author: McDonald, j. WELCH, J., GAIDRY, J., KUHN,

text:
    Terry LEE v. Jerry BRIGGS and Safeway Insurance Company of Louisiana.
    No. 2008 CA 2120.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2009.

      Michael C. Davis, Baton Rouge, Louisiana, for Plaintiff/Appellee, Terry Lee.
    Matthew D. Fontenot, Lafayette, Louisiana, for Defendants/Appellants, Safeway Insurance Company of Louisiana and Jerry Briggs.
    Before: KUHN, GUIDRY, GAIDRY, MCDONALD, and WELCH, JJ.
   McDonald, j.

12In this case, the defendants appeal a trial court judgment finding the defendant driver solely at fault in causing an automobile accident and the amount of general damages awarded to the plaintiff for his personal injuries. We affirm the findings of liability and amend the damage award.

FACTS AND PROCEDURAL HISTORY

On January 27, 2006, plaintiff, Terry Lee, was backing his truck and trailer into his private drive off of LA 1026 in Livingston Parish when he was struck by a vehicle traveling northbound on LA 1026 driven by defendant, Jerry Briggs. Lee subsequently filed suit against Briggs and his insurer, Safeway Insurance Company of Louisiana, for his injuries and property damage resulting from the accident. After a bench trial, the court found Briggs to be 100 percent at fault in causing the accident and rendered judgment in favor of Lee and against Briggs and Safeway in the amounts of $10,000.00 for general damages, $4,522.00 for medical bills, and $4,018.79 for property damage. This appeal followed, in which defendants assert that the trial court’s allocation of fault and general damages award were erroneous.

DISCUSSION

In their first assignment of error, defendants argue that the trial court should have assigned the majority of the fault to the plaintiff because he breached his duty to yield to oncoming traffic. In support of their assertion that plaintiff breached that duty, defendants cite a statute and cases dealing with the duties of care owed by and to a vehicle entering a highway from a private driveway or private roads. However, that was not the situation in this case. The plaintiff was not entering the highway; he was leaving the highway and entering a private driveway. Regardless of the duty of care |sowed by the plaintiff to other vehicles approaching him on the highway, the trial court found that the cause of this accident was Briggs’s speed and failure to look out for other vehicles.

After considering all the evidence presented at trial, the trial court found Lee to be free from fault in causing the accident. The court noted that Briggs “had time to see [Lee’s] vehicle,” but was “operating his vehicle in a manner which was too fast for the conditions.” The court concluded that had Briggs “been driving slower or paying more attention, he could have avoided the accident.”

As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Therefore, we review allocations of fault employing the manifest error standard. Laborde v. St. James Place Apartments, 05-0007, p. 5 (La.App. 1 Cir. 2/15/06), 928 So.2d 643, 647. Only after making a determination that the factfinder’s apportionment of fault is clearly wrong can we disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Id.

The court in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), listed a number of factors for us to consider in determining the portion of fault attributable to the parties, including the level of the risk, whether the behavior was inadvertent or done with awareness of the danger, the significance of what was sought, the capacities of the parties, and any other extenuating circumstances. Reviewing these factors as they apply to this case, we cannot say the court was manifestly erroneous in apportioning fault as it did, although we might have assigned some degree of fault to the plaintiff had we been sitting as trier of fact.

| defendants next argue that the trial court erred in awarding plaintiff general damages for four months of pain and suffering when the evidence only supported an award for three months. The defendants point out that after approximately two months of treatment, plaintiff stopped treatment for several weeks and began again for a brief period of time prior to discontinuing treatment. When questioned about this gap in treatment at trial, Lee testified that he stopped treatment with his chiropractor for a few weeks, although he was still in some pain, because he was attending real estate school all day and looking for a job, but that he went back for more treatment after experiencing a “flare up” in pain. The trial court, after hearing this testimony about the gap in treatment, found that Lee experienced four months of pain and suffering caused by the accident.

This court is not the finder of fact, but must review the cold record; we do not have the benefit of hearing the witnesses. Although this court might weigh the evidence differently if it were the trier of fact, we are mindful of our role as a reviewing court and may not substitute our view of the evidence for that of the trial court when that court’s view is reasonable and supported by evidence. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

However, the standard of review that applies to an appellate court’s examination of a factfinder’s award of general damages is whether the fact finder abused its discretion. Graffia v. Louisiana Farm, Bureau Cas. Ins. Co., 08-1480, p. 5 (La.App. 1 Cir. 2/13/09), 6 So.3d 270, 273-74. We recognize the vast discretion that the trial court possesses on the issue of quantum. However, it is still reviewable under the abuse of discretion standard and we take issue with the trial court’s attempted use of a mathematical formula to arrive at a general damage award. The trial court awarded $2,500 per month in general damages for four months for a total of |B$10,000. The trial court has the responsibility to tailor the damage award in each case to fit the specific facts of the case, not use a “cookie cutter” approach in determining the amount of damages. To do so is an abuse of discretion or a lack of the exercise of discretion. Additionally we believe the $10,000 general damage award to Mr. Lee is an abuse of discretion. The record establishes that Mr. Lee experienced neck and back pain after the accident and received regular chiropractic care from January 31st through April 7th of 2006, a period of approximately two months. Mr. Lee testified that his pain was “pretty much over” in April, but he returned for four treatments in May when his pain flared up.

Although the trial court expressly awarded $2,500 per month for four months of pain and suffering, Mr. Lee’s testimony does not establish that he was actually in pain for four full months. Further, based on the medical evidence, Mr. Lee saw no other medical doctor other than the chiropractor. He did not testify that he took any over-the-counter pain medication and there is no evidence that he was ever prescribed any pain medication. The chiropractic records establish that the treatments were of a conservative nature, consisting of ultrasounds, manipulations, traction, and the application of cold packs. Beginning with the initial treatment on January 31, 2006, Mr. Lee received three treatments per week for the month of February through the treatment on Friday, March 17. For the remainder of March and through the first week of April, when he ceased treatment for a month, he was only receiving two treatments a week. When he returned for additional treatment in May, he received one treatment per week. Thus, it is difficult to maintain that the amount of pain and suffering he was experiencing in the first six weeks (3 treatments a week) was the same as for the next four weeks |fi(2 treatments a week), or for the last month (1 treatment a week). Based on this medical record, we amend the damage award to $6,225.

DECREE

The judgment of the trial court is affirmed on the issue of liability. The general damage award of $10,000 is reduced to $6,225. The costs of this appeal are to be split between the parties with the defendants, Jerry Briggs and Safeway Insurance Company of Louisiana, cast for two-thirds and the plaintiff, Terry Lee cast for one-third.

AFFIRMED IN PART, AMENDED IN PART. RENDERED.

WELCH, J., dissents in part and agrees in part and assigns reasons.

GAIDRY, J., agrees in part, dissents in parts with reasons.

GUIDRY, J., dissents in part for the reasons assigned by KUHN, J.

KUHN, J., dissents in part and assigns reasons.

WELCH, J.,

agreeing in part and dissenting in part.

|tI agree with the majority on the issue of liability. However, I dissent regarding the damages portion of the opinion. Damages are awarded by the trier of fact based upon the law and evidence. Most, if not all, district court judges base their awards on the length of pain and suffering and have some idea of what they believe is an adequate award for a month of pain and suffering. While this is subject to an abuse of discretion review by the appellate court, I believe an award of $2,500 a month for pain and suffering, while on the high end of the spectrum, is not an abuse of discretion. The only mistake according to the majority is that the trial judge set forth her formula; had she not done so, this award based on the testimony and evidence in the record would be affirmed. Thus, the judgment on damages should be affirmed.

GAIDRY, J.,

agrees in part and dissents in part with reasons.

