author: JAMES F. McKAY III, Judge.

text:
    LIFETIME CONSTRUCTION, L.L.C. v. LAKE MARINA TOWER CONDOMINIUM ASSOCIATION, INC. Lifetime Construction, L.L.C. (Formerly Named COHPS, LLC) v. Lake Marina Tower Condominium Association, Inc.
    Nos. 2012-CA-0487, 2012-CA-0488.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.

      Larry M. Roedel, Benjamin R. Hunter, Christian J. Rhodes, Roedel Parsons Koch Blache Balhoff & McCollister, Baton Rouge, LA, for Plaintiff/Appellee.
    Jerry W. Sullivan, Leefe, Gibbs, Sullivan, Dupré & Aldous, Metairie, LA, for Defendant/Appellant.

      (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

_JjThe appellant, Lake Marina Tower Condominium Association, Inc., appeals the judgment of the trial court finding in favor of Lifetime Construction L.L.C. in the amount of $10,000.00 pursuant to the penalty provision on the dehumidification contract plus attorneys’ fees in the amount of $9,716.50.

The appellee/cross-appellant, Lifetime Construction L.L.C., appeals the trial court’s judgment denying its claims for damages pursuant to the air sampler contract and moldguard contract and the dismissal of it’s claims with prejudice, and the order that each party bear its own costs.

For the reasons that follow we affirm the trial court’s judgment but amend it to include the awarding of judicial interest on the judgment from the date of demand, April 2, 2008, as prayed for by Lifetime Construction L.L.C.

FACTS AND PROCEDURAL HISTORY

In August of 2005, as result of the effects of Hurricane Katrina, Lake Marina Towers (“LMT”), located at 800 Lake Marina Drive, in New Orleans sustained | ¡¡damage to both its common areas and numerous individual units. Lake Marina Tower Condominium Association Inc. (“Association”) is governed by its articles of incorporation and the association’s board of directors. The Association, through its then president, Francis DeBlanc, contracted with Lifetime Construction L.L.C. (“Lifetime”) (formally d/b/a/ COHPS L.L.C.) to perform construction services for the Association.

Hanover Insurance Company (“Hanover”) was the insurer for LMT. Lifetime, acting through a co-owner Richard Kee-ney, reached an agreement with the Association, acting through President Francis DeBlanc, that insurance proceeds would be paid directly to Lifetime for the initial demolition and rebuild work; individual condominium unit owners were free to contract with a contractor of their preference or hire Lifetime to perform work on their units. When Lifetime began its work, during November-December 2005, this direct payment to Lifetime by the Association was the insurance payment procedure that was followed. The work done under this initial agreement resulted in the first lawsuit (“Suit # 1”) between the parties being filed by Lifetime on February 1, 2007. That suit settled in a compromise and consequently did not proceed to trial. The basis of Suit # 1 was an assertion that Lifetime was owed $209,900.00 for work that it had completed but had not been paid for by the Association or the individual condo owners even though Hanover had already funded substantial dollars for Lifetime’s |3work to the Association. After Suit # 1 was filed, the balance owed to Lifetime had been paid down from$209,-000.00 to approximately $19,000.00.

Wayne Jablonowski, pursuant to the Declaration of Condominium Regime § 21(e), was appointed by the Association to act as Insurance Trustee. Bill LeCorgne was appointed to inspect and approve all construction work done by Lifetime or other contractors (selected by individual unit owners). In theory, Bill LeCorgne was to submit reports to Wayne Jablonowski who would then issue checks to Lifetime and various other contractors for the approved work.

As Lifetime was performing its initial inspection work, which was followed by demolition and remodeling work, it became apparent to all parties that dehumi-dification services, air sampling, and moldguard/firestopping services were required to return LMT to its proper condition. Lifetime performed some initial services through Tom Ponthieux, who had agreed to do a walk through with Hanover insurance adjusters to assess the damages and determine the remedial work that was necessary such as water damage, demolition work, moisture control, dehumidification and rebuilding work. Lifetime contends that it did not bill/invoice the Association for these initial inspections. As a result of these initial inspections, Lifetime asserts that the parties entered into three contracts. These three contracts were a dehumidification contract, executed on January 6, 2006, which provided for the installation of dehumidifiers; an air sampling contract, which Lifetime maintains was executed on January 12, 2006; and a moldguard/fires-topping services contract, which was signed on February 25, 2006. | ¿Lifetime maintains that all of these contracts provided that a general conditions provision applied as evidenced by an attached signed and dated document. In part, this general conditions provision provided for termination penalties of 15% of the remaining contract cost or at least $10,000.00 for each contract. Lifetime avers that although it was eventually paid in part for each of the three contracts, the Association wrongfully terminated its services, under the contracts, during the spring/summer of 2006. The record before us indicates that the Association, at its January 6, 2006 meeting, approved COHPS (Lifetime’s predecessor) to do de-humidification and air quality testing.

Based on the actions of the Association’s newly elected board of directors, Lifetime filed a second lawsuit, the case sub judice, for breach of contract against the Association on April 2, 2008. A bench trial was held on March 21, 2011, with a judgment rendered on December 14, 2011.

ASSIGNMENTS OF ERROR

On appeal, the Association asserts two assignments of error: 1.) the trial court erred in finding that Francis DeBlanc had the authority to bind the Association to alleged contracts with Lifetime; and 2.) the trial court erred in awarding Lifetime $9,716.50 in attorney’s fees.

In its cross-appeal, Lifetime raises the following two assignments of error: 1.) the trial court erred in failing to award judicial interest from the date of demand on its award of $10,000.00 pursuant to the penalty provision of the dehumidification contract and as prayed for in its petition for damages; and 2.) the atrial court erred in denying its claims for damages based on the Association’s breach and improper termination of the air sampling contract and the moldguard contract.

STANDARD OF REVIEW

While appellate courts review both fact and law, it is well-settled that the applicable standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. S.J. v. Lafayette Parish School Bd., 09-2195, p. 13 (La.7/6/10), 41 So.3d 1119, 1128. It is equally well-settled that an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State, Department of Public Safety & Corrections, 01-2128, pp. 13-14 (La.9/4/02), 825 So.2d 1134, 1144, citing Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). As the S.J. Court stated, “[i]n applying the manifestly erroneous clearly wrong standard to the findings ... appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.” Id., p. 13, 41 So.3d at 1128, quoting Rosell v. ESCO, 549 So.2d 840, 844, (La.1989). Thus, in order to reverse a factfinder’s determination under this standard of review, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong” (citation omitted). Id., p. 12, 41 So.3d at 1127.

|6Thus, we must determine whether the trial court judge’s factual conclusions in this matter had a reasonable factual basis or are clearly wrong. Sassone v. Doe, 11-1821, p. 3 (La.App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245-46.

