author: EDWIN A. LOMBARD, Judge.

text:
    Stuart H. SMITH, Rodney Stephens, David A. Veazey, Guadalupe Gamez and Neal Laney v. CITY OF NEW ORLEANS, et al.
    No. 2013-CA-0802.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 2013.

      Stephen B. Murray, Sr., Arthur M. Murray, Nicole Ieyoub-Murray, Jessica W. Hayes, Murray Law Firm Scott M. Ga-lante, Salvador I. Bivalacqua, Galante & Bivalacqua LLC, Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Mary Katherine Kaufman, Assistant City Attorney, Sharonda R. Williams, City Attorney, Michael Q. Walshe, Jr., Heather S. Lonian, Wayne J. Lee, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

|,The Appellants, the City of New Orleans and ACS State and Local Solutions, Inc., seek review of the class certification of the Appellees, Stuart H. Smith, Rodney Stephens, David A. Veazey, Guadalupe Ga-mez, by the district court. Finding that the district court did not abuse its discretion in certifying the class, we affirm.

FACTS AND PROCEDURAL HISTORY

In January of 2005, the City of New Orleans (“the City”) privatized its parking meter system and commenced replacing coin-operated parking meters with parking control pay stations known as Parkeon Pay Stations (“Pay Stations”) in certain areas of the City. The Pay Stations accepted credit and/or debit cards in addition to coins, and could service multiple parking spaces unlike the mechanical coin-operated meters.

In 2005, the City issued a Request for Proposals for a new Parking Ticket Management Systems and Services Contract pertaining to the Pay Stations. ACS State and Local Solutions, Inc., (“ACS”) was ultimately awarded the contract, |2which was executed on August 1, 2005. ACS had been providing parking ticket processing and collection services for the City prior to 2005 pursuant to a 1994 Parking Ticket Management Systems and Services Contract.

On August 8, 2005, the City passed M.C.S., Ord. 22035, which updated the previous parking ordinances to accommodate the technological changes in the method of payment to include the Pay Stations.

On April 22, 2005, the Appellees filed a “Petition for Injunctive Relief, Declaratory Judgment, and Writ of Mandamus, Alternatively, Damages for Actions Pursuant to the Takings Clause of the Louisiana Constitution, LSA-Const. Art. I, § 4(B)” against the City as well as other defendants. Each of the named plaintiffs received parking citations between January 2005 and August 4, 2005, for not having a Pay Station parking receipt and for expired time. See Smith v. City of New Orleans ex rel. Shires, 10-1464, p. 2 (La.App. 4 Cir. 7/6/11), 71 So.3d 525, 527. Additionally, Mr. Stephens, Ms. Gamez, and Mr. Veazey each received citations while being parked in front of Mr. Smith’s driveway, at respective times. Lastly, Mr. Veazey was cited for placing coins in the old coin-operated mechanical meter instead of the Pay Station system; and was cited for not having a parking receipt while parked in front of Mr. Smith’s driveway. Id. Since filing their initial Petition, the Appellees have twice filed amended and supplemental petitions and | ¡¡have also filed an Amended Restated Petition for Damages on March 31, 2008. ACS was added as a defendant in the Appellees’ Second Supplemental and Amending Petition.

Our Court issued an opinion in Smith, supra, addressing the two (2) separate partial summary judgments the district court granted in favor of the Appellees and in favor of former defendant, Standard Parking Corporation and Parking Solutions, L.L.C., which installed the Pay Stations for the City. These judgments were unrelated to the issue of class certification. Therein our Court affirmed the partial summary judgment in favor of the Appel-lees and held that M.C.S., Ord. 22035 does not apply retroactively and is to be applied prospectively only beginning on August 8, 2005. Smith, 10-1464, p. 9, 71 So.3d at 531. Additionally, we held that citizens were entitled to notice that the Pay Stations were being used to issue citations in lieu of the coin-operated meters. Id.

The Appellees filed a Motion for Class Certification on July 25, 2005, which was opposed by both of the Appellants. The class certification hearing was later held on December 3, 2012. Subsequently, on February 20, 2013, the district court issued a judgment and written reasons for judgment, granting class certification.

In its judgment, the district court appointed the Appellees as class representatives and defined that class as follows:

All persons who were issued a parking citation for violation of Section 154-1086 of the Code of Ordinances |4for the City of New Orleans or other meter violation in connection with a multi-space pay station sometimes referred to as Parkeon Pay Station location in the City of New Orleans through August 4, 2005, and all persons who paid for parking in the City of New Orleans through a multi-space pay station sometimes referred to as Parkeon Pay Station with a credit card, debit card, or smart card through August 4, 2005.

Both of the Appellants timely and separately filed motions for appeal in the district court and the instant appeal followed. As the City was the first party to file its Appellant’s brief, it is the first Appellant and ACS is the second Appellant.

ASSIGNMENTS OF ERROR

The following assignments of error are raised by both the City and ACS:

1. Pursuant to La.Code of Civ. Pro. art. 591(A), the class cannot be objectively defined, and fails to meet the requirements of commonality, and of typicality and adequacy of representation.
2. The predominance requirement of La.Code of Civ. Pro. art. 591(B)(3) was not satisfied.

]KWe shall address the requirements of predominance and commonality jointly because our jurisprudence recognizes that the two requirements are connected. Thus, the above referenced assignments will be discussed respectively under one assignment of error.

Lastly, ACS argues that the district court erred by ruling on purported “common” issues in violation of article 592(d).

STANDARD OF REVIEW

The Supreme Court has explained that when reviewing a district court’s factual findings regarding class certification, a manifest' error standard is applicable; however, a district court’s “ultimate decision of whether or not to certify the class is reviewed under the abuse of discretion standard.” Dupree v. Lafayette Ins. Co., 09-2602, pp. 7-8, (La.11/30/10), 51 So.3d 673, 680. [Citations omitted]. “Implicit in this deferential standard is recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation. Whether the district court applied the correct legal standard in determining whether to certify the class is reviewed de novo.” Doe v. S. Gyms, LLC, 12-1566, p. 9 (La.3/19/13), 112 So.3d 822, 830 [citations omitted].

ASSIGNMENTS OF ERROR ALLEGED UNDER ART. 591(A) AND (B)

A. An Objectively Defined Class

The Appellants argue that the putative class of the Appellees cannot be objectively defined. They argue that the district court did not provide a clear identity of the putative class; consequently, the district court has created an overly broad and vague class.

|fiThe City argues that the class created by the district court creates four distinct potential claimants: 1) persons who paid for parking utilizing a Pay Station and who were cited for a violation; 2) persons who paid for parking utilizing a Pay Station using a debit, credit or a smart card, but were not cited for an offense; 3) persons who paid a traditional coin operated meter and received a citation; and 4) persons who did not pay for parking and received a citation.

The City argues that every person who paid for parking, regardless of whether such person was issued a citation, is a class-member. Thus, the City argues that persons without demonstrable damages have standing to bring suit under the district court’s class-definition, which is improper.

The City further argues that the vagueness of the class definition is evidenced by the fact that it encompasses all persons who were issued a parking citation for any “other meter violation”, which is an undefined term. The broadness of the terminology used by the district court, the City avers, insufficiently provides potential class members with information to determine whether they are indeed class members. The City argues that the current definition conveys class status to any person who received a parking citation for any violation because he or she utilized a Pay Station to pay for parking with a credit, debit or smart card.

The City avers that a possible result of applying such a broad class definition is that the current class definition includes persons who received citations for parking too closely to a fire hydrant or just because they used a Pay Station to pay. In these and similar instances, a person’s usage of the Pay Station is unrelated to the citation he or she received.

|7The City also argues that the class definition does not provide a start date to inform putative class members of when the alleged improper issuance of citations and collection of fees by the Appellants began. An end date of August 4, 2005, however, is provided by the district court in its class definition. Therefore, the City avers that the lack of an applicable start date, such as January 1, 2005, when the Pay Stations were first implemented by the City, adds further to the lack of clarity created by the district court’s class definition.

Additionally, ACS argues that it is affected by two categories of potential putative claimants: 1) persons who paid for parking by using a credit or debit card in a Pay Station, or 2) a person who received citations resulting from his or her failure to display Pay Station stubs or receipts during the applicable time period.