1, While I agree with the portion of the majority opinion affirming the trial court judgment on liability, I disagree that the damage award should be amended because I do not believe that there was an abuse of discretion. While I agree that the trial court should not use a mathematical formula to arrive at a general damages award, the plaintiffs testimony regarding the pain and suffering he experienced simply does not support a finding that a general damages award of $10,000.00 is an abuse of discretion. Although there was a lapse in treatment when the plaintiffs work and school schedule did not permit him to report for treatment, he did not testify that he was pain-free during this lapse, and he resumed treatments once his pain flared up. Based on the plaintiffs testimony, I do not believe the trial court erred in finding that he experienced four months of pain or in awarding $10,000.00 in general damages for his pain and suffering. We must remain mindful that we are not the trial court and should not act as a one by substituting our judgment for that of the trial court.

KUHN,

dissenting in part.

|,1 dissent from the majority’s position insofar as it affirms the trial court’s judgment finding the defendant driver, Mr. Jerry Briggs, solely at fault in causing the automobile accident. A review of the record demonstrates there is no support for assessing Mr. Briggs with 100% fault. Mr. Briggs had a duty to maintain a sharp lookout and to see that which in the exercise of ordinary care should have been seen. Theriot v. Bergeron, 05-1225, p. 6 (La.App. 1st Cir.6/21/06), 939 So.2d 379, 383. In assessing all fault to Mr. Briggs, however, it is apparent the trial court failed to consider La. R.S. 32:281 A, which provides, “The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic.” Clearly, the trial court ignored that plaintiff, Mr. Terry Lee, violated this statutory duty by blocking at least a portion of the northbound travel lane of Juban Road with no consideration for approaching traffic, while he backed his trailer into his private driveway. Because there were at least two vehicles in the southbound lane of travel, which had come to a stop while Mr. Lee backed his trailer into the driveway, the record demonstrates that Mr. Briggs was not able to use the southbound lane to avoid colliding with Mr. Lee, without placing his life and the 12Iives of other people in danger. The trial court’s apportionment of 100% fault to Mr. Briggs and no fault to Mr. Lee was clearly wrong and contrary to the evidence.

Further, it is apparent that the trial court did not consider all of the Watson factors in assessing fault and, in effect, the trial court applied the doctrine of last clear chance, without considering the risks posed by Mr. Lee’s conduct. In Watson v. State Farm, Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), the court explained the appropriate considerations for a comparative fault analysis, as follows:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Thus, the principles considered in the application of the last clear chance doctrine are subsumed by the comparative fault analysis. The application of the last clear chance doctrine is not, therefore, a separate consideration for the trier of fact. Gibson v. State through Dept. of Transp. and Development, 95-1418 (La.App. 1st Cir.4/4/96), 674 So.2d 996,1004.

Applying the Watson factors to the instant case, Mr. Lee’s conduct of blocking the northbound travel portion of the roadway while he backed a trailer into his driveway presented a great risk of injury to the other motorists in the area. He presented no testimony to justify his actions or to explain the necessity of why he engaged in such conduct. Otherwise, he took no action, such as utilizing a flagman, flares, or cones that could have possibly alerted other drivers of the dangers of his actions. Admittedly, Mr. Lee’s conduct was inadvertent without consideration for the dangers his conduct presented to oncoming traffic. However, |sthe risk posed was great, and there was no apparent need for his conduct or any other extenuating circumstances to justify his actions. If he had given thought to the dangers posed by his conduct, he surely could have prevented the accident.

On the other hand, the trial court found that Mr. Briggs “was operating his vehicle in a manner which was too fast for the conditions- [Mr. Briggs] had time to see [Mr. Lee’s] vehicle partially blocking the road. Had [Mr. Briggs] been driving slower or paying more attention, he could have avoided the accident. He had the duty to look out for [Mr. Lee’s] vehicle.” Mr. Briggs estimated his speed at 45 miles per hour, and Ms. Shirley Lee testified that Mr. Briggs was “coming pretty fast.” However, the record does not establish the posted speed limit for the area in which the accident happened. The testimony also supported that it was “dry.” Admittedly, there is conflicting testimony regarding whether the accident occurred during the day, at dusk, or in the evening. Assuming the trial court determined that the accident occurred during the day when lighting conditions were optimal for Mr. Briggs to see Mr. Lee backing his trailer into the driveway, there is no evidence in the record to support a factual finding that Mr. Briggs was travelling in excess of the posted speed limit. This fact cannot be assumed based on the testimony presented.

Mr. Briggs testified that he first noticed Mr. Lee’s vehicle when he rounded the curve near Mr. Lee’s house. He estimated he was 200 to 300 feet away from Mr. Lee’s vehicle. Mr. Lee testified that he saw Mr. Briggs approaching from 300 to 400 feet away, but he was unable to completely clear the lane of travel before Mr. Briggs approached. Mr. Briggs testified that he applied his brakes when he noticed that his travel lane was obstructed, and he swerved his vehicle to the left, but despite this action, he still hit the left, front side of Mr. Lee’s truck. The trial court found that Mr. Briggs was inattentive. Regardless of the posted speed limit, he should have been travelling at a speed at which he could respond to other Rmotorists or obstructions in his travel lane. Because the testimony supports a finding that there were no obstructions that would have prevented Mr. Briggs seeing Mr. Lee’s truck in the roadway from at least 200 to 300 feet away, the trial court correctly concluded that he breached his duty to maintain a sharp lookout and to see that which in the exercise of ordinary care should be seen. Mr. Briggs’ conduct was inadvertent and presented a risk of danger to others on the roadway. Mr. Briggs, however, had to react quickly to the situation presented to him with no advance notice of the dangers presented by Mr. Lee’s conduct.

As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Based on the above considerations, I would conclude that the trier of fact’s allocation of fault was clearly wrong and manifestly erroneous. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest. Clement v. Frey, 95-1119 (La. 1/16/96); 666 So.2d 607, 609, 610. Based on these considerations, I would raise Mr. Lee’s fault to 50% and lower Mr. Briggs’ fault to 50%.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Evelyn H. DEWAILLY v. LEXINGTON INSURANCE COMPANY and Nancy K. Taylor.
    No. 2009-CA-0020.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 16, 2009.

      Keith Couture, Mandeville, LA, for PlaintifffAppellant.
    Paul A. Eckert, Bastían & Associates, New Orleans, LA, for Defendant/Appellee, Lexington Insurance Company.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| iThis appeal arises from the granting of an exception of prescription in favor of the defendant Lexington Insurance Company (Lexington).

On June 16, 2003, Evelyn Dewailly filed a petition for damages in Civil District Court for the Parish of Orleans. The petition alleged that on or about June 15, 2002, Mrs. Dewailly sustained injuries when she fell while visiting her daughter’s home.

In response to the petition for damages, Lexington filed an exception of prescription. The exception asserted that Mrs. Dewailly had filed presumably the identical lawsuit in St. Tammany Parish alleging the date of her fall was May 1, 2002. Lexington attached the St. Tammany Parish petition for damages as an exhibit to its exception. Numerous other documents including medical records were attached to the exception in order to establish that the date on the Orleans Parish petition for damages was incorrect and that Mrs. De-wailly’s cause of action was indeed prescribed.

After hearing counsels’ argument on the exception of prescription, the trial court ordered an evidentiary hearing. On February 2, 2007, Mrs. Dewailly, eighty-|one2 years of age at the time, took the stand and testified that she had no independent knowledge of the exact date of the accident. Considering Mrs. Dewailly was called upon to recall an exact date from approximately five years earlier, it does not surprise this Court that her testimony was inconclusive. Unfortunately, her testimony was the only evidence offered by Lexington at the evidentiary hearing. The exhibits attached to the memorandum filed by Lexington were never offered and entered into evidence either at the initial hearing on the exception or at the eviden-tiary hearing.

It is well established that the exceptor carries the burden of proof at the trial on the exception of prescription. When addressing the contents of case records on review, the Supreme Court’s directive is clear; “[ejvidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” “Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” “In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true.”

