author: AMY, Judge.

text:
    Kevin ABSHIRE v. TOWN OF GUEYDAN
    16-466
    Court of Appeal of Louisiana, Third Circuit.
    12/07/2016

      Michael Benny Miller, William J. Casanova, Miller & Associates, Post Office Drawer 1630, Crowley, LA 70627-1630, (337) 785-9600, COUNSEL FOR PLAINTIFF/APPELLANT: Kevin Abshire
    Christopher R. Philipp, Post Office Box 2369, Lafayette, LA 70502, (337) 235-9478, COUNSEL FOR DEFENDANT/APPEL-LEE: Town of Gueydan
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
   AMY, Judge.

h The workers’ compensation claimant sought penalties and attorney fees from his employer due to alleged underpayment for mileage reimbursement. The employer defended the claim by noting that the claimant entered only one-way mileage on the reimbursement form and asserting that it paid according to that form. At a hearing wherein the parties resolved other issues by stipulation, the workers’ compensation judge heard the mileage dispute before ultimately denying the claim for penalties and attorney fees. The claimant appeals, questioning whether the resulting judgment was final due to its lack of specificity regarding the parties’ stipulations. He further challenges the denial of his claim for penalties and attorney fees. For the following reasons, we convert the claimant’s appeal to an application for supervisory writ and deny the writ.

Factual and Procedural Background

Kevin Abshire sustained injury while in the course and scope of his employment with the Town of Gueydan in 2012. The record indicates that the Town provided medical benefits. However, the present matter was instituted in July 2014, when the claimant filed a disputed claim form, seeking penalties and attorney fees upon his allegation that the employer, through its administrator, Louisiana Municipal Risk Management Agency, “[fjailed to properly pay mileage[,j” As developed by the record, the dispute involved Risk Management’s payment of mileage reported on a “Mileage Expense Report” signed by the claimant on December 20, 2013. On that form, the claimant reported “ONE WAY” mileage for medical appointments from September 3, 2013 to December 17, 2013. Risk Management paid the claim, doing so for the one-way travel listed.

|2In support of his argument, however, the claimant asserted that Risk Management should have doubled the travel reported on the mileage claim form in order to compensate him for round trip mileage. Upon receipt of the July 2014 disputed claim form, Risk Management provided him with an additional check for $178.29 to reflect the round trip mileage sought. However, due to the claimant’s contention that the mileage payment should have been initially provided by Risk Management, he continued to pursue the claim for penalties and attorney fees. Prior to the hearing, the claimant raised various additional claims.

At the .commencement of the May 2015 hearing, the parties informed the workers’ compensation judge that all issues other than that of the penalties and attorney fees for the mileage dispute were resolved by stipulation. The workers’ compensation judge allowed the reading of the stipulation by the claimant’s attorney. Thereafter, the workers’ compensation judge heard the remaining issue, ultimately denying the claim for penalties and attorney fees upon a finding that mileage was timely paid as presented.

The claimant appeals, assigning the following as error:

1. The workers’ compensation judge manifestly and legally erred in failing to award a penalty and reasonable attorney fee for the Defendant’s failure to properly pay the mileage request of December 20,2013.
[¾2. The workers’ compensation judge committed legal error in failing to include in the judgment the stipula- . tions of contested issues that were entered into in open court on the day of trial.
3. The workers’ compensation judge committed legal error in determining that the language of the judgment was sufficiently precise, certain, and definite to constitute a final judgment.

Discussion

Finality of Judgment

We first address the claimant’s assertion that the judgment as rendered does not constitute a final judgment as that question bears on whether it is amenable for appeal. See La.Code Civ.P. art. 2083(A)(providing that “[a] final judgment is appealable in all causes in which appeals are given by law[.j”). See also La.Code Civ.P. art. 2083(C)(providing that an interlocutory judgment “is appealable only when expressly provided by law.”). In particular, the claimant suggests that the judgment lacks finality as it does not contain the specifics of the parties’ stipulations. Rather than dismiss his appeal as having been taken from an interlocutory judgment, the claimant asks that this court amend the judgment as rendered to specifically include the stipulation. While we do not amend the judgment as suggested by the claimant, we find merit in his assertion that the judgment was not properly ap-pealable.

With regard to the form of a final judgment, La.Code Civ.P, art. 1918 provides that: “A final judgment shall be identified as such by appropriate language.” Jurisprudence establishes that the final “judgment must be precise, definite and certain.” See, e.g., Kimsey v. Nat’l Auto. Ins. Co., 13-856, p. 5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1035, 1038 (citing Elston v. Montgomery, 46,262 (La.App. 2 Cir. 5/18/11), 70 So.3d 824, writ denied, 11-1292 (La. 9/23/ll) 69 So.3d 1165). See also La.Code Civ.P. art. 1918, Comment (a). Furthermore, a final judgment must contain decretal language, name the party in favor of whom the ruling is made, and include the relief either granted or denied. Goal Properties, Inc. v. Prestridge, 14-422 (La.App. 3 Cir. 11/5/14), 150 So.3d 610 (quoting Frank v. City of Eunice, 13-1118 (La.App. 3 Cir. 3/5/14), 134 So.3d 222). Significantly, those requirements must “be evident without reference to other documents in the record.” Id. at 613.

Upon review, it is clear that the judgment does not satisfy those requirements as to the issues resolved as it provides only generally that:

Considering the stipulations, testimony, and evidence adduced at trial and for the oral reasons stated on June 19, 2015, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1.
The defendants timely paid the plaintiffs mileage claims; and,
2.
The plaintiffs claims for penalties and attorney fees are denied.

While the mileage issue and the related claim for penalties and attorney fees are resolved by reference to judgment, the resolution as to the issues resolved via stipulation is not evident without further reference to the transcript. Thus, the judgment does not constitute a final judgment for appeal purposes. See Goal, 150 So.3d 610.

However, notwithstanding the recognition that the judgment was not final for the appeal taken by the claimant, we neither remand the judgment for further modification nor do we amend the judgment. We instead convert this matter to an application for supervisory writ and consider this matter under our supervisory ^authority. See La.Const. art. 5, § 10. See also Stelluto v. Stelluto, 05-0074 (La. 6/29/05), 914 So.2d 34.

Mileage-Penalties and Attorney Fees

The claimant concedes that he submitted one-way mileage to his medical appointments to Risk Management. Neither does he appear to contest that Risk Management provided payment following the submission of the mileage form. He contends, however, that the resulting payment must be viewed as an underpayment as Risk Management did not provide full, round trip mileage within sixty days of the December 2013 claim form. The claimant points to past mileage submissions, noting that he had previously been provided round trip mileage, despite having reported only one-way travel.

Louisiana Revised Statutes 23:1201(E)(1) provides that: “Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written noticef.]” As far as the claimant’s request for mileage, La. R.S. 23:1203(D) provides that “the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section[.]” In the event the employer fails to timely provide the benefits as required, La.R.S. 23:1201(F) provides for the assessment of penalties and a reasonable attorney fee. However, penalties and attorney fees may not be awarded “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La.R.S. 23:1201(F)(2).

16In denying the claimant’s demand, the workers’ compensation judge explained as follows in oral reasons for ruling:

The Court finds that the employer received written notice on December 20, 2013, of the mileage reimbursement request. The mileage was paid on February 5, 2014. This was within 60 days. Therefore, the Court finds there are no penalties and attorney’s fees owed for that payment.
The Court further notes that a 1008 was filed on July 16, 2014, alleging an underpayment with regards to the mileage that was originally submitted on December 20, 2013. An additional check was issued on July 28, 2014, representing the alleged underpayment. That payment was made again within 60 days. Therefore, there are no penalties and attorney’s fees owed for the mileage reimbursement request made on July 16, 2014.

Having reviewed the record, we find no manifest error in this determination. See Brown v. Lafayette Ass’n of Retarded Citizens, Inc., 11-1695, p. 12 (La.App. 3 Cir. 6/20/12), 94 So.3d 950, 959 (explaining that a workers’ compensation judge’s decision as to whether “to cast an employer with penalties and attorney fees is a question of fact subject to the manifest error standard of review.”). Rather, we find that the record reflects the workers’ compensation judge’s further observation that: “[t]he issue in this case is where the burden really lies.”

Importantly, the burden of proving that the subject medical bill was not paid within sixty days of receipt of written notice is upon the claimant seeking the sanction of penalties and attorney fees. Day v. Superior Derrick Serv., 11-749 (La.App. 3 Cir. 12/7/11), 80 So.3d 654. Simply, the claimant’s claim for mileage, which was reported on a one-way basis (reported as “Address traveling from” and “Address traveling to”), was received on December 20, 2013, as evidenced by the physical exhibit included in the record and as testified to by Risk Management Claims Adjuster Tara Shelton. Ms. Shelton explained that the mileage represented by that submission was paid by check dated February 5, 2014, in the amount of |7$139.29. Thus, and again as identified by the workers’ compensation judge, the mileage reimbursement was provided within sixty days of receipt.