ACS contends that the class definition is overly broad, pursuant to Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835, because it includes persons who are not entitled to the relief sought. It argues that the Appellants seek damages from ACS alleging that it improperly converted their funds, but ACS maintains that the Court must conduct a rigorous analysis of whether the putative class-member claims are susceptible of class-wide proof under Price v. Martin, 11-0853 (La.12/6/11), 79 So.3d 960 and Wal-Mart Stores, Inc. v. Dukes, _ U.S. _, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011). ACS maintains that the claims of the certified class in the instant matter are insusceptible of class-wide proof; thus, the district court would be required to individually determine whether each class member had even sustained damages as a result of ACS alleged conduct.

ACS further points while the class members allege that ACS converted funds, there is no proof that ACS committed conversion. ACS avers the persons |8who used debit or credit cards, but did not receive a citation, do not have a claim for conversion against ACS, nor do persons who never paid a citation have a claim against ACS. ACS explains that persons who used debit or credit cards to pay for parking at a Pay Station and did not receive a citation, never came into contact with ACS because it did not collect monies paid to the Pay Stations. Thus, such persons have no standing to sue ACS. Moreover, ACS argues that persons who never paid a citation have no claims against ACS because they have no damages, even if those citations were paid by a third party. ACS argues that the burden is on the Appellees to establish that there is a causal connection between the defendant’s alleged tortious conduct and the plaintiffs’ damages.

One of the requirements under La.Code of Civ. Proc art. 591(A) is that the class be defined objectively in terms of ascertainable criteria, “such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.” The purpose of the class definition requirement is to ensure that the class is not amorphous, indeterminate, or vague, so that any potential class members can readily determine if he/she is a member of the class. Clement v. Occidental Chemical Corp., 97-0246, p. 9 (La.App. 5 Cir. 9/17/97), 699 So.2d 1110, 1114. Thus, the parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case. Chalona v. Louisiana Citizens Prop. Ins. Corp., 08-0257, p. 9 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 502 [citation omitted].

In the instant matter, the class, as defined by the district court, is:

All persons who were issued a parking citation for violation of Section 154-1086 of the Code of Ordinances for the City of New Orleans or other meter violation in | ¡¡connection with a multi-space pay station sometimes referred to as Parkeon Pay Station location in the City of New Orleans through August 4, 2005, and all persons who paid for parking in the City of New Orleans through a multi-space pay station sometimes referred to as Parkeon Pay Station with a credit card, debit card, or smart card through August 4, 2005.

Moreover, the district court further explained in its Reasons for Judgment that the Appellants provided sample spreadsheets with information identifying proposed class members and, thus, the class definition is not too broad and can be adequately and objectively defined.

We find that the district court made clear that the class is limited to persons who fall within two categories:

1. persons who were issued a parking citation, under Section 154-1086 of the Code of Ordinances for the City of New Orleans or other meter violation, in connection with the Pay Station; or
2. persons who paid for parking in the City of New Orleans through the Pay Station with a credit card, debit card, or smart card through August 4, 2005.

The definition is clear in that putative class members must have either received a citation issued in connection with a Pay Station, or paid for parking with a credit card, debit card or smart card using a Pay Station through August 4, 2005. The Judgment does not provide a start date for those persons who were issued or paid the subject citations, but such information is unnecessary to determine whether one falls into either of the aforementioned categories. A person could not, for instance, have a valid claim to be a putative class member based on receiving a citation or paying for parking using a Pay Station prior to January of 2005, when the Pay Stations were not located in the City at that time.

|10Moreover, the City and ACS can easily verify the validity of the majority of putative class members’ class status by reviewing their own citation and business records to ascertain whether citations related to the Pay Stations were issued within the applicable time frame. See Chalona, 08-0257, p. 10, 3 So.3d at 502-03. Thus, we do not find that the district court manifestly erred in holding that the class was objectively defined and that potential claimants are sufficiently alerted to the fact that he or she may be a class member by the district court’s definition.

Lastly, with regard to the argument of ACS that the class will include persons who have no viable claims against ACS, our Court has explained that a certification hearing is not the appropriate venue to determine the merits of a case:

A certification hearing does not determine liability. It is not the correct venue to decide the merits of the case or defenses the defendants may allege. Those matters are to be resolved at the trial on the merits.

Chalona, 08-0257, pp. 10-11, 3 So.3d at 503 [citation omitted].

B. Commonality and Predominance

The City argues that there is a heightened commonality requirement that our Louisiana Supreme Court applies to class actions, which was adopted from Wal-Mart Stores, Inc. v. Dukes, _ U.S. _, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011). The requirement is such that each class member must be able to prove individual causation based on an identical set of operative facts and law used by any other class member. The Appellees, the City avers, failed to meet this requirement because they failed to prove the necessary element of individual causation based on the same set of operative facts and law that would be used by any other class member. The City avers that causation and damages are dependent upon proof of facts of each putative class member.

| nThe City argues that the question to be examined is why each and every class member received a citation during the specified time. The City argues that factors, such as the location of the class members’ vehicles, the form of payment used, whether the class member paid a meter, whether the person who parked the subject vehicle is the owner of the vehicle, are factors that are widely varied and would not be common to each member. Thus, the facts surrounding each class member’s claim are too distinct and would require a case-by-case analysis, which would defeat the purpose of certifying a class. Moreover, the City argues that the interests of the named plaintiffs/Appellees conflict with those of the unnamed class members because some of the named class members alleged a takings claim as a result of being parked in or blocking class member Smith’s driveway.

Thus, the distinct facts would require a case-by-case analysis due to the factually distinct claims of class members, which defeats the purpose of class certification. The City further maintains that the interests of the five (5) named plaintiffs conflict with those of the unnamed class members.

Moreover, ACS contends that the test of commonality contained in La.Code of Civ. Proc. art. 591(A) requires that “there be at least one issue whose resolution will affect all or a significant number of the putative class members.” ACS, relying upon Dukes and Price, supra, argues that the only common question that will satisfy this requirement are those questions that may be expected to advance the litigation.

ACS contends that the Appellees have identified in brief and at the class certification hearing the following common issues:

• whether there existed a legal basis for the collection of fines related to the Pay Stations prior to August 5, 2005;
11?» whether there existed a legal basis for the enforcement of parking citations related to the Pay Stations prior to August 5, 2005;
• whether the defendants/Appellants were negligent in the collection of said fines or the enforcement of the said citations; and
• whether the violation of fees and fines under this system allow for compensation to all the victims of the system.

Asserting that any issue can be abstracted enough to create a common question, ACS avers that the inquiry that is integral in this matter is whether the answer to any of these questions will resolve an issue that is central to the validity of each one of claims levied against it. It argues that the answer is no.

ACS further avers that the Appellees’ claims are insusceptible of class-wide proof because there are persons who never paid their citations or had their citations paid by third parties. ACS argues that it can assert a lack of payment defense against the class members who did not pay their citations. Additionally, it argues that it only served as an agent to collect and deposit fines into the City’s accounts. Consequently, even persons who did pay fines would have to demonstrate more than that they made a fine payment to establish ACS’ liability. ACS avers that such defenses required individualized proof, which exposes the fact that the Ap-pellees’ purported common questions are not common.

The commonality requirement requires that a party seeking class certification show that “[t]here are questions of law or fact common to the class.” La. Code Civ. Proc. art. 591(A)(2). “Commonality requires a party seeking certification to demonstrate the class members’ claims depend on a common contention, and that common contention must be one capable of class-wide resolution — one where the ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Price, 11-0853, p. 10, 79 So.3d at 969 (citing Wal-Mart Stores, Inc., 131 S.Ct. at 2551). Furthermore, the commonality factor requires the existence of a common nucleus of operative facts within the totality of the issues. Dupree v. Lafayette Ins. Co., 09-2602, p. 11 (La.11/30/10), 51 So.3d 673, 682-83. Lastly, we recognize that the mere existence of common questions will not satisfy the commonality requirement as any “competently crafted class complaint literally raises common questions”. Price, 11-0853, p. 10, 79 So.3d at 969 (citing Wal-Mart Stores, Inc., 131 S.Ct. at 2551).

Furthermore, related to the commonality requirement is the requirement of predominance. An inquiry into predominance tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation. Guidry v. Dow Chem. Co., 12-0436, p. 6 (La.App. 4 Cir. 11/14/12), 105 So.3d 900, 905 (citing Brooks v. Union Pacific R. Co., 08-2035 (La.5/22/09), 13 So.3d 546, 554). Pursuant to art. 591(B)(3), plaintiffs are required to establish only that either common issues of law or common issues of fact predominate over any issues affecting only individual members. In order for a case to proceed as a class action, “there must be ‘significant proof,’ subject to ‘rigorous analysis,’ of a common question — one where the ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Price, 11-0853, p. 21, 79 So.3d at 975.

