author: GARRETT, J.

text:
    David L. DORRIES and Linda L. Dorries, Plaintiffs-Appellants/Appellees v. Edward Earle LINDER, Defendant-Appellant/Appellee
    No. 51,070-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      DAYE, BOWIE & BERESKO, APLC, By: R. Scott Bowie, Counsel for David L. Dorries and Linda L. Dorries, Plaintiffs/Second Appellants
    KITCHENS LAW FIRM, By: Graydon K. Kitchens, Jr. Counsel for Edward E. Linder, Defendant/First Appellant, and X-Sell Properties LLC, Intervenor/First Appellant
    Before DREW, GARRETT, and STONE, JJ.
   GARRETT, J.

|; This litigation arises from a family dispute over an unpaid debt. The plaintiffs, David and Linda Dorries, are seeking to execute on a deficiency judgment against Linda’s brother, Edward Earle Linder (“Earle”), by seizing and selling at sheriffs sale his interest in immovable property located in Claiborne Parish. Earle claimed to have sold the property to a third party, who later intervened in the suit. Both sides appeal from a trial court judgment which upheld an injunction in favor of Earle and the intervenor, enjoining the seizure and sale of the property until the intervenor’s alleged ownership could be adjudicated. The judgment then fully adjudicated the ownership claim by granting a revocatory action on behalf of the plaintiffs and annulling Earle’s sale to the. intervenor. Earle and the intervenor contend that the trial court erred in annulling their transaction and that the intervenor acquired the property free and clear of the plaintiffs’ judicial mortgage. The plaintiffs agree with the ruling on their revocatory action, but also seek relief on some matters not ruled upon below and argue the trial court should not have assessed them half of the court costs. Both sides claim they are entitled to damages and attorney fees. For the reasons set forth below, we affirm the trial court judgment in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

What began as a simple executory process lawsuit has now spun totally out of control due to the actions of Earle in failing to repay an obligation he clearly owed. In order to understand the chain of events leading up to the judgment that is now before us, some background information is necessary.

12Linda Linder Dorries, Earle Linder, and Randall Ray Linder are the children of R.B. Linder and Bobbie Ray Linder. In April 2003, the parents created a revocable inter vivos trust in which they designated themselves as the settlors, the sole income beneficiaries, and the trustees. Among other assets, several tracts of immovable property were placed in the trust by an act of donation. They included tracts in Claiborne Parish, one of which contained the parents’ residence and another containing what was known as “the yellow house.” Several of these tracts were located close to Lake Claiborne. The original act of donation involving the immovable property contained almost five single-spaced, legal-size pages of very complicated property descriptions.

Over time, the trust documents were amended on several occasions. The original trust document provided that, upon the death of the settlor last to die, the principal of the trust and all undistributed income “shall be immediately distributed” to the three Linder children in equal portions. It also initially provided that, after the deaths of both parents, Earle was to be temporary successor trustee for “the single purpose of winding up the affairs of this trust and making the final distribution of the corpus thereof to the principal beneficiaries.” In a 2006 amendment, Earle and Randall were named temporary successor co-trustees for the same purpose.

The father died on November 13, 2010. In March 2012, the mother amended the trust to give a right of first refusal to purchase the property containing the parents’ home to Randall and “the Hatfield lot” to Earle. It also provided that upon her death, the trust would terminate “as soon as is treasonable.” It further stated that, subject to the rights of first refusal, the remaining principal, income from the sale of the two tracts, and all undistributed income “shall be immediately distributed to ... children of Settlors, in equal proportions to each, free of trust.” In August 2013, the mother resigned her position as trustee due to her declining health and appointed Earle and Randall as successor trustees. The last amendment to the trust was made in May 2014. The mother expressly revoked the 2012 amendment and the right of first refusal given to Earle for the Hatfield lot. However, Randall’s right of first refusal on the parents’ residence was maintained. The amendment stated that “[u]pon the death of the second settlor to die the trust shall be terminated as soon as is reasonable.” This amendment included language that, subject to Randall’s right of first refusal, “the remaining principal of this trust, income from the sale of the above tract, and all undistributed income shall be immediately distributed” to the three children “in equal proportions to each, free of trust, except that [Earle’s] share shall-be reduced by $12,000.” The mother died on July 9, 2014. As explained below, the immovable property remaining in the trust was not transferred by the trustees to the Linder children until January 2015.

Over the years, Linda and her husband, David, had loaned a substantial amount of money to Earle. The debt was evidenced in two promissory notes: a 2011 note for $115,000 and a 2012 note for $25,000. Earle secured the loans with a mortgage on two tracts of property he owned near Lake Claiborne. After Earle failed to repay them, the Dorrieses filed a petition for executory process on December 13, 2013. The property mortgaged by Earle was seized and sold, with benefit of appraisal, at sheriffs sale to the Dorrieses for $76,533.33, on February 12, 2014.

|4On July 16, 2014, the Dorrieses filed a petition for a deficiency judgment in the amount of $79,585.59, as of February 12, 2014, plus interest, and attorney fees of 15% of the amount due on November 5, 2013. Earle, acting in proper person, filed a general denial answer on August 1, 2014.

The Dorrieses then filed a motion for summary judgment, which was set for hearing on October 2, 2014. After the sheriff was unsuccessful in serving Earle, a private process server was appointed, who eventually located him. Paul Kitchens, as Earle’s counsel, filed an answer, an opposition to the motion for summary judgment, and a motion for continuance which asserted that Earle was domiciled in California. Over the Dorrieses’ objections, the continuance was granted, and the matter was reset for November 3, 2014. The Dorrieses also responded to’ the opposition.

On November 3, 2014, the trial court granted the plaintiffs’ motion for summary judgment in open court and awarded them a deficiency judgment of $79,585.59, with interest, plus attorney fees of $22,312.50. At the conclusion of the hearing, Paul Kitchens filed a motion to withdraw as Earle’s counsel of record. However, he agreed to sign the judgment on the motion for summary judgment when it was prepared. The trial court granted his motion and signed the judgment allowing him to withdraw. Judgment in conformity with the trial court’s ruling on summary judgment was signed on November 18, 2014. This judgment was recorded in the mortgage records of Claiborne Parish on November 26, 2014.

Un the meantime, on November 4, 2014, Paul Kitchens notarized a cash sale deed whereby Earle purported to sell his interest in certain immovable property to X-Sell Properties, LLC, a Colorado company, for $25,000. The document had already been executed by X-Sell’s manager, Vicki Schmidt, on October 31, 2014, before a notary public in Arizona. The deed recited that no title opinion had been performed or requested and that the parties furnished the legal description. A lengthy, detailed—and very confusing—description of the property being sold was attached to the deed as an exhibit. While the property descriptions appear generally to track those in the 2003 original act of donation transferring the Linders’ property to the trust, the descriptions contained numerous errors and included property no longer owned by the trust. In addition to the property near Lake Claiborne, the list of property sold to X-Sell by Earle included interests in two other Claiborne Parish tracts and mineral rights to property in Claiborne Parish and Arkansas. The appearance clause recited that Earle lived in California. The cash sale deed was recorded in the conveyance records of Claiborne Parish on November 5, 2014.

The Dorrieses sought to collect on their deficiency judgment against Earle. Since he had moved to California and was supposedly no longer represented by Paul Kitchens, they requested a writ of attachment, based upon Earle being “a nonresident who has no duly appointed agent for service of process within the state,” pursuant to La. C.C.P. art. 3541. They sought to attach Earle’s interest in property that had been in the name of the Linder parents’ trust, which included a checking account, bank stock shares, immovable property, and mineral rights. The writ of attachment was granted on December 22, 2014.

| (¡On January 9, 2015, Earlé—again represented by Paul Kitchens—filed both a petition for declaratory judgment and a motion seeking dissolution of the writ of attachment. He claimed that the issuance of the writ of attachment violated a spendthrift clause in the trust and Louisiana law. Although he had alleged that he was domiciled in California in his earlier motion for continuance, he now asserted that he was only “temporarily domiciled in California,” thus making issuance of the writ of attachment improper. He requested attorney fees and court costs.

In response, the Dorrieses cited the recent transfer deed from the trustees of the Linder parents’ trust to the beneficiaries, which had been filed in the Claiborne Parish conveyance records on January 20, 2015. The document was executed by all three of the Linder children, including Earle, who again recited that he was a resident and domiciliary of California. The deed transferred to each child an undivided one-third interest of several tracts of land in Claiborne Parish, as well as mineral rights to property in Claiborne Parish and Arkansas, a party barge, and stock. Many of the property descriptions in this document differed from those in the original 2003 act of donation due to subsequent alienations of portions of the property and also because of updated and more precise descriptions developed pursuant to 2014 surveys of the Lake Claiborne tracts. The document also excepted certain property from the transfer—the property to which Randall had been given right of first refusal, and two tracts sold to |7the Dorrieses in 2012. The transfer document consisted of 14 pages, which included several surveys and is rather complex, to say the least.

On February 6, 2015, Paul Kitchens executed a document entitled “Notarial Act of Correction,” which referenced the cash sale deed between Earle and X-Sell that he notarized on Earle’s behalf on November 4, 2014. The document recited that “inaccuracies” were included in the property descriptions and purported to correct these mistakes. It appeared to track the new property descriptions found in the January 2015 transfer deed from the trustees to the beneficiaries. The act recited that Earle was not the record owner at the time of the recordation of the cash sale deed, and then asserted the application of the doctrine of after-acquired title to attempt to cure title issues. This document was not executed by either Earle or X-Sell—only by one of the two notaries to the original deed, pursuant to La. R.S. 35:2.1. The “Notarial Act of Correction” was notarized by Graydon Kitchens, Jr., a member of the same law firm.

The Dorrieses continued their efforts to collect their deficiency judgment, as Earle tried to thwart them. The Dorrieses agreed not to pursue the writ -of attachment. However, on March 2, 2015, a writ of fieri facias was issued seizing Earle’s right, title and interest in his mother’s succession.