The record establishes that the petition for damages was filed on June 16, 2003, by Mrs. Dewailly alleging that on or about June 15, 2002, she fell and sustained injuries in her daughter’s home. June 15, 2003 was a Sunday, which is a |3legal holiday. Clearly this case is not prescribed on the face of the petition and there is no evidence in the record to contradict the allegations within the petition. Therefore we must find that the trial court erroneously granted the exception of prescription.

On the record before us, we reverse the trial court’s granting of the exception of prescription and remand for further proceedings.

REVERSED AND REMANDED.

      . Adams v. O’Connell, 2006-0139, p. 4 (La.App. 4 Cir. 3/28/07), 955 So.2d 722, 725.

      . Denoux v. Vessel Management Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88.

      . Id.

      . Id., citing Cichirillo v. Avondale Industries, Inc. 2004-2894 (La. 11/29/05), 917 So.2d 424, citing Waguespack v. Judge, 04-0137 (La.App. 5th Cir.6/29/04), 877 So.2d 1090.

      . La. R.S. 1:55.


author: DREW, J.

text:
    Karl BROUSSARD, Plaintiff-Appellant v. ZURICH AMERICAN INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 44,695-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.
    Rehearing Denied Oct. 22, 2009.

      Anthony J. Bruscato, Monroe, for Appellant.
    Perkins & Associates, L.L.C. by Richard Russell Ray, Shreveport, for Appellees.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

| ,Karl Broussard appeals a judgment denying his claim for damages after his vehicle struck the side of a tractor-trailer. We affirm.

FACTS

Timothy Joyce has been a driver for Southeastern Truck Lines for over 13 years. At around noon on a rainy January 25, 2008, Joyce was driving a tractor hauling a 53-foot trailer to Monroe Rubber and Gasket Company located on Louisville Avenue in Monroe. In front of Monroe Rubber and Gasket, Louisville is a five-lane road with a turn lane in the middle. Joyce drove eastbound on Louisville Avenue, then made a right turn into Monroe Rubber and Gasket’s parking lot.

As Joyce made his turn, his trailer was struck by a pickup truck being driven in the right lane by Karl Broussard. The point of impact on the trailer was near the mud flap and the last passenger-side tire, which were located close to the back of the trailer. Damage was to the front corner of the driver’s side of Broussard’s pickup truck. Once Joyce heard the crash, which he did not see, he stopped his tractor-trailer, half of which was already in the parking lot.

Joyce testified that he had proceeded in the right lane down Louisville, turned his right turn signal on as he approached railroad tracks near his destination, moved his cab into the left lane after crossing the tracks, and began his right turn with his right turn signal remaining on. According to Joyce, this maneuver blocked both eastbound lanes, and the right lane was fully blocked and the left lane was partially blocked at the time of the crash. He insisted that the trailer did not follow the cab into the 12left lane and never left the right lane because the cab was always at an angle in the left lane.

Broussard’s recollection of what happened was different. When Broussard first noticed Joyce’s truck, it was in the right lane. According to Broussard, his vehicle was about four car lengths behind the tractor-trailer when Joyce moved the entire tractor-trailer into the left lane just before Joyce approached the railroad tracks that cross Louisville. Broussard assumed that Joyce began slowing down because he did not change his speed but yet got closer to the tractor-trailer. Broussard recalled that the front of his vehicle was parallel to the tractor-trailer’s back tire in the left lane when Joyce began his right turn. His immediate reaction was to slam on his brakes and go to his right. Broussard denied seeing a turn signal indicating that Joyce was going to make a right turn.

Although the trial court considered both Broussard and Joyce to be credible, it also recognized that their testimony was diametrically opposed. The court found that Broussard failed to establish by a preponderance of the evidence that Joyce had made an improper turn.

DISCUSSION

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 |s(La.l993). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). However, where documents or ob jective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may find manifest error even in a finding purportedly based upon a credibility determination. Cole, supra; Rosell, supra.

Although this matter does not involve the classic rear-end collision in the sense that the back of the trailer was not subjected to impact, what occurred was effectively a rear-end collision as the following motorist, Broussard, drove into the part of the turning trailer that was blocking his lane of travel.

La. R.S. 32:81 imposes a duty on a motorist to not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and condition of the highway. A following motorist in a rear-end collision is presumed to have breached this duty and is therefore presumed negligent. Mart v. Hill, 505 So.2d 1120 |4(La.1987); Boggs v. Voss, Shoes (La.App.2d Cir.6/16/99), 741 So.2d 139; Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App.2d Cir.4/30/08), 98B So.2d 966. To avoid liability, a following motorist who rear-ends another vehicle must prove he was not at fault by establishing that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances. Chambers v. Graybiel, 25,840 (La.App.2d Cir.6/22/94), 639 So.2d 361, writ denied, 94-1948 (La.10/28/94), 644 So.2d 377; Bennett, supra. The following motorist may also avoid liability by showing that the lead motorist negligently created a hazard which he could not reasonably avoid. Boggs, supra; Bennett, supra.

In making his wide right turn, Joyce was subject to the provisions of La. R.S. 32:79, which states, in part:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

Joyce’s maneuver was also subject to La. R.S. 32:104(A), which states:

No person shall ... turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety-

Joyce made the right turn in a reasonably safe manner. He activated his right turn signal, moved his tractor into the left lane, then began his right turn. Most importantly, his trailer never entirely left the right lane, so the right lane remained occupied even if part of the trailer was in the left lane.

hJoyce believed that the cars behind him were a safe distance away when he turned his cab left and then into the right lane to enter Monroe Rubber and Gasket. Joyce saw that Broussard was in the right lane before his cab entered the left lane, and he estimated that Broussard was 80-100 yards away. Joyce was unable to see the impact because when he was turning into the parking lot, his mirrors showed his trailer and not the traffic behind him.

Joyce claimed that Broussard told him after the accident that he had seen the turn signal but had tried to sneak past. Broussard claimed that Joyce told him that he saw Broussard in his rearview mirror but thought Broussard was farther back. Broussard denied telling Joyce that he tried to sneak around his truck or saying anything about turn signals. Joyce testified that he repeated what Broussard told him about seeing the turn signal to Corporal Carey Satre of the Monroe Police Department who investigated the accident. Corporal Satre cited Broussard for careless operation.

Joyce could have driven westbound on Louisville and entered the parking lot by making a left turn from the turn lane, and he often did this when pulling a shorter trailer. However, he was unable to do this with the longer trailer he was pulling because of the more limited space available in the parking lot to maneuver once he entered it in that manner. Monroe Rubber and Gasket’s building is close to and at a slight angle to Louisville Avenue, and the delivery bay is on the west side of the building. Joyce thought he was more likely to hit the building or a parked car if he had made a left turn into the parking lot. Corporal Satre related that he had no reason |fito disagree with Joyce that the best way to drive a trailer of that length into the parking lot was to make a right turn. He thought it might be easier to come from the westbound direction and make a left, but he would not tell Joyce which direction was better.

CONCLUSION

The trial court was not clearly -wrong in dismissing Broussard’s claim. At Brous-sard’s cost, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, DREW and MOORE, JJ.

Rehearing denied.


author: CARAWAY, J.

text:
    John D. DANIEL, Plaintiff-Appellant, v. HOUSE OF RAEFORD FARMS OF LA, Defendant-Appellee.
    No. 44,753-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Fischer & Associates by Mark K. Man-no, Shreveport, Rice & Kendig by William F. Kendig, Jr., Shreveport, for Appellant.
    Nelson, Zentner, Sartor & Snellings by George M. Snellings, IV, Monroe, for Ap-pellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

| iThe claimant refrigeration mechanic in this workers’ compensation action sought benefits from his chicken processing plant employer based upon a claim that he received a lung injury after inhaling ammonia fumes on the job. The Workers’ Compensation Judge (“WCJ”) denied claimant’s demands, finding that he failed to prove that a work-related accident occurred. For the following reasons, we affirm.

