial court further determined that the UM statute is to be incorporated into any liability policy covering an accident that occurs in this state along with any exclusions negotiated by the parties. Despite the fact that the trial court applied UM coverage by statute to the policy, Cherokee and Bean Transport agreed that the policy would not cover any workers’ compensation obligations incurred by Bean Transport when they negotiated the terms of the policy. Based on this exclusion, the trial court concluded there was no coverage for workers’ compensation under the policy. For these reasons, we agree that Bean Transport has no recovery or subro-gation rights against Cherokee.

Although Bean Transport is afforded UM coverage under its automobile liability policy with Cherokee as provided by Louisiana law, it is subject to the exclusion contained in that policy regarding payment of workers’ compensation benefits. For this reason, Bean Transport is precluded from recovering under the UM provision of that policy for any workers’ compensation benefits it may have paid. The trial court’s analysis of the UM statute and its inclusion in an automobile liability policy is correct. Accordingly, this assignment is without merit.

17Assignment of Error #3 (verbatim): The trial court committed error when it interpreted the exclusion within the automobile liability policy as precluding recovery by the employer.

Bean Transport asserts that, even if the exclusion applies to the UM coverage, the wording of the exclusion does not preclude its recovery from Cherokee. The exclusion at issue states that the automobile liability insurance does not apply to “any obligation for which the insured ... may be held liable under any workers’ compensation — ].” Bean Transport goes on to argue that the wording of the exclusion simply means that the employer cannot rely on the liability policy to cover any obligations that it may have related to workers’ compensation, but it does not address its ability to recover indirectly under the policy, leaving Bean Transport the opportunity to recover from Cherokee as a third-party UM provider.

A reading of the exclusion makes it clear that the Cherokee policy does not cover any workers’ compensation obligations incurred by the insured. As discussed above, we agree with the trial court’s decision to apply the exclusion in the liability policy to the statutory UM policy. Bean Transport’s petition to intervene requests reimbursement from Cherokee for the workers’ compensation obligation it owed to Claude. Since the contractual relationship between Cherokee and Bean Transport expressly excludes recovery for workers’ compensation obligations, the trial court’s analysis was correct and this assignment is without merit.

Assignment of Error # ⅛ (verbatim): The trial court committed error when it found that the Louisiana Supreme Court decision of Cutsinger v. Redfern applied to the intervention filed by C. Bean Transport.

|sThe principal issue in Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945, is the solidary relationship between a UM carrier and the employer. The instant matter is distinguishable in that the Plaintiff in Cutsinger filed suit to recover from her own UM carrier, whereas, in the instant case, Plaintiffs filed suit to recover from the employer’s liability/UM carrier. As discussed above, the contractual relationship between Bean Transport and Cherokee changes Bean Transport’s right to recover from Cherokee. The trial court applied Cutsinger correctly in determining that Bean Transport and Cherokee have a solidary obligation to Plaintiffs, but went one step further and applied the workers’ compensation exclusion to the statutory UM coverage, which relieved Cherokee from any obligation it would have had to Bean Transport.

Bean Transport argues that the imposition of a solidary obligation between Cherokee and itself, as outlined in Cutsinger, creates a third-party relationship, allowing it to recover from Cherokee as it would be able to from another UM carrier or third party. In Cutsinger v. Redfern, supra, the supreme court found, by expanding its ruling in Bellard v. American Central Ins. Co., 07-1385 (La.4/18/08), 980 So.2d 654, that a UM carrier and the employer, or its workers’ compensation insurer, are soli-dary obligors, which would have an effect on what Cherokee may owe to Plaintiffs. Any payments made to the injured party by either the insurer or the employer extinguishes the obligation of the other. Cutsinger v. Redfern, supra. That issue is not before this court.

|3In Travelers Ins. Co. v. Joseph, supra, the supreme court concluded that, absent an express exclusion in the UM policy issued to the employer, the UM carrier was a “third person” under the definition of La. R.S. 23:1101(C). Also, as discussed above, in Travelers Ins. Co. v. Joseph, supra, the supreme court found that a workers’ compensation exclusion contained in a UM policy was valid, as parties are free to contract on all matters not forbidden by law. See also Tommie’s Novelty v. Velasco, 37,924 (La.App.2d Cir.2/26/04), 868 So.2d 962.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Louisiana Ins. Guaranty Assn. v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 680 So.2d 759. The automobile liability policy is a contract between Bean Transport and Cherokee, which contains an exclusion of coverage for any and all workers’ compensation claims. Bean Transport has been paying its premium to Cherokee with full knowledge and expectation of this exclusion. The contractual relationship between Bean Transport and Cherokee precludes recovery for workers’ compensation obligations. As discussed above, this exclusion applies to all portions of the Cherokee liability policy, including the statutory UM coverage which is incorporated into the liability policy under Louisiana law.

For these reasons, the contractual exclusion agreed upon by Bean Transport and Cherokee eliminates the possibility of recovery for any workers’ compensation benefits under the statutory UM policy. Therefore, Bean Transport has no right of reimbursement or subrogation in this case. | mWe agree with the trial court that dismissal of Bean Transport’s intervention was proper and this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the ruling dismissing the petition to intervene of In-tervenor, C. Bean Transport, Inc. Creditors Trust, is affirmed. Costs of this appeal are assessed to C. Bean Transport, Inc. Creditors Trust.

AFFIRMED.

BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge,

dissents.

liLa. R.S. 23:1101 states in part:

B. Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person (tortfeasor) to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents ...

In Travelers Ins. Co. v. Joseph, 95-0200 (La.06/30/95), 656 So.2d 1000, 1005, the supreme court concluded:

The 1989 amendment to LSA-R.S. 23:1101 expands the definition of “third persons” from whom compensation insurers can recover reimbursement. A compensation insurer’s right to seek reimbursement of compensation benefits from third persons legally liable to pay damages includes UM insurers (as well as those tortfeasors whose negligent conduct aggravates a work injury for which a compensation insurer is obligated to pay benefits). Although a compensation insurer may seek reimbursement from a UM insurer, a UM insurer may expressly exclude a compensation insurer’s reimbursement in its UM policy under the Civil Code’s freedom to contract on all matters not forbidden by law or public policy. (Emphasis added).

The question in the case sub judice is whether the liability/UM policy issued by Cherokee Ins. Co. to the employer, C. Bean Transport, Inc expressly excludes “reimbursement” to the workers’ compensation insurer or self-insured employer.

The exclusion reads:

This insurance does NOT apply to any of the following:
3. Workers’ Compensation:
Any obligation for which the “insured” C. Bean Transport may be held liable under any workers’ compensation, disability benefits or unemployment compensation or any similar law. (Emphasis added).

li>The exclusion specifically applies to the “insured” — the insured is C. Bean Transport (intervenor) — and it excludes any obligation that C. Bean Transport “may be held liable under any worker’s compensation ...” (Emphasis added).

In Travelers Ins. Co., supra, the exclusion provided for the direct or indirect “benefit” of any employer; in this case, the exclusion is only for any “obligation” for which the employer may be held liable under “any workers’ compensation law.”

In this case, the employer paid its obligation to its employee. That is not at issue. The obligation in the instant case is whether the UM carrier must reimburse the workers’ compensation insurer or the self-insured employer. Under the majority opinion, the employee who was injured through the negligence of a third party does not get double recovery; the self insured employer pays wage and medical benefits; and, the bad guy (tortfeasor) gets credit for what has been paid by the employer.

Public policy, as enacted by the legislature, is to provide UM coverage unless rejected and reimbursement to the innocent employer unless excluded. The rejection of UM coverage requires that certain formalities be followed; similar exact formalities must be followed to reject or exclude the reimbursement as provided for in La. R.S. 23:1101. The exclusion in this case was written by Cherokee Ins. Co. and they must suffer the loss for any ambiguity.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, DREW & PITMAN, JJ.

|!Rehearing denied.

BROWN and DREW, JJ., would grant rehearing.

      . Subsequent to the district court’s dismissal of its petition to intervene, Bean Transport filed for protection in bankruptcy court. C. Bean Transport, Inc. Creditors Trust was substituted as intervenor.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. AMY, J.,

license: Public Domain

text:
    Bobby C. MOORE v. Succession of Patricia Gay Bruce MOORE, et al.
    No. 12-959.
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2013.

