author: MAX N. TOBIAS, JR., Judge. MAX N. TOBIAS, JR., Judge.

text:
    T. Semmes FAVROT v. James P. FAVROT.
    No. 2012-CA-1573.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 1, 2013.
    Opinion Modified on Rehearing May 22, 2013.
    Rehearing Denied June 19, 2013.

      Philip A. Franco, Christine S. Fortuna-to, Diana C. Surprenant, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellant.
    Jack M. Alltmont, Sessions Fishman Nathan & Israel, L.L.P., Alicia M. Bendana, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

Lin this declaratory judgment action, T. Semmes Favrot (“Semmes”) appeals the trial court’s granting of summary judgment in favor of his brother, James Favrot (“James”), as trustee of the H.M. Favrot, Jr. Trust # 3 (the “Trust”). The judgment (1) assesses all attorney’s fees and costs incurred by the Trust in this litigation solely against Semmes’ beneficial interest in the Trust, and (2) authorizes the distribution of the Trust’s assets to the Trust beneficiaries, but more particularly, the distribution of Semmes’ beneficial interest in the Trust to him, thereby severing his interest in the Trust. Semmes also appeals the trial court’s dismissal of his motion to compel discovery as moot. For the reasons that follow, we affirm the trial court’s judgment in part, reverse in part, amend in part, and render a decision in this matter.

FACTS AND PROCEDURAL BACKGROUND

The Trust was established by Mr. Fav-rot and his wife, Kathleen Gibbons Favrot, in favor of their four children, Semmes, James, Kathleen, and Caroline, 12bestowing each child with a 25% beneficial interest therein. James is the trustee of the Trust. In March 2008, following his dismissal from the family business, Semmes filed an action to remove James as the trustee, alleging breaches of his fiduciary duties. By way of a supplemental and amending petition, Semmes further sought damages against James for losses he purportedly sustained as a result of James’ alleged improper acts as trustee. Kathleen, Caroline, Mr. Favrot, and William Henry Shane, Jr. (“Shane”) intervened in the lawsuit for purposes of supporting James’ position that he had not violated any fiduciary duties owed, and also seeking to have him remain as trustee of the Trust.

During the course of the litigation, James filed a reconventional demand requesting: (1) a declaratory judgment that would, in effect, partition the Trust assets equally among the four beneficiaries and remove James as the trustee over Sem-mes’ portion of the Trust’s assets, and (2) a judgment assessing the entirety of the Trust’s defense costs, including attorney’s fees, against Semmes’ beneficial | .¡interest in the Trust; Semmes was responsible for creating the expense to the Trust and it would be unfair to charge the other beneficiaries’ shares with that expense.

Prior to a bench trial in 2010, the parties stipulated that the sole issue to be tried was Semmes’ claim to remove James as trustee. All other claims, including Sem-mes’ claim for damages and the reconven-tional demand, were severed and reserved for another day. On 24 November 2010, the. trial judge rendered judgment with reasons in favor of James, finding that Semmes failed to prove that James breached any fiduciary duty he may have owed as trustee. Additionally, although the issue was not before the trial court per the pre-trial stipulation of the parties, the judgment granted the requested declaratory relief declaring that the trustee was authorized by law and under the Trust to (1) charge all of the fees and costs incurred in the litigation against Semmes’ beneficial interest in the Trust, and (2) “distribute the Trust assets to the beneficiaries, including distribution of all of the assets of the Trust so as to in effect severe the beneficiaries’ joint interests as Trust beneficiaries.” Semmes appealed the entire judgment to this court.

On appeal, we affirmed the trial court’s dismissal of Semmes’ petition to remove James, as trustee but, finding the trial court was bound by the pre-trial stipulations of the parties, vacated its granting of declaratory relief, and remanded the matter to the trial court for further proceedings. See Favrot v. Favrot, 11-0495, unpub. (La.App. 4 Cir. 11/16/11), 2011 WL 9160400. Following remand, James filed a motion for summary judgment on the re-conventional demand seeking the above-mentioned declaratory relief. Semmes opposed the motion, and filed a motion to compel discovery that sought to further substantiate his opposition.

Both James’ motion for summary judgment and Semmes’ motion to compel came for hearing on 24 August 2012. Finding no material facts to be in dispute and that James was entitled to the declaratory relief sought as a matter of law, the trial court rendered judgment on 6 September 2012, granting James’ motion for summary judgment and declaring as moot Semmes’ motion to compel discovery.

It is from this judgment that Semmes timely appealed.

STANDARD OF REVIEW

A trial court has broad discretion in handling discovery matters and an appellate court should not upset a ruling absent an abuse of discretion. Sercovich v. Sercovich, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600, 603. Under this abuse of discretion standard of review, “[a]n appellate court must balance the information sought in light of the factual issues involved and the hardships that would be caused by the court’s order when determining whether the trial court erred in ruling on a discovery order.” Id., citing Wollerson v. Wollerson, 29,183, p. 2 (La.App. 2 Cir. 1/22/97), 687 So.2d 663, 665.

An appellate court reviews summary judgments de novo using the same criteria that governs a trial court’s consideration of whether summary judgment is Inappropriate. John C. Bose Consulting Engineer, LLC v. John T. Campo & Associates, Inc., 07-1001, p. 2 (La.App. 4 Cir. 2/20/08), 978 So.2d 1033, 1034.

DISCUSSION

Motion to Compel Additional Discovery

In his first assignment of error, Semmes argues that the trial court erred by granting James’ motion for summary judgment because the court failed to permit adequate discovery relating to the distribution of the Trust’s assets. Specifically, Sem-mes contends that, in dismissing his motion to compel as moot, the trial court denied him access to facts relating to the distribution of all of the Trust’s assets that were essential to his being able to justify his opposition to the motion for summary judgment. Consequently, he claims that he was not afforded the opportunity to discover pertinent information to fully present his opposition; he claims the trial court deprived him of the ability to prove the potential adverse effects that termination of the Trust by distribution of all of the assets would have upon the best interests of all of the beneficiaries, including himself. In particular, Semmes avers that he lacked possession of all loan agreements and/or other loan documentation relating to the Trust and its assets, which he claims might have shown that distribution of the Trust’s assets could adversely impact the beneficiaries’ relationships with lenders, possibly resulting in defaults under loan agreements and/or other credit facilities. Additionally, he contends the requested documentation could establish that distribution of the Trust’s assets might result in all beneficiaries (including himself) having to personally guarantee loans in the future. (The Trust currently guarantees the loans.)

La. C.C.P. art. 1422 states, in part, that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” La. C.E. art. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence.” The discoverability test under La. C.C.P. art. 1422 entails first asking whether answering the discovery is feasible and practicable. If that answer is in the affirmative, then the court determines whether an answer to the discovery would “expedite the litigation by either narrowing the area of controversy or avoiding unnecessary testimony or providing a lead to evidence.” Industrial Pipe, Inc. v. Plaquemines Parish Council, 12-1348, pp. 7-8 (La.App. 4 Cir. 9/14/12), 100 So.3d 896, 900.

In the case sub judice, the parties had previously participated in a week-long trial on Semmes’ petition for removal of James as trustee, prior to which the loan agreements and/or other relevant loan documentation regarding the Trust and its assets were made available to Semmes for his review and copying. The record indicates that Semmes also received detailed monthly accountings for all of the Trust’s activities with supporting and explanatory documentation. Moreover, the instant motion for summary judgment was filed on 16 December 2011, and the matter was not heard by the trial court until 24 August 2012. Semmes chose not to avail himself of the opportunity to review the requested documentation for the more than eight-month period that it was made available to him.

La. C.C.P. art. 1460 provides that a party upon whom discovery is propounded has the right to respond to the discovery by making available the relevant records available in such form as they are kept in the normal course of 17business. The record reflects that this is how the information was made available to Semmes. Semmes was provided with an itemized inventory of the files segregated by box. Having worked as an executive at Favrot & Shane where the records were located for more than a year, Semmes was personally familiar with the company’s filing system and how the files were maintained, providing him with the necessary experience to personally locate the specific information he claims he wanted. Accordingly, we find the trial court did not abuse its discretion in determining that it could consider and rule on James’ motion for summary judgment without granting Semmes’ motion to compel. Semmes had ample experience and opportunity to review the requested documentation and prepare his defense prior to the hearing on the motion for summary judgment.

This assignment of error is without merit.

Assessment of Attorney’s Fees and Costs

In his second assignment of error, Sem-mes avers the trial court erred in assessing all of the legal expenses incurred by the Trust associated with this litigation, including attorney’s fees, solely against his beneficial interest in the Trust assets. We find this assignment to have merit, in part, specifically as it pertains to the assessment of attorney’s fees.