A judgment debtor examination was held on March 9, 2015. The judge who presided over the trial in this matter also presided over the judgment debtor exam. Earle did not bring all the financial documents requested by the Dorrieses. He testified that in the summer of 2014, he received $140,000 from his parents’ trust and that he had spent all but $300 Rof it on “traveling, normal business expenses, ... normal household expenses, gambling.” He could not provide a detailed description of where the money went. He also admitted that he had sold for “$10.00 and other valuable considerations” a tract of property in Arizona which he had purchased for about $500,000. Earle was ordered to produce certain financial documents when the examination resumed on May 4, 2015. From the record before us, it does not appear that another judgment debtor exam was conducted.

On April 24, 2015, Earle filed a motion for dissolution of the writ of fieri facias pertaining to his mother’s succession, as well as attorney fees, damages and a permanent injunction. He asserted that the property sought by the Dorrieses was actually still owned by the family trust. By consent judgment signed on- June 25, 2015, the parties agreed that, if the trust still existed, any property it owned was excluded from this writ of fieri facias.

On June 8, 2015, the Dorrieses requested a writ of fieri facias to seize and sell the tracts of immovable property which Earle had allegedly transferred to X-Sell. On June 15, 2015, the Dorrieses filed a motion for appointment of an attorney, pursuant to La. C.C.P. art. 2293, for service of a writ of fieri facias to X-Sell. The description of the properties to be seized utilized the newer property descriptions from the 2014 surveys and tracked the language of the January 2015 transfer deed. The properties were the tract containing the yellow house; the 50-foot lakefront tract; a 100-acre tract and a 120-acre tract, both in Claiborne Parish ; and mineral rights to a 40-acre tract in Claiborne Parish.

InOn July 15, 2015, X-Sell—represented by the same law firm as Earle—filed a petition of intervention captioned as a “Motion for Dissolution of Writ of Fieri Facias, for Injunction, and for Attorney’s Fees and Damages.” Earle was also a party to this pleading, which was filed on behalf of him and X-Sell by Graydon Kitchens. X-Sell asserted that it had obtained all of Earle’s interest in certain immovable property in Claiborne Parish under the doctrine of after-acquired title and that the judicial mortgage recorded on November 26, 2014, never attached to or encumbered the property. The sale of the property scheduled for August 5, 2015, was enjoined by the trial court, pending adjudication of X-Sell’s claim of ownership.

In their answer to the petition of intervention, the Dorrieses asserted that Earle had no interest in the immovable property at issue at the time he purported to sell it to X-Sell. Also, the property descriptions in the purported sale were incorrect and had to be corrected in February 2015. They maintained that their November 2014 judicial mortgage recorded against Earle attached to the property he acquired from the trust in January 2015 and continued to do so. In a reconventional demand, they asserted a revocatory action under La. C.C. art. 2036 and requested that the purported sale to X-Sell be annulled. The Dorrieses requested dissolution of the injunction, as well as attorney fees and costs.

A trial was finally held on November 5, 2015. Although the proceedings were supposed to be limited to issues susceptible to summary disposition, the trial court elected to hear all issues as a matter of judicial economy and courtesy to the parties who lived out-of-state—Earle in |inCalifornia and Ms. Schmidt, X-SeU’s managing broker, in Colorado. The parties acquiesced in this procedure and thus all issues were before the court. The parties stipulated that the value of Earle’s portion of the disputed property in Claiborne Parish was $66,406. Numerous documents and exhibits were admitted into evidence, including trust documents and amendments, deeds, and financial records.

Extensive evidence was taken on Earle’s finances, specifically his bank records, which will be discussed in detail infra. Additionally, Earle denied giving Ms. Schmidt money before or after executing the cash deed to her. However, he admitted that he made many large cash withdrawals in that time period. He explained the process by which he came up with the $25,000 sale price in the cash deed. Since he had once had a right of first refusal to buy the yellow house for $40,000, he came up with $50,000 “just off the top of my head” for all of the property he was selling her. Since it was undivided property, he then divided that price by half.

The testimony established that Earle and Ms. Schmidt, a real estate broker, were childhood friends. She admitted that she relied upon what Earle told her about the property; that she was unaware that he did not own it at the time of the sale; that she had neither a title opinion nor an appraisal done on the property; and that she thought the property sounded “very interesting for $25,000.00.” Ms. Schmidt testified that she would not have bought the property had she known Earle did not own it. When asked if |nEarIe was paying her legal fees in the current litigation, she replied that she did not know, but she had not been billed for any such fees. At the conclusion of the hearing, the matter was taken under advisement and the parties submitted post-trial briefs.

On February 4, 2016, the trial court issued detailed written reasons for judgment, and a judgment prepared by the trial court was signed that same day. The court found that the injunction it granted against the seizure and sale of the property until a decision was made about X-Sell’s ownership was not improper even though no bond was posted. It found that, under the after-acquired title doctrine, X-Sell acquired the property at issue. Because notice of the writ of fieri facias identified both Earle and X-Sell as parties to be notified, the writ obtained by the Dorries-es was not defective as to proper notification. The court also found that the Dorries-es acted in good faith in seeking the writ, so the writ request was not defective on the basis of bad faith.

As to the revocatoiy action filed by the Dorrieses, the trial court conducted an exhaustive analysis of the bank records. The court found that the financial evidence demonstrated that, at the time the deficiency judgment was granted on November 3, 2014, Earle was insolvent. Furthermore, his purported sale on November 4, 2014, to X-Sell for $25,000—which was $41,406 less than the property’s stipulated appraised value—increased his insolvency. The court specifically found that Earle’s testimony completely lacked credibility. In particular, the court noted that his testimony that he intended to repay his sister and brother-in-law when he had the money was contradicted by his bank records, which proved that he had the funds earlier in October 2014. Having found that the plaintiffs carried their burden of 112proof on the revocatory action, the court annulled the deed from Earle to X-Sell. It ordered that the entire value of the property should be returned to the Dorrieses, pursuant to La. C.C. art. 2043.

The trial court noted that all parties sought attorney fees, and that Earle and X-Sell also sought damages. As none of the parties presented any evidence on these issues, the trial court concluded that they had abandoned these claims.

Because the issue of X-Sell’s ownership of the property was fully adjudicated by the court’s decision to annul the transaction between Earle and X-Sell, the court found that the injunction previously issued on the writ of seizure and sale dissolved by its own terms. The court also held that “all other issues” raised by the parties were denied.

Since the trial court found in favor of Earle and X-Sell on the propriety of their injunction and in favor of the Dorrieses on the revocatory action, the court ordered the Dorrieses to pay one-half of court costs while Earle and X-Sell were to pay the other one-half.

For reasons that are unclear, the trial court did not specifically address whether the Dorrieses’ judgment recorded in the mortgage records on November 26, 2014, attached to the property eventually acquired by X-Sell. The court may have determined this was unnecessary since the sale was annulled by the successful revoca-tory action.

Both sides appealed and presented numerous arguments centering on the revo-catory action, the effect of the judicial mortgage, the injunction, attorney fees, and costs. Because the primary issue before us is the revocatory action, we will address that matter first.

|1SREV0CATQRY ACTION

Law

A revocatory action is one where an obligee seeks to annul an act of an obligor, or the result of a failure to act, that is made or effected after the right of the obligee arose and that causes or increases the obligor’s insolvency. La. C.C. art. 2036; Dortch v. Rollins, 50,170 (La.App. 2d Cir. 12/9/15), 181 So.3d 911. In order for an obligee to annul an act of the obligor, he must show: (1) an act (or failure to act) of the obligor that causes or increases the obligor’s insolvency; and (2) the act must occur after the obligee’s rights arose. Parish Nat. Bank v. Wilks, 2004-1439 (La.App. 1st Cir. 8/3/05), 923 So.2d 8. The existence of the debt and insolvency of the debtor are the two prerequisites to revocation of the transaction. Reading & Bates Const. Co. v. Baker Energy Res. Corp., 96-1276 (La.App. 3d Cir. 5/21/97), 698 So.2d 413, writ denied, 97-2548 (La. 1/16/98), 706 So.2d 976. An obligor is insolvent when the total of his liabilities exceeds the total of his fairly appraised assets. La. C.C. art. 2037. Additionally, the jurisprudence requires that the obligee must prove prejudice, injury, or damage to the obligee as a result of the act. Dortch v. Rollins, supra.

The test for determining prejudice or injury is factual, based on the value of the property and the ranking of the indebtedness. Central Business Forms, Inc. v. N-Sure Systems, Inc., 540 So.2d 1029 (La.App. 2nd Cir. 1989); Dortch v. Rollins, supra.

A revocatory action in Louisiana is granted only to a creditor prejudiced at the time by a transfer. Premier Bank, Nat. Ass’n v. Stout, 627 So.2d 188 (La.App. 3d Cir. 1993).

| uThe effect of the revocatory action is that the attacked transaction is annulled only insofar as annulment will benefit the complaining creditor, and the returned property is applied to the payment of that creditor. See La. C.C. art. 2043, comment (b).

Discussion

We note at the outset that Earle complains about the trial court’s unfavorable credibility determination against him. However, credibility is the province of the trial judge. Hibernia Nat. Bank in New Orleans v. Johnson, 438 So.2d 1338 (La.App. 4th Cir. 1983), writ dism., 441 So.2d 209 (La. 1983), and writ denied, 443 So.2d 581 (La. 1983). An appellate court may not set aside a finding of fact by a trial court in the absence of manifest error or unless it is clearly wrong. Further, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Hollier v. Brookshire Grocery Co., 45,551 (La.App. 2d Cir. 9/29/10), 48 So.3d 1129.

Our review of the record fully supports the trial court’s dim view of Earle’s credibility. Extensive evidence was, taken on Earle’s finances at the November 2015 hearing. His statements from a Louisiana bank were introduced into evidence, as were those from an account he opened at a California bank in October 2014. These records proved that, prior to the sale at issue here, Earle had substantial funds with which to pay his indebtedness to the Dorrieses, but the funds then disappeared under questionable circumstances.

The evidence established that Earle received checks for $82,986.69 and $4,000 for his third of the trust’s Argent account. He cashed the smaller check. After depositing the larger check into his Louisiana account on |1sOctober 7, 2014, Earle withdrew $25,000 two days later. Earle received a check for $66,667.67, dated October 24, 2014, when Randall exercised his right of first refusal to purchase their parents’ home. Earle deposited $58,666.67 of these funds into his Louisiana checking account on October 27, taking $8,000 as cash.