The district court specifically held in its judgment, regarding the predominance requirement of La.Code of Civ. Proc. art. 591(B)(3), that the class certification applies:

with respect to all claims for damages associated with the installation and implementation of the Parkeon System in the City of New Orleans including the collection of fees [14in connection with the Parkeon Pay Stations and/or the enforcement of parking citations issued with the Parkeon System ...

Additionally, in its Reasons for Judgment, the district court expounded on how the predominance and commonality requirements were met. The district court explained in its Reasons for Judgment that, unlike the plaintiffs in Alexander v. Norfolk Southern Corp., 11-2793 (La.3/9/12), 82 So.3d 1234, individual, personal or underlying factors are immaterial because the issue of alleged illegal parking citations does not require anything more than receipt of a parking citation to be adversely affected.

We note that the district court’s explanation of how the commonality and predominance factors are met partially contradicts the class definition. The class definition of the district court encompasses not only those persons who received a parking citation, but those who paid the subject citations as well. Yet, the Court’s rationale for finding that commonality and predominance requirements were met is that receipt of a parking citation is the only proof required to establish these elements.

Nevertheless, it appears that both common issues of fact and law unite the class. Factually, all class members share being affected by the City’s issuance of | ^citations related to the Pay Stations because class members will have either received and/or paid a citation. Moreover, the common issue of law that predominates this class is whether such parking citations were illegally issued prior to M.C.S., Ord. 22035 becoming effective, (i.e. is there any legal basis for issuing the citations at the time they were issued). Thus, we find that the district court did not manifestly err in determining that the commonality and predominance requirements were met. These assignments of error are without merit.

Lastly, the Appellants’ arguments pertaining to the Appellees’ claims under the Takings Clause of the Louisiana Constitution are irrelevant to our review because the district court did not maintain the instant class action as to those claims.

C. Typicality and Adequacy of Representation

The Appellants argue that the district court erred in maintaining this case as a class action because the claims of the class representatives are not typical of members of the class. They argue that the Appellees’ claims are not a cross-section of the claims of all class members because their claims do not arise out of the operation of the Pay Stations, but as a result of the named plaintiffs receiving citations while parked in front of Plaintiff Smith’s driveway. The Appellants re-urge that Appellee Smith asserted a takings claim regarding his alleged driveway, and that he and Neal Laney assert a claim alleging that the Pay Stations do not conform to the “tout ensemble” of the French Quarter. The Appellants further argue that the Appellees cannot adequately protect the interests of the class because their citations were dismissed. The Appellants rely upon Defraites v. State Farm Mut. Auto. Ins. Co., 10-78 (La.App. 5 Cir. 6/29/10), 44 So.3d 762, wherein the Fifth Circuit held that a named plaintiff could not adequately represent the class because his claim was settled.

Typicality and adequacy of representation under La.Code of Civ. Proc. art. 591(A) requires that the claims of the class representatives be a cross-section of the claims of all class members. Walker v. AMID/Metro P’ship, LLC, 12-0285, p. 14 (La.App. 4 Cir. 1/16/13), 109 So.3d 35, 44, writ denied, 13-0601 (La.4/26/13), 112 So.3d 844 and writ denied, 13-0602 (La.4/26/13), 112 So.3d 845. The typicality requirement “is satisfied if the claims of the class representatives arises out of the same event, practice, or course of conduct giving rise to the claims of the other class members, and are based on the same legal theory.” Guidry v. Dow Chem. Co., 12-0436, p. 8 (La.App. 4 Cir. 11/14/12), 105 So.3d 900, 906 (citing Boyd v. Allied Signal, Inc., 03-1840 (La.App. 1 Cir. 12/30/04), 898 So.2d 450, 464).

The district court explained that the claims of the Appellees are typical of the class because the Appellees were all allegedly issued improper parking citations. In light of this fact, the court found that the circumstances surrounding the issuance and subsequent dismissal or resolution of the citations are immaterial.

In the instant case, as previously noted, the takings claims and the claims regarding the “tout ensemble” of the French Quarter are irrelevant because neither claim was maintained by the district court.

Furthermore, the claims of the Appel-lees all arise out of the issuance of parking citations that were unauthorized under the Municipal Code. The Appellees and other class members will share the argument that the City and ACS lacked the legal authority to issue the citations and collect fines related to the Pay Stations during the applicable time period. Lastly, albeit that some of the citations of the | i7Appellees were administratively dismissed, the relief the Appellees seek includes the return of monies paid to the Pay Stations during the applicable period as well as other compensatory damages, and declaratory and injunctive relief. Thus, the claims of the Appellees are typical of what all potential members of the class would seek. Therefore, we find that the district court did not manifestly err in determining that the typicality and adequacy of representation requirements were met. This assignment of error is without merit.

THE DISTRICT COURT VIOLATED LA. CODE OF CIV. PROC. ART. 592(D)

ACS argues that the district court erred by certifying the class against ACS after ruling on purported “common” issues in violation of La.Code of Civ. Proc. art. 592(A)(3)(d). As noted above, the district court granted the Appellees’ partial motion for summary judgment on June 17, 2010. In its judgment, the district court ruled that the M.C.S., Ord. 22035 did not apply retroactively from the date that the ordinance became effective and, thus, the operation of the Pay Stations was illegal prior to the ordinance’s effective date. ACS argues that because the district court granted the Appellees’ partial motion for summary judgment it erred by later certifying the class against ACS pursuant to La.Code of Civ. Proc. art. 592(A)(3)(d), which provides:

No order contemplated in this Subpara-graph shall be rendered after a judgment or partial judgment on the merits of common issues has been rendered against the party opposing the class and over such party’s objection.

ACS argues that the district court’s June 17, 2010 judgment disposed of at least two of the alleged “common” issues the Appellees identified, such as whether there existed a legal basis for the collection of fines related to the Pay Stations prior to August 5, 2005, and whether there existed a legal basis for the enforcement |18of parking citations related to the Pay Stations prior to August 5, 2005. Consequently, ACS argues that the district court erred in certifying the class when it has rendered a judgment on the merits of purportedly common issues against ACS.

The Appellees assert that the district court can consider a dispositive motion prior to a determination of whether a case may be maintained as a class action under Clark v. Shackelford Farms Partnership, 38,749 (La.App. 2 Cir. 8/18/04), 880 So.2d 225, 228. The Appellees further argue that the judgment granting the partial motion for summary judgment was not a judgment on the merits on a common issue because the district court did not hold that no legal basis existed for the collection of fees in connection with the Pay Stations and/or the enforcement of parking citations issues as a result of the Pay Station System on or before August 4, 2005, nor did the district court hold that ACS and/or the City were liable to the Appellees. Lastly, the Appellees argue that ACS neither opposed the partial motion for summary judgment, nor the class prior to the partial motion for summary judgment being granted. Thus, the Appellees assert that La.Code of Civ. Proc. art. 592 does not bar the maintenance of the instant case as a class action. We agree.

The district court did not adjudicate any of the common issues raised in this matter when the court rendered its June 17, 2010 judgment. As the Appellees note, the district court only ruled on non-retroactive application of the MCS ordinance, but did not render a decision as to whether any other legal basis would uphold the issuance of citations prior to the statute becoming effective. Additionally, the district court did not hold either of the Appellants liable for any of their alleged Inactivities in connection with the Pay Stations prior to the effective date of the ordinance. We, therefore, find that this assignment of error is without merit.

Decree

For the foregoing reasons, the judgment of the district court certifying the class action of Appellees Stuart H. Smith, Rodney Stephens, David A. Veazey, Guadalupe Gamez, is affirmed.

AFFIRMED.

      . Plaintiff Neal Laney was not included as a class representative by the district court.

      . ACS purchased a division of Lockheed Martin that had contracted with the City to collect fines related to the City’s issuance of parking citations pursuant to a 1994 Parking Ticket Management Systems and Services Contract ("the Parking Contract”). ACS acquired all rights and obligations executed under the Parking Contract. The original contract was for a three-year period ending on April 30, 1997; however, the parties extended the term of the contract through various agreements. The last agreement was executed in October 2004, and therein the parties agreed that ACS would continue to provide parking ticket processing and collection services for a six-month period ending in early 2005.

      .A citation for not having a parking receipt would be issued if there was no Pay Station ticket/receipt in the windshield of the cited vehicle.