We are mindful of the well-settled rule in Louisiana that attorney’s fees are not generally assessable in the absence of specific statutory authority or unless expressly authorized by contract. Paz v. BG Real Estate Services, Inc., 05-0115, pp. 2-3 (La.App. 4 Cir. 12/14/05), 921 So.2d 186, 188. The terms of the Trust do not specifically provide for an assessment of attorney’s fees against a single beneficiary’s interest. Therefore, unless a pertinent law provides for such an |Rassessment, attorney’s fees are not allocable solely against Semmes’ interest in the Trust.

In the trial court’s reasons for the 24 November 2010 judgment, wherein declaratory relief was granted allocating all of the litigation fees and expenses incurred by the Trust solely against Semmes’s beneficial interest, the trial court reasoned that such an allocation was specifically contemplated and endorsed by La. R.S. 9:2141 D, which provides that “[a] trust shall be administered with due regard to the respective interests of the beneficiaries in the allocation of receipts and expenditures.” We find the trial court’s reliance on La. R.S. 9:2141 as authority for allocating attorney’s fees solely to Semmes’ beneficial interest is misplaced and inapplicable to the resolution of this issue. La R.S. 9:2141, entitled “General rule,” is the first statute contained in subpart D, “Allocation to Income and Principal,” of the Louisiana Trust Code. A review of the statutes following the general rule, ie., La. R.S. 9:2142-9:2157, indicates that the allocation of receipts and expenditures referenced in La. R.S. 9:2141 is only to be an allocation between income and principal, not an allocation among beneficiaries. Therefore, this provision concerns the allocation of expenditures, such as the litigation expenses at issue, between income and principal, not the allocation of those expenditures to a particular beneficiary as the trial court did in this case.

The trial court also erroneously relied upon La. R.S. 9:2193 and 9:2191 to support its allocation of attorney’s fees solely to Semmes’ beneficial interest in the Trust. Section 2193 states that the trustee is authorized to defend actions against [flthe trust, and section 2191 bestows upon the trustee the right to be indemnified from trust property for all properly incurred expenses. While these provisions authorize the trustee to (1) defend the Trust in these proceedings, (2) incur litigation expenses, including attorney’s fees, and (3) pay or be reimbursed for those expenses from the entire Trust estate, they do not authorize James to allocate attorney’s fees against a single beneficiary’s interest in the Trust. Thus, to the extent that James is entitled to indemnification for attorney’s fees incurred by the Trust pursuant to La. R.S. 9:2191 and 9:2193, such must come from the entire Trust estate, assessed pro-rata against each of the four beneficiaries’ interests therein.

In the trial court and now on appeal, James relies on two Louisiana cases to support his contention that attorney’s fees were properly assessed solely against Semmes’ beneficial interest: In Re Succession of Horrell, 07-1533 (La.App. 4 Cir. 10/01/08), 993 So.2d 354, and Succession of Bell, 06-1710 (La.App. 1 Cir. 6/08/07), 964 So.2d 1067. We find the cases to be inap-posite. In both Horrell |inand Bell, the assessment of attorney’s fees made against a legatee’s share of an estate was ordered by the court because each legatee had been held in contempt for violating a court order and sanctioned accordingly. Moreover, in Bell, while the contempt ruling and imposition of attorney’s fees were reversed on appeal on procedural grounds, the legatee was required only to pay the expenses, not attorney’s fees, that her actions actually cost the estate.

We find the case of In re Mashburn Marital Trusts, 10-0278 (La.App. 1 Cir. 12/22/10), 52 So.3d 1136, to be instructive on the attorney’s fee issue. In Mashbum, two of the nine beneficiaries instituted extensive litigation against the co-trustees of a family trust and a marital trust. Once the decisions in the varying suits became final, the co-trustees of the family trust and the managing co-trustees of the marital trust contended that, because the two beneficiaries had litigated for their own individual benefit rather than for the benefit of all of the beneficiaries of the trusts, the litigation expenses incurred by the co-trustees of the trusts should be allocated on a pro-rata basis to the individual trusts of the two beneficiaries who instigated the proceedings. Specifically, the co-trustees argued that to allocate the | n expenses equally among all of the trust beneficiaries would be “unfair, unreasonable, and without due regard to the interests of the other seven beneficiaries of the trust.” See Id., p. 11, 52 So.3d at 1143. The First Circuit disagreed. Though the court conceded that the two beneficiaries had litigated for their own personal benefit, rather than for the benefit of all of the trusts or beneficiaries, the court determined that it was improper to allocate the litigation expenses solely against the two beneficiaries’ shares of the trusts when the co-trustees had both maintained and defended the various actions on behalf of and in order to protect all beneficiaries. Accordingly, the court held that the litigation expenses incurred by the co-trustees of both trusts should be assessed pro-rata from the income (and if necessary from the principal) of all of the beneficiaries. Id, p. 14, 52 So.3d at 1145.

The Mashbum court, in dicta, recognized the possibility that “[i]f a trust beneficiary instigates an unfounded or frivolous proceeding against the trust or trustee in bad faith, the trial court may have the power to charge the reasonable and necessary fees incurred by the trustee in opposing the proceeding against that beneficiary’s share of the trust estate.” Id, p. 14 n. 6, 52 So.3d at 1145. Furthermore, the court noted that, although attorney’s fees are not allowed as an item of damages or costs except where authorized by statute or contract, abuse of process has been recognized as an exception to that rule. Id.

In the case before us, while James suggests that the trial court “obviously” found Semmes’ claims to be “frivolous,” nowhere in the judgment or the trial court’s previously written reasons for judgment did the court make such a | ^determination. Additionally, the reconventional demand filed by James seeking declaratory relief neither makes an allegation of frivolity against Semmes’ nor does it state a claim for abuse of process or otherwise seek sanctions. We do not find the trial court’s determination that Semmes’ claims “were without merit” synonymous or equivalent to a finding that his claims were frivolous, unfounded, and brought in bad faith. Moreover, our review of the record satisfies us that a reasonable person could find that Semmes, although perhaps litigating for his own personal benefit, was not acting frivolously or in bad faith.

The Trust does not provide for a single beneficiary to be charged with the payment of attorney’s fees. No applicable statutory authority supporting the imposition of attorney’s fees exists in this case. Additionally, James’ reconventional demand is devoid of any request for sanctions and/or a claim for an abuse of process, and contains no allegations of frivolity or bad faith against Semmes. Consequently, we find the trial court erred in granting summary judgment insofar as it assessed the entirety of the attorney’s fees incurred by the Trust solely against Semmes’ beneficial interest. Accordingly, we hold that the attorney’s fees incurred by the Trust in this matter should be assessed equally among all four beneficiaries.

Regarding the trial court’s allocation of costs against Semmes’ portion of the Trust, La. C.C.P. art.1920 provides that “[ejxcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party as it may consider equitable.” [Emphasis supplied.] In the instant case, the actual parties to this litigation against whom the judgment for costs can be cast pursuant 11sto La. C.C.P. art.1920, are Semmes, in his individual capacity and not his “beneficial interest in the Trust,” and James, in his capacity as trustee of the Trust. In contrast to the claims made within the succession proceedings in Horrell and Bell, supra, the instant suit does not involve an internal dispute within the Trust, but rather, consists of a suit by Semmes, individually, against the trustee of the Trust seeking his removal. Therefore, while the literal application of La. C.C.P. art.1920 authorizes the court to assess costs against Semmes, individually, it does not allow the court to allocate costs to be paid solely out of his beneficial interest in the Trust. Accordingly, we amend the judgment and hold that all costs, exclusive of attorney’s fees, incurred by the Trust in these proceedings be assessed against Semmes, individually.

Distribution of the Trust’s Assets to the Beneficiaries

In his last assignment of error, Semmes avers the trial court abused its discretion when it granted summary judgment in favor of James authorizing him, as trustee, to distribute the Trust assets to all beneficiaries. Semmes argues that neither the Trust instrument nor Louisiana law allows for the Trust to be terminated prior to its term by a distribution of all of the Trust assets. He contends that, pursuant to Article 2.3 of the Trust instrument, termination of the Trust is prohibited before the death of both settlors, and because this provision is “clear and explicit and do[es] not lead to absurd consequences, no further interpretation may be made in search of the parties’ intent.” See La. C.C. art.2046. We disagree.

Article 3.1 of the Trust authorizes the trustee to distribute to a beneficiary “so much of the accumulated income, principal or both 114at such time and in such amounts as the trustee determines in the Trustee’s sole discretion.” Despite Sem-mes’ argument to the contrary, we find no provision in the Trust or in Louisiana law that prohibits the trustee from distributing to Semmes the entirety of his portion of the Trust’s assets, in effect, severing the Trust, but not terminating it. The only restriction contained in Article 3.1 is that the distribution to a beneficiary “shall not exceed [that beneficiary’s] share.”