On October 27, 2014, four days before Ms. Schmidt signed the cash sale deed in Arizona, and prior to the rescheduled hearing on the motion for summary judgment, Earle had a balance of $101,336.62 in his Louisiana bank account. He then began bleeding out the account, first with withdrawals of $8,000 on October 28, $15,400 on October 30, and $75,000 on October 31, 2014. As a result of all of Earle’s various debits, the daily balance in the Louisiana account had fallen to $463.35 on the day that Ms. Schmidt signed the cash sale deed. Thus, combined with the $22,470.35 in his California bank account, Earle had a total balance of only $22,933.70 on the day that Ms. Schmidt signed the cash sale deed. On November 3, 2014, when the summary judgment was granted in open court against him, his bank statements showed daily balances of $373.15 for the Louisiana bank and $22,361.56 for the California bank, or a combined balance of $22,734.71. On November 4 and 5, 2014, when he executed the cash deed and the document was recorded, his two bank accounts had a combined balance of $22,392.21. From that point on to the judgment debtor exam in March 2015, when he. indicated that he had spent all of the $140,000 he received from the trust, the balances were generally in decline.

11fiWhen confronted .with his failure to pay his debt to the Dorrieses when he had ample assets to do so, Earle, initially claimed-that he did not pay because they were “still in negotiations and everything.” He then admitted that he didn’t pay it because “I just—I didn’t pay it.” He conceded that he had never paid anything on the judgment voluntarily. He said he did not recall making a statement that he “would spend everything” he had before he would ever pay the judgment.

At trial, Earle reiterated his testimony from the judgment debtor rule that all of the more than $140,000 he had received from the trust was gone, as well as his meager explanations for the disappearance of the funds, which included gambling. He insisted that all his money was gone, that ah he had was a monthly Social Security check for $1,458, and that his attorney fees were being funded by a friend in Arizona.

The evidence indicates that Earle was determined not to repay his debt to his sister and brother-in-law and that he took extreme measures to further this intent. While large deposits from disbursement of trust property were made into his bank account, equally large sums in cash were withdrawn and disappeared into a financial abyss without any of these funds ever being applied toward paying his substantial debt to the Dorrieses.

At the time of the sale to X-Sell, Earle had a combined balance of less than $23,000 in his bank accounts. Like the trial court, if we add the stipulated value of $66,406 for his share of the trust property, we conclude that Earle had less than $90,000 in identifiable assets. In view of the debt of more than $100,000 owed to the Dorrieses, we agree with the trial court that Earle was insolvent, that the sale to X-Sell increased his insolvency, and that the Dorrieses proved their revocatory action.

| ^Accordingly, we affirm the portion of the trial court judgment granting the revo-catory action in the Dorrieses’ favor.

PROPRIETY OF INJUNCTION/EFFECT OF JUDICIAL MORTGAGE

Althpugh we are affirming the lower court’s ruling on the revocatory action, we will also address an issue not answered below, as the parties are completely at odds on the resolution of this matter. Did the judicial mortgage recorded by the Dor-rieses on November 26,2014, attach to and encumber the property acquired by X-Sell? We believe this issue needs to be answered for two reasons. If our ruling on the revocatory action is somehow incorrect, the practical outcome of the case is the same if the judicial mortgage attached because the Dorrieses can still proceed with the sheriffs sale under our law. The issue also has bearing on the dissolution of the injunction.

At issue before us is the propriety of the injunction obtained by Earle and X-Sell. The Dorrieses sought to utilize a writ of fieri facias to seize and sell the immovable property described in that writ. Earle and X-Sell then obtained an injunction, contending that Earle had sold the property to X-Sell and that, by virtue of the after-acquired title doctrine, X-Sell was the owner of the property. Earle and X-Sell contend that the Dorrieses’ judicial mortgage did not ever attach to the property. The Dorrieses maintain otherwise. We resolve this matter in favor of the Dorrieses.

Judicial Mortgages

A judicial mortgage secures a judgment for the payment of money. La. C.C. art. 3299. A judicial mortgage is created by filing a judgment with the recorder of mortgages. La. C.C. art. 3300.

11sRecordation creates the mortgage as a right in favor of the creditor and establishes it over the property then owned by the debtor. If the debtor does not then own property, the mortgage exists as a right in favor of the creditor to a mortgage over the future property of his debtor, and is then imposed (established) over particular property when the debtor acquires it. Consequently, although such mortgages take their effect as to third persons from the time of recordation, they do not constitute a charge upon any particular property until it is acquired by the debtor. Comment, La. C.C. art. 3300.

Judicial and legal mortgages are general mortgages. They are established over property that the obligor owns when the mortgage is created and over future property of the obligor when he acquires it. La. C.C. art. 3303.

A legal mortgage, after judgment on the original obligation has been obtained, a judicial mortgage, or a conventional mortgage may be enforced without reference to any alienation or transfer of . the mortgaged property from the original debtor, and the creditor may cause the property to be seized and sold as though it were still owned by the original debtor and in his possession. La. C.C.P. art. 3741.

When property subject to a legal or a judicial mortgage is no longer owned by the original debtor, the seizing creditor shall cause notices of the seizure to be served by the sheriff upon both the original debtor and the present owner. La. C.C.P. art. 3742.

After-Acquired, Title Doctrine

The only person capable of conveying title to property is the owner. See La. C.C. art. 2452. However, when a vendor sells property which he 11fldoes not own and later acquires title, ownership immediately vests in the buyer. This jurisprudential concept is known as the doctrine of after-acquired title. Mayo v. Simon, 94-590 (La.App. 3d Cir. 11/2/94), 646 So.2d 973, It is well established in Louisiana. Lamson Petroleum Corp. v. Hallwood Petroleum Inc., 2000-695 (La.App. 3d Cir. 1/31/01), 824 So.2d 1194.

Notarial Act of Correction

As to the act of correction which was recorded in this case, La. R.S. 35:2.1 provides, in relevant part:

A. (1) A clerical error in a notarial act affecting movable or immovable property or any other rights, corporeal or incorporeal, may be corrected by an act of correction executed by any of the following:
(a) The person who was the notary or one of the notaries before whom the act was passed.
B. The act of correction executed in compliance with this Section shall be given retroactive effect to the date of recordation of the original act. However, the act of correction shall not prejudice the rights acquired by any third person before the act of correction is recorded where the third person reasonably relied on the original act. The act of correction shall not alter the true agreement and intent of the parties.

Discussion

At the outset, we address the issue of when the ownership of the immovable property remaining in the trust after the mother died vested in the Linder children. This is relevant to the question of whether, at the time of the purported sale in November 2014, Earle owned the property. We find that, under the circumstances presented by this case, he did not own it at that time.

, By the express terms of the trust documents and amendments, the trust was to terminate “as soon as is reasonable” after the death of the mother, |20who was the “second settlor to die.” The trust documents further contemplated a “winding up” of the trust’s affairs in order to make the final distribution, to the principal beneficiaries. The trust amendments established a right of first refusal which Randall was entitled to exercise, a decision he did not have to make until after his mother’s death. Due to the complexity of the virtually indecipherable property descriptions of the trust’s real estate holdings, further complicated by sell-offs over the years, the trustees obviously found it. necessary to commission surveys of .certain remaining tracts. According to the dates on the surveys, these were not completed until early December 2014. Consequently, we find that the trust, insofar as the immovable property was concerned, was not terminated until the execution of the January 2015 transfer deed, as obviously contemplated by the trust documents and the parties. Accordingly, Earle did not have record title or ownership at the time he executed the cash sale deed to X-Sell on November 4, 2014.

Although Earle did not own the property at the time of the sale, once the immovable property was transferred by the trustees to the Linder children in January 2015, X-Sell arguably became the owner of the property 12iat that time under the after-acquired title doctrine. However, the Dorrieses’ judicial mortgage had already attached to the property. This mortgage was recorded on November 26, 2014, and preceded the transfer deed of January 20, 2015. Consequently, the Dorrieses were entitled to pursue the property for collection of their debt under La. C.C.P. arts. 3741 and 3742.

Based upon the above, we conclude that the Dorrieses acted properly in seeking their writ of fieri facias against both Earle and X-Sell. The injunction which was issued then prevented the seizure and sale so that the trial court could consider and resolve the issues of ownership. In hindsight, the injunction was improperly issued because all of the arguments urged by Earle and X-Sell have now been rejected. However, at the time it was issued, these matters were unresolved. Like the trial court, we find that the injunction is now dissolved, and the Dorrieses can proceed with the seizure and sale.

ATTORNEY FEES AND COSTS

Both sides complain about the failure of the trial court to award any attorney fees and damages. For the reasons stated above, Earle and X-Sell certainly are not entitled to any attorney fees or damages. Like the trial court, we note that no evidence was put forth on the issues of attorney fees 122and damages. Accordingly, insofar as the Dorrieses are concerned, we are constrained to find a failure of proof on these issues.

As to the assessment of court costs, we find that the trial court erred only insofar as it assessed a portion against the Dor-rieses. While it was appropriate at the time to grant Earle and X-Sell’s injunction for the very limited purpose of pausing the proceedings to allow resolution of the ultimate issue, i.e., ownership of the disputed property and appropriateness of the legal process to satisfy their judicial mortgage, these issues have been determined in favor of the Dorrieses. Consequently, no court costs should have been assessed against them, and we conclude that the trial court abused its discretion in so ordering.

CONCLUSION

The trial court judgment is affirmed insofar as it granted judgment in favor of the plaintiffs, David and Linda Dorries, on the revocatory action. The injunction is now deemed dissolved, and the plaintiffs shall proceed with judicial sale of the property. We also hold that the Dorrieses’ judicial mortgage attached to the property at issue. We reverse the trial court judgment insofar as it assessed costs against the plaintiffs.

Costs of this appeal are assessed to the defendant, Edward Earle Linder, and the intervenor, X-Sell Properties, LLC.

AFFIRMED IN PART AND REVERSED IN PART.

      . The record indicates that this property was also known as 'The yellow house.”

      . Counsel for the Dorrieses brought a prepared judgment to the hearing. However, Paul Kitchens pointed out errors in the numbers. Consequently, counsel for the Dorrieses stated that he would revise the judgment and mail it to Paul Kitchens.