Facts

On August 29, 2005, John Daniel was employed by House of Raeford Farms, Inc. (“House of Raeford”), a chicken processing plant, as a refrigeration mechanic. House of Raeford utilized refrigeration in its facilities which involved the use of ammonia for cooling and freezing. In the late evening hours, Daniel was summoned by his supervisor, Eddie Hill, to a location in the plant known as “A Room.” Hill did not inform Daniel that the problem was an ammonia leak in an area outside of A Room. Hill assumed that Daniel had been informed of the fact by other workers.

While en route to A Room, Daniel detected the smell of ammonia (the intensity of which is contested). Believing that Hill might need assistance, Daniel entered A Room without a mask, claiming to take “little short breath[s]” as he looked around. When Daniel was unable to locate Hill, he ran outside of A Room where he encountered “a fog of ammonia” which he allegedly inhaled. Upon his exit of A Room, Daniel saw Hill standing outside near a table, but away from the leak. Daniel claimed that he “fell Dover” the table as he attempted to catch his breath and that Hill asked him if he had gotten his lungs full of gas. Hill denied making that statement.

Daniel testified that after he inhaled the gas, he could not breathe and experienced burning in his eyes, chest and throat. Nevertheless, he was able to obtain a mask and returned to the leak to help another employee, Grover Rushing, repair the damage. Daniel completed his shift and worked without work absences for House of Raeford until his termination on November 1, 2005.

Daniel first sought medical treatment from pulmonologist, Dr. Stuart LeBas, on October 10, 2005. Daniel reported to the doctor that he had received exposure to anhydrous ammonia three weeks prior to the visit, even though the ammonia leak had actually occurred six weeks earlier. He reported symptoms of shortness of breath, decreased stamina, decreased appetite, and a bitter taste in his mouth. He did not advise the doctor of any prior pulmonary problems. Dr. LeBas diagnosed Daniel with exposure to ammonia and prescribed medication. Daniel saw Dr. LeBas for two follow-up visits on November 3, 2005, and July 18, 2006. After the final visit, Dr. LeBas diagnosed Daniel with Reactive Airways Dysfunction Syndrome (RADS), an asthma-like condition, which he related to Daniel’s exposure to ammonia. Dr. LeBas never restricted Daniel’s work.

Daniel first filed an employer report of illness with Carolyn Grossman, House of Raeford’s human resources manager, relating to his claimed August exposure on November 7, 2005. House of Raeford conducted an investigation of Daniel’s claim and determined it to be ^unsubstantiated by eyewitnesses. On January 9, 2006, Daniel filed a disputed claim for compensation seeking benefits for the injuries he received as the result of the ammonia leak.

At trial, Daniel’s testimony of the work-related accident was as described above. Hill and Rushing, however, testified to the contrary. Hill testified that he first saw Daniel in an alley located away from the leak, apparently in the location outside A Room which Daniel described. At that time, Daniel did not have a mask on his face. Before Daniel helped to repair the leak, he obtained a mask from B Room. Hill also obtained a mask. Contrary to Daniel’s testimony, Hill claimed that during the repair of the leak and after the incident, he never saw Daniel in any kind of distress with coughing or shortness of breath. Hill also denied that Daniel ever informed him that he had inhaled ammonia fumes or was experiencing any symptoms. Hill recalled that Daniel completed his shift without incident and, in fact, worked overtime that evening. Hill testified that Daniel also worked the following day. Further disputing Daniel’s testimony, Hill denied ever seeing a cloud of ammonia. He testified that the wind direction, from north to south, would have taken the fumes away from the plant.

The deposition of Grover Rushing was jointly submitted into evidence. Rushing testified that after 10:00 p.m. on August 29, 2005, Hill called him and informed him of an ammonia leak just outside of A Room. When Rushing arrived at A Room, he did not smell ammonia because the “wind was taking it....” He located Hill outside of A Room, near a table. Hill showed Rushing the ammonia leak. Rushing was aware of the wind Indirection because of issues regarding shutting of work lines due to the leak. This decision was made depending on wind direction. Rushing testified that he walked through A Room which contained no smell of ammonia and Hill directed him to the leak outside of A Room. Rushing testified that the leak “wasn’t that bad.” Neither Hill nor Rushing wore a mask as they first observed the leak. Rushing did not see Daniel approach the scene because he was focused on the leak. As he repaired the leak, Rushing wore a mask over his face. As Daniel participated in the repair work, Rushing never heard Daniel wheeze or cough. He testified that the worst thing any of them did was “squinching” their eyes. He never heard Hill ask Daniel if he had gotten his lungs full of ammonia. Daniel never told Rushing that he had swallowed an excessive amount of ammonia or was in any way injured. After the incident he talked with Daniel and another worker, and Rushing testified that it “sounded like [Daniel] was fine then.” Rushing admitted that at the time of the leak there was ammonia in the atmosphere in A Room, but “it wasn’t a cloud of ammonia.” Rushing testified that his job required him to be around ammonia every day.

Some of Daniel’s prior medical records were introduced into evidence by both parties. This evidence showed that he was diagnosed with fatigue and asthma in August 2000 and prescribed oxygen and ne-bulizer masks in April and July 2001.

Two depositions of Dr. Stuart LeBas were also introduced into evidence. He testified that upon Daniel’s first visit with him on October 10, 2005, Daniel reported that after his exposure to ammonia three weeks prior, |fihe experienced swelling of the mouth and tongue, burning of the posterior pharynx and itchy watery eyes. At the time of the visit, Daniel complained of wheezing, shortness of breath and loss of stamina. Daniel reported no prior pulmonary problems to Dr. LeBas. Dr. LeBas prescribed inhalers to Daniel and instructed him to return in a couple of weeks. He did not restrict Daniel’s work. On November 3, 2005, Daniel’s lungs were significantly better. He had less wheezing and his pharynx was clear. Ultimately, Dr. LeBas diagnosed Daniel with RADS, which he related to the ammonia exposure, but issued no opinion on his work abilities. The fact that Daniel completed his work and did not seek medical treatment did not change the opinion of Dr. LeBas. Also, Daniel’s prior medical reports did not convince Dr. LeBas that Daniel suffered from previous pulmonary problems.

House of Raeford retained the services of expert pulmonologist, Dr. Robert Jones, to evaluate the case. The deposition of Dr. Jones was submitted into evidence by defendants. Although Dr. Jones never saw Daniel, he reviewed the records of his treating physicians both before and after the exposure incident and the deposition testimony. Dr. Jones explained that RADS is an asthma-like condition that occurs after a bronchial or lung injury caused by a highly irritating material. Dr. Jones testified that he had no reason to doubt that Daniel was exposed to ammonia on August 29, 2005; however, he did not believe that an injury occurred. He stated that ammonia exposure has immediate and very powerful effects on the eyes, nose and throat. Large amounts affect the bronchi and lungs. Dr. Jones testified that Daniel’s failure to seek medical treatment until six | fiWeeks after the incident and his completion of his work shift after the exposure were totally inconsistent with lung or bronchial injury by ammonia. Further, Dr. Jones could not relate to the event any symptoms which subsequently manifested. Dr. Jones testified that it is very difficult to get ammonia down into the lungs; thus, he had never treated a patient who had developed RADS as the result of ammonia exposure. He stated that only individuals who are trapped in ammonia and unable to get away from it suffer lower respiratory or bronchial injury.

After hearing the testimony of the witnesses and considering the deposition and medical record evidence, the WCJ denied Daniel’s claims on the grounds that he had “failed to prove that he sustained an accident or occupational disease during his employment with House of Raeford Farms, Inc., and has failed to prove that he is incapable of earning ninety (90%) of his pre-injury wages.”

This appeal by Daniel followed the denial of his claims. On appeal, Daniel argues that the WCJ erred in finding that no work-related accident occurred, in failing to address the issue of causation in the final judgment and in finding that he failed to prove that he is incapable of earning 90% or more of his pre-injury wages.