Similarly, Ms. Shelton explained that Risk Management did not receive notice of the claim for the return leg of each medical appointment until the July 16, 2014 filing of the Disputed Claim for Compensation. It again paid that demand within sixty days by check dated July 28, 2014. Thus, each payment was made “within sixty days after the employer or insurer receives written notice” pursuant to La.R.S. 23:1021(E)(1).

While the claimant suggests that he had previously been paid round trip mileage without a particularized claim for the return travel in the past, we find no manifest error in the workers’ compensation judge’s determination that such a suggestion does not satisfy his burden of proving the present claim. Instead, Ms. Shelton explained that she had been assigned to the claimant’s file at the time of the instant submission. She testified that the objective of the reporting of particularized, one-way travel is that: “Generally the claimant will write one way to the doctor’s office, on the next line they write back home or if they went to PT, whether they went from the doctor’s office or provider’s office to the next place.” In this case, the claimant admittedly did not do so, instead reporting only one-way travel for medical treatment on the dates included within the mileage form. We Rfind no manifest error in a rejection of the claimant’s contention that Risk Management was obligated to provide payment based upon an estimated or assumed return trip mileage, notwithstanding its prior practice. Instead, the record supports the workers’ compensation judge’s determination that Risk Management made timely payment upon receipt of the claimant’s written notices per La.R.S. 23:1021(E)(1).

This assignment lacks merit.

DECREE

For the foregoing reasons, the appeal of the appellant, Kevin Abshire, is converted into an application for supervisory writ, and the writ is denied. Costs of this proceeding are assessed to Mr. Abshire as the appellani/relator.

APPEAL CONVERTED TO WRIT. WRIT DENIED.

      . The claimant's Answer to Pretrial Questionnaire indicates that, at one time, he raised various issues to be litigated at the hearing, including the occurrence of the work-related accident, the payment of the employer’s payment of indemnity benefits, the reasonableness of the medical treatment provided, and whether proper rehabilitation services were provided.

      . Claimant's counsel stated:
      We agree that the accident on August 23, 2012 in the course and scope, that he has a — he’s entitled to TTD benefits based on [an] average weekly wage of Four Ninety-four Sixteen with a corresponding comp rate of Three Twenty-nine Forty Six, as well as entitled to reasonable and necessary treatment resulting from his accident.
      Counsel for the employer and for Risk Management responded: "That's fine. You can put it like that.”

      . The workers’ compensation judge explained:
      There’s been argument made that there was a different way of doing things in prior situations. While I do think that has a bearing on what happened, the simple fact of the matter is that what the statutes are aimed to do are to get the adjusters to timely pay the benefits that are submitted to them.
      In this case, the adjuster did that. Whether they should have done it a different way or not, well, I don’t think I’m here to determine that. What I am here to determine is what happened in this case, and in this case, the adjuster paid the mileage in a timely manner based on what was submitted to them. Therefore, I find that no penalties and attorney fees are owed in th[i]s matter.


source: Caselaw Access Project

author: Judge Madeleine M. Landrieu

license: Public Domain

text:
    Lesley Anne BROWN v. Troy CHATEGNIER
    NO. 2016-CA-0373
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 14, 2016

      Rachel C. Marinovich, 4173 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Melissa Culotta, Law Office of Melissa Culotta, LLC, 1100 Poydi-as Street, Suite 2905, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Madeleine M. Landrieu)
   Judge Madeleine M. Landrieu

| ¾ This appeal involves a child custody determination. In the trial court’s original judgment, the mother and father were awarded joint custody of their minor child, designating the father as the domiciliary parent and setting forth a visitation schedule. In a second judgment rendered in response to the mother’s motion for new trial, the trial court granted the motion only to expand the amount of visitation time allowed to the mother, but did not grant her motion for new trial on the issue of her request for shared physical custody of the minor child. The mother now appeals both judgments.

Lesley Anne Brown and Troy Chategnier were married on October 17, 2009. One child was born of the marriage, a son, L.C., born on October 25, 2010. During the marriage, the parties resided in Me-tairie until October 2012, and then relocated to Belle Chasse until they separated in April 2013. When the parties separated, Mr. Chategnier moved to Kenner to live with his parents. Ms. Brown filed for divorce on January 14, 2014, asking that the parties be granted joint | gcustody of L.C., with Ms. Brown designated as the primary domiciliary parent. Mr. Chategnier answered Ms. Brown’s petition, and filed a reconventional demand, seeking sole custody of L.C., and alternatively seeking joint custody of L.C., with Mr. Chategnier designated as the domiciliary parent. An interim custody judgment signed on April 14, 2014 granted joint custody of L.C. to Ms. Brown and Mr. Chategnier, with Ms. Brown designated as the domiciliary parent. A judgment of divorce was signed on August 18,2014.

Following trial on the issue of custody of L.C., the trial court rendered judgment on August 19, 2015, ordering that Ms. Brown and Mr. Chategnier shall have joint custody of L.C. The judgment designated Mr. Chategnier as the domiciliary parent, and included a detailed visitation schedule.

Following rendition of the August 19, 2015 judgment, Ms. Brown filed a motion for new trial, arguing that the judgment is contrary to the law and evidence, and that the parties should be awarded shared physical custody of L.C. After a hearing on the motion for new trial, the trial court rendered judgment on October 28, 2015, granting the motion only as to the issue of the amount of visitation time granted to Ms. Brown. The trial court amended the visitation schedule by increasing the amount of time Ms. Brown has with L.C. The trial court otherwise denied the motion for new trial. Ms. Brown now appeals the August 19, 2015 and October 28, 2015 judgments.

Ms. Brown first argues that the trial court committed manifest error in relying on his preconceived notions about Ms. Brown and on the evaluator’s | .^reports in rendering his decision. She argues that the trial court made comments during trial that demonstrated a bias against Ms. Brown and in favor of Mr. Chategnier. Specifically, Ms. Brown refers to several instances at trial when the trial court stated that Mr. Chategnier was “winning” on certain points.

A review of the record reveals that Ms. Brown did not contemporaneously object when the trial court stated that Mr, Chategnier was “winning” on certain points at trial, or raise the issue of the trial court’s alleged bias at any time prior to the entry of judgment. Therefore, Ms. Brown failed to properly preserve this issue for review on appeal. Williams v. Griffith, 14-690, p. 5 (La.App. 5 Cir. 4/15/15), 170 So.3d 265, 267-268 (mother in custody case failed to raise allegation ->of trial court’s bias at trial level; therefore, issue was not properly preserved for review on appeal.)

Even if Ms. Brown had contemporaneously objected to the trial court’s comments or raised the issue of the trial court’s alleged bias at trial, we would find this argument to be without merit. The transcript shows that the trial court’s statements that Mr. Chategnier was “winning” or that there was “no need to beat a dead horse” were made to Mr. Chategnier’s counsel to express the trial court’s view that counsel had already offered sufficient proof on certain issues. The trial court was merely expressing his exasperation with counsel for Mr.' Chategnier for continuing to conduct repetitive questioning on matters that had already been established. The record does not show that the trial court had any bias in favor of or against either party.

14As for the trial court’s reliance on the reports of the court-appointed evaluator, Dr. Rafael Salcedo, Ms. Brown correctly states that the reports were not formally introduced into evidence by either party and that Dr. Salcedo was not called to testify at trial. Even though the reports were not formally introduced into evidence, the trial court made clear at trial that the reports were being admitted as evidence. He should not have done so. “Generally, a report prepared by an expert is not admissible because it is hearsay.” Baker v. Harrah’s, 2015-0229, p. 10 (La. App. 4 Cir. 3/9/16), 190 So.3d 379, 388. The opinion of an expert appointed by the court is not exempt from this rule. However, counsel for Ms. Brown did not object at trial when the trial court stated on several occasions that he was considering the evaluator’s reports in making his decision as to custody. “Failure to object to hearsay evidence when admitted at trial constitutes a waiver of the right to object to its admissibility, and such evidence may be considered and given probative effect.” Walley v. Vargas, 2012-0022, p. 15 (La. App. 1 Cir. 9/21/12), 104 So.3d 93, 104. Because Ms. Brown did not object at trial to the trial court’s admission of this hearsay evidence, she waived her right to argue on appeal that this evidence should not have been considered. See La. C.E. art. 103(A)(1).

