author: ROBERT M. MURPHY, Judge.

text:
    Page SANCHEZ v. Steve DUBUC, Allstate Insurance Company and State Farm Insurance Company as the Uninsured/Underinsured Automobile Liability Insurance Carrier of Page Sanchez.
    No. 12-CA-526.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      D. Douglas Howard, Jr., Jonathan C. Pedersen, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    James L. Donovan, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellants.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

|2In this action for damages arising out of a motor vehicle accident, the defendants, Steve Dubuc and Allstate Insurance Company, appeal a judgment rendered in favor of plaintiff Page Sanchez awarding him damages for his injuries. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On December 14, 2009, plaintiff-appellee Page Sanchez was operating his vehicle in traffic in Kenner, Louisiana. While stopped at a traffic light, Mr. Sanchez was rear-ended by defendant-appellant Steve Dubuc, after Mr. Dubuc’s foot slipped off his brake pedal as he was approaching the traffic light immediately behind Mr. Sanchez. At the time of the accident, Mr. Dubuc was insured through defendant-appellant Allstate Insurance Company (“Allstate”).

Thereafter, Mr. Sanchez commenced this action on December 13, 2010 to recover damages for injuries he sustained as a result of the accident and named as ^defendants Mr. Dubuc, Allstate and State Farm Insurance Company, Mr. Sanchez’s uninsured/underinsured motorist insurance carrier. Prior to trial, defendants stipulated that Mr. Dubuc was at fault in causing the accident and that Allstate had in full force and effect a policy of automobile liability insurance, which provided Mr. Du-buc with coverage for the accident forming the basis of the suit. The parties also stipulated that the amount in controversy did not exceed the jurisdictional amount of $50,000 required for a trial by jury, exclusive of interest and costs. Therefore, the only contested issues at trial were causation and damages. Specifically, Mr. Sanchez contended that he suffered from a ruptured disc in his lower back, while defendants contended that Mr. Sanchez sustained only a lower back injury with treatment lasting four and one-half months. As a result, defendants suggested that an award of damages in the range of $15,000 to $25,000 would be appropriate for such an injury.

The case proceeded to trial on March 13, 2012. Mr. Sanchez called two witnesses to testify at trial: (1) Scott Hopkins, Mr. Sanchez’s supervisor; and (2) Mr. Sanchez. Mr. Sanchez also introduced several exhibits into evidence, including the deposition transcript of his treating physician Dr. Surendra Purohit, all of which were stipulated to and admitted without objection by defendants. In conjunction with the admission of Dr. Purohit’s deposition transcript into evidence, defendants also stipulated to Dr. Purohit’s expertise in the field of general medicine and general surgery. Defendants did not call any witnesses or offer any exhibits into evidence at trial.

Following a bench trial, the judge returned a verdict in favor of Mr. Sanchez, awarding him damages in the amount of $50,000, including $47,462 in general damages, $1,698 for medical expenses, and $840 for lost wages. The court also l4awarded Mr. Sanchez $2,497.60 in judicial interest and $2,218.25 for court costs and expenses. In its oral reasons for judgment, the court stated, “[based upon the testimony of the witnesses and all the exhibits introduced — and I put a lot of emphasis on the Doctor’s testimony, the doctor was quite clear — I find for the Plaintiff.” Specifically, the court concluded that based upon the stipulated testimony of Dr. Purohit, the doctor substantiated a ruptured disc. Defendants now appeal this decision.

On appeal, defendants raise four assignments of error for our review: (1) the trial court abused its discretion when it misinterpreted the medical opinion of Dr. Puro-hit as substantiating a ruptured disc; (2) the trial court abused its discretion when it found that Mr. Sanchez sustained a ruptured disc in the accident based upon the expertise of a “vascular and general surgeon” without the aid corroborative diagnostic testing; (3) the trial court abused its discretion when it failed to determine that Mr. Sanchez failed to mitigate his damages; and (4) the trial court abused its discretion when it awarded an excessive amount for general damages beyond those actually proven at trial.

Mr. Sanchez opposes defendants’ appeal and requests that this Court award sanctions against defendants under La. C.C.P. art. 2164 for filing a frivolous appeal.

LAW AND DISCUSSION

Assignments of Error Nos. One and Two

Because assignments of error numbers one and two both attack the trial court’s evaluation of Mr. Sanchez’s expert’s testimony, we will address them together. According to the record, Mr. Sanchez sought medical care for his injuries sustained in the accident at issue from several physicians. On December 15, 2009, the day after the accident, Mr. Sanchez reported to the emergency room [.¡at Lallie Kemp Hospital with complaints of back pain and numbness in his right leg. The attending physician, Dr. George DesOrmeaux, diagnosed Mr. Sanchez with lumbar nerve root compression. Dr. DesOrmeaux instructed Mr. Sanchez to stay in bed for three days and to follow up with his primary care physician if the symptoms persisted. He also wrote Mr. Sanchez prescriptions to heal lumbar muscle spasms.

On December 29, 2009, Mr. Sanchez reported to Pelican State Outpatient Center with complaints of pain on both sides of his lower back that worsened throughout the day. The treating physician, Dr. John Steen, ordered x-rays of Mr. Sanchez’s lower back and conducted a physical examination. After diagnosing Mr. Sanchez with back pain, Dr. Steen administered a DepoMedrol injection to alleviate Mr. Sanchez’s pain and advised Mr. Sanchez to follow-up with his primary care physician in one week.

On January 4, 2010, Mr. Sanchez reported to Dr. Purohit with complaints of lower back pain and pain radiating down his right leg. Medical records from this visit show that Mr. Sanchez informed Dr. Puro-hit that he was involved in the a rear-end collision on December 14, 2009 and had treated with Drs. DesOrmeaux and Steen prior to seeing Dr. Purohit. Dr. Purohit diagnosed Mr. Sanchez with acute back syndrome with severe muscle spasms. He wrote Mr. Sanchez several prescriptions for pain medication and instructed him to return for a follow-up appointment in one month.

Mr. Sanchez returned to Dr. Purohit for three additional appointments occurring on January 25, 2010, February 25, 2010, and April 26, 2010. On all three appointments, Dr. Purohit consistently diagnosed Mr. Sanchez with acute back syndrome with muscle spasms. During the April 26, 2010 appointment, Dr. Purohit advised Mr. Sanchez to return for a follow-up appointment in one month. | ^However, Mr. Sanchez did not seek any further medical care after April 26, 2010. At trial, Mr. Sanchez testified that he did not continue his medical treatment because he ran out of vacation time at his place of employment. Rather, he explained that he “just learned to deal with the pain.” When asked why he did not submit to an MRI during his treatment, Mr. Sanchez also attributed this to his inability to take off any more days of work.

During Dr. Purohit’s deposition, defense counsel questioned him about the certainty of his medical findings in light of the fact he did not conduct an MRI of Mr. Sanchez’s back following the accident at issue. In response, Dr. Purohit testified as follows:

DR. PUROHIT:
So my feeling is that clinically I am certain that he did have a tear in the disc and that was pressing on the nerve. But depending on if the MRI was done, then I could have said how big the disc was. So I cannot say for certain anymore that part, but he definitely has the disc, you know, rupture of that part because there was irritating and numbness.
MR. BEARD:
And without any objective findings, can you say with any certainty whether he had a herniated disc, bulging disc or a—
DR. PUROHIT:
Well, that’s what — discs, usually they bulge. Depending on the degree, how much disc degree of the bulge, that I cannot say. That has to be done by the MRI.
MR. BEARD:
Okay.
DR. PUROHIT:
But I can say for clinic certainty that he definitely had the injury to the muscle and ligament and definitely the disc because it was pressing on the nerve.

|7A trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Foley v. Entergy Louisiana, Inc., 06-983 (La.11/29/06); 946 So.2d 144, 153 (citing Ferrell v. Fireman’s Fund Insurance Co., 94-1252 (La.2/20/95); 650 So.2d 742, 745). “Under this rule, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one.” Foley, 946 So.2d at 153. “If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Johnson v. Lee, 10-439 (La.App. 5 Cir. 11/23/10); 54 So.3d 704, 706. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony. Id. (citing Lasyone v. Kansas City Southern Railroad, 00-2628 (La.4/3/01); 786 So.2d 682, 693).

After reviewing the record in its entirety, we find no manifest error in the trial court’s finding that Dr. Purohit’s testimony established that Mr. Sanchez sustained a ruptured disc as a result of the accident at issue — even without an MRI. The trial court stated that it “put a lot of emphasis” on the testimony of Dr. Purohit, which defendants stipulated to at trial. Defendants did not call a single witness or introduce a single exhibit at trial. Moreover, defendants did not request that Mr. Sanchez submit to an independent medical examination at any time prior to trial. As a result, there is nothing in the record to rebut Dr. Purohit’s testimony and his expert opinion that Mr. Sanchez sustained a ruptured disc.

|RAs for defendants’ argument that the trial court was in error for basing its ruling upon the expertise of a “vascular and general surgeon,” we find no merit to this claim. The record reflects that defendants stipulated to Dr. Purohit’s expertise in the fields of general medicine and general surgery at trial. Therefore, we find no merit to defendants’ assignments of error numbers one and two.