      .The surveys included descriptions for the tract containing ’ the parents’ house (which consisted of tract A-l and a portion of tract A-4 of the original act of donation); tract 1, which showed the property bought by the Dorrieses in 2012 and discussed in footnote 5; tract 2, where the yellow house was located and which included a portion of tract Ar5; and tract 3, the waterfront property, containing the portions of tracts A-5 and B-l fronting on the lake.

      . According to the accompanying survey documents, this sale included tract A-l and a portion of tract A-4 from the 2003 act of donation.

      . These were tracts B-l and B-2 of the original act-of donation. However, in the sale to the Dorrieses, the trust had retained a 50-foot section of B-l fronting on the shore of Lake Claiborne.

      . Because these properties were owned with other persons, Earle’s undivided interest in these two tracts were, respectively, only 13.333 percent and 6.667 percent.

      . Earle and X-Sell were represented at this hearing by Graydon Kitchens.

      .The disputed property was described as the lakefront parcel, the yellow house parcel, the 100-acre parcel, and the 120 acre-parcel. We note that the value of the Louisiana and Arkansas mineral rights sold to X-Sell was not included in the $66,406.

      . On cross-examination, she denied having an agreement with Earle to sell the property back to him. When asked if she would tell the court that she would never sell it to him, she responded, "Is that something I need to do?” She then stated that it was not in her plans right now, but never was a long time, and she didn't know if she would sell it back to him.

      . Between October 2014 and February 2015, Earle made sporadic deposits into the California bank account. The record does not satisfactorily establish the sources of all these funds, most of which then swiftly exited the account in cash withdrawals to Earle. On the date the transfer deed was recorded in January 2015, he had a combined balance of only $9,882.39 id his accounts.

      . Although not cited by any party, we note that since the termination of this trust, the legislature enacted La. R.S. 9:2029.1, which provides:
      If a trust owns immovable property at the time the trust terminates and the date of termination is not discernable on the face of the recorded trust agreement or extract of trust, the termination shall not cause the dispositive provisions of the trust to have their ultimate effect insofar as third persons are concerned until an act evidencing such termination has been recorded in the conveyance records of the clerk of court of the parish in which the immovable property is located.
      The statute became effective August. 1, 2015. The only reported decision addressing it is In re D'Anna, 548 B.R. 155 (Bankr. E.D. La. 2016). In that case, the bankruptcy court held that the statute was not retroactive.

      . We cannot help but note that even the "Notarial Act of Correction” stated that Earle was not the record owner when the deed to X-Sell was recorded, but became the record owner when the trustees transferred the properties.

      .The parties in this case appear to agree on this, and thus this is not really an issue before

      . At oral argument, counsel for Earle and X-Sell cited Bank of St. Charles v. Alloy & Steel Fabricators, Inc., 643 F.Supp. 206 (E.D. La. 1986), asserting that it supported their position. However, counsel for the Dorrieses persuasively countered that the case instead supported their position because the court favorably quoted Gallaugher v. Hebrew Congregation, 35 La.Ann. 829 (1883), which recognized that a judicial mortgage encumbered property the instant it was purchased.

      . We note that the “Notarial Act of Correction” attempts to cure all the title problems presented by this confusing chain of events retroactive to November 5, 2014, via the doctrines of after-acquired title, ratification, and acknowledgement. Although not specifically addressed by the parties, this document goes well beyond what is contemplated by La. R.S. 35:2.1, which is designed to address simple clerical errors. What occurred here was not a mere clerical error. In any event, La. R.S. 35:2.1(B) recognizes that acts of correction shall not prejudice the rights acquired by third parties before the act of correction is recorded.


source: Caselaw Access Project

author: PITMAN, J. CARAWAY, J.,

license: Public Domain

text:
    DELTA LAND & INVESTMENTS, LLC, Plaintiff-Appellee v. HUNTER ESTATES, INC., et al, Defendants-Appellants
    No. 51,069-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      GREGORY COOK, Counsel for Appellants
    COTTON, BOLTON, HOYCHICK & DOUGHTY, L.L.P., By: John Hoychick, Jr., Counsel for Intervenor/Appellee, John Hoychick, Jr.
    Before CARAWAY, PITMAN & STONE, JJ.
   PITMAN, J.

11Defendants Hunter Estates, Inc., and 26 other persons or “their unopened successions” appeal the award of $50,037.21 in expenses and attorney fees to Intervenor John Hoychick, who represented them in a suit for partition by licitation. For the following reasons, the judgment of the trial court awarding attorney fees is affirmed. Intervenor’s request for attorney fees for frivolous appeal under La. C.C.P. art. 2164 is denied.

FACTS

Intervenor was originally hired by Ed Hunter and Lucky White, on behalf of Hunter Estates, Inc., and 26 other persons or their successions, who all owned, in indivisión, 480 acres of land in Madison Parish, to represent them in matters of several unopened successions, to obtain judgments of possession and to handle other related matters as they arose.

Although Intervenor’s employment began for the purpose of opening successions and securing judgments of possession, a short time after he was hired, it came to his attention that there were third parties in Georgia who had been sold an interest in the land by some of the former owners in indivisión, and these third parties were asserting claims of ownership. In 2009, those third parties filed the underlying litigation of Delta Land & Investments, LLC v. Hunter Estates, Inc., et al, No. 09-90 on the docket of Madison Parish, for partition by licitation of the 480 acres at issue. With Defendants’ consent, Interve-nor’s attention was diverted from his original purpose of opening and closing the successions to defense of the Delta'Land & Investments litigation. During the time he represented Defendants, Intervenor filed many pleadings and memoranda, argued motions in court, conducted discovery and otherwise vigorously defended the lawsuit.

On January 3, 2013, Defendants allegedly hired attorney William Hallack to represent them and informed Intervenor of the change. Intervenor fully cooperated and turned over the suit file to Hallack, asking him when he could expect payment from his former clients. The record contains email communication from Intervenor to Hallack requesting that Defendants pay him the money owed for his representation. The record also contains an email from Hallack to Intervenor, the purpose of which was to confirm notes made during a telephone conversation between them that: 1) Defendants Hunter/Hodges/Givens acknowledge owing the fees and costs that he had billed; 2) the bulk of the funds to pay the fees and costs will come from funds on deposit in the registry of the court in connection with some pending expropriation suits; 3) in order to access the funds, Hallack had plenty of legal work to do, and 4) Hallack planned to send Inter-venor the motion and orders to withdraw and substitute counsel in the expropriation suits, the succession proceedings and the partition suit. Although Hallack took possession of the file materials, he never filed a motion to enroll as counsel. In July 2014, Ed Hunter and Lucky White contacted Intervenor and asked him to resume his role as their attorney.

Intervenor stated that, in June 2015, he received a telephone call from the trial judge who told him that attorney Gregory Cook had enrolled in April 2015 as counsel of record representing Defendants in the case. The telephone call from the trial judge was the first notice he had that other counsel had been secured.

| ^Intervenor filed this petition for intervention for attorney fees on November 12, 2015, along with an attached exhibit listing fees for services allegedly rendered from April 13, 2009, until September 28, 2015, plus any other fees and costs incurred in the filing and prosecution of the intervention. A hearing was held on February 18, 2016. Intervenor was the only witness to testify, which he did by narrative, stating that he was first employed by the Hunter family, including Ed Hunter and Hunter Estates, Inc., various successions, and Lucky White, who was involved with the Hunter and Hodges families. He stated that his initial retainer was for the purpose of opening approximately 17 successions so that property owned by the families in Madison Parish could be placed in a limited liability company (“LLC”). The Givens family also became part of the group he represented since they have some ownership interest in Hunter Estates, Inc. He attempted to introduce into evidence a letter dated September 22, 2008, from him to Ed Hunter, which “basically kind of spells out some of what would have to be done.” He contends this is a retainer letter. Defendants’ attorney objected, stating that the letter was based on Intervenor’s understanding and noted that it did not contain Ed Hunter’s signature. Despite this fact, Intervenor insisted that it was a letter of retainer and that, on page nine, a request was made for a payment of $10,000 to “start the process,” which he acknowledged he had received. Defendants’ attorney’s objections to the introduction of the letter were overruled.

Intervenor stated that, during the course of preparation to open the successions, he became aware that a Mr. Barr from Georgia had acquired some undivided interest in the Hunter property. Barr filed the underlying lawsuit to partition the property, which caused the delay of the successions 14until the partition matter was resolved. Intervenor claims that all of the fees and expenses for which he was seeking recovery were incurred as a result of the defense of the underlying suit by Mr. Barr.

When questioned by Defendants’ attorney if the Hunters knew he was representing them in the partition suit, Intervenor answered affirmatively, but stated there was no separate agreement, other than an oral request by Ed Hunter and Lucky White to represent them in the partition, and his compliance with that request. No separate letter of representation confirming the agreement was sent to the parties. Ed Hunter is now deceased and cannot confirm these facts.

Intervenor introduced his exhibit with the list of items billed and time spent totaling $50,037.26, after credits for some payments received. He testified that, during Hallack’s time as attorney, Hallack had confirmed to him that the Defendants acknowledged their debt to him. Defendants’ attorney objected to hearsay, but he produced an email as written proof of their telephone conversation wherein Hallack confirmed and acknowledged that the fees were owed. Defendants’ attorney objected to the admission of the email and Interve-nor’s business records as proof of retainer and admission of a debt.

Intervenor further testified that, after Hallack failed to enroll as counsel, Ed Hunter and Lucky White approached him in July ,2014, and asked him to resume his representation of them in the litigation. He stated that his representation of these clients was based on an hourly rate qf $200 per hour and that his associate, Ashley Morris, was compensated at a rate of $125 per hour. He also stated that, although his agreement with the family was not in writing, they consented to the agreement by paying the charges |Kfor a while. Over time, Ed Hunter had made check payments of $1,459, $8,897.56, $2,349.39 and $394.41, all of which were reflected in invoices detailed in his work records.

Defendants’ attorney asked for further proof of expenses, such as receipts from the Clerk of Court’s Office, bank statements and canceled checks, to substantiate the document asserting the amount due. Intervenor stated that documentation other than his work records would have to have been subpoenaed and that Defendants’ attorney had failed to issue one. He testified:

I am giving you my testimony. ... I am giving to you the invoices that have been produced by my office repeatedly since 2010, and your clients never objected not the first time. The only time I received any objection to any of this, sir, is when you became their attorney.