      . The Code of Ordinances for the City of New Orleans Sec. 154-1086, entitled When use required; prohibited, currently provides:
      (a) On those sections of city streets where parking is regulated at metered spaces, parking is permitted on the days and between the hours of operation posted for the intervals of time as indicated by the single/double space parking meters, multispace pay stations, on-line parking services (OPS), or on signs installed by the authority of the director of the department of public works in conjunction with such single/double space parking meters, multispace pay stations, or OPS meter spaces.
      (b) It shall be unlawful for a vehicle to be parked in a metered space on the days and between the hours of operation indicated in paragraph (a) above, when the specified payment has not been made for use of the metered space and the single/double space parking meter, multispace pay station or OPS indicates that such payment has not been made, or when signage indicates that such space is not a legal parking space at that time. It shall be lawful to park in such legal parking spaces on public holidays, as defined in section 154-2, without payment of the specified amount, regardless of the presence of single/double space parking meters, multispace pay stations or OPS which might at other times regulate such space.
      (c)It shall be unlawful for a vehicle to be parked at any time in a metered space when a locked bag or hood has been placed upon such single/double space parking meter.

      . The City filed a motion for a suspensive appeal and ACS filed a motion for a devolu-tive appeal.

      . We note that the class does not include persons who used the Pay Stations by paying with coins, which the Pay Stations do accept.

      . In Alexander, the Supreme Court extensively discussed the predominance requirement of La.Code Civ. P. art. 591(B)(3) as it applied to putative class members who sought class certification to seek damages as a result of allegedly being impacted by a release of chemicals from parked railroad cars. The district court granted class certification, which our Court affirmed on appeal. The Supreme Court ultimately held that each member of the proposed class will necessarily have to offer different facts to establish liability and damages which controverts the purpose of preventing class certification from degenerating into a series of individual trials. Id., 11-2793, p. 3, 82 So.3d 1234, 1236. The Supreme Court held that common issues of law and fact did not predominate because there was "undisputed evidence in the record demonstrating that any determination of damages will be dependent upon proof of facts individual to each putative class member” regarding whether they had a unique susceptibility to the released chemical. Id., 11-2793, p. 3, 82 So.3d 1234, 1236.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eugene T. VESSEL.
    No. 2012-KA-1543.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2014.
    Rehearing Denied Feb. 4, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   ROLAND L. BELSOME, Judge.

| PROCEDURAL HISTORY

The defendant was charged by bill of information with possession of heroin with intent to distribute. He pled not guilty at arraignment. After a hearing, the trial court denied his motions to suppress the evidence and found probable cause.

At his first trial, the jury was unable to reach a verdict. A second jury trial was held, and the defendant was found guilty as charged. After the denial of post-verdict motions, the defendant was sentenced to twenty-five years at hard labor. He then admitted to the allegations contained in the multiple bill of information filed by the State, and was adjudicated a second felony offender. The trial court vacated the original sentence and sentenced defendant to twenty-five years at hard labor. This timely appeal follows.

STATEMENT OF FACT

While driving on the night of October 17, 2010, the defendant was pulled over at the intersection of North Broad and Iber-ville Streets, in New Orleans, | pursuant to a seat belt violation. The defendant was arrested after heroin was seized from his person.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

In this appeal, the defendant asserts two counseled assignments of error, and three pro se assignments of error, one of which incorporates an assignment of error addressed by counsel. In his first counseled assignment of error, the defendant contends that the evidence was insufficient to support his conviction for possession with the intent to distribute heroin.

When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982) (citation omitted). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of ^whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 820 (La.1987).

In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293 (citation omitted). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992) (citation omitted).

A fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. State v. Winston, 11-1342, pp. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citations omitted).

In particular, the defendant contends that the State failed to prove that he had the requisite intent to distribute heroin. In order to establish all the elements of the offense, the State must prove that the defendant possessed the drug with the “intent to distribute” it. State v. Williams, 594 So.2d 476, 478 (La.App. 4 Cir.1992). Specific intent to distribute may be established by proving circumstances |4surrounding the defendant’s possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063, 1071 (La.App. 4 Cir.1989) (citations omitted). In State v. Hearold, 603 So.2d 731, 735 (La.1992), the Louisiana Supreme Court explained that “[i]ntent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred.” The Court identified five factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance as follows:

(1) [W]hether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Id.

In the instant case, Officers David Aran-da and Daniel Hiatt of the New Orleans Police Department First District Task Force conducted the stop. The testimony at trial revealed that the officers recovered eleven individually wrapped foil packets of heroin, located within a plastic bag concealed in the defendant’s shorts. The heroin was found tightly packed in a ball of rice. In particular, the officers testified that narcotics dealers frequently package heroin in rice to keep it dry and fresh. Additionally, over $1,000 cash, in various small denominations, was recovered from the defendant’s person and vehicle.

|sThough the defendant provided evidence suggesting a legitimate source of the money that was discovered a reasonable fact finder could have concluded that the presence of so many bills in small denominations was inconsistent with Ms. Williams’ testimony regarding the source of the money, and was more likely the result of actual drug trafficking. Furthermore, a reasonable fact finder could have concluded that it was unlikely that the money that was discovered belonged to Ms. Williams because the majority of the currency was discovered on defendant’s person and not in the vehicle where Ms. Williams reported leaving it.

As the State points out, State v. Davis, 06-1330, p. 9 (La.App. 4 Cir. 4/25/07), 958 So.2d 713, 718-19 is analogous to the instant case. The Davis Court found that a large sum of money and packaged crack cocaine rocks, coupled with a high incidence of narcotics trafficking in the area, was sufficient evidence to support a finding that the defendant was in possession of the narcotics with an intent to distribute. Id., 06-1330, p. 12, 958 So.2d 713, 721. In particular, this Court noted “[cjommon sense would tell a juror that the presence of the unusually large amount of cash in defendant’s car and on his person, along with a loose rock of crack cocaine and eighteen individually wrapped plastic bags, each containing a rock of crack cocaine, were indicative] of an intent to distribute.” Davis, 06-1330, p. 9, 958 So.2d at 718-19. Likewise, in this case, though there was no trial testimony regarding high incidences of narcotics distribution in the area, the presence of a large amount of money in the defendant’s car and on his person, coupled with the numerous individually wrapped foils of heroin packaged in rice were indicative of an intent to distribute.

| fiGiven these circumstances, a rational trier of fact could have concluded beyond a reasonable doubt that the defendant possessed heroin with the intent to distribute it. Accordingly, we find the evidence sufficient to support the defendant’s conviction.

The defendant’s remaining assignments of error challenge the trial court’s denial of the defendant’s motion to suppress the evidence. In support of his argument that his motion was erroneously denied, he makes three claims: 1) the initial traffic stop was unjustified; 2) the plain feel exception did not apply; and 3) a traffic safety violation did not warrant the search.

The State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D). A trial court is vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The trial court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard and the trial court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 01-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Accordingly, “on mixed questions of law and fact, an appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. Id. Where the facts are not in dispute, a reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. State v. Anderson, 06-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546.

First, the defendant contends that the initial traffic stop was unjustified because Officer Aranda could not have had a “clear and unobstructed view” of the seat-belt infraction because the windows on the vehicle were tinted.

La. R.S. 32:295.1(F) provides in pertinent part:

Probable cause for violation of this Section shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Section.

The evidence introduced at the suppression hearing and trial was similar. In support of his argument that the windows were tinted, the defendant introduced photographs of his vehicle taken by Patrell Williams sometime after the incident. In addition, Ms. Williams testified that the defendant purchased the 2002 Towncar, with tinted windows approximately one week before the incident.

Officer Aranda testified he observed that the defendant was not wearing a seat-belt. He consistently stated that the windows were not tinted at the time of the incident. Moreover, at the suppression hearing, Officer Aranda stated that “if’ the windows were tinted at the time of the incident, the tint was very “light.” He further indicated at trial that had the windows been [illegally] tinted, he would have cited the defendant for it.

In State v. Lee, 02-704, p. 9 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 595, the fifth circuit found the officer’s traffic stop for a seatbelt violation lawful. | sNotwithstanding evidence of tinted windows being introduced at trial and the argument that the officer could not see into the vehicle due to the tint, the court upheld the trial court’s credibility determination in favor of the officer, who testified that he could see clearly into the vehicle. The officer further stated that had he not been able to see through tinted windows, he would have cited the defendant for illegal tint. Likewise, the trial court in the instant case found Officer Aranda’s testimony credible. Accordingly, we cannot find that the trial court was clearly erroneous in determining that the officer’s view was clear despite any tint on the window.

Next, the defendant submits that the testimony failed to support the application of the “plain feel” exception to the warrantless search of his person; therefore, the trial court erroneously refused to suppress the evidence.