We find that the trial court’s judgment was based squarely on factual and credibility determinations. As, such we will review this matter using a manifestly erroneous, clearly wrong standard of review.

DISCUSSION

The trial court in its reasons for judgment noted that:

The Declaration of Condominium Regime, Section 21(e), requires the association, in this situation, to retain an Insurance Trustee and all plans and specifications are to be submitted to and said Trustee for approval and payment.
Prior to retaining an Insurance Trustee, the Association at its January 5, 2006 meeting approved COHPS (plaintiffs predecessor), to do dehumidification and air quality testing.
The court finds that the Association through its then president, Francis De-Blanc, signed the contract for installation of dehumidifier and COHPS General Conditions on January 6, 2006, thus the basis for its judgment.
As to the other contracts, the court does not find that the General Conditions were signed and those claims are dismissed.
According to plaintiffs exhibits 28 and 29, the total fee incurred for pursuing this suit through trial was $13,885. The court reviewed the aforementioned exhibits in an attempt to ascertain what time and effort were used on the dehumidifier contract only. It was unable to do so. Therefore, the court exercised its discretion and awarded 70% of the total or $9,716.50 as reasonable attorney fees.

The Association in its first assignment of error asserts that the trial court erred in finding that Francis DeBlanc had the authority to bind the Association into contracts with Lifetime.

Louisiana courts have jurispruden-tially recognized the common law doctrine of apparent authority. The judicial understanding of the principles of apparent authority is analogous to the concept of putative mandatary set forth in La. C.C. 17art. 3021. See Walton Constr. Co., L.L.C. v. G.M. Horne & Co., Inc., 07-0145, p. 12 (La.App. 1 Cir. 2/20/08), 984 So.2d 827, 835-36. Under this theory, an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person, or to the community of which the third person is a member, that the agent is authorized to engage in the particular transaction. Id.

Louisiana jurisprudence created the doctrine of apparent authority in an effort to protect third parties “unauthorized acts of an apparent agent.” Boulos v. Morrison, 503 So.2d 1, 3 (La.1987). An agency relationship may be created by express agreement under Civil Code article 2985 or, when necessary to protect innocent third parties, it may be implied to exist under the apparent authority granted by the principal. Under the doctrine of apparent authority, an agency relationship may be formed even without the intent to do so. Anderson Window & Patio Co. v. Dumas, 560 So.2d 971, 975 (La.App. 4th Cir.1990). While a third party may not blindly rely upon an agent’s assertions of authority, if the principal’s words and conduct under the particular facts of the ease give the third party the reasonable belief that an agent has the authority to act for the principal, an agency relationship will be implied. Boulos, 503 So.2d at 3; See Salley v. Colonial Marine Indus., Inc., 95-2215, p. 15 (La.App. 4 Cir. 9/11/96), 680 So.2d 1242, 1250.

Here, it is undisputed that Francis DeBlanc was the president of the Association immediately following Hurricane Katrina until early 2006. It was Francis DeBlanc, acting in his capacity as president of the Association who [ ^initially met with Richard Keeney and Tom Ponthieux to facilitate the assessment of damage post-Katrina to LMT. It is implicit, as obviated by the Association’s actions, that there was work being performed and paid for by the Association to Lifetime from Hanover insurance proceeds. Clearly, the Association’s actions after the execution of the dehumidification contract, which was proposed and authorized during Francis DeBlanc’s tenure as president, indicates that the Association was a willing contracting party and intended to be bound by the terms of the contract. Lifetime clearly did not need to look any further into Francis DeBlanc’s authority to bind the Association.

The Association argues that the contract did not follow the procedures under the directives of the Declaration of Condominium Regime § 21(e) which it asserts needed the approval of Wayne Jablonowski, who was the acting insurance trustee for the Association, before contracting with Lifetime or paying Lifetime for its services. Wayne Jablonowski testified that he had a written contract with the Association, signed by Francis DeBlanc, as acting president of the Association. Yet, the actions of the Association demonstrate that if, and we emphasize if, the procedures pursuant to the Declaration of Condominium Regime § 21(e), were not followed, the Association’s board acquiesced to the authority of Francis DeBlanc, who was acting in capacity as president. As we noted above, the record before us indicates that the Association, at its January 6, 2006 meeting approved COHPS (Lifetime’s predecessor), to do dehumidification and air quality testing. However, the record is unclear as to the exact extent of Wayne Jablonowski’s involvement in 19the process. What is evident is that work was performed, bills were issued and monies were paid to Lifetime by the Association from insurance proceeds on the contracts in question. Consequently, it was reasonable for Lifetime to have relied on Francis De-Blanc’s authority to contractually bind the Association despite the Association’s invocation of the condominium regime clause. The question of the legitimacy of the contracts or Lifetime proving their damages does not hinge on Francis DeBlanc’s authority to bind the Association. The Association’s argument that Francis DeBlanc did not have the authority to bind the Association to contracts with Lifetime is without merit. Hence, the trial court properly held that the Association had in fact approved the dehumidification contract, that the Association entered into the contract and that it was binding and enforceable.

The Association also argues that the trial court erred in awarding Lifetime $9,716.50 in attorney’s fees.

The trial court is vested with great discretion in arriving at an award of attorneys’ fees. Troth Corp. v. Deutsch, Kerrigan & Stiles, L.L.P., 06-0457, p. 3 (La.App. 4 Cir. 1/24/07), 951 So.2d 1162, 1165 (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)). The exercise of this discretion will not be reversed on appeal without a showing of clear abuse of discretion. Id.

