author: SANDRA CABRINA JENKINS, Judge.

text:
    Venus WILLIAMS v. Daniel MATHIEU and State Farm Mutual Automobile Insurance Company.
    No. 2013-CA-1373.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 29, 2014.

      Edward J. Womac, Jr., Brian L. King, Edward J. Womac, Jr. & Associates, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Joseph M. Messina, Stephen M. Kepper, Lobman Carnahan Batt Angelle & Nader, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

_JjThis is a personal injury action arising out of a motor vehicle accident. Defendants appeal the trial court’s judgment in favor of plaintiff, awarding $83,761 in damages. For the reasons discussed below, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2009, plaintiff, Venus Williams, filed suit against Daniel Mathieu and State Farm Mutual Automobile Insurance Co., Mathieu’s insurance carrier, in order to recover damages for injuries she sustained in a rear-end automobile accident which occurred on March 5, 2008. Following a bench trial, the trial court rendered judgment in favor of plaintiff and awarded $65,000 -in general damages and $18,761 for past medical specials. •

Defendants have filed this appeal asserting the trial court erred in: (1) awarding damages to plaintiff because plaintiff failed to satisfy her burden of proving that her injuries were caused by the automobile accident at issue; and (2) its award of general damages and past medical specials.

| .DISCUSSION

Causation

In their first assignment of error, defendants maintain the trial court erred in finding that plaintiffs injuries were caused by the accident at issue because the accident resulted in relatively little damage to the vehicles involved and the medical history proves plaintiffs injuries preexisted the accident. Additionally, defendants argue that the medical testimony offered at trial did not prove a causal relationship between the accident and plaintiffs injuries.

In a personal injury action, plaintiff bears the burden of proving a causative link between the resulting injury and the accident at issue. Woolfolk v. Trism, Inc., 07-0749, p. 3 (La.App. 4 Cir. 1/16/08), 976 So.2d 216, 220 (citing Maranto v. Goodyear Tire & Rubber Co., 94-2603, p. 3 (La.2/20/95), 650 So.2d 757, 759). The standard for determining the causal relationship is whether plaintiff proved “by a preponderance of the evidence through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.” Ducombs v. Nobel Ins. Co., 03-1704, pp. 7-8 (La.App. 4 Cir. 7/21/04), 884 So.2d 596, 601 (citing Maranto, 94-2603, p. 3, 650 So.2d at 759).

Plaintiff testified at trial that she started feeling pain the day after the accident but did not seek medical attention immediately as she “just endured it until [she] couldn’t anymore.” At trial, plaintiff introduced the testimony of several medical doctors with whom she sought treatment, including her chiropractor, Dr. Celine Lemieux. Dr. Lemieux testified that she saw plaintiff on June 12, 2008, as a result of injuries plaintiff sustained in a March 5, 2008 car accident. Dr. Lemieux | .testified that plaintiffs complaints included “lower back pain, weakness in the leg, excessive thirst, poor circulation, lower back pain, leg pain, numbness in the feet, foot pain and leg cramps.” Dr. Lemieux stated that she performed a number of tests at this initial visit which revealed objective signs of injuries.

Dr. Lemieux continued to treat plaintiff for her injuries for several years with chiropractic manipulation. Dr. Lemieux testified that because plaintiff was not responding- as Dr. Lemieux expected, she recommended plaintiff for a magnetic resonance imaging (“MRI”) scan which revealed herniated discs at C3-4 and C5-6, a bulge at C6-7, and a bulging disc at L5-Sl; Dr. Lemieux then modified plaintiffs treatment, in accordance with the MRI’s findings, to a low-force technique and added cervical traction. At trial, Dr. Lemieux testified that plaintiff had not been discharged as she was still receiving treatment two to four times per month. Finally, Dr. Lemieux testified that it was her opinion that plaintiffs injuries are medically, more probable than not, a result of the March 2008 car accident.

Dr. Vaclav Hamsa, an orthopedic surgeon, also testified on plaintiffs behalf at trial. Dr. Hamsa examined plaintiff on July 13, 2011, at which time plaintiff went through her medical and health history and described her symptoms; Dr. Hamsa performed a physical exam which revealed objective symptoms. Dr. Hamsa testified that based on what plaintiff reported to him and the findings he reviewed from plaintiffs MRI scan, in his opinion, plaintiffs injuries are medically, more probable than not, a result of the March 2008 car accident.

[4Plaintiff is assisted in hér burden of proving causation by the presumption described in Housley v. Cerise, 579 So.2d 973 (La.1991) wherein the Louisiana Supreme Court stated that:

[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.

D’Angelo v. Guarino, 10-1555, p. 8 (La.App. 4 Cir. 3/9/12), 88 So.3d 683, 689 (quoting Housley, 579 So.2d at 980). Thus, in order to defeat this presumption, defendants must point to an independent event which could have caused the injury in question. Williams v. Stewart, 10-0457, p. 7 (La.App. 4 Cir. 9/22/10), 46 So.3d 266, 272 (citing 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, § 4.3).

At trial, defendants attempted to relate plaintiffs injuries to a thirteen-year-old automobile accident plaintiff was involved in. In the alternative, defendants argued that plaintiffs injuries were sustained while performing job related duties as a laborer with the Jefferson Parish drainage department. Plaintiff testified that prior to the accident at issue, she was pain-free. Plaintiff confirmed that she was in another automobile accident in 2000 and was discharged from medical treatment in 2001. Plaintiff further testified that she did not hurt her neck or back in any other way before the 2008 accident. No evidence was introduced to negate that testimony. Moreover, both Dr. Lemieux and Dr. Hamsa attributed plaintiffs injuries to the 2008 automobile accident. While medical testimony was given at trial that aging or “turning the wrong way or picking up a pencil” can herniate a |5disc, the finder of fact cannot speculate as to the array of possibilities for causation when medical witnesses have established an incident as the probable cause of injury. Maranto, 94-2603, pp. 6-7, 650 So.2d at 762.

An appellate court can only decide whether the trial court’s findings were reasonable, not whether they were right or wrong. Broussard v. State ex rel. Office of State Bldgs., 12-1238, p. 13 (La.4/5/13), 113 So.3d 175, 186 (citing Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993)). Thus, an appellate court may not set aside a trial court’s factual finding unless it is clearly wrong or manifestly erroneous. Id. (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). While an appellate court must review the trial court’s conclusions in light of the entire record, it “must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently.” Menard v. Lafayette Ins. Co., 09-1869, p. 15 (La.3/16/10), 31 So.3d 996, 1007 (citing Rosell, 549 So.2d at 844).

After a review of the record, we find that a reasonable factual basis exists for a finding that plaintiffs back and neck injuries were a result of the March 5, 2008 automobile accident. Thus, we cannot say the trial court manifestly erred.

Quantum, of Damages

In their second and final assignment of error, defendants argue the trial court erred in awarding plaintiff $65,000 in general damages and $18,761 in past medical specials.

A. General Damages

General damages, such as pain and suffering, are those that are inherently speculative in nature and cannot be set with mathematical certainty. Reeves v. Grove, 10-1491, p. 4 (La.App. 4 Cir. 9/21/11), 72 So.3d 1010, 1013 (citing Parker v. Robinson, 05-0160, p. 1 n. 2 (La.App. 4 Cir. 2/22/06), 925 So.2d 646, 648; Moody v. Blanchard Place Apartments, 34,587, pp. 27-28 (La.App. 2 Cir. 6/20/01), 793 So.2d 281, 297). When damages are not susceptible to exact calculations, great discretion shall be left to the trial court for the reasonable assessment of these damages. La. C.C. art. 1999.