Discussion

It is a well-settled legal principle that the factual findings in workers’ compensation cases are entitled to great weight. Reasonable evaluations of | credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. The trier of fact’s factual determinations shall not be disturbed in the absence of a showing of manifest error. When the trier of fact’s findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Therefore, the appellate standard of review applicable to the findings of a WCJ is the manifest error-clearly wrong test. Shelton v. Wall, 614 So.2d 828 (La.App. 2d Cir.1993).

In order to recover workers’ compensation benefits, an employee must prove that he suffered “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A).

La. R.S. 23:1021 gives the following definitions:

(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or vio-
lently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(7) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

The plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Buxton v. Sunland Constr., 34,995 (La.App.2d Cir.8/22/01), 793 So.2d 526. Proof by a preponderance of the evidence is sufficient when the |8evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id.

In determining whether the worker has discharged the burden of proof, the trier of fact should accept as true a witness’ uneontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. An accident at work may be proven by a claimant’s un-contradicted testimony corroborated by the medical evidence. Thus, a worker’s testimony alone may be sufficient to discharge this burden of proof provided that two essential elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Such corroboration, of course, may include medical evidence and the testimony of fellow workers, spouses, or friends. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992); Buxton, supra. Delay in giving notice of injury shall not be a bar to recovery if it is shown that the employer has not been prejudiced by such a delay. Buxton, supra; Holcomb v. Bossier City Police Dep’t, 27,095 (La.App.2d Cir.8/25/95), 660 So.2d 199.

Where objective evidence so contradicts an employee’s testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable fact finder would discredit the story, a reviewing court may well find manifest error or clear wrongness even in a credibility determination. Sisk v. Martin Specialty Coatings, 28,592 (La.App.2d Cir.8/21/96), 679 So.2d 569, writ denied, 96-2328 (La.11/22/96), 683 So.2d 281. If the 13evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry the burden of proof. Buxton, supra; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2d Cir.1991).

The trier of fact’s determinations as to whether the worker’s testimony is credible and whether the worker discharged the burden of proof are factual determinations, not to be disturbed upon review unless clearly wrong. Bruno, supra.

Daniel’s first assignment of error alleges that the WCJ erred in finding that no work-related accident occurred. Since the accident was not recognized by others on August 29 or reported by Daniel for many weeks, Daniel’s proof of an accident rested on his testimony alone. Given the above burden of proof to establish a work-related accident under those circumstances, we find that the WCJ correctly rejected his claim.

Daniel’s version of the events immediately following his encounter with the “fog” of ammonia was directly discredited by the other employees who were present. Undoubtedly, all three employees smelled and breathed some ammonia in the area outside A Room before placing on their masks. However, that does not establish an “accident” which produced at the time the objective signs of injury which would be expected from harmful ammonia exposure. Hill and Rushing contradicted Daniel’s assertion that he demonstrated immediate signs of distress by showing troubled breathing and lying over the table. Their testimony reveals that they were unaware 110that an injury to Daniel had occurred, and their description of the ammonia was that it had not obtained any level of severity to cause injury. The WCJ could credit Hill and Rushing’s view of the event over Daniel’s testimony and find that no work-related accident occurred. Additionally, Daniel’s continued work with House of Raeford, his delay in obtaining medical attention, and his prior asthmatic condition are circumstances which tend to discredit his claim of an accident and which corroborate the other employees’ version of the event. Accordingly, the manifest error rule does not allow a court of appeal to overrule the WCJ’s finding of no accident in this case, and workers’ compensation remedies were properly denied.

Conclusion

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

AFFIRMED.

      . Daniel had worked for the company since January 2005.

      . In written reasons for judgment rendered on February 6, 2009, the trial court reiterated the previous grounds for judgment. In addition the court concluded that Daniel failed to prove that the inhalation of gaseous chemicals on the date of the leak "caused or contributed to his respiratory problems.”


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

text:
    Katherine Marie Phillips ULYANOV v. Sergey Michael ULYANOV.
    No. 2009-CA-0642.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 2009.

      Mark Moreau, Southeast Louisiana Legal Services, Lawrence J. Pichler, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

11 Katherine Marie Phillips Ulyanov (“Katherine”) appeals a trial court judgment assessing her court costs. On appeal, she contends the trial court erred in assessing court costs against her. For the reasons that follow, we agree that the trial court erred in assessing court costs against her.

Katherine filed a petition for divorce in which she included a request for permission to proceed in forma pauperis. The requisite in forma pauperis application was completed with supporting financial documentation. Subsequently, by order of court, she was granted indigent status. On 8 April 2009, the court entered a judgment of absolute divorce on Katherine’s motion to confirm the default entered on 19 February 2009. The trial court further assessed “the cost for filing [the] divorce action” against Katherine and ordered Katherine to “pay all costs within (90) ninety days of the signing of [the] judgment.” For the following reasons, we reverse that portion of the order for Katherine to pay all costs for filing the divorce action and render judgment accordingly. ls>La. C.C.P. art. 5186 states:

An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney. If judgment is rendered against the indigent plaintiff and he is condemned to pay court costs, an affidavit of the account by an officer to whom costs are due, recorded in the mortgage records, shall have the effect of a judgment for the payment due. [Emphasis supplied.]

The record on appeal is devoid of any evidence that Katherine’s right to proceed in forma pauperis was ever traversed or rescinded. La. C.C.P. art. 5184. We note that, as a general matter, La. C.C.P. art. 1920 gives the trial court equitable discretion to tax costs against any party. Specifically, article 1920 states, in part:

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. [Emphasis supplied.]

We find the article 1920 discretion is limited in a pauper case by the more specific provision found in La. C.C.P. art. 5186, which mandates the assessment of costs to the party against whom judgment is rendered. See Holloway v. Holloway, 01-0278, p. 2 (La.App. 8 Cir. 6/6/01), 787 So.2d 600, 601. Moreover, pursuant to La. C.C.P. arts. 1701 and 1702, a judgment confirming a default is entered against the party who fails to answer the petition and citation of the plaintiff. In the case at bar, the judgment entered on Katherine’s motion to confirm the default was rendered against the defendant, Sergey Michael Ulyanov, and thus, we find he Rshould have been condemned to pay all court costs associated with these proceedings. La. C.C.P. art. 5186. See also Williams v. Williams, 98-2899, pp. 1-2 (La.App. 4 Cir.4/28/99), 732 So.2d 1243, 1244; Smith v. Smith, 99-0365, pp. 1-2 (La.App. 4 Cir. 5/5/99), 733 So.2d 729, 730. We conclude the trial court erred in assessing court costs against Katherine Ulyanov.

Accordingly, we reverse that portion of the trial court judgment assessing the costs for the filing of the divorce action against Katherine Ulyanov and render judgment for the payment of court costs against Sergey Michael Ulyanov to be paid within 90 days. We affirm the trial court’s ordering Katherine Ulyanov to pay all other costs (if any), except couH costs, associated with these proceedings to be paid within 90 days.

REVERSED IN PART; AFFIRMED IN PART; RENDERED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Shirley GADEN and Sally Ellington v. Paul Kevin GALVIN.
    No. 2009-CA-0335.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2009.

      David W. O’Quinn, McDonald G. Pro-vosty, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Plaintiffs/Appellants, Shirley Gaden and Sally Gaden.
    Malcolm B. Robinson, Jr., Law Office of Malcolm B. Robinson, Jr., Metairie, LA, for Defendant/Appellee.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY.
   JOAN BERNARD ARMSTRONG, Chief Judge.