Article 1, Section 5 of the Louisiana Constitution of 1974 and the Fourth Amendment to the United States Constitution protect individuals from unreasonable searches and seizures. A search conducted without a warrant is per se unreasonable under the Fourth Amendment to the United States Constitution, subject only to a “few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which allows an officer to perform an investigative stop where there is reasonable suspicion to be believe that the individual has committed or is about to commit a crime. Id. at 24, 88 S.Ct. at 1881. Under Terry, a police officer may conduct a protective frisk after stopping someone where it is reasonable to believe that the subject may be armed. Id. at 24, 88 S.Ct. at 1881. See also La.C.Cr.P. art. 215.1.

|aWhen an officer is conducting a Terry frisk, the “plain feel” exception allows the seizure of contraband where the incriminating character of the object is immediately apparent to the officer without any additional form of search or examination to identify it as contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993); State v. Boyer, 07-476, p. 22 (La.10/16/07), 967 So.2d 458, 472. In order for evidence to be seized under the plain feel exception to the warrant requirement, the officer must have probable cause to believe that the item is contraband before seizing it. Boyer, 07-476, p. 24, 967 So.2d at 473 (citing Dickerson, 508 U.S. at 376-77, 113 S.Ct. at 2137-38). The Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures. Id.

The undisputed testimony from the hearing reflects that when Officer Aranda approached the vehicle, in an area known for drug trafficking, the defendant was extremely nervous: sweating, shaking, and making unusual movements in his crotch areas. Concerned for his safety, he ordered the defendant out of the vehicle and conducted a protective search for weapons. While patting the defendant down, he encountered a spherical object protruding from the defendant’s inner left thigh area, between his shorts and boxers, in an area common for carrying drugs. Immediately recognizing the object as contraband, he removed it using a small knife. Once the object was removed, Officer Aranda observed a tightly bound plastic bag containing foils interspersed between rice.

The defendant argues that the incriminating character of the object, which Officer Aranda encountered underneath his shorts, was not immediately apparent without an additional form of search or examination to identify it as contraband. | inHe likens the case to State v. James, 99-3304 (La.12/08/00), 795 So.2d 1146, where the Louisiana Supreme Court suppressed the seizure of a film canister from defendant’s pocket during a valid investigatory stop, because the officer “could not particularize the association of film canisters •with narcotics trafficking to the circumstances as he knew them at the time he reached into relator’s pocket.” As such, it concluded that the officer “exceeded the scope of a valid Terry stop when he removed the canister from relator’s pocket and began manipulating it to determine its contents.” Id., 99-3304, p. 7, 795 So.2d at 1150. The court noted that a film canister is an object with a myriad of legitimate uses. Id., 99-3304, p. 1, 795 So.2d at 1147. See also, State v. Parker, 622 So.2d 791 (La.App. 4 Cir.1993), writ denied, 627 So.2d 660 (La.1993) (where this Court held that the “plain feel” exception did not apply to the seizure of a matchbox containing cocaine found in the defendant’s pocket during a protective search, because there was no evidence that a matchbox’s shape was identifiable as contraband).

Unlike, James and Parker, the heroin was not located in the defendant’s pocket in a common container, which serves many legitimate purposes. Rather, it was located in a plastic bag, in the upper thigh area, underneath the defendant’s shorts, where drugs are commonly concealed. It is further challenging to believe that a citizen would store a legitimate substance in this manner and location. See State v. Guillory, 09-1350, p. 6 (La.11/20/09), 21 So.3d 945, 949 (where the Louisiana Supreme Court upheld the seizure of plastic bag containing crack cocaine in the defendant’s waistband, noting it was difficult to imagine a legitimate substance being kept within plastic wrapping in the waistband of a citizen).

Similar to the case at bar is State v. Jackson, 96-1503, p. 4 (La.App. 4 Cir. 12/4/96), 684 So.2d 1046, 1049. In Jackson the officer specifically articulated at In trial that the defendant’s nervousness during the search, as well as the size, shape, and texture of the object, caused him to believe that it was contraband. Consequently, this Court upheld the constitutionality of the seizure of cocaine from the defendant’s pocket finding that the officer “plainly felt what he believed to be contraband.” Id., p. 5, 684 So.2d at 1049. See also, State v. Stevens, 95-501 (La.App. 5 Cir. 3/26/96), 672 So.2d 986 (where the seizure of drugs in a matchbox detected during a lawful pat-down was upheld after the officer testified that her prior experience indicated that most street-level crack dealers carried their drugs in a matchbox.)

In light of the jurisprudence and the circumstances in this case, we find that the Officer Aranda had probable cause to seize the heroin, under the plain feel exception, once he felt, in his experience and observations, what he recognized to be contraband under the defendant’s shorts.

Finally, defendant argues that the officer was not authorized to conduct a search incident to arrest, because the express terms of La. R.S. 32:295.1(F) the officer specifically prohibit a search following arrest for operating a motor vehicle without wearing a seatbelt. As defendant states, La. R.S. 32:295.1(F) provides in pertinent part that “[a] law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.”

Nevertheless, the testimony failed to establish that the defendant was under arrest as a result of the seatbelt infraction or that he was searched “incident to arrest” as a result thereof. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Rather, Officer Aran-da explained that while patting the defendant down as a protective measure, he discovered the contraband. See State v. Sims, 02-2208 (La.6/27/03), 851 So.2d 1039 (discussing a police officer’s decision to conduct a limited pat down for weapons).

We find no error in the trial court’s factual findings and legal conclusions; therefore, we cannot say that the trial court abused its discretion in the denying the defendant’s motion to suppress the evidence.

CONCLUSION

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

JENKINS, J., Concurs in the Result.

      . This Court and the Supreme Court denied the defendant’s application for supervisory writs. This Court found there was no abuse of discretion in the trial court’s denial of the motion to suppress the evidence.

      . Patrell Williams, defendant’s fiancé, testified that she had left over $2,000, received from Whitney Bank after cashing a BP Oil claim check, in the glove box of the vehicle; and, the defendant took the vehicle before she could remove the money.

      . This assignment of error was asserted by both counsel and the pro se defendant. The other two assignments were asserted by the pro se defendant only.

      . Although these exhibits are unavailable in the appellate record, they are not material to a complete appellate review, as the issue is ultimately one of credibility. See State v. Lee, infra. See also State v. Leger, 05-011 (La.7/10/06), 936 So.2d 108 (unpublished appendix ), only material or prejudicial omissions from the appellate record warrant reversal.

      . There is nothing in the record to indicate that the defendant was cited for illegal tint. Additionally, such an infraction would provide an alternative basis for a traffic stop. State v. Wyatt, 99-2221, p. 2 (La.App. 4 Cir. 9/27/00), 775 So.2d 481, 482-83.


author: CONERY, Judge.

text:
    Robert BURKE v. VENTURE TRANSPORT LOGISTICS, LLC, et al.
    No. 13-753.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 22, 2014.

      Michael Benny Miller, Jacqueline B. Ma-necke, Crowley, Louisiana, for Plaintiff/Appellant, Robert Burke.
    Bryan David Scofield, Scofield & Rivera, Lafayette, Louisiana, for Defendant/Appellant, Ace American Insurance Company Venture Transport Logistics, LLC.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

hThe plaintiff, Robert Burke (“Mr. Burke”), appeals the judgment of the Workers’ Compensation Judge (“WCJ”) in favor of Venture Transport Logistics, LLC and Ace American Insurance Company (“Defendants”), denying his claims for penalties and attorney fees, filed via motion practice in connection with and subsequent to a May 23, 2011 consent judgment (“Consent Judgment”) between the parties. Mr. Burke also seeks an increase in the award of a $700.00 penalty for late payment of two bills from Lafayette General Medical Center, dated December 30 and 31, 2010, and seeks an increase in the attorney fees awarded.

The WCJ found that Defendants failed to timely pay three bills from University Medical Center, dated October 8, 2009, October 13, 2009, and January 8, 2010, (“UMC Bills”), all of which predated the Consent Judgment, and awarded $3,000.00 in penalties and $6,000.00 in attorney fees against Defendants. Defendants appeal the WCJ’s ruling awarding the $3,000.00 in penalties and also seek a reduction in attorney fees and costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit began on June 25, 2010, when Mr. Burke filed his Worker’s Compensation Form 1008 Disputed Claim for Compensation, (“1008 Claim”) against Defendants. The original 1008 Claim sought payment of medical bills, in addition to penalties and attorney fees. The 1008 Claim was the result of a work related accident on May 1, 2009, where Mr. Burke claims he injured his low back while strapping a load onto a flatbed trailer while working as a truck driver for Venture Transport Logistics, LLC.