A general damages award should only be disturbed when the trial court has abused its broad discretion. Munch v. Backer, 10-1544, p. 8 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 188 (citing Bouquet v. Wal-Mart Stores, Inc., 08-0309, pp. 4-5 (La.4/4/08), 979 So.2d 456, 459). If the award is supported by the evidence and a reasonable trier of fact could have reached that amount, the award will not be deemed excessive. Reeves, 10-1491, p. 3, 72 So.3d at 1013 (citing Maney v. Evans, 00-0798, p. 5 (La.App. 4 Cir. 2/14/01), 780 So.2d 1136, 1140). Conversely, if the award is so disproportionate to the injury that it “shocks the conscience,” the trial court has clearly abused its discretion. Guillot v. Daimlerchrysler Corp., 08-1485, pp. 30-31 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 196 (citing Logan v. Brink’s, Inc., 09-0001, p. 13 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 540).

In addition, defendant must compensate plaintiff for the full extent of the injuries sustained, even if defendants simply aggravated a preexisting condition. Gaunt v. Progressive Sec. Ins. Co., 11-1094, p. 33 (La.App. 4 Cir. 6/8/12), 92 So.3d 1250, 1271 (citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993)). However, before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim’s current condition must be established. Id. (citing Logan, 09-0001, p. 10, 16 So.3d at 539).

Defendants contend the general damages award should be reduced to be consistent with other awards for similar injuries, however, this contention is |7misguided. Only after an abuse of discretion is established is an examination of awards in similar cases appropriate. Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711 (citing Reck v. Stevens, 373 So.2d 498, 501 (La.1979); Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 834 (La.1991); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993)).

Applying the foregoing appellate standards to the general damages award, we find the trial court did not abuse its discretion in awarding plaintiff $65,000 as plaintiff has undergone treatment for more than five years. Parenthetically, any consideration of comparable awards would reveal similar results. See, e.g., Joseph v. Archdiocese of New Orleans, 10-0659 (La.App. 4 Cir. 11/10/10), 52 So.3d 203 (award of $30,000 in general damages was not an abuse of discretion where motorist suffered soft tissue injury which doctor estimated only ten percent of the injury was the result of the accident at issue); Ruffin v. Burton, 08-0893 (La.App. 4 Cir. 5/27/09), 34 So.3d 301 (award of $125,000 in general damages to motorist who underwent over two years of regular treatment for back, neck, and shoulder injuries sustained in an automobile accident was not an abuse of discretion); Tremblay v. Allstate Ins. Co., 05-0956 (La.App. 4 Cir. 3/21/07), 955 So.2d 700 (award of $40,000 in general damages to motorist who endured fifteen months of treatment for cervical and thoracic injuries sustained in an automobile accident was not an abuse of discretion).

B. Past Medical Expenses

Special damages, such as past medical expenses, are those which have a “ready market value,” such that the amount of damages can be calculated with relative certainty. Kaiser v. Hardin, 06-2092, p. 11 (La.4/11/07), 953 So.2d 802, 810 (citing McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, 774). |sAn appellate court may not set aside this finding unless, in view of the entire record, it is manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844 (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973)). Moreover, where there is conflict in the testimony, reasonable evaluations of credibility and inferences of fact may not be set aside upon review. Id. (citing Arceneaux, 365 So.2d at 1333; Canter, 283 So.2d at 724). Nevertheless, the trial court’s discretion is more limited in assessing special damages than with general damages. Donaldson v. Hudson Ins. Co., 12-1013, p. 8 (La.App. 4 Cir. 4/10/13), 116 So.3d 46, 52 (citing Greenhead Gun Club, L.L.C. v. City of Shreveport, 40,045, p. 14 (La.App. 2 Cir. 10/12/05), 914 So.2d 62, 71).

Defendants contend the trial court erred in its award of past medical specials because the treatment was not a result of the accident at issue. In the alternative, defendants argue they are not responsible for the entirety of the medical expenses because of plaintiffs gaps in treatment. As stated above, we find the record testimony and evidence establishes a causal relationship between the accident and plaintiffs injuries. Thus, the treatment plaintiff received is related to the accident and defendant’s first argument is without merit.

In addressing the second argument, defendants assert that Dr. Lemieux cleared plaintiff for employment, which involved “heavy lifting,” ón September 20, 2010, even though Dr. Lemieux had not treated plaintiff since May 20, 2010. Defendants argue the record testimony proves that plaintiff completed her treatment for the injuries related to the accident on May 20, 2010, and her medical expenses when she returned to treatment on February 3, 2011 and thereafter are unrelated to the accident at issue. Defendants therefore contend the award for medical expenses should be reduced to $9,835.

| ^Defendants in brief cite Bernard v. Hartford Ins. Co., 09-71, p. 5 (La.App. 3 Cir. 6/3/09), 12 So.3d 1098, 1102, as authority for their argument that a trial court may use a break in treatment as a factor when determining whether said treatment is related to the subject accident (citing Griffin v. Kurica, 03-190, p. 7 (La.App. 5 Cir. 6/19/03), 850 So.2d 807, 811). In the instant case, there is no proof whether the trial court used plaintiffs gap in treatment as a factor in its analysis. Nevertheless, a determination either way would not be an abuse of discretion as this finding is based on reasonable credibility determinations and factual evaluations which will not be disturbed unless manifestly erroneous. Keller v. Monteleon Hotel, 09-1327, p. 2 (La.App. 4 Cir. 6/23/10), 43 So.3d 1041, 1042 (quoting Rosell, 549 So.2d at 844). We do not find the trial court abused its wide discretion and therefore refuse to upset the award of past medical specials.

DECREE

For the foregoing reasons, the trial court’s judgment in favor of plaintiff, Venus Williams, and against defendants, Daniel Mathieu and State Farm Mutual Automobile Insurance Co., is affirmed.

AFFIRMED

      . Defense counsel stipulated to Dr. Lemeiux’s qualifications as an expert in the field of chiropractic medicine.

      . Defense counsel stipulated to Dr. Hamsa's qualifications as an expert in the field of orthopedics.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Ausborn Cleve GRANT, husband of/and Tina Marie Grant, Plaintiffs-Appellants v. Kelly SNEED, Ben Freelon and Weyerhaeuser Company, Defendants-Appellees.
    No. 49,511-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Law Office of Barry Landry by Barry J. Landry, LaPlace, LA, for Joint Appellants, Ausborn Cleve Grant and Tina Marie Grant.
    Colvin, Smith & McKay by Cole B. Smith, Shreveport, LA, for Joint Appellant/Intervenor, Louisiana Safety Association of Timbermen-Self Insurers Fund.
    Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, by Lottie L. Bash, Leisa B. Lawson, for Appellees.
    Before BROWN, LOLLEY and GARRETT, JJ.
   GARRETT, J.

| jThe plaintiffs, Ausborn Cleve Grant and Tina Marie Grant, and the intervenor, Louisiana Safety Association of Timber-men-Self Insurers Fund (“Timbermen”), appeal from the trial court’s grant of summary judgment in favor of the defendants, Kelly Sneed, Ben Freelon, and Weyer-haeuser Company. The trial court found that the plaintiffs’ tort claim was barred because Weyerhaeuser was the statutory employer of Grant, and their exclusive remedy was in workers’ compensation. For the following reasons, we reverse and remand for further proceedings.

FACTS

Weyerhaeuser claimed to have a contract to sell two-by-four lumber to Lumbermen’s Merchandising Corporation (“LMC”), with delivery to be made to Orange County Building Material in Vidor, Texas. The purported contract specified that the lumber was to come from Weyer-haeuser’s mill in Dodson, Louisiana. Wey-erhaeuser also had a mill in Taylor, Louisiana, which did not have a planer to finish the boards. According to Weyerhaeuser, some of the lumber from the Taylor mill was transported to the Dodson mill for finishing before it was shipped to LMC.

On January 17, 2008, Weyerhaeuser entered into a Core Carrier Truckload Motor Carrier contract with Will Transport Company (“Will Transport”) to haul lumber from Taylor to Dodson. The contract was signed by Karl Pentecost in his capacity as manager of Will Transport and specified that Will Transport was an independent contractor and the employees of Will Transport were not the employees of Wey-erhaeuser.

li>On January 3, 2005, Will Transport entered into an equipment lease agreement with Dan Varnado, who did business as V & M Trucking, whereby V & M was to lease a truck to Will Transport and was to provide a driver for the truck. The lease specified that Varnado was an independent contractor. Grant worked for V & M and was assigned to drive the truck leased to Will Transport.

