author: EZELL, Judge.

text:
    Steve H. CROOKS, et ux. v. LOUISIANA PACIFIC CORP., et al.
    No. CA 14-724.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    James J. Davidson, III, Christopher Joseph Piasecki, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, Virgil Russell Purvis, Jr., Smith, Taliaferro & Purvis, Jonesville, LA, for Plaintiffs/Appellants, Steve H. Crooks, Era Lea Henderson Crooks.

      Richard Joseph Wilson, Wilson & Wilson, Jena, LA, for Defendant/Appellee, L.P. Mineral Owners, LLC.
    Sarah Anne Kirkpatrick, Bradley Murchison Kelly & Shea, Shreveport, LA, for Defendant/Appellee, Urania Minerals, LLC.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjThis appeal presents the issue of whether a suit filed by the owner of land against the mineral servitude owner for damages caused by drilling operations is premature when oil and gas operations are ongoing. The trial court granted an exception of prematurity filed by the owner of a mineral servitude and dismissed the plaintiffs’ suit without prejudice. The plaintiffs seek reversal of this ruling on appeal.

FACTS

The land involved in this case consists of approximately 200 acres in LaSalle Parish. On July 26, 2000, Louisiana Pacific Corporation sold the land to Temco Enterprises, Inc., while reserving a full mineral servitude over the property. Subsequently, ,on August 10, 2000, Temco sold the property to Era and Steve Crooks, subject to the mineral reservation in favor of Louisiana Pacific. In 1968 a portion of the mineral rights was previously conveyed to Urania Lumber Company, Ltd., now known as Urania Minerals, L.L.C. This mineral servitude remained in effect when the Crooks purchased the property. On September 1, 2003, Louisiana Pacific conveyed its mineral rights in the property to LP Mineral Owners, LLC (LPMO).

In 2005, LPMO granted an oil and gas lease to Belle Exploration, Inc. No drilling operations were conducted, so the lease expired by its own terms. In 2009, LP granted an oil and gas lease to Drayco Exploration, LLC. Pursuant to this lease, two wells were drilled and completed. In 2010, SR Acquisition I, LLC acquired the Drayco Lease. This lease is presently an active lease and maintained by oil production.

lain 2012, the Crooks filed suit against Louisiana Pacific, LPMO, and Urania for contamination to their property caused by the oil and gas operations. In response, LPMO filed an exception of prematurity. A hearing on the exception was held on May 12, 2014. The trial court sustained LPMO’s exception and dismissed the Crooks’ claim against LPMO. In sustaining LPMO’s exception of prematurity, the trial court held that suit could not be instituted until oil and gas operations ceased on the property. The Crooks appealed this ruling.

PREMATURITY

The Crooks claim that the trial court erred in granting the exception of prematurity. The Crooks argue that there is no law requiring them to wait until completion of all mineral production before they can enforce the restoration obligations and demand that the defendants clean up their land.

The relationship between a landowner and the owners of mineral rights is specifically provided for in the Louisiana Mineral Code. The “[ojwnership of land does not include the ownership of oil, gas, and other minerals occurring naturally in liquid or gaseous form” and “[t]he landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.” La.R.S. 31:6. “A landowner may convey, reserve, or lease his right to explore and develop his land for production of minerals and to reduce them to possession.” La.R.S. 31:15. A mineral right is an incorporeal immovable that is alienable and heritable. La.R.S. 31:18; La.Civ.Code art. 470. These mineral rights that may be conveyed by a landowner are (1) the mineral servitude; (2) the mineral royalty; and (3) the mineral lease. LaJR.S. 31:16.

“A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to.|spossession and ownership.” La.R.S. 31:21. Pursuant to La.R.S. 31:22, a mineral servitude owner can “use only so much of the land as is reasonably necessary to conduct his operations” and “[h]e is obligated, insofar as practicable, to restore the surface to its original conditioh at the earliest reasonable time.” Furthermore, the landowner and the owner of a mineral right “must exercise their respective rights with reasonable regard for those of the other.” La.R.S. 31:11. Pursuant to these mutual obligations between the landowner and the mineral rights’ owners, a mineral servitude owner is liable to the surface owner for damages caused by its lessee’s oil and gas operations on the leased property. Dupree v. Oil, Gas & Other Minerals, 31,869 (La.App. 2 Cir. 5/5/99), 731 So.2d 1067.

“The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued.” LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-8, 07-16, p. 5 (La.9/5/07), 966 So.2d 519, 523. The function of an exception of prematurity is to determine whether a judicial cause of action is not available yet because of some unmet prerequisite condition. Rico v. Cappaert Manufactured Hous., Inc., 05-141 (La.App. 3 Cir.6/1/05), 903 So.2d 1284. When the determination of whether an exception of prematurity should have been granted involves a question of law, then the appellate court must determine whether the trial court was legally correct or incorrect. Id. Interpretation of statutes involves a question of law. Thibodeaux v. Donnell, 08-2436 (La.5/5/09), 9 So.3d 120.

In Marin v. Exxon Mobil Corp., 09-2368, 09-2371 (La.10/19/10), 48 So.3d 234, the supreme court held that a lessor of his mineral interests need not wait until |4the end of a lease to sue a mineral lessee for soil and groundwater damage to his property, because the legal obligations imposed on a lessee did not contain a provision that the lessor had to wait until termination of the lease, aside from La.Civ.Code art. 2683, which contains obligations that arise at the termination of the lease. This court followed this ruling in Dietz v. Superior Oil Co., 13-657, p. 6 (La.App. 3 Cir.12/11/13), 129 So.3d 836, 841, and held that “while the leases may still be in effect, these claims are not premature because there is no language in the mineral or civil codes to suggest these claims for damages only arise upon lease termination.”

As indicated by LPMO, both Marin and Dietz dealt with claims against a mineral lessee as opposed to a mineral servitude owner. However, we find nothing in the mineral code that requires a landowner to wait until completion of all mineral production before he can bring a suit to enforce the mineral servitude’s restoration obligations. The only time limitation found in the mineral code is “at the earliest reasonable time.” La.R.S. 31:22. Obviously the legislature recognized that it would be better to remedy any damage sooner rather than later. As in Marin, there is no requirement under the law that a landowner has to wait until the end of a lease to sue the mineral servitude owner for damage to his property. There is no reason that a landowner should have to wait to sue for damages to his land prior to the termination of a lease when a lessor, who is also the landowner, does not have to wait for termination of a lease before filing suit. It will be the trier of fact’s job to determine whether there is contamination and damage on the land which can be remedied now, just as a trier of fact would be required to do between a lessor and lessee of mineral interests. Therefore, we find that the trial court erred in maintaining LPMO’s exception of prematurity.

15The judgment of the trial court granting LP Mineral Owners’ exception of prematurity and dismissing Era and Steve Crooks’ suit without prejudice is reversed. This case is remanded to the district court for further proceedings. Costs of this appeal are assessed to LP Mineral Owners.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Lucy JOHNSON v. ST. FRANCES NURSING & REHABILITATION CENTER.
    No. 14-599.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2014.

      H. Douglas Hunter, Misti Landry Bryant, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelousas, Louisiana, for Defendant/Appellant, St. Frances Nursing & Rehabilitation Center.
    Michael B. Holmes, Hebert, Holmes & Bertrand, Kinder, Louisiana, for Plaintiff/Appellee, Lucy Johnson.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

Lin this workers’ compensation case, St. Frances Nursing & Rehabilitation Center appeals a judgment in favor of its former employee, Lucy Johnson, ordering Supplemental Earnings Benefits (SEBs), statutory penalties, and attorney fees, and holding that Johnson did not violate the provisions of La.R.S. 23:1208(A). For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On July 5, 2006, in the course and scope of her employment as a nurse employed by St. Frances, Johnson was injured by a patient who hit her in the back of her head and neck. As a result of her injuries, Johnson sought treatment from Dr. Clark Gunderson, an orthopedic surgeon, who performed a three-level cervical disc fusion. He subsequently released her to return to work with restrictions in November 2007. Following her initial release, Johnson maintained a part-time schedule working light duty at St. Frances from November 2007 through February 2008. Johnson testified that she experienced pain while working part time although it was controlled by pain medication prescribed by Dr. Gunderson.