Ms. Brown also argues that the trial court erred in “switching primary domiciliary parent from the mother to the father and reducing the mother’s custodial periods.” We first note that the trial court’s August 19, 2015 judgment | fiwas not a modification of an existing custody judgment, but was the initial setting of custody. The April 14, 2014 judgment designating Ms. Brown as the domiciliary parent was an interim judgment only.

“The primary consideration in a determination of child custody is the best interest of the child.” Mulkey v. Mulkey, 2012-2709, pp. 9-10 (La. 5/7/13), 118 So.3d 357, 364, citing La. C.C. art. 131. A trial court’s custody determination is entitled to great weight and will not be disturbed on appeal absent a clear showing of abuse of discretion. McKenzie v. Cuccia, 2004-0112, pp. 3-4 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 338. (citations omitted.) The nonexclusive factors to be considered in determining the best interest of the child are set forth in La. C.C. art. 134, as follows:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
|R(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

Dr. Rafael Salcedo, a forensic psychologist, conducted psychological evaluations of the parties, and also interviewed L.C.’s maternal grandmother and his paternal grandmother and grandfather. He also observed L.C. interacting with each of his parents. Dr. Salcedo issued his initial report on September 29, 2014, and issued an updated report on April 28, 2015, after conducting additional interviews with and examinations of Ms. Brown and Mr. Cha-tegnier. In both reports, Dr. Salcedo noted the high degree of conflict and acrimony between Ms. Brown and Mr. Chategnier, and the record before us is replete with evidence of that conflict and acrimony in the form of emails, text messages and trial testimony.

In his initial report, Dr. Salcedo recommended to the trial court that serious consideration be given to a shared custody arrangement, while noting that a determination of the best interest of the child is a decision for the trial court to make. Dr. Salcedo found no significant difference between the parties on most of the factors set forth in La. C.C. art. 134. However, in Dr. Salcedo’s opinion, two of the factors weigh in Mr. Chategnier’s favor: that L.C. appears to have stronger emotional ties and bonding with Mr. Chategnier than he has with Ms. Brown, and that Mr. Chateg-nier is considerably more likely than Ms. Brown to facilitate and encourage a close and continuing relationship between L.C. and his other parent. In his updated report, Dr. Salcedo stated that a high degree of rigidity and acrimony still existed between Ms. Brown and Mr. Chategnier, and reiterated his recommendation that an arrangement whereby L.C. is shared equally by both parents might provide the least amount of conflict.

|7The trial court did not implement Dr. Salcedo’s recommendation of shared physical custody of L.C., and did not issue written reasons for judgment. In arguing that the trial court erred in not ordering that the parties equally share physical custody of L.C., Ms. Brown relies on La. R.S. 9:335(A)(2)(b), which states that when joint custody is decreed, “[t]o the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.”

At trial, both parties described the differences they had with each other regarding issues related to L.C.’s care, and testimony was given regarding objectionable behavior on the part of both parties. When recounting details of the period following the parties’ separation until the date of trial, Ms. Brown testified that Mr. Chateg-nier has been uncooperative and inflexible, and Mr. Chategnier testified that Ms. Brown has been untruthful and manipulative. Dr. Salcedo noted similar traits in these parties in his updated report of April 28, 2015.

Mr. Chategnier testified that Ms. Brown has failed to notify him of medical appointments and extracurricular activities involving L.C., and has sometimes thwarted Mr. Chategnier’s attempts to communicate with L.C. while the child was in Ms. Brown’s custody. Mr. Chategnier testified that he provided most of the care for L.C. during the marriage, whereas Ms. Brown said that the parties shared the responsibilities of child care. Ms. Brown testified that she has been flexible with Mr. Cha-tegnier as to L.C.’s schedule, e.g. allowing Mr. Chategnier extra days during holidays, but Mr. Chategnier has not been willing to be flexible with her when L.C. is in his custody.

The testimony of the parties shows that they have significant problems communicating with each other with regard to the care of their child. Most of the ^testimony of Ms. Brown and Mr. Chateg-nier involved exhaustive detail of the alleged shortcomings of the other. At the conclusion of trial, the trial court took the matter under advisement, but noted the extreme amount of animosity and tension between the parties that was apparent at trial, and commented that the parties have not shown a willingness to work, together to raise their child. Based on the high level of conflict and lack of cooperation and communication between Ms. Brown and Mr. Chategnier since their separation, the trial court apparently found that equal sharing of physical custody of L.C. is not feasible and/or is not in the best interest of the child. Given the trial court’s discretion in a child custody determination, we cannot say the court abused its discretion in not ordering that the parties equally share physical custody of L.C.

On the issue of the designation of the domiciliary parent, Dr. Salcedo’s report included his opinion that L.C. has stronger emotional ties and bonding with Mr. Chategnier than with Ms. Brown, and that the past behavior of the parties suggests that Ms. Brown is significantly less willing than Mr. Chategnier to facilitate and encourage a close and continuing relationship between L.C. and his other parent. Mr. Chategnier and his mother testified as to the strong connection L.C. has with his paternal grandparents and other family friends in Kenner, Because the record supports the trial court’s decision to designate Mr. Chategnier as the domiciliary parent instead of ordering a shared physical custody arrangement between Ms. Brown and Mr. Chategnier, we will not disturb this decision on appeal.

Counsel for Mr. Chategnier included in her appeal brief a motion to strike unsupported factual allegations from the brief filed on behalf of Ms. Brown. We deny the motion. Counsel for Mr. Chateg-nier also filed a request for attorney’s 19fees for frivolous appeal in her appeal brief. Because Mr. Chategnier neither appealed the trial court judgment nor answered the appeal, we are precluded from modifying the judgment to award attorney’s fees. La. C.C.P. art. 2133.

For the reasons stated above, we affirm the trial court judgments of August 19, 2015 and October 28, 2015,

AFFIRMED

      . We are using the initials of the minor child to protect his privacy. Rules 5-1 and 5-2, Uniform Rules — Courts of Appeal.

      . At one point, the trial court stated: "The other thing I don’t understand is the report— because it’s going to be in evidence. It’s my report from the doctor. Okay?”

      . A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party.


author: GREMILLION, Judge.

text:
    Naddia MELDER, et ux. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    16-692
    Court of Appeal of Louisiana, Third Circuit.
    12/14/2016

      Roy S. Halcomb, Jr., Broussard, Hal-comb & Vizzier, P. 0. Box 1311, Alexandria, LA 71309, (318) 487-4589, COUNSEL FOR PLAINTIFFS/APPELLANTS: Naddia Melder, Randel Melder
    Joe Payne Williams, Williams Family Law Firm, L.L.C., Post Office Box 15, Natchitoches, LA 71458-0015, (318) 352-6695, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Farm Bureau Casualty Insurance Company
    Bonita K. Preuett-Armour, Armour Law Firm, P. 0. Box 710, Alexandria, LA 71309, (318) 442-6611, COUNSEL FOR DEFENDANT/APPELLEE: State Farm Mutual Automobile Insurance Company
    Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

h Naddia and Randel Melder appeal the trial court’s judgment finding that the defendant-appellee, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), did not provide uninsured motorist (UM) coverage in Naddia’s favor following a motor vehicle accident. For the following reasons, we affirm in part and render in part.

FACTUAL AND PROCEDURAL BACKGROUND

Naddia Melder was injured in a two-car accident in March 2007. Naddia was operating a 2006 Nissan pickup truck owned by her employer, Grimes Industrial Supply. The other vehicle involved in the accident was underinsured, and UM coverage on the Grimes vehicle had been rejected. The Melders, therefore, filed a claim against their own UM carrier, Farm Bureau.

Farm Bureau filed a motion for summary judgment, which was denied. The parties submitted the matter to the trial court after stipulating to certain facts. The trial court rendered a judgment in July 2016, denying the Melders’ claim for UM coverage. The Melders now appeal. Although plaintiffs did not assign any errors in them brief, they framed the issues as follows:

1. Is Farm Bureau’s regular use exclusion contrary to and in violation of the UM statute and therefore unenforceable? [The trial court erred in finding the regular use exclusion applied when the exclusion is contrary to the UM statute.]
2. In the alternative, assuming Farm Bureau’s regular use exclusion is enforceable, which is denied, does it apply given the fact that the pickup being driven by Ms. Melder was furnished to her solely for the use of her employer, and not for the use of Ms. Melder? [If the regular use exclusion applies, the trial court erred in finding it applied to Naddia who was driving a vehicle that was solely for the use of her employer.]
3. Is Farm Bureau liable for penalty damages and attorney fees for failing to pay, within thirty days as required by law, the med|2pay benefits which Farm Bureau admitted it owed and/or for failing to pay UM benefits based on Farm Bureau’s misinterpretation of its policy? [The trial court erred in failing to award penalty damages and attorney fees because Farm Bureau refused to timely pay the med-pay benefits.]