On June 19, 2008, Grant drove V & M’s truck to the Taylor mill to pick up a load of lumber to transport to Dodson. Kelly Sneed was the forklift operator employed by Weyerhaeuser who loaded loose bundles of lumber onto the truck. After the bundles were loaded, Grant was tying down the load when he alleges that a two-by-four fell, striking him on the left side of the head and shoulder. V & M had workers’ compensation insurance with Timber-men. Grant made a workers’ compensation claim against V & M, which was paid on its behalf by Timbermen.

On June 2, 2009, Grant and his wife filed suit for personal injury and damages against Weyerhaeuser and Sneed, as well as Ben Freelon, the plant manager at the Taylor mill. They claimed Grant was injured through the negligence of the defendants. His wife asserted a loss of consortium claim. Timbermen filed a petition of intervention, seeking to recover past and future workers’ compensation benefits if the plaintiffs were successful in their damage claim against the defendants.

On October 18, 2013, the defendants filed a motion for summary judgment, claiming that Weyerhaeuser was the statutory employer of Grant and the plaintiffs’ exclusive remedy was in workers’ compensation, under |sLa. R.S. 23:1032(A) and 23:1061. The defendants asserted that the two-contract theory applied, whereby Weyerhaeuser’s contract with LMC, its contract with Will Transport to fulfill the LMC contract, and Will Transport’s contract with V & M extended immunity from tort to Weyerhaeuser as a principal, regardless of how far removed it was from the direct employer of the injured worker. The defendants also argued that Timber-men’s intervention must fall.

The plaintiffs and Timbermen opposed the motion for summary judgment, claiming that Weyerhaeuser did not prove its status as the statutory employer of Grant. At the conclusion of the hearing, the trial court issued this ruling from the bench:

After reviewing the briefs and arguments of both-all-of the attorneys, I’m going to adopt the argument of the defendants in this case and grant that there is no material issue and no material fact. And I think, he is a statutory employer. Therefore, the Motion for Summary Judgment is, therefore, granted.

The claims of the plaintiffs and Timber-men against the defendants were dismissed with prejudice. The plaintiffs arid Timbermen appealed.

SUMMARY JUDGMENT PRINCIPLES

Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show |4that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C. art. 966(C)(2).

An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La.C.C.P. art. 967; Samaha v. Rau, supra.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 S‘o.2d 342 (La.1991); Lewis v. Coleman, 48,173 (La.App.2d Cir.6/26/13), 118 So.3d 492, writ denied, 2013-1993 (La.11/15/13), 125 So.3d 1108.

Under our de novo review, we find that the trial court erred in granting summary judgment in favor of the defendants. As explained | .¡below, we find that the defendants are unable to show that they are entitled to relief as a matter of law or that there are no genuine issues of material fact.

OWNER OPERATOR EXCLUSION & APPLICABILITY OF LA. R.S. 23:1021(7) & (10)

The plaintiffs and Timbermen argue on appeal that, because Grant was the driver for a trucking owner-operator, and under the terms of the contracts between the parties, Weyerhaeuser is not responsible to Grant under Louisiana law for any workers’ compensation benefits and, therefore, is not entitled to claim tort immunity. This argument has merit and establishes that Weyerhaeuser is unable to show that it is entitled to a summary judgment as a matter of law. The plaintiffs and Timber-men contend that La. R.S. 23:1021(7) and (10) apply here and specifically exclude the application of the Louisiana Workers’ Compensation Act (“LWCA”) to this case.

LLa. R.S. 23:1021(7) provides:

As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from, the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter. [Emphasis supplied.]

La. R.S. 23:1021(10) specifies:

(10) “Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver. [Emphasis supplied.]

La. R.S. 23:1021(7) and (10) were added by La. Acts 2004, No. 188, § 1. This legislation and the jurisprudence interpreting it are clearly adverse to the position being taken by the defendants in this matter. Although the |7cases discussed below arose in the context of a claim for workers’ compensation benefits, the reasoning by the courts is instructive in this case.

In 2008, this court considered the applicability of the new provisions in Hair v. Louisiana Crane & Trucking Co., 43,566 (La.App.2d Cir.9/17/08), 996 So.2d 435. The plaintiff trucker hauled goods for the defendant carrier. In 2005, the business relationship was formalized by a contract which specified that the plaintiff was an independent contractor. The plaintiff was injured hauling a load for the defendant carrier and sought to recover workers’ compensation benefits. The defendant filed a motion for summary judgment claiming that workers’ compensation benefits were not due because the plaintiff was an independent contractor. This court affirmed the grant of summary judgment in favor of the carrier, finding that La. R.S. 23:1021(7) and (10) applied and there was no employer-employee relationship between the plaintiff and the defendant.

In Council v. FedEx Custom Critical, Inc., 46,558 (La.App.2d Cir.9/21/11), 73 So.3d 461, writ denied, 2011-2332 (La.12/2/11), 76 So.3d 1178, this court again considered the applicability of La. R.S. 23:1021(7) and (10). In that case, the plaintiff signed an independent contractor agreement with SB Transports, which had an agreement for “Leased Equipment and Independent Contractor Services” with FedEx. The agreement between SB Transports and FedEx specified that neither SB Transports nor any of its employees or agents would be considered the employees of FedEx. The plaintiff was injured loading a truck and filed a claim for workers’ compensation benefits against SB Transports and FedEx. | ⅝⅛ affirming the dismissal of the plaintiffs action against FedEx on an exception of no right of action, this court observed that, in enacting La. R.S 23:1021(7) and (10), the legislature intended to override prior law with respect to contract drivers.

Recently, in Bridges v. New Orleans Trucking & Rental Depot, Inc., supra, the plaintiff truck driver drove for Varice James, an owner operator who had an independent contractor agreement with New Orleans Trucking. The plaintiff was injured and filed a workers’ compensation claim against James and New Orleans Trucking. New Orleans Trucking asserted that it was not required to pay workers’ compensation benefits to the plaintiff because he was an independent contractor. In reversing a judgment awarding workers’ compensation benefits, the first circuit considered La. R.S. 23:1021(7) and (10), noting that the legislature has recognized that owner operators, and their drivers, are not employees of the common carrier if the owner operator and the common carrier enter into a written contract that identifies the owner operator as an independent contractor. La. R.S. 23: 1021(7) and (10) precluded the plaintiffs entitlement to workers’ compensation benefits from New Orleans Trucking. The first circuit quoted La. R.S. 23:1061 in a footnote, but obviously found it did not apply to the case. See also Course v. Fox Wolff Const., 08-58 (La.App. 5th Cir.5/27/08), 987 So.2d 277, writ denied, 2008-1396 (La.9/26/08), 992 So.2d 992.

In this case, the contract between Wey-erhaeuser and Will Transport was entitled “Core Carrier Truckload Motor Carrier Contract (U.S.)” and |3was signed by the representative of Will Transport on January 17, 2008. The contract specified as follows:

12. INDEPENDENT CONTRACTOR. At all times during the term of this Agreement, and any renewals, Carrier will:
12.1 At its sole cost and expense, employ or engage the services of fully qualified personnel in the operation of vehicles, equipment and facilities. Consistent with its own labor practices, Carrier will be responsible for its labor relations policies, and all collective bargaining. Weyerhaeuser will have no control or right to exercise any control whatsoever over the employees of Carrier in the performance of Carrier’s obligations under this Agreement or any other agreement entered into between the parties.
12.2 Be an independent contractor and the persons operating vehicles and equipment will not be employees of Weyerhaeuser.
12.3 Utilize such individuals and organizations as it may deem necessary in connection with Services.
12.4 Assume full responsibility for payment of all freight bills and other invoices for transportation, and other services, performed for its benefit by underlying drayage agents, contractors, and line-haul motor carriers. If Weyer-haeuser is sued in connection with Carrier’s failure to comply with this sub-paragraph, Carrier will indemnify and reimburse Weyerhaeuser for all costs and attorney fees associated with defense or payment.
12.5 Assume full responsibility for the withholding and payment of all local, state, and federal payroll taxes of all its own employees.
12.6 Assume full responsibility for payment of employer social security taxes, unemployment insurance taxes, and for making required contributions to hospitalization and medical plans, old age pension plans, and related employee benefit and protection plans maintained by Carrier.
12.7Pay the required premiums for worker’s compensation insurance on its own employees. [Emphasis supplied.]

linThe contract between Weyerhaeuser and Will Transport also contained “Attachment G” dealing with insurance, which specified in pertinent part:

Carrier will at all times during the Term of Agreement, at its expense, maintain insurance of the types and amounts specified below:
1. Worker’s Compensation Insurance as required by applicable law or regulation.