Based on Rule 1.5(a) of the Rules of Professional Conduct, the Louisiana Supreme Court has itemized the following considerations for determining the reasonableness of attorneys’ fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money | ,ninvolved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and the (10) the court’s own knowledge. State, Dept. of Transp. & Dev. v. Williamson, 597 So.2d 439, 442 (La.1992). A reasonable attorney’s fee is determined by the facts of an individual case. Gottsegen v. Diagnostic Imaging Services, 95-977, p. 7 (La.App. 5 Cir. 3/13/96), 672 So.2d 940, 943. The trial court has the ultimate discretion to determine the amount of attorneys’ fees based on the court’s own knowledge, on the evidence, and on the court’s observation of the case and the record. See Custonir-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441, p. 12 (La.App. 2 Cir. 12/8/99), 748 So.2d 594, 602-03. A court does not have to hear evidence concerning time spent or hourly rates charged in order to make an award since the record will reflect much of the services rendered. In re Andras, 410 So.2d 328, 331 (La.App. 4th Cir.1982); See Filson v. Windsor Court Hotel, 07-0756, p. 6-7 (La.App. 4 Cir. 7/23/08), 990 So.2d 63, 67.

Here, the trial court in its reasons for judgment recognized that there was a contract between the parties for dehumidi-fication but that it was unable to ascertain what time and effort were used on pursuing this suit on the dehumidification contract. The trial court in its reasons for judgment stated that: “the court exercised its discretion and awarded 70% of the total or $9,716.50 as reasonable attorney fees.” Based the above jurisprudence we cannot say that the trial court |T1was manifestly erroneous or clearly wrong in its ruling. Accordingly, we find no abuse of discretion in its findings.

Lifetime in its first assignment of error asserts that the trial court erred in failing to award interest from the date of judicial demand on its award of $10,000 pursuant to the penalty provision of the dehumidification contract and as prayed for in its petition for damages. We agree.

Lifetime, in its petition for damages pertinent to the alleged dehumidification, air sampling and moldguard/firestopping contracts on April, 2, 2008, specifically prayed for the recovery of legal interest. The trial court in its judgment found that the facts indicated that the parties entered into the dehumidification contract and that the penalty provisions of the dehumidification provision were proper. We agree with this decision. However, the trial court failed to award the interest on Lifetime’s recovery.

To begin, La. C.C.P. art.1921 specifically states that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” The Louisiana Code of Civil Procedure also provides for mandatory legal interest. The “shall” in article 1921 is mandatory, and the court lacks discretion to deny interest if interest is prayed for or is provided by law. In Bickham v. Bickham, 02-1307 (La.App. 1 Cir. 5/9/03), 849 So.2d 707, the First Circuit held that “[s]ince the word shall’ in statute providing that the court shall award interest in the judgment as prayed for or as provided by law* is mandatory, the court lacks discretion to deny interest if interest is prayed for or provided for by law.” Bickham v. Bickham, 02-1307, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 707, 710-711; Duplechain v. Jalili, 10-736, p. 8 112(La.App. 3 Cir. 12/8/10), 52 So.3d 1072, 1078-79, writ denied, 2011-0087 (La.3/25/11), 61 So.3d 664.

As there is merit to Lifetime’s argument, we amend the trial court’s judgment to award judicial interest from the date of demand, April 2, 2008, as prayed for by Lifetime Construction L.L.C.

Lifetime finally asserts in this second assignment of error that the trial court erred in denying its claims for damages based on the Association’s breach and improper termination of the air sampling contract and moldguard/firestopping contracts. Lifetime maintains that the trial court was correct in finding that Lifetime was entitled to a recovery based on a valid dehumidification contract but that it erred in denying its claims under the air sampling and moldguard/firestopping contracts. To reiterate, the trial obviously referencing the air sampling and mold-guarding/firestopping contracts, stated in its reasons for judgment that, “[a]s to the other contracts, the court does not find that the General Conditions were signed and those claims are dismissed.”

The record indicates that the trial court determined that the general conditions documents were not properly made part of the air sampling and moldguard contracts. After gleaning the record, it is unclear, based on assertions of questionable signatures and dates, that there was sufficient proof to conclude that the general condition documents were properly incorporated or properly attached to the two contracts in question. As such, we cannot disagree with the trial court’s determination.

Additionally, the trial court, in its judgment, found that the air sampler and mold-guard contracts were valid. It held that “IT IS FURTHER ORDERED, ADJUDICATED and DECREED, that Lifetime Construction claims for payment 11sof amounts allegedly due on the Air Sampler Contract and Moldguard Contract are denied and are hereby dismissed with prejudice and each party to bear it’s own cost.”

As the Association basically argues and the record before us demonstrates, the contracts in question were based on work Lifetime performed on a per unit basis and paid on an as-complete basis not a lump-sum. Lifetime’s actions during the time in question, pursuant to the contracts in question, and leading up to the instant matter, are consistent with working and being paid by the Association in a manner consistent with a per-unit, non-lump-sum arrangement. Lifetime failed to offer sufficient proof that the Association should be bound to pay the damages and penalties stipulated in the general conditions .documents that were not clearly incorporated into the air sampler and moldguard contracts.

Finally, the trial court essentially found that Lifetime failed to present evidence to sufficiently support their proposition that the Association was in breach of the sampling and moldguard contracts or that it improperly terminated Lifetime’s services. We agree. Lifetime failed to provide sufficient evidence to prove, with reasonable certainty, that these contracts were breached or that there is sustainable proof that profits were lost. There is no merit to Lifetime’s assertion that the Association breached the contracts and that there are damages owed to Lifetime.

CONCLUSION

We cannot conclude from the record before this Court that the trial court erred in its judgment with the exception that it failed to award legal interest, as prayed for in Lifetime’s petition for damages. Accordingly, we affirm the 114judgment of the trial court and amend the judgment to include the awarding of judicial interests from the date of demand, April 2, 2008.

AFFIRMED AS AMENDED

      . Tom Ponthieux and Richard Keeney are co-owners of Lifetime. Richard Keeney is also an individual unit owner.

      . CDC case #2007-1043.

      . Case # 2008-3577. This second suit was consolidated with Suit No. 1 2007-1043, prior to its resolution.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    Pedro SALAZAR v. COMMAND CONSTRUCTION, LLC and the Gray Insurance Company.
    No. 12-CA-680.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      William G. Legrand, Attorney at Law, Metairie, LA, for Claimant/Appellee, Pedro Salazar.
    Scott F. Davis, Attorney at Law, Metair-ie, LA, for Defendants/Appellants, Command Construction, LLC and The Gray Insurance Company.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

| ¿This is a workers’ compensation case in which the employer appeals a judgment in favor of the claimant that awarded disability benefits, medical expenses, and penalties and attorney’s fees. We affirm.