      Kenneth 0. Privat, Privat & Privat, Crowley, LA, for Defendants/Appellants, Succession of Patricia Gay Bruce Moore, Robin Ray Huff, and Cory Huff.
    Burleigh G. Doga, Burleigh G. Doga, Ltd., Crowley, LA, for Plaintiff/Appellee, Bobby C. Moore.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, MARC T. AMY, BILLY H. EZELL, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

11 The defendants, Robin Ray Huff and her brother, Cory Huff, and the Succession of Patricia Gay Bruce Moore (“Succession” or “Estate”) appeal the judgment ordering the Succession to pay part of a tax lien and to reimburse the plaintiff, Bobby C. Moore, for federal and state taxes that he paid, or that were charged to him, on the separate income of the decedent, Patricia Gay Bruce Moore (Gay). The defendants also appeal the judgment denying their motion for a new trial. We affirm the judgment denying a new trial. As to the original judgment against the Succession, we affirm as to liability, and we revise and reform the judgment as to the parties cast in judgment.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in ordering reimbursement to the surviving spouse for his payment of federal and state income taxes on the decedent’s separate income;
(2) whether the trial court manifestly erred in ordering the defendants to pay part of the remaining balance of an IRS tax lien levied against the surviving spouse; and
(3) whether the trial court erred in finding La.R.S. 13:3721 inapplicable in this case, thereby denying the defendants’ motion for a new trial.

_kH.

FACTS AND PROCEDURAL HISTORY

On October 5, 1983, Bobby and Gay Moore signed a document entitled “Marriage Contract.” The document stated that the couple intended to marry on October 8, that the “intended husband and wife shall be separate in property,” and that they “formally renounee[d] those provisions of the ... Civil Code which established] a community of acquets and gains between husband and wife.” Bobby was Gay’s third husband, and Gay had retirement income, royalty and farm income, and immovable and inherited assets of her own when the couple was married. Bobby had no property other than his income.

Gay became ill with cancer and died intestate in July of 2007. Subsequently, her daughter from a previous marriage, Robin, filed a petition and was appointed administratrix of the Succession.

In August of 2007, before her appointment as administratrix, Robin signed jointly along with Bobby, a power of attorney authorizing CPA Julie Berry to represent them and file tax returns for 2005, 2006, and 2007. Robin signed the document, “Gay. B. Huff by Robin Huff’ with the title, “executor.”

Julie Berry had been Bobby and Gay’s CPA from the time of their marriage in 1988, and had prepared the couple’s tax returns from 1988 until Gay’s death in 2007. She was accepted at trial by the defendants as a licensed CPA in the State of Louisiana, and she was the only expert to testify at trial.

Ms. Berry testified that she filed joint returns for the couple, which reduced their tax liability every year, but that Gay had separate property, and she managed her own income. The couple had a pattern of obtaining an extension each [«¡year, delivering their paperwork to the CPA, and obtaining an installment loan to pay the taxes due on the return.

Ms. Berry was asked to calculate the taxes for the three years at issue and to provide a breakdown of the amounts due by Bobby on his income, and the amounts due by the Estate on Gay’s income. Ms. Berry delivered faxes to Robin’s attorney in August of 2008 requesting checks from the Estate totaling $69,563.58 for the decedent’s share of the federal and state taxes on her separate income. Those checks were never delivered. In the meantime, Bobby had begun paying the taxes to the IRS in 2007. Ms. Berry’s breakdowns showed that Bobby had paid $10,000.00 in 2007, over $15,000.00 in 2008, and over $11,000.00 in 2010 and 2011 on the federal taxes; that he had paid all of the state taxes for all three years, and had paid all CPA filing costs as well.

Robin hired a new CPA in 2009, who reported that the Estate only owed $54,968.00. Bobby, through his attorney, agreed to accept that amount, plus the Estate’s share of the interest in order to avoid more penalties and interest. This payment did not occur.

The IRS transcripts indicate, and the court noted this fact, that the evidence showed that the Succession had paid a total of only $42,280.00 on the taxes for all three years, though it showed a tax lien of $49,500.00 on its final descriptive list when the Succession was closed in November of 2009. The defendants did not file any exhibits in this case.

In 2010, the IRS placed a $350.00 per month lien on Bobby’s social security/retirement income. In April of 2010, Bobby filed formal proof of claim forms in the Succession, which included IRS statements showing $93,751.14 in federal taxes, interest, and penalties due from the parties for all three tax years.

|4In February of 2011, Bobby filed suit against Robin and Cory Huff and the Succession. At trial, Ms. Berry testified that Bobby had overpaid his portion of the taxes and that the balance on the lien against him was $20,000.00.

In July 2011, Robin and Cory Huff, filed a reconventional demand as plaintiffs, asserting that the Succession had paid the federal taxes due on Gay’s separate income for all three years and that any remainder owed to the IRS in taxes, fees, or penalties, was Bobby’s responsibility. The re-conventional demand asserted that Bobby was liable to Robin and Cory Huff for all taxes paid by them or the Succession and asked the court to recognize that Robin and Cory Huff and the Succession had fulfilled their obligation in paying the federal income taxes. The trial court did not agree and rendered judgment in favor of Bobby Moore. While the trial court’s judgment did not address the defendants’ reconventional demand, it is well settled that when a trial court’s judgment is silent with respect to a party’s claim or an issue placed before the court, it is presumed that the trial court denied the relief sought. Dixie Roofing Co. of Pineville, Inc. v. Allen Parish School Bd., 95-1526 (La.App. 3 Cir. 5/8/96), 690 So.2d 49.

Ultimately, the trial court ordered the Succession to reimburse Bobby $18,454.83 for his overpayments to the IRS and to the Louisiana Department of Revenue, and it ordered the Succession to pay $9,312.79 on the $20,000.00 balance on the tax lien. The court also ordered the Succession to reimburse and pay some of the CPA costs. All three defendants, the Succession, Robin Huff, and Cory Huff filed a motion for a new trial, which was also denied. While the judgments of the trial court were against the Succession only, all three defendants joined in filing this appeal.

JfillL

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

A reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Questions of law, such as the proper interpretation of a statute, are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36 (citations omitted).

IV.

LAW AND DISCUSSION

The defendants assert, in a con-clusory manner and for the first time on appeal, the peremptory exception of no cause of action. They cite no code article and no jurisprudence in support of this assertion. In their four-page appellate brief, the defendants argue that Bobby Moore did not timely file his proof of claims or his suit against the Succession until after the Succession had closed. Without | (^specifically pleading prescription, they reference La.Code Civ.P. art. 3245 in a footnote. To that extent, the issue of prescription is not properly before us.

With regard to the exception of no cause of action, it is authorized by La.Code Civ.P. art. 927. Its function is “to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” Industrial Companies, Inc. v. Durbin, 02-665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213 (citations omitted). “The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.” Id.

Here, Bobby Moore’s petition asserted that he was married to Gay at the time of her death; that they were separate in property pursuant to the marriage contract; that she owed federal income taxes on her separate property for 2005, 2006, and 2007; that the IRS had erroneously assessed taxes due by the succession to him and were compelling payment by him. The petition named three defendants, the Succession of Patricia Gay Bruce Moore, Robin Ray Huff, and Cory Huff. It asserted that Robin was the independent administrator of the succession; that Robin and Cory Huff were the sole heirs of the decedent; that they were personally, jointly, and solidarity liable for the debts of the succession; that |7they had converted the assets of the estate to their own use; and that they had accepted the liabilities of the succession. The petition further asserted that the petitioner had filed formal proof of claims for $93,751.14 in the docket of the succession, that they were attached as exhibits, and that the defendants had refused to pay the taxes or to reimburse him for sums paid by him to the benefit of the succession.

While particular code articles were not discussed, clearly, the law provides remedies for reimbursement to spouses under the matrimonial regime statutes of Title VI at La.Civ.Code arts. 2335, et seq, which address community and separate property and obligations. Likewise, the Louisiana Civil Code and the Louisiana Code of Civil Procedure provide numerous remedies for debts and obligations owed by a succession and its heirs and legal successors. For claims against successions, see generally, La.Code Civ.P. arts. 3001 through 3396.20. With regard to claims against the heirs and legal successors, Robin Ray Huff and Cory Huff, see La.Code Civ.P. art. 427, and La.Civ.Code arts. 934 through 968. While neither the plaintiff, nor the defendants, nor the trial court discussed particular code articles with regard to the ele.ments of a specific cause of action, we [sfind that, under Industrial, 837 So.2d 1207, Bobby Moore’s petition, standing alone, stated facts sufficient to overcome the exception of no cause of action.