The agreement between Will Transport and Dan Varnado, who did business as V & M Trucking, was executed on January 3, 2005. The agreement was labeled an equipment lease and Varnado was designated an independent contractor. Will Transport agreed to lease a specific truck owned and operated by Varnado and Var-nado agreed to furnish, at his cost, a driver to operate the truck.

Will Transport was a common carrier. Varnado, doing business as V & M, was an owner operator and was designated as an independent contractor in the written agreement with Will Transport. Therefore, under La. R.S. 23:1021(10), V & M and Grant, who was a driver provided by V & M, are not employees of Will Transport for purposes of the LWCA. Further, the contractual relationship between Will Transport and Weyerhaeuser specifically provided that Will Transport was an independent contractor and its employees were not employees of Weyerhaeuser. We find that La. R.S. 23:1021(7) and (10) apply and, under these statutes, | n Weyerhaeuser would not be liable to Grant for workers’ compensation benefits. Therefore, because workers’ compensation is not Grant’s exclusive remedy against Weyerhaeuser and its employees, the plaintiffs’ tort claim and the intervenor’s action against the defendants company are not barred. The trial court erred in granting summary judgment in favor of the defendants because they are unable to, show entitlement to relief as a matter of law.

TWO CONTRACT THEORY

The plaintiffs and Timbermen have also addressed the defendants’ contentions that the two contract theory applies in this matter, making workers’ compensation the exclusive remedy available to the plaintiffs in this case. They argue that Weyerhaeu-ser has not shown that the two contract theory of the LWCA applies in this matter to make Weyerhaeuser the statutory employer of Grant. Our ruling regarding the applicability of the owner operator exclusion, discussed above, may render consideration of this argument moot. Nevertheless, we also note from our de novo review that there are deficiencies in the proof submitted by Weyerhaeuser in support of its motion. These deficiencies also preclude a grant of summary judgment in favor of the defendants.

In some instances, an employer may be the statutory employer of a worker that it does not directly employ. Dugan v. Waste Mgmt., Inc., 45,407 (La.App.2d Cir.6/23/10), 41 So.3d 1263. See also McGinnis v. Waste Mgmt. of La. LLC, 40,330 (La.App.2d Cir.10/26/05), 914 So.2d 612. The exclusive remedy provision of the workers’ compensation statute | ^precludes an employee from filing a lawsuit for damages against “his employer, or any principal ... or employee of such employer or principal^]” La. R.S. 23:1032(A)(l)(a). A “principal” is defined in La. R.S. 23:1032(A)(2) as “any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.” Dugan v. Waste Mgmt., Inc., supra.

La. R.S. 23:1061 provides in pertinent part:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist | ^between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

When a defendant invokes the immunity of a statutory employer under La. R.S. 23:1032, it has the burden of proving this immunity. If La. R.S. 23:1061 is being used by the principal as a shield to insulate himself from tort liability, then this takes the form of an affirmative defense as to which the principal has the burden of proof. 13 H. Alston Johnson III, Workers’ Compensation Law & Practice (La. Civil Law Treatise) § 126 (5th ed. 2010), pp. 268-269. The statute is strictly construed against the party claiming the immunity. McGinnis v. Waste Mgmt. of Louisiana LLC, supra.

There are two bases for finding statutory employment: (1) being a principal in the middle of two contracts, referred to as the “two contract theory,” or (2) the existence of a written contract recognizing the principal as the statutory employer. Dugan v. Waste Mgmt., Inc., supra. The parties in this matter agree there is no written contract recognizing Weyerhaeu-ser as the statutory employer of Will Transport, V & M, or Grant. The defendants’ sole argument is that Weyerhaeuser is a statutory 'employer under the two contract theory.

114Under La. R.S. 23:1061, the two contract theory applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Auth., 2002-1072 (La.4/9/03), 842 So.2d 373; Dugan v. Waste Mgmt., Inc., supra. The two contract statutory employer status contemplates relationships among at least three entities: a general contractor who has been hired by a third party to perform a specific task, a subcontractor hired by that general contractor, and an employee of the subcontractor. Naiman v. Goldsberry Operating Co., 43,-266 (La.App.2d Cir.6/11/08), 987 So.2d 326.

The defendants bore the burden of proving the application of the two contract theory in this case. The first requirement of the theory is that the principal enters into a contract with a third party. Weyer-haeuser claims its agreement with LMC satisfied this requirement. The record does not support this claim. The three-page document that the defendants urge is a contract with LMC is not signed by either party. In his affidavit, Gary Everett, general manager of southern pine lumber sales for Weyerhaeuser, acknowledged that the contract with LMC was never signed. He claimed there was a verbal agreement between the parties in the fall of 2007. The first page of the unsigned document is entitled “2007 Mill Direct Contract Terms of Sale Southern Pine Lumber.” The next page is entitled “2008 Mill | ^Direct Contract Terms of Sale Southern Pine Lumber.” The third page is blank. The document contains a vague formula for determining the price of lumber. It is difficult to determine from the document how much lumber was to be shipped. Presumably the price of the lumber was more than $500. Regarding the proof of contracts not required to be in writing, with a price or value in excess of $500, the contract must be proved by at least one witness and other corroborating circumstances. La. C.C. art. 1846. The only proof of any alleged contract is the affidavit of Everett. No official from LMC gave an affidavit or deposition confirming the existence of the contract. There are no corroborating circumstances showing the existence of a contract with LMC. Without this critical element of proof, the defendants failed to show that they are entitled to summary judgment.

Additionally, even if the defendants had proven the existence of a contract with a third party which required that work be performed, the defendants also failed to show that Grant was performing work to fulfill that contract at the time his injury occurred. While there is some indication that Grant hauled primarily between Taylor and Dodson, there is no showing that the lumber involved in this case was to be used in satisfaction of the purported contract with LMC. Therefore, the defendants have failed to establish another element of proof necessary to support their motion for summary judgment.

| ^CONCLUSION

For the reasons stated above, the trial court erred in granting summary judgment in favor of the defendants, Weyer-haeuser Company, Kelly Sneed, and Ben Freelon, dismissing the claims of the plaintiffs, Ausborn Cleve Grant and Tina Marie Grant, and the intervenor, Louisiana Safety Association of Timbermen-Self Insurers Fund. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the defendants.

REVERSED AND REMANDED.

      . The defendants argue that, because the plaintiffs and Timbermen did not, at the hearing on the motion for summary. judgment, specifically raise the issue of whether the ex-elusion of La. R.S. 23:1021(10) applies to this case, the argument has been waived and cannot be asserted for the first time on appeal. La. C.C.P. art. 2164 provides that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. URCA-Rule 1-3 states:
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall bé as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.
      The issue of whether any of the parties are independent contractors so as to exclude application of the exclusive remedy of the LWCA as to the defendants was raised in the trial court in the opposition to the motion for summary judgment. The plaintiffs and Tim-bermen have simply asserted additional reasoning in support of their argument. One of the cases now cited to this court, Bridges v. New Orleans Trucking & Rental Depot, Inc., 2013-1969 (La.App. 1st Cir.6/27/14), 146 So.3d 288, was rendered after the hearing held below. We note that this matter is before us on appeal from the grant of a motion for summary judgment and our standard of review is de novo. We are obligated to consider all relevant law. The record contains all relevant evidence necessary to evaluate the argument. The defendants had ample opportunity to address the contentions in their brief to this court and in oral argument of this matter. In the interest of justice and judicial economy, we will consider the argument.