In its 24 November 2010 reasons for judgment initially granting the declaratory relief sought by James, the trial court stated:

Concerning the distribution of Trust assets, the Court observes the following. Given the ill feelings between James and Semmes, and to perhaps a different degree, the ill feelings between Semmes and his sisters, it would seem to be in the best interest of all of them that their respective interests in the Trust be severed. James, Kathleen, and Caroline have petitioned that the Court render a declaratory judgment that James, as Trustee, is entitled under the Trust instrument to distribute the assets among the four beneficiaries in order to effectuate a separation of their interests from one another....
The Court finds that under the clear language of Article 3.1, the Trustee may pay to each beneficiary “the accumulated income, principal, or both at such time and in such amounts as the Trustee determines in the Trustee’s sole discretion.” Hence, the Court finds that James, as Trustee, is entitled to proceed in the manner requested in the Recon-ventional Demand filed by James and the Intervenors.

| ir,Finding no genuine issue of material fact, no abuse of discretion on the part of the trial court, and being in agreement with its reasoning, we affirm the trial court’s granting of summary judgment in favor of James concluding that, as a matter of law, the trustee is entitled to distribute to Semmes his share of the Trust’s assets.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of summary judgment in favor of James authorizing him, as trustee, to distribute to Semmes the entirety of his share of the Trust assets. We reverse that portion of the trial court’s granting of summary judgment in favor of James assessing all attorney’s fees incurred by the Trust solely against Sem-mes’ beneficial interest in the Trust and hold that the attorney’s fees are to be allocated equally among the interests of all four beneficiaries. We amend that portion of the trial court’s granting of summary judgment in favor of James assessing all costs incurred by the Trust in these proceedings against Semmes’ beneficial interest and order that said costs, exclusive of attorney’s fees, be assessed against Sem-mes, individually. Lastly, we affirm the trial court’s dismissal of Semmes’ motion to compel discovery as moot.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; RENDERED.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).

MAX N. TOBIAS, JR., Judge.

|]We grant the rehearing application of James P. Favrot, Trustee of the H.M. Favrot, Jr. Trust # 3, finding merit to only one of the issues raised. On rehearing, Mr. Favrot urges that we should not - have ruled that the attorney’s fees incurred by the trust to defend against T. Semmes Favrot’s claims had to be split among the four beneficiaries of the trust and not allocated solely to Semmes.

We were bound by the record on appeal as designated by the parties. La. C.C.P. art. 2128. In rendering a decision, we noted many things that were not disclosed by the record before us, which hampered our ability to be unequivocal.

The record before us did not indicate that James, Kathleen, and Caroline had ever urged that Semmes had been frivolous, proceeded in bad faith, or abused process. In view of the absence of such specific allegations in a pleading, we understood from James’ briefs and the record that frivolity, bad faith, and abuse of process were mere arguments as to why James was justified in not assessing those attorney’s fees to Kathleen’s, Caroline’s, and his beneficiary interest in the trust.

li>The issue of allocation of expenses among the four beneficiaries came to us on a motion for summary judgment. Our decree should have reflected that we were merely ruling that the motion for summary judgment was being denied and the matter remanded for further proceedings.

Therefore, we amend our former decree to reflect that the motion for summary judgment on the issue of the allocation of attorney’s fees is denied, and the case is remanded to the trial court for further proceedings. La. C.C.P. art. 2164.

REHEARING GRANTED; JUDGMENT MODIFIED: REMANDED.

      . Semmes' sisters, Kathleen Favrot Van Horn ("Kathleen”) and Caroline Favrot Trube ("Caroline”), and his father, H.M. Favrot, Jr. ("Mr. Favrot”) intervened in the suit on James’ side. See La. C.C.P. art. 1091.

      . The Trust consists of ownership interests, direct and indirect, in Favrot & Shane real estate projects. It is averred that the Trust has never held interest in the "operating companies” for the real estate projects, but the record furnishes us with no information about the operating companies or their identities.

      . James is also "president” of Favrot & Shane, where he has been employed for more than 20 years; however, the precise entity of which he is president is not specifically divulged in the record before us.

      . Semmes, an attorney-at-law, resigned from the law firm of Adams & Reese where he practiced until 2004 and joined Favrot & Shane. Upon doing so, Mr. Favrot, James, and Semmes entered into an agreement that outlined the terms of employment of each son. Once employed, over James' objection, Semmes convinced Mr. Favrot to renegotiate the agreement, which was thereafter amended to reflect an increase in Semmes’ personal interest in the company's new real estate projects. In 2005, Semmes’ employment with the company was terminated and, following his departure, a new agreement was created.

      .The record on appeal does not contain a copy of the reconventional demand seeking the declaratory relief that is the subject of this appeal. We are, however, able to glean the gravamen of the demand from exhibit "A” attached to James' motion for leave to file an amended reconventional demand for declaratory judgment, which exhibit consists of a draft of an amended reconventional demand for declaratory relief.
      Additionally, although Kathleen, Caroline, and Mr. Favrot joined in the reconvention, it is not clear that they have a cause of action per se to do so. See La. C.C.P. arts. 1061 and 1091. That is, by virtue of article 1091, an intervenor siding with the position of the defendant does not appear to be able to assert a reconventional demand pursuant to article 1061 against the plaintiff. Nevertheless, such is not relevant in this case and is not assigned as an error on appeal.

      . Specifically, we stated:
      Even though the trial court may have had the necessary evidence to rule on the recon-ventional demand, it was clearly outside the issue being tried. The trial court was bound by the stipulations entered into by the parties.

        Favrot v. Favrot, 11-0495, pp. 4-5, unpub. (La.App. 4 Cir. 11/16/11), 2011 WL 9160400.

      . The declaratory relief granted by the judgment in James’ favor, as trustee, was vacated by this court in Favrot, supra, 2011 WL 9160400, on the grounds that the reconven-tional demand was outside the scope of the issue then being tried (i.e., Semmes’s action to remove James as trustee). While the trial court did not issue separate reasons for judgments upon rendition of the 6 September 2012 judgment, granting James’ motion for summary judgment relating to the reconvention seeking declaratory relief, the language in both judgments is identical.

      . In Horrell, the provisional administrator of the succession moved for sanctions against Mr. Horrell, a legatee, pursuant to La. C.C.P. art. 863. She also sought an interim payment of $147,628.82 for legal services rendered and costs advanced on behalf of the succession under La. C.C.P. art. 3351, which provides for compensation and authorizes interim payments to the succession administrator. Horrell, 07-1533, pp. 16-17, 993 So.2d at 367. Following a show-cause hearing, the trial court held Mr. Horrell in contempt for failing to comply with the court’s order to allow the provisional administrator, the notary, and the appraisers entry to his residence. Id. at p. 19, 993 So.2d at 368. As a sanction, Mr. Horrell was ordered to pay $81,781.44 of the provisional administrator's total costs and fees, including attorney's fees, solely out of his share of the succession assets. On appeal, this court found no error in the trial court’s ruling holding Mr. Horrell in contempt. Further, we affirmed the trial court's "considerable discretion” regarding its imposition of sanctions ordering Mr. Horrell to pay the provisional administrator’s costs and fees finding that the record demonstrated that his actions were the cause of considerable delay and expense in the litigation and the amount charged against his share of the succession represented what his actions actually cost the estate. Id. at pp. 18-19, 993 So.2d at 36.

      . In Bell, a legatee was held in contempt for violating the previous orders of the court and, consequently, was ordered to pay $1,000 in attorney's fees for the contempt and all costs of the proceedings. Succession of Bell, 06-1710, p. 4, 964 So.2d at 1070. The trial court also held the legatee in contempt for violating the court’s previous orders to provide the administratrix with a key to the decedent’s residence, to pay the impound fees for the decedent’s car, to turn over all of the decedent’s furniture and personal effects, and to cooperate with the administratrix's efforts to sell the residence. As a consequence, the trial court ordered the legatee to reimburse the estate for the amounts the administratrix expended to redeem the damaged vehicle and to change the keys on the residence. On appeal, the court reversed the trial court's contempt ruling and the imposition of attorney’s fee, finding that the record showed the adminis-tratrix failed to follow the proper statutory procedures, that required her to formally request a finding of contempt for the legatee’s refusal to obey the orders of the court and to set forth same in a rule to show cause. Further, the appellate court, finding no abuse of discretion, affirmed the trial court’s order for the legatee to pay the actual expenses incurred by the administratrix on the basis that "they were simply reimbursements of amounts” that the legatee’s "actions had cost the estate.”

      . The two authentic acts creating the family trust and the marital trust established nine separate trusts, one for the sole benefit of each of Jack and Sadie Mashbum’s nine children, who were the income and principal beneficiaries of their respective trusts. The trusts were managed and administered by a set of co-trustees.

      . This is not, however, to say that further action by Semmes may not ultimately cross the line into the realm of frivolity and/or bad faith.

      . Article 3.1 states:
      3.1 Distribution of Income and Principal. The Trustee may distribute to, apply or accumulate for a beneficiary the net income of the trust in such amounts and at such time as the Trustee determines in the Trustee’s sole discretion. The Trustee may pay to or apply for a beneficiaiy’s benefit so much of the accumulated income, principal or both at such time and in such amounts as the Trustee determines in the Trustee’s sole discretion. Any distribution to a beneficiary shall be charged to the beneficiary’s share of the trust and shall not exceed such share.