11Plaintiffs-appellants, Shirley Gaden and her daughter, Sally Ellington (who refers to herself by her maiden name, Sally Ellington, in the joint appellate brief filed on her behalf and that of her mother), appeal a judgment in favor of Sally Ellington only, condemning her former spouse, the defendant-appellee, Paul Kevin Galvin, to pay her “all reasonable costs incurred in the claim herein”; and dismissing the claims of Shirley Gaden against her former son-in-law, Paul Kevin Galvin, each party to bear their own costs. The judgment makes no mention of Sally Ellington’s claim against Mr. Galvin for attorney fees, but it is clear from the reasons for judgment that the trial court considered and denied Ms. Ellington’s claim for attorney fees.

I. Sally Ellington’s claim for attorney fees.

As the trial court noted in its reasons for judgment, this suit combines two claims against Mr. Galvin: The first claim is that of Ms. Sally Ellington against her former husband for $13,700.00 in attorney’s fees (calculated at a rate of $100.00 per hour) and costs in connection with problems encountered in resolving the property settlement executed between them. Ms. Ellington complains that the |2trial court erred when it declined to award her attorney fees. The trial court awarded her costs, but denied her claim for attorney fees, finding that as a matter of law an attorney who represents himself is not entitled to attorney fees, citing Lambert v. Byron, 94-954 (La.App. 3 Cir. 2/8/95), 650 So.2d 1201, 1203 and Westenberger v. Bernard, 160 So.2d 312 (La.App. 4 Cir.1964).

Ms. Ellington’s claim is based on an undisputed “Act of Partition and Settlement of Community” executed by and between Ms. Ellington and Mr. Galvin on June 9, 1990. Each party assumed certain obligations. Mr. Galvin concedes that he failed to discharge his obligation under the Act of Partition to make payments on a mortgage on property located at 816-818 Roosevelt Street in New Orleans. Mr. Galvin does not dispute that fact that the document provides, in pertinent part, that:

Each party agrees to indemnify and hold harmless the other for any loss or damage, including attorneys’ fees and costs, incurred as a result of the failure by either or both of them to pay and discharge any obligation assumed on this partition.

We find it significant that Mr. Galvin made no argument in the trial court or in this court concerning the intention of the parties regarding the attorney fee language quoted immediately above. He offered no evidence to show that it should not apply to Ms. Ellington’s legal work. As noted previously, the only reason given by the trial court for denying Ms. Ellington’s claim was legal, not factual. The trial court did not mention it in its judgment and denied the claim in its reasons for judgment as a matter of law, citing Lambert and Westenberger, supra. However, the trial court awarded Ms. Ellington costs, thereby implicitly ^recognizing the validity of her contention that Mr. Galvin failed to properly discharge his obligations under the partition agreement. Regardless, Mr. Galvin admits that he did not discharge his obligations under the agreement.

It is undisputed among the parties that attorney fees are not generally awarded, except in those instances where provided by statute or contract. Ms. Ellington contends that the above quoted provision in the Act of Partition provides a contractual basis for her claim for attorney fees. Mr. Galvin’s only arguments on this issue were that:

a. Sally Gaden [Ellington] could offer no proof whatsoever that she paid any attorney’s fees to anyone; and
b. The law of this state does not allow one to collect attorney’s fees in self-help situations as the one before the court. Lambert v. Byron, 94-954 (La.App. 3 Cir. 2/8/95), 650 So.2d 1201, 1203; Westenberger v. Bernard, 160 So.2d 312 (La.App. 4 Cir. 1964).

Westenberger does not explain why an attorney who brings suit in his own name cannot collect attorney fees in those cases where a third party attorney would be entitled to collect: it merely cites Ealer v. McAllister & Co., 19 La.Ann. 21 (1867). This Court has declined to follow Westen-berger in citing Ealer as “Ealer makes no such holding.” Ready v. Raspanti, 03-1080, 03-1499, p. 7 (La.App. 4 Cir. 2/4/04), 866 So.2d 1045, 1051. In Ready this Court awarded attorney fees to an attorney, Roy Raspanti, who represented himself in claiming the fees. As this Court noted:

Thus, there is no reason to distinguish between the attorney’s fees generated by Raspanti and the attorneys working on his behalf, as long as the fee is reasonable.

Id., 03-1080, 03-1499, p. 8, 866 So.2d at 1051.

Therefore, we find Lambert unpersuasive because it relies on both Westenberger and Ealer. Additionally, we are not persuaded by the conclusion in \4Lambert that the language concerning “referring” a note for collection must necessarily mean a third-party attorney and by analogy could be extended to defeat Ms. Ellington’s claim based on the language in the instant case relating to the term “incurred” found in the Act of Partition. The attorney fee clause in the Act of Partition is really just boiler-plate language, and there is nothing in the record to suggest otherwise.

We might add that to allow Sally Ellington to collect attorney fees for the work she performed works no prejudice upon Mr. Galvin. Moreover, Mr. Galvin has not shown what difference it will make to him whether he pays Ms. Ellington or another attorney. However, he is entitled to object to the reasonableness of her fee, just as he would be to any attorney employed against him, but he has not done so.

We see no public policy to be served by depriving an attorney of a fee when she represents herself in those instances where the law would permit a third party attorney to recover such a fee. We cannot see how an attorney’s time is less valuable or less worthy of recompense when spent representing herself than when spent representing others. If those instances where the law would allow a third party attorney to collect a fee from the opposing party for services performed for an attorney claimant, we can see no clear basis for denying the attorney who represents herself to collect such a fee. We recognize that the Third Circuit adopted a different line of reasoning in Lambert, supra.

To argue that an attorney who represents herself is generally not entitled to attorney fees because she incurs no out-of-pocket expenses in representing herself is implicitly based on the argument that her time and legal expertise have no value. This argument does not take into account that the attorney who represents herself |shas a disadvantage in the time it takes to research, prepare and argue her case, time she would not have to spend if she were represented by a third party attorney, a disadvantage that is proportional to the monetary advantage referred to in Lambert. Therefore, it is only reasonable to be compensated for the time and effort. The interest of the opposing party should only be in the reasonableness of the attorney fee, not to whom he pays it.

We note that Mr. Galvin does not contest the fact that had his former wife retained a third party attorney, such an attorney would have been entitled to a fee under the property agreement. Nor does he contest the reasonableness of the amount claimed. We have reviewed the record de novo (as it is sufficiently complete in this regard as to obviate the need to remand for additional evidence on this issue) as to the amount and reasonableness of the attorney fees claimed by Ms. Ellington. She provided uncontested documentation that appears in the record showing 137 hours at a rate of $100.00 per hour, for a total of $18,700.00. We find this figure to be reasonable.

Accordingly, we find that where a statute or contract allows a party to collect reasonable attorney fees, an attorney representing himself/herself may in general be entitled to collect such fees unless the statute or contract clearly indicates otherwise. Based on this reasoning, we conclude that Sally Ellington is entitled to attorney fees in the sum of $18,700.00.

II. Shirley Gaden’s claim for contribution.

The second claim against Mr. Gal-vin is that of his former mother-in-law, Shirley Gaden, for his virile share of the debt she paid to satisfy a loan from the Whitney National Bank for which she contends they were both co-sureties.

| fiHowever, it is important to note at the outset that Shirley Gaden did not appear at the trial of this matter, nor did anyone else appear who was authorized to testify as to her affairs relating to this case. The loan (actually the aggregate of a series of loans) was made to E.G. Boh Forest Products, Inc., (hereinafter “Boh”) and the debt was in excess of $860,000.00. Mr. Galvin guaranteed this debt in a Continuing Guaranty dated October 10, 1988. When the corporation did not pay the debt, the Whitney called the loan. Shirley Gaden allegedly contributed $153,000.00 cash, $60,000.00 in bonds and a $35,000.00 promissory note as her portion of the debt owed to the Whitney, for a total of $248,000.00. Mr. Galvin paid $6,000.00 to the Whitney and $150.00 to Shirley Gaden. Ms. Gaden contends that there were six sureties on the Whitney loan, making Mr. Galvin’s virile share $41,333.33, less the $6,150.00 he had paid as set forth above: $6,000.00 to the Whitney and $150.00 to Shirley Gaden. Thus, according to Shirley Gaden, Mr. Gal-vin still owed $35,183.00.