      . The defendants contend that Will Transport admitted it was a statutory employer of Grant and liable for workers' compensation benefits. Any agreement that may have been confected between Will Transport and Grant as to liability for workers’ compensation benefits has no bearing on our examination and application of the pertinent law in this matter regarding the defendants' immunity from tort liability.

      . It is interesting to note that these two pages appear to have been taken from two separate documents.


author: PITMAN, J.

text:
    Natalie Dawson HATFIELD, Plaintiff-Appellee v. George Eric HATFIELD, Defendant-Appellant.
    No. 49,493-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Robert I. Thompson, III, Shreveport, for Appellant.

      Booth, Lockard, Politz & Lesage, L.L.C., by Nyle A. Politz, Shreveport, for Appellee.
    Before MOORE, PITMAN & GARRETT, JJ.
   PITMAN, J.

Ijn this suit to modify child support filed by his former wife, Plaintiff Natalie Hatfield Holley, Defendant George Hatfield appeals the imputation to him of án annual income of $100,000 for child support calculation as a sanction for failure to provide the trial court with certain documentation. Defendant also appeals the imposition of other sanctions and the trial court’s final determination of child support due. For the following reasons, we affirm the judgment of the trial court.

FACTS

Natalie and George Hatfield were married in May 1995 and divorced in August 1997. Two children were born of the marriage, and they are now 18 and 17 years old respectively. Substantial litigation between the parties concerning child support and custody between 1996 and 2001 was documented in the record. An order for child support was entered in August 1998 that went unmodified until January 2010.

At that time, Plaintiff requested an increase in child support with the Webster Parish Support Enforcement Office, and Defendant filed an answer and reconven-tional demand seeking a change of custody. Because of this request for change of custody, the matter was transferred to the district court, where the parties began the process of financial discovery. Defendant decided to dismiss his reconventional demand. The request to modify child support continued. Years of litigation ensued with motions to compel discovery, motions to dismiss, motions for protective orders and motions in limine being filed. Due to the complexity of Defendant’s multiple business enterprises and the financial information to be provided, Susan Whitelaw, li>CPA, was appointed as a special master to review financial documents and make recommendations concerning the child support owed by the parties. A mental health professional, Durrell Tuberville, was appointed by the trial court to make recommendations regarding custodial matters.

In April 2012, Plaintiff filed a motion in limine and for sanctions for Defendant’s failure to comply with the special master’s request for document production, which specifically listed the documents necessary for her review. The trial court issued, without prejudice, an interim order increasing Defendant’s support obligation to $875 per month pending further order of the court.

In February 2013, Plaintiff filed a revised petition for rule nisi for contempt, sanctions and motion in limine. A hearing was held on April 9, 2013, at which time the trial court took testimony from the special master. Ms. Whitelaw testified that Plaintiff had provided her the documentation necessary to review Plaintiffs financial situation and that Plaintiff had made payments to her for the work she had already performed. The attorneys questioned the special master regarding exactly which requested documents Defendant had not provided. The special master also testified that Defendant had not yet paid her for the work she had performed.

A judgment was entered on the motion on April 25, 2013, ordering Defendant to produce numerous financial documents and which stated that, in default of the production of the requested documents by the assigned date, Defendant would have imputed to him for the purpose of support computation an annual income of $100,000, without any chance of | .¡contravening that amount. The trial court reserved the right to impose other sanctions against Defendant.

A trial was held on September 19, 2018, which encompassed not only the rule to increase child support, but also two rules for contempt filed by the parties, including Plaintiffs rule for contempt for failure to provide documentation and for sanctions. The trial court found that Defendant had not complied with the court order to provide the documentation; imputed to him an annual income of $100,000 for purposes of computing the child support obligation; and ordered him to pay attorney fees in the amount of $8,500, to reimburse fees paid to the special master by Plaintiff of $4,700, to reimburse fees paid to Dr. Tu-berville of $255 and to pay $437.50 child support due on September 15, 2013. The trial court also ordered Defendant to pay the outstanding balance due of $1,089.52 to the special master. The trial court further entered an order that Defendant pay child support of $470 per month for the period of February 1, 2010, through April 30, 2012, and $875 per month for the period of May 1, 2012, through the first installment due on September 1, 2013. With regard to those time periods, the trial court determined that Defendant owed $32,022.50 for arrearages, less credits for sums paid. Finally, the trial court found that Defendant owed Plaintiff child support in the amount of $1,200 per month payable in equal installments of $600 due on the 1st and 15th day of each month. Defendant appeals this judgment.

DISCUSSION

Defendant argues that the trial court abused its discretion under La. C.C.P. art. 1471 in sanctioning him for failure to comply with the court order to produce documents by imputing to him the annual income of $100,000, asserting that the imposition caused the trial court to err in the final calculation of child support he owed. Defendant also objects to the orders to pay $3,500 in attorney fees and $4,700 to the special master. He argues that, although the trial court has considerable leeway in issuing sanctions for violating a court order, the sanctions may, nonetheless, be abusive. Defendant contends that he attempted to comply with the trial court’s order for production to the special master, but that some of the documents ordered did not exist or were not in his possession or under his control. He further argues that the imputation of the $100,000 annual income resulted in the erroneous award of child support because his income forms the largest component of the child support formula, and there is no probable certainty that the child support award is correct. He asserts that the trial court used “round numbers” to determine the amount of child support owed. Defendant also argues that it was error for the trial court to order him to pay attorney fees and fees of the special master since the special master also performed work for Plaintiff and was appointed to ascertain her income as well as his.

Plaintiff argues that the imputation of the annual income of $100,000 is an appropriate sanction in this case and that the trial court did not abuse its discretion in determining this penalty for Defendant’s failure to 1 ^comply with the discovery orders. Plaintiff asserts that Defendant failed to comply with the trial court’s order despite having been given ample opportunity to do so. She argues that none of these facts arose in a vacuum and that she has spent more than three years and a large amount of money on litigation (motions to compel, motions for protective orders, motions to dismiss, motions in limine and discovery hearings) in an effort to determine Defendant’s financial status in order to increase the award of child support.

Plaintiff further argues that the award of $3,500 attorney fees was actually inadequate, and she provided an affidavit of the attorney fees incurred by her from October 26, 2011, through June 18, 2013, in the amount of $19,369.50. With regard to the award of $4,700 to the special master, Plaintiff argues that the trial court had discretion to make such an award after Defendant failed to comply with its discovery orders. Plaintiff also asserts that the special master was unable to calculate Defendant’s income as a result of that failure. For these reasons, she contends that the imputation of $100,000 annual income to Defendant was not an abuse of the trial court’s discretion, and the award of the other amounts for attorney fees, special master fees and the child support award should be affirmed.

La. C.C.P. art. 1471 states in pertinent part as follows:

A. If a party or an officer, director, or managing agent of a party or a person designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be | ^established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
C. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the-court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The imputation of annual income

The trial court has much discretion in selecting appropriate sanctions for failure to comply with discovery orders, and the judgment granting a sanction will not be disturbed on appeal absent a clear showing of abuse of discretion. L & M Hair Products, Inc. v. State, Dep’t. of Transp. and Dev., 29,998 (La.App.2d Cir.12/10/97), 704 So.2d 415.

After years of litigation on the issue of Plaintiffs request for an increase in child support, a judgment was rendered on April 25, 2013, which ordered Defendant to provide the special master with certain documents by April 30, 2013, in default of which, $100,000 annual income would be imputed to him. The special master testified regarding exactly which documents Defendant had failed to provide to her and that his failure to produce the documents rendered her unable to complete her financial review. Defendant was found to have failed to comply with the trial court’s order of production, and as per that order, had $100,000 annual income imputed to him for purposes of child support calculation.

|7We find no abuse of the trial court’s discretion in imposing this sanction on Defendant for his disobedience of the trial court’s production order. He was given ample opportunity to comply and warned about the consequences of noncompliance. Nevertheless, Defendant still failed to provide the special master with the requested documents. Therefore, we find this argument to be without merit.