Assignment of Error No. Three

Defendants allege that the trial court abused its discretion when it failed to determine that Mr. Sanchez did not mitigate his damages. “The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the defense.” MB Indus., LLC v. CNA Ins. Co., 2011-0303 (La.10/25/11); 74 So.3d 1173, 1181. Mr. Sanchez explained that he did not continue his medical treatment because he ran out of vacation time at work. At trial, Mr. Sanchez’s supervisor, Scott Hopkins, testified that Mr. Sanchez still continued to work for their company as of the date of trial, despite the fact that he complains of back pain once or twice a week. Mr. Sanchez testified, “I just learned that, at this point, you know, I’m hurt, I’m going to be hurt, I’m not going to have a surgery or anything to that effect, so I have to just cope with the pain.”

In its oral reasons for judgment, the trial court stated that it found Mr. Sanchez to be a “believable and compelling” witness. It is well-settled that a trial court’s findings based on determinations regarding the credibility of witnesses are subject to the manifest error-clearly wrong standard of review. Johnson, 54 So.3d at 706. Moreover, the failure to mitigate damages is an affirmative defense for which defendants bear the burden of proof at trial. Given that defendants did not submit any evidence refuting the evidence offered by Mr. Sanchez, we find no manifest error in the trial court’s failure to find that Mr. Sanchez did not mitigate his damages.

| aAssignment of Error No. Four

In their final assignment of error, defendants allege that the trial court abused its discretion by awarding an excessive amount of general damages for the injuries actually proven at trial. Following a bench trial, the court held that Mr. Sanchez sustained a ruptured disc and awarded him damages in the amount of $50,000, including $47,462 in general damages, $1,698 for medical expenses, and $840 for lost wages.

“There is no question that the abuse of discretion standard of review applies when an appellate court examines a factfinder’s award of general damages.” Wainwright v. Fontenot, 2000-0492 (La.10/17/00); 774 So.2d 70, 74. The assessment of the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Id. “As such, ‘the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.’ ” Id. (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993)).

The testimony at trial reflected that Mr. Sanchez experienced pain and numbness in his leg as a result of his lower back injuries for a period of over three years and that he still complained of suffering from pain several days a week as of the date of trial. In fact, Mr. Sanchez testified that he fell out of the shower due to the numbness in his leg as recently as two weeks prior to trial. He further testified as to how his life has substantially changed since the accident. Specifically, Mr. Sanchez can no longer perform certain tasks around the home and at his place of employment that he was previously capable of performing. Mr. Sanchez also testified regarding his loss of enjoyment of life following the accident. As a result of the pain from his back injury, Mr. Sanchez testified that he can no longer stay |10seated long enough to enjoy a meal at a restaurant with his wife, or adequately partake in his hobby of auto mechanics.

On the other hand, defendants did not offer any evidence refuting Mr. Sanchez’s testimony regarding the substantial impact of his injuries on his daily life, or Dr. Purohit’s testimony regarding his diagnosis of a ruptured disc. In its oral reasons for judgment, the trial court held as follows:

I find his testimony quite believable and compelling, and he has testified without hesitancy that his quality of life has substantially changed. He cannot do what he used to do around his home, he can’t cut his grass, he can’t tend to simple repairs, his work life has substantially changed. And only because of the good grace of his employer that they are so understanding that they cooperate.

Defendants contend that Mr. Sanchez sustained an injury with treatment lasting only four and one-half months. Even without disc involvement, there is support in the jurisprudence for an award of $2,000 to $2,500 per month for soft tissue injuries. See Ennis v. Sears, Roebuck and Co., 08-235 (La.App. 5 Cir. 2/25/09); 9 So.3d 899 (affirming general damage award of $24,000 for a 12-month soft tissue injury within trial court’s discretion); Bittner v. Scott, 07-718 (La.App. 5 Cir. 2/6/08); 980 So.2d 5 (affirming a general damage award of $35,000 for a fifteen-month soft tissue injury); and Williams v. Roberts, 05-852 (La.App. 5 Cir. 4/11/06); 930 So.2d 121 (affirming a general damage award of $7,500 for a three-month soft tissue injury).

In the instant case, the testimony at trial established that Mr. Sanchez was still experiencing pain from his injuries as of the date of trial, March 13, 2012, which was approximately 27 months after the accident at issue. Assuming that Mr. Sanchez sustained a soft tissue injury without a disc injury diagnosis, the aforementioned jurisprudence suggests that a general damage award of $67,500 for a 27-month soft tissue injury ($2,500 per month) could well have been within the hitrial court’s discretion. Here, the trial court awarded $47,462 in general damages for Mr. Sanchez’s injury.

In two fairly recent opinions, this Court held that the lowest reasonable general damage award for a non-surgical herniated disc within a jury’s discretion was $50,000. See Webb v. Horton, 01-978 (La.App. 5 Cir. 2/13/02); 812 So.2d 91, 99; Rehm v. Morgan, 04-344 (La.App. 5 Cir. 10/26/04); 885 So.2d 687, 692-93. Given Mr. Sanchez’s and Dr. Purohit’s uncontradicted testimony and the relevant jurisprudence, we cannot say that the trial court’s general damage award of $47,462 for Mr. Sanchez’s injury was an abuse of discretion.

Sanctions for Frivolous Appeal

Mr. Sanchez seeks sanctions against defendants under La. C.C.P. art. 2164 for a frivolous appeal. While we find that defendants’ arguments are without merit, we cannot say that there is no legal basis for their position on appeal. Therefore, we will not award sanctions for a frivolous appeal.

CONCLUSION

After considering the entire record, we find the trial court’s findings were reasonable and not clearly wrong. Accordingly, for the reasons stated herein, the judgment in favor of Page Sanchez, awarding him damages in the amount of $50,000, including $47,462 in general damages, $1,698 for medical expenses, and $840 for lost wages, is affirmed.

AFFIRMED

      . Mr. Sanchez subsequently dismissed his claims against State Farm Insurance Company.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    Percy CHIASSON v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 12-CA-532.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.
    Alexandre E. Bonin, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Casler, Bordelon & Lawler, Donald R. Klotz, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¡.Plaintiff, Percy Chiasson, appeals the trial court’s February 6, 2012, judgment granting the Motion to Enforce Settlement filed by defendant, Progressive Security Insurance Company (“Progressive”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 22, 2006, Mr. Chiasson was involved in a motor vehicle accident, and he suffered personal injuries as a result. After making a claim with the tortfeasor’s liability insurer, Mr. Chiasson filed the instant lawsuit against his uninsured/un-derinsured (“UM”) carrier, Progressive, asserting that his damages exceed the policy limits of the tortfeasor.

On April 7, 2011, Progressive filed a Motion to Enforce Settlement, seeking an order from the trial court compelling Mr. Chiasson to execute documents in accordance with a settlement agreement that was reached in November of 2010. Specifically, Progressive claims that on November 23, 2010, Mr. Chiasson agreed to accept $25,000.00 in exchange for a full release of Progressive. However, despite repeated requests, plaintiff has failed to execute the settlement documents | ¡¡evidencing the parties’ agreement. In support of its motion, Progressive submitted the November 23, 2010, letter from Progressive’s attorney to plaintiffs attorney which set forth the settlement terms. This letter was signed by plaintiffs attorney, Kevin Steel, above the notation, “On Behalf of and with the Consent of Percy Chaisson [sic].”

On January 24, 2012, Mr. Chiasson filed a memorandum in opposition to Progressive’s Motion to Enforce Settlement. In his memorandum, Mr. Chiasson stated that he has not signed a release of his claims or endorsed any settlement check, because he did not authorize Mr. Steel to settle his claim for $25,000.00. Mr. Chias-son also noted that he had retained new counsel to address this matter.

This matter came for hearing before the trial judge on January 31, 2012. After brief argument by counsel for both parties, the trial judge granted Progressive’s Motion to Enforce Settlement in open court. On February 6, 2012, the trial judge signed a written judgment granting the motion and dismissing Mr. Chiasson’s claims. Mr. Chiasson appeals.

LAW AND DISCUSSION

On appeal, Mr. Chiasson asserts that the trial judge erred when he granted Progressive’s Motion to Enforce Settlement. He claims that the record is insufficient to meet the writing requirement necessary for an enforceable compromise. Mr. Chi-asson further complains that Progressive did not submit any evidence that he gave his former attorney, Mr. Steel, the express authority to settle his case.

Progressive replies that the writing requirement for a valid compromise was fulfilled in this case, because the November 23, 2010, letter setting forth the settlement agreement, which was signed by Mr. Steel, provides that Mr. Steel was given the “specific authority” to settle Mr. Chias-son’s claims. It further contends |4that Mr. Chiasson has offered no evidence to show that the assertion by Mr. Steel that he had “specific authority” to enter into the settlement is untrue. Finally, Progressive argues that if an opposing party cannot rely on the "written assertions of counsel that he has the authority of his client to enter into an agreement, this will place a great burden on the system, requiring greater time and effort to confect settlements. We agree with Progressive’s position.