In February 2008, after Dr. Gunderson released her to work full duty, Johnson began working with restrictions on a full-time schedule until June 2008. Johnson testified that during her transition from part-time, light-duty work to full-time, full-duty work, her pain increased and “became very excruciating.” She returned to Dr. Gunderson and advised that her increased pain was uncontrolled by medication. As a result, Dr. Gunderson reduced her release to light duty in May 2008. , Based upon Johnson’s continued subjective complaints of pain, Dr. Gunder-son changed his opinion to no-work status from June 5, 2008, through November 2008. Dr. Gunderson subsequently released her to return to light-duty |awork with restrictions in November 2008, in her position with St. Frances. Johnson returned to work that same month and worked only two days as she was unable to perform the duties within the restrictions. Dr. Gunderson again placed her on a no-work status. During a regularly-scheduled appointment with Dr. Gunderson approximately eight months later on July 27, 2009, Dr. Gunderson maintained Johnson’s no-work status. Dr. Gunderson also opined that Johnson was not a surgical candidate and referred her to Dr. Stephen Katz, a pain management physician.

On July 28, 2009, Johnson presented to Dr. Katz. Dr. Gunderson testified that he was aware that Dr. Katz had taken over Johnson’s care as of July 28, 2009. Dr. Gunderson testified that he deferred to Dr. Katz regarding Johnson’s restrictions and/or ability to return to work as of the date of his referral. Johnson testified that during her initial visit with Dr. Katz, she was never asked to demonstrate any physical abilities related to work duties nor did he discuss with her any ability to return to work. Johnson testified that she was not asked to walk across the room, bend, stoop, reach up, or reach down. According to excerpts from the employer’s adjuster’s file, dated August 14, 2009, Dr. Katz advised that he would offer “only to monitor medications [with] no discussion of return to work abilities.”

Buster Fontenot, a vocational rehabilitation consultant assigned to Johnson in 2008, developed a modified licensed practical nurse (LPN) job analysis in order to enable Johnson to return to work. Fonte-not met with Dr. Katz on September 11, 2009, wherein Dr. Katz agreed that Johnson could return to work in a modified LPN position. Despite the foregoing, Johnson testified that Dr. Katz never told her that he believed that she was able to return to work. Approximately two months | «¡later on November 9, 2009, Dr. Katz withdrew' his opinion rendered on September 11, 2009, when Johnson advised him that Dr. Gunderson placed her on a non-return to work status. Dr. Katz’s medical record on that date states that in order to avoid confusion, he would defer to Dr. Gunderson for determination of Johnson’s return to work status.

Johnson returned to Dr. Gunderson oh April 20, 2010, with complaints of pain and trouble swallowing. Dr. Gunderson removed her fusion hardware on May 9, 2011, in order to alleviate the pain she experienced when swallowing. Johnson subsequently underwent a functional capacity examination (FCE) on May 1, 2013, which was rendered by physical therapist David Regan. Johnson testified that she was aware that Regan believed that she intentionally misrepresented her physical capabilities during her examination. According to the FCE, Regan opined that “the INVALID results identified in this assessment and Functional Assessment Overview represent the levels Ms. Johnson chose to demonstrate as her physical capabilities. The numbers do not represent her true safe capabilities as Ms. Johnson intentionally manipulated the results of the assessment.” According to Regan’s deposition testimony, he did not attempt to determine whether the alleged misrepresentations during Johnson’s FCE were willfully made. Regan testified that he deferred that issue to Dr. Gunderson for investigation.

Johnson received medical and indemnity benefits from the onset of her disability through the beginning of September 2009. St. Frances terminated indemnity benefits from September 11, 2009, through May 7, 2011. Indemnity benefits were reinstated and paid from May 9, 2011, through the date of trial which |4began on October 23, 2013. Johnson’s indemnity benefits were based upon an average weekly wage (AWW) of $413.13.

Following termination of benefits on September 11, 2009, Johnson filed the instant claim for reinstatement of benefits, penalties, attorney fees, and a psychological evaluation and/or care by a mental health professional. St. Frances countered with the assertion that Johnson committed fraud, thereby forfeiting her right to benefits pursuant to La.R.S. 23:1208(A), by misrepresenting her condition to her treating physicians and by misrepresenting her physical capabilities during the FCE.

After a trial on the merits, the workers’ compensation judge (WCJ) held that Johnson did not commit fraud for purposes of La.R.S. 23:1208(A) forfeiture and awarded her $35,723.53 in SEBs from September 11, 2009, through May 9, 2011, utilizing an AWW of $413.33 per week. The WCJ awarded Johnson $4,000.00 in statutory penalties, ordered St. Frances to authorize a mental health evaluation, and awarded attorney fees.

St. Frances has appealed, asserting the following assignments of error:

1. The Workers’ Compensation Judge erred in failing to find that Ms. Johnson violated [La.R.S. 23:1208(A) ] when she intentionally misrepresented her physical capabilities at her functional capacity examination.
2. The Workers’ Compensation Judge erred in finding that claimant, Lucy Johnson, was entitled to Supplemental Earnings Benefits for the period of September 11, 2009 through May 9, 2011.
8. The Workers’ Compensation Judge erred in finding that [Johnson] is entitled to an award of penalties and attorney fees.

|,STAND ARP OF REVIEW

In Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir.3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citations omitted), this court noted the standard of review applicable in workers’ compensation cases as follows: “Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” “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). Thus, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61. “Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Vidrine v. La-Tex Rubber & Specialties, Inc., 07-157, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 146, 149.

DISCUSSION

I. Fraud

In its first assignment of error, St. Frances contends that the WCJ erred in failing to find that Johnson committed fraud, thereby forfeiting her right to benefits pursuant to La.R.S. 23:1208(A), when she intentionally misrepresented her physical capabilities during her FCE.

| fiLouisiana Revised Statutes 23:1208(A) provides that “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” In order to prove that an employee forfeited his or her rights under this statute, an employer must show “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12. The supreme court in Resweber, 660 So.2d at 16, further explained:

[T]he statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the purpose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits.... Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

In the instant case, both parties cite Noel v. Home Health Care 2000, Inc., 03-1280 (La.App. 3 Cir. 3/3/04), 867 So.2d 945, writs denied, 04-854, 04-871 (La.5/14/04), 872 So.2d 520, 522. In Noel, the employer appealed the trial court’s judgment in favor of the former employee ordering reinstatement of the employee’s indemnity and medical benefits, awarding $9,000.00 in attorney fees, and holding that the employee did not violate the provisions of La.R.S. 23:1208(A). With respect to the FCE, the record revealed that the evaluator concluded that the employee had multiple inconsistent test results and that the employee’s effort was unreliable. This court stated: “Assuming, without deciding, that an FCE qualifies for purposes of La.R.S. 23:1208(A) as a ‘statement’ or ‘representation,’ a false statement or representation in that regard must be wilfully [sic] made for the purpose of obtaining benefits.” Noel, 867 So.2d at 953.

|7In its analysis, this court in Noel, 867 So.2d at 953, stated that the employee “testified that she performed the tests to the best of her ability,” and that she told the evaluator that she was currently on medication. The employee testified that although she was told what to do, she was not given any demonstrations. The employee’s testimony revealed that she complained of pain while performing some of the tests. Although the physical therapist did not perform the FCE, he testified regarding the results and stated that given the employee’s unreliable effort, she must have withheld some effort. The physical therapist admitted, however, that it was difficult for him to state whether the employee made a conscious effort to not perform to her full capabilities. The physical therapist explained that “ ‘[t]hese things vary. The person’s subjective pain levels are involved. There’s an emotional component that’s involved....’” Id. at 953.