When the peremptory exception of prescription is filed for the first time on appeal, however, “[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” La.Code Civ.P. art. 2163 (emphasis added). The defendants argue on appeal that the Succession was already closed at the time of Bobby Moore’s petition. When we go beyond Bobby Moore’s petition, the record reveals that this is true.

More specifically, the record reveals that Robin Huff began acting on behalf of the deceased even before she opened the Succession in September 2007, which is allowed under La.Civ.Code art. 938(A). This occurred in August of 2007 when she signed the power of attorney authorizing Julie Berry to determine the tax liability between Bobby and Gay. When Julie Berry submitted her request for funds to pay the Succession’s portion of the taxes in August 2008, on Gay’s separate property, the Succession was open, as Robin had obtained appointment as admin-istratrix in September of 2007, then as independent administratrix in February 2008. While a succession is under administration, a creditor can submit his claim to the succession representative, and no particular form is required other than it be in writing, except for formal proof of claims under Article 3245. La.Code Civ.P. art. 3241.

While Julie Berry was a representative of the Succession and of Bobby Moore, her requests for the taxes (and for her own fees) were submitted in writing while the Succession was still under administration. “Any person having a |3claim against the estate may enforce the payment or performance of the claim against an independent administrator in the same manner and to the same extent provided for the assertion of such rights in [the] Code.” La.Code Civ.P. art. 3396.16. Additionally, under La.Code Civ.P. art. 734, the succession representative is the proper defendant to enforce an obligation against the deceased or the succession while the succession is under administration.

Here, however, while the petition of Bobby Moore appears to state a cause of action against the Succession, the record on appeal reveals that, on November 4, 2009, Robin and Cory Huff filed a “Petition for Possession and Discharge of Ad-ministratrix” and were granted a “Judgment of Possession” on the same date. Because Robin was the “independent ad-ministratrix” they did not have to provide an inventory, but were only required to file a sworn descriptive list. See La.Code Civ.P. arts. 3136, 3396.5, and 3396.18. The sworn detailed descriptive list showed an IRS lien of only $49,500.00 with no documentation. The heirs, Robin and Cory Huff, were put in possession of assets including immovable property in Youngs-ville, Louisiana, the cash proceeds of the sale of a house in Jennings, Louisiana, and accounts with Edward Jones, MidSouth Bank, Eneo Resources, Inc., and Royalty Interest (CEL Properties, LLC), as well and furniture and fixtures of the deceased.

The November 4, 2009 “Judgment of Possession” predated the civil suit of Bobby Moore in 2011, and his formal proof of claims in April 2010. Therefore, even though Bobby had been paying taxes on his wife’s separate property since 2007, and his tax representative had been trying to collect the wife’s portion of the taxes since 2008, when Bobby filed his formal proof of claims and Imhis suit for reimbursement, the Succession, as a separate entity, had been terminated and was not a proper party defendant.

The judgment of the trial court casts the judgment against the Succession and omits the named defendants, Robin Ray Huff and Cory Huff. Pursuant to La.Code Civ.P. arts. 3061 and 8062, the judgment of possession recognized Robin and Cory Huff as the heirs of the deceased and sent them into possession of the property owned by the deceased at the time of her death. Therefore the heirs were the legal successors and proper parties for liability purposes. See La.Code Civ.P. art. 427 and La.Civ.Code arts. 934, 936, 938, and 961, as previously discussed. Also instructive is La.Code Civ.P. art. 2672 on executory proceedings. As shown above, and for the reasons below, the judgment must be revised to cast the named defendants, Robin Ray Huff and Cory Huff, in judgment.

In Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916, the Louisiana Supreme Court revised an original trial court judgment to delete an improper party defendant and to add in its place the property party defendant. There, the trial was heard by the ad hoc judge assigned, and an original judgment was cast against the insured and “Phoenix/Travelers” Insurance Company. Id. at 919. A motion for a new trial, which did not address the naming of the defendant insurance company, was denied by the permanent division judge; and on the same date, the judge amended the original judgment based upon “a typographical” error. Id.

InThe amended judgment in Tunstall was cast against the insured and “Phoenix Insurance Company and Travelers Insurance Company.” Id. (emphasis added). On review, the appellate court affirmed the amended judgment, finding that the trial court had found ambiguities and confusion concerning the Travelers policy booklet and the Phoenix declarations page and that it was not error to name both defendant insurance companies in the amended judgment. The Louisiana Supreme Court granted Travelers and Phoenix’s joint application to review the correctness of the trial court’s judgments. Ultimately, it denied the affiliated companies’ exception of no right of action, after reinstating and revising the original judgment to delete the non-entity “Phoenix/Travelers” and to insert only “Phoenix Insurance Company” as the proper defendant insurer.

Essentially, the Tunstall court found that the trial court’s change in the amended judgment was not proper because it named both insurance companies, but Travelers had never answered the suit nor been the subject of a default judgment; the record indicated that only Phoenix was the defendant’s insurer. The court further found that it was error for the trial court to amend the judgment without a contradictory hearing on that issue, even though no party had requested a hearing, because the change was substantive, not typographical. Procedurally, the court noted:

While the usual remedy of the appellate court in such a case is to vacate the amended judgment and reinstate the original judgment, the instant case will not be resolved by such a remedy. To reinstate the original judgment would be to allow a judgment to stand that holds a non-entity, i.e. Travelers/Phoenix in judgment. La.Code Civ.P. art. 2164 allows this court to “render any judgment which is just, legal and proper upon the record on appeal.” Phoenix answered plaintiffs lawsuit, not Travelers. Accordingly, based on the record on appeal, we deem it just, legal and proper not only to vacate the 112amended judgment and reinstate the original judgment, but also to revise the original judgment to delete Travelers Insurance Company, adding in its place the proper party defendant, Phoenix Insurance Company.

Tunstall, 809 So.2d at 920-21 (citations omitted).

Here, all three defendants answered the suit and filed a motion for a new trial. The motion for a new trial did not address the closing of the Succession or the naming of the defendants; it only addressed the issue of parol evidence at trial, discussed further below. Robin and Cory Huff s reconventional demand appeared to be brought in their individual capacities, but they sought relief on behalf of the Succession in some of the paragraphs and in the final prayer. The judgment closing the Succession was issued by the ad hoc judge. The trial on Bobby Moore’s petition for reimbursement and help on the IRS lien, Robin and Cory Huffs reconven-tional demand, and all three defendants’ motion for a new trial, were all tried to the division judge, who issued a judgment against the Succession, without casting judgment against the heirs, Robin and Cory Huff.

While this case might be remanded to correct the judgment, we find sufficient evidence in the record to provide relief and promote judicial economy. Accordingly, for all of the reasons discussed, and pursuant to Tunstall and La.Code Civ.P. art. 2164, we deem it just, legal, and proper to amend and revise the original judgment to delete the Succession as an entity, adding in its place the proper party defendants, Robin Ray Huff and Cory Huff.

The defendants further contend that the trial court improperly ordered reimbursement for taxes paid where the marriage contract did not address the payment of taxes. We disagree. The federal and state tax amounts paid by, 113charged against, and ordered reimbursed to Bobby Moore were calculated on his wife’s separate income, including income from royalties and from farm land.

Pursuant to La.Civ.Code art. 2339, a spouse may reserve the fruits and revenues of his or her separate property as separate property also.

Here, the two-page marriage contract was entered into evidence. It complied with La.Civ.Code art. 2339, as it was in authentic form, notarized and witnessed, and it was received and filed by the Clerk of Court of Jefferson Davis Parish on October 5, 1983. While it did not specifically address the payment of taxes, it did specifically detail the couple’s intent to retain separate ownership of their own movable and immovable property and the “respective free enjoyment of each of their revenues” whether acquired before or during the marriage.

“Under the regime of separation of property each spouse acting alone uses, enjoys, and disposes of his property without the consent or concurrence of the other spouse.” La.Civ.Code art. 2371. Here, the record reveals facts supporting a longstanding pattern of maintaining their separate assets and income during the couple’s twenty-four-year marriage, pursuant to their pre-marriage contract. It further reveals that the decedent failed to include some of her income when she |usent her tax information to the CPA, causing a higher tax liability. The trial court found that Bobby and Gay had separate assets, incomes, and separate debts. We agree.

The defendants further contend that the trial court improperly ordered reimbursement because a joint return obligates each to pay all. Again, we disagree. Bobby Moore introduced extensive evidence, including the marriage contract, IRS transcripts, faxes, letters, and tax breakdowns by the only expert at trial, CPA Julie Berry, who was also authorized by power of attorney to prepare the calculations. The evidence proved that Bobby had paid the taxes on his own income and part of the taxes on his wife’s separate income.