A settlement or compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071; Sims v. USAgencies Casualty Insurance Co., 10-1120, p. 6 (La.App. 1 Cir. 12/22/10), 68 So.3d 570, 574, writ denied, 11-1927 (La.l 1/14/11), 75 So.3d 943. LSA-C.C. art. 3072 requires that a compromise “shall be made in writing or recited in open court.” The requirement of a written document to perfect a compromise is not satisfied by the signature of a party’s attorney alone, unless authorization is expressly given, as per LSA-C.C. art. 2997. Sims, 10-1120 at 8, 68 So.3d at 575.

In the present case, the November 23, 2010, letter from Progressive provides:

Please accept this correspondence as confirmation that this matter has resolved for $11,373.00 in new money for a total of $25,000.00, subject to any and all valid and outstanding liens or privileges of any kind or nature. In exchange for the settlement draft, it is my understanding that you have agreed to have your client dismiss and discharge Progressive Security Insurance Company, for any and all liability as a result of the incident which occurred on June 22, 2006. It is also my understanding that you have specific authority from your client to enter into and agree to the settlement described and outlined above. (Emphasis added).

This letter further provides, in pertinent part:

|J respectfully request that you sign the bottom of this correspondence and return it to my attention by facsimile. Doing so signifies your client’s acceptance and agreement of the terms of this settlement described and outlined above. (Emphasis in original).

As stated above, plaintiffs attorney, Kevin Steel, signed the bottom of this letter above the notation, “On Behalf of and with the Consent of Percy Chaisson [sic].” By signing this letter, plaintiffs attorney verified that he had been given specific authority to settle Mr. Chiasson’s claims against Progressive for a total of $25,000.00. The only evidence submitted by either party is this letter, which indicates that Mr. Chiasson gave Mr. Steel the express authority to settle his case against Progressive for $25,000.00. Progressive was entitled to rely on Mr. Steel’s assertion that he was acting with Mr. Chiasson’s consent. At the hearing in this matter, Mr. Chiasson did not provide any testimony or evidence to contest the information in the letter or establish that Mr. Chiasson did not give Mr. Steel express authority to settle the case.

In support of his position, Mr. Chiasson cites Mayeaux v. Denny’s, Inc., 95-458 (La.App. 5 Cir. 10/18/95), 663 So.2d 822. In Mayeaux, there was evidence in the record that attorneys for both parties had negotiated a settlement through correspondence with each other. The defendant’s attorney then forwarded a settlement check and release documents to the plaintiff, who refused to accept the settlement. Id. at 824. The defendant filed a Motion to Enforce the Settlement Agreement, which was denied by the trial judge. This Court affirmed on appeal, agreeing that there was no meeting of the minds. Mayeaux, 95-453 at 3, 663 So.2d at 825.

Although the facts of Mayeaux are similar to the instant case, the Mayeaux opinion does not set forth the all of the information in the correspondence between the attorneys. There is no indication in that case that counsel for the plaintiff stated |fithat he had specific authority from the plaintiff to settle the case. Thus, we find the Mayeaux case to be distinguishable and unpersuasive.

After reviewing the applicable jurisprudence on this issue, we find the reasoning in Elder v. Elder & Elder Enterprises, Ltd., 06-703 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, writ denied, 07-560 (La.5/4/07), 956 So.2d 616, to be persuasive. In Elder, the Fourth Circuit found that correspondence between the plaintiffs attorney and the defendant’s attorney setting forth the terms of a settlement satisfied the writing requirement for a valid compromise. Elder, 06-703 at 7, 948 So.2d at 352. The settlement in that case involved immovable property. The Court found that requiring attorneys to secure the express written consent of their clients in all settlements that include the transfer of immovable property is too onerous of a requirement in cases where the nature of the dispute itself does not involve immovable property. Id. The Court further stated that such a requirement would only serve to impede settlements and weaken our jurisprudential practice of encouraging judicial settlement of on-going litigation. Id.

Although the present case does not involve immovable property, as the Elder case did, the reasoning remains the same. In the present case, we find that the November 23, 2010, letter, which was signed by Mr. Chiasson’s attorney and indicated that he had the specific authority to settle the case, was sufficient to meet the writing requirement for a valid compromise under LSA-C.C. 3072. Accordingly, based on the specific facts of the case before us, we find that the trial court did not err in granting Progressive’s Motion to Enforce Settlement.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting Progressive’s Motion to Enforce Settlement.

AFFIRMED

      . LSA-C.C. art. 2997 provides, in pertinent part: "Authority also must be given expressly to: ... [ejnter into a compromise or refer a matter to arbitration.”


text:
    STATE of Louisiana v. A.Z.
    No. 12-CA-560.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.
    Thomas F. Daley, District Attorney, Kim Laborde, Philip Prescott, Assistant District Attorneys, Edgard, LA, for Plaintiff/Appellant.
    Robert D. Levenstein, Attorney at Law, Laplace, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

| gThis matter concerns the issue of whether the defendant/appellee, “A.Z.,” still owes child support arrearages associated with his obligation that accrued prior to his parental rights being terminated. The State of Louisiana, through the Department of Children and Family Services (“the State”), appeals the trial court’s judgment in a child support contempt proceeding, in which the court revoked defendant/appellee’s formal in-hospital acknowl-edgement of paternity on information that a DNA testing report, in a separate Office of Community Services (“OCS”) matter, excluded him as the biological father. No petition affecting paternity had been filed in this proceeding when the trial court below revoked the acknowledgement and voided the arrearages the State had sought pursuant to a judgment of the same court. The State devolutively appealed. For the following reasons, we reverse.

\ .FACTS AND PROCEDURAL BACKGROUND

On April 27, 2001, “K.Z.” was born. On May 4, 2001 appellee A.Z. executed an in-hospital acknowledgement of paternity, re-suiting in his name being placed on KZ.’s birth certificate. On March 13, 2003, K.Z. was placed in state custody. On July 17, 2003, the State sought a child support order pursuant to La. R.S. 46:236.1. On August 7, 2003, the 40th Judicial District Court ordered A.Z. to pay child support at the rate of $188.44 per child per month. A January 8, 2004 judgment then decreased A.Z.’s obligation to $138.44 per child per month, effective December 4, 2003.

The State filed a rule for contempt against A.Z. on February 12, 2011 for nonpayment of the accrued child support for K.Z. in the amount of $1,752.60, the total arrearages calculated to February 10, 2010. This amount was calculated based on the monthly amount set by the trial court up to the date when the OCS proceeding terminated A.Z.’s parental rights. At the contempt hearing for non-payment of child support in the 40th Judicial District Court, the matter was submitted on memoranda without a hearing.

On August 16, 2011, the trial court issued a judgment declaring sua sponte A.Z. not to be the biological father of K.Z. and declaring the entire child support obligation null and void and without effect. The trial judge ruled that the DNA test results were in evidence,

On August 23, 2011, the State filed a motion for a new trial. The matter was retried on April 4, 2012. In an April 9, 2012 judgment, the trial court reiterated that based on the paternity testing, defendant is not the father of K.Z. In said judgment, the trial court declared the ac-knowledgement null and void, invalidated |4the child support judgment, ordered the return to A.Z. of any monies paid by A.Z., and held by the State, and dismissed the State’s action for arrearages of child support accrued prior to the termination of parental rights.

The State devolutively appealed on June 22, 2012.

ASSIGNMENTS OF ERROR

The State makes the following assignments of error.

A) The trial court erred in declaring the child support judgment invalid.
B) The trial court erred in terminating the child support arrearages that accumulated pursuant to a valid child support order.
C) The trial court erred in declaring the acknowledgement of paternity null and void and producing no effects retroactively as a result of unrelated, independent DNA testing.
D) The trial court erred in declaring A.Z. not to be the father of the minor child, without any formal pleading being filed with the court asking for such relief.
E) The trial court erred in adopting and reiterating its previous judgment of August 24, 2011[sic].

STANDARD OF REVIEW

If the trial court’s decision was based on its erroneous application of the law rather than on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court. Guillory v. Hebert, 08-659 (La.App. 5 Cir. 1/12/10), 31 So.3d 1097.

LAW AND DISCUSSION

The State seeks child support from an August 7, 2003 judgment setting the monthly support amount to be paid by A.Z. for K.Z., a minor child, acknowledged by authentic act. La. R.S. 9:405 provides:

In child support, custody, and visitation cases, the acknowledgement of paternity by authentic act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and to establish visitation without the necessity of obtaining a judgment of paternity.

[ sA.Z.’s acknowledgement acts as a legal finding of paternity and was sufficient to establish the obligation of support under La. R.S. 9:405. The acknowledgment thus served as the basis for the 2003 child support judgment.