Although the record showed that the employee failed to give a reliable effort, this court in Noel stated: “However, that fact alone does not result in the ultimate conclusion that she wilfully [sic] gave a false representation for the purpose of obtaining benefits.” Id. This court reasoned that the employee gave reasonable explanations about factors that could have possibly affected her performance during the FCE, and the WCJ accepted the employee as a credible witness. Accordingly, this court held that there was no manifest error in the WCJ’s determination that the employee did not violate the provisions of La.R.S. 23:1208(A) during her FCE.

We find that the facts in Noel are similar to the facts in the present case. Specifically and with respect to the FCE in the instant case, the record reveals that Johnson underwent a FCE which was administered by Regan, a physical therapist. Regan opined that Johnson intentionally misrepresented her physical capabilities. | ^According to Regan’s deposition testimony, however, he did not attempt to determine whether the alleged misrepresentations during Johnson’s FCE were willfully made. Regan testified that he deferred that issue to Dr. Gunderson for investigation.

The record also contains the trial testimony of Monica Winn, Johnson’s daughter. Winn testified that, in addition to accompanying Johnson to the FCE, she accompanied her to multiple doctor visits following her injury. Winn stated that Johnson was constantly experiencing pain, especially when she was working full duty following her cervical disc surgery. Winn also testified that she had no reason to believe that Johnson was not being truthful about the amount of pain she was experiencing.

At trial, Johnson testified that she did not intentionally mislead Regan about her pain level and physical capabilities. Johnson testified that she refused to perform some things during the FCE as it would cause her more pain. Johnson also testified that, the day following her FCE, she called Dr. Gunderson with complaints of excruciating pain. She advised Dr. Gun-derson that she was going to call Dr. Katz to request pain medication as she could barely get out of bed. Johnson’s testimony is confirmed by Dr. Gunderson’s medical records.

Based on the above and similar to Noel, we find that the record reveals that Johnson failed to give a reliable effort during her FCE. “However, that fact alone does not result in the ultimate conclusion that she wilfully [sic] gave a false representation for the purpose of obtaining benefits.” Noel, 867 So.2d at 953. We find that Johnson provided reasonable explanations about factors that could have affected the FCE, and the WCJ accepted her as a credible witness. Despite Re-gan’s unfavorable testimony regarding Johnson’s intentional misleading of her ^physical capabilities during the FCE, Re-gan’s deposition testimony indicates that he did not attempt to determine whether her alleged misrepresentations were willfully made as he deferred that issue to Dr. Gunderson for investigation. Thus, we find that there was no manifest error in the WCJ’s determination that Johnson did not violate the provisions of La.R.S. 23:1208(A) concerning the FCE. This assignment of error is without merit.

II. Indemnity Benefits

St. Frances contends that the WCJ erred in awarding Johnson SEBs from September 11, 2009, through May 9, 2011. An award of SEBs is appropriate when there is an “injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.” La.R.S. 23:1221(3)(a)(i). St. Frances argues that termination of SEBs was proper based on Dr. Katz’s opinion rendered on September 11, 2009, wherein he opined that Johnson could return to work in a modified capacity. St. Frances alleges that Dr. Katz further opined that Johnson had reached maximum medical improvement (MMI). Despite the availability of the modified position, St. Frances contends that Johnson failed to return to work. We find that St. Frances’ reliance on Dr. Katz’s opinion for terminating benefits is without merit for multiple reasons.

The evidence shows that Dr. Katz advised the employer’s adjuster that he would offer “only to monitor medications [with] no discussion of return to work abilities.” Despite the adjuster’s knowledge of this limitation, he ordered Fontenot, the vocational rehabilitation consultant, to schedule a conference with Dr. Katz for the purpose of obtaining his opinion about Johnson’s ability to return to work. It was during this September 11, 2009 -conference that Dr. Katz initially opined that Johnson could return to work in a modified LPN position.

| mlmportantly, Dr. Katz expressly withdrew his September 11, 2009 opinion less than two months later on November 6, 2009. Despite knowing of this withdrawn opinion, the employer’s adjuster failed to pay Johnson SEBs. We, therefore, agree with the WCJ that “[a]t that point, there was no reasonable reason for the defendant’s not at least discussing the matter of Ms. Johnson’s disability with Dr. Gunder-son.” We further agree with the WCJ that “defendant had virtually no reason for withholding these payments but continued to do so.”

We note that Dr. Katz opined in his August 18, 2010 deposition that Johnson was able to return to work at sedentary level duties with restrictions, thereby reinstating his previously withdrawn opinion. His deposition testimony, however, fails to justify the adjuster’s failure to pay benefits after November 6, 2009. As correctly stated by the WCJ, “[t]he adjuster relied upon an initial favorable opinion about Johnson’s ability to return to work and ignored the subsequent unfavorable opinion.” We, therefore, agree with the WCJ that St. Frances “cannot justify its 2009 decision to terminate SEB payments based on information it received in 2010[, as] [St. Frances’] action must be gauged at the time of its initial decision to terminate benefits.”

Dr. Katz’s opinions contained in his deposition taken on August 18, 2010, also lack credibility and support. Specifically, Dr. Katz defined sedentary duty in his deposition testimony as “a sitting position with little, if any, movement.” His testimony conflicts with Fontenot’s September 30, 2008 job analysis regarding the modified LPN position. In this job analysis, Fontenot noted that “[although the majority of the tasks of this position are at sedentary level, this position will be classified sedentary to light.” The job analysis stated that Johnson would occasionally be standing, walking, pushing, and pulling. The job analysis also |nshowed that she would be reaching frequently. This was confirmed by Fontenot’s and Johnson’s trial testimony.

Dr. Katz,further testified that Johnson was tolerating her pain “quite nicely” given the minimal amount of medication he was prescribing. Dr. Katz testified that he asked Johnson whether her pain medication was helping, and his “assumption is since she is using it and not complaining that it is, in fact, helping her.” Dr. Katz’s medical record dated July 28, 2009, however, shows that she complained of significant pain and rated her pain level an eight out of ten. Dr. Katz’s medical records further show that Johnson complained of pain at subsequent follow-up visits. Despite Dr. Katz’s deposition testimony that he did not know the degree of pain she was experiencing, his own medical records contradict his testimony. Dr. Katz’s testimony is also discredited by Johnson’s testimony that she advised Dr. Katz at almost every visit that the pain medication was not alleviating her pain.

Finally, the position of the employer and its adjuster on payment of SEBs and/or refusal to re-institute payment of SEBs ignores Dr. Gunderson’s opinion that Johnson cannot work. Specifically, Dr. Gun-derson’s medical records dated July 27, 2009, show that Johnson was disabled since her work status was listed as “[n]o [d]uty.” Dr. Gunderson’s subsequent deposition testimony taken on May 13, 2010, reveals that his opinion regarding her disability remained unchanged. Fontenot testified that during his meetings with Dr. Gunderson, Dr. Gunderson refused to approve Johnson’s return to any level of duty with the employer.

Based on the WCJ’s evaluation of Johnson’s credibility and the record before this court, there is a reasonable basis for the WCJ’s award of SEBs. Thus, this assignment or error is without merit.

112III. Penalties and Attorney Fees

In its third assignment of error, St. Frances contends that the WCJ erred in awarding penalties and attorney fees when it had a reasonable basis to deny benefits. St. Frances contends that the WCJ erred with respect to its two awards of $2,000.00, one for improper termination of benefits and one for non-approval of a mental health evaluation. St. Frances further alleges error in the WCJ’s attorney fee award in the amount of $21,120.00.

Louisiana Revised Statutes 23:1201(1) provides, in pertinent part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

In order to determine whether an employer improperly acted when discontinuing workers’ compensation benefits, thereby entitling a claimant to attorney fees and penalties, “courts look to facts known by the employer or insurer at the time benefits are denied.” Aultman v. Wal-Mart Stores, Inc., 01-623, p. 8 (La.App. 3 Cir. 10/31/01), 799 So.2d 803, 805.