FACTS

On May 13, 2011, Pedro Salazar filed a Disputed Claim for Compensation against Command Construction, LLC. Salazar, a laborer classified as a carpenter, alleged that on March 23, 2011, he was injured on the job while lifting several heavy metal forms. He claimed injury in his shoulder/back area.

The employer contested the claim. It denied that the claimant had an accident in the course and scope of employment, denied that he had any present work-related disability, and denied that he had rights to any benefits whatsoever.

The case came to trial before an Office of Workers’ Compensation judge on April 16, 2012. The parties stipulated that the claimant was an employee of Command Construction on the date of the alleged accident, his average weekly wage was $453.38, and his workers’ compensation rate was $302.27. The parties also stipulated to the authenticity and admissibility of the underlying claim [{¡documentation, entered as joint exhibits, which included the forms submitted to the Office of Workers’ Compensation, medical records and medical bills, depositions or parts of depositions of two witnesses, and various other documents. Among them was correspondence from the workers’ compensation insurer dated April 5, 2011, informing the claimant, “We have completed our investigation ... and find that you have not sustained a compensable work related claim. Therefore, ... we must respectfully deny your claim.”

Trial Testimony

The claimant testified he injured his back while working for Command Construction at the Earhart Boulevard Job Site in New Orleans on the afternoon of March 23, 2011. He said he sustained the injury while lifting a heavy cement form. His brother, Raul Salazar, who also was an employee of Command Construction and was working near the claimant, did not see the accident, but confirmed that his brother was in pain at the end of the day. Bryan Monte, the crew supervisor, testified that his crew, including both the claimant and Raul Salazar, was working wrecking forms on the afternoon of March 23, 2011, which involved lifting forms that weighed up to 250 pounds and required three to four men to lift.

The claimant testified he completed the workday, but was unable to report the accident that day because Monte, his supervisor, was not in the area where he was working. Further, he did not know the extent of his injury when he left work. Both the claimant and Raul Salazar testified that the claimant attempted to reach Monte by phone that evening, but that he was unsuccessful.

Both the claimant and Raul Salazar testified that the claimant was not having any problem with his back prior to the accident and that he was now having backhand left shoulder problems because of the accident. They testified that the claimant was in a lot of pain on the evening of the accident, March 23, 2011. The claimant intended to tell his supervisor, Monte, on the following morning, March 24, 2011. When he arrived at the jobsite on the morning of March 24, 2011, however, he was met at his truck by Monte. Before he could tell him about the accident, Monte handed him a Personnel Action Form, which he wanted him to sign, involving an incident that occurred the day before at work between the claimant and another supervisor, Patrick Jackson. The claimant testified he did not sign the form because there was no place on the form for him to sign.

The claimant subsequently told Bryan Monte about his accident. Monte wrote an accident report and told the claimant he could go to the company doctor, but the claimant preferred to go to his family doctor.

The claimant was driven home that day by his brother, Raul Salazar. He went immediately to his family doctor, Dr. Michael Davis, on March 24, 2011, and told him of his low-back pain and left shoulder pain as a result of lifting at work the day before. The doctor told him to stay out of work from March 24, 2011 through March 29, 2011. The claimant reported this to the company.

Although he continued to feel pain, the claimant contacted the construction foreman, Byron Dupre, on March 29, 2011, because he was scheduled to return to work on March 30, 2011. He was told that he needed a full release form from the doctor.

When the claimant returned to his family doctor on April 1, 2011, Dr. Davis refused to release him because of his continuing left shoulder and low back pain. Dr. Davis informed Pedro Salazar that his clinic did not deal with workers’ compensation and referred him to the Industrial Medical Clinic. When he | .^contacted his employer about his medical treatment, he was told that he needed to meet with the company about the claim.

He subsequently complied with the company’s request by meeting with an adjuster with Gray Insurance Company, while he was unrepresented. His claim was ultimately denied by Gray Insurance Company in a letter dated April 5, 2011.

After seeking counsel, the claimant saw Dr. F. Allen Johnston, an orthopedic surgeon, on April 20, 2011. He was taken out of work indefinitely and placed on medication. He had follow-up visits on June 1, July 13, and August 24, 2011. Dr. Johnston ordered him to refrain from working. Physical therapy was prescribed for the claimant’s lower back and shoulder, but it was not authorized.

On September 6, 2011, the claimant sought therapy and treatment with Louisiana Rehabilitation and Spine Institute, LLC, and Dr. Ward Sudderth. The claimant has continued to receive therapy and treatment. He has been deemed temporarily totally disabled and not fit for duty by his doctors. The medical records are uncontroverted. The claimant has not worked since the day of the accident, March 23, 2011.

The employer contested that any accident occurred, relying on testimony of other witnesses that contradicted the claimant’s. The employer sought to establish numerous circumstances that discredited or cast doubt on the claimant’s version of events. The employer asserted the claimant did not report the accident on the day of the alleged accident; instead, the claimant showed up for work the day following the supposed accident dressed and ready to work. It was only after the claimant was told he was being reprimanded for an argument with a supervisor the day before and sent home that he first reported an accident. None of the potential witnesses identified by the claimant himself as being in the vicinity of the alleged |fiaccident saw or recalled any accident. The claimant called the jobsite foreman, Byron Dupre, days after the accident, indicating that he wanted to return to work.

Further, the claimant’s brother, who testified on behalf of the claimant, did not see the accident, but heard about it from the claimant. Counsel for the employer elicited testimony from Raul Salazar that he had been paying the living expenses of the claimant ■ because the claimant had not worked since March 23, 2011.

Ruling of the Court

In written Reasons for Judgment, the judge found as follows, in pertinent part:

Although there was contradictory testimony concerning the occurrence of the accident, the occurrence was corroborated by the medical report of Dr. Michael Davis, which stated, “Pain in back after lifting at work at the end of day no acute injury reported.” Dr. Davis’ report was dated March 24, 2011, the day after the accident, and it confirmed that the claimant was disabled by the injury. In addition, Dr. Allen Johnston’s report dated April 20, 2011, corroborates the occurrence of the accident and injuries on March 23, 2011, and also that the claimant was disabled by the injury. Further, Dr. Ward Sudderth’s report dated March 14, 2012 confirms that injuries were connected to the job accident of March 23, 2011, that the claimant is still under treatment, and that the claimant is disabled. The claimant was working before the accident, but has been unable to return to work since the accident.