DISCUSSION

Validity of the Exclusion

Whether an insurance policy provides coverage or an exclusion prohibits it is a question of law, which we review de novo. Thibodeaux v. Living Waters Cmty. Church, 08-1064 (La.App. 3 Cir. 3/4/09), 5 So.3d 1007, writ denied, 09-0749 (La. 5/22/09), 9 So.3d 145. The Melders argue that the exclusion found in Farm Bureau’s policy does not apply because the provision violates La.R.S. 22:1295.

The applicable portion of the Farm Bureau policy reads as follows:

Coverage U-Uninsured Motorist (Damages for Bodily Injury)
To pay all sums, except punitive and/or exemplary damages, which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured vehicle.
The term “uninsured or underinsured automobile” shall not include: (1) An owned automobile or an automobile furnished for the regular use of the named insured or a relative[.]

The Melders argue that Farm Bureau’s “regular use” exclusion is contrary to the legislation found in La.R.S. 22:1295(l)(e), because the legislation does not specifically note the “regular use” exclusion. Louisiana Revised Statutes 22:1295(l)(e) states:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including the resulting death of an insured, while occupying a motor ve-hide owned by the insured if such motor vehicle is not described in the policy under which a | odaim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

The Melders claim that if the legislature wanted to include the regular use exclusion, it could have easily done so by adding the exclusion language. The Melders refer to an Illinois statute, § 215 ILCS 5(143)(a)(emphasis added), as an illustration:

Uninsured motor vehicle coverage does not apply to bodily injury, sickness, disease, or death resulting therefrom, of an insured while occupying a motor vehicle owned by, or furnished or available for the regular use of the insured, a resident spouse or resident relative, if that motor vehicle is not described in the policy under which a claim is made or is not a newly acquired or replacement motor vehicle covered under the terms of the policy.

While we appreciate the plaintiffs’ argument that as a policy matter, UM coverage is person-specific as opposed to vehicle-specific, it has long been held that a regular use exclusion is not contrary to the public policy of this state. In Howell v. Balboa Insurance Co., 564 So.2d 298, 301 (La.1990), the supreme court stated: “We expressly hold that UM coverage attaches to the person of the insured, not the vehicle, and that any provision of UM coverage purporting, to limit insured status to instances involving a relationship to an insured vehicle contravenes LSA-R.S. 22:1406(D).”

However, in Magnon v. Collins, 739 So.2d 191 (La. 7/7/99), the supreme court clarified that Howell applies only to a person who is a liability insured. “As such, any determination of whether a plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for purposes of auto liability insurance coverage.” Id. at 196. Accordingly, courts have held that insurers can exclude an insured from UM coverage in the same manner that the insured would be excluded under liability insurance. See Mills v. Hubbs, 597 So.2d 87 (La.App. Cir.), writ denied, 600 So.2d 677 (La.1992); Zanca v. Breaux, 590 So.2d 821 (La.App. 4 Cir. 1990); Kerner v. Laballe, 560 So.2d 571 (La.App. 4 Cir. 1991); and, Davenport v. Prudential Prop. & Cas. Ins. Co., 03-2593 (La.App. 1 Cir. 10/29/04), 897 So.2d 98, writ denied, 04-2900 (La. 2/4/05), 893 So.2d 882.

Insurance companies can limit coverage, including coverage of non-owned vehicles. Magnon, 739 So.2d 191.

The purpose of the regular use exclusion is to protect an insurance company against double coverage when a premium has been paid on only one vehicle. If the insured has access to a second vehicle furnished for his regular use, the insurance company can rightfully require that a premium be paid for the insured’s use of the second vehicle.

Romano v. Girlinghouse, 385 So.2d 352, 355 (La.App. 1 Cir. 1980),

The courts of this state have regularly recognized the public policy of having employers insure the vehicles which their employees regularly use, because an employee’s personal insurance policy is not intended to provide insurance coverage for a vehicle regularly used by an employee in employment situations. See Davenport, 897 So.2d 98. Accordingly, this assignment of error is without merit.

Factual finding that plaintiff had the regular use of the vehicle

Alternatively, the Melders argue that the pickup truck was furnished for the use of Naddia’s employer rather than for Naddia. The trial court succinctly stated the relevant and undisputed facts:

Ms. Melder was employed by Grimes Industrial on or about January 2, 2007 and was supplied a vehicle, 2006 Nissan Frontier, to make her sales calls. Although she was only employed a few short[] weeks before this accident, she did prove to her employers that she was responsible, and they allowed Ms. Meld-er to take the work vehicle home.
Initially the Grimes vehicle would be parked each day at the business with Ms. Melder using her own personal vehicle for travel to work from home and then at work she used the Grimes vehicle. IfiMs. Melder reported that she used the 2006 Nissan Frontier, the same vehicle each day, for her business calls/stops. That same vehicle was also used by others to do business calls or deliveries. However just a couple weeks before the accident, Ms. Melder was allowed to take the vehicle home. Even though she had the vehicle at her home, Ms. Melder began each day at the Grimes business office departing from there for her sales calls/stops/deliveries. Ms. Melder stated that it was made clear to her that the vehicle was not for personal use and she obeyed those rules. She mentioned in her deposition the responsibility of needing to run personal errands required that she retrieve her own personal vehicle before doing any personal errands.
The current [ ] facts are clear that Ms. Melder, although employed just a few short weeks, was provided a vehicle by her employer. Initially the vehicle was used on occasion by others, however within a few weeks of employment and a couple of weeks prior to the accident, Ms. Melder’s employer allowed Ms. Melder to take the vehicle home and it became a vehicle used exclusively by Ms. Melder for her regular use — daily sales travel.

A vehicle that is furnished for “regular use” has been defined as a vehicle that “is provided, supplied or afforded to the individual according to some established rule or principle or used in steady or uniform course, practice or occurrence as contrasted with being furnished for use only on casual, random, unpredictable or chance occasions.” Jones v. Youngblood, 50,115, pp. 3-4 (La.App. 2 Cir. 9/30/15), 180 So.3d 455, 457; see also Whitham v. La. Farm Bureau Cas. Ins. Co., 45,199 (La.App 2 Cir. 4/14/10), 34 So.3d 1104.

We find no error in the trial court’s finding that Naddia had regular use of the Grimes pickup truck. The accident occurred while Naddia was regularly using her employer’s vehicle in the course and scope of her work duties. The Melders attempt to draw a distinction between the vehicle being “furnished to her solely for the use of her employer, and not for her personal use.” This distinction fails. In a case with facts identical to this one, we negated the idea that the employer’s disal-lowance of the company vehicle for personal matters means the vehicle was Rnot “regularly used,” because the vehicle was only used for the benefit of the employer. See Gray v. Am. Nat’l Prop. & Cas. Cos., 07-415 (La.App. 3 Cir. 10/3/07), 966 So.2d 1237. The regular use exclusion clearly applies to Naddia’s use of the Grimes company vehicle, as it was being customarily used throughout the day for business purposes. This assignment of error is without merit.

Med Pay Benefits/Penalties & Attorney Fees

The trial court did not address the issue of penalty damages and attorney fees. Therefore, we will presume that the trial court denied plaintiffs any penalties or attorney fees pursuant to La.R.S. 22:1892. See Moore v. Moore, 12-959 (La. App. 3 Cir. 4/10/13), 116 So.3d 18, writ denied, 13-1065 (La. 6/21/13), 118 So.3d 421. Louisiana Revised Statutes 22:1892 states in pertinent part:

A.(l) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
B.(l) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, . within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or [ .¡prospective loss experience for the purpose of setting rates or making rate filings.

Melder made written demand for payment under the UM policy and medical payment (med-pay) benefits by letter dated August 22, 2007, which was received by Farm Bureau on August 24, 2007. Farm Bureau paid the med-pay limit of $5,000.00 on September 25, 2007, one day late. Farm Bureau provided no compelling reason for its failure to timely distribute med-pay benefits to Melder, and the validity of the claim was not disputed. Therefore, it was arbitrary, capricious, and without probable cause on Farm Bureau’s part to delay beyond thirty days in making payment to Melder. See Louisiana Bag Co., Inc. v. Audubon Indem. Co., 08-453 (La. 12/2/08), 999 So.2d 1104. Pursuant to the statute, Farm Bureau is responsible for penalty damages in the amount of $2,500.00 which is half of the undisputed amount it failed to pay, i.e., $5,000.00. Additionally, pursuant to La.R.S. 22:1892(B)(1), we award $3,500.00 in attorney fees.

CONCLUSION

The judgment of the trial court in favor of the defendant-appellee, Louisiana Farm Bureau Casualty Insurance Company, is affirmed as to the denial of UM coverage. We render judgment of $2,500.00 for penalty fees and $3,500.00 for attorney fees in favor of the plaintiffs-appellants, Naddia and Randel Melder. Costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART; RENDERED IN PART.