The arrearages due under that judgment, $1,752.60, constitute an obligation due and owing and cannot be waived under existing Louisiana law. See La. R.S. 9:406(B)(3). The arrearages accrued before the OCS decision to terminate A.Z.’s parental rights; A.Z. cannot avail himself of this child support contempt proceeding to change the original child support judgment.

The issue of paternity, its acknowledgement or revocation, was not before the trial court in the form of a pleading for revocation, annulment, etc. An acknowl-edgement can only be revoked under certain circumstances. La. R.S. 9:406. An acknowledgement can be revoked without cause within 60 days, a circumstance not applicable here. La. R.S. 9:406(B). Pursuant to the current two-year prescriptive period, a father who acknowledged a child before 2008 may revoke an acknowledgement by petitioning the court by ordinary process and providing proof that such act was procured by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of a child by clear and convincing evidence. La. R.S. 9:406(B)(1).

The posture of this case is confused by the parallel OCS proceeding which terminated A.Z.’s parental rights. The State even admits that the issue of paternity has become “somewhat moot” in that there is no longer a need to revoke or nullify the acknowledgement due to the termination of parental rights in the OCS case. Despite its position, the State Correctly did not waive its assignment of error that the trial court erred in declaring the acknowledgment null and void.

| sin addressing this assignment of error, we find that the only way to revoke an acknowledgement of paternity is to follow the legislative requirements of La. R.S. 9:392(A)(7)(b) and the subsequently enacted La. R.S. 9:406(B)(1). As no petition was filed as to revocation of paternity, the trial court’s action in revoking the acknowledgement in this proceeding was erroneous. Here, A.Z. did not meet his burden for terminating paternity. Fleming v. Armant, 12-43 (La.App. 5 Cir. 5/31/12), 97 So.3d 1071.

We find that the proper procedure requiring a petition was not followed, and the arrearage here cannot be affected by any judgment of revocation at this time. La. R.S. 9:406(B)(3) provides:

The test results certified under oath by an authorized representative of an accredited laboratory shall be filed with the court and shall be admissible on the issue of paternity pursuant to R.S. 9:397.3. If the test results show a statistical probability of ninety-nine point nine percent or greater, a rebuttable presumption of paternity shall be established. If the acknowledged father is found to be excluded by the tests, an action seeking support or an established order of support shall be dismissed and the acknowledgment of paternity shall be revoked. A judgment dismissing an established order of support does not affect a child support payment or ar-rearages paid, due or owing prior to the date the revocation action was filed. (Emphasis added).

The trial court, although understandably frustrated with the multi-layered protections the law provides for the child, was manifestly erroneous in dismissing the ar-rearages, as the support order was lawful, and the due and owing arrearage was not to be dismissed even with evidence of genetic testing, absent a properly filed petition and hearing under La. R.S. 9:406 and La. R.S. 9:392(A)(7)(b).

The State correctly contends that under La. R.S. 9:406(0(3), it has no responsibility to reimburse child-support paid and being held by the State or any costs and that $1,752.60 is owed by appellee A.Z. A.Z. is entitled to credit for any child support payments made by A.Z. and held by the State.

1 ^CONCLUSIONS

We find reversible errors of law: the trial court erred in revoking the acknowl-edgement of paternity without requiring a petition, notice, and joinder of the issue; in waiving child support due and owing; and in ordering that A.Z. be reimbursed for monies collected but held by the State. Accordingly, we reverse the judgment of the trial court under review and remand the matter for proceedings consistent with this opinion.

REVERSED AND REMANDED

      . The court uses initials to maintain the confidentiality of records and reports concerning juveniles. La. Ch.C. art. 412.

      . The order involved two children; the matter at hand pertains only to the collection of child support arrearages for the minor K.Z.

      .The August 16, 2011 judgment provides that "[t]he results of a DNA test excluding A.Z. as [K.Z.’s] biological father has been submitted to the court as evidence.”

      . The language of La. R.S. 9:392.1 mirrors that of La. R.S. 9:405.

      . La. R.S. 9:406(B)(2) states that “[t]he mover shall institute the proceeding by ordinary process.” (Emphasis added).


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    MIDLAND FUNDING, LLC v. Joseph TRAHAN.
    No. 12-CA-562.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellee, Midland Funding, LLC.
    Carole A. Breithoff, Attorney at Law, Metairie, LA, for Defendant/Appellant, Joseph Trahan.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Chief Judge.

| ?This is a collection suit in which the trial court granted summary judgment in favor of the plaintiff. The defendant appeals, arguing the affidavit filed in support of the motion for summary judgment is incompetent hearsay evidence, executed by an employee of the collection agency rather than an employee of the creditor and, further, that it was not based on personal knowledge of the affiant. We affirm.

FACTS

On August 30, 2011, Midland Funding, LLC (“Midland Funding”) filed suit against Joseph Trahan to recover the balance on a Walmart charge account. Midland Funding alleged it had acquired the account receivable from GE Money Bank.

Trahan filed an answer that made a general denial and raised the affirmative defenses of extinguishment by payment and/or liberative prescription.

Thereafter Midland Funding filed a motion for summary judgment, supported by two affidavits and by pertinent account records. The first affidavit is by Suzanne Dumonceaux, who states the following: She is employed as a legal specialist and has access to pertinent account records for Midland Credit | aManagement, Inc. (“MCM”), servicer of this account on behalf of the plaintiff; and that she makes the statements in the affidavit based upon personal knowledge of those account records maintained on plaintiff’s behalf. Du-monceaux further states the plaintiff is the current owner of and/or successor to the obligation sued upon, and was assigned all the rights, title and interest to defendant’s GE Money Bank account 6032203881703321 (MCM number 8533622541). She states she is familiar with the manner and method by which MCM creates and maintains its business records pertaining to the account. Du-monceaux further states that the account shows the defendant owes a balance of $1,108.40, and that Dumonceaux is advised the balance will continue to accrue interest of 4.00% as an annual percentage rate until judgment is entered, after which interest on the unpaid balance shall accrue as provided by law and as set forth in the terms of the judgment. Dumonceaux’s affidavit ends by noting that the attached statement of account is a true and correct account and/or billing statement(s) relating to this matter, as reflected in MCM’s records.

The second affidavit is by Keith Sias, who states he is employed by Gregory M. Eaton, the attorney for the plaintiff; he is primarily responsible for this file, and is familiar with the defendant’s Wahnart account. He states the matter was received by the office of Gregory M. Eaton on July 17, 2011 and has been continually monitored since that date. Sias states that on November 28, 2011, Midland Funding LLC, holder of credit issued through GE Money Bank, indicated a balance due from Joseph Trahan totaling $1,108.40, additional interest of 4% from December 31, 2009, plus attorney’s fees in the amount of 25% of the total of both principal and interest, and the amount due is on the defendant’s Walmart account # 6032203331703321.

|4The motion for summary judgment was argued and submitted. The trial court noted that it allowed oral argument to the defendant, although his opposition to the motion for summary judgment was untimely.

On April 2, 2012, the trial court rendered judgment in favor of Midland Funding, awarding the sum of $1,108.40, plus additional interest of 4% from December 31, 2009, and 25% attorney’s fees. The court provided written reasons for judgment as follows, in pertinent part:

Credit card accounts are considered “open accounts” under Louisiana law. In a suit on open account, a plaintiff presents prima facie proof sufficient to support a judgment when they submit a statement or invoice of the account and an affidavit attesting to the correctness thereof.
Midland presented sufficient evidence to establish its prima facie case: the affidavit of Suzanne Dumonceaux, employee of Midland Credit Management, Inc., the account servicer for plaintiff, Midland Funding; a July, 2011 collections letter to Trahan; Midland’s Statement of Account; Bill of Sale transferring ownership of the account from GE Money Bank to Midland; June, 2009 and January, 2010 Wal-Mart account statements in the name of Trahan; etc. The correctness of this supporting documentation was established by the affidavit of Midland Credit Management employee Suzanne Dumonceaux who attested that her affidavit was “based upon her personal knowledge of those account records maintained on the plaintiffs behalf.” Having established its prima facie case, the burden shifted to Trahan to provide evidence indicating the existence of a genuine issue of material fact for trial.
Trahan did not contest the veracity or substance of Midland’s motion, but attacked the sufficiency of the evidence presented. Specifically, Trahan argued that the affidavits presented were not based on the personal knowledge of the affiants. Dumonceaux’s affidavit specifically attests to her personal knowledge of Midland’s account servicer’s business account records, Midland’s sole and full ownership of the account, and the identity of the supporting documentation, including those records provided by the original creditor.
IsFor the foregoing reasons, Midland Recovery [sic], LLC’s Motion for Summary Judgment was GRANTED. [Citations omitted.]
Trahan appeals.

LAW AND ANALYSIS

Trahan asserts the trial court erred in granting summary judgment because the affidavit was not based on personal knowledge of the affiant that the records of the original credit account holder were valid and correct.

In opposition to the appeal, Midland Funding asserts the trial court was correct in finding that it established a prima facie case for summary judgment, and that the Dumonceaux affidavit was based on the requisite personal knowledge.