Noting there was conflicting testimony, conjecture and speculation concerning whether the accident occurred, the judge found that the claimant gave | consistent testimony concerning the occurrence of the accident to the doctors and his employer. The claimant reported the injury to his supervisor, Bryan Monte, the day after the accident. The accident was corroborated by Raul Salazar, the claimant’s brother. The claimant’s co-workers testified they did not recall the accident. The court discussed the conflicts in the testimony as follows:

Testimony was elicited from vai’ious witnesses. The witnesses gave conflicting testimony concerning the occurrence of the accident. Some of the co-workers stated that they did not recall [an] accident. There was conjecture and speculation concerning whether the accident occurred. This court had to apply the evidence and law to the facts which were pertinent to this case.
The court had to make credibility determinations of the witnesses. There were variations in the witnesses “demeanor and voice tones”. The court as fact finder had to determine the credibility of such witness, and the weight which would be given to each witnesses testimony. There was a “parade of witnesses” by the employer “denying or not recalling” the accident.
The claimant has met the requisite burden of proof for the work related accident by:
(1) His testimony and witnesses testimony
(2) Corroboration by Raul Salazar of his injury and disability
(3) The totality of the medical records of all doctors introduced into evidence corroborating accident, injury, and disability.
(4) All other evidence, witnesses, and laws.
The claimant went to the doctor the next day after the accident. He gave consistent testimony to the doctors. His testimony is corroborated by the circumstances following the accident. No other evidence discredits his entitlement to benefits. The differences in circumstance concerning the accident were resolved in the claimant’s favor by the testimony and evidence presented.
In conclusion, the court stated,
The claimant herein has met the requisite burden of proof to establish that the accident occurred during the course and scope of his employment. Additionally, he has [ ¡¡proven a causal connexity between the accident and his disability.
Having considered the testimony, evidence, and law, the court rules that judgment is rendered in favor of the claimant and against the defendants. The evidence confirmed that the claimant was injured by accident during the course and scope of his employment with Command Construction Industries, LLC on March 23, 2011. The claimant is entitled to receive medical expenses, medication expenses, indemnity, travel expenses, penalties, attorney’s fees, and any other applicable workers’ compensation benefits.

In the judgment rendered on June 1, 2012, the workers’ compensation judge ruled that Pedro Salazar was injured by an accident in the course and scope of employment on March 23, 2011; that he is entitled to temporary total disability benefits from that date through the present and continuing; that he is entitled to payment of all medical, medication and transportation expenses; that the employer failed to reasonably controvert the claim or to pay benefits as required; and that the claimant is entitled to multiple penalties and attorney’s fees for failure to timely pay medical bills, medication expenses, transportation expenses, and weekly indemnity benefits. The judge assessed penalties totaling $8,000 and attorney’s fees of $8,000.

ARGUMENTS

On appeal, the employer contests the court’s findings that the claimant met his burden of proof that there was an accident and that the employer did not reasonably controvert the claim. It also contests the amount of penalties and attorney’s fees awarded, and complains the court failed to recognize the parties’ stipulation to the claimant’s average weekly wage amount. The employer asserts the claimant failed to meet his burden of proof that there was a work-related 19accident because there were no eyewitnesses to the accident; the claimant’s only favorable witness was his brother, who did not himself witness the accident; and the claimant did not report the accident until after he found out he was being reprimanded for an argument with another employee. Based on those facts, the employer contends it reasonably controverted the claim, had articulable and objective reasons and should not have been cast for penalties and attorney’s fees.

The employer does not dispute that the claimant is injured, but disputes that the injury is compensable.

In opposition to the employer’s arguments on appeal, the claimant asserts that he proved the occurrence of an accident by a preponderance of the evidence, considering his own testimony, his brother’s testimony, and the uncontradicted medical evidence. He contends his co-workers’ testimony should be given little weight because they were unable to remember the day’s events, even whether they had been working at breaking down the metal concrete forms, although both the claimant, his brother, and the supervisor, Bryan Monte, testified that the crew had been lifting the metal forms.

The claimant contends the employer’s arguments reflect a distorted view of the record. He testified in his deposition that his brother was working with him, but said at trial his brother was in the area at the time, but was not immediately next to the claimant when the injury occurred. The claimant said he was unsure which of the crew members he named as being on the job was actually helping him lift the particular form that caused the injury.

Further, he asserts his willingness to work — showing up on the day after he was injured dressed for work — cannot be construed as objective evidence of his ability to safely work, but only of his fear of losing his wages. The claimant | incontends the mere fact that he was dressed in work clothes has no bearing on the nature and extent of his injury.

LAW AND ANALYSIS

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 630 So.2d 733, 737 (La.1994).

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” 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, after reviewing the record in its entirety. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. [Citations omitted.]

Id. at 737-738.

“To be entitled to workers’ compensation benefits, the claimant must prove that there was a work-related accident, resulting in a disability that was caused by the accident. The claimant bears the burden of establishing this causal connection by a reasonable preponderance of the evidence.” Lachney v. Fertitta Excavating Contractor Inc., 07-885, p. 10 (La.App. 5 Cir. 4/15/08), 984 So.2d 887, 892.

Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.

In Maiurano v. Carriere-Stumm, Inc., 2007-0225, p. 2 (La.App. 4 Cir. 10/24/07), 970 So.2d 652, 654, writ not considered sub nom., Maiurano v. Carrier-Stumm, Inc., 2007-2267 (La.1/25/08), 973 So.2d 747, and unit denied sub nom., Maiurano v. Carrier-Stumm, Inc., 2007-2267 (La.3/28/08), 978 So.2d 306.

In a workman’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence i.e., “the testimony, as a whole, must show that more probably than the employment accident caused the disability.” The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause.
In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. [Citations omitted.]

West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979).

“A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.” West, 371 So.2d at 1149; Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977).