      . We will substitute the "ISSUES” portion of the plaintiffs’ brief for the assignments of error. We have noted in brackets the assignments of error that the Melders should have included in their brief.


text:
    SUCCESSION OF Charles B. FANZ, Jr.
    NO. 2016-CA-0180
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 16, 2016
    Rehearing Denied January 18, 2017

      Richard A. Richardson, 9 Starbrush Circle, Ste. 102, Covington, LA 70433, John Mark Fezio, STONE PIGMAN WALTHER WITTMAN L.L.P., 546 Carondelet Street, New Orleans, LA 70130, COUNSEL FOR APPELLANTS/CHARLES B. FANZ, III AND TAMMY FANZ
    Ewell C. Potts, III, POTTS & POTTS, 7216 W. Judge Perez Drive, Arabi, LA 70032, COUNSEL FOR APPELLANT/APPELLEE/ANA Z. FANZ

      Paul A. Tabary, III, Elizabeth R. Borne, TABARY AND BORNE, LLC, Three Courthouse Square, Chalmette, LA 70043, COUNSEL FOR APPELLEE/ESTATE OF CHARLES B. FANZ, JR.
    (Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu)
   Judge Madeleine M. Landrieu

_JjThe judgment appealed from addresses certain disputed issues between the widow and two of three adult children of the late Charles B. Fanz, Jr. Mr. Fanz died testate on October 22, 2011. His last will and testament includes provisions regarding Ana Fanz, his surviving spouse; Charles B. Fanz, III (“Chuck”), Tammy Fanz and Tanya Fanz, his three adult children from a previous marriage; and Mildred Fanz, his child with Ana Fanz, who was a minor at the time of her father’s death. The family’s principal asset is a business called “Fanz Mobile Home Estates,” which is located in St. Bernard Parish.

Shortly after the decedent’s death, his surviving spouse and three adult children filed a “Petition to Open Succession and for Authority to Search for Testament.” The last will and testament of the decedent was located in a safe deposit box at a local bank. In the will, the decedent named Ana, Chuck, Tammy and Tanya as succession representatives with the authority to serve as independent administrators. The four of them jointly filed a petition to be confirmed as ^independent executors of the decedent’s succession and to serve without bond. The trial court confirmed the four petitioners as independent executors without bond. By judgment dated March 13, 2012, Ana was given authority on behalf of the succession to run the daily operations of Fanz Mobile Home Estates pending further orders of the court. This family business has been operating as a succession asset since the decedent’s death.

On November 15, 2013, a detailed descriptive list of assets and liabilities of the succession was filed. The list was signed by all succession representatives except Chuck. On June 13, 2014, Ana filed a motion to traverse the detailed descriptive list. In Ana’s motion and another motion filed by the succession on July 11, 2014, the trial court was asked to make certain determinations regarding the decedent’s estate.

Pursuant to Ana’s motion, the trial court agreed to determine the following issues at trial: “1) the proper designation, description and location of property more particularly known as 2100 West Fanz Road; 2) a determination as to whether a reimbursement of $88,115.25 should be awarded to Mrs. Fanz [Ana]; 3) the determination of the specific bequest to Ana Z. Fanz of corporeal movables, and 4) the determination of the status of the rights of the decedent’s minor child to inherit from the estate. Pursuant to the motion filed on behalf of the succession, the trial court also ordered that the following issues would be determined at trial: “1) the proper determination of the forced portion of the estate of Charles B. Fanz, Jr.; 2) the proper determination as to how the Succession 'will satisfy the forced 1 ¡¡portion to go to the forced heir, Mildred B. Fanz; and 3) the determination of the value of the assets and debts of the Succession of Charles B. Fanz, Jr. at the time of his death.”

On July 18, 2014, Chuck and Tammy, as independent co-executors, filed a petition for an accounting and for breach of fiduciary duty against Ana, individually, in her capacity as a duly appointed co-executrix of the succession and as the court-appointed sole manager of the daily operations of the family business. They alleged that Ana breached her fiduciary duty to the succession by usurping a business opportunity that should have first been offered to the family business. Specifically, they allege that after Ana was appointed manager of the family business, she purchased numerous trailers for herself and located these on the business property. According to Chuck and Tammy, the business had ample funds to purchase those same trailers, and Ana should have offered the business the opportunity to purchase the trailers before she purchased them in her individual name.

Chuck and Tammy subsequently filed a first amended petition for an accounting and breach of fiduciary duty, and requested that attorney’s fees and expert costs incurred by them be paid by the succession, arguing that the issues they raised are for the benefit of the succession as a whole and not only for the benefit of the petitioners. They also alleged that Ana had failed to adequately account for succession funds and took possession of funds that did not belong to her. They requested that Ana be removed as manager of the business due to [conflicts of interest and other alleged actions not in the best interest of the business. Chuck and Tammy also asked for reimbursement to the succession of certain funds they allege Ana improperly took from the succession for expenses not related to the succession.

Following trial, by judgment dated October 1, 2015, the trial court adjudicated numerous disputed issues between the parties. The adjudications relevant to the instant appeal include:

1) The “domiciliary residence” bequeathed to Ana in the last will and testament is the area designated as Lot F-l-D in a survey by Thomas Reed, which was introduced into evidence at trial as Exhibit 5;
2) The voting procedure for succession representatives is that Chuck, Tammy and Tanya each get a one-sixth (1/6) vote and Ana gets a one-half (1/2) vote;
8) Denial of the claims by Chuck and Tammy for reimbursement of $25,000.00 taken from the Mobile Home account and placed in an account for Mildred, and of $40,000.00 received by Ana as reimbursement for funds expended by her for the business;
4) Ana must cease using Fanz Mobile Home Estates property to rent out any trailers that are personally and separately owned by her;
5) The use of business equipment by Ana for personal and/or separate endeavors is not permitted;
6) Recognition that the business, prior to the death of the decedent, and the succession, after the decedent’s death, owed Ana a debt in the amount of $88,000.00;
k7) Denial of the claim for attorney’s fees by various heirs, except for fees due to the lawyer representing all heirs together in connection with services rendered for the benefit of the succession;
8) Denial of the request to remove Ana as operator of the family business;
9) Acceptance of the descriptive list filed on November 15, 2013, subject to rulings set forth in this judgment;
10) Ana must begin paying all of her own expenses unless the trial court authorizes payments through the business while it is being operated as a succession asset; and
11) Insufficient evidence existed to support claims against Ana for alleged theft of property belonging to the succession or the mobile home park business.

Chuck and Tammy appealed the trial court judgment and raised the following assignments of error:

1. Whether the trial court erred as a matter of law by finding that the proper voting procedure for the succession representatives pursuant to the terms of the Will was that Ana gets a 1/2 vote, and Chuck, Tammy and Tanya each get a 1/6 vote.
2. Whether the trial court erred as a matter of law in denying the claims by the succession for an accounting owed to the succession by the decedent’s mandatary, Ana, based on the trial court’s erroneous conclusion that the claims did not belong to the succession.
3. Whether the trial court erred as a matter of law in recognizing a debt owed to Ana of $88,000 despite the fact that Ana had waived all reimbursements in the matrimonial agreement between her and the decedent.
4. Whether the trial court erred as a matter of law in failing to award Chuck and Tammy, acting in their capacity as succession representatives, attorney’s fees and expert witness costs from the succession assets.
5. Whether the trial court committed manifest error in failing to remove Ana as operator of the business and as succession representative despite the fact that the trial court recognized that she was competing with the business and that she had breached her fiduciary duties.
_J|6. Whether the trial court erred as a matter of law in failing to order Ana to reimburse the succession for her personal expenses paid by the succession.
7. Whether the trial court erred as a matter of law and fact by finding that Ana had properly accounted for her expenditures in running the business.
8. Whether the trial court erred as a matter of law in failing to require Ana to account to the succession for rents she received from renting her trailers while trailers belonging to the succession remained vacant.
9. Whether the trial court erred as a matter of law in failing to find Ana had usurped a business opportunity of the business by buying eight trailers personally, while she was operating the business, instead of offering them to the business for purchase.
10. Whether the trial court erred as a matter of law by not awarding damages to the succession for Ana’s breach of her fiduciary duties despite finding that Ana breached some of her duties.

Ana also appealed the judgment. In her sole assignment of error, she argues that the trial court erred in limiting the award to her of the domiciliary residence as only that portion of property known as Lot F-1-D on the survey of Thomas Reed, and not also awarding her the contiguous land customarily used and associated with the residence.