On cross-examination, Intervenor testified that the amounts due were primarily from the Hunter family since the Hodges-es always paid their debts and did not owe him anything other than their percentage of the Hunter Estate debt. Also during cross-examination, Defendants’ attorney asked him, “At any time during your representation did you attempt to acquire an ownership interest in the Hunter Estate?” He answered negatively. Then he was asked, “Was it your understanding that you might be able to take some ownership interest in the event they can’t pay these exorbitant legal fees?” He answered negatively again. He was also asked why none of the successions were ever closed and judgments of possession rendered, and he answered at least three times that, when the partition litigation began, the clients decided the property should be transferred from the estates into an LLC and that all of his time and energy was being spent on the partition suit rather than the successions.

| At the end of the hearing, the trial court commented, “I have to say, that Mr. Hoychick and his office has had a reputation for generations as being one of the top law firms in the State of Louisiana and that I have never known of any problem that he’s had with any ethics” and then rendered judgment in favor of Intervenor for $50,037.26. Defendants have filed a sus-pensive appeal. Intervenor answered the appeal, claiming he is entitled to attorney fees and expenses incurred during the appellate process.

DISCUSSION

Defendants filed this appeal seeking review of the award of attorney fees to In-tervenor. Their arguments are based on the fact that there is no written record of mutual agreement between the parties regarding the amount of fees to be charged at any time throughout the alleged representation, and there was no viable attempt to collect any outstanding fees until after the second attorney was hired and Interve-nor filed his suit. Defendant Hunter Estates, Inc., allegedly does not recall any written demand for payment being presented and claims no payments were made by any officers or heirs because the objectives of the representation, i.e., the obtaining of judgments of possession in the successions, were not met. Although this claim was made in Defendants’ brief, it should be noted that no Defendants testified at the hearing regarding the attorney-client relationship or their contract with Intervenor.

Defendants argue that, although Inter-venor maintains that the legal fees and charges were billed hourly, they cannot understand why he would continue to provide legal services if he was not being compensated. They contend that failure to collect attorney fees for seven years implicitly indicates that the matter was on a contingency fee basis.

| ./Defendants also argue that the trial court erred in accepting the letter from Intervenor to the Defendants as a retainer contract. They claim that the letter was unsigned by them and was without terms, conditions or an amount for services, yet the trial court found that it implicitly formed the basis of a contract for legal representation. They argue that the hourly fee structure allowed Intervenor to charge fees during the time that the firm’s services allegedly accrued throughout the litigation, and the litigation was minimal, irrespective of the outcome, i.e., a final judgment was never reached in either the successions or the partition suit.

Defendants further argue that the purported verbal contract ambiguously set forth an hourly fee without regard to the outcome of the matter and that such an ambiguity must be construed against the drafter. They also dispute the individual charges reflected on the bill and complain that, had Intervenor billed for actual services rendered in furtherance of the objective, the fee would be much less than the stated $50,000.

Defendants contend that the trial court erred in accepting Intervenor’s log or record of billable hours for purported legal services when the work had no substantive value related to resolving the legal issues or meeting the legal objective of opening and closing the successions. Specifically, they contest certain charges for communications between law office staff that is reflected in the exhibit presented as proof of the charges billed. They argue that corroborating evidence is and was available, but was not produced by Intervenor.

Defendants also argue that the trial court’s attorney fee award of over $50,000 is unreasonable in light of the fact that the fees were generated without a written retainer over the course of seven years without settlement |sor demand prior to withdrawal from the case. They contend that attorney fees are awarded only by statute or by contract and that absent in this situation is a stipulation by contract that these fees were recoverable. They argue that they did not expect to be billed for services purportedly rendered over a term of seven years for a mere possibility, speculation or unsupported work on a case that ends with no results and withdrawal from the case initiated by Intervenor.

Defendants further argue that the award of attorney fees in this situation violates Rule 1.5 of the Louisiana Rules of Professional Conduct, which states that attorneys “shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” Factors to be considered when reviewing these situations include the amount involved and the results obtained. In this case, they argue that Intervenor failed to obtain even one judgment of possession in the successions he was hired to resolve.

Defendants take umbrage at the fact that the trial court stated that Intervenor and his office had a good reputation in the State of Louisiana and that it had never known of any ethical problems. They claim that this statement by the trial court was speculative and prejudicial and reached beyond the facts and circumstances of the case, implying that, since the fact finder was not aware of any problems, there were no problems. They complain that the statement “offends notions of openness and impartiality.”

Intervenor argues that a trial court has much discretion in fixing an award of attorney fees and that its decision will not be modified on appeal without a finding of an abuse of discretion. The trial court is to determine the reasonable value of the services rendered and the value received by the | fldient. Unless the appellate court believes the fees are excessive and that a lesser amount is more reasonable, it does not have the discretion to alter an award of attorney fees. The burden of proof to show excessive fees falls on the client, who must demonstrate by a preponderance of the evidence that the fee is clearly excessive.

Intervenor claims that there was much evidence that a contract existed between the parties and that, through the email with Hallack, Defendants acknowledged their debt to him. He was the only person who testified at the hearing; Defendants were not present. Therefore, his testimony went unchallenged.

Intervenor further argues that, while Defendants are insisting that the attorney fees are not owed because the objective of his original employment, the judgments of possession in the successions, was not achieved, they are ignoring the fact that they were involved in separate litigation, i.e., partition by licitation of 480 acres of immovable property, that had nothing to do with the successions. He points out that there is not one succession in the record. His list of services rendered, including filings made in furtherance of the partition litigation, notes that there were four different hearings in Tallulah, Louisiana, and 29 different pleadings filed by him on behalf of Hunter Estates, Inc., all of which provides proof that the fees were earned.

Intervenor contends that Defendants’ last assignment of error that the remark made by the trial court casts aspersion on the court and questions its integrity is “outlandish.”

Intervenor finally argues that this is a frivolous appeal and that he is entitled to penalties and damages, including attorney fees.

ImThe trial court is vested with great discretion in arriving at an award of attorney fees. Walker, Tooke & Lyons, L.L.P. v. Sapp, 37,966 (La.App. 2d Cir. 12/10/03), 862 So.2d 414, writ not considered, 04-0088 (La. 3/19/04), 869 So.2d 836. The exercise of this discretion will not be reversed on appeal without a showing of abuse of discretion. Id.

Fowler v. Jordan, 430 So.2d 711 (La.App. 2d Cir. 1983), involved both a written agreement of retainer between the attorney and the clients, who were brothers, and several oral contracts pertaining to other issues which followed and resulted in three separate suits being filed. After much litigation and negotiation, the attorney obtained a favorable settlement offer on behalf of his clients, but they would not accept the settlement and, instead, released him as their attorney and refused to pay him when he billed them for his time. The attorney filed suit to recover compensation for the time he spent prosecuting and defending the three suits for the clients. A jury trial was held and the attorney claimed he had rendered 1,090 hours of legal services for the clients under the three employment contracts. All but one of the defendants were dismissed from the suit since the one remaining had acted as group spokesman. At the close of four days of testimony on the extent and adeptness of the attorney’s efforts on behalf of the client, the jury rendered a verdict in the attorney’s favor, finding that he was entitled to $53,200 in attorney fees and $1,600 in expenses. Defendant appealed.

The Fowler court stated that an employment contract between an attorney and his client is a mandate, and a client may revoke that mandate and discharge his attorney at will, such revocation terminating and dissolving the contract. Unless discharged for cause, an attorney who has been dismissed by his client is entitled to be reimbursed for his services on a Inquantum meruit basis, regardless of whether the attorney was initially retained under a contingency, set fee or hourly retainer. Fowler, supra, citing Chiasson v. Law Firm of Dragon & Kellner, 335 So.2d 87 (La.App. 3d Cir. 1976); Krebs v. Bailey’s Equip. Rentals, Inc., 328 So.2d 775 (La.App. 1st Cir. 1976); Guilbeau v. Fireman’s Fund Ins. Co., 293 So.2d 216 (La.App. 3d Cir. 1974).

The attorney who has been discharged and is seeking to recover on a quantum meruit basis assumes the burden of proving the value of his services and the extent of his expenses. Recovery is limited to the actual value of the service rendered. Fowler, supra; Chiasson, supra. Thus, the discharged attorney may not collect an excessive stipend and has no right to fees not actually earned. It is expressly within the province of the appellate courts of this state, moreover, to scrutinize and regulate attorney-client relations and prevent the imposition of unjust fees. La. Const. Art. 5, § 5(B) (1974); Singer Hutner Levine See-man & Stuart v. Louisiana State Bar Ass’n, 378 So.2d 423 (La. 1979). Fowler, supra.

In Johnson v. Ins. Co. of N. Am., 27,847 (La.App. 2d Cir. 1/24/96), 666 So.2d 1286, this court stated that the considerations for determining a quantum meruit fee are as follows: the time and labor required in prosecuting or defending the claim; the difficulty and novelty of the questions involved; the degree to which the case precluded other employment; the fees customarily charged in the locality for similar services; the amount of money involved and the results obtained; the time constraints operative; and the experience, reputation and ability of the lawyer. Pharis & Pharis v. Rayner, 406 So.2d 723 (La.App. 3d Cir. 1981); State Bar Articles of Incorporation, Art. 16; Rules of Prof. Conduct, 112Rule 1.5. A quantum meruit analysis properly evaluates not merely the hours expended, but the results and benefits obtained. Smith v. Westside Transit Lines, Inc., 313 So.2d 371 (La.App. 4th Cir. 1975), writ denied, 318 So.2d 43 (La. 1975).

In Cupit v. Hernandez, 45,670 (La.App. 2d Cir. 9/29/10), 48 So.3d 1114, writ denied, 10-2466 (La. 12/17/10), 51 So.3d 7, this court stated that a reasonable attorney fee is determined by the facts of an individual case. The trial court has discretion to determine the amount of an attorney fee based upon the court’s own knowledge, the evidence, and the court’s observation of the case and the record. Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App. 2d Cir. 12/08/99), 748 So.2d 594. A court does not have to hear evidence concerning time spent or hourly rates charged in order to make an award since the record will reflect much of the services rendered. Cupit, supra.