Johnson’s benefits were terminated on September 11, 2009, based upon Dr. Katz’s opinion that Johnson could return to work in a modified LPN position. The evidence shows that Dr. Katz was her only treating physician during this time. Specifically, in his deposition, Dr. Gunderson confirmed that he was “not involved in [Johnson’s] care from ... July 29th, 2009 until she reappeared on [Dr. Gunderson’s] door step on April 20, 2010.” When benefits were terminated, Johnson testified that she was aware that Dr. Katz was her treating physician, as she was referred to him by Dr. Gunderson.

|1sTwo months later, however, Dr. Katz withdrew his previous opinion based upon the erroneous belief that Dr. Gunderson was still treating Johnson. Specifically, Dr. Katz’s November 6, 2009 medical record reveals that confusion regarding her return to work status occurred when Johnson advised him that she was still treating with Dr. Gunderson. Dr. Katz noted that:

There is some question with regards to her return to work status. According to the patient, it appears that Dr. Gunder-son has placed her at a non-return to work status and I will have to clarify this. I will have to defer to Dr. Gunder-son for determination of her return to work status so that there is no confusion with regards to that situation.

When questioned regarding the above medical record during his deposition, Dr. Katz testified that despite his belief that Johnson was able to return to work in a modified capacity, he did not want to release her only to have Dr. Gunderson declare that she was unable to return to work. Dr. Katz testified that his decision “was just a point of clarification more than anything else.” We find that Dr. Katz’s opinion contained in his November 6, 2009 medical record was based on Johnson’s inaccurate statement given to him on that same date regarding Dr. Gunderson’s continued involvement in her care.

In the present case, the WCJ determined that termination of SEBs was properly based upon Dr. Katz’s November 6, 2009 medical record. The WCJ, however, should have looked to the facts known by St. Frances or its insurer when benefits were initially denied two months earlier on September 11, 2009. When benefits were terminated on September 11, 2009, St. Frances possessed Fontenot’s report indicating that Dr. Katz agreed that Johnson could return to modified work with restrictions. Since Dr. Katz was the only treating physician at that time, St. Frances had a reasonable basis to rely on his opinion regarding her work status. Its action was not arbitrary and capricious; therefore Johnson is not entitled to 114penalties. We reverse the WCJ’s award of $2,000.00 for improper termination of benefits.

As for the WCJ’s award arising out of St. Frances’ failure to approve a mental health evaluation, the evidence presented at trial shows, more likely than not, that Johnson is entitled to evaluation and treatment, if necessary, by a mental health physician of her own choosing. The record shows that Dr. Katz made such a recommendation on August 31, 2010, after he initially stated in his deposition of August 18, 2010, that such referral was not necessary. Dr. Katz’s medical records and deposition testimony support Johnson’s need for mental health treatment for conditions arising from her work-related injury.

The evidence further shows that St. Frances’ actions, through its adjuster, were arbitrary, capricious, and without probable cause as the adjuster failed to consider Dr. Katz’s changed opinion. Specifically, the record shows that demand was made upon St. Frances on September 1, 2010, asking that a “[mjental [hjealth evaluation for anxiety and coping” be performed by Dr. James Blackburn. The demand was based upon Dr. Katz’s August 31, 2010 referral which was attached to the demand. Despite this demand, there is no evidence showing that the adjuster conducted any investigation or recognized that Dr. Katz changed his mind about the referral. This indifference was arbitrary and capricious. Thus, the trial court did not err in awarding $2,000.00 for non-approval of a mental-health evaluation.

Finally, the evidence shows that Johnson was forced to hire an experienced workers’ compensation attorney. According to his brief, he spent approximately eighty-eight hours preparing for trial, participating in trial, and preparing a post-trial brief. The attorney was also required to participate in multiple depositions. Considering that St. Frances contested this case at every stage of the proceedings | lfiwhich encompassed four years, we find that the trial court did not err in awarding attorney fees in the amount of $21,120.00.

IV. Additional Attorney Fees Arising From Appeal

In his brief, Johnson’s counsel seeks additional attorney fees for the time spent on preparing the appeal. “However, he did not file his own appeal nor answer the appeal, so he is not entitled to additional attorney’s fees for the work performed on the appeal.” Dugas v. Aaron Rents, Inc., 02-1276, p. 4 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205, 1208; La.Code Civ.P. art. 2133.

DECREE

The judgment rendered by the WCJ in favor of Lucy Johnson is affirmed in part with respect to its finding that she did not violate La.R.S. 23:1208(A), that she was entitled to SEBs for the period encompassing September 11, 2009, through May 9, 2011, that she be awarded attorney fees, and that she be awarded $2,000.00 for the failure to approve a mental health evaluation. The judgment is reversed in part with respect to the WCJ’s award of $2,000.00 representing penalties for improper termination of benefits. All costs of this appeal are assessed against St. Frances.

AFFIRMED IN PART AND REVERSED IN PART.


author: CONERY, Judge.

text:
    RATCLIFF DEVELOPMENT, L.L.C. v. OLLIE LEE CORPORATION.
    No. 14-584.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 7, 2015.

      Kelvin G. Sanders, Alexandria, Louisiana, for DefendanVAppellant, Ollie Lee Corporation.
    Brian K. Thompson, Jessica Firment, Law Offices of Brian K. Thompson, A.P.L.C., Alexandria, Louisiana, for Plain-tifl/Appellee, Ratcliff Development, L.L.C.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

| ¶ This case involves a petition for specific performance by Ratcliff Development, L.L.C. (Ratcliff) against the Ollie Lee Corporation (Ollie Lee), seeking to enforce the terms of a Commercial/Land Agreement to Purchase/Sell (Purchase Agreément) executed on July 26, 2012, between Ratcliff and Ollie Lee for the sale of property located adjacent to Ratcliffs business operation at 3710 Lee Street, Alexandria, Louisiana (Property). The trial court ordered that Ollie Lee specifically perform under the terms of the Purchase Agreement and complete the sale of the property to Ratcliff. Ollie Lee now timely appeals the trial court’s judgment signed on November 22, 2013.

ASSIGNMENT OF ERROR

Ollie Lee asserts the following assignment of error, “[t]he trial court erred by ordering specific performance of the contract between the parties.”

LAW AND DISCUSSION

Standard of Review

“[Ajppellate jurisdiction of a court of appeal extends to law and facts.” La. Const, art. 5, § 10(B). The appellate court must determine whether the trial court committed an error of law or made a factual finding that was manifestly erroneous or clearly wrong. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). The reviewing court must review the record in its entirety to make this determination. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). “Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.” Ardoin v. Firestone Polymers, L.L.C., p. 6, 10-245 (La. P719/11), 56 So.3d 215, 219; see also Harvey v. City of Eunice Police Dep’t, 10-1228 (La.App. 3 Cir. 4/6/11), 62 So.3d 290.

However, statutory interpretations are questions of law. Shell v. Wal-Mart Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-1149 (La.6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial court’s reasonable decision on a question or matter properly within the trial court’s discretion, if the trial court’s decision is based on an erroneous interpretation or application of the law, such an incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

Questions of contractual interpretation are questions of law, which are subject to a de novo standard of review. Mitchell v. Patterson Ins. Co., 00-612 (La. App. 3 Cir. 12/6/00), 774 So.2d 366. Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ.Code arts. 1983 and 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La.Civ. Code art. 2046. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050. Whether a contract is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759.

Terms and Negotiation Of The Purchase Agreement

On May 10, 2006, prior to the signing of the Purchase Agreement, Ollie Lee obtained a tax sale certificate to the Property. On March 1, 2012, Ollie Lee filed a ^petition for monition, which was granted on March 6, 2012. As required by law, a monition notice was published in the local newspaper beginning on March 22, 2012, and ending on May 13, 2012. The affidavit of publication was executed on May 15, 2012, which would have allowed for the finalization of the monition transferring title of the Property to Ollie Lee after July 14, 2012, the date marking sixty days from the last monition notice. After July 14, 2012, all that was required for Ollie Lee to obtain full ownership of the Property was á clerk’s certificate stating that the required monition notice had been properly filed in the local newspaper and a judgment confirming and homologating the May 10, 2006 tax sale of the Property to Ollie Lee. Ollie Lee would have been required to transfer |4title to Ratcliff pursuant to the Purchase Agreement.