The trial court found that the Gadens were principal obligors on the debt to the Whitney and that Mr. Galvin as a mere surety on the debt had no obligation to them for any payments they made on the debt. The trial court in its written reasons for judgment found that:

Shirley Gaden offered no evidence of her legal standing as it pertains to Galvin and the Whitney. Was she a principal obligor with her husband Howard in the family business, or, was she a surety, a guarantor — like Galvin, as she pleads in the petition? Shirley Gaden introduced no documents that would establish her status herein. This court has no way of knowing what her relationship was to the Whitney Bank and/or to Galvin. However, there is no evidence whatsoever in the record that would |7aIlow anyone to know what legal status Shirl[e]y Gaden possesses in this lawsuit.
The written reasons go on to find that: Further, Shirley Gaden offered no evidence that she actually paid any portion of the debt owed to the Whitney Bank, which is the subject of this lawsuit. In fact, the plaintiffs chief witness, Sally Ellington, testified that the sum of $153,000 was paid to the Whitney on this debt, but that this sum was paid by Shirley’s son-in-law, and the payment was made to allow her husband to keep their home. No other evidence was introduced which would establish that Shirley Gaden paid any amount to the Whitney, for whom Galvin was a guarantor. There was simply no evidence introduced that would allow anyone to calculate the amount of the ‘debt’ Shirley Gaden and her husband allegedly paid.

As noted earlier, Shirley Gaden’s pleadings and brief contend that when the Whitney bank called the Boh loan, she contributed $153,000.00 in cash, $60,000.00 in bonds, and a $35,000.00 promissory note, bringing the total contributed by her on the loan to $248,000.00. However, she did not testify and there are no documents in the record to support the claim that any such payments were made.

Her daughter, Sally, testified that her sister loaned her parents $153,000.00 to pay the Whitney, but she was never asked what knowledge she had concerning whether her mother, Shirley, actually made the payment.

The only document bearing a signature purporting to be that of Shirley Gaden was the “Compromise, Settlement and Forbearance Agreement” (hereinafter referred to as the “Settlement Agreement”) with the Whitney Bank. She did not appear to attest to her signature, but we have no reason to doubt that it was, in fact, her signature. The Settlement Agreement refers to an indebtedness | sowed to the Whitney in the sum of $860,189.47 by E.G. Boh Forest Products, Inc., as evidenced by a list of nineteen promissory notes executed by E.G. Boh Forest Products, Inc. There is nothing in the Settlement Agreement that explains the relationship of the signatories thereto to the indebtedness other than Edward Boh Gaden who signed as president of E.G. Boh Forest Products, Inc. The document does not explicitly state why the parties signing in their individual capacities were signing or why the amounts each party was called upon to pay was different. They could have been interested in the transaction as signatories to a Continuing Guaranty as were Sally Ellington and Paul Kevin Galvin or they could have had varying financial stakes in the business, or both — but we do not know for sure. We particularly do not know, as was pointed out by the trial judge in his written reasons, what Shirley Gaden’s relationship to the debt was.

Sally Ellington acknowledged on the stand that while the Whitney prepared the Settlement Agreement, the non-Whitney signatories, which would have included Shirley Gaden, “had some input in the wording and the tenor of the agreement ...” She also acknowledged that there was no doubt “in anybody’s mind that those who signed on behalf of the debtors, the people that owed the Whitney, understood that once these obligation were met, their obligation to the Whitney would be through.” There was no reservation of rights as between any of the non-Whitney signatories. The amounts each non-Whitney party to the Settlement Agreement was obligated to pay were different, thus bolstering the conclusion that the Settlement Agreement reflected what the parties agreed among |flthemselves was to be the personal responsibility of each. Thus, the trial judge could reasonably infer that such amounts were based in whole or in part on each party’s interest in the business and, therefore, no further adjustments among the parties was called for.

Based on the record before us, we cannot say that the trial judge was manifestly erroneous in concluding as set forth in his reasons for judgment that the Settlement Agreement was intended to be fully dis-positive of not only any obligations owed to the Whitney by any and all of the non-Whitney signatories, but it was also intended to be fully dispositive as between and among themselves. Shirley Gaden had the burden of proving her case and the record does not permit us to find that the trial court was manifestly erroneous in concluding that she failed to do so.

DECREE

For the foregoing reasons, we amend the trial court judgment in part to vacate only that portion of the judgment denying Sally Ellington’s claim for attorney fees and hereby render judgment in her favor and against Paul Kevin Galvin in the sum of $13,700.00. In all other respects, the judgment of the trial court is affirmed, including those portions of the judgment dismissing the claims of Shirley Gaden and condemning Paul Galvin to pay to Sally Ellington “all reasonable costs incurred in the claim herein”; and remand to the trial court for a |inhearing as called for in the trial court reasons for judgment in order to determine what those costs might be.

All parties are to bear their own costs.

AMENDED.

AFFIRMED AS AMENDED, AND REMANDED.

      . "Sally Ellington” is also the way her signature appears on all exhibits offered into evidence.

      . Counsel for Mr. Galvin conceded in oral argument that Shirley Gaden was a surety for the debt of the family corporation.

      . "So that my parents could keep the house, my sister and now ex-brother-in-law loaned my parents the money to extinguish the debt which was the appraised amount that the Whitney had appraised it for. So it’s what the Whitney had expected to get for this property-”

      . The plaintiffs' brief refers to a copy of a Continuing Guaranty purportedly signed by Shirley and her husband, Howard Gaden, but it was never identified as such at the trial and was not offered into evidence at the trial. Therefore, it cannot be considered by this Court. There is no reference to it by the trial court, which is proper.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana in the Interest of D.S.
    No. 2009-CA-0594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellant.
    (Court Composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

|, The State of Louisiana filed a petition in the Juvenile Court for the Parish Orleans alleging the defendant, D.S., to be delinquent for violating La. R.S. 14:68.4, relative to unauthorized use of a motor vehicle (count one), and La. R.S. 40:966 E(l), relative to possession of marijuana (count two). At a pretrial hearing, D.S., through counsel, pleaded not guilty to both counts.

D.S. appeared for trial on March 23, 2009. At that time, counsel for D.S. moved the court to dismiss count two of the petition pursuant to La. Ch. C. Art. 876 in return for D.S.’s pleading guilty to count one. Over the state’s objection, the juvenile court accepted the proposed plea arrangement and granted the motion to dismiss count two. D.S., in turn, pleaded guilty to count one and the juvenile court rendered a judgment adjudicating him delinquent for violating La. R.S. 14:68.4. D.S. was sentenced to placement with the Office of Juvenile Justice for a period of time not to exceed one year. The sentence, however, was suspended and |2P.S. was placed on active probation under the supervision of the Office of Youth Development.

The state appealed the judgment adjudicating D.S. delinquent, arguing that the juvenile court erred by entering into a “plea bargain” with D.S. without the state’s consent by dismissing count two of the petition pursuant to La. Ch. C. Art. 876 in exchange for D.S.’s pleading guilty to count one.

The Louisiana Supreme Court, in State v. Tanner, 425 So.2d 760, 762 (La.1988), has stated that “[t]he district attor ney determines whom, when and how he shall prosecute in his district,” citing La. C.Cr.P. art. 61. Further, La. Const, art. V, § 26(B) provides that a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district. The district attorney is the only official vested in law to engage in plea bargains. State v. Anthony, 99-0107, p. 6 (La.App. 4 Cir. 4/7/99), 735 So.2d 746, 750. A plea agreement is a contract between the state and a defendant. State v. Lewis, 539 So.2d 1199, 1204 (La.1989); State v. Monroe, 99-1483, p. 5 (La.App. 4 Cir. 3/22/00), 757 So.2d 895, 897. The consent of both parties is required. Id.