The oral agreement

We first address the issue of whether the contract of employment was required to be in writing to be effective between the parties. It is obvious that Intervenor and Defendants confected an agreement between themselves whereby Intervenor was to perform legal work for them, particularly as to the need to open several successions. However, it is equally obvious, through Intervenor’s testimony, that other matters concerning all of these landowners arose, and he was asked to shift his focus from the successions to the litigation for partition by licitation. Inter-venor testified several times to this oral agreement to focus on the partition litigation instead of the successions. He also testified that he was paid his original requested retainer of $10,000, that he submitted bills and that some of them were paid. WeJjjfind that the trial court did not err in determining that a contract of retention for legal counsel had been entered into between Intervenor and Defendants. This assignment of error is, therefore, without merit.

The failure to successfully close the successions

Defendants complained that the trial court erred in awarding attorney fees when the attorney did not reach the result for which he was hired, i.e., the successions were not completed, the work he performed was not in furtherance of the objective for which he was hired and the amount awarded offended Rule 1.5 of the La. Rules of Prof. Conduct. These arguments are not well founded.

Intervenor’s testimony at trial that the emphasis of his employment shifted from the opening and completion of the successions to the defense of the suit for partition by licitation, was accepted by the trial court and was not challenged by any evidence presented by Defendants. The record of the underlying litigation shows that Intervenor attended four hearings and filed 29 pleadings in furtherance of the litigation. Intervenor is entitled to be paid for the work he performed. Therefore, this assignment of error is without merit.

The trial court’s acceptance of the proof offered,

Defendants claim that the trial court erred in accepting Intervenor’s “self-made records,” subject to his personal account and that of his staff, which were unreliable and unsubstantiated. They claim that no valid corroborating proof or independent bank records of fees and costs incurred in the matter were presented at trial.

As in Cwpit, swpra, a reasonable attorney fee is determined by the facts of an individual case and the trial court has discretion to determine that |Mamount based upon the court’s own knowledge, the evidence and the court’s observation of the case and the record. The court does not have to hear evidence concerning time spent or hourly rates charged in order to make an award since the record will reflect much of the services rendered.

Intervenor was the only person who presented any evidence in regard to the amount of work performed, time spent and charges billed in this litigation. He provided the court with the email communication with Hallack, who represented Defendants for a period of time, which acknowledged that Defendants agreed that the fees were owed. It was not until Defendants’ current attorney assumed representation in the case that any question arose regarding payment to Intervenor.

As is evidenced by the record, Interve-nor tenaciously and with diligence advocated his clients’ position in the partition litigation and spent a great deal of time in the endeavor. He is, therefore, entitled under a quantum meruit analysis to a fee commensurate with the diligence, skill, time and effort he has invested in the case. With no evidence to contradict his assertion of the amount due to him, the trial court’s decision to award $50,037.21 cannot be said to be an abuse of discretion. For those reasons, this assignment of error is without merit.

The alleged prejudicial statement by the trial court

This assignment of error is without merit and warrants no discussion.

Intervenor’s request for attorney fees for frivolous appeal

In his answer to this appeal, Intervenor claims the appeal was frivolous and filed only for delay. As such, he requests attorney fees and expenses for a frivolous appeal in the amount, at a minimum, of $2,500.

| ifiLa. C.C.P. art. 2164 concerns the scope of an appeal and the action to be taken and states that the appellate court shall render any judgment which is just, legal and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

La. C.C.P. art. 2164 grants the appellate court the authority to address the issue of frivolous appeal from the proceedings conducted before it. The award of damages and attorney fees for frivolous appeal, like sanctions at the trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party or those that have no reasonable basis in fact or law. Nesbitt v. Nesbitt, 46, 514 (La. App. 2d Cir. 9/21/11), 79 So.3d 347, writ denied, 11-2301 (La. 12/2/11), 76 So.3d 1178.

Although an appeal or answer to the appeal is required for appellate review and modification of the trial court’s award of damages, the issue of frivolous appeal first arises at the appellate court level and, therefore, may be adjudicated and remedied by this court. The jurisprudence has also determined that, when an issue of attorney fees is present in the case, it is within the appellate court’s discretion to award or increase attorney fees for the expense of the appeal regardless of whether the appellee answered the appeal. Factors considered in determining the amount of attorney fees include the skill exercised by the attorney and the time and work required on appeal. Id.

La. C.C.P. art. 2164 is penal in nature and is to be strictly construed. Appeals are always favored and, unless the appeal is unquestionably |1Rfrivolous, damages will not be allowed. Damages for frivolous appeal are only allowed when it is obvious that the appeal was taken solely for delay, that the appeal fails to raise a serious legal question or that counsel is not sincere in the view of the law he advocates, even though the court is of the opinion that such view is not meritorious. Cox v. O’Brien, 49,278 (La.App. 2d Cir. 8/13/14), 147 So.3d 809, writ denied, 14-1907 (La. 11/21/14), 160 So.3d 972.

After a review of the record, we do not consider Defendants’ appeal of the award of attorney fees to be frivolous or solely for purposes of delay. Therefore, we find that Intervenor’s request for attorney fees under La. C.C.P. art. 2164 is not warranted and so deny the relief sought.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Intervenor John Hoychick and against Defendants Hunter Estates, Inc., et al, awarding $50,037.27 in attorney fees, is affirmed. Intervenor’s request for attorney fees pursuant to La. C.C.P. art. 2164 is denied. Costs of the appeal are assessed to Defendants, Hunter Estates, Inc., et al.

AFFIRMED; REQUEST FOR ATTORNEY FEES FOR FRIVOLOUS APPEAL DENIED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

h.I respectfully dissent.

The judgment at issue was rendered in an in rem partition action wherein numerous unopened successions are identified as defendants. The judgment in favor of ap-pellee/intervenor now reads as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment against HUNTER ESTATE, INC., CHRISTELLA C. HUNTER or her unopened succession; SAMUEL GLEN HUNTER or his unopened succession; SAMUEL HUNTER, JR. or his unopened succession; ESSIE L. HUNTER GARRETT or her unopened succession; ALBERT JUDGE HUNTER or his unopened succession; SULLIVAN HUNTER or his unopened succession; JIMMY LEE HUNTER GLOVER or his unopened succession; BETTY GRACE HUNTER PIERCE or her unopened succession; ROSCO S. BARNES; BERNICE B. ROLLINS or her unopened succession; FRANK RANDLE; THE SUCCESSION OF EVELYN J. MCFADDEN; ESTER RUTH KYLE or her unopened succession; ROSIE LEE DOVERS WILSON or her unopened succession; The unopened succession of WILLIE B. FOSTER; IREALOUS HODGE; HAZEL HODGE; DEBRA HODGE; ELLIS HODGE or his unopened succession; ADA HODGE or her unopened succession; IREALOUS JAMES HUNTER; The unopened succession of OSCAR HUNTER; BEATRICE HUNTER WHITE or her unopened succession; EDWARD HUNTER, III; DOROTHY L. BEST or her unopened succession; RUTHIE L. HUNTER or her unopened succession; and JAMES C. HUNTER, JR. or his unopened succession herein and in favor of the Interve-nor, JOHN HOYCHICK, JR. for expenses and attorney fees rendered through the date hereof in the total amount of $50,037.26 and for all costs and legal interest from date of judicial demand.

It is clear from the record that many unopened successions and unknown heirs of the decedents for those unopened successions are allegedly named in the suit. Initially, upon the filing of the partition by Delta Land and Investments, LLC, an attorney was first appointed as a “curator” for unopened successions. Yet, Appellee’s intervention was asserted against the unopened successions for a personal judgment. The above-quoted judgment purports to be a personal judgment against unopened successions. The attorney purportedly now representing the unopened ^successions enrolled upon the assertion that he “has been retained by Defendants, Hunter Estates, Inc., et al,” and many of those defendants, now the appellants, are unopened successions. The person allegedly negotiating the attorney’s fee contract, Ed Hunter, III, is apparently now deceased. Yet, his succession was not named as a defendant prior to the trial of this matter.

Apart from the general rule that suits against a decedent shall be brought against the succession representative (La. C.C.P. art. 734), La. C.C.P. art. 5091(A) provides the right to proceed against an unopened succession in an in rem proceeding involving his property. Cf. Lewla, LLC v. The Unopened Succession of Willie Smith, 50,315 (La.App. 2d Cir. 1/27/16), 187 So.3d 10 (involving a partition action naming as defendants unopened successions). The present partition action involves the property of many decedents with unopened successions and out-of-state persons and presumed heirs. There is no apparent personal jurisdiction for a contract claim over out-of-state and unknown parties. I find therefore that the above-quoted decree for a money judgment against unopened successions in this in rem property partition involves a no right of action which may be noticed on appeal. La. C.C.P. art. 927(B). As to the defendant, Hunter Estates, Inc., the alleged oral contract of mandate involving the attorney and Ed Hunter has not been sufficiently shown to be the binding obligation of the corporation.

      . Defendants are as follows: Hunter Estates, Inc.; Christella Hunter; Ed Hunter, III; the succession of Evelyn J. McFadden; and the individual unopened successions of Samuel Hunter, Jr., Albert Judge Hunter, Roscoe S. Barnes, Ester Ruth Kyle, Rosie Lee Dovers Wilson, Clara Givens, Willie B. Foster, Irea-lous Hodge, Hazel Hodge, Ada Hodge, Oscar Hunter, Beatrice Hunter White and James C. Hunter, Jr.


author: DREW J.

text:
    Bobbie CLAY, Plaintiff-Appellant v. Jefferia WASHINGTON and Quanolshay Scott, Defendant-Appellee
    No. 51,065-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      GEORGE W. BRITTON, III, Counsel for Appellant
    JEFFERIA KEYS WASHINGTON, QUANOLSHAY SCOTT, In Proper Person, Appellees
    Before WILLIAMS, DREW and PITMAN, JJ.
   DREW J.

liOn November 19, 2015, Bobby Clay was backing her Jeep Liberty from her driveway, when she collided with a 2003 Mercury Grand Marquis which was owned by Jefferia Washington, but was being driven on the roadway by her goddaughter, “Shay” Scott.