Under a similar case, Succession of Hollander, 208 La. 1038, 1044, 24 So.2d 69, 71 (La.1945) (emphasis added), the fact that Bobby and Gay “filed their income tax returns as if the matrimonial community was in existence [does not ] have the effect of restoring the community which was renounced under the terms of the marriage contract.” Accordingly, here, it is the defendants who are the children of the deceased from a prior marriage, and they “have no interest in the manner in which the parties returned their incomes for the purpose of taxation. That is a matter which concerns the [fjederal and [sjtate [governments alone and can have no bearing on the issues involved in this case.” Id.

The defendants also contend that the trial court erred in ordering the payment of $9,312.79 on the tax lien, plus penalties and interest accruing since trial. They characterize this amount as “future” taxes not yet due and that were discharged in bankruptcy. Again, we find no merit to this position. At the time of trial in September 2011, the tax lien against Bobby had a balance of approximately _|_^$20,000.00. The judgment ordered the defendants to pay only Gay’s portion of that lien, and it was for taxes due in 2007, clearly “past” not “future” taxes due.

As to the claim that there was a discharge in bankruptcy, there is no evidence in the record on this issue. There were no defense exhibits filed in this case. Procedurally, a claim of discharge in bankruptcy is also one of the peremptory exceptions allowed under La.Code Civ.P. art. 927(A). Under La.Code Civ.P. art. 2163, however, this court can only consider such an exception filed in the appellate court for the first time “if proof of the ground of the exception appears of record.” Here, there is none.

Finally, the defendants filed a motion for a new trial asserting that, under La.R.S. 13:3721, the testimony of plaintiff Bobby Moore and the couple’s CPA of over twenty years, Julie Berry, was parol evidence and should not have been allowed at trial to prove the claims of Bobby Moore. After a hearing on the 11Bissue, the court denied the defendants’ motion for a new trial and issued a separate judgment on the new trial motion. The defendants now assert that' the trial court committed reversible error in allowing parol evidence, thereby violating La.R.S.13:3721. We disagree.

The purpose of La.R.S. 13:3721, known as the Dead Man’s Statute, is to prevent stale and unfounded claims from being filed against a succession when those claims could have been refuted by the decedent had she been alive. See Succession of Moore, 96-1268 (La.App. 1 Cir.6/20/97), 696 So.2d 1040. In Adams v. Carter, 393 So.2d 253 (La.App. 1 Cir.1980), writ denied, 398 So.2d 531 (La.1981), the court held that the Dead Man’s Statute did not apply to a suit for reimbursement filed by the husband’s estate against the wife’s estate to recover money spent by the husband to enhance the wife’s separate property. The court, therefore, found that par-ol evidence could be admitted to prove the claim for reimbursement filed more than a year after the wife’s death.

Similarly here, the trial court found La. R.S. 13:3721 inapplicable. We agree. Parol is defined: “A word; speech; hence, oral or verbal. Expressed or evidenced by speech only; as opposed to by writing or by sealed instrument.” Here, the record was replete with written evidence supporting the claims of Bobby Moore. His testimony, and that of Julie Berry, basically authenticated the nineteen written documents placed into evidence by the plaintiff. Bobby testified that he had known his wife since age seven; that she was already the retired clerk of court when they married in 1988; that she had retirement income, a farm, stocks, and inheritance from her father; and that they entered into the marriage contract to keep [17their property separate. The marriage contract was placed into evidence. As previously discussed, it was dated three days before their marriage.

Mr. Moore further testified that he and his wife had filed joint returns for over twenty years to take legal advantage of the tax savings for married couples. He testified that he took his W2 to the CPA, Julie Berry, each year, and his wife gathered her own information for the CPA.

This was confirmed by the testimony of Julie Berry. She testified that she had been doing the couple’s returns since 1983, and that they legally filed joint tax returns for tax savings but had separate property. Ms. Berry confirmed the kind of property owned by Gay Moore and confirmed that the decedent was definitely the manager of her own property. Her testimony identified the same pattern of business that Bobby had described. Ms. Berry identified the power of attorney that Bobby Moore and Robin Huff had signed, even before the Succession was opened, in 2007 authorizing Ms. Berry to separate out the tax liability of each party for the years 2005, 2006, and 2007, so that each party could pay its share of the taxes. The power of attorney, dated August 16, 2007, was entered into the record.

Ms. Berry further identified and explained all other documents prepared by her and entered into evidence. She discussed her methods in detail with regard to how she apportioned the taxes, year by year, discussing items over the phone, line by line with the IRS, so that she could properly bill each party for only each party’s share of the taxes. Ms. Berry also testified that she had set up the monthly installments for Bobby Moore with the IRS when they put a lien on his income. All documents, calculations, worksheets, tax returns, and IRS transcripts showing all amounts paid by Bobby Moore and by Robin Huff, were placed into | isthe record. Ms.' Berry identified all documentation showing that Mr. Moore had paid his wife’s portion of state and federal taxes on her separate income.

In Pierce v. Thompson, 468 So.2d 1379, 1381 (LaApp. 1 Cir.1985), the court found that while La.R.S 13:3721 “prohibits the introduction of parol evidence to prove a debt of the decedent when the suit is brought more than a year after decedent’s death.... It does not however prohibit proof of a debt by written evidence.” The court further found that, even disregarding the testimony admitted at trial, the court was “satisfied that the plaintiff presented prima facie written evidence of the debt.” Id. Similarly here, Bobby Moore did not have to rely on parol evidence to establish the amounts paid by him and owed by his deceased wife for taxes levied against him alone on his wife’s separate income.

Accordingly, the statute is inapplicable, and the defendants’ position is without merit.

V.

CONCLUSION

Based upon the foregoing, the trial court’s judgment ordering reimbursement to Bobby Moore and ordering payment of part of the remaining tax lien is affirmed as to liability, and the judgment is amended and revised to cast the proper defendants, Robin Ray Huff and Cory Huff, in judgment. The judgment denying the defendants’ motion for a new trial is affirmed.

All costs are assessed to the defendants, Robin Ray Huff and Cory Huff.

AFFIRMED AND AMENDED, AS REFORMED AND REVISED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

CONERY, J., concurs in part and dissents in part for the reasons expressed by Judge AMY.

AMY, J.,

concurring in part and dissenting in part.

• hi agree with the majority to affirm the merits of this matter. However, I respectfully dissent from the majority opinion insofar as it recasts the judgment. Rather, I would affirm the judgment originally rendered.

      . Found in Book VI on Probate Procedure, La.Code Civ.P. art. 3245 provides for the suspension of prescription pursuant to the submission of a formal proof of claim during the administration of the succession.

      .The exception of prescription is also a peremptory exception under La.Code Civ.P. art. 927(A); however, "[t]he court may not supply the objection of prescription, which shall be specially pleaded.” La.Code Civ.P. art. 927(B). While La.Code Civ.P. art. 2163 allows a party to raise the peremptory exception of prescription for the first time in the appellate court, it must be raised in a formal pleading and is not properly raised in oral arguments or by brief. Natchitoches Parish Police Jury v. Natchitoches Sportsman’s Ass'n, 11-102 (La.App. 3 Cir. 6/15/11), 67 So.3d 1284, writ denied, 11-1559 (La.10/7/11), 71 So.3d 315 (citing Rapp v. City of New Orleans, 95-1638 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868, and Tucker v. La. Dept. of Rev. and Taxation, 96-2740 (La.App. 1 Cir. 2/20/98), 708 So.2d 782).

      . See for example, La.Civ.Code art. 2363, and its comments, which provide for separate obligations of a spouse.

      . "An action to enforce an obligation, if the obligor is dead, may be brought against the heirs, universal legatees, or general legatees, who have accepted his succession, except as otherwise provided by law. The liability of these heirs and legatees is determined by the provisions of the Civil Code.” La.Code Civ.P. art. 427. "Succession occurs at the death of a person.” La.Civ.Code art. 934. "The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees.” La.Civ.Code art. 936. "A universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession.” Id. "Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.” La.Civ.Code art. 938(A). "Acceptance obligates the successor to pay estate debts in accordance with the provisions of this Title and other applicable laws.” La.Civ. Code art. 961.