The calculation of child swpport due

The child support worksheets included in the record reflect Defendant’s monthly gross income of $8,333.33, or $99,999.96 annually, as imputed income by the trial court. The record reflects that, in January 2010, Plaintiff was in nursing school and that any work she performed prior to her graduation was performed for her husband’s business or on a volunteer basis at her mother’s restaurant. Plaintiffs worksheets indicate that her earnings, prior to graduation, ranged from a high of $1,524.92 per month to a low of $1,315.70 per month. She graduated from nursing school in December 2011 and began working as a nurse for four months at Springhill Medical and then at Minden Medical Center.

After consideration of the information provided in the child support worksheets, the trial court determined the child support awards owed by Defendant for various periods during the parties’ litigation and the final child support award due from the date of the judgment forward of $1,200 per month payable in two installments of $600 each.

The trial court is vested with much discretion in fixing awards of child support. The court’s reasonable determinations shall not be disturbed ^unless there is a clear abuse of discretion. Frederick v. Buckingham, 44,458 (La.App.2d Cir.6/24/09), 15 So.3d 1223, citing State, Dep’t. of Soc. Servs. ex rel. C.J.V. v. Neathery, 39,796 (La.App.2d Cir.7/29/05), 909 So.2d 40; State ex rel. Wilson v. Wilson, 37,674 (La.App.2d Cir.9/24/03), 855 So.2d 913, writ denied, 03-2970 (La.1/16/04), 864 So.2d 633. The child support guidelines set forth in La. R.S. 9:315, et seq., are to be used in any proceeding to establish or modify child support. Harper v. Harper, 33,452 (La.App.2d Cir.6/21/00), 764 So.2d 1186.

The trial court considered the child support guidelines when it determined the amount of child support .due and properly imputed the annual income of $100,000 to Defendant. We find no abuse of discretion in the award of child support and find that such an award is supported by the record. This assignment of error is without merit.

The imposition of additional sanctions

Defendant argues that the trial court’s order imposing $3,500 in attorney fees and a fee to the special master of $4,700 constituted an abuse of its discretion.

La. C.C.P. art. 1471(C) provides that, in lieu of any of the other sanctions provided for in the article, or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

|9Pue to the protracted nature of this rule to increase child support and Defendant’s failure to comply with court orders of discovery which caused the attorney fees to be incurred and the special master to be thwarted in her efforts to determine the parties’ financial status, we find that the trial court’s award of attorney fees and the order to pay the special master’s fee did not constitute an abuse of discretion. This assignment of error, therefore, is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Plaintiff Natalie Dawson Hatfield Holley and against Defendant George Eric Hatfield is affirmed. Costs of this appeal are assessed to Defendant George Eric Hatfield.

AFFIRMED.

      . The judgment also found Plaintiff in contempt for violation of a joint custody implementation plan and ordered her to pay Defendant $1,500. This portion of the judgment has not been appealed.


author: LOLLEY, J.

text:
    Saundra Pennywell BIGHAM, Plaintiff-Appellee v. Eola Pennywell LATIN, Defendant-Appellant.
    No. 49,509-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.
    Francis M. Gowen, Jr., Shreveport, LA, John S. Stephens, for Appellant.
    Ron Christopher Stamps, Shreveport, LA, for Appellee.
    Before BROWN, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

11Defendant, Eola Pennywell Latin, appeals a judgment of the 42nd Judicial District Court, Parish of DeSoto, State of Louisiana, denying an exception of no cause of action and granting a permanent injunction which enjoined her from erecting a fence over an existing right of passage belonging to plaintiff, Saundra Pen-nywell Bigham. For the reasons stated herein, we reverse the trial court’s judgment.

Facts

By act of donation dated June 27, 1986, Saundra Pennywell Bigham (“Saundra”), acquired a one acre tract of land (“Saundra’s tract”) from her grandparents, J.D. and Mattie Pennywell. A 50-foot right of passage was provided for in the donation, which was described as follows:

Included in this donation is a right of way and easement for the purposes of ingress to and from the above described property over and across property owned by Donors described as follows, to wit:
A 0.469 acre, more or less, tract of land in the SW 1/4 of the NW 1/4 of Section 15, T15N, R14W, DeSoto Parish, Louisiana and being more particularly described as follows: From the Southwest corner of the NW 1/4 of Section 15, T15N, R14W, run thence North 405 feet, thence run East 10971 feet to the point of beginning of the tract herein described, thence run South 208.71 feet, thence run South 11 degrees East 199.97 feet to the North right of way line of a blacktop road, thence run East along said right of way 50.94 feet, thence run North 11 degrees West 199.97 feet, thence run North 208.71 feet, thence run West 50 feet to the point of beginning. Said right of way and easement is to be a predial servitude and is to be perpetual, inuring to the benefit of Donee, her heirs, successors and assigns.

To gain a better understanding of this case, it is helpful to provide some background information regarding Saundra’s tract and its relation to |2the parties involved. A copy of a survey prepared by John R. Bowman & Associates is attached as Appendix “A” for additional reference.

At some point in the 1940s Saundra’s grandparents, J.D. and Mattie Pennywell (“J.D. and Mattie”), acquired an unspecified amount of land in Section 15, Township 15N, Range 14W of DeSoto Parish, located off what is now Missile Base Road (“the estate”). In 1964, J.D. and Mattie sold a portion of the estate to their son, J.D. Pennywell Jr. (“J.D. Jr.”), who continues to live on a parcel of land north of the property at issue in this case. At the time of the 1964 sale, and apparently for many years prior, there was a private road which ran off of Missile Base Road through the estate granting access to various parts of the estate including Saundra’s tract.

In 1988, J.D., Mattie, and J.D. Jr. all participated in a donation, giving each of J.D. and Mattie’s five children, including J.D. Jr., separate portions of the estate. As part of this donation, the defendant, Eola Pennywell Latin (“Eola”), received a 24.5-acre tract of land. The property donated to Eola completely surrounds Saundra’s tract, and includes a portion of the private road and all of the right of passage described above.

Thereafter, on May 28, 2005, J.D. Jr. donated a two-acre tract of land out of the portion he received in the 1988 donation to Saundra’s son, Johann Cooke (“Johann”). Johann’s property lies along the private road approximately 200 feet to the north of the northernmost property boundary of Saundra’s tract but is not contiguous to it. Notably, Johann is not a party to this lawsuit.

| ..Litigation between Saundra and Eola began in November of 2010, when Saundra filed for injunctive relief as a result of Eola erecting two fences which Saundra asserted interfered with her use of the private road — one fence that encroached on her property to the south, and a second fence that completely blocked the private road to the north. Based on these allegations, the trial court issued a preliminary injunction against Eola on April 4, 2011, and enjoined her from interfering with Saundra’s use of the private road. Eola removed both fences and conceded Saundra’s ownership of the right of passage from Saundra’s northernmost property boundary south to Missile Base Road. Eola, however, continued to dispute that Saundra’s right of passage extends north across her property, giving Saundra direct access to Johann’s home site.

In response, Eola filed an exception of no cause of action, arguing that Saundra does not own a right of passage beyond her northernmost property boundary. However, the trial court deferred the exception to trial on the merits. Nearly two years later, trial in the matter was held on January 13, 2014, to determine whether a permanent injunction should be issued against Eola, forever barring her from interfering with Saundra’s use of the private road. After hearing testimony and after reviewing the acts of donation whereby Saundra and Johann acquired their respective properties, the trial court found that Johann’s servitude is incorporated and described in Saundra’s servitude of passage as set forth in her donation. As such, Saundra has a right by virtue of her deed to use the private road to access |4Johann’s property approximately 200 feet to the north of her own. It is from this judgment that Eola appeals.

Discussion

Echoing her argument at trial, on appeal Eola does not dispute that Saundra owns a right of passage or that a right of passage was included in the 1986 donation whereby Saundra acquired her one-acre tract of land. Instead, E ola’s position relates to whether the right of passage, by title, or otherwise, extends beyond the northernmost boundary line of Saundra’s tract. According to Eola, the trial court erred when it found that Johann’s servitude is incorporated into Saundra’s right of passage, and as such, Saundra has a right by virtue of her deed to use the private road to access Johann’s property to the north. We agree.