Clay took responsibility for the wreck, wanting to avoid making a claim against her insurance company. She told Scott that she would pay the damages she caused to the Mercury, which were confined to an area around the rear passenger-side door. Scott agreed and Clay proceeded to church. The three ladies gathered together that evening and reconfirmed the deal.

The next day, a repair estimate was rendered in the amount of $2,061.32, which seemed extremely high to Clay. Nonetheless, within three days of the accident, Clay had paid the repair estimate in full, to end the controversy.

Clay later filed a lawsuit against Washington and Scott, alleging “false estimate charges and fraud.” In turn, Washington filed a counterclaim, alleging that Clay had defamed, harassed and stalked her. A trial was held in Monroe City Court, with all three parties appearing without counsel. The trial court dismissed all claims, expressing credibility problem with Clay. Only Clay appeals. We affirm.

Clay testified that when she went to the repair shop to pay for the damage to Washington’s vehicle, she had misgivings that she was being |2charged for preexisting damages. Nonetheless, she paid the entire amount, because she was frustrated and “wanted to get it over with.”

The repair estimate was made by Joseph Sanchez, a certified insurance appraiser. The estimate appears to include some preexisting damage.

At this point, the inquiry becomes confusing, because Jack Whit, the actual repairman, testified that he did not charge any fee for those older damages.

There is nothing in the record to indicate that Washington or Scott misrepresented or suppressed the truth with the intention either to obtain an unjust advantage or to cause a loss or inconvenience to Clay. Nor does this record support a finding that Washington and/or Scott obtained a fraudulent estimate. This record supports a clear finding:

(1) Clay failed to establish fraud;
(2) no false estimate was secured; and
(3) no one was defamed.

When Clay began questioning the amount of damages on the estimate, Scott called Washington and suggested that they deal with Clay’s insurer instead. At this point, Clay became frustrated and paid the bill in full.

Clay later brought a photo of Washington’s car to Sanchez so he could offer an estimate to repair what Clay contended were the only damages actually caused by her. He estimated that it would cost $120.45 to clean black marks on the Grand Marquis.

Scott admitted that the Mercury had some preexisting damage at the bottom of the rear passenger door, but maintained that all other damage was caused by Clay.

IsSanchez explained that he included repairs to the door when he gave the first estimate. The entire door was repaired by Whit, who testified that he told Scott’s boyfriend that he repaired the non-wreck-related bottom portion of the door for free, allegedly a savings of $375.

It is possible that Clay may have overpaid, but she did so voluntarily, in an effort to keep the police and her insurance company out of the case. Clay acquiesced in the payment, and there was no fraud. We find no manifest error in the trial court’s dismissal of all claims.

Only Clay appealed, now represented by counsel, arguing:

• fraud was committed when the first estimate was obtained without informing Sanchez that Clay was only going to pay for the damages caused in the accident;
• alternatively, Clay’s consent to pay $2,061.32 was vitiated by error in the calculation of the repair expense because none of the parties adequately communicated to Sanchez or Whit about what portion of the Mercury was to be repaired;
• the parties were under the false belief that Sanchez’s first estimate included only the damages caused by Clay, meaning there was no meeting of the minds;
• the doctrine of unjust enrichment should have provided Clay some relief from the trial court;
• no compromise was ever reached between the parties; and
It* neither defendant asserted the affirmative defense that the obligation has been extinguished.

This trial record does not support these arguments.

ANALYSIS

Fraud is defined as a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art. 1953; Benton v. Clay, 48,245 (La.App. 2nd Cir. 8/7/13), 123 So.3d 212; Hibernia Nat’l Bank v. Antonini, 37,836 (La.App. 2nd Cir. 12/10/03), 862 So.2d 331. Fraud must be proven by a preponderance of the evidence and may be established by circumstantial evidence. La. C.C. art. 1957; Benton, supra. Intent to defraud and loss or damage are two essential elements to constitute legal fraud. Benton, supra. The trial court’s findings with respect to a claim of fraud are subject to the manifest error standard of review. Benton, supra. We find that there is no manifest error here. The accident should have been reported to the police and to the insurance companies. If Clay overpaid, she did it voluntarily to avoid police and insurance involvement. She paid, even after learning of the possibility of extraneous repairs being assessed against her, thus adverting to the consequences for which she bargained in such a heated rush. The excellent points of law argued by Clay’s appellate counsel are not supported by the facts in this trial record. On this record, the trial court was not clearly wrong. We affirm.

DECREE

At the cost of plaintiff, the ruling of the trial court is AFFIRMED.

      . We note the difficulty of a trial court competently handling litigation among several unrepresented parties, particularly when there are hard feelings between the litigants. We appreciate tire fairness and patience of the trial court in this lawsuit.

      . The trial court initially noted that defendants would have to repay $375 for the lower door repairs to Clay. Because Whit said he did not charge to repair the lower dents, however, the trial court felt it could not order the repayment.

      . This record is hard to review. It contains not one photo of the two vehicles in question. There are paragraphs of witnesses testifying about damages "from here to here” without the reader knowing to what the witnesses are pointing.

      . Required to prove unjust enrichment are: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification or cause for both; and (5) no other remedy at law is available to the one who is impoverished. See La. C. C, art. 2298, et. seq. While Clay argues that these facts meet all requirements, the trial record does not clearly reflect any unjust enrichment, so no further analysis is needed.


author: SAVOIE, Judge. AMY, J.,

text:
    Darline BROUSSARD v. DILLARD DEPARTMENT STORES, INC., et al.
    16-134
    Court of Appeal of Louisiana, Third Circuit.
    February 15, 2017

      Azelie Ziegler Shelby, Sarah K. Lunn, Airzola W. Cleaves, Shelby Law Firm, 3070 Teddy Drive, Baton Rouge, LA 70809, (225) 223-6961, COUNSEL FOR DEFENDANTS: Dillard Department Stores, Inc., Gallagher Bassett
    C. Ray Murray, Robert M. Waterwall, Amber E. Murry, Attorneys at Law, 2000 W. Congress Street, Lafayette, LA 70506, (337) 234-5500, COUNSEL FOR PLAINTIFF/RELATOR: Darline Broussard
    Court composed of John D. Saunders, Marc T. Amy, D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, Judges.

       The Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   SAVOIE, Judge.

_|jln this writ application, Relator Dar-line Broussard seeks review of the workers’ compensation court’s ruling denying her motion to compel Defendants Dillard’s Department Store, Inc. and Gallagher Bas-sett Services, Inc. to retain a claims adjuster in Louisiana. For the foregoing reasons, Relator’s writ is granted and made peremptory. The case is remanded to the workers’ compensation court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This case involves a workers’ compensation action which Relator filed against her employer, Dillard’s Department Store, Inc. (Dillard’s), and Gallagher Bassett Services, Inc. (Gallagher Bassett). Dillard’s is a self-insured employer, and its workers’ compensation claims are handled by a third party administrator, Gallagher Bassett. Relator alleges that while restocking clothing at the Dillard’s store in Lafayette, Louisiana, on April 8, 2014, she slipped and fell in vomit on the floor of the store. Relator further alleges that, as a result of the accident, Relator sustained injuries to her back. On August 20, 2014, Relator’s treating physician, Dr. John Sledge, took her completely off work. Thereafter, Relator began receiving temporary total disability (TTD) benefits.

On June 22, 2015, counsel for Dillard’s sent Relator’s attorney a letter, advising that, because Dr. Foster (the employer’s choice of physician) had opined that Relator was capable of sedentary work, Dillard’s was offering Relator a part-time sedentary position. However, Relator’s attorney notified the employer’s attorney that Relator’s treating physician, Dr. Sledge, had not released Relator to return to work in any capacity. Subsequently, on July 2, 2015, Dillard’s sent Relator and her attorney a Form 1002, Notice of Payment Modification, 12Suspension, Termination or Controversion of Compensation or Medical Benefits, whereby Dillard’s indicated its intention to deny Relator’s claim for TTD benefits and converted her TTD benefits to lesser supplemental earnings benefits. On that same day, Relator’s attorney, in accordance with La.R.S. 23:1201.1(F)(1), sent a letter of amicable demand to Dillard’s requesting a reinstatement of Relator’s workers’ compensation benefits. On July 9, 2015, Dillard’s terminated Relator’s TTD wage benefits and reduced them to significantly lower supplemental earnings benefits. Thereafter, on August 14, 2015, Relator filed the instant lawsuit, seeking, in addition to her workers’ compensation benefits, penalties and attorney’s fees for improper termination of her benefits.

On September 3, 2015, Dillard’s filed an answer, general denial, and request for a preliminary determination hearing pursuant to La.R.S. 23:1201.1(H). Relator filed a motion to strike Dillard’s’ request for a preliminary determination hearing. In her motion, Relator argues that Plaintiff is not entitled to a preliminary determination hearing and is not entitled to the exemption from penalties and attorney’s fees which is afforded to those employers who are entitled to a preliminary determination hearing. See La.R.S. 23:1201.1(I)(1). As is permitted by La.R.S. 23:1201.1(I)(2), Relator sought to have the workers’ compensation court conduct a rule to show cause hearing to resolve the dispute regarding Dillard’s’ entitlement to a preliminary determination hearing. Following a rule to show cause hearing on December 21, 2015, the workers’ compensation court denied Relator’s motion to strike and found that Dillard’s is entitled to a preliminary determination hearing. Relator seeks review of that ruling.

Meanwhile, on December 18, 2015, Relator also filed a motion to compel Defendants (Dillard’s and Gallagher Bassett) to retain a claims adjuster in the State |3of Louisiana pursuant to La.R.S. 23:1161.1. Gallagher Bassett, the third party administrator that is handing Relator’s claim for workers’ compensation benefits, has an office in Nashville, Tennessee. Relator’s claim has been assigned to Anne Mayo, who is a senior claims adjuster. Ms. Mayo works in Gallagher Bassett’s Tennessee office, and she is a licensed claims adjuster in Mississippi and Georgia, but not in Louisiana. A hearing on the matter was held on January 15, 2016. On February 5, 2016, the workers’ compensation court signed a judgment denying Relator’s motion to compel Defendants retention of a Louisiana adjuster. The workers’ compensation court concluded that it does not have subject matter jurisdiction to determine the issue of whether an employer or insurer has complied with La.R.S. 23:1161.1 because such issues are regulated by the Louisiana Commissioner of Insurance. Relator also seeks review of the ruling which denies her motion to compel.