      . Article 2672, entitled "Proceeding against heirs or legatees,” provides in pertinent part: "When the original debtor is dead, and his heirs or legatees have accepted his succession, the executory proceeding may be brought against his heirs or legatees.” La. Code Civ.P. art. 2672.

      . Art. 2339. Fruits and revenues of separate property
      The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property as provided in this Article.

        A spouse may reserve them as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged. A copy of the declaration shall be provided to the other spouse prior to filing of the declaration.
      As to the fruits and revenues of immov-ables, the declaration is effective when a copy is provided to the other spouse and the declaration is filed for registry in the conveyance records of the parish in which the immovable property is located. As to fruits of movables, the declaration is effective when a copy is provided to the other spouse and the declaration is filed for registry in the conveyance records of the parish in which the declarant is domiciled.

      . § 3721. Parol evidence to prove debt or liability of deceased person; objections not waivable
      Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      (1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      (2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      (3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      (4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.

      . Black’s Law Dictionary, Sixth Edition, Centennial Edition (1891-1991), West Publishing Co., St. Paul, Minn. 1990.


author: SEXTON, J. (Ad Hoc).

text:
    Lavert HENDERSON, Jr., et al., Plaintiffs-Appellants v. BAILEY BARK MATERIALS, Defendant-Appellee.
    No. 47,946-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Lavert Henderson, Jr., In Proper Person, Plaintiff-Appellant.
    Cook, Yancey, King & Galloway, Shreveport, LA, by J. Jarrod Thrash, for Defendant, Appellee.

      Before WILLIAMS, PITMAN and SEXTON (Ad Hoc), JJ.
   SEXTON, J. (Ad Hoc).

|,The plaintiff, Lavert Henderson, Jr., appeals from a trial court ruling which granted summary judgment in favor of the defendant, Bailey Bark Materials, Inc. (“Bailey Bark”). For the following reasons, we affirm the trial court judgment.

FACTS

Henderson is the driver for Jehovah Express, LLC, a trucking company owned by his wife. Henderson regularly hauled wood materials from Bailey Bark to a paper mill. He also hauled wood products for Wood Energy Group (“Wood Energy”), which is located on Bailey Bark property.

On September 27, 2011, Henderson arrived at Bailey Bark to get a load of material. Freddie Grant, a Bailey Bark employee tasked with loading trucks, was helping another customer. Henderson got on the Bailey Bark loading equipment and attempted to load his truck himself. Grant was able to persuade Henderson to get off the loader. According to Grant, Henderson got a pipe and started swinging it at him and cursing. Jeff Bailey, the owner of Bailey Bark, intervened. Henderson claimed that he was only using the pipe to check his tires. Henderson left the scene.

Soon after Henderson left, Grant began getting telephone calls from a blocked number. When he answered one of the calls, Henderson was on the phone. Grant claimed that Henderson threatened to kill him.

Grant and Bailey contacted the Shreveport Police Department and reported the incident to Corporal S.D. Clanton, who was dispatched to the scene at 1:00 p.m. Corporal Clanton called Henderson from Bailey Bark and asked him to return to the business to give his side of the incident. 12Henderson became irate, questioned the officer’s authority, and refused to return to the business. Corporal Clanton filled out an affidavit to obtain a warrant for Henderson’s arrest for aggravated assault and improper telephone communications.

Officer M.K. Guy of the Shreveport Police Department was dispatched to Bailey Bark at 3:03 p.m. the same day, September 27, 2011. Henderson had returned to the business and was standing by a vehicle on company property. He walked toward Officer Guy who told him to wait. Bailey identified himself to Officer Guy as the owner of the property. Bailey said that he did not want Henderson on the property. Officer Guy instructed Henderson to leave and not to return. Henderson complied. Shortly after Henderson left the property, Bailey received a call on his cell phone. Bailey listened for a moment and then asked the caller to repeat himself. Bailey turned on the speaker phone. A man Bailey identified as Henderson said, “If I catch you, I will f_g kill you.” Officer Guy heard the statement. It was determined that the number from which the call came belonged to Henderson. Officer Guy submitted a request for an affidavit for an arrest warrant for Henderson for improper telephone communications.

On September 28, 2011, Henderson was arrested at his home. Henderson was charged with aggravated assault and two counts of improper telephone communications. Upon being booked, Henderson claimed that he was |3suicidal and was taken to LSU Health Sciences Center. He was later released from the hospital and taken to jail.

On October 3, 2011, in proper person, Henderson and Jehovah Express filed a complaint against Bailey Bark, alleging intentional interference with business relationships, racial discrimination, defamation of character, false imprisonment, loss of income, and intentional infliction of emotional distress. They sought to recover $1,860,000 in damages.

Henderson claimed that he had been giving information to the Shreveport Fire Department about arson fires at Bailey Bark and Wood Energy. According to Henderson, a conflict between Bailey Bark and Wood Energy was adversely affecting his business. Henderson maintained that the owner of Bailey Bark told him not to haul for Wood Energy and the owner of Wood Energy told him not to haul for Bailey Bark. Henderson also asserted that the owner of Bailey Bark threatened him.

Henderson further claimed that on September 26, 2011, and on September 27, 2011, he was threatened by employees of Bailey Bark. Henderson denied threatening Grant with a pipe on September 27, 2011. Henderson urged that his arrest on September 28, 2011, was the result of a false police report filed by a Bailey Bark employee. He asserted that on September 28, 2011, when he was arrested, he had not taken his medication and had thoughts of suicide.

| .¡Henderson filed a motion for summary judgment on behalf of himself and Jehovah Express, largely attacking the attorneys for Bailey Bark. A hearing was held on the motion on March 5, 2012. Henderson’s motion for summary judgment was denied.

At the March 2012 hearing, the trial court also considered numerous exceptions filed by Bailey Bark. The company contended that Henderson, who was proceeding in proper person, lacked procedural capacity to represent Jehovah Express, LLC. Henderson agreed to the granting of this exception.

The trial court granted Bailey Bark’s exception of no right of action as to Jehovah Express, finding that the company could not assert claims for intentional infliction of emotional distress, racial discrimination, and false imprisonment, claims that were personal to Henderson. The trial court overruled the exception as to the company’s claim for defamation. However, Henderson could not represent Jehovah Express, and the company did not retain counsel. No claims as to the company were considered by the trial court in subsequent proceedings.

The trial court granted Bailey Bark’s exception of no cause of action as to Henderson regarding his claims for intentional interference with business relations and racial discrimination. The trial court gave Henderson 15 days to amend his pleading to cure the exceptions.

Bailey Bark’s exception of no cause of action as to Henderson’s defamation claim and his claims for false imprisonment and intentional infliction of emotional distress were denied by the trial court.

|fiBailey Bark’s motion for sanctions alleging that Henderson filed this suit to harass Bailey Bark and cause unnecessary litigation costs was referred to the merits.

Henderson filed a second motion for summary judgment. This motion for summary judgment was also denied by the trial court. The trial court held that Henderson failed to present evidence in proper form to support his motion for summary judgment.

On May 25, 2012, Bailey Bark filed a motion for summary judgment, and alternatively, reurged its exceptions of no cause of action and no right of action. Bailey Bark alleged that Henderson had failed to produce any evidence to support his claims for intentional interference with business relations, defamation, false imprisonment, intentional infliction of emotional distress, and racial discrimination. On June 18, 2012, the trial court granted summary judgment in favor of Bailey Bark, dismissing Henderson’s claims with prejudice. The trial court found that Henderson had not opposed Bailey Bark’s motion for summary judgment with appropriate evidence. All documents submitted by Henderson were found to be unsworn and unverified. Henderson appealed.

Henderson is representing himself on appeal. In his brief, he basically reiterated his version of the facts of the ease and denied that he threatened to kill Bailey. He did not address the question of whether his proof in opposition to the motion for summary judgment was sufficient.

| ^SUMMARY JUDGMENT PRINCIPLES

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053; Carter Enterprises, LLC v. Scott Equipment Co., LLC, 46,862 (La.App.2d Cir.4/11/12), 91 So.3d 1134.

Appellate courts review summary judgments de novo, under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Center, 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, 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). A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, supra; Carter Enterprises, LLC v. Scott Equipment Co., LLC, supra.

Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Jenkins v. Willis Knighton Medical Center, supra. The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s |7claim; he need only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2); Carter Enterprises, LLC v. Scott Equipment Co., LLC, supra.