We initially note that the judgment appealed from is a partial final judgment, which was not designated as immediately appealable by the trial court under La. C.C.P. art. 1915B. The judgment is not a final judgment under either La. C.C.P. art. 1915A or La. C.C.P. art. 2974 (appeals from certain orders or judgments rendered in succession proceedings.) An appeal erroneously taken on a nonappealable judgment may be convertéd to an application for supervisory writ by the appellate court, but only when the motion for appeal has been filed within the thirty-day period allowed for the filing of an application for supervisory writ |7under Rule 4-3 of the Uniform Rules — Courts of Appeal. See Ordoyne v. Ordoyne, 2007-0235, p. 4 (La.App. 4 Cir. 4/2/08), 982 So.2d 899, 902. In this matter, the motion for appeal was filed within thirty days of the date of the notice of judgment. Accordingly, to the extent any decree is not immediately appealable without the trial court’s certification as such, we exercise our discretion and convert the instant appeal to an application for supervisory writ.

We first address the assignment of error by Ana regarding the trial court’s determination of what was included in the bequest to her of the domiciliary residence. In Article 1.1(A) of the will, the decedent made the following specific bequest to Ana:

If Ana survives me, I bequeath to her, in full ownership, my interest in:
Our domiciliary residence at the time of my death, the land upon which it is situated and the land contiguous thereto that has customarily been used and associated with the residence, which residence and land is currently located at 2100 W. Fanz Road, St. Bernard, LA 70085.

As stated .above, the trial court determined that the domiciliary residence bequeathed to Ana consists of the area designated as Lot F-l-D on the survey by Thomas Reed. In reasons for judgment, the trial court stated that Lot F-l-D is the area the decedent subdivided and used in connection with his homestead exemption. The court stated that this area is the homestead and comprises the family dwelling. The trial court acknowledged that his finding creates a problem for the heirs in that part of the trailer park garage/warehouse encroaches on Lot F-l-D. However, the court stated that the parties will have to resolve this issue in the future, and a re-subdivision of the property will be necessary due to the encroachment problem.

RAna argues that the decedent’s bequest to her of the domiciliary residence includes not just the residence and land bearing the municipal address of 2100 W. Fanz Road (Lot F-l-D), but also additional property comprising “the land contiguous thereto that has customarily been used and associated with the residence.” According to Ana, the land outlined in yellow on an aerial photograph of the Fanz property, as shown on Exhibits AF-3 and AF-29, is the land the decedent intended in his bequest. She notes that the area outlined in yellow on the aerial photograph was fenced, and separated the residence from the area of the family property used for the mobile home park. This area also included a garage/warehouse and another house referred to at trial as the “yellow house,” which was originally the home of the decedent and his first wife. Testimony at trial by Ana, Mildred, and the decedent’s niece, Sylvia Guillot, established that this land has been used by the Fanz family as a play area for children and for parties, holidays, and other family gatherings for many years. Two electricians testified that electrical outlets were installed on this contiguous property for the use of lighted Christmas decorations. Ana argues that the fact that the contiguous property included a garage/warehouse used for the benefit of the mobile home park does not mean that the area was not also customarily used and associated with the residence.

Chuck and Tammy argue that the trial court was not manifestly erroneous in determining that the specific bequest of the domiciliary residence to Ana is limited to Lot F-l-D and the residence thereon. They further argue that this bequest did not include the contiguous area where the garage/warehouse and yellow ■ house are located, noting that those two buildings have different municipal addresses than the residence located at 2100 W. Fanz Road. They also argue that the section of the IflWill including a bequest to Ana of “[A]ll corporeal movables” should be interpreted as not including the garage/warehouse in the bequest to her of the domiciliary residence because the garage/warehouse housed items used for the operation of the mobile home park.

The intent of the testator controls the interpretation of his testament. “If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit.” La. C.C. art. 1611A “If the identification of an object given is unclear or erroneous, the disposition is nonetheless effective if it can be ascertained what object the testator intended to give. If it cannot be ascertained whether a greater or lesser quantity was intended, it must be decided for the lesser.” La. C.C. art. 1613 In applying these rules, the court may be aided by any competent evidence. La. C.C. art 1611A

The record on appeal establishes that the decedent subdivided his St. Bernard Parish real property in 1998, hired a surveyor to prepare a survey setting forth the metes and bounds of the subdivided lots, and the Parish of St. Bernard approved the resubdivision that same year. ■The survey, but not the legal descriptions of the lots, appears in the appellate record. It'is a well-settled rule of jurisprudence that a survey prevails over a legal description. The decedent’s last will and testament states in pertinent part 'that he bequeathed to Ana the “residence and land currently located at 2100 W. Fanz Road, St. Bernard, LA 70085.” Only Lot F-l-D from the 1998 subdivision bears that address. This is also the address for the homestead exemption for the decedent’s domiciliary residence.

ImThe trial court was called upon to determine what “the land contiguous thereto that has customarily been used and associated with the residence” was intended to mean. The trial court obviously believed by virtue of the rendered judgment that this bequest included only Lot F-l-D. The trial court apparently concluded and reasoned that since the decedent ■had caused his property to be subdivided roughly 4½ years before he executed his last will and testament and chose to refer in his testamentary bequest to an address in lieu of the lot number, it meant only Lot F-l-D. The trial court obviously concluded that the encroachment of a structure constructed after the testator executed his testament over the line of Lot F-l-D onto an adjoining lot was of no moment and created only a servitude that would remain in effect for only so long as the encroaching structure on the adjoining lot remained in existence.

Paul Waldman, Esq., the lawyer who drafted the testament and notarized it, was listed as a witness but not called at trial. Thus, we have no direct evidence to establish the testator’s intent on this issue. It is clear that the testator intended to bequeath to Ana his domiciliary residence. After considering the circumstantial evidence and testimony at trial, the trial court found that this domiciliary residence was in fact Lot F-l-D. As this determination is supported by the record, we find no manifest error. It is reasonable to conclude that had the decedent intended to bequeath to Ana properties other than the one with the municipal address of 2100 W. Fanz Road, he would have stated so in this bequest. This is in keeping with Civil Code art. 1613 (“If it cannot be ascertained whether a greater or lesser quantity was intended, it must be decided for the lesser.”)

In the first assignment of error by Chuck and Tammy, they argue that the trial court erred in finding that the proper voting procedure for the succession ^representatives pursuant to the terms of the will is that Ana has a one-half (1/2) vote and Chuck, Tammy and Tanya each have a one-sixth (1/6) vote. We agree that this was error.

Article 5.1(A) of the will contains the following language regarding the appointment of succession representatives and their voting rights:

Appointment of succession representative. I name and appoint as my succession representative Charles B. Fanz, III, Tammy Fanz, and Tanya Fanz who together shall have one-half (1/2) of the votes, and Ana B. Fanz who shall have one-half (1/2) of the votes. If Ana B. Fanz is unable or unwilling to serve as a succession representative, Mildred F. Fanz if she has attained the age of majority, or upon attaining the age of majority, shall serve as a succession representative, in which case all succession representatives shall have an equal vote. My succession representative shall serve as an independent administrator in accordance with Louisiana Code of Civil Procedure article 3396, as amended.

In arguing that the trial court erred in ruling that this voting rights provision gives Chuck, Tammy and Tanya each a 1/6 vote as succession representatives, Chuck and Tammy cite by comparison the trust voting procedure in the will, which specifically gives Chuck, Tammy and Tanya each a 1/6 vote when the assets of the succession are in the trust authorized in the will. The voting procedure for initial trustees is set forth in Article 3.1(D) as follows:

Initial trustees. The trustees of the Trust shall be Charles B. Fanz, III, Tammy Fanz, and Tanya Fanz who shall have one-sixth (1/6) of the votes each except as otherwise specified below, and Ana B. Fanz who shall have one-half (1/2) of the votes, except as otherwise specified below.

The language in the clause regarding voting rights for succession representatives differs from the language in the clause regarding voting rights of initial trustees of the Charles B. Fanz Trust, to which the decedent bequeathed the majority of his estate. The voting rights provisions of the two clauses are not | ^“essentially the same,” as argued by Ana and in the brief filed on behalf of the “Estate of Charles B. Fanz, Jr.”

As stated earlier, “[Cjourts must seek to give meaning to all testamentary language in a will and avoid any interpretation that would render the language meaningless.” In re Succession of Smith, 47,023, p. 3 (La.App. 2 Cir. 6/13/12), 93 So.3d 788, 790. The decedent set forth different voting procedures for when the estate is in the succession phase and when it is in the trust phase. During the succession phase, and before the trust can be funded, Chuck, Tammy and Tanya are required to act together to exercise their 1/2 vote. To interpret this provision otherwise would render the word “together” in the “Appointment of succession representative” clause meaningless. The fact that requiring Chuck, Tammy and Tanya to exercise their 1/2 vote together may result in a stalemate does not render this voting requirement invalid.