Relator has filed two separate writ applications with this court. Our review of the workers’ compensation court’s ruling which denied Relator’s motion to strike Dillard’s’ request for a preliminary determination hearing and for protection from a claim for penalties and attorney’s fees is discussed in the companion case, Darline Broussard v. Dillard Department Stores, Inc., et al., 16-99. Our review of the workers’ compensation court’s ruling which denied Relator’s motion to compel Defendants to retain a claims adjuster in Louisiana is discussed below.

DISCUSSION OF THE MERITS

“The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La. Code Civ.P. art. 2083, comment (b), [/‘Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.” (Citation omitted.)

Relator asserts that the workers’ compensation court erred when it denied her motion to compel Defendants to appoint a claims adjuster in the State of Louisiana. Relator notes that La.R.S. 23:1161.1, provides as follows:

A. Any insurer, authorized or unauthorized, domestic, foreign, or alien, who issues a policy for workers’ compensation in this state shall either establish and maintain a claims office within the state or retain a licensed claims adjuster.
B. The claims office or the licensed claims adjuster shall maintain files on workers’ compensation claims submitted to that insurer, and the personnel of that office or the licensed claims adjuster, if retained, shall be authorized by the insurer to issue checks and settle claims, and seek contraversion on behalf of the insurer concerning workers’ compensation claims made to that office or to the licensed claims adjuster.
C. The insurer, or if applicable the surplus line broker who accepted and placed the policy, shall notify the commissioner of insurance and the office of workers’ compensation of the address of such claims office or the address of the licensed claims adjuster retained by it.
D. Waiver requests from the provisions of this Section shall be submitted in writing by the insurer, or if applicable by the surplus line broker who placed the policy, to the commissioner of insurance and shall not be considered unless the insurer can demonstrate that it has exercised claims management and filing practices which evidence proper compliance with applicable laws and regulations. Proper compliance will be measured by the commissioner through continued monitoring of the timeliness of reporting by the insurer of written complaints regarding noncompliance with all aspects of applicable laws and regulations. No insurer will be approved for waiver from the provisions of this Section unless the insurer has filed timely the documentation required by the commissioner and the office of workers’ compensation at least fifty percent of the time during the year preceding the waiver request, and has also made timely first payments to claimants in cases where benefits are not contra-verted at least seventy-five percent of the time during the year preceding the waiver request. Waivers granted by the commissioner shall remain in effect until such time as the insurer’s measured performance record falls below that described above. Each year after such waiver has been granted, on or about the anniversary date of such waiver, the | ^commissioner shall evaluate the performance record of each such insurer to determine if the waiver shall be continued.

Relator points out that, when interpreting La.R.S. 23:1161.1, the Louisiana Fifth Circuit Court of Appeal has held as follows:

We find that reading this statute in its entirety in pari materia with other statutes found in Title 22 (the Insurance Code), such as LSA-R.S. 22:337, provides a proper basis for the trial court’s conclusion that LSA-R.S. 23:1161.1 requires the relator-insurer to either establish and maintain a claims office within the state of Louisiana or retain a Louisiana licensed claims adjuster. Accordingly, we find no abuse of discretion in the trial court’s ruling.
We also find that the trial court had jurisdiction to consider plaintiffs motion. Plaintiffs motion sought enforcement of LSA-R.S. 23:1161.1, and therefore was a claim or dispute for application of the Workers’ Compensation Act and the special remedies therein. Plaintiffs motion did not seek a ruling imposing the statutory penalties on the relator-insurer found in the Insurance Code (such as those found in LSA-R.S. 22:337, .involving the refusal, suspension, or revocation of the relator-insurer’s certificate of authority) for its non-compliance with LSA-R.S. 23:1161.1.

Duarte-Ortega v. Disaster Recovery Services, L.L.C., 12-883 (La.App. 5 Cir. 12/27/12), 118 So.3d 1126, 1126, writ denied, 13-0244 (La. 3/08/13), 109 So.3d 365 (citation omitted).

Relator takes the position that the fifth circuit correctly found that, pursuant to La.R.S. 23:1161.1(A), if a workers’ compensation insurer opts not to maintain a claims office in Louisiana, then the insurer must retain a licensed Louisiana claims adjuster. Relator notes, that pursuant to La.R.S. 22:337(A)(17), the commissioner of insurance may suspend or revoke the certificate of authority for a foreign insurance company that does not have a claims office in Louisiana or that does not retain the services of an independent claims adjuster domiciled in Louisiana. She argues that, in denying her motion to compel, the workers’ compensation court found that it does not have subject matter jurisdiction over the issue of requiring an | (¡insurer to have a Louisiana claims adjuster because that issue is under the authority of the commissioner of insurance. However, Relator asserts that the workers’ compensation court would not be infringing on the insurance commissioner’s authority, under La.R.S. 22:337, to suspend or revoke a foreign insurer’s certificate of authority. Rather, Relator maintains that the workers’ compensation court would simply be requiring a workers’ compensation insurer doing business in this state to comply with a law that requires the insurer to use a Louisiana adjuster. She argues that the original exclusive jurisdiction granted to workers’ compensation judges under La.R.S. 23:1310.3(F) for the handling of workers’ compensation disputes encompasses the authority to issue discovery orders and enforce specific statutory provisions under the Louisiana Workers’ Compensation Act, La.R.S. 23:1021, et seq.

Relator complains that Defendants’ failure to retain an adjuster in Louisiana has interfered with her trial preparation efforts. In that regard, Relator contends that she cannot subpoena Defendants’ out-of-state claims adjuster to testify live at trial. According to Relator, an injured worker should not be required to spend thousands of dollars to travel to another state to depose an adjuster in preparation for trial.

It is the Defendants’ contention that Relator is incorrect in her assertion that the purpose of La.R.S. 23:1161.1 is to have an adjuster be in Louisiana so that Louisiana residents can have subpoena power over them. Defendants assert that, if that were the intent of the statute, the statute would not have included La.R.S. 23:1161.1(D), which provides that the requirements set forth in La.R.S. 23:1161.1(A) may be waived. Further, Defendants maintain that, while they have objected to Relator’s attempt to conduct discovery beyond the discovery cut-off |7dates, they have never indicated that they would not produce their adjuster, Ms. Mayo, for a deposition in Louisiana. Also, Defendants point out that, pursuant to La.R.S. 23:1201, claimants have the remedy of seeking penalties and attorney’s fees if an insurer fails to properly handle a claim. Additionally, Defendants argue that Relator may not bring the motion to compel the appointment of a Louisiana resident under La.R.S. 23:1161.1, because that statute was not passed for her benefit.

Alternatively, Defendants assert that, even if Relator’s interpretation of La.R.S. 23:1161.1 is correct and all insurers are required to retain a Louisiana claims agent, La.R.S. 23:1161.1 applies to insurers, and not to third party administrators such as Gallagher Bassett. Defendants also make the alternative argument that they have technically complied with the provisions of La.R.S. 23:1161.1(A) because, in addition to having a qualified claims adjuster in Tennessee, they also have a claims office in Baton Rouge, Louisiana.

We agree with our brethren in the fifth circuit “that LSA-R.S. 22:337, provides a proper basis for the trial court’s conclusion that LSA-R.S. 23:1161.1 requires the relator-insurer to either establish and maintain a claims office within the state of Louisiana or retain a Louisiana licensed claims adjuster.” See Ortega, 118 So.3d at 1126. Failure to retain a Louisiana claims adjuster creates an undue burden on the relator.

The Defendants’ final argument concerns La.R.S. 23:1176, which defines certain terms, including “insurers.” The article states that “ ‘[^Insurers’ .... shall not mean individual self-insurers.” Defendants contend that, because they are self-insurers, they cannot be considered “insurers” for the purposes of La.R.S. 23:1161.1. We do not agree. La.R.S. 23:1176 begins with the words “[a]s used in |sthis sub-part.” Louisiana Revised Statute 23:1176 is found in Subpart I, entitled “Insurance Cost Containment,” of Part I, “Scope and Operation.” La.R.S. 23:1161.1 is found in Subpart H, entitled “Liability Insurance,” of the same Part. Therefore, as clearly set forth in the statute, the definitions found in La.R.S. 23:1176 do not apply to terms found in La.R.S. 23:1161.1. This argument is groundless.

For the foregoing reasons, we find that the workers’ compensation court was incorrect in denying Relator Darline Broussard’s motion to compel Defendants Dillard Department Stores, Inc. and Gallagher Bassett Services, Inc. to retain a claims adjuster in Louisiana. We further find that the workers’ compensation court does have subject matter jurisdiction to determine the issue of whether an employer or insurer has complied with La.R.S. 28:1161.1. Relator’s writ is granted. This matter is remanded to the workers’ compensation court for further proceedings. Costs of these proceedings are assessed to the Defendants Dillard Department Stores, Inc. and Gallagher Bassett Services, Inc.

WRIT GRANTED AND MADE PEREMPTORY; CASE REMANDED.

AMY, J., dissents and assigns reasons.

CHATELAIN, J., dissents for the reasons assigned by Amy, J.

AMY, J.,

dissenting.

I respectfully dissent from the majority decision. Notwithstanding the parties’ positions regarding subject matter jurisdiction, I point out that the “Motion to Compel Retainer of Licensed Claims Adjuster” relies upon the application of La.R.S. 23:1161.1(A). The statute provides that “[a]ny insurer ... who issues a policy for workers’ compensation in this state shall either establish and maintain a claims office within the state or retain a licensed claims adjuster.” (Emphasis added.)

As represented in the opposition to the writ application, and as observed by the majority, Gallagher Bassett maintains a claims office within Louisiana. Thus, it has fulfilled La.R.S. 23:1161.1(A) by satisfying the first of two methods permitted by the statute. Requiring the respondent to further “retain a licensed claims adjuster” eliminates the statute’s use of the terms “either” and “or[.j” And, by its singular request that the “Employer/Insurer be compelled to retain a licensed claims adjuster, with an office located in the State of Louisiana[,]” the motion to compel simply collapses the two methods of compliance set forth by the statute.

Finding the statute satisfied, I would deny the present writ application.