      . See La. C.C.P. art. 852.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ulises GOMEZ.
    No. 12-1357.
    Court of Appeal of Louisiana, Third Circuit.
    May 22, 2013.

      Colin Clark, Assistant Attorney General, Louisiana Attorney General’s Office, Baton Rouge, LA, Jay N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for Ap-pellee, State of Louisiana.
    Chad Ikerd, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Ulises Gomez.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| defendant, Ulises Gomez, appeals the trial court’s judgment denying his Writ of Habeas Corpus Ad Subjiciendum. For the following reasons, we reverse and remand with instructions.

PROCEDURAL BACKGROUND

On May 12, 2012, Defendant, admittedly an alien student and/or a nonresident alien, operated a vehicle in Lafayette Parish without documentation showing he was lawfully present in the United States. Defendant was subsequently charged by bill of information with operation of a vehicle without documentation demonstrating a lawful presence in the United States, a violation of La.R.S. 14:100.13. He filed a writ of habeas corpus alleging his detention was illegal and based on an unconstitutional statute pursuant to Arizona v. United States, — U.S. -, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). The trial court denied the writ “on the basis that charges were previously filed in this matter.”

Minutes of the trial court indicate Defendant next filed a motion to recognize his writ of habeas corpus as a motion to quash. That motion, however, is not contained in the record on appeal. The trial court denied the motion on September 4, 2012, finding “the State does have power to regulate the driving in the State.”

On September 6, 2012, the trial court accepted Defendant’s plea of no contest to the charge but preserved his right to appeal the constitutionality of the statute. The trial court sentenced Defendant to three months in the parish jail with credit for time served.

Defendant now appeals the denial of his writ of habeas corpus, claiming that La. R.S. 14:100.13 is unconstitutional.

| DISCUSSION

On appeal, Defendant alleges that the trial court erred in denying his writ of habeas corpus when it held that La.R.S. 14:100.13 is a proper exercise of state police powers and not preempted by federal immigration laws.

ASSIGNMENT OF ERROR

Defendant argues the trial court erred in denying his writ of habeas corpus when it held La.R.S. 14:100.13 is a proper exercise of state police powers and not preempted by federal immigration laws. Subparagraph (A) of the statute provides: “No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States.” The penalty for violation is a fine of up to $1,000.00 and/or imprisonment for up to one year, with or without hard labor, making the offense a felony. La.R.S. 14:100.13(0; La.R.S. 14:2(A)(4).

In Arizona, 132 S.Ct. 2492, the United States Supreme Court reviewed the validity of four provisions of Arizona statute S.B. 1070, a statute enacted to address the issues relating to the large number of unlawful aliens in that state. One provision, Section 3, “forbids the ‘willful failure to complete or carry an alien registration document ... in violation of 8 United States Code section 1304(e) or 1306(a)’” and effectively “adds a state-law penalty for conduct proscribed by federal law.” Id. at 2501.

“Congress has the” constitutional “power to preempt state law.” Id. at 2500. Where Congress has determined certain conduct must be regulated exclusively by federal law, state statutes attempting to regulate that conduct are field preempted. State statutes that conflict with federal law are conflict preempted. In Arizona, the United States contended Section 3 intruded on the field of alien registration and, | -¡thus, was preempted. The State of Arizona contended Section 3 “has the same aim as federal law and adopts its substantive standards.” Id. at 2502. The Supreme Court held Section 3 was preempted by federal law. Arizona, 132 S.Ct. 2492.

The Supreme Court noted federal law requires aliens to carry proof of registration and concluded “the Federal Government has occupied the field of alien registration.” Id. Field preemption forecloses any state regulation, even when it parallels federal standards, so that “even complementary state regulation is impermissible.” Id. The Supreme Court further noted that “[e]ven if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law.” Id.

The Supreme Court held Arizona’s argument “ignore[d] the basic premise of field preemption” and “conflict[ed] with the careful framework Congress adopted” by imposing its own penalties for federal offenses. Id. The Supreme Court also noted a problem with the inconsistency between federal law, where “failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation,” and Arizona’s law, which “rul[ed] out probation as a possible sentence (and also eliminate[d] the possibility of a pardon).” Id. at 2508. The Supreme Court found this inconsistency “creates a conflict with the plan Congress put in placet,]” and that such conflict, amongst others, “underscore[d] the reason for field preemption.” Id.

We find that Louisiana’s statute, La.R.S. 14:100.13(A), is similar to Section 3 of Arizona’s statute. Both forbid the willful failure to carry documentation demonstrating a lawful presence in the United States. Both provide a penalty in excess of the penalty provided by federal law.

|4The first circuit recently denied a defendant’s writ application on the issue of the constitutionality of La.R.S. 14:100.13 in State v. Lopez, 12-2043 (La.App. 1 Cir. 3/21/13), 116 So.3d 1, 2013 WL 1200338. The defendant sought to quash his bill of information because La.R.S. 14:100.13 is unconstitutional and is preempted by federal law because it attempts to regulate immigration. The first circuit held that the statute withstands constitutional, conflict, and field preemption and, thus, “is not a constitutionally impermissible regulation of immigration.” Id. at 5. Particularly discussing field preemption, the first circuit stated that “La.R.S. 14:100.13 is not a regulation of immigration, a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Id.

In its discussion of Arizona, the Lopez court did not consider Section 3 of the Arizona statute. Rather, it reviewed Section 2(B), which required state officers “to make a ‘reasonable attempt ... to determine the immigration status’ of any person they stop, detain, or arrest on some other legitimate basis if ‘reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.’ ” Lopez, 116 So.3d at 3. The Supreme Court refused to enjoin Section 2(B) because suit was filed before the law went into effect. The Supreme Court commented, “without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume § 2(B) will be construed in a way that creates a conflict with federal law.” Arizona, 132 S.Ct. at 2510. We believe, however, that the first circuit’s failure to consider Section 3 in Lopez led to an improper result.

Prior to Arizona, this court |Rconsidered the issue in two writ applications. See State v. Marquez, an unpublished writ decision bearing docket number 12-1316 (La. App. 3 Cir. 1/7/13) and State v. Ramirez, an unpublished writ decision bearing docket number 12-1245 (La.App. 3 Cir. 1/7/13). In both instances, this court found no error in the trial court’s ruling that La.R.S. 14:100.13 is constitutional.

Despite the first circuit’s recent opinion in Lopez, 116 So.3d 1, and the previous writ rulings of this court, we find that La.R.S. 14:100.13 is unconstitutional because it is field preempted. Like Arizona’s statute, Louisiana requires aliens to carry registration documents. The Supreme Court has held in Arizona, 132 S.Ct. 2492, that such a requirement intrudes on the field of alien registration that federal law has already occupied. Accordingly, we hold that Louisiana’s statute is field preempted.

Further, we find that La.R.S. 14:100.13 is also conflict preempted. Louisiana’s statute makes a felony of an offense federal law considers a misdemeanor. 8 U.S.C. § 1304(e); 8 U.S.C. § 1306(a). The Supreme Court found fault with a similar provision in Arizona’s statute. Accordingly, we hold that La.R.S. 14:100.13 is unconstitutional, and the trial court erred by denying Defendant’s writ of habeas corpus.

1 (¡DECREE

The trial court’s ruling denying Defendant’s writ of habeas corpus is reversed. This matter is remanded, and the trial court is directed to enter a judgment consistent with this ruling.

REVERSED; REMANDED WITH INSTRUCTIONS.

      . The issue was also raised in State v. Balico-Calderon, an unpublished writ decision bearing docket number 12-1078 (La.App. 3 Cir. 10/23/12). However, the writ application was dismissed as moot after the defendant pled guilty.


author: THIBODEAUX, Chief Judge.

text:
    James Patrick PATIN v. Leo William FERGUSON.
    No. 13-115.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      David Payne Spence, Alexandria, LA, for Defendant/Appellant, Leo William Ferguson.
    Edwin Gustav Preis, Jr., Preis & Roy, Lafayette, LA, for Plaintiff/Appellee, James Patrick Patin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

|TIn this business dispute, the plaintiff, James Patin, alleges that his co-member in their joint limited liability company (“LLC”), American Recycling, LLC (“American Recycling,” “the LLC,” or “the company”), defendant William Ferguson, breached his fiduciary duties to the LLC by unilaterally selling the company’s primary piece of equipment, an Al-jon Model 580 CL Logger Baler (“the Baler”) and dissolving the company. The trial court agreed with Mr. Patin and awarded damages. Mr. Ferguson appeals the trial court’s judgment. We affirm.

I.