We conclude that the language in the will is clear and unambiguous that the voting rules for the succession phase are different from those to be implemented for the trust phase of the decedent’s estate. If Chuck, Tammy and Tanya are unable to act together regarding their 1/2 vote on matters related to the succession, or if they act together and their 1/2 vote is adverse to Ana’s 1/2 vote while she is able and willing to serve as a succession representative, then the representatives will have to present the issue to the trial court for it to decide what action to take to |1sensure that the succession is properly concluded. When the trust is ultimately funded, Chuck, Tammy and Tanya will each have a separate 1/6 vote for matters pertaining to the trust.

Based on the wording of Article 5.1(A) of the will, we conclude that the trial court erred in ruling that Chuck, Tammy and Tanya each have a separate 1/6 vote as succession representatives. We reverse that portion of the trial court judgment, and render judgment holding that Chuck, Tammy and Tanya “together” shall have one-half (1/2) of the votes as succession representatives.

Chuck and Tammy next argue that the trial court erred in denying their claim that Ana owed reimbursement to the succession for $25,000.00 taken from the business account and placed in Mildred’s account, and for $40,000.00 that Ana took from the decedent’s account as reimbursement for funds that she said had been expended by her for the business. In reasons for judgment, the trial court stated that he was denying these claims for reimbursement to the succession because these financial actions were taken by Ana prior to the death of the decedent and while acting with a procuration from him. The court further stated that while these actions could possibly form the basis for a claim via other proceedings, the claims are not part of the succession.

Chuck and Tammy argue that the funds withdrawn by Ana are not her funds, and she ■ had no right to withdraw these amounts without the decedent’s express authority. Ana testified at trial that the $25,000.00 amount represented funds that the decedent, before his death, told Ana to take from his account to provide for 1 uMildred’s education. According to Ana, she took the funds from the decedent’s personal account, for which she had signature authority, and mistakenly deposited the funds into the business account; she then took the funds from the business account and placed them into Mildred’s account, which was the decedent’s intent. She testified that the funds never belonged to the business. She said she straightened the matter out and redirected the funds into the account for Mildred as she was verbally authorized to do by the decedent.

As for the $40,000.00 taken by Ana from the decedent’s account days before his death, she claimed that this amount was for reimbursement of funds expended by her for the business. Chuck and Tammy argue that these funds were the separate property of the decedent, and there was no evidence that he authorized Ana to make this withdrawal. They note that the decedent had a power of attorney, with Ana, Chuck, Tammy and Tanya designated as co-mandataries. Ana argues that she was not acting pursuant to the power of attorney when she wrote the $40,000.00 check. She testified that while the decedent was still alive, he authorized her to take this amount as reimbursement for monies owed by him to her.

“In contests over testaments, the factual findings of the trial court are afforded great weight and cannot be disturbed on appeal in the absence of manifest error,” In re Succession of Costello, 2000-2672, p. 4 (La.App. 4 Cir. 2/13/02), 811 So.2d 63, 66, citing In re Succession of Fellman, 1996-1738 (La.App. 4 Cir. 8/6/97), 698 So.2d 477. Resolution of conflicts in testimony and credibility determinations in succession proceedings are within the province of the trial court, and should not be overturned on appeal unless manifestly erroneous or clearly wrong. In re Succession of Boisseau, 33,861, p. 6 (La.App. 2 Cir. 9/27/00), 768 So.2d 743, 748. The trial court obviously found Ana’s testimony to be credible and accepted her explanation as to why she had authority to write the $25,000.00 and $40,000.00 checks at issue. We cannot say the trial court erred in doing so. This assignment of error is without merit.

Chuck and Tammy next argue that the trial court erred in recognizing Ana’s claim for reimbursement from the succession of $88,000.00 (both parties agree that this disputed claim actually totaled $88,115.25). In the judgment, the trial court recognized that a debt of $88,000.00 is owed to Ana, and that this debt was owed by the family business prior to the death of the decedent and by the Succession after his death. The reasons for judgment do not include any further explanation of this award, but the record shows that this amount represents payments made to Ana by BP p.l.c. in 2010 for the rental of her separately-owned trailers. Ana made a claim for reimbursement of this amount in her motion to traverse the detailed descriptive list of assets and liabilities.

Before we address the merits of this argument, we note that Chuck and Tammy filed, in this Court, an exception of prescription as to Ana’s claim for reimbursement of BP rental income. Their argument is that these funds were loans that Ana made to the decedent, and therefore, this falls under the category of an open account with a three-year prescriptive period from the date of the loan under La. C.C. art. 3494. Because the rental income was collected in 2010, Chuck and Tammy argue that Ana’s claim for reimbursement had prescribed before she asserted this claim in 2014. Ana argues that her reimbursement claim for the BP rental income is actually an action for partition, which is imprescriptible under La. C.C. art. 817.

hi/The exception of prescription was filed for the first time in this Court, as allowed under La. C.C.P. art. 2163, which states:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the ease be remanded to the trial court for trial of the exception.

Ana filed a motion to remand the exception of prescription to the trial court for a hearing, or in the alternative, to deny the exception. Because the issue of Ana’s request for reimbursement for rental income received from BP was fully litigated at trial, we find no need to remand this matter to the trial court for a hearing on the exception of prescription.

The record shows that the rental income at issue was deposited into the family business account and commingled with funds belonging to the business. Ana testified that rents totaling $88,115.25 that were received from BP and deposited to the business account were her separate property because they represented income earned on trailers that were her separate property. She said it was always the decedent’s intention to reimburse these funds to her. While there was no written agreement that characterized these funds as her separate property, counsel for Chuck and Tammy stipulated at trial that trailers owned separately by Ana were included in the rental agreement with BP. More importantly for purposes of the exception of prescription, Chuck and Tammy did not establish that the claim by Ana was a claim on a suit for an open account or that she was seeking to recover on a loan made by her to the decedent or to the family business. Accordingly, we overrule the exception of prescription.

|17As to the merits of this claim, Ana asserts that she is owed $88,115.25 as reimbursement for the trailer rentals to BP because included in these rentals were several mobile homes owned separately by her. She testified at trial that the decedent signed a contract with BP in 2010 for the trailer rentals, which also included her separately-owned trailers, but that the decedent kept all of this rental income in the business account. Ana testified that the decedent promised her that he would reimburse her for these amounts later, but had not done so at the time of his death.

Chuck and Tammy argue on. appeal that the rental income from BP was the decedent’s separate property, and Ana is not entitled to reimbursement for the amounts claimed because the decedent and Ana had a prenuptial agreement agreeing to be separate in property. However, as noted above, counsel for Chuck and Tammy stipulated at trial that trailers owned separately by Ana were included in the rental agreement with BP.

Ana’s claim for reimbursement .for the BP trailer rentals in 2010 was not included in the detailed descriptive list filed in 2013. Her explanation for this omission was that she forgot about these funds that were owed to her until Chuck and Tammy raised claims against her regarding her alleged mishandling of the business. She said she realized at that time that she had forgotten to assert her claim for reimbursement to which she was entitled because funds belonging to her for BP rents had been put into the business account. There is no dispute that trailers owned separately by Ana were included in the rental agreement with BP. The trial court heard testimony from Ana that the rental income paid by BP for her separately-owned trailers amounted to $88,115.25. The court obviously believed [ 1sAna’s testimony on this issue, and found that the money from BP was her separate property.

An estate consists of the property, rights, and obligations that a person leaves after his death. La. C.C. art. 872 The legal import of the trial court’s factual finding is that this BP money was not a part of the decedent’s estate at the time of his death but was the separate property of his spouse. Accordingly, we affirm the trial court’s ruling that the BP rental income claimed by Ana is her separate property, but we amend the judgment to reflect that the correct amount to be awarded for this reimbursement claim is $88,115.25.

In the next assignment of error, Chuck and Tammy argue that the trial court erred in denying their claim for reimbursement from the succession for attorney’s fees and expert witness costs incurred by them while acting in their capacity as succession representatives. Specifically, in denying this claim, the trial court stated that each heir is to bear the costs of his or her own attorney, and that the only attorney’s fees to be paid from the succession assets are those due to Mr. Paul Tabary for his representation of all heirs in connection with services rendered for the benefit of the succession.

Chuck and Tammy argue that they retained attorneys and an accountant to advise them concerning their duties as co-executors of the succession, and to defend the succession against what they describe as adverse claims brought by Ana. Their position is that the actions they have taken to recover amounts from Ana and to defeat her claims for reimbursement, if successful, would benefit the succession as a whole. We agree, and find that they are entitled to reimbursement from the succession for attorney’s fees and costs incurred by them in their roles as succession representatives.