Upon receipt of the original 1008 Claim, Defendants submitted interrogatories and requests for production of documents in an attempt to ascertain |2the outstanding medical bills and to determine whether penalties and attorney fees might be owed. Mr. Burke responded to the discovery requests and attached the three UMC Bills in question, which he identified as still unpaid. Both the discovery requests by Defendants and the responses by Mr. Burke were submitted into evidence at the hearing before the WCJ.

The parties settled the original 1008 Claim by virtue of a Consent Judgment submitted by the parties on May 16, 2011 and signed by the WCJ on May 23, 2011. The May 23, 2011 Consent Judgment states in pertinent part:

Based upon the stipulations of counsel:

IT IS ORDERED, ADJUDGED AND DECREED that ROBERT BURKE was injured while performing services for VENTURE TRANSPORT LOGISTICS, LLC on May 1, 2009, and at the time of his injury, VENTURE TRANSPORT LOGISTICS, LLC was insured by ACE AMERICAN INSURANCE COMPANY for worker’s compensation benefits; that as a result of this accident, ROBERT BURKE is entitled temporary and total disability benefits in the amount of $546.00 per week beginning June 17, 2009, subject to a credit for all workers’ compensation benefits paid
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that ROBERT BURKE is entitled to all reasonable and necessary medical treatment as well as $8,000.00 in penalties and attorney’s fees in amount of $8,000.00, plus expenses in the amount of $469.82 which covers all penalties and attorney’s fees which may have been raised through May 11, 2011.

(Emphasis added).

Following the Consent Judgment, Mr. Burke filed three additional motions, entitled “Motion and Order for Penalties and Attorney’s Fees,” “Plaintiffs Motion and Order to Amend Penalties and Attorney’s Fees,” and “Plaintiffs Third Motion 13and Order to Amend Penalties and Attorney’s Fees,” which contained all of the claims made by Mr. Burke which are the subject of this appeal.

On June 27, 2012, the WCJ held a hearing on the merits of Mr. Burke’s claims for penalties and attorney fees, after which he allowed the parties to submit post-trial briefs, received by the WCJ on July 30, 2012. On September 12, 2012, the WCJ issued a verbal ruling on the record, which he memorialized in a Judgment signed on November 7, 2012. Notice of signing of judgment was mailed on November 21, 2012. Defendants timely filed a motion for new trial, which was denied by the WCJ in a Judgment signed on February 20, 2013. Mr. Burke filed a timely devolutive appeal, which was followed by a timely suspensive appeal on behalf of Defendants.

Mr. Burke appeals the denial by the WCJ of medical payments and penalties and attorney fees in its verbal ruling of September 12, 2012. Counsel for Mr. Burke also seeks an increase of attorney fees from the $6,000.00 awarded by the WCJ to the submitted amount of $13,475.00.

In the verbal ruling, the WCJ found in Mr. Burke’s favor on only two claims made on his behalf. The WCJ awarded Mr. Burke a $700.00 penalty for the late payment of two Lafayette General Medical bills dated December 80, 2010, and December 81, 2010. Defendants have paid that penalty in full and it is not part of their appeal before this court. Mr. Burke, however, in his appeal, seeks an increase in the $700.00 penalty awarded against Defendants for this claim to $3,000.00.

Defendants appeal the imposition of the $3,000.00 penalty for their failure to pay the UMC Bills pursuant to La.R.S. 23:1201(G). Defendants further appeal the attorney fee award of $6,000.00, as well as the amount of costs imposed of $1,551.63.

LMR. BURKE’S ASSIGNMENTS OF ERROR

Mr. Burke assigns the following eight assignments of error:

1.) The workers’ compensation judge erred in denying a penalty for Venture’s denial of the caudal epidural steroid injection recommended by Dr. Staires. [December 14, 2011]
2.) The workers’ compensation judge erred in denying physical therapy ordered by Dr. Muldowny for Mr. Burke’s knee and lower extremities and in denying a penalty for this violation. [October 5, 2011]
3.) The workers’ compensation judge erred in failing to award the right hinged knee support recommended by Dr. Muldowny and in denying a penalty for Venture’s denial of this treatment.[October 5, 2011]
4.) The workers’ compensation judge erred in denying a penalty for Venture’s denial of the Multaq medication prescribed by Dr. Jeffrey Chen. [May 18, 2011]
5.) The workers’ compensation judge erred in denying penalties for Venture’s failure to properly pay medical bills from Louisiana Emergency Physician and Lafayette General Medical center for date of service October 18, 2010 sent May 31, 2011.
6.) The workers’ compensation judge erred in not awarding a full penalty of $3,000.00 under La. R.S. 23:1201(G) for Venture’s failure to properly pay Lafayette General Medical Center bill for dates of service December 30 and 31, 2010.
7.) The workers’ compensation judge erred in failing to award a penalty for Venture’s denial of the Quest Diagnostics bill for date of service November 18, 2009.
8.) The workers’ compensation judge erred in only awarding $6,000.00 in attorney’s fees.

DEFENDANTS’ ASSIGNMENTS OF ERROR

Defendants assign the following two assignments of error:

1. Did the Workers’ Compensation Court err as a matter of law and fact in awarding a $3,000.00 penalty for failing to pay University Medical Center bills pursuant to a Consent Judgment submitted on May 16, 2011 and signed on May 23, 2011?
| s2. In light of the many issues that Plaintiff failed to prove, was the Workers’ Compensation Court’s award of attorney fees and costs excessive?

LAW AND ANALYSIS

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citations omitted).

In Green v. National Oilwell Varco, 10-1041, p. 3 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 358 (citations omitted), we explained:

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Furthermore, a legal error by the WCJ presents a question of law, which is reviewed by determining whether the WCJ’s ruling is legally right or wrong. LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d 1022.

Analysis of Mr. Burke’s Assignments of Error One, Two, and Three

The WCJ denied Mr. Burke’s claims for penalties and attorney fees for Defendants’ failure to timely authorize a caudal epidural steroid injection (“ESI”) recommended by Dr. Steven K. Staires. The WCJ further denied Mr. Burke’s request for penalties and attorney fees based on his request for aquatic physical 1 ntherapy, and his request for hinged knee support recommended by Dr. Muldowny. All three claims were denied on the basis that Mr. Burke failed to follow the required procedures provided by La.R.S. 23:1203.1(J). The statute now provides in pertinent part:

J. After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers’ compensation administration medical director on a form promulgated by the director. The medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.

The WCJ in oral reasons for judgment determined that the statute applied and dismissed the claims for failure to timely submit an appeal to the medical director, citing the above pertinent parts of La.R.S. 23:1203.1(J) and concluded, “[i]n this case, this procedure mandated in 23:1203.1 was not followed. Accordingly the court finds the claims are reasonably controverted.”

A panel of. this court in Cook v. Family Care Services, Inc. 13-108 (La.App. 3 Cir. 8/28/13), 121 So.3d 1274, upheld the procedure outlined in the statute and also concluded that La.R.S. 23:1203.1 is procedural and not substantive in nature as it does not reduce or limit the medical care to which the claimant was entitled before it was passed.

This court sitting en banc in the case of Romero v. Garan’s Inc., 13-482 (La.App. 3 Cir. 12/26/13), 130 So.3d 451, issued an opinion on December 20, 2013 overruling Cook.

[7The majority, in effect, held that in a case already pending before the WCJ, even if the medical dispute occurs after January 1, 2011, no appeal before the medical director need be filed and the new procedure under La.R.S. 23:1203.1 is not applicable. That decision is not final.

In any event, a resolution of that issue, based on the record before this court, is not necessary for a determination of the issue of whether or not penalties and attorney fees are owed for the failure of the Defendants to approve an ESI for Mr. Burke, formally requested by Dr. Staires on December 19, 2011, as there already was a trial on the merits of this claim.

Caulal Epidural Steroid Injection

At the hearing on June 27, 2012, Mr. Burke testified that he had not reviewed the medical records surrounding Defendants’ initial refusal of an ESI. All he knew was that an ESI had been refused, but he had ultimately received an ESI which had helped relieve his back pain.

Mr. Burke further testified in connection with the request for an ESI that prior to receiving the first injection from Dr. Staires, he was required to undergo an MRI. Mr. Burke was physically unable to undergo an MRI and ultimately underwent a CT scan. After the CT scan was performed, an ESI was approved.