ISSUES

We must decide whether the trial court erred in finding:

(1) that the Baler purchased by Mr. Ferguson was a capital contribution to the LLC;

(2) that Mr. Ferguson breached his fiduciary duties to the LLC and to Mr. Patin by selling the Baler and by dissolving the LLC; and

(3) that Mr. Patin was entitled to damages in the amount of $161,666.00.

II.

FACTS AND PROCEDURAL HISTORY

In January 2006, the parties formed American Recycling, a company that acquired scrap metal, baled and compacted the scrap, then re-sold the baled scrap at a profit. Under the Articles of Organization (“the Articles”), the company |2was member-managed, and Mr. Ferguson and Mr. Patin comprised the membership. Once each member had been proportionally reimbursed for his capital contribution, profits and losses would be split between the two members on an equal basis. Article IX of the Articles specifically provided as follows:

All profits and/or losses of the company shall be shared and disbursed to the members in direct proportion to the percentage of monies paid in capital and/or loans by each respective member until and only all [sic] actual dollar amounts so loaned or contributed are repaid, without interest or tax considerations. Immediately after payout, all profits and/or losses shall be paid and/or allocated, such that members, James Patrick Patin, shall be granted Fifty percent (50%) and Leo William Ferguson, shall be granted Fifty percent (50%).

The parties orally agreed that Mr. Ferguson’s contribution to the company would consist of the purchase of the Baler and other start-up costs, and Mr. Patin’s contribution would consist of his personal service and extensive expertise in the scrap metal industry. Both parties testified that they considered these agreements regarding the business operations and start-up capital to be binding agreements.

Mr. Ferguson purchased the Baler for $412,757.00, and he advanced $20,500.00 in cash to start the company. Though the Baler was purchased in Mr. Ferguson’s name, it was dedicated to the company’s operations. The company operated from March 2006 through June 2008. During the operation of the company, Mr. Ferguson was paid $159,500.00 toward the purchase price of the Baler. While the company operated, Mr. Patin was paid $2,083.00 per month as a salary. Mr. Ferguson did not receive a salary, but Mr. Patin testified that the | «¡parties agreed that once the Baler was paid for, the salary funds would be “caught up.”

The business records of the company and the testimony of the parties indicate that the company was profitable during its two-year run. Despite that profitability, at some point in 2008, Mr. Ferguson decided that he no longer wanted to operate a business with Mr. Patin. Mr. Ferguson testified that he lost trust in Mr. Patin due to Mr. Patin’s failure to repay a personal loan Mr. Ferguson advanced to him. Mr. Ferguson abruptly demanded possession of the Baler and requested an audit of the business records. Mr. Patin immediately complied with Mr. Ferguson’s demands.

Mr. Ferguson first offered to sell the Baler to Mr. Patin. Mr. Patin could not afford to purchase it. He asked Mr. Ferguson to provide owner financing, but Mr. Ferguson refused. Thereafter, Mr. Ferguson sold the Baler to a third party for $360,000.00. Without the Baler, American Recycling closed.

Mr. Ferguson not only sold the most important asset of the company, but he also closed the company’s bank account, which had $38,883.53 on deposit. He also retained the proceeds of a workers’ compensation premium refund in the amount of $3,076.00.

At trial, Mr. Ferguson attempted to explain his actions by offering the testimony of his wife, Yolanda Ferguson. Mrs. Ferguson testified that she did not want her husband to go into business with Mr. Pa-tin. Despite her wariness, she maintained the checkbook for American Recycling. Her testimony indicates that she was very upset with Mr. Patin for not repaying the personal loan Mr. Ferguson provided.

|4In addition to Mrs. Ferguson’s testimony, Mr. Ferguson offered the testimony of a financial expert, Richard Urban. Mr. Urban’s opinions, issued through two depositions, state that the Baler was not an asset of the company but rather was rented to the company at a rate of $6,312.00 per month based on a cost of $380,882.00 at six percent with no residual value. No evidence in the record supports Mr. Urban’s opinions.

Mr. Patin submitted the testimony of his own financial expert, Michael Carbo. Mr. Carbo testified as to the fair market value of American Recycling as of the dissolution date of June 19, 2008. The net asset value of the company, according to Mr. Carbo, was $78,352.00. Mr. Carbo’s calculation assumed that the Baler was a capital contribution to the company. Thus, according to Mr. Carbo, Mr. Patin was entitled to one-half of $78,352.00, or the sum of $39,176.00.

Mr. Carbo also testified regarding Mr. Patin’s past lost wages and future lost earnings. Regarding past lost wages, Mr. Carbo based his calculations on the fact that Mr. Patin received a salary of $2,083.00 per month for his work with American Recycling. Mr. Carbo testified that from the date of dissolution of the company to the date of trial, Mr. Patin would have earned $111,370.00. Mr. Car-bo also opined as to Mr. Patin’s future earnings. He theorized that, without Mr. Ferguson’s actions, American Recycling would likely have operated profitably for another ten years, earning Mr. Patin $116,852.00.

The trial court considered all of the evidence presented and found that: (1) the Baler was a capital contribution to the company; (2) Mr. Ferguson | ^breached his fiduciary duties to the company and to Mr. Patin; and (3) Mr. Patin was entitled to judgment in his favor and against Mr. Ferguson. The trial court awarded damages to Mr. Patin in the following sums: (a) $39,176.00, representing one-half of the fair market value of American Recycling as of the dissolution date; (b) $62,490.00, representing past lost wages; (c) $50,000.00, representing future lost earnings; and (d) $10,000.00 representing general damages.

The trial court discounted Mr. Carbo’s calculations regarding past lost wages because they did not take into account that Mr. Patin was able to sell some scrap metal in an individual capacity between June 2008 and June 2010 to earn some money. Moreover, the trial court reasoned that Mr. Carbo’s calculations also did not consider that Mr. Patin had received supplemental security income since January 2011 in the amount of $698.00 per month. The trial court also discounted Mr. Carbo’s testimony regarding Mr. Pa-tin’s future lost earnings. Specifically, the trial court stated that Mr. Carbo’s estimate that the business would operate for ten years, yielding Mr. Patin $116,852.00, did not consider Mr. Patin’s poor health and deteriorating physical condition.

III.

LAW AND DISCUSSION

Standard of Review

A trial court’s finding of fact may not be reversed absent manifest error or unless it is clearly wrong. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead “review the record in its entirety to determine whether the | (¡trial court’s finding was clearly wrong or manifestly erroneous.” Id. at 882. The issue to be resolved on review is whether the fact finder’s conclusion was a reasonable one, not whether it was right or wrong. Id. The reviewing court must always keep in mind that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-83 (quoting Housley v. Cense, 579 So.2d 973, 976 (La.1991)).

With respect to the quantum of damages and the review of an award of general damages, the supreme court has held that the assessment of “quantum,” or the appropriate amount of damages, is a determination of fact entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Status of the Baler

Neither party disputes that the Baler was the “heart and soul” of the business. A dispute exists, however, regarding its ownership. Mr. Patín argues, and the trial court agreed, that the Baler was a capital contribution to the company. Mr. Ferguson counters that he personally purchased the Baler and only agreed to lease it to the LLC.

A capital contribution is “anything of value that a person contributes to the limited liability company as a prerequisite for, or in connection with 17membership, including cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services.” La.R.S. 12:1301(A)(3). A capital contribution does not have to take the form of cash; indeed, the contribution of a member can take the form of cash, property, or services performed to the LLC. La.R.S. 12:1321.

Here, the record is replete with evidence that the parties orally agreed that Mr. Ferguson would contribute cash and the Baler as capital to the company, and Mr. Patín would contribute his knowledge of the scrap business, his expertise in operating the Baler, and his time and services rendered in the daily operation of the company. Moreover, Mr. Ferguson testified that the sole purpose of purchasing the Baler was to begin the operation of the company.

Mr. Ferguson attempts to refute this abundant evidence by first arguing that if his intent was to contribute the Baler to the company, he would have formalized the agreement. Mr. Ferguson’s argument is weakened by key facts produced at trial. Namely, Mr. Ferguson and Mr. Patín did reach an agreement. The parties orally agreed that in exchange for his contribution of the Baler to the company, Mr. Ferguson would receive not only repayment for the Baler, but also a perpetual fifty percent share in the company’s profits. As a result of that agreement, Mr. Ferguson received nearly half the purchase price of the Baler — an obvious return on his capital contribution to the company.

The evidence in the record also does not support Mr. Ferguson’s assertion that he merely rented the Baler to the company. The existence of a rental agreement was unsubstantiated by any credible evidence. Thus, we find no error in the trial court’s judgment that the Baler was a capital contribution to the LLC.

| ^Breach of Fiduciary Duties

Though Mr. Ferguson does not assign it as error in his appellate brief, implicit in his argument on appeal is that the trial court erred in finding that he breached his fiduciary duties to the LLC and to Mr. Patín. We find no error in the trial court’s judgment that Mr. Ferguson breached his fiduciary duties.