Summary judgment evidence includes the pleadings, depositions, answers to interrogatories, admissions, and affidavits. La. C.C.P. art. 966(B). Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached to the affidavit or served with it. La. C.C.P. art. 967(A). In meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. Marino v. Parish of St. Charles, 09-197 (La.App. 5th Cir.10/27/09), 27 So.3d 926.

DISCUSSION

In its motion for summary judgment, Bailey Bark asserted that Henderson failed to provide competent summary judgment evidence to establish that he could satisfy his evidentiary burden of proof at trial as to his claims for intentional interference with business relations, defamation, false imprisonment, intentional infliction of emotional distress, and racial discrimination. In support of its motion for summary judgment, Bailey Bark filed the affidavit of Grant, the deposition of Corporal Clanton, with her | ¿police report attached, and the deposition of Officer Guy, -with his police report attached. In opposition to the motion for summary judgment, Henderson attached several un-sworn and unverified documents. As will be discussed below, the trial court correctly found that Henderson failed to provide competent summary judgment evidence to support his claims.

Intentional Interference with Business Relations

Louisiana courts have recognized a cause of action for tortious interference with business. Junior Money Bags, Ltd. v. Segal, 970 F.2d 1 (5th Cir.1992); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir.1981); Bogues v. Louisiana Energy Consultants, Inc., 46,434 (La.App.2d Cir.8/10/11), 71 So.3d 1128. In Louisiana, the delict is based on the principle that the right to influence others not to deal is not absolute. Louisiana law protects the businessman from malicious and wanton interference, permitting only interferences designed to protect a legitimate interest of the actor. The plaintiff in a tortious interference with business suit must show by a preponderance of the evidence that the defendant improperly influenced others not to deal with the plaintiff. Junior Money Bags, Ltd. v. Segal, supra. It is not enough to allege that a defendant’s actions affected the plaintiffs business interests; the plaintiff must allege that the defendant actually prevented the plaintiff from dealing with a third party. Bogues v. Louisiana Energy Consultants, Inc., supra.

The jurisprudence has viewed this cause of action with disfavor. The plaintiff must show that the defendant acted with actual malice. Actual Rmalice must be pleaded in the complaint. Bogues v. Louisiana Energy Consultants, Inc., supra.

In this case, Henderson claims that the conflict between Bailey Bark and Wood Energy Group caused him to lose business. He alleged that, because he was prohibited from going onto Baily Bark’s property, he could not do business with Wood Energy Group. However, Bailey Bark showed that, due to Henderson’s threats toward personnel at Bailey Bark, the company directed that Henderson could no longer come onto its property. Any interference this may have caused with Henderson’s business was an incidental effect of Bailey Bark’s actions designed to protect the legitimate interest of safeguarding its officials and employees. There is no allegation or showing by Henderson that Bailey Bark acted with actual malice. Without a showing of the essential elements of a claim for intentional interference with business relations, Henderson could not defeat Bailey Bark’s motion for summary judgment on this claim.

Defamation

Defamation is a tort involving the invasion of a person’s interest in his or her reputation and good name. Four elements are necessary to establish a claim for defamation: (1) a false or defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.7/10/06), 935 So.2d 669. A statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter |inothers from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Kennedy v. Sheriff of East Baton Rouge, supra.

Defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible to a defamatory meaning. Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault), and injury. Kennedy v. Sheriff of East Baton Rouge, supra.

Privilege is a defense to a defamation action. The doctrine of privilege rests upon the notion that sometimes, as a matter of public policy, in order to encourage the free communication of views in certain defined instances, one is justified in communicating defamatory information to others without incurring liability. Privileged communications are divided into two general classes: (1) absolute; and (2) conditional or qualified. Kennedy v. Sheriff of East Baton Rouge, supra. Louisiana courts have recognized that the public has an interest in possible criminal activity being brought to the attention of the proper authorities, and have extended a | n qualified privilege to remarks made in good faith. Kennedy v. Sheriff of East Baton Rouge, supra.

The conditional privilege is defeated by proof that the defamatory statements were made with malice in fact, ie., that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made. Kennedy v. Sheriff of East Baton Rouge, supra.

Henderson claims that he is a gospel rap artist and that the “false police reports” made by Bailey and Grant, together with the publication of his mugshot in the local newspaper, caused damage to his reputation. In support of this claim, Henderson attached a copy of Corporal Clanton’s offense report and Henderson’s booking report.

Henderson simply failed to show, through competent summary judgment evidence, the essential elements of his claim for defamation. He alleged that his mug shot was published in a local newspaper, but he failed to show that he suffered harm to his reputation so as to lower him in the estimation of the community, deter others from associating or dealing with him, or otherwise exposing him to contempt or ridicule.

More significantly, Henderson failed to show that the police reports resulting in his arrest were false or were not entitled to the qualified privilege afforded good faith complaints to law enforcement. The police were called to Bailey Bark on two occasions on September 27, 2011. These calls were triggered by the dispute between Henderson, Bailey, and Grant. On the second occasion, Officer Guy told Henderson to leave the premises |19and was present when a caller identified as Henderson called Bailey and threatened Bailey’s life. The complaint to the police was subject to a qualified or conditional privilege. Henderson failed to provide competent proof to defeat the conditional privilege or to show that he was injured. Under these circumstances, the trial court did not err in granting Bailey Bark’s motion for summary judgment on this issue.

False Imprisonment

False imprisonment or arrest occurs when one arrests and restrains another against his will and without statutory authority. Wilson v. City of Shreveport, 40,383 (La.App.2d Cir.2/10/06), 921 So.2d 254, writ denied, 2006-0509 (La.5/5/06), 927 So.2d 321. The tort of false imprisonment consists of the following two essential elements: (1) detention of the person; and (2) the unlawfulness of the detention. Plessy v. Hayes Motor Co., Inc., 31,947 (La.App.2d Cir.6/16/99), 742 So.2d 934; Harris v. Eckerd Corp., 35,135 (La.App.2d Cir.9/26/01), 796 So.2d 719.

Henderson has not presented any evidence to support a claim of false imprisonment. He was not detained by anyone at Bailey Bark. He was arrested by the police based upon warrants validly and lawfully obtained. The trial court did not err in granting summary judgment in favor of Bailey Bark on this issue.

Intentional Infliction of Emotional Distress

In order to recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was [ issevere; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co., 585 So.2d 1205 (La.1991).

The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. White v. Monsanto Co., supra; Muslow v. A.G. Edwards & Sons, Inc., 509 So.2d 1012 (La.App. 2d Cir.1987), writ denied, 512 So.2d 1183 (La.1987). Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. White v. Monsanto Co., supra.

Conduct which may otherwise be extreme and outrageous, may be privileged under the circumstances. Liability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional distress. White v. Monsanto Co., supra. Similarly, liability cannot be based upon a privileged communication on a matter of public concern, a good faith report of a suspected or possible criminal act, as such reports should be encouraged in promoting the public interest in the suppression of crime and enforcement of the law. Cook v. American Gateway Bank, 2010-0295 (La.App. 1st Cir.9/10/10), 49 So.3d 23.

Henderson has failed to establish that Bailey Bark engaged in extreme and outrageous conduct, Henderson suffered severe emotional distress, and 114Bailey Bark desired to inflict severe emotional distress or knew that it would be certain or substantially certain to follow from its conduct.

Henderson alleges that he suffered mental anguish as a result of being falsely arrested. Henderson has failed to carry his burden of showing that the complaints made by Bailey Bark, which resulted in the arrest, were false or were made in bad faith. He was arrested due to a complaint to the police by Bailey Bark based on Henderson’s alleged threatening behavior and speech toward Grant and Bailey. Under these circumstances, Bailey Bark’s complaint to the police was a privileged communication that cannot serve as the basis for a claim for intentional infliction of emotional distress. Further, Henderson has failed to establish by competent summary judgment evidence that he suffered severe emotional distress. Corporal Clanton and Officer Guy testified in their depositions that, at the time of his arrest, Henderson did not seem to be very distressed. He was taken to LSU Health Sciences Center because, in response to questions at booking, he stated that he felt suicidal. According to Corporal Clanton, any time such a statement is made, the individual is transported to the hospital. Officer Guy, who relieved Corporal Clan-ton at the hospital, stated in his deposition that Henderson did not appear to be upset.

Henderson asserted that he had to increase his Prozac prescription and take medication to help him sleep as a result of his arrest. He attached what appears to be paperwork from a pharmacy. However, these documents are unsworn and unverified and are not competent summary judgment | ^evidence. Based upon the record before us, the trial court did not err in granting summary judgment in favor of Bailey Bark as to this claim.