With respect to motions for summary judgment, La. C.C.P. art. 967(A) provides, “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

“Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source.” Hibernia Nat. Bank v. Rivera, 07-962, p. 9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 539.

In Sears v. Richardson, 32,951 (La.App. 2 Cir. 4/5/00), 759 So.2d 190, 193, plaintiffs counsel produced an affidavit of correctness of a Sears account executed by Vickie Allen, one of the employees of plaintiffs counsel, to prove the correctness of the account and to recover additional interest. The court found the affidavit was insufficient, stating, “Allen’s affidavit indicates that she is responsible for the file as an employee of the collection attorney, not as a representative of Sears, and her statements concerning what Sears ‘indicated’ on September 16,1998 are hearsay that would not be admissible at a trial on the merits.”

1 fiMr. Trahan argues the same reasoning applies in this case: Suzanne Dumonceaux’s affidavit indicates that she is responsible for the file as an employee of Midland Credit Management, Inc., a servicer for the plaintiff, Midland Funding, L.L.C., not as a representative of Wal-mart. Mr. Trahan contends the affidavit is incompetent hearsay evidence, executed by a person with three degrees of separation from the creditor, Walmart, who has no personal knowledge of the validity and accuracy of the Walmart account. Further, Mr. Trahan argues, even if the records were not subject to the hearsay rule under the business records exception, the affidavit does not establish that affiant, Dumonceaux, had knowledge of the validity and accuracy of the Walmart records.

LSA-C.C.P. art. 967 uses the conjunctive in requiring that the evidence offered in support of or in opposition to a motion for summary judgment be not only admissible, but it must also affirmatively show that the affiant is competent to testify to matters stated in the affidavit, and, more significantly, it must be made “on personal knowledge.” Therefore, the fact that evidence may be admissible is not the same as saying that it is made based on personal knowledge and is not sufficient in itself to satisfy the LSA-C.C.P. art. 967 personal knowledge requirement. [Citation omitted.]

Tritt v. Gares, 98-0704 (La.App. 4 Cir. 12/23/98), 735 So.2d 659, 663.

Regarding the use of affidavits, the requirement of La.C.C.P. Art. 967 that “affidavits shall be made on personal knowledge” has been strictly enforced: it is insufficient for an affiant to merely declare that he has “personal knowledge” of a certain fact. The affidavit must affirmatively establish that the af-fiant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. [Citation omitted.]

Express Pub. Co., Inc. v. Giani Inv. Co., Inc., 449 So.2d 145, 146-47 (La.App. 4th Cir.1984).

Personal knowledge encompasses only those facts which the affiant saw, heard or perceived with his own senses. We cannot use a purported search for legislative 17intent as a pretext to ignore the clear and unambiguous requirement that summary judgment affidavits be based on personal knowledge. This is even more true today where the legislature has declared that summary judgments are favored. Were we to dilute the requirement that affidavits be based on personal knowledge, it should be all [too] easy to come up with hearsay affidavits effectively undermining the entire summary judgment process. [Citations omitted.]

Tritt, 735 So.2d at 663.

We note, however, that there is a business records exception to the hearsay rule, La. C.E. art. 803(6), for records of regularly conducted business activities:

[W]here business records are concerned, the courts have deemed it sufficient that the affiant be qualified to identify the business records as such. The affiant has not been required to show that he personally prepared the business records, or that he had direct, independent, firsthand knowledge of the contents thereof.... The practical wisdom of this approach is especially easy to appreciate in litigation involving long running account relationships where it would not normally be practical or necessary to require every one of possibly numerous employees to personally attest to each entry on the account. Although the wisdom of the business records doctrine is easiest to see in connection with accounts of long standing, it is equally applicable to business records in general. Accordingly, in the absence of a challenge from the respondent to the competency of [the affiant], we find that he is competent to identify relator’s business records.

Delcambre v. Pnce, 99-0223 (La.App. 4 Cir. 3/24/99), 738 So.2d 593, 595-596.

Here, the defendant failed to file a motion to strike or otherwise officially challenge the affidavits filed in support of the motion for summary judgment. The defendant’s arguments against the validity of the affidavits were contained in his late-filed opposition to the motion and in his counsel’s argument at the motion hearing. “Argument of counsel, which includes memoranda submitted in support of or in opposition to a motion for summary judgment, is not evidence, no matter how artful and persuasive.” Delcambre, 738 So.2d at 597, n. 1.

| jjHence, the plaintiff presented a prima facie case in support of the motion for summary judgment. The burden of proving otherwise then shifted to the defendant, who failed to support it. Accordingly, we find no error in the trial court’s ruling.

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the defendant-appellant, Joseph Trahan.

AFFIRMED


author: JUDE G. GRAVOIS, Judge.

text:
    PHILLIP FAMILY L.L.C. and Beverly Construction Company, LLC v. BAYOU FLEET PARTNERSHIP.
    No. 12-CA-565.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Robert L. Raymond, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee.
    Anthony J. Staines, Corey P. Parenton, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKS HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

^Defendants have appealed a trial court judgment awarding damages to plaintiffs in this dispute involving defendants’ use of plaintiffs’ riparian rights. For the reasons that follow, we affirm.

PROCEDURAL HISTORY AND FACTS

Plaintiff, Phillip Family, L.L.C., owns a parcel of land on the right descending bank of the Mississippi River in St. Charles Parish (“the Phillip Family property”) adjacent to and downriver from a parcel of land owned by defendant, Bayou Fleet Partnership (“the Bayou Fleet property”). These parcels of land front on the Mississippi River and are situated between Louisiana Highway 18 (commonly known as the “River Road”) and the mean low water mark of the river. This property is commonly known as “batture” property. Plaintiff, Beverly Construction Company, operates a business on the Phillip Family property, and defendant, Bayou Fleet, Inc., operates a business on the Bayou Fleet property. On | ¡¡March 6, 2006, plaintiffs filed a petition for damages and for injunctive relief against Bayou Fleet Partnership. Bayou Fleet, Inc. was added as a defendant in a supplemental and amending petition. Plaintiffs alleged that defendants’ unauthorized practice of mooring barges in front of the Phillip Family property prevented plaintiffs from utilizing their property to its fullest potential and interfered with plaintiffs’ business activities. Plaintiffs sought a permanent injunction preventing defendants from mooring barges in front of the Phillips Family property and from interfering with plaintiffs’ use and enjoyment of their property. Plaintiffs also sought damages in the form of rental payments and attorney’s fees.

Defendants removed the suit to federal court. The federal court, however, remanded the case to state court, finding that there was a valid state law claim and no exclusive issue under federal law. Defendants then answered plaintiffs’ suit and filed a reconventional demand against plaintiffs.

The matter was bifurcated for trial. On October 19, 2010, a bench trial was held on the injunctions. By judgment signed on January 26, 2011, the trial court granted plaintiffs’ petition for permanent injunction against defendants, enjoining and restraining defendants from mooring and fleeting any kind of vessel in front of the Phillip Family property. This judgment also granted defendants’ request for injunctive relief prohibiting plaintiffs from conducting dredging operations in front of the Bayou Fleet property to the extent that such dredging operations would interfere, impede, impair or otherwise block the fleeting and mooring activities conducted by or on behalf of defendants.

Following a two-day bench trial on the issues of causation and damages, judgment was rendered on December 14, 2011 in favor of plaintiffs awarding |4$78,680 in damages for lost rentals, plus legal interest and costs, and dismissing defendants’ reconventional demand. Defendants’ motion for new trial was denied. This timely appeal followed.

In their only assignment of error, defendants argue that the trial court was manifestly erroneous and/or clearly wrong is awarding $78,680 in special damages to plaintiffs, asserting that the damage award is “wholly unsupported by the evidence and clearly contrary to the testimony provided at trial.” Defendants argue that because plaintiffs continuously used their property for commercial gain, they did not lose any lease revenues because of defendants’ fleeting operations in front of their property. Plaintiffs respond that the trial court’s damage award is substantiated by the evidence and supported by the law.

At trial, Johnny Riley testified that he had been employed by Beverly Construction for ten years. He worked at the subject property continuously from about 2000 until about 2007. Mr. Riley testified that barges were moored by defendants in the river in front of the Phillip Family property “just about every day.” There usually were three or four and sometimes five barges. On some occasions in order to unload limestone, defendants had to be contacted to move the barges out of the way. Pictures taken by Mr. Riley over the years were admitted into evidence. Photographs dated March 3, 2005 show barges fleeting in front of the Phillip Family property. Photographs dated March 11 and 12, 2005 show a cable tied to a buoy and barges fleeting in front of the property. Photographs dated September 17, 2007 shows barges fleeting in front of the property. Photographs dated September 28, 2007 show a buoy with a cable “blocking” the Phillip Family property. Other pictures dated March 17, 2005, April 20, 2005, and October 1 and 15, 2007 also show barges fleeting in front of the property. Mr. Riley testified that | Sthese pictures were just a sample of “what [he] saw everyday” during the time he worked on the Phillip Family property for about seven years.