Louisiana Revised Statutes 12:1314(A)(1) provides that any member or manager entrusted with managing the business shall “stand in a fiduciary relationship to the limited liability company and its members” and shall act “in good faith, with the diligence, care, judgment, and skill which an ordinary prudent person in a like position would exercise under similar circumstances.” In Bryan D. Scofield, Inc. v. Susan A. Daigle, Ltd., 08-798, p. 4 (La.App. 3 Cir. 12/10/08), 999 So.2d 311, 314, a panel of this court recognized that the LLC law “provides that members with management responsibilities have fiduciary obligations, including a duty of care and duty of loyalty, not only to the limited liability company but to the other members as individuals also.” The court further stated that, “a fiduciary may not take even the slightest advantage, but must zealously, diligently, and honestly guard and champion the rights of his principal ... and is bound not to ... conflict with the interest of the principal to even the slightest extent.” Id. at 316. Moreover, the supreme court has recognized that the duty of loyalty includes the obligation of “utmost good faith, fairness, and honesty in their dealings with each other with respect to the matters pertaining to the enterprise.” Scheffler v. Adams and Reese, LLP, 06-1774, fn. 2 (La.2/22/07), 950 So.2d 641, 648.

In Scofield, 999 So.2d at 315, the court stated that “a member has a direct right of action against other members individually for a breach of fiduciary |flduty when such breach is grossly negligent and the damage is to the suing member directly.” The court explained:

The Limited Liability Company Law further provides that a member “shall not be held personally hable to the limited liability company or the members” unless the member “acted in a grossly negligent manner ... or engaged in conduct which demonstrates a greater disregard of the duty of care than gross negligence, including but not limited to intentional tortuous conduct or intentional breach of his duty of loyalty.” La.R.S. 12:1314(B). Gross negligence is defined “as a reckless disregard or a carelessness amounting to indifference to the best interests of the limited liability company or the members thereof.” La.R.S. 12:1314(C).

Id.

With this standard at the backdrop, it is clear not only that Mr. Patín has a direct right of action against Mr. Ferguson but also that Mr. Ferguson breached his fiduciary duties to the LLC and to Mr. Patín. In reckless disregard of his duties of good faith and loyalty, and without notice to Mr. Patín, Mr. Ferguson sold the Baler to a third party; retained the entire purchase price of the Baler; emptied American Recycling’s checking account; removed Mr. Patín as an authorized user of the account; and took possession of over $3,000.00 paid to the LLC by its workers’ compensation insurer. Mr. Ferguson’s actions were blatant, malicious, and grossly negligent. It is undisputed that Mr. Ferguson’s actions effectively dissolved the LLC and ended Mr. Patin’s livelihood.

Moreover, Mr. Ferguson’s actions conflicted with Louisiana LLC law. Louisiana Revised Statutes 12:1318(B) requires a majority vote of the members to approve the sale, exchange, lease, mortgage, pledge, or other transfer of all or substantially all of the assets of the LLC and to approve the dissolution and winding up of the LLC, unless otherwise provided in the Articles of Organization 110or a written operating agreement. Neither agreement was present here. Instead, Mr. Ferguson unilaterally sold the most valuable asset of the business — the Baler — and transferred all assets from American Recycling’s account to his own. He deliberately took these actions without any notice or discussions with Mr. Patín, in direct violation of La.R.S. 12:1318(B).

Mr. Ferguson acted selfishly and without any regard for Mr. Patín or American Recycling. He behaved in a grossly negligent manner, and he breached his fiduciary duties. Indeed, his breaches of his fiduciary duties rendered American Recycling inoperable and deprived Mr. Patín of his sole source of income. Thus, we agree with the trial court that Mr. Ferguson violated his fiduciary duties and acted with gross negligence. As such, Mr. Patín is entitled to damages.

Damages

In assessing damages, the trial court considered the expert testimony of Mr. Carbo and Mr. Urban. The trial court noted that the testimony of the two experts differed greatly, with the major point of differentiation based upon Mr. Urban’s conclusion that the Baler was not an asset of the business. The trial court made a factual finding that the Baler was a capital contribution to the company. Thus, it discounted Mr. Urban’s testimony and agreed with Mr. Carbo’s assessment of damages. Moreover, it is clear from the trial court’s written reasons for judgment that it found Mr. Carbo to be a much more credible witness. Indeed, the trial court noted that Mr. Urban’s depositions brought “confusing results to the court,” and his opinions appeared to be “arbitrary, self-serving, and without support of the evidence submitted in the case at bar.”

|„We find no error in the trial court’s award for damages, including those awarded to Mr. Patín for fifty percent of the net asset value of American Recycling; past lost wages; and general damages. We also find no error in the trial court’s award of $50,000.00 for future lost earnings. Though the trial court inelegantly used the word “arbitrary” in describing the $50,000.00 award, we find that strong support existed in the record for award of $50,000.00 or more for future lost earnings. It is clear from the trial court’s thorough written reasons for judgment that he considered all of Mr. Carbo’s testimony. The trial court merely disagreed with Mr. Car-bo regarding the viability of Mr. Patin’s long-term employment prospects.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court. Costs of this appeal are assessed against Leo William Ferguson.

AFFIRMED.

      . The Baler was crucial to the operation of the business. It was used to compact or “bale” metal into more easily handled scrap.

      . Mr. Carbo's calculation includes forty-one pay periods between July 2008 and November 2011 totaling $90,196.00. At trial, Mr. Carbo testified that the $111,370.00 amount was the present day value of those earnings.


author: KEATY, Judge. GREMILLION, J.,

text:
    Angelo BRACEY v. CITY OF ALEXANDRIA.
    No. 13-16.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Rehearing Denied July 17, 2013.

      Lewis O. Lauve, Jr., Bussey & Lauve, LLC, Alexandria, LA, for Defendani/Ap-pellant, City of Alexandria.
    Malcolm X. Larvadain, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Angelo Bracey.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

h Employer appeals from a judgment rendered by the worker’s compensation judge (WCJ) in favor of former employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 21, 2010, Angelo Bracey (Bra-cey) filed a 1008 Disputed Claim for Compensation (1008) against his employer, the City of Alexandria (the City), seeking medical treatment pursuant to the Louisiana Workers’ Compensation Act (LWCA), La. R.S. 23:1021-1415, for injuries that he sustained in a workplace accident on May 22, 2009, while he was employed by the City as a firefighter. Therein, he contended that he injured his right leg and hip when he stepped into a hole while cutting grass with a push lawn-mower at the fire station. He alleged that no medical treatment had been authorized, and he sought authorization for an MRI arthrogram that had been recommended by Dr. Daniel Oas. In an amended 1008 filed on May 21, 2010, Bra-cey sought an award of statutory penalties and attorney fees. Bracey filed a separate 1008 on June 14, 2011, seeking authorization to be seen by Dr. Brett Cascio, an orthopedist specializing in hip injuries, for the injuries he sustained in the May 22, 2009 workplace accident. On August 8, 2011, the WCJ signed an order consolidating the two actions for trial purposes. The matters were tried on May 28, 2012. At trial, the parties stipulated that Bracey was a City employee on the date of the alleged accident and that the maximum compensation rate would apply if Bracey were awarded workers’ compensation benefits. On July 24, 2012, the WCJ issued an oral ruling in favor of Bracey awarding him Temporary Total Disability Benefits (TTDs); ordering the City to pay for Bra-cey’s continued care for his right labrum tear by Dr. Cascio; awarding Bracey a $2,000 penalty for the City’s failure to authorize further |2medical care for his injury; awarding Bracey $2,000 in penalties for the City’s failure to recognize the validity of his claim; awarding Bracey $7,500 in attorney fees; and assessing the City with all costs and ordering interest to run on all sums from the date they were due. Written judgment was signed on October 17, 2012.

The City now appeals, asserting that the trial court erred: 1) in finding that Bracey established by a preponderance of the evidence that he sustained a work-related injury that made him in need of medical care and unable to work for the City; 2) in finding that Bracey proved that the work-related accident had caused a torn labrum in his right hip; 3) in finding that Bracey established by clear and convincing evidence his entitlement to TTDs; and 4) in assessing it with penalties and attorney fees. Bracey has answered the appeal seeking an additional award of attorney fees to cover the cost of having to defend the appeal.

DISCUSSION

Work-Related Accident

A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by accident arising out of and in the course of his employment.” Bruno v. Harbert Int'l Inc., 593 So.2d 357, 360 (La.1992); La.R.S. 23:1031(A). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t. of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. 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. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sist- ler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784.

“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). “[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Central 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).