The evidence presented at trial confirmed that this process could have been completed prior to the signing of the Purchase Agreement by Ollie Lee on July 26, 2012, or the filing of Ratcliffs lawsuit on November 11, 2012. However, Ollie Lee did not file the required clerk’s certificate until November 29, 2012. Ollie Lee obtained full ownership of the Property on December 3, 2012, when a “Judgment Confirming and Homologating Sale” was signed by the trial court.

The record confirms that Ollie Lee did not have the necessary clear title to the Property when the Purchase Agreement was signed on July 26, 2012, by Ollie Lee’s Treasurer, Mr. Clarence Dabney, Jr., who is also a licensed real estate agent in the State of Georgia. Mr. Gregg Thompson, on behalf of Ratcliff, who is a licensed real estate agent in Louisiana, executed the Purchase Agreement on July 25, 2012. The two parties agreed to a sales price of $20,000.00 for the Property, which is located next to property owned by Ratcliff. The Property was a part of Ratcliffs plan for an office/storage complex, which was a part of an even larger development plan envisioned by Ratcliff.

If the terms of the Purchase Agreement at issue are “clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La.Civ.Code art. 2046.” Gonsoulin v. Pontiff, 11-177, p. 5 (La.App. 3 Cir. 10/5/11), 74 So.3d 809, 812. In this case, the Purchase Agreement is a standard form for the sale and/or purchase of commercial property provided by the realtor, Mr. David Moses, who is the listing real estate agent for the property.

The two provisions of the Purchase Agreement at issue are Paragraphs 16-17, which provide:

16. TITLE AND CURATIVE WORK: At the closing, Seller shall deliver to Purchaser a general warranty deed conveying to Purchaser a good, valid, merchantable, and insurable title to the subject property, free and clear of all mortgages and liens. Purchaser, them counsel or title company, at Purchaser’s expense, shall have up to 30 days immediately following the inspection period to examine the title to the subject property and to obtain a survey of the subject property and notify Seller of all, if any, title defects and the requirements necessary to cure same. Seller, at Seller’s expense shall have up to 90 days immediately following said notice any title defects. If Seller is unable to cure the title defects or make same insurable to Purchaser’s satisfaction, Purchaser shall then have the right and option to: (1) waive the title curative requirements, accepting the title and its defects in its present condition and proceed to close this sale, subject only to any other remaining terms and conditions of this contract or (2) declare this contract null and void and receive the deposit in full, thus relieving Purchaser and Seller of any further obligation under this contract.
17. ACT OF SALE: Time being of the essence, the act of sale before a Notary Public approved by the Purchaser shall be on October 23, 2012 (Date) or sooner, if mutually agreed in writing between Seller and Purchaser. Any extension shall also be agreed to in writing by Seller and Purchaser.
(Emphasis in original)

The trial court in its written reasons discussed the pertinent paragraphs in the Purchase Agreement and stated:

Under the terms of paragraph 16, Ratcliff had thirty days to conduct due diligence on the property and to notify Ollie Lee if there were any title defects. Once the notification occurred, Ollie Lee had ninety days to fix any title defects. If the title defect was not addressed, then Ratcliff would have the option to waive the defect and accept the property and title in its current condition and proceed to close or void the contract. The provisions set forth in paragraph 16 [were] placed into operation of law upon delivery of adequate notice |fito Ollie Lee.

The trial court then found that the provisions of Paragraph 16 were triggered by notice to Ollie Lee on August 14, 2012, of “title issues and defects.” The notice was well within the thirty-day period, beginning on July 26, 2012, for Ratcliff to give such notice. Although Ollie Lee contended that it did not receive the required notice under Paragraph 16, the record evidence supports the trial court’s conclusion that, “Based upon the testimony of the parties and the tone and demeanor of the witnesses, the Court finds that Ratcliff delivered notice to Ollie Lee on 14 August 2012 concerning the title issues and defects.”

Exhibits and testimony submitted into evidence at trial support the trial court’s finding that the required notice by Ratcliff, which triggered the terms of Paragraph 16, was received by Ollie Lee within the required thirty-day notice period. On August 14, 2012, Mr. Paul Maxwell, on behalf of Ratcliff, hand delivered correspondence to Mr. Moses, one of the realtors for Ollie Lee, which stated in pertinent part:

Per the terms specified in Section 16 of the agreement, please be aware that our inspection of the title has revealed significant defect or defects that need to be addressed.
Please accept this letter as our notification to the Seller of the need to have the defects cured to the satisfaction of our attorney Brian Thompson. Make note also of the time allowed for such curative work and extend the anticipated closing date to reflect that change in the agreement.

Mr. Moses testified at trial that he immediately emailed the August 14, 2012 letter from Ratcliff to Ollie Lee’s representative, Mr. Dabney, and to Ollie Lee’s attorney, Mrs. Ingrid F. Johnson. The receipt of the August 14, 2012 notice from Ratcliff by both Mrs. Johnson and Mr. Dabney is confirmed in correspondence sent the same day from Mrs. Johnson to Ollie Lee’s second realtor, Mr. Chris |7Naalbandian. This correspondence confirms and supports the trial court’s finding that Mr. Dabney, the signee of the Purchase Agreement on behalf of Ollie Lee, had been placed on timely notice by Ratcliff that there was a title problem that required resolution prior to closing the sale on the Property. The email from Mrs. Johnson stated in pertinent part:

This email comes as an overview of our discussion held on August 14, 2012 concerning the property located at 3710 Lee Street. My client, Mr. Clarence Dab-ney, Jr. of the Ollie Lee Corporation, has notified me of your request for clear title verification on the property. I will have [performed] that service prior to the closing. Since the property was acquired by my client through a tax sale, my office must, also file an additional required affidavit and judgment on the property prior to the closing. I will notify you once these documents have been filed, signed by the court, and the title examination completed.

On August 16, 2012, Mr. Gregg Thompson, signer of the Purchase Agreement for Ratcliff, responded to the email from Mrs. Johnson in an email to Mr. Moses clarifying Ratcliffs position stating, “From the looks of Mrs. Johnson’s email it appears as if she is approaching the situation from a Title Exam perspective. We have already completed the examination and only need the Seller to provide an acceptable Monition of the Tax sale. Please confirm that is the Seller’s understanding.”

Having found that “Ollie Lee did receive adequate notice of the defect,” the trial court further found that “the 90 day provision to fix the title defects was triggered,” which allowed Ollie Lee until November 11, 2012, to cure the title defect by completing the monition process.

Ollie Lee argued at trial and in briefing to this court, in addition to claiming that it never received notice of the title defects from Ratcliff, “that the closing date as set forth in the original contract of 23 October 2012 was the drop-dead date unless excluded by mutual agreement of the parties pursuant to paragraph 17 of the |sbuy-sell agreement.” The trial court found instead, “that notice was provided and that the only notice required to extend the closing date was notice from the purchaser to the seller that there was a title defect that needed to be remedied. The closing date was extended to fix the title defect.” This court agrees.

Louisiana Civil Code Article 1759 requires, “Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation.” Louisiana Civil Code Article 1777 provides, in pertinent part that “[a] term for the performance of an obligation may be express or it may be implied by the nature of the contract.”

Under the provisions of the Purchase Agreement, once proper notice was given by Ratcliff, Ollie Lee was obligated to cure the title defect within the ninety-day provision of Paragraph 16. Considering that Ollie Lee was able to cure the title defect within three business days after the filing of this lawsuit by Ratcliff, the logical conclusion is that Ollie Lee could have cured the title defect between the time notice was given by Ratcliff on August 14, 2012, and the closing date of October 23, 2012, as determined according to Paragraph 17 of the Purchase Agreement.