At the hearing, counsel for the Defendants placed into evidence the specific medical records of Dr. Staires relating to the ESI, and correspondence to Dr. Staires in response to his December 19, 2011 formal request for an ESI.

As previously indicated, an ESI was initially mentioned by Dr. Staires in his December 14, 2011 report. The formal request for authorization for an ESI was made by Dr. Staires on December 19, 2011, which resulted in a December 21, | s2011 “peer-to-peer” phone call with Dr. Beaty from the Defendant’s utilization review team (“u.r.”) regarding the requested ESI.

On December 27, 2011, the u.r. team requested additional information. More specifically, the correspondence noted “that the most recent imaging studies submitted for review was performed in 2009, prior to the last surgery.” (Emphasis added).

On January, 5, 2012, the Defendant’s u.r. nurse case manager, Carla Daigle, requested a copy of Dr. Staires’ report from December 14, 2011, which was faxed to her as requested. Also on January 5, 2012, Dr. Staires noted the initial denial of the caudal ESI from the u.r. team, but also confirms “through Dr. Muldowny’s office that no imaging has been obtained since surgery in 2009.”

Dr. Staires also indicates “PLAN In as much as W/C reviewer has denied the recommended ESI at L4, right — on grounds that there is no post-op imaging, will order this now.” Dr. Staires then ordered an MRI for Mr. Burke. However, on January 19, 2012, Mr. Burke called Dr. Staires office to report that “he cannot do MRI at LSSH due to his size (he was five feet seven inches and weighed 357 pounds) and because he is claustrophobic. He needed to go to an open air facility.” Dr. Staires records reflect that between January 25, 2012 and January 30, 2012, it was determined that due to Mr. Burke’s size that an MRI was not possible and a CT scan was the only available option.

Dr. Staires then canceled the order for the MRI and on February 6, 2012, confirmed that Mr. Burke was “scheduled for a Myelogram/CT at Laborde Diagnostic on February 14, 2012.” Dr. Staires received the imaging on February 15, 2012, which supported the recommendation “for repeat ESI with caudal |9approach as previously recommended.” Dr. Staires, in his report from February 28, 2012, again formally requested an ESI.

On March 5, 2012, the u.r. team requested a copy of the “myelogram CT report,” which was faxed the same day by Dr. Staires’ office. On March 7, 2012, Dr. Staires had another telephone “peer-to-peer review.” This time it was with Dr. Ross, another doctor on Defendant’s u.r. team, and they “discussed exam findings documenting radiculopathy.” The two physicians also discussed the need for aquatic therapy required after the ESI. As a result, on March 8, 2012, both an ESI and aquatic therapy were approved and the ESI scheduled for March 13, 2012, at which time Mr. Burke received the requested ESI.

Plaintiff argues that Defendants cannot rely on a utilization review as a reasonable basis for the initial denial of an ESI formally requested by Dr. Staires on December 19, 2011, to avoid the payment of penalties and attorney fees. Plaintiff cites Magbee v. Fed. Exp., 2012-77 (La.App. 3 Cir. 12/12/12), 105 So.2d 1048, in support of this proposition. In Magbee, a panel of this court discussed the implications of an employer relying on a utilization review to deny medical benefits and stated:

In LeMelle v. Wal-Mart Stores, Inc., 04-527, pp. 10-11 (La.9/29/04), 883 So.2d 526, 552-53, this court set out the law pertaining to the award of penalties in instances where the employer has denied recommended treatment based on utilization review:
As stated in Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-0109 (La.3/7/97), 689 So.2d 1375, “the employer must rely on competent medical advice when the decision to deny the medical treatment is made.” The mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claim. Id.; see also Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. While a utilization review process has its place in the workers’ compensation process, this court has | inconsistently held that a long-distance diagnosis by a physician advisor is not an acceptable basis for denial of treatment and benefits. See id.

Id. at 1056-7.

Just the opposite occurred here. The record in this case, as discussed above, is clear that Defendants did not rely on the opinion of “a long-distance diagnosis by a physician advisor” in denying Dr. Staires initial December 19, 2011 formal request for an ESI.

Dr. Staires, after an initial telephone discussion with Dr. Beaty, agreed that additional testing on Mr. Burke was medically necessary, as the only testing in the record was done prior to his surgery in 2009. After the myelogram/CT testing was completed, Dr. Staires held an additional telephone discussion, this time with Dr. Ross, after which both the ESI and aquatic therapy were timely approved on March 8, 2012. Mr. Burke received the approved ESI on March 13, 2012, some five days later. Accordingly, this court finds that Plaintiffs claims for penalties and attorney fees for Defendants’ failure to approve an ESI were reasonably controverted. Thus, Plaintiffs first assignment of error is without merit.

Aquatic Physical Therapy and Hinged Knee Support

In this case, the WCJ also found after a full evidentiary hearing that the requested aquatic physical therapy and hinged knee support recommended by Dr. David Muldowny was not accident related, but was the result of an arthritic condition in Mr. Burke’s knee. Dr. Muldowny’s notes from May 17, 2011, clearly indicate that he did not relate Mr. Burke’s knee problems to his accident and noted, “[h]e has some arthritic changes in his knee which would be unrelated to his work-related accident.” The WCJ relied on this determination by Dr. Muldowny and properly found these two claims to be reasonably controverted by Defendants. His Infindings are reviewable under the manifest error standard and are not clearly wrong. Foster, 811 So.2d 1160; Tomasik v. LA State Veterans Affairs Office, 13-451 (La.App. 3 Cir. 11/6/13), 124 So.3d 613. Thus, Mr. Burke’s assignments of error two and three are without merit.

Analysis of Mr. Burke’s Assignments of Error Four, Five, Six, and Seven

We also find that Mr. Burke’s assignments of error four, five, six, and seven to be without merit for the reasons set forth in the WCJ’s oral reasons for judgment rendered on September 12, 2012, as summarized briefly below.

Assignment of Error Four

Defendant’s timely authorized a prescription for Multag prescribed by Dr. Jeffrey Chen on May 18, 2011, pursuant to La.R.S. 23:1201(E), which requires “[m]edical benefits payable under this chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” Defendants received the first written request for the prescription on May 19, 2011, and the Multag was authorized on May 31, 2011, well within the sixty day time period.

Assignment of Error Five

The WCJ correctly found, based on Evergreen Presbyterian Ministries v. Wallace, 07-313 (La.App. 3 Cir. 10/10/07), 968 So.2d 256, that Mr. Burke was not the proper party to make a claim for Defendants’ failure to prove they paid in full the bill from Lafayette General Medical Center for services rendered on October 18, 2010. Only the doctor or medical provider has the right to controvert the amount of the bill and the amount of the payment.

Assignment of Error Six

The WCJ found Defendants failed to timely pay the Lafayette General Medical Center bills for services rendered on December 30 and 31, 2010, within |12the sixty day period required by La.R.S. 23:1201(E). Written notice of these bills was received on March 11, 2011, and the bills were paid July 1, 2011, fourteen days after the mandatory sixty day time period within which to pay. The WCJ found; and we agree, that since the due date of the payment was after May 11, 2011, the cutoff date in the Consent Judgment, that these two bills were not included in the Consent Judgment. Though the bills were issued prior to the Consent Judgment, the bills were not due until after the May 11, 2011 cutoff in the Consent Judgment. Since Defendants paid the bills fourteen days after the sixty day due date, the WCJ awarded penalties of $700.00 pursuant to La.R.S. 23:1201(F), failure to pay an amount compensable under the law. As previously stated, Defendants have paid the $700.00 penalty and have not appealed this issue.

Mr. Burke, however does appeal the amount of the $700.00 penalty awarded by the WCJ and seeks an increase of the penalty to $3,000.00 for failure to pay an amount due pursuant to a judgment. We agree with the WCJ’s decision to impose the penalty pursuant to La.R.S. 23:1201(F). We find the award of statutory penalties in the amount of $700.00 is not manifestly erroneous. Green, 63 So.3d 354; Foster, 811 So.2d 1160; Tomasik, 124 So.3d 613; Magbee, 105 So.2d 1048.

Assignment of Error Seven

The WCJ also correctly found the November 18, 2009 Quest Diagnostic bill for laboratory work was not related to Mr. Burke’s work-related accident. The laboratory work was ordered for Mr. Burke’s pre-existing diabetic condition. The blood work was ordered by Dr. Dee Dee Luke in response to Mr. Burke’s elevated blood sugar level and was properly billed to his private health insurer.

| ^Analysis of Defendants’ Assignment of Error One

Defendants argue that the WCJ erred as a matter of fact and law in awarding Mr. Burke $3,000.00 in penalties for failure of Defendants to pay three UMC Bills dated October 8, 2009, October 13, 2009, and January 8, 2010, respectively pursuant to La.R.S. 23:1201(G).