A worker’s testimony can be corroborated by testimony from workers, spouses, or friends. Nelson v. Roadway Exp., Inc., 588 So.2d 350, 353 (La.1991). “An accident at work can be proven by a claimant’s uncontradicted testimony, corroborated by the medical evidence. Testimony of fellow employees can also corroborate an accident which produces delayed symptoms of serious injury.” (Citations omitted.) Id. “The full consequences of a disabling accident are not | ^always apparent when the injury occurs.” Id. “Thus, an employee who finishes a day’s work without reporting an accident is not barred from recovering compensation.” Id. Here, as in the Nelson case, the claimant’s manual labor was sufficiently strenuous to cause injury, and there was no evidence that anything else caused his disability. Id. at 353-354.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Only the factfinder can be aware of the variations in demeanor and tone of voice that bear heavily on the listener’s understanding and belief in what is said. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the Court of Appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Johnson v. Lee, 00-78, pp. 6-7 (La.App. 5 Cir. 5/30/00), 760 So.2d 1273, 1277, citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

Applying the jurisprudence to the facts here, in light of the workers’ compensation judge’s express findings on credibility of the witnesses, we find no basis to disturb the court’s ruling that the claimant was injured on the job as claimed.

Penalties and Attorney’s Fees

The workers’ compensation court awarded $8,000 in penalties (the statutory maximum) and $8,000 in attorney’s fees. The employer contends the amounts of the awards for penalties and attorney’s fees were excessive, unreasonable, and not supported by the evidence. The employer asserts the only basis for awarding a | ^penalty was the denial of the entire claim on the basis that there was no accident. It contends that only one $2,000 penalty should have been awarded for overall denial of the claim or, at most, $2,000 for failure to pay indemnity and another $2,000 for failure to pay medical expenses.

La. R.S. 23:1201(F) provides that failure to provide timely payment as set out in the statute shall result in the assessment of a penalty in an amount up to the greater of 12% of any unpaid compensation or medical benefits, or $50 per calendar day for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim. The statute provides further, however, that the $50 per calendar day penalty shall not exceed a maximum of $2,000 in the aggregate for any claim. Finally, the statute sets the maximum amount of penalties that may be imposed at a hearing on the merits, regardless of the number of penalties that might be imposed, at $8,000. The penalty subsection does not apply “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2).

The unambiguous language of La. R.S. 23:1201 clearly establishes that penalties and attorney fees for failure to timely pay benefits shall be assessed unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. Unreasonably controverting a claim, which is the exception at issue in this case, requires action of a less egregious nature than that required for arbitrary and capricious behavior. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.
The phrase “reasonably controverted,” on the other hand, mandates a different standard. In general, one can surmise from the plain meaning of the words making up | 14the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. This definition is in accord with that presently used by the lower courts to determine whether penalties and attorney fees are owed.... If an employer or insurer reasonably controverts a claim and then becomes aware of information that makes his controversion of that claim unreasonable, he must then pay the benefits owed or be subject to penalties and attorney fees from that point forward. [Footnotes, citations and parenthetical quotations omitted.]

Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-10 (La.12/1/98), 721 So.2d 885, 890-91.

The purpose of imposition of penalties and attorney’s fees is to discourage indifference and undesirable conduct by employers and insurers. Awards of penalties and attorney’s fees in workers’ compensation eases are essentially penal in nature. The crucial inquiry in determining whether to impose penalties and attorney’s fees on an employer is whether the employer had an articulate and objective reason to deny benefits at the time it took action. The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. The crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action. [Citations omitted.]

Richert v. Schindler Elevator Corp., 11-1099, pp. 9-10 (La.App. 5 Cir. 6/28/12), 97 So.3d 487, 493, writ denied, 2012-1760 (La. 11/2/12), 99 So.3d 677.

| ^Considering the Reasons for Judgment given by the workers’ compensation judge, we are unable to find the court was manifestly erroneous in determining the employer here did not reasonably controvert the claim and, hence, that the claimant is entitled to statutory penalties and attorney’s fees.

As for the amount of the awards, the workers’ compensation judge obviously applied the maximum $2,000 penalty to each of the categories of payments that were not made — indemnity benefits, medical bills, medication expenses, and transportation costs — resulting in the total of $8,000. The employer argues there was no evidence at trial that any transportation payment or reimbursement was requested. We find no merit to that argument, however, because the employer’s total rejection of the claimant’s claims and denial of any liability to him, contained in both the letter from the workers’ compensation insurer denying the claim, as well as the Answer to the Disputed Claim for Compensation, was a waiver of any further requirement of written notice or delay for the imposition of penalties and attorney fees. See Bushnett v. S. Farm Bureau Cas. Ins. Co., 271 So.2d 267, 271 (La.App. 3rd Cir.1972).

We find no manifest error in the court’s award of the maximum penalties for the employer’s refusal to pay the claimant. Similarly, we find the attorney’s fee award is not unreasonable. See Richert, supra.

The claimant has requested, via his appellate brief, an increase in the attorney’s fee award for defending this appeal.

“An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” Richert, 11-1099 at p. 11, 97 So.3d at 494.

11fiAn appellee who desires to have the judgment modified, revised, or reversed in part must answer the appeal. La. C.C.P. art. 2133(A). Where the appel-lee neither appeals from the judgment nor answers the appeal, but instead only requests the additional fees in brief to this Court, we cannot grant additional fees. La. C.C.P. art. 2133; Reilly v. Gene Ducote Volkswagen, Inc., 549 So.2d 428, 434 (La.App. 5th Cir.1989); Anderson v. Visa, Ltd., 478 So.2d 1346 (La.App. 5th Cir. 1985). Accordingly, the claimant’s request for additional attorney’s fees for this appeal is denied.

We note that the average weekly wage, as stipulated by the parties, is $453.38, not the amount mentioned in the Reasons for Judgment, and the workers’ compensation rate is $302.27.

Reasons for judgment are not part of the official judgment which the trial judge signs or from which appeals are taken. Blanke v. Duffy, 05-829, pp. 2-3 (La.App. 5 Cir. 3/28/06), 927 So.2d 540, 541; Parish of St. Charles v. Young, 99-411, p. 3 (La.App. 5 Cir. 12/15/99), 750 So.2d 276, 278. Therefore, we need not amend the judgment, because the average weekly wage amount was not included in it.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED

      . The workers’ compensation insurer, The Gray Insurance Company, is also a defendant-appellant. We include it under the appellation ''employer.”