Ollie Lee chose not to fulfill its obligation to Ratcliff under the terms of the Purchase Agreement and, therefore, cannot benefit from its failure to perform under the terms of the Purchase Agreement. Thus, we find that Ollie Lee’s argument “that the closing date as set forth in the original contract of 23 October 2012 was the drop-dead date unless excluded by mutual agreement of the parties pursuant to paragraph 17 of the buy-sell agreement,” to be without merit.

Specific Performance

Ollie Lee argues that the trial court erred in granting Ratcliff specific | ¡¡performance under the provisions of Paragraph 21 of the Purchase Agreement. The trial court found:

As a result when Ratcliff timely notified Ollie Lee that it was prepared to close the deal and accept the title with the defects, Ollie Lee was obligated to complete the sale. Ratcliff had chosen a proper option as set forth under the contract. As a result, the Court will order specific performance of the contract under the terms as set forth in the contract.

We agree and find that the trial court correctly determined that Ratcliff was entitled to specific performance of the Purchase Agreement under the terms of the contract. Paragraph 21 provides:

BREACH OF AGREEMENT BY SELLER: In the event Seller fails to comply with this agreement, for any reason other than reasonable inability to deliver a merchantable title within the time specified, Purchaser shall have the right to demand specific performance and any cost and/or fees, including expenses and reasonable attorney’s fees incurred as a result of this agreement or breach thereof rendered by a court of competent jurisdiction or by mutual agreement with Purchaser.[]

(Second emphasis ours.)

Louisiana Civil Code Article 1986 provides:

Upon an obligor’s failure to perform an obligation to deliver a thing or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.

(Emphasis added.)

The record reflects that from August 14,. 2012, until October, 24, 2012, Ollie Lee represented to Ratcliff that it intended to cure the title problem and proceed | Tnwith the sale. In an effort to move the process along, Mr. Brian Thompson, Ratcliff’s attorney, performed some of the curative work on behalf of Ollie Lee and succeeded in obtaining a release of the mortgage on the Property held by Security First National Bank, now Regions Bank, on October 23, 2012. Mr. Brian Thompson’s office informed Mrs. Johnson, Ollie Lee’s attorney, on both October 24, 2012, and October 26, 2012, that it was in possession of the original release from Regions Bank and sought instructions for the original release to be transmitted to Mrs. Johnson for recording in the public record.

An- October 24, 2012 email correspondence between Mr. Moses and Mr. Gregg Thompson indicated that the parties were hoping to close the sale on October 26, 2012. The plan was to hold $4,000.00 in escrow “to allow the Seller to complete the title curative work.” However, also on October 24, 2012, in an email from Ms. Angela Goldman, a member of the staff of counsel for Ratcliff, Mr. Brian Thompson learned for the first time, via Debbie at Mrs. Johnson’s office, that Mrs. Johnson was not a title agent. It was also confirmed that Mrs. Johnson could not write an owner’s policy, but without the completion of the monition process, supposedly an owner’s policy could not be issued for the Property.

In response to this news, Mr. Gregg Thompson of Ratcliff began to suspect that Ollie Lee had no intention of completing the monition process prior to November 11, 2012, the end of the ninety-day curative period as provided in paragraph 16 of the Purchase Agreement. This suspicion prompted an October 26, 2012 email from Mr. Gregg Thompson, on behalf of Ratcliff, to Ollie Lee’s realtor Mr. Moses, indicating that Ratcliff intended to move forward “to close on the property in [its] current condition.”

The closing was then tentatively postponed until 3:00 p.m. on Monday, [^October 29, 2012.' The 3:00 p.m. closing time was communicated to Mr. Moses. However, approximately three-and-a-half hours before the closing was to take place, Mr. Moses' informed Ratcliff that he had spoken with Mr. Dabney, and Ollie Lee would not close the sale that afternoon. Mr. Moses indicated that Mr. Dabney “would like to have a clear title on the property before he closes. You can call him and discuss what you would like to have Ms. Johnson complete for him.”

On the same day, October 29, 2012, Rat-cliff sent an email to Mr. Moses reiterating that Ratcliff was willing and able to proceed with the act of sale, prior to November 11, 2012. The email stated in pertinent part:

Further, please see Section 16 of the contract. This paragraph gives the Purchaser the option to purchase the property with the title defects or void the contract. Our client desires to purchase the property with the title defects pursuant to the contract.
Our client has no intention of abandoning this sale, therefore, please consult with Mr. Dabney and confirm firstly, (1) is he represented by Ingrid Johnson because I cannot get an answer; and (2) when is he available to close prior to November 11, 2012.

A meeting was held on October 31, 2012, between counsel for Ollie Lee, Mrs. Johnson, and counsel for Ratcliff, Mr. Brian Thompson, wherein Mrs. Johnson informed Mr. Thompson that Ollie Lee did not intend to complete the sale of the Property to Ratcliff. In response, on November 6, 2012, Ratcliff, through its attorney, Mr. Brian Thompson, sent formal notice via overnight delivery of its intention to exercise option one of Paragraph 16, which reads, “(1) waive the title curative requirements, accepting the title and its defects in its present condition and proceed to close this sale, subject only to any other remaining terms and conditions of this contract.” Ratcliff sought an answer by November 8, 2012, which never 112came. As previously indicated, Ollie Lee obtained full ownership of the Property on December 3, 2012, after filing the necessary'paperwork on November 29, 2012, and a signed judgment completing the monition and vesting Ollie Lee with clear title was signed on December 3, 2012.

A panel of this circuit considered a similar factual situation in the case of Carr v. Whitten, 12-758 (La.App. 3 Cir. 12/5/12), 104 So.3d 763. Carr involved a purchase agreement for the sale of a mobile home. The purchase agreement required the seller to obtain a certificate of title from the Department of Motor Vehicles prior to the scheduled date of the act of sale. Due to past due sales taxes and penalties, the seller failed to obtain the certificate and, after the closing date, advised the buyers she no longer wanted to sell the mobile home.

The buyers brought suit seeking stipulated damages pursuant to the provisions of the purchase agreement, which allowed for ten percent of the purchase price, in this case $14,000.00, plus attorney fees. The trial court found in favor of the buyers, and the case was affirmed on appeal. This court found that the seller simply failed to fulfill her obligation to obtain clear title under the contract and stated:

This is not a situation involving an inability to produce merchantable title. Rather, Ms. Pitts failed to do so because of her own inaction, a failure to pay taxes, penalties, and interest associated with her purchase of the mobile home. Her responsibility to ensure the payment of that fiscal obligation arose, not at the time of the agreement to buy or sell, but two years earlier at the time she purchased the mobile home. Additionally, when she learned of the discrepancy in the attempt to complete the property transaction, she failed to pay those fees and produce the title.

Carr, 104 So.3d at 767 (footnote omitted).

113The Carr court also affirmed the trial court’s determination that the seller was at fault based on the application of La. Civ. Code art. 1772, which provides, “[a] condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment.” In other words, the seller “defaulted on her obligation to produce merchantable title under the agreement to buy and sell.” Carr, 104 So.3d at 767.

The failure of Ollie Lee to complete the monition process and obtain clear title, similar to the inaction of the seller in Carr, does not reflect Ollie Lee’s “reasonable inability to deliver a merchantable title within the time specified,” as stated in Paragraph 21 of the Purchase Agreement. Also, like Carr, Ollie Lee’s actions in failing to cure the title defect, although it was in their power to do so, requires the application of La.Civ.Code art. 1772. Ollie Lee had a duty under the terms of the Purchase Agreement to timely complete the monition process and cure the title defect, which was subject to a term pursuant to La.Civ.Code art. 1777.

The record reflects that this goal could have been easily accomplished prior to the October 23, 2012 original closing date and prior to Ratcliffs lawsuit. Thus, Ollie Lee’s failure to perform under the terms of the Purchase Agreement warrants the remedy sought by Ratcliff of specific performance.