On cross-examination, Mr. Riley admitted that on some days, no barges were moored in front of the property. He was not able to tell how long it was between the time he took the pictures and the time the barges depicted in the pictures were moved. He admitted that defendants moved the barges when requested.

Luiz Martinez, the Geographic Information Systems (“GIS”) manager for St. Charles Parish, testified as to aerial photographs of the property. Photographs dated June 16, 2005, August 31, 2005, October 27, 2005, February 6, 2006, April 30, 2006, July 23, 2007, February 5, 2009 and May 18, 2009 depict “some structures” floating in the river in front of the Phillip Family property. On cross-examination, Mr. Martinez admitted that in two of the photographs, there were tug boats near the barges, but he did not know if the tugs were moving the barges. He was unable to tell if the vessels were in the same place the day before or the day after the photographs were taken.

Mary Clulee testified that she owns property immediately adjacent to and downriver from the Phillip Family property. She went on her property at frequencies varying from several times per day to one time per month over the past twelve to fifteen years. In the past ten years, more often than not, she saw barges tied to buoys floating in the river in front of the Phillip Family property. Sometimes a tug boat would be on the downriver side of the barges and other times there was no tug. Sometimes the barges remained docked for more than one day. Photographs taken by Mrs. Clulee dated April 3, 2006, April 9, 2006, and September 17, 2009, depicting barges moored in front of the Phillip Family ]f,property, were admitted into evidence. Although she had no pictures to prove it, she stated that the barges sometimes stayed in place for four days.

Cary Burelle, general manager of Beverly Construction, testified that he “sometimes” went to the Phillip Family property, and most of the time when he was there, barges were paralleling the shore of the property. He recalled two occasions when barges moored in front of the property prevented plaintiffs from unloading rock barges. Defendants did move the barges out of the way, but it took a “couple of hours.” Beginning in 2006, one of defendant’s buoys moved downriver in front of the Phillip Family property.

A.J. Phillip testified that his family owns the Phillip Family batture property and it is leased to Beverly Construction. The property has 465 feet of frontage along the Mississippi River. A sand pit operation and a limestone operation are conducted on the property. Since he purchased the property in 2000, defendants’ barges have blocked access to the property from the river from eighty-five to ninety per cent of the time. This continued until October 2010 when he obtained the injunction against defendants. He spoke to a couple of people about leasing the riparian rights to the property, specifically, Steven Treut-ing or someone from Pontchartrain Materials Corporation (“PMC”), but they did not want to get involved because they did business with defendants. He also spoke to Billy Weidner at Magnolia Fleets about leasing the property.

On cross-examination, Mr. Phillips admitted that he had a verbal agreement with defendants to allow barges to “partially hang” in front of his property. He interpreted this agreement to allow just the nose or tail of the barge extending on to his property or about 20 to 50 feet hanging over, not the whole barge. In 2005, Mr. Phillips applied for a permit to dredge the river. He then told defendants to stop encroaching on his property, but defendants continued to do so. He contacted an 17attorney who wrote a letter to defendants demanding they stop mooring barges in front of his property. Dredging was initially conducted in front of the property and in front of defendants’ property by Weeks Marine and by T.L. James. In 2008, Beverly purchased its own dredge and has been dredging in front of both properties.

Mr. Phillips testified that he spoke to Mr. Weidner at Magnolia Fleets about leasing the property. Mr. Weidner “did not want to be involved” in the dispute, but he never said they were not interested in leasing his property. He also recalled talking to someone at PMC, but was not sure if it was Steve Treuting. Mr. Phillips eould not recall what year these conversations took place. It was his understanding that these potential tenants did not want to lease the property because of defendants’ fleeting operation. Mr. Phillips acknowledged that he never advertised the property for lease. He stated that if he did lease the riparian rights, he would continue to operate the sand pit, and to conduct limestone unloading and dredging.

Henry Tatje, III, who was accepted as an expert commercial real estate appraiser, testified that he was asked to appraise the market value for rent of the riparian rights in front of. the Phillip Family property. He examined various properties from Plaquemines Parish to St. James Parish and found that the annual rental rates ranged from approximately $27 per linear foot along the river to $89 per linear foot. He concluded that the annual market value for rent of the riparian rights appertaining to the Phillip Family property is $55 per linear foot, which amounts to $25,575 per year. Mr. Tatje opined that the highest and best use of this property is for barge fleeting and river taxi service, barge repairs, and barge loading and unloading. On cross-examination, Mr. Tatje admitted that he did not look at the economical effect of fleets leasing less than 500 feet of land or the cost to place improvements on the property for a fleeting operation.

| ^Robert Brennan testified that he is a tugboat captain and began working for defendants in 2009. At the time he started working for defendants, the “tier 6” buoy, the most downriver buoy used by defendants, was located in front of the Phillip Family property; however, the tier 6 buoy was no longer being used by defendants. The “tier 5” buoy was located about 120 feet upriver from the Phillip Family property. Captain Brennan testified that when they are “building a tow” or “staging barges” for a tow, they hung the barges off of the tier 5 buoy and these barges did extend on to the area in front of the Phillip Family property. This practice stopped in early 2010.

Neal Clulee, husband of Mary Clulee, testified that he goes to his property, which has 130 feet of frontage on the river and is adjacent to and downriver from the Phillip Family property, about ten to fifteen days per month. For the last ten years, Mr. Clulee had seen barges mooring and fleeting in front of the Phillip Family property many, many times, approximately 15 to 20 days per month. Sometimes the barges were being moved, other times the barges and tug boats remained in place. Mr. Clulee owns another riverfront parcel of land which he leases to two different entities — one entity runs a sand pit and performs dredging and the other entity repairs barges. He stated that access to the river frontage of this land is the key to making money because without access from the river, “nothing happens.”

After plaintiffs concluded the presentation of their case, defendants moved for dismissal of the case, which was denied by the trial court.

William Daniel Weidner, IV, testified that he is the president of Magnolia Fleets. His father, Bill, is a partner in the company. Although he had a discussion with Mr. Phillip about leasing the area in front of his property, this conversation 19was not specifically about Magnolia Fleets leasing the property. At no time did his company have an interest in leasing the Phillip Family property.

Stephen Treuting, vice president of PMC, testified that his company transports and sells limestone and recycled concrete and asphalt. He has done business with Mr. Phillip in the past and is familiar with the subject property. He denied discussing leasing the property with Mr. Phillip. Although Mr. Treuting testified in his deposition that he did not recall discussing leasing the Phillip Family property with Mr. Phillip, at trial he testified that had there been such a conversation, he would have recalled it.

Bennet Oubre, an expert appraiser, testified that he was hired by defendants to do an appraisal of the market rent for the Phillip Family property. His appraisal was limited to the lease value of the riparian rights of the property, which he defined as the use of the water for marine activities. Mr. Oubre testified that the highest and best use of this property is the use of riparian rights for fleeting and mooring. Mr. Oubre opined that the site was not suitable for bulk storage or material transfer or water-taxi service. Due to the size of the property, the highest and best use would be to lease it in conjunction with adjoining property. Although it would be possible to fleet on the property, it may not be financially feasible. Mr. Oubre concluded that the market rental value of the mooring/fleeting rights of the Phillip Family property is $10,695 per year (equivalent to $23 per linear foot per year).

On cross-examination, Mr. Oubre admitted that the highest and best use of this site is to continue the mining operation (sand pit and dredging) and begin temporary fleeting. Mr. Oubre admitted that dredging and fleeting can co-exist because dredging has very little impact on fleeting. Mr. Oubre acknowledged that his value did not include access to the land from the River Road; he agreed that |10had he included access to the site from the River Road, the appraisal value would be higher.

Robin Durant testified that he is the president and managing partner of Bayou Fleet, Inc. and Bayou Fleet Partnership. Bayou Fleet Partnership owns the property upriver from the Phillip Family property and Bayou Fleet, Inc. owns the boats and equipment. Their core business is barge fleeting and towing. In early 2003, Mr. Phillips approached him and requested permission to dredge in front of Bayou Fleet’s property in exchange for Bayou Fleet being allowed to “hang down” in front of his property. This was a verbal agreement and, according to Mr. Durant, there were no qualifications as to how far barges would be allowed to hang over. Mr. Durant stated that the tier 6 buoy was located at the downriver end of his property and when they were using this tier, it resulted in barges hanging over the Phillip Family property. Mr. Durant admitted that this occurred frequently, virtually every time they made or broke a tow. The amount of time the barges would be in front of the Phillip Family property varied from a half an hour to two hours to several hours. He stated that within two hours, the barges would be moved. Bayou Fleet never earned additional revenue because barges were fleeted in front of the Phillip Family property; rather, they were often fleeted there out of convenience. He testified that as long as plaintiffs were dredging in front of his property, the agreement was in place for his barges to hang over the Phillip Family property. He asserted that this agreement did not end until plaintiffs obtained the injunction against defendants in October 2010. Mr. Durant explained that it was necessary for plaintiffs to obtain a permit to dredge in front of his property. He acknowledged that there were times that the barges were in the way of plaintiffs’ operations, but they moved the barges out of the way whenever this situation arose.

|n Mr. Durant testified that in 2006 and 2007 after plaintiff dredged in front of his property, the tier 6 buoy started to move downriver, eventually ending up in front of the Phillip Family property. In their re-conventional demand, defendants sought damages for the cost of relocating the tier 6 buoy back in front of their property. Mr. Durant stated that plaintiffs removed over two million cubic yards of sand from the dredging operation; however, he did not have any documents to verify this. He testified that the tier 6 buoy moved as a result of plaintiffs’ dredging operations, but he had no proof that the dredging caused the tier to move. He did not think this was something that could be proved, but it was possible to assume that the dredging caused the tier to move.