      . Dr. Sudderth's report dated March 14, 2012, lists the diagnosis as lumbosacral sprain, lumbosacral HNP, lumbosacral radi-culopathy, cervical sprain, left shoulder sprain, and left shoulder derangement.

      . In the Findings of Fact, the judge erroneously stated that the claimant's average weekly wage is $520.00, although the parties had stipulated that the average weekly wage is $453.38.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Tyrone A. MURRAY.
    Nos. 12-378, 12-379.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Charles A. Riddle, III, District Attorney, 12th JDC, Miche Moreau, Assistant District Attorney, Marksville, LA, for Plaintiff/Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Charles, LA, for Defendant/Appellant, Tyrone A. Murray.
    Tyrone A. Murray, Kinder, LA, for Defendant/Appellant, Tyrone A. Murray, Pro Se.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

|! Defendant, Tyrone A. Murray, was indicted on April 15, 2010, for the aggravated rape of D.A., a violation of La.R.S. 14:42, under docket number 155970. D.A. was under the age of thirteen at the time. Defendant was also indicted for oral sexual battery, a violation of La.R.S. 14:43.3, under docket number 155971. He was charged under docket number 155972 with molestation of a juvenile, a violation of La.R.S. 14:81.2.

On May 17, 2011, Defendant pled guilty to the reduced charge of molestation of a juvenile under docket number 155970 and to oral sexual battery under docket number 155971 pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant steadfastly maintained his innocence but stated he wished to enter a guilty plea as being in his best interest. The trial court found Defendant was making a knowing and intelligent decision in his best interest and accepted the plea.

The original charge of molestation of a juvenile filed under docket number 155972 was nolle prossed. Further, the State agreed not to charge Defendant as a multiple offender. The trial court sentenced Defendant to twenty-five years at hard labor, without benefit of probation, parole, or suspension of sentence on each count, without diminution for good behavior, and with the sentences to run concurrently.

Defendant then filed a motion to withdraw his guilty plea on June 27, 2011. Defendant’s pro se motion to withdraw his guilty plea alleged solely (and erroneously) that La.Code Crim.P. art. 559(B) permitted him to withdraw the plea within thirty days of sentencing. At the hearing of the motion to withdraw the plea, defense counsel expanded the motion to include the argument that ^notification of registration as a sex offender “has to be explained to the defendant in writing before the sentence is handed down.”

The trial court denied the motion on December 13, 2011. He found Defendant did not show the Boykin colloquy was defective, and Defendant made “a knowing and intelligent appearance in his boykin [sic] examination.” The trial court held Defendant “failed to provide ... any legal basis” on which to allow him to withdraw his guilty plea.

Defendant filed these two separate appeals in this court and asked for them to be consolidated. However, this court dismissed the appeal of docket number 155971 because the docket number was not included on the motion for appeal. State v. Murray, 12-378 (La.App. 3 Cir. 5/23/12), 92 So.3d 591, writ granted, case remanded, 12-1414 (La.12/14/12), 104 So.3d 419. Defendant applied for writs with the Louisiana Supreme Court challenging the dismissal of his appeal.

This court withheld ruling on the appeal of docket number 155970 pending the supreme court’s ruling. On December 14, 2012, the supreme court reinstated Defendant’s appeal of docket number 155971 and remanded the matter with instructions to consolidate the two appeals. Id. This court consolidated the matters on January 14, 2013, per the supreme court’s instructions.

Defendant now appeals his convictions on grounds his guilty plea was not knowingly and intelligently made, he was not advised of the requirements regarding sex offender registration and notification. Finally, Defendant asserts that the trial court erred in denying the motion to withdraw his guilty plea.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

JoFACTS:

Defendant pled guilty to oral sexual battery and molestation of a juvenile involving D.A., a child under the age of thirteen.

ASSIGNMENT OF ERROR NO. 1:

The first assignment of error in Defendant’s consolidated appeals alleges he should be allowed to withdraw his guilty plea because the State failed to establish a factual basis for the charges as required by Alford, 400 U.S. 25, 91 S.Ct. 160, when the trial court accepted his plea.

Defendant argues his “best interest” plea was not made knowingly and intelligently. Thus, it is constitutionally infirm and must be set aside. He contends the plea was invalid because the State failed to establish a factual basis for the charge as required by Alford, 400 U.S. 25, 91 S.Ct. 160, when the trial court accepted his plea. This court may consider this argument even though Defendant did not raise it in his motion to withdraw because of the constitutional nature of the claim. State v. Farris, 10-644 (La.App. 3 Cir. 12/8/10), 53 So.3d 537 (citing State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36).

The Supreme Court held in Alford, 400 U.S. 25, 91 S.Ct. 160, that a defendant may enter a plea of guilty while still maintaining his innocence of the charge. An Alford plea puts the trial court on notice that it needs to make a judicial finding of a significant factual basis for the plea. State v. Sutton, 04-88 (La.App. 8 Cir. 7/7/04), 879 So.2d 419, unit denied, 04-2617 (La.6/24/05), 904 So.2d 730. This court has held an Alford plea puts the trial court “on notice that a substantial basis of guilt must be placed into the record.” State v. J.S., 10-1233, p. 2 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185, 1188 (citing State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745).

14At the plea hearing in the case at bar, the trial court never asked the State to put a factual basis for the charge on the record. The trial judge discussed the meaning of the original and reduced charges and the potential sentences for each. The trial court determined Defendant believed the plea was in his best interest. Toward the end of the hearing, the trial court stated:

Okay. The state claims that through a grand jury indictment that during the last half of two thousand nine you did commit acts of molestation of a juvenile and oral sexual battery upon a juvenile with the initials D.A. who was under thirteen years of age. Do you understand that is the claim being made in the indictment by the grand jury?

Defendant responded, “[y]es, sir.” The trial court then accepted the best interest plea, noted Defendant’s waiver of sentencing delays, and imposed sentence.

In State v. Guilbeau, 11-99 (La.App. 3 Cir. 6/22/11), 71 So.3d 1020, the defendant was charged with two counts of second degree battery. At the plea hearing on both charges, the defendant mentioned he was struck first, before he hit anyone. This court determined that statement was sufficient to raise the defense of justification and thereby “put the trial court on notice that a more detailed factual basis was needed to support the plea.” Id. at 1029.