In Whitbeck v. Champagne, 14-245 (La.App. 3 Cir. 10/1/14), 149 So.3d 372, a panel of this court affirmed the trial court’s ruling granting specific performance for the breach of a residential purchase agreement. The trial court ordered the Champagnes to purchase the Whitbecks’ home under the terms of the residential Purchase Agreement. The panel discussed La.Civ.Code art. 1986 and the jurisprudence applicable to a breach of a contract that contains a provision for specific performance:

114Upon an obligor’s failure to perform an obligation to do, the granting of specific performance is at the discretion of the court. See LSA-C.C. art. 1986. Under Louisiana’s civil law system, specific performance is the preferred remedy for breach of contract. An obligee enjoys the right to demand, insofar as is practicable, the specific performance of the obligation. Lombardo v. Deshotel, 94 1172 (La.11/30/94), 647 So.2d 1086, 1090; see LSA-C.C. art. 1986.

Whitbeck, 149 So.3d at 382 (quoting Charter Sch. of Pine Grove v. St. Helena Parish Sch. Bd., 07-2238, p. 14 (La.App. 1 Cir. 2/19/09), 9 So.3d 209, 222).

We therefore find that the trial court cdrrectly interpreted the clear terms of the Purchase Agreement. Upon Ollie Lee’s failure to cure the title defect, Ratcliff had the option to seek specific performance, which required Ollie Lee to complete the act of sale under the terms of the Purchase Agreement. The trial court correctly found that the remedy of specific performance was appropriate based on the testimony and evidence presented at trial.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment in favor of Ratcliff Development, L.L.C. and against Ollie Lee Corporation ordering specific performance of the Purchase Agreement pursuant to its terms. Costs of this appeal are assessed to Ollie Lee Corporation.

AFFIRMED.

      . Louisiana Revised Statutes 13:4941 provides:
      The purchasers of property at sheriffs’ sales, those made by authority of the court, those made by the syndics of insolvent estates, and finally those of any description which are made by the authority of justice, and all subsequent purchasers by a regular chain of title, may protect themselves from eviction of the property so purchased, or from any responsibility as possessors of the same, by pursuing the rules prescribed in R.S. 13:4942 through 13:4951.

      . Louisiana Revised Statutes 13:4942 provides:
      The purchasers shall publish a monition calling on all persons who can set up any right to the property, in consequence of informality in any order, decree or judgment of the court, under which the sale was made, or any irregularity or illegality in the appraisement and advertisement, in the time and manner of the sale or for any other defect whatsoever, to show cause within thirty days from the date the monition is first published, why the sale so made should not be confirmed and homologated. The publication shall be given one time for movable property and two times for immovable property, provided that the second publication for immovable property shall be published not earlier than seven days before and not later than the day before the thirtieth day following the first publication.

      .Louisiana Revised Statutes 13:4944 provides:
      The clerks of the respective courts from which the orders, decrees or judgments may have issued, and in virtue of which the sales ought to be homologated, which have been made, shall, on application of the buyer, grant this monition in the name of the state, and affix to it the seal of the court.
      Louisiana Revised Statutes 13:4945 provides:
      At the expiration of the thirty days, the party obtaining the monition may apply to the judge of the court, out of which the monition is issued, to confirm and homolo-gate the sale, and the judge in case no cause is shown against the prayer for the monition, shall homologate and confirm the judicial sale in question; but before he does so confirm it, he shall be fully satisfied that the advertisements have been inserted in the newspapers, as already directed, and that the property has been correctly described, and the price at which it was purchased, truly paid. In case opposition be made to the homologation, and it should appear that the sale was made contrary to law, the judge shall annul it, otherwise to confirm it, as in case no opposition was made.

      . On March 13, 2013, the trial court signed a judgment granting Ratcliff’s request for a preliminary injunction prohibiting Ollie Lee from selling the Property to a third party until the resolution of this suit for specific performance.

      . The terms of Paragraph 21 allow an award of attorney fees and expenses to Ratcliff. In its judgment, the trial court did assess costs to Ollie Lee, but made no mention of expenses or attorney fees. Likewise, Ratcliff has not sought expenses or attorney fees on appeal, and hence we are precluded from review of this issue. Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . In connection with this correspondence, Ratcliff also delivered to Ollie Lee a check in the amount of $13,265.40, given as payment of the sales price of $20,000.00, less City taxes owed since 2005, the realtor's commission, and the cost of cancelling the tax lien and the mortgage from the public record, per the Purchase Agreement.


text:
    Veronica THOMAS v. NEXION HEALTH AT LAFAYETTE, INC., et al.
    No. 14-609.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 14, 2015.

      Patrick Daniel, The Daniel Law Firm, Lafayette, Louisiana, for Plaintiff/Appellant, Veronica Thomas.
    Robert M. Kallam, John L. Woods, Craig R. Bordelon, II, Lafayette, Louisiana, for Defendant/Appellee, Nexion Health at Lafayette, Inc.
    Ian A. Macdonald, Jones Walker, Lafayette, Louisiana, for Defendant/Appellee, Acadian Ambulance Service, Inc.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

hln this medical malpractice case, Plaintiff, Veronica Thomas, appeals a judgment rendered by the trial court sustaining an exception of prematurity filed by Defendant, Nexion Health at Lafayette, Inc., d/b/a Lafayette Care Center, dismissing her claims against it without prejudice. For the following reasons, we affirm.

PROCEDURAL HISTORY

Thomas, a wheelchair-bound paraplegic, was injured while being transported by van from a hospital to Nexion’s skilled nursing facility in Lafayette, Louisiana, on August 17, 2012. Thereafter, she filed a petition for damages against multiple defendants, including Nexion, seeking to recover for the injuries that she sustained due to Defendants’ alleged negligence.

Nexion responded to the petition by filing a dilatory exception of prematurity, alleging that because it was a qualified health care provider under the Louisiana Medical Malpractice Act (the MMA or the Act) at the time of the accident, Thomas’ claim had to be submitted to a medical review panel before it could be filed in court. See La.R.S. 40:1299.47. According to the record, the hearing on the exception was continued twice at Thomas’ request. Thereafter, Thomas waited until the day before the rescheduled hearing to file her opposition memorandum. At the hearing, Nexion’s counsel indicated that due to the late filing, he was not prepared to counter all of the arguments asserted in Thomas’ opposition. Nevertheless, the trial court proceeded with the hearing and sustained Nexion’s exception of prematurity in open court. Later that day, however, the trial court recalled its interlocutory ruling based upon its finding that “the record was not developed sufficiently to make the factual findings needed to decide the |2exception,” which were “due in large part to plaintiffs counsel’s failure to comply with Rule 9.9.” A second hearing on the exception took place two weeks later, and a judgment sustaining the exception of prematurity and dismissing Thomas’ claims against Nexion without prejudice was signed on April 7, 2014. The trial court provided written reasons for judgment on April 28, 2014.

Thomas now appeals, asserting in her sole assignment of error that the trial court committed legal error by sustaining Nexion’s exception of prematurity “in direct contravention of current case law.”

DISCUSSION

“The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider.” Rivera v. Bolden’s Transp. Serv., Inc., 11-1669, pp. 3-4 (La.App. 1 Cir. 6/28/12), 97 So.3d 1096, 1099. “On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 930.

“The burden is on the defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the Act. The defendant must also show that it is entitled to a medical review panel, because the allegations fall within the Act.” Rivera, 97 So.3d at 1099 (citation omitted).

The Act applies only to “malpractice”; all other tort liability on the part of a qualified health care provider is governed by general tort law. However, the fact that the plaintiff may have made allegations sounding in both medical malpractice and general tort law does not remove her petition from the penumbra of the Act, if a claim for medical malpractice is stated....
_Li- • • •
The Act is in derogation of the rights of tort victims and its language must be strictly construed; any ambiguity must be resolved against coverage by the Act. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782, 786-87. We conduct a de novo review of the trial court’s grant of the dilatory exception of prematurity, as the issue of whether a claim sounds in medical malpractice involves a question of law.