A predial servitude is a charge on a servient estate for the benefit of the dominant estate. La. C.C. art. 646. Predial servitudes are either apparent or nonap-parent. A road is an apparent servitude inasmuch as it is perceivable by exterior signs. La. C.C. art. 707. Apparent servi-tudes may be acquired by title, by destination of the owner, or by acquisitive prescription. La. C.C. art. 740. Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. La. C.C. art. 730.

Here, the record is clear that the parties are relying on title to prove the existence of Saundra’s right of passage. Although there were arguments advanced by both parties at trial evidencing acquisitive prescription, the trial court expressly rejected this theory and noted that the parties ultimately | .^believed it not to be an issue. Therefore, our analysis will examine only whether Saundra’s title, in particular the language found in the 1986 act of donation whereby she acquired her property and the accompanying survey performed by John R. Bowman & Associates, establishes that Saundra’s right of passage extends north beyond her northernmost property boundary.

After a careful and complete review of these documents, it is clear that the right of passage granted to Saundra extends only from the northwest corner of her property south to Missile Base Road. Nowhere in the act of donation or the survey does the right of passage extend north beyond Saundra’s northernmost property boundary allowing her access to other parts of the property.

Moreover, an examination of the metes and bounds description found in the act of donation establishes that Saundra’s right of passage does not extend beyond her northernmost boundary. In particular, from the point of beginning (Saundra’s northeast property boundary), the right of passage runs south for a precise distance to Missile Base Road. From Missile Base Road, the right of passage runs east for approximately 50 feet, and then north along the private road for approximately the same distance as it ran south. Then, the right of passage runs west for approximately 50 feet back to the point of beginning. Again, nowhere does the right of passage granted to Saundra extend north beyond her northernmost property boundary allowing her access to other parts of the property.

Accordingly, the trial court’s erroneous interpretation of the documentary evidence is legal error. The servitude granted to Saundra as | ^specifically set forth in the 1986 act of donation, and confirmed by the survey performed by John R. Bowman & Associates, extends only from Saundra’s northernmost property boundary south to Missile Base Road, specifically giving Saundra access to and from her property. In essence, the trial court’s ruling gave Saundra more rights than her title purports to convey, which constitutes a clear error.

Finally, the issue of whether Johann’s use of the private road was disturbed is not before this Court as Johann is not a named party to this lawsuit.

Conclusion

So considering, the trial court’s judgment enjoining Eola Pennywell Latin is reversed. All costs of this appeal are assessed to Saundra Pennywell Bigham.

REVERSED.

17Appendix A


author: DREW, J.

text:
    Stefanie Fanning CARTER, Plaintiff-Appellee v. Matthew Wade CARTER, Defendant-Appellant.
    No. 49,517-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 26, 2014.

      Matthew Wade Carter, In Proper Person Appellant.
    James L. Fortson, Jr., Shreveport, LA, for Appellee.
    Before DREW, LOLLEY and PITMAN, JJ.
   DREW, J.

Lin this child support case, Matthew Wade Carter (“Carter”), pro se, appeals a judgment of the trial court modifying a child support obligation.

Finding no abuse of discretion, we affirm.

FACTS

Carter and his former spouse, Stefanie Carter Kilcullen (“Kilcullen”),. are the parents of three children. The parties divorced in 2000. Custody and child support have been frequently adjusted by the court. Kilcullen requested modifications of a May 1, 2012, judgment which provided:

• Kilcullen remained as domiciliary parent of the minor in Lubbock, Texas;
• Carter became domiciliary parent of Aaron in Bossier City, Louisiana;
• Each parent was allowed to claim one dependent yearly for taxes;
• Carter’s support obligation was set at $330.00 per month;
• Carter was responsible for health and dental insurance premiums for the minor children; and
• Each parent was responsible for half of any medical or dental expenses not covered by insurance.

On May 10, 2013, Kilcullen filed a rule to increase child support and to request other relief, alleging these material changes in circumstances:

• Shared or split custody arrangement no longer existed as Aaron had reached the age of majority, graduated from high school, and no longer lived in his father’s residence;
• Increased expenses were necessary for the minor, now in his teens; |2and
• Carter’s income had greatly increased, due to change in employment.

After a hearing at which each party testified and introduced documentary evidence, the trial court rendered judgment in open court on February 20, 2014, and signed a judgment on March 20, 2014, which:

• Awarded Kilcullen $1,334.81 per month as child support for the minor;
• Awarded Kilcullen $7,033.67 in net ar-rearage child support;
• Reduced Carter’s support obligation for the months of June and July of each year by $444.94 per month conditioned upon the minor being in Carter’s actual physical custody during those months;
• Ordered Carter to continue to provide health and dental insurance coverage for the minor with each parent responsible for half of any health related expenses not covered by insurance; and
• Directed the parents to alternate years in claiming the federal and state income tax dependency exemption (Kilcullen allowed 2013 tax year exemption and succeeding odd numbered years; Carter allowed 2014 exemption and succeeding even numbered years).

The trial court found that a material change in circumstance had taken place since the rendition of the 2012 plan. In particular, the parties no longer shared a split custody arrangement as to Aaron, who had reached the age of majority and graduated from high school. In calculating the parties’ support obligations, the trial court found Carter’s income to be $12,522.52 per month and imputed $2,500.00 per month to Kilcullen. Carter appealed.

DISCUSSION

Standard of ReviewIChange in Circumstances

The determination or modification of child support is governed by the guidelines contained in La. R.S. 9:315 et seq. The trial court has great discretion in establishing and modifying child support awards and its | ¡Judgment will not be disturbed on appeal absent a clear abuse of discretion.

Income Tax Dependency

Carter asserts the trial court erred in alternating annually the dependency deduction between the parties. As Kilcullen is unemployed, Carter submits that he is entitled to the deduction each year per La. R.S. 9:315.18(B)(1). Kilcullen responds that $2,500.00 in monthly income was in fact imputed to her and Carter failed to introduce any evidence that the right to claim the deduction would substantially benefit him without significantly harming her as the nondomiciliary party. Additionally, the issue arose only during the trial court’s oral in-court ruling.

Kilcullen submits that, as in Bickham v. Bickham, 46,264 (La.App.2d Cir.3/2/11), 58 So.3d 950, the trial court crafted a solution of rotating the tax credit in an attempt to be equitable to both parties where no evidence was presented on the issue of substantial benefit to the nondomiciliary party 14versus significant harm to the domiciliary party.

Both elements of La. R.S. 9:315.18(B)(1) must be satisfied in order for the nondomiciliary party to be entitled to the tax dependency deduction. Bick-ham, supra. Where there is no evidence to prove that the income tax deduction would significantly benefit the nondomicili-ary parent without significantly harming the domiciliary parent, the nondomiciliary parent has not proven entitlement. Skipper v. Skipper, 46,935 (La.App.2d Cir.2/1/12), 86 So.3d 707; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. Under these circumstances, with a record devoid of evidence on the issue, we find no abuse of the trial court’s discretion in allowing the parties to alternate years in which to claim the tax deduction.

VA Disability Income

Carter argues the trial court erred in its calculation of child support by imputing to him additional, nonexistent income of $622.00 in monthly VA disability payments. He contends that his income tax returns, bank statements, and VA award letter show that the sum was already included in his total military retirement income and is subject to a “tax break.” In response to questioning from the trial court, Carter testified that his total military retirement pay, which he asserted totaled approximately $3,000 a month, included the $622 “tax credit” VA award.

Kilcullen submits the trial court did not err in imputing to Carter an additional $622 in monthly income. Carter’s VA disability benefits are separate nontaxable payments not reported as taxable income on his various IRS filings. She contends that when a military retiree is entitled to a VA disability rating due to injuries sustained on active duty, a percentage of his | ¿retirement pay, corresponding to that percentage of disability, is deducted and converted to nontaxable VA disability benefits. She asserts that community property partition case law can be of assistance in understanding that VA disability pay is nontaxable.