This court “conditionally affirmed [the defendant’s conviction and sentence] on the evidence in the record on appeal.” Id. at 1030. Accordingly, the panel in Guilbeau remanded the case and ordered the trial court to conduct a hearing pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), to allow the State the opportunity to present a sufficient factual basis for both counts of second degree battery and noted the trial court should vacate the plea and sentence if the State failed to do so. The defendant could then appeal any adverse ruling on that issue. This disposition reflects the remand procedures set out in State v. R.W.W., 506-1253 (La.App. 3 Cir. 3/7/07), 953 So.2d 131, unit denied, 07-820 (La.3/27/09), 5 So.3d 130.

Based on our result in Guilbeau, 71 So.3d 1020, we conditionally affirm Defendant’s convictions and sentence based on the evidence in the record on appeal. Additionally, we remand the matter and order the trial court to conduct an additional Boykin hearing, within forty-five days of the date of the opinion, to allow the State the opportunity to present a sufficient factual basis for the guilty pleas to oral sexual battery and molestation of a juvenile. Additionally, we instruct the trial court to vacate the pleas and sentences in the event the State fails to present a sufficient factual basis for the pleas. Defendant may appeal from any adverse ruling on the issue of whether the factual basis is sufficient to support the plea, and, in the absence of such an appeal, Defendant’s conviction is affirmed.

ASSIGNMENT OF ERROR NO. 2:

Defendant alleges the trial court erred in failing to set aside the guilty plea because he was not advised of the sex offender registration and notification requirements. Louisiana Revised Statutes 15:543(A) requires the court to “provide written notification” of registration and notification requirements for sex offenders. The statute requires the court to “use the form contained in R.S. 15:543.1” and provide a copy to the offender. The notice must be included “on any guilty plea forms and judgment and sentence forms provided to the defendant, and an entry shall be made in the court minutes stating that the written notification was provided to such offenders.” La.R.S. 15:543(A). “[N]otice after a guilty plea has been entered and accepted by the court amounts to untimely notice under the statute, especially since the defendant has no absolute right at the district court level to withdraw a previously entered plea of guilty under L.C.Cr.P. article 559[,]” allowing the withdrawal of a guilty plea only before sentencing. State v. Calhoun, 696-786, p. 7 (La.5/20/97), 694 So.2d 909, 913. Failure to timely notify a defendant of the requirements “is a factor that can undercut the voluntary nature of a guilty plea.” Id. at 914 n. 6.

At the hearing of the motion to withdraw, Freeman Ford, an administrative assistant with the public defender’s office, testified that he did not tell Defendant of the registration and notification requirements for convicted sex offenders. However, he thought Defendant may have asked about the requirements, and Defendant’s attorney mentioned the requirements to him.

Defendant’s attorney, George Higgins, likewise testified at the hearing after Defendant waived his attorney/client privilege. Mr. Higgins would “be shocked if [Defendant] didn’t” receive written notification that he would have to register as a sex offender, but he did not recall seeing such a notification. When asked directly whether Defendant was given any notification in writing, he responded, “I don’t know.... I don’t recall that happening.” Mr. Higgins recommended Defendant accept the plea bargain because purportedly favorable evidence was not what he expected it to be, and he would have no chance of a successful trial unless Defendant testified. However, Mr. Higgins believed the possibility of Defendant’s testimony “would be as bad as anything.”

Defendant did testify at the hearing to withdraw his pleas. He stated he was never given “any paper copies of law about sex offender registration.” No one ever gave him any forms outlining the laws related to sex offender registration or to fill out for registration. Neither Mr. Ford nor Mr. Higgins told him he would have to register as a sex offender. According to Defendant’s testimony, knowledge of the requirements would have influenced his decision to accept the plea agreement.

17Puring sentencing, Defendant asked the trial judge a question about whether he would serve “the whole twenty five” of his sentence “flat.” The trial judge replied, “[y]ou do flat time and when you finish your time then you’ll be subject to the rules of the Department of Corrections on sex offender registration, notification and all parole rules that they have at that time.” Defendant asked no further questions. However, this exchange took place after the trial court had accepted Defendant’s plea, as the trial court was sentencing him.

The record does not contain a plea form. The minutes of the plea hearing do not indicate Defendant was told anything about notification and registration requirements. Review of the transcript shows the trial court said nothing to Defendant about the requirements prior to accepting the plea.

Nothing in the record indicates the trial court timely notified Defendant of the notification and registration requirements for sex offenders. However, Defendant testified he pled guilty because his lawyers explained to him a six-year-old girl was going to testify he had raped her, and the evidence showed she had in fact been raped. They told him he would go to prison for the rest of his life if he were convicted. Lack of notice is only one of the factors to be considered in a motion to withdraw a guilty plea; it does not, by itself, determine the issue. Calhoun, 694 So.2d 909.

Therefore, we find that, when compared to Defendant’s other reasons for entering into a guilty plea, the failure to notify Defendant of the notification and registration requirements was not a factor that undercut the voluntary nature of the plea. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3:

Defendant contends the trial court should have concluded his “best interest” plea was not knowingly and intelligently made, and it should have granted his 1 amotion to withdraw the plea. He argues his plea agreement applied to both charges so that it stands or falls in totality. Defendant’s assignments of error apply equally to both convictions. Clearly, this assignment is moot in light of the Louisiana Supreme Court’s remand.

DISPOSITION:

Defendant’s convictions and sentences are conditionally affirmed based on our order to remand the matter for the trial court to conduct an additional Boykin hearing, within forty-five days of the date of the opinion, to allow the State the opportunity to present a sufficient factual basis for the guilty pleas to oral sexual battery and molestation of a juvenile. Further, we instruct the trial coui’t to vacate the pleas and sentences in the event that the State fails to present a sufficient factual basis for the pleas. Finally, we instruct the trial court to inform the Defendant that he may appeal from any adverse ruling on the issue of whether the factual basis is sufficient to support the plea, and, in the absence of such an appeal, Defendant’s convictions are affirmed.

CONDITIONALLY AFFIRMED AND REMANDED, WITH INSTRUCTIONS.

      . Initials are used to protect the identity of the victim pursuant to La.R.S. 46:1844(W).