Christopher Bennett, who was employed by defendants for nine years, testified that they stopped using the tier 6 buoy because the “anchor kept dragging.” He explained that this tier was connected to a 25,000 pound anchor and the dredging unearthed the anchor.

Alan Savoie, vice president of Marine Center, a marine brokering company, testified that he has been leasing riverfront property for thirty years. Because a piece of property fronting 460 feet on the river is not big enough to start a fleeting operation, he would not have any interest in leasing the Phillips property. Only eight barges could be fleeted on a property this size, which makes it not economically feasible. Smaller pieces of property typically have less value. On cross-examination, Mr. Savoie was shown a lease of a 545-foot piece of property fronting on the river which provided for annual lease payments of $41.65 per linear foot. Mr. Savoie stated that he negotiated the price for this lease and the price was based on the location of that property, explaining that there are other similar properties that leased for only $19 annually per linear foot.

¡^ANALYSIS

The banks of navigable rivers or streams are private things which belong to the riparian, or adjacent, landowners. Ballard v. Mook, 550 So.2d 1208, 1210 (La.App.1989), writ denied, 556 So.2d 1283 (La.1990). La. R.S. 9:1102.1 specifically states that “[r]iparian owners ... shall have the right to erect and maintain on the batture or banks owned or leased by them and in the bed of the navigable river, lake, or stream adjacent to or adjoining such batture or banks, such wharves, buildings, or improvements as may be required for the purposes of commerce.... ” Thus, this statute ultimately recognizes the right of the riparian landowner to enjoy the benefits of commerce by his riparian ownership. Kliebert Educational Trust v. Watson Marines Services, Inc., 454 So.2d 855, 858 (La.App. 5 Cir.1984), writ denied, 457 So.2d 682 (La.1984), appeal dismissed, 471 U.S. 1050, 105 S.Ct. 2108, 85 L.Ed.2d 474 (1985). This right is granted to no one other than the riparian owner. As a riparian property owner, plaintiffs have rights protected by Civil Code art. 667, which provides that a proprietor may not do anything on his property “which may deprive his neighbor of the liberty of enjoying his own” property.

Mr. Durant, president and managing partner of the defendant entities, clearly and unequivocally admitted to using plaintiffs’ riparian rights by mooring barges in front of the Phillip Family property on a frequent and continuous basis. He acknowledged that the barges remained in place for varying time periods, ranging from less than an hour to several hours. Johnny Riley, who worked at the subject property every day from about 2000 until about 2007, testified that barges were moored by defendants in the river in front of the Phillip Family property “just about every day.” Cary Burelle, general manager of Beverly Construction, testified that most of the time when he went to the Phillip Family property, barges |13were paralleling the shore of the property. He recalled two occasions when barges moored in front of the property prevented his employees from unloading rock barges. Mr. Burelle explained that although defendants did move the barges out of the way, it took a “couple of hours.” Mary Clulee testified that in the past ten years, more-often than not, there were barges tied to buoys floating in the river in front of the Phillip Family property. She explained that sometimes the barges were in place for a short amount of time, but at other times the barges remained docked for more than one day, sometimes up to four days at a time. Neal Clulee testified that over the past ten years, he had seen barges mooring and fleeting in front of the Phillip Family property approximately 15 to 20 days per month. Sometimes the barges were being moved, other times the barges and tug boats remained in place for a period of time. Luiz Martinez, the GIS manager for St. Charles Parish, testified as to aerial photographs of the Phillip Family property taken at random times in 2005, 2006, 2007 and 2009 depicting “structures” floating in the river in front of the Phillips family property. Robert Brennan, an employee of defendants, testified when they were building a tow or staging barges for a tow, they hung the barges off of the tier 5 buoy and these barges did extend out to the area in front of the Phillip Family property. He stated that this practice stopped in early 2010.

While the testimony adduced at trial indicates that there had been a verbal agreement between Mr. Durant and Mr. Phillip in which Mr. Phillip agreed to allow mooring of barges in front of his property, the evidence is clear that Mr. Phillip terminated this agreement by a letter written by an attorney on his behalf and received by Mr. Durant in February 2006. The evidence is equally clear that defendants did not stop mooring barges in front of the Phillip Family property after receipt of this letter; rather, they continued to do so until October 2010 when 114plaintiffs obtained an injunction prohibiting defendants from continuing this practice.

Plaintiffs’ riparian rights belong to plaintiffs. The expert appraisers testified that these riparian rights have monetary value in the form of lease payments for use of the rights. The testimony clearly shows that beginning in 2003, there was a verbal agreement between plaintiffs and defendants allowing defendants to use plaintiffs’ riparian rights. The testimony is equally clear that defendants continued to use plaintiffs’ riparian rights after being told by plaintiffs in February 2006 to discontinue this practice. Thus, the trial court properly awarded damages to plaintiffs for defendants’ use of plaintiffs’ riparian rights from February 2006 until October 2010.

Defendants also argue that plaintiffs did not lose lease revenues due to defendants’ barges being in front of their property because plaintiffs continuously used their property for commercial gain. This argument is without merit. Mr. Tatje, plaintiffs’ expert appraiser, testified that the highest and best use of this property includes barge fleeting and mooring. Mr. Oubre, defendants’ expert appraiser, also testified that the highest and best use of this property is the use of riparian rights for fleeting and mooring. Mr. Oubre qualified this testimony by explaining that it may not be economically feasible to lease this land as a “stand alone” property; rather it would be beneficial to have it leased as an appendage to an adjacent piece of property. However, he opined that the property could be leased for $10,695 per year.

The testimony presented at trial clearly established that the highest and best use of this property includes barge fleeting. However, the record indicates that plaintiffs could not engage in meaningful negotiations for the lease of the riparian rights appertaining to this property because they could not provide peaceable and | ^uninterrupted possession of the property to a potential lessee due to defendants’ frequent and continuous practice of mooring barges in front of the property and thereby blocking access to the property. Accordingly, the trial court properly awarded damages for loss of rental revenues to plaintiffs.

Defendants further argue that the trial court’s award of $14,000 per year in lost lease revenue is unsupported by the evidence. For the following reasons, we disagree. Mr. Tatje testified that the property could derive a fair market annual rental of $25,575 per year ($55 per linear foot along the river), which included more uses of the property than just the riparian rights for fleeting. Mr. Oubre testified that the property could derive a fair market annual rental value of $10,695 per year ($28 per linear foot along the river), based solely on the lease of riparian rights. Both appraisers testified at length as to leases of various properties along the river for prices that ranged from $7 to $89 per linear foot per year. In fact, defendants’ witness, Mr. Savoie, testified that he had recently negotiated a lease of a 545-foot piece of land fronting on the river for $41.65 per linear front foot per year. Further, Mr. Oubre admitted that his valuation did not take into account that the Phillips Family property had access to the River Road, which would command a higher rent. The trial court had all of this valuation information available to him from which to ascertain and determine in his own mind the fair market rental value of the Phillips Family property.

In considering expert testimony, a trial court may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Lanasa v. Harrison, 02-0026 (La.App. 4 Cir. 8/7/02), 828 So.2d 602, 605, unit denied, 02-2512 (La.11/27/02), 831 So.2d 286. The trier of fact may accept or reject any expert’s view, even to the point of substituting its own common sense and | ^judgment for that of an expert witness where, in the fact-trier’s opinion, such substitution appears warranted by the evidence as a whole. Green v. K-Mart Corporation, 03-2495 (La.5/25/04), 874 So.2d 888, 843; Barber Brothers Contracting Company v. Cuccia, 98-0675 (La.App. 1st Cir.4/1/99), 734 So.2d 820, 824, writ denied, 99-1258 (La.6/18/99), 745 So.2d 31. The decision reached by the trial court regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its broad discretion. Fishbein v. State ex rel. LSU Health Sciences Center, 06-0549 (La.App. 1st Cir.3/9/07), 960 So.2d 67, 73, writs denied, 07-0730, 07-0708 (La.6/22/07), 959 So.2d 495, 505.

Based on our review of the entire record before us and the applicable law, we find that the trial court did not abuse its broad discretion in awarding $14,000 per year in lease revenue to plaintiffs, as this award is fully supported by the evidence.