119La. C.C.P. art. 3191A states:

A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.

“It has long been recognized in Louisiana law that an executor of a succession may obtain an attorney to aid in the carrying out of the executor’s duties and to defend the succession against adverse claims made against it.” In re Succession of Brazan, 2007-566, p. 8 (La.App. 5 Cir. 12/27/07), 975 So.2d 53, 57, citing Succession of Jenkins, 481 So.2d 607 (La. 1986). This Court has held that fees for legal representation may be charged to the succession where such representation is for the benefit of the estate rather than for the personal benefit of the executor. Succession of Haydel, 606 So.2d 42, 45 (La. App. 4th Cir. 1992).

Because the record shows that the matters for which Chuck and Tammy sought legal representation and the advice of an accountant were for the benefit of the estate and were not frivolous, we reverse the portion of the trial court judgment denying Chuck and Tammy’s claim for reimbursement by the succession for attorney’s fees and expert witness costs. We remand this matter to the trial court for a determination of the amounts to be awarded to them for these fees and costs.

The remaining assignments of error involve Chuck and Tammy’s claim that Ana should be removed as succession representative and operator of the family business based on their allegations that she breached her fiduciary duties while acting in these capacities. They argue that Ana failed to provide a proper accounting to the succession and owes the succession reimbursement for business expenditures, personal expenses that she paid from business funds and rents she | ^received on her separately-owned trailers while trailers owned by the business remained vacant. This latter claim is based on the argument by Chuck and Tammy that Ana violated her duty to not place her personal interest ahead of the succession’s interest. Similarly, they argue that Ana usurped a business opportunity that belonged to the business when she purchased for her personal benefit several trailers that became available, rather than offering the succession the opportunity to purchase these trailers for the family business.

While the .trial court only specified that he was denying Chuck and Tammy’s request to remove Ana as operator of the family business, her roles as succession representative and business operator are intertwined, and we find the trial court also implicitly denied the request to remove Ana as a succession representative. He also ordered Ana to cease using business property to rent out her separately-owned trailers, and ordered that business employees and equipment cannot be used for Ana for her personal and/or separate endeavors. The court further ordered that Ana is to start paying all of her household-related expenses out of her own funds, unless authorized by the court to pay certain expenses through the business account. The court ordered that Ana is entitled to claim reimbursement for any portion of such expenses directly attributable to the family business, and to use acceptable accounting practices in making such claims. The court found insufficient evidence to support Chuck and Tammy’s claims that Ana committed theft of estate and/or business assets.

In reasons for judgment, the trial court found that Ana did breach some fiduciary duties owed to the estate in her operation of the family business after the decedent’s death. However, the court noted Ana’s explanation that she was not aware of the scope of her fiduciary duties, and was simply attempting the run the |2ibusiness in the same way as she and the decedent had in the past. The court stated that while these business, practices may have worked in the past when the decedent was alive and in agreement with Ana as to how to run the business, some business practices employed prior to the decedent’s death are not acceptable now that the business is being operated through the succession and the current relationship among the heirs is so contentious. The court stated that he was ordering certain assets returned to the estate after recognizing errors' made by Ama.

The record shows that Ana and the decedent operated the trailer park together for many years prior to the decedent’s death. During those years, Ana was never paid a salary. Her arrangement with the decedent was that the business paid many of her personal expenses in lieu of other compensation. When the decedent died, Ana continued to operate the business under the same practices even though the decedent’s other heirs inherited a portion of the business upon his death. Ana should not have done so without the consent of the other heirs, who now co-own the business with her.

Chuck and Tammy correctly point out that the only amount the trial court ordered Ana to reimburse to the succession was a $5,000.00 bonus payment made to an employee. Nonetheless, we find the trial court did not err in denying Chuck and Tammy’s request to remove Ana as the operator of the business or as a succession representative.

122A review of the record supports the trial court’s finding that Ana breached some fiduciary duties owed to the estate in her operation of the family business after the decedent’s death, including paying her personal expenses from the business account and essentially competing with the business by renting her separately-owned trailers instead of trailers owned by the business. Ana’s argument that she did not discuss these matters with Chuck and Tammy because of their strained relationship is not a valid one.

However, we find the evidence shows that Ana’s breaches were the result of her incorrect assumption that she could use the same business practices that had been in place before the decedent’s death. While Ana should not have continued to pay her personal expenses from business funds after the decedent’s death, we note that she was not receiving a salary at that time for her job as operator of the family business. The record shows that Ana now receives a salary. Additionally, as noted by the trial court, the testimony presented at trial established that Ana has done a good job running the business, and that it is in a much better financial state than it was at the time of the decedent’s death.

The record shows that Ana has provided a monthly accounting for expenses paid from business funds since being ordered to do so by the trial court judgment dated March 13, 2012. While Chuck and Tammy’s expert accountant found that these accountings were inadequate, the trial court apparently found otherwise. Furthermore, the trial court heard detailed testimony of expenses paid from business funds from the accountant who has handled the family business for many years.

“It is well settled that even when actual mismanagement is shown the trial court is not required to remove the executor, but retains the discretion to make ^whatever decision it feels is appropriate under the facts of the particular case.” In re Succession of McIntire, 2000-1275, p. 13 (La.App. 4 Cir. 4/25/01), 785 So.2d 1032, 1039, citing Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965); Succession of Krushevski, 528 So.2d 743 (La.App. 4th Cir.1988). By ruling as he did in denying the request to remove Ana as succession representative and operator of the business, the trial court apparently found that Ana’s breaches of her fiduciary duties did not rise to the level of requiring her removal, and that Chuck and Tammy did not prove that the succession suffered damages as a result of Ana’s breaches. We find no abuse of the trial court’s discretion in not removing Ana as succession representative and/or as operator of the family business. We also find no abuse of the court’s discretion in not assessing Ana with damages for the breaches of her fiduciary duty, or in not ordering Ana to reimburse the succession for additional amounts not listed in the judgment.

For the reasons stated above, the exception of prescription filed by Chuck and Tammy as to Ana’s claim for reimbursement of BP rental income is overruled. We reverse the portion of the trial court | ^judgment ruling that Chuck, Tammy and Tanya shall each have a separate 1/6 vote as succession representatives, and render judgment holding that Chuck, Tammy and Tanya “together” shall have one-half (1/2) of the votes as succession representatives. We affirm the trial court’s ruling that the BP rental income claimed by Ana is her separate property, but we amend the judgment to reflect that the correct amount to be awarded for this reimbursement claim is $88,115.25. We reverse the portion of the trial court judgment denying Chuck and Tammy’s claim for reimbursement of attorney’s fees and expert witness costs, and remand this matter to the trial court for a determination of the amounts to be awarded to them for these fees and costs. In all other respects, the judgment of the trial court is affirmed.

APPEAL CONVERTED TO WRIT; AFFIRMED IN PART; AMENDED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART; EXCEPTION OF PRESCRIPTION OVERRULED

      . For the remainder of this opinion, we will refer to the late Charles B. Fanz, Jr., as the decedent. We will refer to the decedent’s widow and children by their first names.

      . The trial court stated that this issue was previously determined by his predecessor. At a hearing on March 2, 2012, the trial court’s predecessor had made statements indicating that he interpreted the voting rights provision regarding succession representative as giving Chuck, Tammy and Tanya each a 1/6 vote. However, in the judgment rendered on March 13, 2012 following the March 2, 2012 hearing, the trial court did not specifically include a determination as to the will’s voting rights provision regarding succession representatives. The October 1, 2015 judgment is the first judgment in the record that specifically addresses this issue.

      . The detailed descriptive list in the record references the properties by addresses, not lot numbers.

      . See Griffin v. Daigle, 1999-1942, p. 13 (La.App. 1 Cir. 9/22/00), 769 So.2d 720, 728.

      . This brief, filed on behalf of the Estate of Charles B. Fanz, Jr., supports the positions advocated by Ana and Tanya.

      . There is a suspensive condition in the will that allows for Mildred Fanz to become a succession representative upon her attaining the age of majority in the event Ana is unwilling to serve. In this instance, all four children would share an equal vote.

      . In the judgment, the trial court ordered Ana to reimburse the succession for a $5,000.00 payment she gave to an employee as a bonus. The trial court found that this amount may or may not have been authorized by the decedent before his death, and Ana should not have made the decision to honor the decedent’s alleged wishes without obtaining the consent of the other co-executors.

      . It is apparent to this Court that the trial court seeks to correct the errors made in the past by implementing new rules going forward, including ordering Ana to refrain from using business funds or assets for her personal use and to use accepted accounting practices in her claims for reimbursement for expenses she incurs that are attributable to the business.