The UMC Bills in question were originally sent on April 7, 2010. Defendants received notice of the UMC Bills on November 10, 2010, in response to the interrogatories and request for production of documents propounded to Mr. Burke in connection with his original 1008 Claim. Mr. Burke’s responses to discovery were the basis for the agreement of the parties to the May 23, 2011 Consent Judgment.

The WCJ correctly found that the UMC Bills were covered by the May 23, 2011 Consent Judgment between the parties and were included in Mr. Burke’s original 1008 Claim. Pursuant to the terms of the Consent Judgment, Defendants paid Mr. Burke, “$8,000.00 in penalties, attorney’s fees in amount of $8,000.00, plus expenses in the amount of $469.82 which covers all penalties and attorney’s fees which may have been raised through May 11, 2011 ” (emphasis added).

Defendants argued to the WCJ that “plaintiffs claim for penalties and attorney fees were part of the settlement in the prior consent judgment.” The WCJ never addressed Defendants’ argument that the issue was compromised or settled by the May 23, 2011 Consent Judgment, and thus, subject to res judicata. Instead [14the WCJ applied La.R.S. 23:1201(G) and awarded the $3,000.00 maximum penalty allowed for failure of Defendants to pay a “final non appealable judgment,” within thirty days. The WCJ’s award was based on a finding that the UMC Bills for an ultrasound of Mr. Burke’s kidneys were “necessary” for surgical clearance by Dr. David Muldowny prior to Mr. Burke’s work related lower back surgery.

In briefing to the court, Mr. Burke urges the application of the case of Morvant v. Shop Rite, Inc., 12-956 (La.App. 3 Cir. 3/27/13), 108 So.3d 1287, writ denied, 118 So.3d 400 (La.5/31/13), in seeking multiple penalties of $3,000.00 each pursuant to La.R.S. 23:1201(G) for Defendants’ denial of Mr. Burke’s claims for reasonable and necessary medical treatment. Alternatively, he argues Morvant supports the $3,000.00 penalty and $6,000.00 in attorney fees awarded by the WCJ.

As in this case, the parties in Morvant entered into a consent judgment. The defendants agreed to penalties and attorney fees and one additional week of compensation, “which settles all penalties and attorney fees which may have been raised as of August 16, 2010.” Mr. Morvant sought penalties and attorney fees for denial of treatment prior to the consent judgment. A panel of this court disregarded defendants’ argument that these claims were res judicata, and awarded penalties and attorney fees pursuant to La.R.S. 23:1201(G).

|1BIn Morvant, the court found claimant’s claims for penalties and attorney fees were not barred by the consent judgment, as it was too “cumbersome” to list “all contemplated medical treatment in a judgment.” Morvant, 108 So.3d at 1291. In Mr. Burke’s case, settlement of the UMC Bills was clearly contemplated by the parties, as the UMC Bills were included in the discovery responses that were a part of the basis of the May 23, 2011 Consent Judgment. We have affirmed the WCJ’s ruling that the bill for the knee therapy and hinged knee support were not related and were reasonably controverted. However, the WCJ did also find that the bill for the kidney ultrasound was not paid timely.

While the bills were incurred prior to the Consent Judgment and were subject to the terms of the Consent Judgment, the WCJ found that the UMC Bills, dated October 8 & 13, 2009 and January 8, 2010 in conjunction with the ultrasound of Mr. Burke’s kidneys were “reasonable and necessary” and required or ordered by Dr. Muldowny prior to his work-related surgery on Mr. Burke’s lower back. Dr. Mul-downy’s certified medical records, and in particular the Medical Narrative signed and dated by him on December 2, 2009, reflects he had “not reviewed any ultrasound reports (kidney) for surgery clearance.” If Dr. Muldowny had ordered or deemed it necessary for Mr. Burke to undergo an ultrasound of his kidneys prior to surgery, he likely would have found it necessary to review the results of the ultrasound testing prior to his performing surgery on Mr. Burke. In effect, defendant is arguing that it has been ordered to pay a penalty for a bill it never owed in the first place. However, if the UMC bill for the ultrasound was included in the consent judgment, then the employer has already conceded that the bills were work-related. Regardless, we must review the WCJ’s findings on this issue under the manifest error standard. The WCJ found factually that:

li (After reviewing the medical on a 10/8/2009 emergency department triage, it states, “Here for U.S. of kidneys. Referred by Dr. David Muldowney.” On the 10/8/2009 emergency room record it states, “Here for referral of U.S. kidneys, prior to spinal surgery for Dr. Muldowney.” It is clear from the records that this bill was incurred to obtain a surgery clearance. Also, it is clear that these bills were incurred prior to the consent judgment; and by the defendant’s own admission, they received written notice in November of 2010.
This Court finds the defendant violated the provision of Louisiana Revised Statute 23:1201-G by failing to pay the UMC bill for dates of service October 8 and 13, 2009, and January 8, 2010. Accordingly, the Court awards a Three Thousand Dollar penalty.

We cannot say that his findings are clearly wrong and affirm his ruling on this issue.

Analysis of Mr. Burke’s and Defendants’ Assignments of Error relating to Attorney Fees and Costs

Attorney Fees

Mr. Burke, in his eighth assignment of error, argues that the WCJ erred in awarding only $6,000.00 in attorney fees, which is less than half the total of $13, 475.00 sought by Mr. Burke’s attorney for seventy-seven hours of work on this case at an hourly rate of $175.00. In addition, Mr. Burke also seeks an additional award of attorney fees should he prevail on appeal and obtain additional penalties from Defendants.

Defendants, in their second assignment of error, seek a reduction in the $6,000.00 in attorney fees awarded should they prevail in reversing the $3,000.00 award of penalties connected -with the failure to pay three UMC Bills. Such an outcome would allow Mr. Burke recovery of only $700.00 in penalties for Defendant’s late payment, by fourteen , days, of two bills from Lafayette General Medical Center dated December 30 and 31, 2010. Defendants also seek a |17reduction in the $1,551.63 amount of costs awarded, based on failure of Mr. Burke to properly document the expenses associated with the hearing.

The WCJ stated in his oral reasons as follows: “[attorney’s fees: The Court has considered the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered by the claimant and the amount of time the attorney dedicated to the case. The Court sets a reasonable attorney’s fee in the amount of Six Thousand Dollars.”

Our supreme court, in McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.11/28/00), 773 So.2d 694, 700 (citations omitted), stated:

In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the fee awarded by the judge. The amount awarded rests within, the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.

“Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

118Given our supreme court’s directive in McCarroll, and this court’s ruling affirming the WCJ, we find no abuse of discretion in the WCJ’s award of $6,000.00 in statutory attorney fees. Since Mr. Burke did not prevail on any issue he appealed, no additional attorney fees for work done on appeal will be awarded to plaintiff.

Costs

Defendants also seek a reduction in the WCJ’s award of costs in the amount of $1,551.63. Defendants basically argue that Mr. Burke’s failure to prevail on any of his claims, save one, does not warrant the costs awarded. The record reflects that counsel for Defendants objected at the close of the hearing on June 27, 2012, to the failure of counsel for Mr. Burke to itemize and specifically identify the costs for postage, photocopying, mileage and telephone calls. The WCJ allowed counsel for Mr. Burke to “supplement with a breakdown of the expenses,” and then made the award of $1,551.63 in the judgment of November 7, 2012. The WCJ obviously considered the arguments of Defendants and concluded that there was enough of a “breakdown of the expenses” to support the award. We find no manifest error and affirm the judgment of the WCJ for costs and expenses.

DISPOSITION

For the foregoing reasons we affirm the WCJ’s ruling. The costs of this appeal are assessed to Robert Burke.

AFFIRMED.

      . The May 23, 2011 Consent Judgment is not listed in either the chronological or alphabetical index of the record. However, a copy of the Consent Judgment was submitted as “Defense Exhibit 18” and "Plaintiff's Exhibit 28” at the hearing before the WCJ.

      . Louisiana Civil Code Article 3080 states, "[a] compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” Louisiana Revised Statutes 13:4231 defines res judicata and its preclusive effects. Louisiana Revised Statutes 13:4231(1) provides, "[i]f the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.”

      . Louisiana Revised Statutes 23:1201(G) provides in pertinent part as quoted by the WCJ in his reasons:
      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... .The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.