Bracey testified that while mowing the grass at the fire station on the morning of May 22, 2009, he stepped into a hole and injured his right hip when he turned to get out of the hole. Within minutes of the accident, he told his supervisor, Captain Charles Lane, that he had been injured. He and Captain Lane filled out an accident report, and he was sent to Dr. Gordon Webb, a physician specializing in occupational and emergency medicine. Dr. Webb diagnosed him with a strained right bicep femorous. He told Bracey not to work and scheduled a follow-up appointment for May 29, 2009. At that visit, Bracey still had complaints of leg pain, so Dr. Webb ordered him to remain off work until June 8, 2009. When |4Bracey returned to Dr. Webb’s office on June 5, 2009, he was released to return to work, effective June 8, 2009, although he still had complaints of leg pain which he described as “one” on a scale of one to ten. Bracey last saw Dr. Webb in conjunction with the injuries he sustained in the May 22 work-place accident on June 23, 2009. At that time, he again reported right leg pain of “one” on a scale of one to ten. Bracey also reported having increased pain across his right hip since recently jumping off the tailgate of his truck. According to Dr. Webb’s notes from that visit, Dr. Webb believed that this pain represented a new problem, not work related, as Bracey had not previously had pain across his hip joint.

Bracey was scheduled to work twenty shifts of twenty-four hours each between June 9 through August 6, 2009, after which he had a scheduled vacation until September 11, 2009. He worked eleven of those shifts and “laid off’ the remaining nine. Bracing testified that “laying off” meant getting someone else to cover a shift. He stated that shifts could not be “laid off” due to illness or injury and that any shifts missed for those reasons “would be coded as ‘sick time’ or ‘workers’ comp.’ ” When Bracey returned from vacation, he worked six shifts and “laid off’ another two shifts.

Beginning on October 13, 2009, Bracey was off work while treating with psychiatrist Dr. Edwin Urbi for issues/depression stemming from his wife’s disclosure of infidelity. Dr. Urbi released Bracey from his care and cleared him to return to work on January 7, 2010. On that date, Bracey was seen by Dr. Robert Rush, a board certified physician in the field of occupation medicine, for injuries he sustained to his neck and back in a non-work-related automobile accident on November 28, 2009. Bracey never complained of hip pain to Dr. Urbi. While he also did not initially complain to Dr. Rush about any hip pain, on January 12, 2010, | she complained to physical therapist Oday Lavergne that he had “pain in the right lower extremity especially in the right anterior groin,” leading Lavergne to recommend that Bracey undergo an MRI arthrogram to assess the cause of his pain.

Thereafter, Bracey requested that the City send him to Dr. Dan Oas, a specialist in orthopaedic and sports medicine. Dr. Oas first saw Bracey on March 17, 2010. After examining Bracey, Dr. Oas believed that he had a torn right labrum, given the type of symptoms he was having and the length of time that those symptoms had lasted. At that time, Dr. Oas recommended that Bracey undergo an MRI arthrogram of his right hip along with a contemporaneous therapeutic injection to enable him to ascertain a better diagnosis of the cause of his hip pain. According to Andy Storer, an adjuster for the City, further treatment related to the right hip was denied because he believed that those complaints were related to the November 2009 automobile accident rather than Bra-cey’s May 2009 work accident. Bracey continued treatment with Dr. Oas using his private health insurance, and on September 29, 2010, he received the recommended MRI arthrogram and injection to his right hip. The MRI report noted that it was “suspicious for [a] right sided labral tear.” In early October 2010, Bracey returned to Dr. Oas and reported that his symptoms had improved and he wanted to return to work.

The testimony revealed that before allowing Bracey to resume his employment, the City sent him back to Dr. Webb for a return-to-work examination. On October 29, 2010, after reviewing the MRI report and examining Bracey, Dr. Webb issued a report opining that Bracey’s labrum tear made it “exceedingly unlikely that [he] will be able to perform his full duties as a fireman and that there | r>is a high risk of injury to himself which could result in serious injury or death to himself of others should this occur at a critical moment.”

Throughout the time applicable to this matter, Bracey had check-ups at the Veteran’s Affairs Medical Center in Alexandria (the VA) as a result of his having served in the Iraq War as a member of the United States Air Force. During a routinely scheduled visit on May 27, 2009, Bracey reported that he had been experiencing right hip pain since stepping in hole while mowing grass at work several days prior.

The City contends that the WCJ committed manifest error when it found that Bracey proved that he suffered an injury that made him in need of medical care and unable to work because Bracey returned to work at full duty on June 8, 2009, without complaint, and without the need for additional medical care until he was involved in a non-work-related automobile accident on November 28, 2009. Thus, while it concedes in its appellant brief that Bracey did suffer a work-related accident that resulted in his being temporarily disabled due to a strain of his bicep femorous muscle, the City emphatically denies that the accident caused the torn labrum which prevents him from returning to his job as a firefighter for the City.

Bracey counters that the City’s analysis oversimplifies the evidence and Bracey’s actual physical injuries. Bracey submits that when Dr. Webb released him to full duty on June 8, 2009, he was still suffering from right leg pain which he described as one out of ten, which never disappeared, and which increased when he put weight on his right leg and turned. He also points to Dr. Webb’s deposition testimony wherein he stated that: 1) it can be difficult to pinpoint the exact cause of hip pain and that doctors often have to take a “wait-and-see” approach, and 2) 17typically, if hip pain resolves quickly it was due to a strain, but if the pain lingers, it was due to a more serious condition.

Bracey also refers this court to the deposition testimony of Dr. Rush wherein he stated that hip injuries such as a torn labrum can easily be missed and are difficult to diagnose. Bracey further points to Dr. Rush’s opinion that while the automobile accident that Bracey was involved in on November 28, 2009 may have aggravated his torn labrum, it did not cause the tear given Bracey’s physical condition and complaints when he examined Bracey on January 7, 2010. Bracey asks this court to consider Dr. Rush’s belief that the cervical and lumbar strains Bracey sustained in the automobile accident could have masked his torn labrum until those more acute injuries had resolved.

Finally, Bracey submits that he was a credible witness, that the medical evidence supports his claim, and that he carried his burden of proving that he suffered injuries in a work-related accident that render him incapable of returning to work as a firefighter for the City.

In its oral reasons, the WCJ found that Bracey proved by a preponderance of the evidence “that he had an incident that involved him sustaining an injury that made him in need of medical care and made him incapable of working for the City.” The WCJ stated that he based this finding primarily on the Alexandria Fire Department Accident Report, which was completed minutes after the accident, along with the Supervisor’s Accident Investigation Report prepared by Captain Lane later that day, and the Employer Report of Injury/Illness that the City filed with the Office of Workers’ Compensation on May 26, 2009. Each of those reports indicated that Bracey had stepped into a hole or low spot while mowing grass at the fire station. In two of the reports, it was noted that Bracey hurt his | ¿right hip when he turned. In the third, Captain Lane wrote that Bracey’s groin area was hurting after the accident. The WCJ also noted that on the date of the accident, the fire department sent Bracey to Dr. Webb who after examining Bracey, diagnosed him with a bicep femorous muscle strain of the right leg, which caused pain from behind his right knee, along the bicep and up into the buttock and hip.

After having reviewed the testimony and evidence, we cannot say that the WCJ committed manifest error in finding that Bracey was injured in a work-related accident that made him in need of medical care and unable to return to his former job with the City, especially in light of the results of the MRI arthrogram which showed that he likely had a labrum tear in his right hip and Captain Lane’s testimony that even though Bracey worked as a driver, any injured firefighter had to be 100% to return to work should he be pressed into full duty to fight a fire. There is no merit to the City’s first assignment of error.

Causation of Torn Labrum

The City insists that there is an absence of definitive expert testimony to support the WCJ’s finding that Bracey’s torn labrum was caused by his work-related accident. It submits that Bracey’s hip injury was more likely caused by his November 2009 automobile accident, given that he did not voice any complaints of hip or groin pain to Dr. Urbi when he was being treated for depression at the end of 2009. Bracey disagrees, arguing that he voiced a right hip injury on the date of the accident and several days later to his physicians at the VA, long before he was involved in the automobile accident which the City points to as the cause of his hip injury.

In its reasons for judgment, the WCJ stated that the medical evidence successfully rebutted the City’s claim that Bracey did not experience any hip or |3groin pain until long after his work-related accident. The WCJ made particular reference to a note in Bracey’s records from the VA dated May 27, 2009, less than a week after the lawn mower accident, wherein Bracey described having pain in his hip that increased when he twisted in a certain way.

After review of the record, we cannot say that the WCJ’s conclusion that Bra-cey’s torn labrum was caused by his May 2009 work injury was clearly wrong. The City’s second assignment of error is without merit.

Entitlement to TTDs

The City posits that the WCJ erred in finding that Bracey proved his entitlement to TTDs as the facts show that he was able to return to work and earn his full salary, without complaint and without the need for additional medical treatment until after being involved in a non-work-related automobile accident six months after the lawn mower incident at work. Bracey counters that the evidence supports his claims. He concedes that he may not have effectively communicated his initial symptoms to Dr. Webb, and he again points to the testimony indicating that hip injuries can be difficult to explain and diagnose. Finally, Bra-cey submits that he was a credible witness and that the City failed to offer any evidence that would tend to cast any suspicion on the reliability of his testimony.