Id. at 1100 (citations omitted).

The Act defines “Malpractice” as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient [.]” La.R.S. 40:1299.41(13) (emphasis added).

The following facts, which are not in dispute, were recited by the trial court in its reasons for judgment:

Veronica Thomas brought this action against Nexion Health at Lafayette, Inc. to recover damages for injuries that she sustained while being transported in a van from a hospital to Nexion’s nursing home facility in Lafayette. The plaintiff is a paraplegic and is bound to a wheelchair. She had been accepted by Nex-ion as a patient upon her release from the hospital and was being [ ] admitted to its facility pursuant to a physician’s orders. A certified nurse’s assistant employed by Nexion drove the van. Nexion ... is a qualified health care provider.

In her petition, Thomas alleged that Nexion’s employee negligently failed to “use a motor vehicle restraint to secure [her] for transport in the van” and that due to the reckless and unsafe operation of the van during her transport, she fell backward and sustained injuries. Nexion admitted for the purpose of its exception of prematurity that Thomas’ allegation that its employee operated the van in a reckless and unsafe manner was properly before the trial court. On the other hand, Nexion argued that because the Act’s definition of “Malpractice” includes “the 14handling of a patient, including loading and unloading of a patient,” Thomas’ allegations that it was negligent in failing to use a vehicle restraint to properly secure her in the van had to be presented to a medical review panel before being part of this lawsuit. La.R.S. 40:1299.41(13).

In opposition to the exception, Thomas insisted that “[t]he Act does not and has never covered auto accidents,” nor claims of driver negligence and/or the failure to use a seat belt to secure a patient during transport.

The trial court noted the following in its reasons for judgment (footnote omitted):

The plaintiff concedes that the MMA would apply if she had been injured while being loaded into or unloaded from the van, but she argues that injuries occurring between those two events are not covered. This argument ignores the plain language of La.R.S. 40:1299.41(A)(13), which indicates that “handling of a patient” includes, but is more comprehensive than, “loading and unloading of a patient.”
“As a civilian jurisdiction, we look first to the plain language of the statute, and only resort to interpretive analysis when there is some ambiguity.” McMillian v. Westwood Manor Nursing Home, Inc., 2012-54 (La.App. 3 Cir. 5/30/12), 92 So.3d 623, 625, reh’g denied (July 18, 2012), writ denied, 2012-1857 (La.11/9/12), 100 So.3d 839. The word “handling” in the MMA is unambiguous and requires no further interpretation. McMillian, supra; Andrews v. Our Lady of the Lake Ascension Cmty. Hosp., Inc., 2013-1237 (La.App. 1 Cir. 2/18/14), [142] So.3d [36].
The Court finds that a mobility-impaired patient, who is being transported by a medically-trained driver from one health care facility to another pursuant to a physician’s orders, is being “handled” within the meaning of the MMA. Moreover, as in Andrews, supra, even if the factors set forth in Coleman [v. Deno, 01-1517, 01-1519, 01-1521 (La.1/25/02), 813 So.2d 303[] were applied, the result would not change. Nexion’s exception of prematurity is, therefore, sustained.

| ¡¡In Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La.1/14/03), 835. So.2d 460, the plaintiff,- an elderly nursing home resident who was a double amputee, filed suit alleging that she sustained severe injuries “when she was viciously attacked by an employee of [the nursing home], or alternatively, allowed to fall from her wheelchair.” Id. at 462. After the trial court granted the nursing home’s exception of prematurity, this court “affirmed in part and reversed in part, finding that plaintiffs claims of ‘unintentional tort and/or breach of contract’ are governed by the MMA, but that her intentional tort claims are not, and thus remanded the matter for further proceedings.” See Richard v. La. Extended Care Ctrs., Inc., 01-1492 (La.App. 3 Cir. 3/6/02), 809 So.2d 1248. Thereafter, the supreme court granted writs “to determine whether medical malpractice claims against a nursing home that is a qualified health care provider under the MMA must be submitted to a medical review panel under the MMA or can be brought outside of the provisions of the MMA under the [Nursing Home Residents’ Bill of Rights] NHRBR.” Richard, 835 So.2d at 462. In its review, the supreme court stated that “[i]t is clear that the nursing home’s staffs alleged act of negligently allowing Ms. De-ville to fall from her wheelchair involved the ‘handling of a patient, including loading and unloading of a patient,’ which comes directly under Rthe MMA’s definition of ‘malpractice.’ ” Id. at 468. Nevertheless, it determined that “it was not the intent of the legislature to have every ‘act, ..., by any health care provider ... during the patient’s ... confinement’ [to be] covered by the MMA.” Id. Because it was unable to determine from the record whether the plaintiff had been placed in the nursing home for treatment of a medical condition rather than just as a “custodial shelter,” the supreme court remanded the matter to the trial court for a determination of whether the plaintiffs allegations constituted medical malpractice under the MMA. Id. at 469.

On appeal, citing Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La.App. 1 Cir. 5/14/96), 676 So.2d 114, Thomas claims that “[a]ccidents involving transport vehicles and allegations surrounding transport of failure and improper restraint are ALWAYS outside the [ ]MMA.” Thomas’ reliance on Hidalgo in misplaced. In that case, the plaintiffs’ vehicle was rear-ended on a highway, necessitating that the wife be taken by ambulance to a hospital for the treatment of the injuries she sustained in that collision. While en route to the hospital, the ambulance rear-ended another vehicle, causing the wife additional injuries. The plaintiffs later filed suit against various defendants involved in both of the collisions, including the ambulance company and its driver, who excepted to the petition on the basis of prematurity. On appeal, the first circuit affirmed the trial court’s denial of the exception, finding that the plaintiffs “have not alleged that any act or omission, related to the promotion of a patient’s health or to the provider’s exercise of professional expertise or skill, caused or contributed to her injuries, ... [n]or have they alleged Acadian was negligent in loading Mrs. Hidalgo into the ambulance or in failing to properly secure the stretcher or backboard, or both, once loaded into the ambulance.” Id. at 118. In doing so, the [7first circuit noted that “[a]ny such allegations would be covered by the Act and would have to first be brought to a medical review board before any evidence of such actions could be admitted at the trial of this case. See Sewell v. Doctors Hospital, 600 So.2d at 581 (Hall, J., concurring).” Id. n. 7.

In the instant case, Thomas had been released by her doctor from the hospital to Nexion’s nursing care facility, and the person sent by Nexion to transport Thomas between the two facilities was a certified nursing assistant who was trained to provide medical assistance to Thomas during that transport should the need arise. Because Thomas alleged that Nexion’s employee was negligent in not properly securing her in its van, we find no error in the trial court’s determination that Thomas was being handled within the meaning of the Act, thus entitling Nexion, a qualified health care provider, to have the claims against it in that regard presented to a medical review panel before being filed in the trial court. See Richard, 835 So.2d 460 and Hidalgo, 676 So.2d 114. Accordingly, we affirm the.trial court’s grant of Nexion’s exception of prematurity.

DECREE

For the foregoing reasons, the judgment rendered by the trial court sustaining the exception of prematurity filed by Nexion Health at Lafayette, Inc., d/b/a Lafayette Care Center, and dismissing Veronica Thomas’ claims against it without prejudice is affirmed. Costs of this appeal are assessed against Veronica Thomas.

AFFIRMED.

      . In Coleman, 813 So.2d at 315-16, the Louisiana Supreme Court set forth a six-part test for determining whether a negligent act by a qualified health care is covered by the MMA:
      [1] whether the particular wrong is 'treatment related’ or caused by a dereliction of professional skill,
      [2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
      [3] whether the pertinent act or omission involved assessment of the patient’s conditioned

      [4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
      [5] whether the injury would have occurred if the patient had not sought treatment, and
      [6] whether the tort alleged was intentional.