Racial Discrimination

The plaintiff claiming discrimination has the initial burden of proof and must establish a prima facie case of discrimination. The plaintiff may meet this initial burden by showing that: (1) he was a member of a racial minority; (2) he was qualified for the position; (3) he was discharged; and (4) the position was filled by a person who was not a member of the protected minority class. Baldwin v. Board of Supervisors for University of Louisiana System, 2006-0961 (La.App. 1st Cir.5/4/07), 961 So.2d 418; Knapper v. Hibernia Nat. Bank, 2009-1036 (La.App. 4th Cir.9/8/10), 49 So.3d 898. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Upon establishing a prima facie case of discrimination, the burden shifts to the defendant to set forth a legitimate nondiscriminatory explanation for the adverse employment decision. If the defendant is able to articulate a legitimate nondiscriminatory reason, the plaintiff must then establish by a preponderance of the evidence that the defendant’s proffered reasons were not its true reasons. Knapper v. Hibernia Nat. Bank, supra.

Racial discrimination claims generally arise in the context of employment. See La. R.S. 23:332. Although he did business with Bailey Bark, Henderson has failed to allege or show that he was employed by the company. Henderson claims that he suffered a loss of business and income when Bailey Bark prohibited him from coming onto the property. He |1Basserts that this was racial discrimination because Henderson is African-American and the owner of Bailey Bark is white. Henderson failed to submit any proof in his opposition to Bailey Bark’s motion for summary judgment to support his allegations.

In a sworn affidavit attached to Bailey Bark’s motion for summary judgment, Bailey stated that the company used several African-American owned businesses, on an as-needed basis to haul wood products from its business to the paper mill. Bailey stated that Henderson was not an employee of Bailey Bark. Also, as noted above, Bailey Bark prohibited Henderson from coming onto the company property due to alleged threats made by Henderson to Bailey and Grant.

Henderson has failed to establish a 'pri-ma fade case of discrimination. The trial court did not err in granting Bailey Bark’s motion for summary judgment on this issue.

CONCLUSION

For the reasons stated above, we affirm the trial court’s granting of summary judgment in favor of the defendant, Bailey Bark Materials, Inc., dismissing the claims of the plaintiff, Lavert Henderson, Jr. All costs in this court are assessed to the plaintiff, Lavert Henderson, Jr.

AFFIRMED.

      . Henderson was prosecuted in Shreveport City Court. He was found guilty of one count of improper telephone communications. He was found not guilty of aggravated assault and not guilty of the other count of improper telephone communications. Henderson appealed his conviction and that matter is pending before this court on the present docket. See State v. Henderson, 47,806 (La.App.2d Cir.4/10/13), 112 So.3d 1038.


author: THERIOT, J.

text:
    Janice HILL v. NEW ORLEANS EMS.
    No. 2012 CA 1347.
    Court of Appeal of Louisiana, First Circuit.
    April 10, 2013.

      Craig B. Mitchell, Kiana M. Mitchell, Michael S. Rodriguez, New Orleans, LA, for Defendant/Appellant City of New Orleans.
    Joseph G. Albe, New Orleans, LA, for Plaintiff/Appellee Janice Hill.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

1 ¡.This is an appeal from a final judgment by the Office of Workers’ Compensation (“OWC”) of a disputed claim for compensation between the appellant, New Orleans EMS (“EMS”) and the appellee, Janice Hill. For the following reasons, we partially modify, partially affirm, and partially reverse and vacate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Ms. Hill was employed by EMS as an emergency medical technician (“EMT”) in 2007. One of her duties as an EMT was to lift a stretcher carrying a patient, as well as other necessary medical equipment, up and into the back of an ambulance. According to Ms. Hill, her job required her to lift a maximum of 300-400 pounds and to be able to step into and out of the back of the ambulance frequently.

On April 11, 2007, Ms. Hill suffered injuries to the left side of her body when she lost her footing and fell out the back of the stationary ambulance in which she was working. She was transported to the Ochsner Clinic in New Orleans, where she was diagnosed with a contusion on her left hip, strained neck, and a benign head injury. EMS investigated the accident, agreed Ms. Hill’s injuries were compensa-ble, and began paying her total temporary disability benefits (“TTD”) on April 19, 2007, in the amount of $881.22 biweekly.

For the next two years, Ms. Hill sought medical treatment at Tulane University Hospital, primarily from Dr. Gregory Stewart. On May 13, 2009, Dr. Stewart reported that Ms. Hill had reached maximum medical improvement (“MMI”), but restricted her to medium duty with no climbing, bending, squatting, twisting, or crawling. This restriction effectively prevented Ms. Hill from returning to work as an EMT. As a result, her TTD |swas converted to supplemental earnings benefits (“SEB”) on November 1, 2010, starting at $1909.31 monthly, decreasing to $243.37 monthly.

Upon her change to SEB, Ms. Hill consulted vocational rehabilitation counselor Ronnie Ducote on August 28, 2009. Although Mr. Ducote was able to recommend potential job positions in her immediate area that complied with her work restrictions, Ms. Hill on her own accepted a full-time position as an emergency room technician at Ochsner Baptist Medical Center in New Orleans in December of 2009, with a starting pay rate of $12.31 per hour. She resigned from that position one month later.

EMS then requested that Mr. Ducote continue vocational rehabilitation with Ms. Hill, and Mr. Ducote did so shortly after Ms. Hill’s resignation. After two months, Mr. Ducote found five positions suitable for Ms. Hill, which were approved by Dr. Stewart. EMS then terminated vocational rehabilitation and reduced Ms. Hill’s SEB to $643.96 monthly on April 1, 2010.

One month prior, Ms. Hill filed a disputed claim for compensation, alleging that an appointment with Dr. Stewart was not timely approved by EMS. EMS filed a motion for summary judgment in response, claiming the SEB should have been reduced further due to her employment at Ochsner Baptist, and that it was entitled to a credit for the SEB overpayment as well. OWC ruled on November 3, 2010, that the SEB should be adjusted to $486.74, beginning December 1, 2009, and that EMS was entitled to a credit of $6,627.84 for over-payments from December 1, 2009 to September 30,2010.

|4Ms. Hill continued to see Dr. Stewart for pain, and after he reviewed an MRI of her left hip and lower back, he concluded on August 23, 2011 that she was still “unable to work.” Dr. Stewart later clarified that statement in a letter to Ms. Hill’s counsel, dated September 29, 2011, by stating “Ms. Hill is unable to work at any job.” Although Ms. Hill had made some complaints about lower back pain, Dr. Stewart’s reports do not show that her inability to work was based on injury to her back, or whether any back injury was a result of the April 11, 2007 accident.

Ms. Hill had also been treated by Dr. Robert Steiner, an orthopedic surgeon, during the same span of time she had seen Dr. Stewart, although the visits with Dr. Steiner were less frequent. In Ms. Hill’s last recorded visit with Dr. Steiner on October 11, 2011, he concluded that she had sustained a contusion on her left hip, that the back pain she complained of was not related to her April 11, 2007 accident, and that she was not a candidate for surgery. He further concluded that she should be restricted to light duty and accordingly be referred to vocational rehabilitation.

Ms. Hill then saw a pain management specialist, Dr. Fred DeFrancesch, without EMS authorization, who could not determine if the pain in her hip came from an injury to her lower back. He therefore scheduled a discogram to aid him in the assessment, but EMS refused to authorize the procedure.

Ms. Hill filed a disputed claim for compensation on February 18, 2011, alleging that an MRI scheduled by Dr. Stewart was not timely authorized. The claim was amended on July 19, 2011, to include a claim for TTD and/or SEB without offset from September 30, 2010, onward, to authorize the evaluation by Dr. DeFrancesch, to change her disability status to TTD or partial SEB, and to award penalties and attorney fees against |sEMS. She also filed a motion to compel a medical examination by Dr. DeFrancesch on the same day.

On October 5, 2011, OWC issued an order on the motion to compel that Ms. Hill be granted her choice of physician, Dr. DeFrancesch, and awarded penalties in the amount of $2,000 and attorney fees of $1,500 against EMS. EMS filed a motion for new trial for reargument purposes only on the issue of the penalties and attorney fees, which were based on EMS’s failure to authorize Dr. DeFrancesch’s examination. The motion was denied on October 28, 2011. EMS gave notice of intent to seek supervisory writs, which was denied on November 15, 2011, for lack of timeliness.