In ruling, the trial court specifically referred to Carter’s VA. Service Connected compensation award letter, and states:

Mr. Carter, here’s what I do know, that you receive a payment which benefits you in some shape, form, or fashion, whether or not it’s through a tax exemption or whether or not it’s a direct payment. ... But what I do have, Mr. Carter, is a sheet that shows that that is a payment made and that it began in April — in fact, April 1, if I’m not mistaken, of 2012. So I have added that $622 in.

We find no manifest error in the trial court’s factual finding that Carter receives $622.00 in VA disability as monthly income and imputing | fithat income to him. Exhibit P6, a Military Retirement Pay Account Statement issued by DFAS, lists Carter’s monthly gross pay as “3,004.00” and monthly taxable income as “3003.00.” The corresponding 1099-R reflects equal DFAS gross distributions and taxable income. The record fails to support Carter’s claim that the VA disability amount is included within the claimed total monthly retirement income of approximately $3,000 as a separate and nontaxable portion.

Seasonal Work

Carter asserts the trial court erred in imputing to him additional income of $250.00 per month based on his seasonal work as an umpire for Bossier Parks and Recreation. He submits that La. R.S. 9:315.12, as well as his sworn testimony that he no longer works the seasonal job given the demands of his primary employment, should operate to prevent the trial court’s inclusion of income from that source. Kilcullen- testified that Carter has made the same claim, that his primary employment prevents him from working as an umpire, at previous court appearances but has consistently maintained that employment every year since 2009. The supplemental income was also reported on Carter’s 2012 and 2013 tax returns. Kilcullen notes that the statute is discretionary and further that the record is devoid of any proof that Carter has used the additional income to provide for his 17subsequent family. The trial court’s factual determination that Carter continues to be employed seasonally as an umpire is not manifestly erroneous. In addition, the court was well within its discretion in refusing to modify the existing child support order, because of Carter’s familial obligations in support of his subsequent family.

The court may consider the interests of a subsequent family as a defense in an action to modify an existing child support order when the obligor has taken a second job or works overtime to provide for a subsequent family. However, the obligor bears the burden of proof in establishing that the additional income is used to provide for the subsequent family.

Rental Income

Carter argues the trial court erred in attributing to him $1,650.00 in rental income from property located at 103 Couples Drive, Bossier City. He submits that he and his present spouse purchased the property together to use as their primary residence and that they owned it in community. After Aaron moved in, the family needed more space. In order to afford their new home, the couple agreed to sell the Couples Drive property subject to a lease purchase agreement. Carter argues he clearly showed that in this community property state, rental income is divided among both parties equally, there is no guarantee of rental income, and the expenses to upkeep a rental property offset the income. He contends the property is not generating income given its expenses, which include homeowner’s dues, property taxes, repairs, and maintenance.

Kilcullen contends the property is Carter’s separate property, relying on a cash sale deed introduced into evidence that included an acknowledgment on the instrument executed by his present wife that the property was being purchased with Carter’s “separate funds for his separate administration.” Kilcullen introduced the lease wherein the tenant agreed to [spay $1950 per month as “Rent.” She proved that the property is not burdened by a mortgage. Carter introduced no evidence or receipts showing expenditures on the property for taxes, repair, or maintenance.

The trial court found that the cash sale deed showed the property to be his separate property and that it was not burdened by a mortgage. It found no purchase agreement. It found a lease with option to purchase.

Though Carter introduced no proof of expenses, the court credited him with $300.00 per month in recognition and estimation of property tax expenses of which the court could take judicial notice. The trial court’s findings are adequately supported by the record and are not clearly wrong.

Downward Deviation

Carter assigns as error the trial court’s failure to take into consideration his financial obligation to his support his immediate family and to maintain a household year round to accommodate the minor. He contends that in all previous appearances before this trial court, a deviation of approximately 15% downward had been allowed.

We agree with Kilcullen that Carter failed to establish:

• an independent showing that the guidelines are unfair to him; and
• a case that a downward deviation is in the best interest of the child.

We agree with her that a previous downward deviation does not necessarily entitle one to a continued downward deviation.

Louisiana R.S. 9:315.1 creates a re-buttable presumption that the amount of child support calculated under the guidelines is the proper amount of a child support award. La. R.S. 9:315.1(B) allows the trial court to deviate from the guidelines if their application would not be in the best | ^interest of the child or would be inequitable to the parties. Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290. In determining whether to deviate from the guidelines, the court may consider the legal obligation of a party to support dependents that are not the subject of the action before the court and who are in that party’s household. As with all decisions to deviate from the guidelines, the trial court must, in accordance with Subsection (B), give oral or written reasons for the deviation on the record. Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762; State ex rel. Metcalf v. Samuels, 34,402 (La.App.2d Cir.12/20/00), 775 So.2d 1162. As the party seeking a downward deviation, Carter had the burden of proving the inequity of the child support guidelines, considering his support of his new family. He introduced no evidence to justify a deviation.

DECREE

At the cost of Matthew Carter, the judgment is AFFIRMED.

      . Ashley, Aaron, and one remaining "minor.”

      . When the trial court signed the judgment, it handwrote the words highlighted here: "Judgment rendered, signed, and filed on this 1st day of May 2012, without prejudice to either party, as this is not a considered decree, in Benton, Bossier Parish, Louisiana."

      . Kilcullen originally filed this latest litigation without counsel. Her lawyer entered the case on July 29, 2013.

      . Rosell v. ESCO, 549 So.2d 840 (La.1989); Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762; Curtis v. Curtis, 34,317 (La.App.2d Cir. 11/1/00), 773 So.2d 185.

      . LSA-R.S. 9:315.18 provides, in pertinent part:
      A. The amounts set forth in the schedule in R.S. 9:315.19 presumes that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax-purposes shall be as provided in Subsection B of this Section.
      B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
      (a) No arrearages are owed by the obligor.
      (b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

      . The' trial court responded to Carter that the spirt of the previous child support plan was that each party claimed one tax deduction when there were two minor children still subject to the plan and entitled to support. The trial court apparently felt that this was an equitable arrangement, considering only one child was still a minor.

      . Rearden v. Rearden, 568 So.2d 1111 (La.App. 2d Cir.1990):
      Mr. Rearden served 20 years in the United States Air Force. He retired July 1, 1981 and applied for Veterans Administration Disability payments in August 1982. The government apportioned 10% of his military retirement pension as disability payments and required him to waive an equivalent amount of his military retirement benefits. Therefore, he received the same sum as before, only with part of his retirement benefits designated as nontaxable Disability pay. Mr. Rearden was receiving $71.00 per month for Disability pay as of the time of the trial for judicial partition. He claims the Disability payments received are not subject to Louisiana community property law. (Emphasis added by Kilcul-len).

        Harmon v. Harmon, 617 So.2d 1373 (La.App. 3d Cir. 1993):
      Because of his disability Phil was eligible for tax-free, veteran’s disability benefits. In order to receive those benefits, however, federal law required Phil to waive corresponding amounts of his military retirement pay. See 38 U.S.C.A. § 5305 (West 1988 ed.). Military retirement pay that has been waived to receive veteran’s disability benefits is not community property. 10 U.S.C.A. § 1408(a)(4)(B) (West Supp.1992); Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (holding that 10 U.S.C.A. § 1408(a)(4)(B), the Former Spouses’ Protection Act, does not grant states the power to treat military retirement pay that has been waived to receive veteran’s disability benefits as property divisible upon divorce); Wright v. Wright, 594 So.2d 1139, 1142 (La.App. 3d Cir.1992). Hence, Sandra is entitled to her community share in that portion of Phil's retirement pay that was earned during the existence of the community less those amounts that Phil waived to receive disability benefits. (Emphasis added by Kilcullen).

      . Defense Finance and Accounting Service.

      . La. R.S. 9:315.12, entitled "Second jobs and overtime” provides:

      . Carter remarried and has two children with his current wife. At this time, the children are aged nine and seven.