“The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony.” Green v. Nat’l. Oilwell Varco, 10-1041, p. 13 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 363 (citations omitted) (quoting Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132).

| ipThe WCJ concluded that Bracey established his entitlement to TTDs by clear and convincing evidence. In so concluding, the WCJ noted Dr. Webb’s opinion that Bracey’s labrum tear made him “incapable of performing the job functions of a driver or fire personnel” for the City. Given our affirmation of the WCJ’s finding that Bracey’s work-related accident was the cause of his torn labrum, we cannot say that the WCJ manifestly erred in concluding that Bracey proved his entitlement to TTDs. There is no merit to the City’s third assignment of error.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201 is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. The statute provides that no penalties or attorney fees shall be assessed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer ... had no control.” La.R.S. 23:1201(F)(2). Further, “[t]o avoid the imposition of penalties and attorney fees for the nonpayment of benefits, the employer has a continuing obligation to investigate, to assemble, and to assess factual information before denying benefits.” Romero v. Northrop-Grumman, 01-24, pp. 10-11 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144.
An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error.
Odom [v. Kinder Nursing Home], 956 So.2d at 141-42 (citations omitted). “The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.

Green, 63 So.3d at 364.

h (While the City asserts that the WCJ erred in awarding Bracey penalties and attorney fees, it fails to offer any support for its assertion, instead merely offering the eonclusory statement that the WCJ erred in finding that it acted arbitrarily and/or capriciously in the handling of Bracey’s claim. Bracey counters that the WCJ did not manifestly err in finding that the City failed to reasonably controvert his claim for surgery and other medical benefits, noting that the WCJ found him to be credible.

In awarding Bracey penalties and attorney fees, the WCJ found that given the fact that records from the VA Medical Center showed that Bracey had complained of sharp right hip pain on a May 27, 2009 visit, the City’s continued resistance to recognize the validity of Bracey’s claim that his right hip pain was attributable to his May 2009 work accident and its failure to authorize further medical care for Bracey’s hip injury was arbitrary and capricious.

After having reviewed the testimony and evidence, we cannot say that the WCJ committed manifest error in finding that Bracey had proved his entitlement to penalties and attorney fees. The City’s final assignment of error has no merit.

Bracey’s Answer to Appeal

Bracey answered the City’s appeal to request that it be awarded additional attorney fees for work done on appeal. In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” We award Bracey additional attorney fees of $4,000 for the costs associated with having to defend this appeal.

| 12decree

The judgment rendered by the workers’ compensation judge in favor of Angelo Bracey is affirmed in its entirety. Bracey is awarded additional attorney fees of $4,000 for work performed on this appeal. All costs of this appeal are assessed against the City of Alexandria.

AFFIRMED.

GREMILLION, J., concurs in part and dissents in part and assigns written reasons.

GREMILLION, J.,

concurs in part and dissents in part and assigns written reasons.

hi agree with my colleagues that the primary issue is whether Mr. Bracey injured his right hip as a result of the unwit-nessed May 22, 2009 accident wherein he allegedly stepped in a hole. In my view, the weight of the evidence suggests that he did not.

I find that the weight of the evidence suggests that he sustained a minor strain to a muscle in his right leg, resulting in only missing a few weeks from work and minimal pain.

Further, I find that the weight of the evidence indicates that the right hip injury was caused by a separate, unrelated incident wherein Mr. Bracey jumped from a truck in June 2009 or an unrelated automobile accident that occurred in November 2009 or a combination of those two unrelated incidents.

Nevertheless, it is also true that Mr. Bracey did tangentially reference his right hip in a visit to Dr. Gordon Webb shortly after the subject work-related accident and again when he made an unrelated visit to the V.A. Medical Center about a week after the work-related accident.

This evidence, in my opinion, does not rise to the level of a preponderance. It does, however, fit within the broad bounds of the manifest error of review. Thus, I agree with my colleagues that there is no basis in this record to reverse the 1¿workers’ compensation court with regard to its conclusion that Mr. Bracey was disabled as a result of this accident. I, therefore, join my colleagues in affirming that portion of the trial court’s ruling.

However, I respectfully disagree with the majority’s decision to affirm the penalties and attorney fees. In addition to the fact that the weight of the evidence suggested that Mr. Bracey did not injure his right hip in the subject work-related accident, there is also specific evidence in this record indicating that Mr. Bracey denied a hip injury altogether. And, there is evidence that a medical care provider specifically determined that the right hip injury was caused by an unrelated accident. Thus, I find that the employer reasonably controverted Mr. Bracey’s assertion that his right hip was injured in the subject work-related accident. I would, therefore, reverse the workers’ compensation court’s award of penalties and attorney fees.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Emmanuel LIMA.
    No. 12-1125.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 2013.
    Danny J. Louviere, Opelousas, LA, for Defendants/Appellants, Zerangue’s Bail Bonding, Inc. and Financial Casualty & Surety, Inc.
    Wayne Simoneaud, District Attorney, Parish of St. Martin, St. Martinville, LA, for Defendant/Appellee, State of Louisiana.
    Court composed of Judges SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL.
   COOKS, Judge.

11 FACTS AND PROCEDURAL HISTORY

Emmanuel Lima (Lima) was charged with possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A)(1). Zerangue’s Bail Bonding, Inc. (Zerangue’s) and Financial Casualty & Surety, Inc. (Financial) posted a $100,000.00 appearance bond in favor of the State of Louisiana, securing the release of Lima from the State’s custody pending trial. The bond contained a provision continuing the surety obligation through sentencing. Lima pled guilty under a plea-bargain agreement to the felony offense. The trial court set a date for sentencing. When Lima failed to appear for sentencing, the trial court issued a warrant for his arrest and entered a judgment against Lima and Financial decreeing the bail bond posted by Zerangue’s forfeited and further rendered judgment in favor of the State of Louisiana in the amount of $100,000.00 plus legal interest from date of demand until paid and all costs of the proceedings.

Zerangue’s and Financial filed a motion for discharge and release of surety seeking to set aside the bond-forfeiture judgment. The trial court denied the motion. Ze-rangue’s and Financial appeal. The State has not answered the appeal nor has it filed any brief in opposition.

LEGAL ANALYSIS

We find the trial court erred as a matter of law and, therefore, conduct a de novo review. See Rosell v. ESCO, 549 So.2d 840 (La.1989). Louisiana Code of Criminal Procedure Article 326(B) clearly and expressly states in part:

(2) Upon conviction in any felony case, the bail undertaking shall cease and the surety shall be relieved of all obligations under the bond.
Ii>(3) In all cases, if necessary to assure the presence of the defendant at all future stages of the proceedings the court may in its discretion, in accordance with Article 332 require the defendant to post another bond or other acceptable security, or may release the defendant on bail without surety as provided for in Article 325. The court may continue the existing bail undertaking with the written approval of the surety on the bond. Such approval must be obtained from the surety after conviction.

(Emphasis added)

In a similar case, the First Circuit Court of Appeal reversed the trial court’s dismissal of the bail bond company’s petition for nullity:

The appearance bond contract executed by the State, the defendant, and the surety, and relied on by the trial court and the State to support the continuance of the surety’s obligation post conviction, did contain a provision for continuance of the obligation. However, the contract between the parties cannot supersede the unambiguous, specific statutory provision regulating the bonding obligation. When dealing with bonding companies, the State has a duty to comply strictly with applicable statutory provisions. See State v. McCart, 627 So.2d 761 (La.App. 2d Cir.1993). Thus, the judgment of bond forfeiture was rendered pursuant to an error of law and is a nullity.

State v. Wills, 94-2474, p. 4 (La.App. 1 Cir.4/4/96), 672 So.2d 405, 407. (emphasis added).

This court has also addressed the mandatory requirement of La.Code Crim. P. art. 326 in the context of a conviction and twenty-year sentence followed by a violation of La.R.S. 14:110.1, jumping bail. In State v. Roberson, 01-1171, p. 8 (La.App. 3 Cir. 2/27/02), 809 So.2d 1173, 1178 (emphasis added) relying on the holding in Wills quoted above, we reversed the conviction finding the defendant could not be charged with jumping bail because “the three bail bonds posted prior to pronouncement of his sentences were extinguished by operation of law and the State failed to secure additional bond, or extend the original bond with written approval of the surety[ ]” as required by law. Likewise, in this case, the original bond was not renewed after conviction by any written approval from the sureties Land therefore was extinguished by operation of law.

The judgment of the trial court is therefore reversed, the judgment of bond forfeiture is a nullity and is set aside. Ze-rangue’s and Financial are discharged as sureties. All costs in these proceedings, including the costs below, are to be paid by the State in the amount of $893.50.

REVERSED AND RENDERED.

      . Zerangue's was not listed in the bond-forfeiture judgment.