In this case, the trial transcript indicates that defense counsel sought a “plea bargain” for D.S. by asking the state to dismiss the possession of marijuana charge in exchange for D.S.’s pleading guilty to the charge of unauthorized use of a motor vehicle. The state clearly objected to the dismissal of any charge in the matter. The juvenile court, nonetheless, dismissed the possession of marijuana charge pursuant to La. Ch. C. art. 876 to secure a guilty plea from D.S. on count one. |3Because La. Const, art. V, § 26(B) authorizes only the district attorney, or his designated assistant, to prosecute a criminal case, the juvenile court erred in engaging in a plea arrangement with D.S. without the consent of the State. Although La. Ch. C. art. 876 allows the court, for good cause, to dismiss a petition on its own motion, on the motion of the child, or on the motion of the petitioner, if the court’s dismissal of a charge is part of a plea agreement in the prosecution of the case, then the state must consent to the dismissal for the plea to be constitutionally valid. Here, the state did not engage in or consent to the plea agreement, which included the dismissal of count two of the petition. Thus, we conclude D.S.’s guilty plea on count one is invalid.

Accordingly, the March 23, 2009 judgment, adjudicating D.S. delinquent and dismissing count two of the petition, is vacated and the case is remanded to the juvenile court for further proceedings consistent with the views expressed herein.

VACATED AND REMANDED.

      . The record indicates that D.S., when arrested, was also charged with possession of a stolen automobile, a violation of La. R.S. 14:69. The state, however, refused the charge.

      . La. Ch.C. Art. 876, provides:
      For good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on the motion of the petitioner. The court shall dismiss a petition on the motion of the district attorney.


author: GREMILLION, Judge.

text:
    Tammy DEROUEN v. WAL-MART STORES, INC.
    No. 09-278.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.
    Rehearing Denied Dec. 16, 2009.

      Michael Miller Crowley, LA, for Plaintiff/Appellant Tammy Derouen.
    Frank A. Flynn, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Wal-Mart Stores, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|; Tammy Derouen (Derouen) was injured in the course and scope of her employment as an associate of Wal-Mart, Inc. (Wal-Mart) in Abbeville, Louisiana, on April 10, 2005. She filed a Disputed Claim for Compensation (Form 1008) on August 19, 2005, in which she alleged that Wal-Mart was underpaying her weekly indemnity benefits. She also claimed entitlement to penalties and attorney fees. An amended 1008 was filed on June 29, 2006, asserting that in addition to underpaying weekly indemnity, Wal-Mart had failed to timely and fully pay medical expenses, had refused her selection of Dr. John E. Cobb, a Lafayette orthopedic surgeon, as her physician of choice and had denied her physical therapy and nerve blocks.

On March 7, 2007, Derouen and Wal-Mart entered a consent judgment into the record. That consent judgment provided that Derouen was injured in the course and scope of her employment and was entitled to weekly indemnity payments in the amount of $190.43, back weekly benefits in the amount of $2,651.29 and all necessary treatment including back surgery recommended by Dr. Cobb. Wal-Mart also agreed to pay $8,250.00 in penalties, attorney fees in the amount of $13,500.00 and expenses of $602.38. This consent judgment was signed by the Workers’ Compensation Judge (WCJ) on April 30, 2007.

On July 6, 2007, Derouen filed a motion seeking penalties and attorney fees because Wal-Mart had sent a check in the amount of $25,003.67 with an accompanying “Satisfaction of Judgment.” Derouen alleged that Wal-Mart’s counsel had instructed that the check was not to be negotiated until the satisfaction was executed. This action, she asserted, entitled her to a 24% penalty plus additional attorney fees. After a hearing on December 6, 2007, the motion for penalties and 12attorney fees was granted. Judgment was not signed by the WCJ until December 16, 2008.

On January 14, 2008, Wal-Mart forwarded two separate checks and requested that Derouen execute a satisfaction of judgment. Derouen refused, and a hearing was fixed for December 16, 2008. At this time, the judgment on the aforementioned penalties and attorney fees was filed and signed. The WCJ also granted a “Partial Satisfaction of Judgment” in favor of Wal-Mart. It is the existence of this “Partial Satisfaction of Judgment” signed by the WCJ on December 16, 2008, to which Derouen objects.

ANALYSIS

The partial satisfaction of judgment provides that Derouen received a check in the amount of $25,003.67 representing the proceeds reflected in the original consent judgment and a second check for $15,482.63 representing the penalties and attorney fees awarded on December 6, 2007. It further provided in conclusion:

IT IS ORDERED, ADJUDGED AND DECREE [sic] THAT the Consent Judgment rendered on April 30, 2007 and Judgment on Motion for Penalties and Attorney Fees rendered on December 16, 2008 in the above entitled and numbered have been paid reserving all rights, if any, to Tammy DeRouen for temporary total benefits in the amount of $190.43 and all reasonable and necessary medical treatment, including back surgery recommended by Dr. John Cobb on or before March 7, 2007.

Workers compensation represents an ongoing obligation on the employer’s part to compensate the employee for injuries incurred in the course and scope of employment. Thus, Wal-Mart cannot, according to Derouen, cite any authority allowing it to obtain a satisfaction of judgment, as this suggests that the obligation is not ongoing.

Louisiana Revised Statute 23:1201.3(A) governs the effect of judgments |sawarding workers compensation benefits. Those awards carry interest from the date benefits were due until the date of satisfaction. They may be recorded in the mortgage records of any parish clerk of court and thus carry the force and effect of a judicial mortgage. Id. Further, a judgment rendered by a WCJ carries “the same force and effect and may be satisfied as a judgment of a district court.” La. R.S. 23:1317(B).

A necessary adjunct of the power to render a judgment is the authority to determine whether a party has complied with its dictates. “A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” La.Code Civ.P. art. 191. Necessity dictates that a party against whom a judgment has been rendered and who has paid the judgment is afforded some method of having that fact recognized by the courts. We, therefore, find that the WCJ had legal authority to enter the partial satisfaction of judgment.

Both the partial satisfaction of judgment and the exhibits entered by Wal-Mart at the hearing set forth the basis for calculating the payments made. The judgments at issue are straightforward in establishing the amounts awarded. The finding that the judgments were paid is one of fact; therefore, the manifest error standard applies. That standard requires that the appellate court, in order to reverse, must find that the record reflects that there is no reasonable basis for the WCJ’s factual determinations. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124. We find that a reasonable basis is reflected in the record for the finding that the two judgments were paid, excepting, of course, the prospective medical expenses and weekly indemnity benefits reserved by the partial satisfaction of judgment.

|4Perouen also complains that the partial satisfaction of judgment was overly broad. She claims that it prejudices her rights by giving Wal-Mart a complete release of all obligations except those specifically reserved. We agree that the partial satisfaction does release Wal-Mart from all obligations owed under the consent judgment (except the weekly indemnity and medical expenses); we disagree that this in any way prejudices Derouen’s rights. The only remaining rights she possesses are those specifically reserved by the consent judgment. Any other ruling would invalidate the consent judgment, and we decline to do so.

The partial satisfaction of judgment merely recognizes that Wal-Mart has satisfied the award of penalties, attorney fees, past medical and weekly indemnity payments and expenses. It further recognizes that Wal-Mart has satisfied the awards of 24% penalty, attorney fees, past weekly indemnity and penalty for failing to pay weekly indemnity addressed in the December 16, 2008, judgment.

CONCLUSION

The WCJ possesses inherent authority to determine whether the judgments he renders have been satisfied. That finding is reviewed, as any other finding of fact, under the manifest error standard. In the present matter, the record reflects a reasonable basis for the WCJ’s finding that the judgments of March 7, 2007, and December 16, 2008, were satisfied. The Partial Satisfaction of Judgment entered by the WCJ is affirmed.

Appellant, Tammy Derouen, is taxed with all costs of this appeal.

AFFIRMED.