Finally, defendants argue that the trial court erred in dismissing their recon-ventional demand for damages to the tier 6 buoy caused by plaintiffs’ dredging. Mr. Durant testified that when plaintiffs started to dredge, the tier 6 buoy started to pull downriver. He testified that plaintiffs dredged over two million cubic yards of sand from in front of his property and it was logical to conclude that this is what caused the tier to move. Mr. Durant then admitted that he had no proof of this and did not think it was possible to prove that plaintiffs’ dredging caused the tier to move; rather he felt that it was “possible to assume it.” Thus, we find that the trial court had a reasonable factual basis for dismissing defendants’ reconventional demand for lack of proof.

In order to reverse a trial court’s finding, an appellate court must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the judgment is manifestly wrong. Stobart v. State Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Id. Considering the entirety of the extensive record before us, we find that the trial court’s judgment under review is fully supported by the evidence, had a reasonable factual basis, and was not manifestly erroneous or clearly wrong.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to defendants.

AFFIRMED

      . This injunctive relief granted in favor of defendants was clarified in a judgment on plaintiffs’ motion for new trial rendered on June 22, 2011.


text:
    Adam D. SIMONS v. BRAND STAFFING SERVICES, INC.
    No. 12-CA-588.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Mary C. Hartman, Metairie, LA, for Plaintiff/Appellee.
    Charles J. Duhe, Jr., Heidel A. Schneider, Attorney at Law, Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

12AppelIant has appealed a trial court judgment awarding penalties and attorney’s fees against it in this workers’ compensation proceeding. For the reasons that follow, we affirm the portion of the judgment under review granting attorney’s fees, vacate the portion of the judgment setting the attorney’s fees at $4,000.00, and remand the matter for a determination of reasonable attorney’s fees.

FACTS

Appellant, Brand Services, L.L.C., and elaimant/appellee, Adam Simons, entered into a settlement agreement in claimant’s workers’ compensation claim whereby appellant agreed to pay, in addition to other amounts, claimant’s medical expenses from Ochsner Health Systems and its physicians and departments for medical treatment rendered in connection with claimant’s accident, thereby relieving claimant of any liability for the medical expenses. On February 1, 2012, the trial court issued an Order of Approval ordering appellant to pay “any and all | .¡expenses from Ochsner Health Systems and its physicians and its departments for medical treatment” to claimant “rendered on or about June 3, 4, 13, and 28, 2011, inclusive” in connection with the accident and that claimant is “hereby relieved of any liability thereof.”

On March 19, 2012, claimant filed a “Motion to Enforce Order of Approval, for Sanctions, Attorney Fees and Costs and Incorporated Memorandum,” alleging that appellant was in possession of itemized billing from Ochsner regarding all medical expenses, that claimant was receiving correspondence from collection agencies regarding these bills, and that appellant had failed to comply with the order and dispose of these bills. Appellant filed a memorandum in opposition alleging that it “remains in the process of attempting to pay the outstanding medical expenses.”

The motion came for a hearing on April 9, 2012. At the hearing, counsel for claimant stated that she had been in contact with the health care providers, and that with regards to the medical bills, the clinic and physicians had not been contacted by appellant, and the hospital had only been recently contacted by appellant. Counsel for claimant explained that the bills for claimant’s expenses had been in the hands of appellant “months and months” before the settlement. Counsel for claimant introduced into evidence copies of e-mails that she sent to counsel for appellant on several occasions requesting proof that the medical bills had been paid; or alternatively, that the medical providers were notified in writing that appellant was liable to pay the bills and that claimant had no responsibility for the bills. Counsel for appellant responded that he was “anxious to hear from my client” and that he was advised that “the bills were sent off’ and the proper coding was needed. Counsel for appellant explained that he had not received a copy of the claims file as to the details of what transpired between his client and Ochsner. At |4the conclusion of the hearing, the trial court awarded $3,000.00 in penalties and $4,000.00 in attorney’s fees pursuant La. R.S. 23:1201(G). This timely appeal followed.

ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, appellant argues that the trial court erred in granting claimant’s motion to enforce the order of approval of claimant’s settlement, and in awarding attorney’s fees and costs to claimant as sanctions against appellant. In this assignment, appellant contends that under La. R.S. 23:1201(E), it had sixty days after the settlement to pay claimant’s medical bills. Claimant responds that the obligation to pay medical expenses pursuant to a final nonappealable compromise must be accomplished within thirty days after court approval and that the failure to do so permits penalties pursuant to La. R.S. 23:1201(G).

La. R.S. 23:1201(G) clearly states that an employer is liable for penalties and attorney’s fees if it does not pay an award payable under a final, nonappealable judgment within thirty days. The statute provides, in pertinent part, as follows:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control.... The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

As explained in McCoy v. KMB Transport, Inc., 98-1018 (La.App. 1 Cir. 5/14/99), 734 So.2d 886, 890, writ denied, 99-2295 (La.11/24/99), 750 So.2d 986, the application of section 1201(G) concerns an employer’s obligations that arise | ¡(because of the employer’s conduct after a final judgment, not because of the claimant’s accident nor because of the claimant’s prior employment with the employer. In the instant case, according to the uncontro-verted evidence presented at the hearing, appellant received a copy of claimant’s medical bills on the date of the settlement, February 1, 2012. As of the date of the hearing, April 9, 2012, well over thirty days after the settlement, the medical bills remained unpaid. Appellant’s attorney introduced no evidence to show that appellant had paid the bills or was in the process of paying the bills. Section 1201(G) is clearly applicable in this case. Appellant’s argument to the contrary that Section 1201(E) should be applied is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In its next assignment of error, appellant argues that the trial court erred in determining that claimant is entitled to penalties and attorney’s fees. In this assignment, appellant argues that the medical bills that were provided on the date the settlement was approved were not on appropriate forms that are required under the Louisiana Workers’ Compensation Act. Appellant contends that without the proper codes, it is unable to process the request for reimbursement. Appellant states that at the time of the hearing, appellant remained in the process of attempting to pay the outstanding medical expenses and had requested that Ochsner provide the bills in the proper form.

The record is completely void of any evidence that appellant had made any attempt to pay the medical bills in question — appellant presented no testimony and offered no documentary evidence at the hearing on the motion. In fact, in the Disputed Claim for Compensation filed on August 15, 2011, claimant states that | fiappellant was provided the “medical expenses” and records, but has failed to respond to repeated requests for payment, thus indicating that appellant was in possession of the medical bills well before the settlement. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In its final assignment of error, appellant argues that the trial court abused its discretion in awarding $4,000.00 in attorney’s fees to claimant. Here, appellant contends that the record does not support the award of attorney’s fees, noting that the amount of medical bills to be paid totaled $10,888.98, and that claimant’s attorney filed a three-page motion and attended a hearing that took less than half a day.

The amount of attorney’s fees awarded under La. R.S. 28:1201 is within the discretion of the workers’ compensation judge, and as long as the award is supported by the record, it will not be disturbed on appeal absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, 700. Factors considered in setting the attorney’s fee award include the skill and ability of the attorney, the amount of the claim, the amount recovered, and the time devoted by the attorney to the case. Id.

In requesting $4,000.00 in attorney’s fees, claimant’s attorney stated that she had spent “a heck of a lot of time on this,” including phone calls, e-mails and reviewing the record. The trial judge declined claimant’s counsel’s offer to provide the exact amount of time spent on the case since the settlement. In awarding attorney’s fees, the trial court stated: “I’ll give you your $4,000.00 because it does look like there’s been a lot of communication back and forth. There has been some substantial work done after the settlement was already 17signed. So I think that’s a reasonable fee.” However, our review of the record does not contain any evidence to assist in our determination as to whether the amount of attorney’s fees awarded is an abuse of discretion. The amount of medical bills to be paid totaled $10,888.98, and although claimant’s attorney was able to show that attorney’s fees should be awarded in this case, there is nothing in the record indicating the amount of time that claimant’s attorney spent working to enforce payment of the medical expenses in question after the settlement. For this reason, we must vacate the portion of the judgment setting attorney’s fees at $4,000.00 and remand the matter to the trial court for a determination of reasonable attorney’s fees, taking into consideration the amount of the claim and the amount of time spent by claimant’s attorney working on enforcing payment of the medical expenses in question after the settlement.

Claimant’s attorney has also requested additional attorney’s fees on appeal. However, claimant has not filed an answer to the appeal. Therefore, we cannot award additional attorney’s fees to claimant for work performed on appeal. Scott v. Cent. Indus., Inc., 91-74 (La.App. 3 Cir.1992), 602 So.2d 201.

CONCLUSION

For the foregoing reasons, the portion of the judgment under review granting attorney’s fees is hereby affirmed, and the portion of the judgment under review setting the attorney’s fees at $4,000.00 is hereby vacated. This matter is remanded to the trial court for a determination of reasonable attorney’s fees.

AFFIRMED IN PART; VACATED IN PART; REMANDED

      . See also, Rodrigue v. Lafourche Parish Sch. Bd., 04-1136 (La.App. 1 Cir. 5/6/05), 909 So.2d 627, 631-32, writ denied, 05-2366 (La.3/17/06), 925 So.2d 546.