Ms. Hill also filed a motion and order to hold EMS in contempt on November 9, 2011, for EMS’s failure to timely authorize a discogram ordered by Dr. DeFrancesch. Trial on the motion for contempt was heard on January 9, 2012. Judgment was rendered by OWC on April 4, 2012, where, among other things, Ms. Hill’s status was changed to SEB with zero earning capacity from September 30, 2010, to September 29, 2011, and EMS was ordered to pay an additional $2,000 in penalties and $3,500 in attorney fees. It is these two specific points of the judgment that EMS has timely appealed.

ASSIGNMENTS OF ERROR

There are four assignments of error by EMS:

1) [OWC] erred by disregarding its previous judgment from November 3, 2010, when holding on April 4, 2012 that “[EMS] properly reduced [Ms. Hill’s] TTD benefits to SEB on September 30, 2010.” The November 3, 2010 Judgment held that [Ms. Hill’s] SEB rate as of December, 2009 was $486.74; therefore, [Ms. Hill] was not [receiving] TTD on September 30, 2010.
2) [OWC] erred in holding that [Ms. Hill] was entitled to SEB after September 30, 2011 based on a post injury earning capacity of zero.
3) [OWC] committed legal error when it applied the penalty provisions of [La. R.S.] 23:1201(G) to a partial judgment | (¡rendered on October 5, 2011, which was not final or immediately appealable.
4) Assuming that [OWC] did not commit legal error when applying La. R.S. 23:1201(G), [OWC] committed manifest error in awarding [Ms. Hill] $3,500 in attorney fees for [EMS’s] failure to timely pay the October 5, 2011 judgment.

STANDARD OF REVIEW

“Factual findings in a workers’ compensation case are subject to the manifest error standard of review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one.” Russell v. Regency Hosp. of Covington, LLC, 2008-0538, p. 5 (La.App. 1 Cir. 11/14/08), 998 So.2d 301, 305, (citations omitted). An appellate court reviews the OWC’s decision to award penalties and attorney fees using the manifest error/elearly wrong standard of review. Id. at 306. If it is determined that penalties and attorney fees are incorrectly awarded, the appellate court then conducts a de novo review of the record to correct the legal error and apply the law correctly to that issue. Id.

DISCUSSION

In the first assignment of error, EMS takes issue with the April 2012 judgment’s language, which states that “Defendant properly reduced claimant’s TTD benefits to SEB on September 30, 2010 to 9/29/2011” when the record shows that TTD benefits were terminated on May 31, 2009. EMS contends that failure to correct the discrepancy will allow Ms. Hill the opportunity to file another disputed claim for compensation for TTD benefits for the December 2009 to September 2010 time period, to which EMS claims she is not entitled pursuant to the November 3, 2010 judgment.

We must first determine if this wording of the April 2012 judgment is the result of a reasonable deduction of the facts entered into the record. In 17its reasons for judgment, OWC seemed unclear as to Ms. Hill’s true status, stating “[a]s to the issue of indemnity benefits, whether TTD or SEB and whether or not claimant had ‘retired’ from the workforce.... ” It is evident from these words that OWC did not believe Ms. Hill’s actual status was germane to what amount the benefits should be. It is clear from the record, however, that Ms. Hill was on TTD status from April 19, 2007, to May 31, 2009, and her SEB status began June 1, 2009, continuing onward.

The judgment of November 3, 2010 reduced the SEB paid to Ms. Hill to $486.74, beginning December 1, 2009, which coincides with Ms. Hill’s starting work as an emergency room technician at Ochsner Baptist. The judgment further awarded EMS a credit for overpayments made “between December 2009 and September 30, 2010.” This language is not specific, but it can be logically assumed that the operative date is December 1, 2009, since the date is previously mentioned in the judgment and the benefits payments are monthly. Viewing the November 2010 and the April 2012 judgments side by side, OWC extended the reduction of benefits from September 30, 2010 to September 29, 2011. OWC based this reduction on Dr. Stewart’s original opinion that Ms. Hill was able to perform sedentary work, which changed on or about August 23, 2011, when he stated she was unable to work at any job. The OWC therefore reasonably concluded that Ms. Hill’s benefits were properly reduced from September 30, 2010 to September 29, 2011 in the April 2012 judgment.

Although we find the judgment with respect to this issue correct and reasonable, we find the wording of the sentence of which EMS complains to be misleading. Ms. Hill’s status had clearly been changed from TTD to SEB long before April 4, 2012, and the inclusion of TTD on issue 3 of the judgment is unnecessary. Ms. Hill merely states in her brief that the Isoversight is harmless error, but provides no law or jurisprudence to support this argument. Out of an abundance of caution to prevent any unnecessary litigation, we amend the April 4, 2012 judgment as follows: “Defendant properly reduced claimant’s TTD benefits to SEB on September 30, 2010 to 9/29/2011” shall be changed to “Defendant properly reduced claimant’s benefits from September 30, 2010 to September 29, 2011.” This modification in no way interferes with the OWC’s appreciation of the facts or its ultimate decision.

As to EMS’s second assignment of error, we find the OWC was reasonable in its finding that Ms. Hill was entitled to SEB at a post-injury earning capacity of zero. OWC based its findings on Dr. Stewart’s assessments in August and September 2011, where he concluded that Ms. Hill could no longer do any work due to injuries to her sacroiliac joint located in her left hip. Dr. Steiner’s opinion differed slightly in that he felt she could perform light duty, and he also was of the opinion that Ms. Hill’s back pain was unrelated to her April 11, 2007 accident. OWC thus premised its decision on this issue partly from Dr. Stewart’s assessments and partly from Dr. Steiner’s assessments, which, as the fact finder, the OWC has the prerogative to do. While EMS points out that the vocational rehabilitation counselor found job positions that were sedentary in nature that Ms. Hill might have been able to perform, the OWC reasonably disagreed and relied on the opinions of the doctors to find that Ms. Hill was incapable of working any job after September 30, 2011. Where there are two permissive views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311, 314.

|3In the third and fourth assignments of error, EMS states OWC’s award of additional attorney fees and penalties for failure to timely pay the October 5, 2011 order was legal error. We agree. OWC’s justification for awarding the additional penalties and fees was that since EMS did not seek a stay or review of the issue, the thirty-day period by which EMS was ordered to pay was never suspended. However, this rationale is of no moment. Courts of this state have recognized that under La. R.S. 23:1201(G), an employer is liable for penalties and attorney fees if it does not pay an award payable under a final, nonappealable judgment within thirty days. Harrington v. Coastal Construction and Engineering, 96-681, p. 6 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 461, writ denied, 97-0109 (La.3/7/97), 689 So.2d 1375; Fallen v. City of New Orleans, 99-0656 (La.App. 4 Cir. 12/15/99), 753 So.2d 910, 912, writ denied, 2002-0702 (La.5/3/02), 815 So.2d 823. In the instant ease, the October 5, 2011 judgment is an interlocutory judgment, as the issue of Ms. Hill’s disability status was not resolved in that judgment, but only the preliminary matters of the motion to compel and the penalty and attorney fee awards. The OWC also regarded the October 5, 2011 judgment as interlocutory when it denied EMS’s motion for new trial and motion for leave to file supervisory writ. Therefore, we reverse the trial court in the instant case, insofar as the April 4, 2012 judgment awarded penalties and attorney fees. With that portion of the judgment set aside, EMS’s fourth assignment of error is moot.

CONCLUSION

While we do not disagree with the trial court’s decision with regard to the reduction of benefits from September 30, 2010 to September 29, 2011, we will modify that portion of the April 4, 2012 judgment for the sake of clarity. We affirm the OWC ruling to modify Ms. Hill’s SEB status to zero |10earning capacity as of September 30, 2011, as we do not find the decision to be manifestly erroneous. We reverse and vacate the April 4, 2012 award of penalties in the amount of $2,000 and attorney fees in the amount of $3,500.

DECREE

The April 4, 2012 judgment in the instant case is hereby modified to read, “Defendant properly reduced claimant’s benefits from September 30, 2010 to September 29, 2011.” The judgment’s imposition of $2,000 in penalties and $3,500 in attorney fees against the appellant, New Orleans EMS, is reversed and vacated. The judgment in all other respects is affirmed.

JUDGMENT MODIFIED IN PART, AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART.

      . EMS alleges this adjustment was calculated from the salary of the lowest paying job recommended by Mr. Ducote.

      . EMS alleges this amount is based on Ms. Hill’s hourly wage at Ochsner Baptist.